The document outlines the syllabus for a course on international law. It covers topics such as the definition and nature of international law, subjects of international law including states and individuals, recognition, law of treaties, diplomatic relations, law of the sea, air space, settlement of disputes, and international institutions. The relationship between international law and domestic law is also discussed, outlining the monist and dualist theories regarding whether they are one or two separate legal systems.

1. Syllabus
• 1-Introduction:
• Structure of the International Community Historical Development
and Specificities of Public International Law, Definition, Nature,
Legality of International Law, Theories as to basis of International
Law, Relation of International Law to Domestic, Practice of States,
UK USA and India, Sources of International Law , Codification.
• -Subjects of International Law:
• The Concept of Subject of Law and of Legal Personality, Various
Theories like Realistic Theory, Fictional Theory, Functional Theory,
State as Subject, Definition and Conditions for Statehood, rights and
duties of states, Territory, Modes of acquisition and loss of state
territory, Sovereignty.
•

2. • 2-Recognition:
• De Facto and De Jure, Theories of Recognition, Recognition of Belligerency
and Recognition of Insurgency, Collective Recognition, State Responsibility,
Original and Vicarious Responsibility, State Responsibility for various Acts,
Individual Acts, Mob Violence, Insurgency and for International
delinquencies, The Invocation of Responsibility and Diplomatic Protection,
State Succession, Theories of State Succession, Rights and Duties arising
out of State Succession.
•
• 3- Individual as a subject of International Law:
• The Basic modification, post charter in the position: Nationality,
extradition, Asylum, Territorial and Extra, territorial, UNO & Human
Rights, UDHR, Covenant on Civil Political Rights,1966, Covenant on
Economic Social and Cultural Rights, 1966.

3. • 4-Law of Treaties:
• Concept of Treaty, Kinds of Treaties, Binding Force of Treaties, Pacta Sunt
Servanda, Jus Cogens, Rebus Suc Stantibus, Parties of a Treaty, Formation of a
Treaty, Reservation, Invalidity and Termination of Treaties.
•
• Diplomatic Relations:
• Meaning of Diplomacy, Law on Diplomatic Relations, Classification of Diplomatic
Agents, Functions, Privileges and Immunities of Diplomatic Agents, and Duties.
•
• 5--Law of the Sea: Historical Background, Maritime Belt, Territorial Sea, The
Contiguous Zone, Exclusive Economic Zone, Continental shelf, The High Seas,
International Sea Bed Area, Common Heritage of Mankind , Law of the Sea
Conventions (United Nations Convention on the Law of the Seas).

4. • 6-Air Space and International Law:
• Aircraft Hijacking, Important Conventions relating to Airspace , Paris, Havana, Warsaw and Chicago
Conventions , Five Freedoms of Air , Legal Regime of Outer space , Important Conventions such as
Outer space Treaty.
•
• Settlement of International Dispute:
• Legal and Political Disputes, Pacific Means of Settlement, Arbitration , Negotiation, Mediation,
Good Offices, Conciliation, Settlement under UNO, Compulsive Means, Retortion, Reprisals,
Embargo, Pacific Blockade, Intervention.
•
• International Institutions:
• Legal Personality, League of Nations, United Nations , Origin and Purposes, Agencies of United
Nations, Specialized Agencies of United Nations, ILO, WHO, UNESCO,
•

5. • Suggested Readings:
• 1. Shaw Malcolm Nathan, International Law, Cambridge University Press, 2003.
• 2. Kapoor S K, International Law and Human Rights, Central Law Agency,
Allahabad,
• 14thEdn.-2002.
• 3. Ian Brownlie, Principles of Public International Law, Oxford University Press,
2008
• 4. Joseph Gabriel Starke, Ivan Anthony Shearer, Starke's, International Law ,
Butterworths,
• 1994.
• 5. Lassa Oppenheim, Robert Jennings and Arthur Watts, Oppenheim's International
Law,
• Oxford University Press, USA, 2008
• 6. Agarwal H.O., International Law & Human Rights, Central Law Publications, 2000
• 7. Ian Brownlie, Basic Documents in International Law, Oxford University Press,
2008

6. • Definition and concept of International Law
• Every society, irrespective of its population, makes a
legal framework (law) under which it functions and
develops. It is permissive in nature as it allows
individuals to form legal relations with rights and
duties and restrictive in nature as it punishes the
wrong-doers. These laws are referred to as Municipal
laws. The world today requires a framework through
which interstate relations can be developed.
International Laws fill the gap for this.
•

7. • According to Prof. L. Oppenheim, “Law of Nations or International Law is the name
for the body of customary and conventional rules which are considered legally
binding by the civilized states in their intercourse with each other.”
• Criticisms: •
• With regards to the subjects, only states have been regarded as subjects of
international law. But as we know that today, States are not the only subjects of
international law. International Organisations, MNCs and to a limited extent,
individuals are also subjects of international law today.
• • As regards to sources, the definition says that only customs and treaties are
considered to be sources of international law. But if we refer to Article 38 of the
Statute of ICJ, we will find general principles recognised by civilised nations is also
an important source. Besides there are subsidiary sources, which have been
ignored in this definition.
• The expression ‘body of rules’ denotes that international law is static. However, it
is extremely dynamic in nature.
• .

8. • Oppenheim’s Revised Definition in 1992:
International Law is the body of rules which
are legally binding on States in their
intercourse with each other. These rules are
primarily those which govern the relations of
States, but States are not the only subjects of
International Law. International Organisations
and to so some extent, individuals maybe the
subjects of rights conferred and duties
imposed upon International Law.

9. • As per Torsten Gihl, “The term International Law means the body of rules
of law, which apply within the International Community or society of
States.”
• As per J.L. Brierly, “The Law 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 relations with one another.”
• Gray said, “International law or the Law of Nations is the name of a body
of rules which according to their usual definitions regulate the conduct of
states in their intercourse with each other.”
• In Queen v. Keyn (1876), Lord Coleridge, C.J., defined International law as
“The law of nations is that collection of usages which civilized States have
agreed to observe in their dealings with one another.”
• Schwarzenberger: International law is the body of legal rules which apply
between sovereign States and such other entities as have been granted
international personality.

