PUBLIC INTERNATIONAL LAW

PART-B QUESTIONS

Q. 1. What is International Law? Explain evolution of State as subject of International Law?

Ans: Definition of International Law:

J. L. Brierly defines the law of the nations or International Law may be defined as the
body of rules and principles of action which are binding upon Civilised States in their
relations with one another.

T. Gihl defines the term “International Law” means the body of rules of law and
applies within the International community or society of states.

Kelsen defines International Law or the Law of Nations is the name of body of rules
which regulate the conduct of the states in their intercourse with one another.

Austin defines International Law is not true law; it is only positive international
morality.

Jeremy Bentham renamed “Law of Nations” as International Law. Nowadays, the

terms “Law of Nations and International Law” are used interchangeably.

Types of International Law:

International Law is divided into public and private. Public International Law mostly
concerns with the political interactions of states. Private International Law concerns with the
aspects of the International Economy and conflicts and cooperation among National Legal
Systems.

True Law:

Is International Law is a True Law? There are different views.

International Law as law in proper sense. International Law is habitually treated and
enforced as law like certain kind of positive law. It is derived from custom, precedent.

Pitt Cobbett observes that International Law must rank with law and not with
morality.

According to Kelsen, International Law is a law and is binding on the States basing on
the expression “pacta sunt servanda” (International agreements should be honoured).

According to Austin, International Law is not a law because it did not come from
sovereign authority.
Sources of International Law:

1) International Conventions.
2) International Customs.
3) General Principles of Law recognized by civilised nations.
4) Decisions of the organs of International Institutions.
5) Equity and justice.
6) Decisions of the judicial or arbitral tribunal.

Vanishing Point of Jurisprudence:

Whether the International Law is a vanishing point of jurisprudence or not?

International Law is a new subject to the human beings in 19th Century. It was not
formed. After first World War, the first International Organisation by name “The League of
Nations” was formed, but it failed due to several reasons. The UNO has been established
after Second World War and is seemed to be successful in its operation. Therefore,
International Law is a new subject to us.

Some jurists opine that International Law is not a law at all; it has no binding force
and has no machinery for its implementation and is therefore, the vanishing point of
jurisprudence.

Those who want to argue that the International Law is a law, they argue that the
International agreements are binding and war is sanction.

Who are the subjects of International Law?

There are three theories; States or People or Both.

1) States alone are Subjects of International Law:

This theory explains only states are subjects of International Law and the individuals
are not subjects of it. International Court of Justice (ICJ) treats States alone as the subjects,
individuals are objects and not subjects.

Since law of the Nations is primarily a law between States, States are to that extent
the only subjects of the law of nations.

2) Individuals are Subjects of International Law:

At present, the world population has crossed 800 crores and the entire residents of the
world are the subjects of the International Law.

3) Both States and Individuals:

According to this theory, both States and Individuals are subjects of the International
Law.
Q. 2. Whether Individuals are Subjects of International Law?

Ans: International Law:

International Law means the body of rules and principles of action which are binding
upon Civilised States in their relations with one another.

Preamble of United Nations:

According to the Preamble of the Charter of the United Nations, it starts with, “We
the People of the United Nations.” The International Law was born out of customs of the
people of the various parts of the world. Therefore, it is correct to say that the individuals are
the subjects of the International Law. It has prohibited the slavery and servitudes. It protects
the individuals from robbery in the High Seas. The law which is formed by International Law
is adopted by the States. The law is made according to the wishes of the people.

West Lake:

The duties and rights of the State are only the duties and rights of the men who
compose them. There is no difference between International Law and States Laws. There is
only small difference that is State Law applies on individuals immediately whereas
International Law applies upon the individuals mediately.

Danzig Railway Officials Case

In this case, Poland under treaty took Danzig Railway Co. from the other country. As
per treaty, Poland agreed to provide benefits to Danzig Railway Officials. Then, they
approached the Permanent Court of Justice. Before Permanent Court of Justice, the Poland
argued that the individuals are not subjects of International Law; only States are subjects of
International Law, but the Permanent Court of Justice did not accept that contention. The
Permanent Court of Justice held that Poland was liable to fulfil its obligations, but ICJ did not
consider the individuals as subjects of International Law; only States are the subjects of the
International Law.

Place of Individual in International Law:

The procedural capacity of the individuals has been recently emphasised in

International Law. Since its inception, the States have been given top-priority. The UDHR,
1948 is a landmark in the history of the UNO. The declaration upholds the human dignity in
every person irrespective of his race, sex, religion, colour, language and political opinions,
etc. Thus, individuals are also subjects of International Law; of course, they have lesser rights
than States. The preamble of UNO starts with the phrase, “We the people of United Nations.”
This gives great significance towards the importance of the rights of the individuals.

Convention:
 The Convention on Settlement of Investment Disputes between States and Nationals
of Other States, 1965 recognises the rights of the individuals and companies.

The International Convention on Civil Liability for Oil Pollution Damage, 1969
imposes liabilities and duties upon the individuals.

It is true that other than States and Individuals, International Organisations have been
granted rights and duties in most of the cases by the States themselves and they therefore are
the instruments in the hands of the States. They would cease to exist as subject of
International Law on the date when the States decide to get rid of them.

States are primary subjects of International Law. States are active subjects of
International Law. They possess the totality of rights and duties under International Law.
Individuals are passive subjects of the International Law. Therefore, the States are subjects of
International Law and individuals are objects of International Law.

Q. 3. Explain the Principles of State Responsibility?

Introduction: If a servant does a wrong, master is liable. It is doubtful that if citizen of India
does a wrong to the foreigner, whether Indian government is liable or not? It is often said that
the sovereign has no obligation under law. This statement is true only in respect of the
obligations towards other nations. If we deny the State responsibility, the object of
International Law is defeated. If we accept the State responsibility, it is a licence to the big
nations to make the weak countries responsible, though it is innocent.

States as International persons owe duties to other States and their citizens. Every
State has to protect interests of aliens (foreigners) as per International Law. In case of any
damage, the State will be responsible to compensate to the aliens for the injury caused.

Original or Vicarious Responsibility: The State responsibility may arise originally or

vicariously. Original responsibility is also known as direct responsibility. It arises from its
own actions and actions of the agencies of the government; or private individuals performed
within the authorisation of the government. Vicarious liability arises for the acts of their own
agents or other individuals. In case of vicarious liability, the State has to tender an apology or
compensate the loss. If the State fails to comply, it commits an International Delinquency. In
such a case, the vicarious liability of the State gets turned into original responsibility.

Categories of Responsibility: The State responsibility arises in numerous ways. They can be
discussed under the following heads:

1) International Delinquency: Delinquency is an injury to another State committed by the

State in violation of an International legal duty. In other words, an International delinquency
implies breach of some duty imposed upon a State by International Law. If the State
committed wrong to other nation by violating International Law, it has to pay compensation
for the loss caused to the other country.
Case Law: U.S. V. Mexico

2) Injury to Aliens: Under International Law, it is generally agreed that aliens living in a State
should also be conferred upon the same rights, which are given to the citizens. It is the
responsibility of the State to protect the rights of the aliens in the same way as they protect
the rights of their citizens. State is responsible even for the acts of the individual, who causes
injury to aliens.

3) Acts of Government Organs: The State is responsible for the acts performed by its
representatives or officials towards the aliens provided the officials exceed their authority and
jurisdiction.

4) Contracts with the Foreigners: When a State enters into a contract with alien and if State
commits breach generally under International Law, there is no responsibility; however, the
alien has the remedy to avail of the local means available to him in the State Law.

5) Breach of Treaty: When the Treaty is breached by the State, it is responsible to pay
damages to the other States whose interest is affected.

6) Expropriation of Alien Properties: If the State expropriates foreign territory or property, it

is against the International Law, and for that, State is responsible.

7) Multi-National Corporations: Multinational Companies expand their business throughout

the world. If MNC causes injury to the public of the host of the country or to the other State
or subjects of the other State, then State of MNC is liable or responsible.

Case Laws: 1) Trail Smelter Arbitration – U.S. Versus Canada

2) UCC Versus Union of India (Bhopal Gas Company)

Q. 4. What are the Various Modes of Acquiring and Losing Territory?

Introduction: A State’s Sovereignty can be extended or reduced. If a State acquires new

territory, it sovereignty will be extended. If a State surrenders its territory to another State,
then State’s sovereignty will be reduced. There are several modes of acquisition of territories
recognised by the International Law. A State may acquire territory through any of the
following modes.

Modes of Acquiring Territory: They are as follows:

1) Occupation: Occupation is the act of appropriation of the territory which previously

belongs to none. So, occupation means establishing sovereignty over a territory not under the
control of any other State.

2) Prescription: Title by prescription is the result of the peaceful exercise of de facto

sovereignty over a territory for a very long period. However, International Law does not fix
any period of prescription.
3) Accretion: Accretion is the name for the increase of land through new formations.
Sometimes, new formations occurred which enlarge the territories of the States.

A State acquires territory by accretion when new land is formed within its existing
territorial limits, the sea recedes, a river drives up, an island appears within the territorial sea.

4) Cession: (Surrender of Sovereignty) The cession means transfer of sovereignty over

territory by the sovereign to another State. The cession of territory may be voluntary or it
may be made under compulsion as a result of war.

5) Annexation (conquering): When a State conquers another State, the conquering State
establishes its sovereignty over the conquered State.

6) Plebiscite: Plebiscite is an opinion of the inhabitants for being ruled by an sovereign

country. Though there is no definite rule, but modern jurists expressed the view that a new
territory may be acquired by plebiscite.

7) Pledge: Sometimes, States are compelled to pledge their territory in return of the amount
received by them.

8) Lease: A territory may be acquired through lease.

9) Independence: Through independence, a colonial state acquires territory.

Modes of Loss of Territory:

1) Cession: When one State acquires the territory through cession, the other State loses it.

2) Operation of Nature: Sometimes, a State may lose its territory through the operation of
nature.

Example: Earthquake, Tsunami.

3) Subjugation: A State may acquire territory through annexation. The other State may lose it
through subjugation.

Q. 5. What is Intervention? On what grounds intervention is permitted?

Meaning: Interference by one country with the affairs of another country by force or other
means is called “intervention.” Under International Law, every State has a right to manage its
affairs as it likes. No State has a right to intervene in the affairs of another State. Hence,
International Law prohibits intervention in certain circumstances.

Definition: Professor Oppenheim calls intervention as “Dictatorial interference by a State in

the affairs of other State for the purpose of maintaining or altering the actual conditions of
things.”
Quincy Wright defines “Intervention may be diplomatic as well as military.”