10. Nature of international law
• Is International Law true Law?
• One of the most controversial issues that has long been debated
and on which the opinions of the jurists are sharply divided
concerns the status of international law. The debatable question is:
Is international law really law? One view is that international law is
not a true law. It is a code of rules of conduct of moral force only.
Another view is that international law is a true law, and it is to be
regarded as law in the same way as that of ordinary laws of a State
which are binding upon the individuals. The controversy whether
international law is a law or not revolves on the divergent
definitions of the word law' given by the jurists. Hobbes, Austin
,Punderof was of opinion that the law is command of sovereign.

11. • Austin's view
• According to Austin, law is a command of the sovereign attended by
sanction in case of violation of the command. In other words, law should
be limited to rules of conduct enacted by a determinate legislative
authority and enforced by physical sanction. The superior, according to
him, is the real sovereign.
• Austin said that international law cannot be called law proper in the true
sense, because it has neither sovereign legislative authority to enact law
nor there is an adequate sanction behind it. Moreover, there is no
enforcement agency which can enforce it as a body of rules
• The rules commonly called international law are in fact the rules
of positive morality; the rules are analogous to the rules binding a club or
society.

12. • These jurist to support their view put forward
following arguments
• In international law there is no determinate
superior political authority
• it lacks effective legislative machinary
• International law lacks sanctions
• There is no executive power in international law
to enforce the decision of ICJ.
•

13. • Criticism of Austin's view
• According to Oppenheim, law is a body of rules for general conduct within a community which by
common consent of this community shall be enforced by external power.
• According to Sir Frederic Pollock:
• the only essential conditions for the existence of law are the existence of a political community and
the recognition by its members of settled rules binding upon them in that capacity, international
law seem on the whole to satisfy these conditions
• According to Brierly:
• the best evidence for the existence of international law is that every State recognizes that it does
exist and that it is itself under obligation to observe it.
• According to Starke, international law is really law.
He has put forward four main arguments:
• firstly, in many primitive communities, a system of law existed without there being a formal
legislative authority;
• secondly, international legislation in the form of law-making treaties and conventions has come into
existence today;
• thirdly, the authoritative agencies responsible for the maintenance of international intercourse do
not regard international law as merely a moral code;
• lastly, the United Nations is based on the true legality of international law.
•

14. • The arguments of the jurists who regard international law as really law, may be
summed up as follows:
• The term law cannot be limited to rules of conduct enacted by a sovereign
authority. Customary rules of law do exist viz. common law of England. The rules
laid down by treaties are binding although they do not emanate from a sovereign
political authority. The procedure for formulating international rules is well settled
by means of treaties, etc.
• When international questions arise, States do not rely upon moral arguments but
rely upon treaties, precedents and opinions of specialists. Thus, States do not deny
the existence of international law. In some States (e.g. USA and UK), international
law is treated as part of their own law (Paquete v. Habanna (1900) 175 US 677), As
aptly remarked by Prof. Hart, international law is law because States regard it as
law. Nothing need be further proved.

15. • International conferences and conventions also treat international
law as law in its true sense. The United Nations is based on the true
legality of international law. As per statute of the International
Court of Justice, the Court to decide disputes as are submitted to it
in accordance with international law. The Court's decisions are
binding upon the parties to a dispute, and under certain conditions
its decisions can be enforced. Besides this there are a variety of
International Tribunals such as International Tribunal for the Law of
the Sea.
• So far as sanction in law is concerned, international law does not
completely lack it.
• International law is not very frequently violated

16. • Basis of International Law
• The roots of international law go deep into history and
evidence of treaties, immunities of ambassadors, usages of
war, etc. can be found in ancient Egypt, India, the Greek
and Roman empires. The present day international law
owes its origin to the great jurist Grotius whose work De
jure Belli ac Paces (1625) lent legal basis to many areas of
international relations. His main idea is that there are
certain eternal, unchangeable and independent rules of law
which have roots in human reason. This law of reason is
called by him as Natural Law.
In the Grotian theory, there are three basis of
international law: Laws of reason, Customs, and Treaties

17. • Naturalist theory (Pufendrof): There exists a system of law which emanates from God or reason or
morals. Law of nations is only a part of law of nature. Hart explains that a minimum content of law
flowing from the immutable nature of man is that which is necessary for survival of mankind.
International peace and security being necessary for survival of human kind, all laws relating to it
are thus parts of law of nature. The theory is criticised on the ground that it is too vague.
• Positivist theory (Bynkershook): Only those principles may be deemed as law which have been
adopted with the consent of the States. Law is that which exists in fact. It is that law which is
enacted or followed by States (i.e. emanate from their own free will) and is hence binding upon
States. Customs and treaties come into existence from express or tacit consent of States. The
theory is criticised as all rules of international law are not derived from customs and treaties.
Further, a treaty may be binding on third States as well, and, States in some cases are bound by
general international law even against their will.
• Eclectic theory: The views taken by the naturalists and positivists are extreme views. A theory
giving equal importance to both the views appears to be correct. As to the true basis of
international law, contemporary sociological theories tend to support Naturalism because they
argue that international law is based on social interdependence and aims at bringing about
international social justice. Thus, natural law underlies even at the positive law (customs and
treaties) which is only an expression of this social interdependence.

18. • Some other theories regarding the basis so international law
• Theory of consent- here consent of the states is the basis of international law.
States observes rules of international law because they have given their consent
for it.
• Auto-limitation theory- According to this theory, international law is binding upon
the states because they have restricted their powers through the process of
autolimitation and have agreed to abide by international law.
• Pacta sunt servanda- Anzilotti – the binding force of international law is based on
the supreme fundamental norm or principle , known as pacta sunt servanda.
• It means that the agreements entered into by the states will be respected and
followed by them in good faith.
• Theory of fundamental right- This theory is based on naturlistic view point .
According to this view , prior to existence of state ,Man used to live in natural state
and even in that state he possesed some fundamental right ,such as independence
,equality, right to self preservation. Like man ,state also possessed these
fundamental rights because so far there is ,no world institution over and above the
states.