Kinds of Intervention: There are three kinds of Interventions. They are:

a) Internal Intervention.
b) External Intervention.
c) Punitive Intervention.

a) Internal Intervention: It is the interference by one state between the disputing sections of
community either for protection of the legitimate government or the insurgents.

b) External Intervention: It is the intervention by one state in the relations (hostile) of other
states.

c) Punitive Intervention: (Intervention through war) - Generally, big nations use weapons
towards the weak nations. It is punitive measure falling short of war.

U. N. Charter: U.N. Charter prohibits the Intervention. As per Article 2 (4) of the U.N.
Charter, State should not interfere with the affairs of another State.

Grounds for Intervention: The U.N. Charter provides certain grounds for a valid intervention.
They are:

1) Self-defence; 2) Humanitarian grounds; 3) Enforcement of treaty rights; 4) Prevent illegal

intervention; 5) Protection of persons and their properties; 6) Collective intervention; 7)
Maintain International Law; and 8) Civil wars.

1) Self-defence: Article 51 of the Charter VII of the UN Charter recognized and declared
self-defence as valid ground for intervention. According to this Article 51, the right is
available to the members of the UN only, but not to non-members.

2) Humanitarian Grounds: Intervention on humanitarian grounds is permitted. It is good if it

is by UN and not individual States.

3) Enforce Treaty Rights: In the past, it was a ground for intervention. At present, in the
presence of ICJ and Security Council, it is not a ground for intervention.

4) Protection of Persons and Property: In the past, this used to be a valid ground, but the U.N.
Charter has affected intervention on this ground.

5) Collective Intervention: It means intervention by U.N. is permitted by the provisions of the

charter. The Security Council can take collective action to maintain international peace and
security.

6) Maintain International Law: Intervention is not permitted for maintaining international law
as such.

7) Civil War:
Q. 6. Treaty:

Introduction: Treaty means a formal signed and ratified agreement between States.

Treaty means an international agreement concluded between States in written form

and governed by International Law, whether embodied in a single instrument, in two or more
related instruments (and whatever its particular designation).

A treaty may be called with other names, such as;

1) Convention; 2) Agreement; 3) Declaration; 4) Protocol; 5) Accord; 6) Code; 7) Contract.

Definition: Prof. S. Berger defines treaties are agreements between subject of International
Law creating a binding obligation in International Law.

Convention: VIENNA CONVENTION ON LAWS OF TREATIES

The customary rules of International Law relating to treaties gradually acquired

considerable certainty and precision. The Vienna Convention on Laws of Treaties was
adopted by the UN Conference on 23-05-1969, came into force on 27-01-1980. Now, there
are over 59 States, parties to the convention.

Classification of Treaties:

Treaties: 1) Bilateral Treaties (in between two countries, example – India and
Russia)

2) Multilateral Treaties (India, Russia, China)

3) Law-making treaties.

4) Treaties for their own purposes.

Elements of Treaties:

1) Pacta Sunt Servanda: It means the contracts are to be kept. If the treaties are properly
executed, they get binding force.

2) Capacity to Contract: Only sovereign States are competent to make a treaty in International
Law.

3) Free Consent: Treaty entered due to coercion is not valid. The consent of the Statement be
free.

4) Custom: Custom, morality, etc. influence these sovereign States when they are entering
into treaties with other countries.

Various modes by which the State may express its consent to be bound by a Treaty.

1) Signature; 2) Exchange of Instruments; 3) Ratification; 4) Accession.

Ratification of Treaties:

Ratification of Treaty plays an important role to get the treaty into binding force.
Ratification to treaty is an International Act. A State by ratification to treaty expresses its
consent to be bound by a treaty.

Modes of Termination of Treaties:

1) Consent: A treaty may be terminated at any time if the parties to the treaty consented to it.
An agreement requires consensus of minds. Similarly, it can also be terminated by mutual
consent.

2) Termination of Treaty Provision: If treaty is for a fixed time, then it comes to an end after
that time.

3) Mistake of Error: The State may invoke an error in treaty as invalidating its consent to be
bound by the treaty.

4) Fraud: The State may invoke fraud as invalidating its consent to be bound by the treaty.

5) Coercion: Coercion in Municipal Law is a good ground to invalidate an agreement, but in

International Treaties, it is seen very rarely. State cannot be coerced.

6) Unequal Treaties: Unequal treaties are not legally binding. Treaties must be based on
sovereign equality of the contracting parties.

7) Jus Cogens: Jus means moral as well as legal obligations. Cogens means
forcing/compelling.

A Treaty can be declared void in International Law if it conflicts with

PEREMPTORY NORM and such treaty shall be considered as void ab initio. This is called
jus cogens.

Example: A treaty contemplating the performance of any act criminal under International
Law.

8) Material Breach: A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the treaty/suspending its operation as
whole/part.

9) Supervening Impossibility of Performance: In case of permanent

disappearance/destruction of an object indispensable for the execution of the treaty, then the
treaty may be terminated.

Example: India-USSR: There was a treaty between India and USSR for supply of CRIO
GENIC ENGINES. Subsequently, USSR disappeared and it was divided into 15 States. Then,
the treaty between the two countries comes to an end (terminated).
10) Rebussic Stantibus: Means fundamental change of circumstances. As a result of
fundamental change of circumstances mentioned in the treaty, then the treaty may be
terminated.

The UK was a party to a treaty entered into with three other countries including India
in 1960. In 1985, UK unilaterally withdrew from its obligations under the general principles
of treaties. India agreement was Britain cannot unilaterally withdraw from the treaty. It
should give two months’ notice to the parties to the treaty. Britain violated this basic principle
imposed by the Vienna Convention on Law of Treaty. Therefore, India is entitled to take an
action against Britain.

Case Law: S. S. Wimbledon Case.

Q. 7. Recognition:

Introduction: Recognition means declaring a State as full-fledged State of International

Community. It is formal acknowledgement of the Status of Independent and Sovereign State.

According to Professor Oppenheim, recognition is a declaration on the part of

recognizing State that a foreign community/authority is in possession of necessary
qualification of statehood of government capacity/belligerency (forcefully).

Definition: The institution of International Law defines as the free fact by which one/more
States acknowledge the existence on a definite territory of human society politically
organized independent of any other existing State and capable of observing the obligation of
International Law by which they manifest their intention to consider it a member of the
International Community.

Meaning of State: In order to treat a community as State, the following conditions have to be
satisfied.

a) Government; b) Territory; c) People; d) Sovereignty.

In simple, recognition is an executive act by which another State acknowledges that

the other is recognised State possessing the essentials of Statehood.

Theories of Recognition: There are two main theories of recognition.

1. Constitutive Theory.
2. Declaratory Theory.

1) Constitutive Theory: Professor Oppenheim and Lauther Patcht are the main supporters of
this theory. According to this theory, only through recognition, a new State will get rights and
duties. In other words, even though if a State has ratified essentials of Statehood, it is not a
State unless it is recognised by the existing State.

Lauther Patcht says there is a duty upon the existing States to recognise new States.
His argument is meaningless because rights and duties are correlative. If there is a duty to
existing State, there must be a corresponding right to the new State. There is no meaning in
right to demand the existing States to recognise it. If Lauther Patcht’s argument is allowed to
be true, new State will file a case against the existing State to recognise it.

Criticism: Many jurists have criticised this theory. According to this theory, a political entity
will become a State under International Law only through recognition. China and Bangladesh
were not recognised by America for a number of years, though they satisfied the essentials of
statehood. Even prior to its recognition by existing States, it was a State.

2) Declaratory Theory: According to this theory, the State enters into family of nations as a
matter of right when it has satisfied the essentials of the Statehood. State is independent of
recognition. It means prior to its recognition, it was State.

Criticism: Recognition is only a declaratory act of an existing fact. It is not completely

correct. If State is not recognised, some disadvantages are there to new State. Hence, this
theory is also criticised.

Recognition is a Declaratory as well as Constitutive Act. Truth lies between the two
theories.

Advantages of Recognition:

1) Diplomatic: To establish diplomatic relations with recognised States.

2) Treaty: To enter into treaties.

3) Member: To become a member of UNO.

4) Aid: Access to foreign aid and loans, etc.

Disadvantages:

1) Sue: An unrecognised State cannot sue in the courts of States, which have not recognised
it.

2) Diplomatic: Unrecognised State is not entitled to enter into any diplomatic relations with
other nations.

3) Privileges: The diplomats of unrecognised States do not enjoy the diplomatic privileges.

4) Treaty: An unrecognised State cannot enter into treaty.

5) Property: Unrecognised States are not entitled to get their property in foreign State.

Recognition may be express or implied. It may be granted individually or collectively.

Modes of Recognition:

a) De facto Recognition: It is a provisional and temporary recognition. It can be withdrawn

subsequently. In practice, the States may first grant de facto recognition. When the existing
States want to delay the de jure recognition, they may give de facto recognition.

b) De jure Recognition: De jure recognition is legally binding and the permanent one. It
complies that the State/Government in question is fully qualified to be a member of the
International community. The Soviet government was given de facto recognition by Great
Britain in 1921. Subsequently, in 1924, de jure recognition was granted. In 1991, USSR was
broken into 15 States which were collectively recognised by the existing States.

Difference Between De Facto and De Jure Recognition:

WTFRPD De Facto De Jure

Withdrawn De facto recognition can be De jure recognition cannot be
withdrawn at any time. withdrawn.
Two Governments In case of de facto In case of de jure recognition,
recognition, there will be two there will be only one
rival governments. government.
Fact It is a fact but not law. It is legal.
Rules of Succession They are not applied. They are applied.
Provisional Yes. No.
Diplomatic Relations No. Yes.

Q. 8. State Succession:

State Succession: State Succession occurs when State disappears and “a new State is formed
within the territory of an existing State/territory is transformed from one State to another
State.” The law of State Succession is embodied in the principles of “continuity of States.” It
means the State remains unchanged and its rights and liabilities also remained unchanged
though the government in the State is changed. The law of State Succession helps to establish
International peace and security.

Kinds of Succession: Two Kinds:

1) Total Succession/Universal Succession.

2) Partial Succession.

1) Total Succession: When a State’s legal identity is completely destroyed, it is universal

succession. It comes into picture by way of subjugation, voluntary merger and breakup of a
State into several parts. Subjugation means one country is completely merged with another
country by war or by force.

Example: China subjugated Tibet.

Voluntary merger occurs when one State merges with another State freely and voluntarily. It
loses its legal identity. For example, prior to 1975, Sikkim was an independent State. In the
year 1975, it merged in India and lost is identity and became one of the States of India.
Similarly, in the year 1990, West Germany and East Germany merged as one State.