19. Relation of International Law to
Domestic law
• The views of the jurist on the question of relationship of international law and municipal law are
divergent which have led to the emergence of different theories .
• Monistic theory ( KELSON, WRIGHT, WESTLAKE ETC.)
• According to Monistic theory,
• municipal law as well as international law are parts of one universal legal system serving the needs
of the human community in one way or the other.
• Monism maintains that all the laws are made for individuals only. While municipal law is binding on
them directly, international law is binding on them through States. Since both the laws are meant to
solve the problems of human beings in different areas; they both are related to each other.
According to them, subjects of both the systems of law are ultimately individuals.
• According to this theory, international law and municipal law should be considered as
manifestations of a single concept of law. Because there is no difference between these
• Monistic theory is subjected to many criticisms
• It is very difficult to disapprove the view of kelsen that man lies at the root of all laws. But in actual
practice, States do not follow this theory. They contend that Municipal law and international law
are two separate systems of law. Further, each state is sovereign and as such is bot bound by
international law. States follow international laws simply they give their consent to be bound and
on account of other reasons.

20. • Dualistic theory ( Triepel ,Anzillote)
• According to dualistic theory,
• International law and municipal laws of the several States are two
distinct, separate and self-contained legal systems. Being separate
systems, International Law would not as such form part of the
internal law of a state.
• Dualistic view was developed by a prominent German scholar
Triepel in 1899. For him, International Law and domestic or
municipal law existed on separate planes, the former governing
international relations, the latter relations between individuals and
between the individual and the state.
• The theory was later on followed by Italian jurist Anzilotti. Starke
says that the theory represents two entirely distinct legal systems
International Law having an instrinsically different character from
that of State Law.

21. • The above authors are of the view that the two systems of law differ from each
other on the following grounds:-
• (a) Regarding origin – the origin of the two is also different in as much as source of
municipal law is the will of state, whereas source of international is the common
will of the states
• (b) Regarding Subjects – Municipal law regulates the relations between the
individual and corporate entities, International Law regulates primarily the
relations between States.
• (c) Regarding Principles – Municipal laws in a state are obeyed because they are
the principles of State Legislatures, International Law is obeyed because of
principle of pacta sunt servanda(It means that the agreements entered into by
the states will be respected and followed by them in good faith)
• . Thus International law is followed because States are morally bound to observe
them.
• (d) Regarding Dynamism of the Subject Matter – Subject Matter of the two
systems are also different. While the subject matter of international law has always
remained dynamic, the subject matter of the municipal law is limited.

22. • Dualist theory is subjected to many criticisms
• Firstly, the view that international law and municipal law
differ from each other implies that international law cannot
be a part of municipal law. It’s not correct because there
are certain fundamental principles of international law
which are binding upon a state, even against its own will.
• Secondly, it is not correct to say that international law
regulates the relations of states only at present it regulates
certain activities of individuals as well.
• Thirdly, no doubt, pacta sunt servanda is an important
principle of international law, but it cannot be said that it is
the only principle on which international law rests.

23. • Transformation or Specific Adoption Theory: It is based on the
dualist concept. This theory says that, no rules of international law,
by its own force, can claim to be applied by municipal courts, unless
they undergo the process of transformation and be specifically
adopted by the municipal courts and systems. The rules of
international law are part of national law only if specifically-
adopted.
• In short international can be applied in field of municipal law only
when Municipal law either permits it or adopt it specifically.
• Criticism – As there are many principles of international law
• ( e.g.customary rule) which are applied in the field of municipal law
without specific adoption. Further several law making treaty
become applicable to the state even without undergoing the
process of transformation.

24. • Delegation Theory: This theory laid down that the “Constitutional
rules of international law permit each state to decide or determine
as to how interntional treaties will become applicable in the field
of state law. Thus ,in fact there is no transformation nor there is
specific adoption in every case. The rules of international law
applied in the field of state law in accordance with the procedure
and system prevailing in each state in accordance with its
constitution.
• Criticism- One may ask where are and what are the constitutional
rules of international law? When and how these rules have
delegated power to state constitutions?
• This theory is far from true. In fact each state is equal and sovereign
and does not recognise any authority over and above it.

25. State practices
• Great Britain –
• Customary international law- British courts treat customary rule of international
law as a part of their own land,subject to the condition that they are not
inconsistent with the British statues, and if the highest court once determine the
scope of of a customary rule ,then all the courts in Britain court are bound by it .
This principle has been affirmed in West Rand Central Gold Mining Company,
Limited v. The King, 2 K.B. 391 [1905]
in case of inconsistency between clear or unambiguous rule of municipal law and
international law – municipal law will prevail
In case the municipal law is ambiguous ,the english court adopt the rule of
harmonious construction and avoid conflict between statute law with
international law.
Certain exception under customary rule –
The act of state do not come within the purview of British courts, irrespective of the
violation of international law.
In some matters the British courts are bound to obey the prerogative powers of
crown.

26. Treaties – In regards to treaties ,the British practice is based on constitutional
principles governing the relationship between Executive or Crown and
Parliament. In regards to treaties , the matters relating to negotiations
,signature ,etc. are within the prerogative powers of the Crown. In britain
it is necessary that some type of treaties should receive the consent of
parliament
All treaties do not automatically come into force i.e. All the treaties are not
self operating or executing.
Treaties which affects private rights ,involve session of British territory
,impose additional financial obligation or modify common law or statute
of england do not automatically become law and required to be
incorporated by parliament.
Treaties which are not of primary importance do not require legislative
action
In case of a conflict between a law enacted by parliament and a treaty
,former will prevail it is clear or unambiguous.

27. • Solomon v commissioners of customs and excise
(1967)2 Q.B. 116
• lord justice diplock- observed that in English law the
treaties are not self operating or executing. Once the
government has legislated , the court must in the first
instance construe the legislation. If the terms of
legislation are clear and unambiguous ,they must be
given effect to whether or not they carry out U.K.s
treaty obligations. But if the terms of the legislation are
not clear and reasonably capable of more than one
meaning ,the treaty becomes relevant prima facie
presumption that parliament does not intend to act in
breach of international law.

28. American practice
• customary international law
• The United States As far as the American position on the
relationship between municipal law and customary international
law is concerned, it appears to be very similar to British practice. In
America also customary international law are treated as a part of
American law. Justice gray stated in the Paquete Habana case that
international law is part of our law ,and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for
their determination.
• The American courts also - interpret the statute of the congress in
such a way that may not go against international law.