Sometimes, a State may breakup into several parts and each part becomes separate
International person. It is also a universal succession. For example, in the year 1991, Soviet
Russia lost its legal entity, entirely broke up into 15 States, now each state is having its own
legal identity.

Example: Texas merged in United States.

2) Partial Succession: When a State’s legal identity is partially destroyed, it is partial

succession.

Example: East Pakistan was converted into Bangladesh. Partial succession takes place when a
part of the State revolts and becomes separate International person. Partial succession takes
place in the following cases.

a) Independence; b) Federation; c) Cession; d) Referendum; e) Purchase.

When the part of a State becomes Independent, State by means of revolution of

agreement, partial succession occurs. Partial succession takes place when a part of the State is
ceded (handed over) to another State. Sometimes, two or more States may form as federation
for certain reasons. In such cases, one State may lose part of its independence, i.e., partial
succession.

Rules of Succession with regard to the Rights and Duties:

Succession Takes Place:

1) Boundaries: Generally, treaties run with the land so treaties should not be affected by
change of sovereignty. If this is followed, sovereignty is affected. So, in practice, New State
will follow certain treaties like boundary treaties. In other words, a new state is bound by the
boundary treaty, introduced by old State.

2) Employees: Even though the State dies, the employees will represent the new State.

3) Debts: If there is a debt to old State to its own subjects (people), the new State must return
those debts to the public.

4) Non-Political Agreements: Agreements relating to social, cultural, educational matters are

bound to be followed by a new State.

5) Assets: The new State will get all the assets of the old State.

No Succession of Rights and Duties:

1) Contract: The General Rule is that a new State is bound by the contracts entered into by
the former State. This general rule was not followed in:

Western Central Gold Mining Co. Ltd. V. King (Material).

2) Concessionary Contracts: It means the contracts through which some concession such as a
digging of mines, laying railways, etc., are given through contracts. A new State may or may
not be bound by the concessionary contracts.

In practice, if concessionary contract is given to foreigner, then new State may not be
bound.

Prem Chibar V The Union of India (Material)

3) Tort: No succession takes place in respect of damages for torts committed by the former
State.

4) Extradition Treaty: It is not bound by New State.

5) Nationality: The citizens of the old State lose their nationality and they become the new
nationals of the existing State.

6) Military Treaties: A new State is not bound by the military treaty entered by the former
State.

7) Membership: Succession will not take place with regard to membership of International
organisation.

Conclusion: If succession gives benefit to a new State, then succession is said to have taken
place.

Q. 9. Privileges and Immunity of Diplomatic Agents:

Introduction: There must be some immunities to diplomatic agents. In the year 1961, Vienna
Convention on Diplomatic relations provide better law.

Classification:

1) Ministerial Residents: They were appointed before 1961. After 1961, this system was
abolished.

2) Ambassadors: They are representatives of sovereigns.

3) Legates: The legates are only appointed by Pope, so they are called legates.

4) Envoys: These type of envoys belong to 2nd category. They are having less facilities.

5) CHARGE D'AFFAIRES: These members are only appointed by the foreign ministry.
However, after 1961, all are equal.

Functions of Diplomatic Agents:

1) Negotiation: With foreign country on behalf of mother country.

2) Protection: Protecting his country people.

3) Report: Send report to his mother country.

4) Maintenance: Maintain good relations with foreign country.

5) Represent: Represent mother country on behalf of its native people.

6) Observation: Observation of things which are going against the country.

Immunities:

1) Criminal Jurisdiction: Immune from arrest and detention.

2) Civil Jurisdiction: Immune from civil proceedings.

Engalke V. Mussaman, held that the privileges that are available to diplomatic agent will also
be available to his wife and children if they live with him.

3) Residence: His residence should not be inspected.

4) Inspection: His personal luggage cannot be inspected.

5) Police Rules: He is not subject to police rules of that country.

6) Witness: He cannot be called as witness.

7) Tax Dues: He is immune from taxation.

8) Communication: Right to communicate his mother country.

9) Worship: Right to worship.

10) Travel: Right to travel freely.

11) Control: Right to control officers in his office.

Termination:

a) Recall by his mother country.

b) Cessation of envoys functions.

c) On the request of receiving nation.

d) By delivery of passport.
Persona Non Grata: If envoy is declared as a persona non grata by receiving State, he has to
leave for mother country.

Example: Vijaya Nambiar – by Pakistan.

PART-A QUESTIONS

SN. 1. Innocent Passage:

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

Passage includes stopping and anchoring, but in so far as the same are incidental to
ordinary navigation or are rendered necessary by force or by distress. Passage is innocent so
long as it is not prejudicial to the peace and security of the coastal state. The coastal state
must not hamper innocent passage through the territorial sea. The coastal state is required to
give appropriate publicity to any dangers to navigation for which it has knowledge within its
territorial sea. The coastal state may take necessary steps in its territorial sea to prevent
passage which is not innocent.

Foreign ships exercising the right of innocent passage shall comply with the laws and
regulations enacted by the coastal state.

U.S. Versus Albania (Corfu Channel Case)

SN. 2. Plebiscite:

It means the consent of the people. New territory may be formed through plebiscite. It
is a process by which people or citizens are given option or freedom to decide whether to
merge a territory with one state or other. Example: Kashmir.