29. • Treaties
• American practice is different from British practice. In America everything
depends upon the provision of the constitution.
• Article 6- All the treaties made by united state shall be the supreme law of
the land
• United states v Pink – the supreme court stated that a treaty is law of the
land under the supremacy clause ( art.6 of constitution)
• International treaties = state law in America
• United state V P.L.O. – the U.S. government ordered the closure of the
observer mission in P.L.O. and prohibited its activities within united state
after it found the P.L.O. to be terrorist organization in view of the Anti
terrorism act enacted in 1987
• the order was against the UN headquarter agreement 1947 . The ICJ in its
advisory opinion ruled against the U.S. attempt to shut down P.L.O.
Misssion unilaterally. The Federal court of America also held so.

30. • It may be noted that in America the practice is
that if there is a conflict in between international
treaty and state law ,which ever is later in date
shall prevail.
• In U.S. the treaties have been divide in two
categories
• 1- self executing treaty – become applicable
without any Act or consent of the congress.
• 2- Non self excuting treaty- which can become
applicable only after the consent of the congress
or through its adoption by specific statute.

31. Indian practice
• customary international law
• The courts in India follow British practice.
• In Annakummaru Pillai v Muthupayal ILR 1907 – held that international
customary rules are ipso facto part of indian law and do not require
incorporation.
• However in A.D.M. Jabalpur V Shukla (AIR 1976) Majority held that
• international customary rules were merely a ethical principles and were
not applicable ipso facto.
• the judgment was criticised under article 372 of our constitution which
provides that all the law in force in the territory of India immediately
before the commencement of this Constitution shall continue in force
therein until altered or repealed or amended by a competent Legislature
or other competent authority. The words law in force – includes British
common law.
• Dissenting opinion was given by justice Khanna.
•

32. • In Gramophone co of India ltd. V BB pandey (AIR 1984) –
• Justice chinappa reddy observed that if in respect of any principle of international
law , the parliament says no the national court can not say yes . National court
shall approve international law only when it does not conflict with national law.
National court being organ of the state and not organ of international law must
per force apply natioal law if international law conflict with it.
• Treaty
• ARTICLE 51. Promotion of international peace and security:
• The State shall endeavour to —
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and
(d) encourage settlement of international disputes by arbitration
• Article 73 broadly stated, that the executive power of the Union shall extend to
the matters with respect to which Parliament has power to make laws. Thus
,treaty making is an executive act.

33. • Art 246 of Indian constitution
• Parliament has exclusive power to make laws with respect to any of
the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the “Union List”).
• Entry 14 list 1(Union list)
• 14. Entering into treaties and agreements with foreign countries
and implementing of treaties, agreements and conventions with
foreign countries
• i.e. implementing of treaties, agreements and conventions with
foreign countries rest with union parliament.
• Article 253 in The Constitution Of India
• Parliament has power to make any law for the whole or any part of
the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision
made at any international conference

34. • The air Act ( prevention and control of pollution ) Act of 1981 was enacted
by the parliament by invoking the central government power under the
Art 253.
• As to the position of treaties in Indian law ,two attitude prevail.
• One view is that treties shall not be binding upon courts unless they are
implemented by legilation.
• In Shiv Kumar Sharma & others v. Union of India , AIR (1958) the court
stated that “In India, treaties do not have the force of law and
consequently obligations arising there from will not be enforceable in
municipal courts unless backed by legislation”.
• Jolly George Varghese and anr. V. The Bank OF Cochin AIR 1980 SC 470.-
Justice krishna iyyer asserted that the positive commitment of the state
parties ignities legislative action at home but does not automatically make
the covenant an enforceable part of the corpus juris of India.

35. • Civil right vigilance committee, Banglore v UOI ( AIR 1983)
• The material facts, leading up to this appeal, are briefly these : Geof Boycott and
Geof Cook are two cricket players who are citizens of the United Kingdom.
Marylbourne Cricket Club (M.C.C.) included them in its team scheduled to visit
India between November 1981 and February 1982 to play six test matches and
other matches at different places in India. As to whether the Government of India
should allow that English Cricket Team which included Boycott and Cook to visit
India and to play cricket matches, despite their links with South Africa which is
practising policy of aparthied held became the subject matter of controversy both
in India and outside. However, the Government of India allowed that English
cricket team including those two players to come to the country and to play
matches as scheduled.
• the petitioner contented that the government action is breach of its obligation
under Gleneagles Accord and obligations attached to its membership of U.N..
• It was held that as such obligations are not made part of the law of this country by
means of appropriate legislation , they can not be enforced and the court can not
compel Parliament to make such law.

36. • The other view
• In India all treaties do not require implementation by legislation.
• In berubari case no 1 (AIR 1960) - it was held that and agreement involving
cession of part of Indian territory to Pakistan , require amendment to the
constitution and hence legislative enactment is necessary.
• Berubari case no 2. ( AIR 1966) - Where in the territory de jure belonged to
pakistan it was held that giving it back did not entail cessation of territory. Hence
transfer could be effected by executive action and no legislative action necessary.
• UOI v sukumar sen gupta (AIR 1990) also known as teen bigha case - it was held
that lease in perpetuity of teen Bigha in favour of Bangladesh did not amount to
cessation of territory and hence legislation not required.
• Supreme court of india made distinciton between
• self executing treaty ,Non self excuting treaty in Maganbhai Ishwarlal Patel v UOI (
AIR 1969)

37. Sources of International law
• INTERNATIONAL COURT
OF JUSTICE
• Article 38 1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
• a-international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
•
b-international custom, as evidence of a general practice accepted as law;
•
c-the general principles of law recognized by civilized nations;
•
d- subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
• 2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.

38. • A) International Conventions or Treaties:
• It is the most important source of international law because the reason that states have found in
this source a deliberate method by which to create binding international law
• O . Hudson- The convention is used in a general and inclusive sense and it apply to any treaty
,convention ,protocol ,agreement,regardless of its title or its forms
•
It is the first and Important Source of International law. There is no Legislative
organ in the field of International Law, comparable to legislatures within the State, the enactments
of which could bind all the States. The Contracting Parties may, however, establish an international
organization by means of the treaty with authority to bind them by its resolutions or may even lay
down rules for their mutual conduct. In this sense, Multilateral treaties are a feeble approach to
International Character.
• Art 2 of Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties,
gives the definition,
• “A treaty is an agreement whereby two or more states establish or seek to establish a relationship
between them governed by international law. However this definition is narrow and does not seem
to be correct .
• Scwarzenberger - Treaties are agreements between subjects of international law creating binding
obligation in international law.

39. • Treaties can be Divided Into
• 1) Law Making Treaties and
• 2) Treaty Contracts
1) Law making Treaty-
Law making treaties are those treaties which are entered into by a large number of States. These
are the direct source of International Law.The reason for development of law making treaties are
customs which were proving to be inadequate and change circumstances.
• Law making treaties may be divided into
• i) treaty giving the rule of Universal International Law.
• ii) Treaty giving general principles.
(i) Treaty giving the rule of Universal International Law - These treaties are signed by a majority of
the State. For Example United Nation Charter.
• (ii) Treaty giving general principles - These treaties are entered into and signed by a large number
of countries giving thereby general principles of International Like. Geneva Convention on Law of
sea and Vienna Convention on Diplomatic Relations, 1961 Hague convention 1899 and 1907 are
examples of such a treaty.

40. • 2) Treaty Contracts:
These are the treaties which are entered into by
two or more States. The provisions of such treaties are binding only
on the parties to the treaty. Such type of treaties are also the
source of International Law because they help in the development
of customary rules of International Law.
• This may happen when a similar rule is incorporated in a number of
treaty contracts.Beside this a treaty enter into by a few states is
subsequently accepted by many other states as they enter into
similar treaties.
• A treaty may be of considerable evidentiary value as to the
existence of a rule which has crystallised into law by an
independent process of developmnet.

41. • B) Customs :
Custom is the older and original Source of
International Law. It is as such Second Important source of
International Law. International Law Custom may mean a
kind of qualified practice, by the existence of a
corresponding legal obligation to act according to this
practice, hence by the existence of the corresponding rule
of International law. The customs are evolved through the
practices of and usages of the nation and their recognition
by the community of nations. Customary rules are those
rules which are practiced by most of the States by way of
habit for a pretty long time.

42. • Formation of custom or Development
• 1-Custom and Usage
• Usage means those actions which are often repeated by the states.
It is an international habit which has not yet received the force of
law.
• Usage represents the twilight zone of custom, Custom begins
where usages ends- Stark
• Custom – emerges when a clear and continuous habit of doing
certain action grows up under the aegis of the conviction that these
actions are right.
• Custom is such a usage as has the force of law.
• Westlake – The line of conduct which the society has consented to
regrad as obligatory.

43. • opino juris et necessitatis
• Opinio juris essentially means that states must act in compliance
with the norm not merely out of convenience, habit, coincidence,
or political expediency, but rather out of a sense of legal obligation
• In the North Sea Continental Shelf Cases, the Court examined cases
where States had delimited their boundaries using the equidistance
method, after the Convention came into force. The court
concluded, even if there were some State practice in favour of the
equidistance principle the court could not deduct the necessary
opinio juris. The North Sea Continental Shelf Cases confirmed that
both State practice (the objective element) and opinio juris (the
subjective element i.e. legal obligation) are essential pre-requisites
for the formation of a customary law rule.

44. • 2-Generation of customary rules by treaty
• North Sea Continental Shelf Cases

47. • 2-Generation of customary rules by treaty
• North Sea Continental Shelf Cases(1969) ICJ
• The dispute, which was submitted to the Court on 20 February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany
and Denmark on the one hand, and between the Federal Republic of Germany and
the Netherlands on the other. The Parties asked the Court to state the principles
and rules of international law applicable, and undertook thereafter to carry out
the delimitations on that basis.
• The world court observed that
• A treaty provision can only generate customary international law ,but only when
the provision concerned is of fundamental norm creating character such as could
be regarded as forming the basis of a general rule of law
• Art 6 is of convention which lays down equidistance principle was not intended to
be of a norm creating character.

48. • The Court rejected the contention of Denmark and the Netherlands to the
effect that the delimitations in question had to be carried out in
accordance with the principle of equidistance as defined in Article 6 of the
1958 Geneva Convention on the Continental Shelf, holding:
• - that the Federal Republic, which had not ratified the Convention, was
not legally bound by the provisions of Article 6;
• - that the equidistance principle was not a necessary consequence of the
general concept of continental shelf rights, and was not a rule of
customary international law.
• The Court also rejected the contentions of the Federal Republic in so far as
these sought acceptance of the principle of an apportionment of the
continental shelf into just and equitable shares. It held that each Party had
an original right to those areas of the continental shelf which constituted
the natural prolongation of its land territory into and under the sea. It was
not a question of apportioning or sharing out those areas, but of
delimiting them.

49. Essential Ingredients of a Custom
• Long duration – in North Sea Continental Shelf Case the world court held that the passage of only
a short period is not necessarily a bar to the formation of a new customary international law.
• Uniformity and consistency– Asylum case ICJ 1950
• Columbia gave asylum to a rebel Peruvian Political leader Hays de la Torre in its Embassy in Peru.
the Colombian Ambassador requested Peru government to allow rebel leader , to leave the
country. Government of Peru refused. Colombia based his claim, according to the Convention in
force Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the
Montevideo Convention of 1933 on Political Asylum for the of purposes of the asylum. The court
observed that Colombia had not proved the existence, either regionally or locally, of a constant and
uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon
the territorial State. It therefore followed that Colombia, as the State granting asylum, was not
competent to qualify the nature of the offence by a unilateral and definitive decision binding on
Peru
• Generality of Practice- west rand gold mining company case- it was held that a valid international
custom should be proved by satisfactory evidence that the custom is of such nature that it has
received general consent of states and no civilized state shall oppose it.
• opino juris et necessitatis- North Sea Continental Shelf Case

50. Application of international custom is
very difficult
• North Sea Continental Shelf Case
• Asylum case
• Right to passage case ICJ (1960)
• S.S. lotus case (1927) PCIJ

52. • The Lotus case concerns a criminal trial which was the result of the 2
August 1926 collision between the S.S. Lotus, a French steamer, and the
S.S. Bozkourt, a Turkish steamer, in a region just north
of Mytilene(Greece). As a result of the accident, eight Turkish nationals
aboard the Bozkourt drowned when the vessel was torn apart by the Lotus
• The issue at stake was Turkey’s jurisdictionto try Monsieur Demons, the
French lieutenant on watch duty at the time of the collision. Since the
collision occurred on the high seas, France claimed that the state whose
flag the vessel flew had exclusive jurisdiction over the matter. France
proffered case law, through which it attempted to show at least state
practice in support of its position.
• After examination of the material before it (treaties ,state laws, judicial
decision ,etc,) the court held that no such customary rule was established
because opino juris could not be proved. The court explained that even if
the facts alleged by france were true,they would merely show that states
had often ,in practice ,abstained from instituting criminal proceeding and
not that they recognised themselves as being obliged to do so.