Pakistan has been claiming that there should be plebiscite in respect of Kashmir.

SN. 3. Nationality of Married Woman: A woman after marriage may acquire double
nationality, i.e., her original nationality and her husband’s nationality. The double nationality
of a woman sometimes leads to certain problems or conflicts.

To resolve the problems of double nationality of married woman, The Convention on

Nationality of Married Women was adopted by the General Assembly of the United Nations
on 23-01-1957.
 The Hague Conference, 1930, provides that if a woman marries another national, she
automatically acquires the nationality of her husband. However, she can retain her birth
nationality if she wants. The States undertook to ensure in particular that neither marriage to
an alien nor change of nationality by the husband during marriage shall automatically change
the nationality of the wife, render her stateless or force upon her the nationality of the
husband.

SN. 4. International Seabed Authority:

The International Seabed Authority is the organisation through which State parties to
the convention carry out the activities in the area, particularly with a view to administering
the resources of the area.

Article 153 of The United Nations Convention on the Law of the Sea, 1982 enables
the member States to establish on International Seabed Authority to carry and control the
activities in the seabed area on behalf of mankind as a whole. The International Seabed
Authority shall have its seat at Jamaica. The International Seabed Authority consists of the
following organs:

a) Assembly.
b) Council.
c) Secretariat.
d) Enterprise.

SN. 5. Belligerent (recognition of belligerent):

The word “belligerence” means waging a war or to wage a war.

On the outbreak of rebellion or revolt in any country, the outside powers generally
maintain an attitude on non-interference in the domestic affairs of that state.

Recognition of belligerent rights is depending upon the will of the recognizing State.
If the contest ends in war, in the manner in which it is understood in International Law,
belligerent rights are recognized.

SN. 6. The Doctrine of Hot Pursuit:

The Doctrine of Hot Pursuit which authorises a State to pursue immediately upon
high sea vessel, which has committed an offence within maritime belt, is well recognised in
International Law.

According to this doctrine, when a foreign vessel commits an offence within the
territorial waters of State and escapes seizure, it can be pursued and seized by the men of war
of the territorial state upon the high seas and brought back to a port of trial. The right of hot
pursuit comes to an end as soon as the vessel sought to be seized reaches the territorial waters
either of its own state or of a third state.

The Supreme Court of Canada held that “by the law of nations, when a vessel within
foreign territory commits an infraction of its laws either for the protection of its fisheries or
its revenue or coasts, she may be immediately pursued into the open seas beyond the
territorial limits and taken there.

The Institute of International Law accepted the Doctrine of Hot Pursuit and provided
that the capture should be notified without delay to the Flag State.

SN. 7. Security Council:

The primary object of establishing the Security Council is to maintain the

International peace and security. It is most important organ of the United Nations.

The Security Council consists of 15 members of the UN. Out of 15 members, 5

members are permanent members. They are:

a) America; b) Britain; c) China; d) France; and e) Russia.

The General Assembly elects 10 other members of the UN. These 10 members are
non-permanent members of the Security Council. Non-permanent members shall be elected
for a term of two years. Each member of Security Council shall have one representative.

The Security Council takes the decisions basing on the voting. The decisions require 9
affirmative votes including the affirmative votes of 5 permanent members on all substantial
matters, having great importance.

The right of VETO is conferred only to 5 permanent members. Therefore, any

decision not acceptable to any one of them was made un-implementable.

SN. 8. The Convention on Elimination of All Forms of Discrimination against Women

(CEDAW):

The discrimination against women means any distinction, exclusion or restriction

made on the basis of sex.

The General Assembly adopted a convention, i.e., CEDAW on 18-12-1979 with

effect from 1981. It is potentially most enduring and from the women’s right perspective, the
most important document; although, CEDAW fails to specify a number of women’s
reproductive rights, except family information and counselling, choices and equal rights to
both men and women to decide on the number and spacing of children. CEDAW still remains
the main international binding agreement regarding the rights of women.
SN. 9. International Law Creating Act:

Rules of International Law which originated from customs got established through
time. It was Customary International Law which regulated the relations of the states
particularly in all the spheres. However, the lack of precision and its slowness gave
preference for written law by most the States. By codification, rules became distinct and
easily ascertainable and it becomes easier for the courts and tribunals to apply them. Thus,
the desire of the codification of International Law became intense mainly to remove
uncertainties and fill up existing lacuna (gap) on the one hand and to bring uniformity on the
other hand.

Example: Statute of the Permanent Court of Justice.

SN. 9. Continental Shelf:

Coastal States want to take more benefits from sea; as a result, there are conflicts
between States. Geneva Convention on the Continental Shelf, 1958 was a successful
achievement to solve the problems which arose in the area of Continental Shelf.

The concept of continental shelf has become a part of Customary International Law
since consistent and uniform usage of States could be established in short span of time.

Definition and Outer Limit of Continental Shelf: Continental shelf may be defined as “the
zone around the continent extending from the low water line to the depth at which there is
usually a marked increase of declivity of greater depth.”

Definition of Continental Shelf under Geneva Convention of 1958:

This convention instead of defining the meaning of the term continental shelf defined
area of the sea which may be referred to as continental shelf.

The coastal states have rights over continental shelf for the purpose of exploring and
exploiting its natural resources.