53. General principles of law recognized
by civilized nations
• general principles of law include substantive as well as procedural
principles. Some general principles of law' common to municipal legal
systems are:
– Res judicata (a thing or matter settled by judgment): A matter once judicially
decided is finally decided, and there is an absolute bar to a subsequent action
involving the same claims, demand or cause of action. This principle was taken
into account in the U.N. Administrative Tribunal Case., Chorzow factory
(indemnity ) case
– Prescription (a claim to a right founded upon enjoyment): Eastern Greenland
Case (PCIJ, 1933), Island of Palmas Case.
– Subrogation (substitution or stepping into shoes of another): Mavrommatis
Palestine Concessions Case (PCIJ, 1925).
•

54. – Estoppel (preclusion): A State party to international
obligation is bound by its previous acts or attitude when
they are in contradiction with its claims in the litigation
(Serbian and Brazilian Loan Case). The principle was also
applied in Temple of PreahVihar Case., Barcelona traction
case
– Equity (reasonableness, fairness): The ICJ has been
increasingly referring to equity in its judgments in recent
years viz. The Gulf of Maine Boundary Case, North Sea
Continental Shelf Cases.
– Other principles: The principle that every violation of an
engagement involves an obligation to make reparation (i.e.
repair a wrong), is recognized in Chorzow Factory Case.

55. Subsidiary and indirect sources of
international law
• . JUDICIAL DECISIONS AND JURISTIC
WORKS(MOST HIGHLY QUALIFIED PUBLICISTS)
• E.g. are Calvo Clause and Drago Docterine
• Modern sources of international law
• Resolution of the General Assembly
• UDHR 1948, Rio declaration (Earth summit
)1992 etc.

56. Codification
• 1) What is Codification?
By the term codification we ordinarily mean the process reducing the whole body of law into code in the
form of enacted law.
• It generally connotes a systematic arrangement of the rule of law which are already in existence.
• the codification of international law refers to the more precise formulation and systematization of rules of
international law on subjects that have already been extensively covered by State practice, precedent and
doctrine
• Codification secures, by means of general conventions, agreements among the states upon certain topics of
international law and acts as a check whereby the determination of particular law is not left to the caprices of
judges. It also tends to reconcile conflicting views and renders agreement possible among different States.
•
Codification of the international law has been employed 3 different senses
• (1) The harmonizing of Municipal Law of various countries by the preparation and enactment of uniform statutes.
(2) A systematic re-statement of existing customary international law, for example as retaining and declaring the
existing rules of international law.
(3) developing, amending and improving the law as it is re-stated
The committee on the progressive development of international law and its codification, set up by the United
Nations General Assembly resolved the controversy between the second and third meaning of codification. Article
15 of the statutes of the International Law Commission distinguishes between the progressive development of
international law and its codification.

57. • United Nations Charter and Codification
United Nations Charter, Article 30 of the Charter
gives ample scope for the codification of International law.
• it reads -
"the general assembly shall initiate studies and make
recommendations for the purpose of –
• (a) Promoting International co-operation in the political
field and encouraging the progressive development of
international law and its codification......."

58. Subjects of International Law
• Legal personality
• Subjects of international law can be described as those persons or
entities who possess international personality.
• In any legal system ,certain entities ,whether they may be individual
or companies ,will be regarded as possessing rights and duties
enforceable at law.
• Thus an individual may prosecute or be prosecuted for assault and a
company can sue or sued for the breach of contract.
• They are able to this because the law recognises them as legal
person possessing the capacity to have and to maintain certain
rights and being subject to perform specific duties.
• Function of the law is apportion such rights and duties to such
entities as it sees fit.

59. • Legal personality also includes the capacity to enforce one’s
own rights and to compel other subjects to perform their
duties under international law. For example, this means
that a subject of international law may be able to:
• bring claims before international and national courts and
tribunals to enforce their rights.
• have the ability or power to come into agreements that are
binding under international law (for example, treaties).
• enjoy immunity from the jurisdiction of foreign courts (for
example, diplomatic immunity).
• be subject to obligations under international law (for
example, obligations under international humanitarian
law).

60. • Throughout the 19th century, only states qualified as subjects of
international law, but this scenario completely changed after the
conclusion of the Second World War with more and more new
actors joining the international legal arena. Intergovernmental
organizations created by the states; non-governmental
organizations (NGOs) created by individuals; and even natural
persons like individuals emerged as new actors. A subject of
international law is a body or entity recognized or accepted as being
capable, or as in fact being capable, of possessing and exercising
international law rights and duties. The possession of international
legal personality means that an entity is a subject of international
law, and is capable of possessing international rights and duties,
and has the capacity to maintain its rights by bringing international
claims. The subjects of international law can be categorized into:
• States, International organizations, Individual

61. • States:- The moment an entity becomes a
state, it becomes an international legal
person and acquires international legal
personality. States are the original subjects of
international law, and the branch of
international law was originally established to
regulate relations between the states.

62. • International organizations:- an international organization is also
an important subject of international law, it is defined as an
organization established by a treaty or other instrument governed
by international law and possessing its own legal personality. The
United Nations and World Trade Organizations are examples of
international organizations.
• It can be said that states have original personality and non-state
actors have derived personality. This is attributed to the fact that
states are considered to be international personalities the moment
they are identified as a sovereign state,
• on the other hand, non-state actors like international organizations
derived their personality through other means. For example, the
rights and duties and its extent maybe described in their
constitutions, charters, and treaties that establish such
organizations.

63. • Individual
• Starke – subject of international law as possess three main attributes
• 1- incumbent of right and duties
• 2- holder of procedural capacity for enforcing a claim before an international tribunal
• 3- possessor of interest for which provision is made by international law
• A) holder of rights – Lawless case ( European court of human right)- court held that an individual is
as much a subject of international law as a state is.
• B) Duties of individual
• crime against peace and crime- not to commit piracy
• war criminals are liable to punishment (not to involve in war crime )
• Punishing who guilty of genocide( not to involve in genocide)
• punishment for Aircraft hijacking etc.( not to involve in Aircraft hijacking)
• C) procedural capacity of individual
• Art 3 of the optional protocol to the international covenant on civil and political rights ,1976
provides individuals with the right to petition the human right committee in case of violation of any
of their civil and political right by the states.

64. • Realist theory
•
• If we see what the followers of this theory think then we come to know that
according to them the only subject of International law is the Nation States. They
believe that the Nation-states are the only entities for whose conduct the
International law comes into existence. The Nation States have separate legal
entities and have their own rights, duties and obligations which they can possess
under International law. So, according to the followers of the Realist theory,
Nation-states are the ultimate and only subjects of International law.
• Fictional theory
• According to the supporters of the fictional theory the only subjects of
international law are the individuals not the nation-states. The reason they gave
that the legal orders are for the conduct of human beings and for their wellness.
And there’s nothing much difference between Nation States and an individual
because Nation States are the aggregate of the individuals. And according to the
followers individuals are the sole subjects of International law.

65. • Functional theory
• In both the theories i.e. Realistic and Fictional adopted their
opinion without considering other subjects of International law. But
the functional theory tends to meet both the extremist theories.
According to this theory neither Nation States nor individuals are
the only subjects of International law. Even, not only the Nation
States and individuals are the subjects of International law but
other entities have been granted international personality and
status and considered as Subjects of International law.
• After analyzing all the three theories then one can say that
Functional theory is more accurate and best suited for the modern
area of International law and also found suitable according to the
world condition and trend. Declaring any one subject as the sole
subject of International law is never a solution and hence, the other
two theories lag behind than the Functional Theory.

66. statehood
• Montevideo Convention (1933)
• Article 1
• The state as a person of international law should
possess the following qualifications:
• a. permanent population;
• b. defined territory;
• c.government; and
• d.capacity to enter into relations with the other
states.

67. • Article 4
• States are juridically equal, enjoy the same rights, and have equal
capacity in their exercise. The rights of each one do not depend
upon the power which it possesses to assure its exercise, but upon
the simple fact of its existence as a person under international law.
• Article 5
• The fundamental rights of states are not susceptible of being
affected in any manner whatsoever.
• Article 6
• The recognition of a state merely signifies that the state which
recognizes it accepts the personality of the other with all the rights
and duties determined by international law. Recognition is
unconditional and irrevocable.

68. • Rights of states
• 1-Sovereignty and independence of state –Austro –German custom Union case, legality of threat
or use of Nuclear weapons
• independence of state- power exclusively to control its own domestic affairs, power to admit or
expell aliens ,privileges and immunities of diplomatic envoys in other state,exclusive jurisdiction
over crime committed within its territory.
• 2-Equality of states-
• 3-Terrtorial jurisdiction
• 4-Right to self defence and self preservation
• Duties of states
• Duty not to resort to war
• To fulfill treaty obligation in good faith
• The duty of non intervention
• Certain duties associated with independence of state –
• duty not to perform act of sovereignty on the territory of another state,
• duty not to allow in its territory preparations which are prejudicial to the security of another
state,
• duty not to intervene in the affairs of another state etc.

69. Territory
• State territory is that defined portion of the globe which is subject to the
sovereignty of a state.
• The state territory includes the land (all the dry land within the state boun
daries), the waters (both inland and territorial), and the air space over
• both the land and the waters (the troposphere, stratosphere, ionosphere,
and a considerable part of adjacent outer space).
• The mineral wealth located under both land and sea within this territory is
the property of the particular state as far down as is technically feasible.
• A state without territory is not possible , although the necessary territory
may be very small ,as the vetican city …..A wandering tribe ,although it has
a government and is otherwise organised ,is not a state until it has settled
down in a territory of its own.
• Article 2(4) of the United Nations Charter requires members to ‘refrain in
their international relations from the threat or use of force against the
territorial integrity or political independence of any State

70. Modes Of Acquisition Of State
Territory
• Occupation
• Occupation is the act of appropriation by a state which it intentionally acquires sovereignty over
such territory as it is at the time not under the sovereignty of another state.
• Jennings writes it is “the appropriation by a state of a territory, which is not at the time subject to
the sovereignty of any other state.
• Article 42 of The Hague Regulations of 1907 defines occupation as follows: “Territory is considered
occupied when it is actually placed under the authority of the hostile army
• Possession and Administration are the two essential factors required to constitute an effective
occupation.
• In the Eastern Greenland case, the International Court of Justice stated that claims to sovereignty
“based not upon some particular act or title such as a treaty of cession but merely upon continued
display of authority, involve two elements, each of which must be shown to exist: the intention and
will to act as sovereign, and some actual exercise or display of such authority.
• Prescription
• A prescription can be defined as ‘the acquisition of sovereignty over a territory through a
continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to
create under the influence of historical development the general conviction that the present
condition of things is in conformity with the international order
• Prescription (a claim to a right founded upon enjoyment): Eastern Greenland Case (PCIJ,
1933), Island of Palmas Case

71. • Accretion
• Accretion refers to the physical expansion of an existing territory
through the geographical process
• It is a customary rule of international law that enlargement of
territories by new formations, takes place ipso facto by accretion,
without the state concerned taking any special step for the purpose
of extending its sovereignty. Hence, accretion too is a direct mode
of acquisition of territory.
• New formations through accretion may be natural or artificial.
Artificial formations include man-made embankments,
breakwaters, dikes( on smaller rivers and tributaries, dikes have
been used primarily to divert flow and stabilize eroding banks).etc.
built along the river or coastline