Thus, the Geneva Convention stated that the Continental Shelf is the seabed and
subsoil ofthe submarine areas adjacent to the coast put outside the area of territorial sea to a
depth of 200 metres or beyond that limit where a State can exploit the resources of the sea.
The definition was criticised on the ground that only developed countries, by using their
technology, exploited the resources beyond the depth of 200 metres. That is why this
definition was criticised.
IIIrd UN Convention in 1982: As per the IIIrd UN Convention, continental shelf is the seabed
and subsoil of the submarine areas that extend beyond its territorial sea to a distance of 200
nautical miles from baseline.

Payment for the Exploitation of Continental Shelf - Beyond 200 Nautical Miles: If any State
wants to explore more and more beyond 200 nautical miles, a deadline is fixed by
international seabed authority. Beyond 200 nautical miles after first five years of its
exploration, it has to make payments to International Seabed Authority.

Case Laws: 1. North Sea Continental Shelf.

2. Continental Shelf.

NORTH SEA CONTINENTAL SHELF

Federal Republic of Germany Versus Denmark

and

Federal Republic of Germany V. The Netherlands (ICJ 1969)

In respect of the delimitation of continental shelf areas, the Kingdom of Netherlands

and the Kingdom of Denmark entered in separate agreements with Federal Republic of
Germany in 1964 and 1965 respectively. The continental shelf areas lying beyond and to
seaward of those affected by the partial boundaries thus established. Hence, the court was
requested by each of the two special agreements to decide what are applicable principles and
rules of International Law. The waters of the North Sea are shallow and the whole seabed
consists of continental shelf at a depth of less than 200 metres, but the Norwegian belt of
water was having 200 to 650 metres depth. The difference of opinion arose between the
parties in respect of a right angled bend situated in mid coast of North Sea Coast. The
Kingdom of Denmark and the Netherlands contended that the whole matter is governed by a
mandatory rule of law, which was designated by them as the “equidistance special
circumstances” rule. According to them, all continental shelf boundaries must be drawn by
means of equidistance line, unless/expect to the extent to which “special circumstances” are
recognised to exist. Germany contended that the principle of “just and equitable share” must
be applied.

Decision: The International Court of Justice decided the matter in favour of Denmark and
Netherlands applying the principle of equidistance special circumstances. The court further
held that “the rights of the coastal state in respect of the area of continental shelf that
constitutes of natural prolongation of its land territory into and under the sea exist ipso facto
and ab initio by virtue of its sovereignty over the land, and as a extension of it, in exercise of
sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.
In short, there is an inherent right.
 CONTINENTAL SHELF CASE (Libya V. Tunisia – 1982 - ICJ)

Libya and Tunisia got independence in 1952 and 1956 respectively. Coastal area of
both the States situated side by side. Libya is one of the major producers of petroleum oils.
Tunisia also decided to explore petroleum products in the continental shelf for which Libya
objected on the ground that Tunisia crossed into limits of Libya. Tunisia contended that it is
entitled to exploitation of fixed fisheries and sponges in the waters of its coastal line beyond
its territorial sea as a matter of historic rights for which Libya objected and the matter was
referred to International Court of Justice for decision.

Decision: By a majority, the court applied the principle of natural prolongation and rules of
International Law applicable for the delimitation of the areas of continental shelf appertaining
to Tunisia and Libya.

SN. 10. World Trade Organisation (WTO)

1. GATT was established in 1947.

2. It was renamed as WTO in 1995.

3. Headquarters of WTO is located at Geneva.

4. It influenced the liberalisation and globalisation policies.

5. WTO aims at conducting International Trade among countries of the world in an open,
uniform and non-discriminatory manner.

WTO wants both the import and export restrictions to be abolished. Instead of
bilateral agreements, it expects the countries to follow multilateral agreements.

WTO is not only regulating international trade of goods, but also services. It provides
an international forum for trade discussion.

SN. 11. Asylum:

A place of refuge. It is an institution for receiving and maintaining persons suffering

from certain bodily defects/mental melodies/a refuge for the destitute.

Asylum is the protection which a State grants on its territory/in some of her place
under the control of certain of its organs to a person who comes to seek it.

Article 14 of UDHR, 1948, says everyone has a right to seek and enjoy in other
country’s asylum from prosecution.
Asylum may be: 1. Territorial Asylum.

2. Diplomatic Asylum/extraterritorial asylum.

Where asylum stops, extradition begins.

SN. 12. State Government:

A State Government is an entity which has a defined territory, a permanent

population, is under the control of a government and engages informal relations with other
entities. A political entity becomes a State only after obtaining recognition.

Government: Statehood must be evidenced by the establishment of an effective government;

i.e., one independent of any authority and one which enjoys legislative and administration
competence. A government should not depend upon any foreign government or foreign
military. It must possess sovereignty.

SN. 13. Seabed and Ocean Floor:

International Seabed area is also called as ocean floor/subsoil. The outer limit of the
continental shelf is the limit where the coastal state’s national jurisdiction in seabed ends.

International seabed area may be defined as the seabed and ocean floor of the sea and
subsoil thereof beyond the continental shelf of coastal state and extending up to the
continental shelf of the coastal states.

An International Seabed Authority was established under Article 153 of The United
Nations Convention on the Law of the Sea, 1982 to carry and control the activities in the
seedbed area on behalf of mankind as a whole. The authority shall have overall responsibility
for the operation of the system as per the agreement that has been reached under the
convention authority, will comprise of the following organs. They are:

1) Assembly; 2) Council; 3) Secretariat; and 4) Enterprise.

SN. 14. United Nations Conference on Trade and Development (UNCTAD):

The government should strive to meet the following objectives through GATT and
other International Organisations. The purpose of UNCTAD is to promote the following:

1) To make international trade and environment policies in support of sustainable

development.

2) To clarify the role of GATT and other International Organisations in dealing with trade
and environment related issues.
3) To encourage International productivity and competitiveness.

The Objectives: 1) Trade in primary commodities.

2) Trade in manufactured goods.

3) Development financing.

4) Technology transfer; and

5) Economic cooperation among developing countries.

SN. 15. International Monetary Fund (IMF):

IMF was established to promote economic and financial cooperation among its
members in order to facilitate the expansion and balanced growth of world trade. It started
functioning from 01-03-1947.

Objectives of the Fund:

1) To promote international monetary cooperation through a permanent institution.

2) To facilitate the expansion and balanced growth of International Trade.

3) To promote exchange stability.

4) To assist in establishment of multilateral system of payments in respect of current

transactions between the members.

5) To lend confidence to members by making the fund resources available to them.

Organs of IMF:

a) Board of Governors.
b) Executive Directors.
c) Managing Directors.

SN. 16. International Bank for Reconstruction and Development – (IBRD):

It is popularly known as “world bank.” It was established in December 1945, as a

twin organisation along with the IMF. The main object of World Bank is to help the poor
countries.

Aims and Objectives:

1) Facilitate the investment of capital for productive purpose.

2) Promote private foreign investment.
 3) Arrange loans.
4) To conduct its operations with due regard to the effect of international investment on
business conditions in the territory of members.

IBRD consists of the following organs:

1) Board of Governors.
2) Executive Directors.
3) President.

World Bank is under the influence of USA, which determines the bank’s policy and
decisions.

SN. 17. PACTA SUNT SERVANDA:

It means that an international agreement/treaty should be honoured and respected.

It is a Roman Doctrine. implementation of treaty between States requires Good Faith

and not legal duty.

According to the Article 21 of Vienna Convention on the Law of Treaties, 1969, it

says every treaty in force is binding upon the parties to it and must be performed by them in
good faith.

The permanent court of International Justice has consistently held that the provisions
of municipal law cannot prevail over those of treaty. According to Kelsen, International Law
is a law because pacta sunt servanda is a grundnorm.

SN. 18. Double VETO: VETO privilege:

Security Council cannot take important decisions unless and until all five members
consent to it. If matter is procedural, a decision upon it can be taken by any 9 members of
Security Council. When a question arises that a particular matter is procedural/important,
double VETO may be used.

Double VETO means the permanent members (ABCFR) in Security Council can use
their VETO two times. The president of Security Council has to decide whether a matter is
important/procedural. However, his decision can be challenged. If any member of Security
Council challenges, the decision of the president becomes important. This is first VETO
through which it can make the procedural matter as important. Once a matter is declared as
important decision, it cannot be VETO’ed by any permanent member of the Security Council.
This is second time VETO. Thus, a permanent member can use VETO power two times and
this is known as double VETO. Russia used double VETO on the question of Greece and
Spain.
 The power of double VETO is a dangerous weapon in the hands of permanent
members. They can make and unmake things.

SN. 19. Statelessness:

A person having no nationality of any of States is called as Stateless Person.

Sometimes, a person does not possess nationality of any State, and such a person cannot
exercise rights conferred upon him by International Law. The persons who have lost their
original nationality without having acquired the nationality of another State are destitute of
nationality.

Case Law: STOECK Versus THE PUBLIC TRUSTEE (1921) (Material)

SN. 20. Territorial Waters:

India includes territorial waters of India extending into sea up to 12 nautical miles
from sea base. Territorial waters is the belt of sea which is adjacent to the coastal state over
which coastal state exercises the sovereignty. Coastal state exercises the sovereignty not only
over the territorial waters, but also over air space, over the territorial sea as well as to its bed
and subsoil.

SN. 21. Double Nationality:

Double Nationality is known as dual nationality. It means having nationalities of more

than one State at a time. It may be acquired by birth. Generally, it occurs in children, one
national born in another nation as well as in case of a married woman.

Example: X and Y are husband and wife and the Indian citizens. While they were
staying at United States, Y gave birth to Z. In such a case, Z gets two nationalities of both
United States by birth and India through parents.

SN. 22. REBUS SIC STANTIBUS: (MQ. 7).

SN. 23. JUS COGENS: (MQ. 7).

SN. 24. International Court of Justice (ICJ):

 International Court of Justice is also known as World Court. It is one of the judicial
organs of UNO. It is based on statute, which is an integral part of UN. All members of UN
are members of ICJ. ICJ consists of 15 members; term is of 9 years. They can be re-elected.
ICJ shall decide the dispute as per International Law. The decisions of ICJ shall bind only
disputed parties. Only States are parties to the ICJ and not individuals. ICJ receives the
jurisdiction only from the consent of the States.

ICJ Jurisdiction: a) Contentious Jurisdiction.

b) Advisory Jurisdiction.

SN. 25. Exclusive Economic Zones (EEZ):

These units are meant for to export their products. Several exemptions and
concessions have been given to these zones.

SEZ = Special Economic Zones.