72. • Cession
• Cession of the state territory is the transfer of sovereignty over state territory by
the owner state to another state. Its basis lies in the intention of the concerned
parties to transfer sovereignty over the territory in question, and it rests on the
principle that the right of transferring its territory is a fundamental attribute of the
sovereignty of a State – In re berubari union and Exchange of enclave cases,
• union of india vs sukumar sengupta AIR 1990
• Annexation – when a state conquers another state the conquering state after
conquest establishes its sovereignty over the conquered state
• Lease- A state may give its territory to another state under lease for a certain
period. For certain period some right of sovereignty are transferred to another
state through lease although the complete sovereignty over the said territory is
not transferred. E.g. Island of Malta to Britain.
• Pledge – sometimes a state become compelled to pledge a part of its territory in
return of some amount of money for which is in dire need . Example- in 1768
Republic of Geneo had pledged the island of Corsica to France
• Plebisite- Kashmir

73. Loss of territory
• These are cession, dereliction, operation of nature, subjugation,
prescription and Revolt
• Loss of territory by subjugation(annexation), cession, and prescription is
pretty straightforward and requires no further explanation.
• It‟s simply the corresponding loss of territory due to the gain of that
territory by another state
• operation of nature- by earthquake a coast of the sea or an island may
altogether disappear .
• Revolt – When a new state takes birth by revolt then it may said that
former state has lost it territory for e.g. - in 1579 spain lost Netherland
• dereliction- it means by renunciation of territory. When the owner state
completely abandons a territory with the intention of withdrawing from it
permanently and relinquishing sovereignty over it dereliction is effected.
• Granting of independence to a colony by the Imperialist state

74. sovereignty
The word sovereignty is derived from the french word Souverain
The word souverain is derived from latin word superanus which means an authority
having no other authority above itself.
defintions
• That characteristic of the state by virtue of which it cannot be legally bound except
by its own or limited by any power other than itself. -Jellineck
• (2) “Sovereignty is the sovereign political power vested in him whose acts are not
subject to any other and whose will cannot be over-ridden”. -Grotius
• (3) “Sovereignty is the supreme power of the State over citizens and subjects
unrestrained by law”. –Bodin
• Austin's concept of sovereignty has been discussed in his book ' Province of
Jurisprudence Determined
• Sovereignty,as conceived by Austin , has four characterstics ( d,e ,i,un ,illi)
• 1- sovereignty must be determinate (d)
• 2- sovereignty is essential (e)
• 3- sovereignty is indivisible (i)
• 4- sovereignty is unlimited and illimitable( un and illi)

75. • The international community is the community of
sovereign states at an international platform. For
any state to enjoy the rights, duties and
obligations of international law and to be a
member of the international community,
recognition of the entity as a state is very
important. Only after recognition of the entity as
a state, it becomes acknowledged by other states
who are a member of the International
Community. International law considers the act of
recognition as an independent act of the existing
statehood community.

76. • Recognition is
• the formal acknowledgement or acceptance of a new state as an
international personality by the existing States of the International
community
• According to Phillip Jessup recognition means that an existing state
acknowledge the political entity of another state by overt or covert act.
• Recognition is a statement by an international legal person as to the
status in international law of another real or alleged international legal
person or of the validity of a particular factual situation.
• Once recognition has occurred ,the new situation is deemed opposable to
the recognising state, that is the pertinent legal consequences will follow.
• As such recognition constitute participation in the international legal
process generally while also being important within the context of
bilateral relations and ,of course ,domestically.

77. theories of Recognition
• :
There are two theories of Recognition are as follows-
1) Constitutive Theory:
Recognition is a process whereby a State is constituted, hence it is called as a constitutive theory. Hegel is a
pioneer of this theory. Which is supported and propounded by Anzilotti, Holland and Oppenheim.
According to Anzilotti, since the rules of International law have grown up by the common consent of the
States, is a subject of international law comes into being with the conclusion of the first agreement as expressed
by the Treaty of recognition. Such a recognition is reciprocal and constitutive, creating rights and obligations which
did not exist before.
According to Holland, a State cannot be said to have attained maturity unless it is stamped with the seal of
recognition, which is indispensable to the full enjoyment of rights which it Connotes.
According to Oppenheim, a State is and becomes, an international person through recognition only and
exclusively.
• According to this theory, recognition gives the rights and duties to recognized States under the international law.
The recognition of Poland Czechoslovakia through the instrumentality of the Treaty and Versailles lends support to
the constitutive theory of recognition.

78. • Criticism of constitutive theory
• First- recognition is of political act of a state.if this theory is
accepted ,it would mean that the fate of new state would be
determined by other states. i.e. recognition is not a conclusive
proof for the existence of a state.
• Second- there is no legal duty on the part of the existing state to
recognize any community that has in fact acquired the
characterstics of statehood . State are not obliged to recognise the
other country.
• Third- a state exist prior to its recognition. Recognition has a
retrospective effect i.e. when a new state is recognized by other
states,the latter is regarded to have recognised all the acts of the
former from the date of its establishment.
• Fourth- a state do have some rights and obligations under
international law,even without recognition.

79. • Declaratory Theory: – The chief exponents of this theory are Hall, Wagner, Fisher
and Brierly.
• According to this theory, the statehood or the authority of new Government is not
dependent on the consent of the existing state but is based on some prior or
existing fact. According the followers of this theory, the recognition by the existing
states is merely a formal acknowledgement of the statehood and not the
condition. In fact the statehood is dependent on the some prior conditions
necessary for an entity to be called as a state.
• The act of recognition is merely declaratory or evidence of a existing fact that a
particular state or government possesses the essential attribute as required under
international law.
•
• Recognition is declaratory as well as constitutive act .Oppenheim said that
recognition declaratory of an existing fact but constitutive in its nature at least so
far as concerns relation with the recognised states.

80. Forms of recognition
• 1. Expressed Recognition
• When an existing state recognises a new state expressly through official
declaration or notification, it is considered to be the expressed form of
recognition. Express recognition can be made through any express or formal
means such as sending or publishing declaration or statement to the opposite
party. LITHUANIA ,Estonia ,and Latvia were expressely recognised by India .
• 2- Implied Recognition
• When the existing state recognises a newly formed state through any implied act,
then it is considered as an implied recognition. Implied recognition can be granted
through any implied means by which a current state treats the newly formed state
as an international person. The implied credit not granted through any official
notification or declaration. The recognition through implied means varies from
case to case.
• Unilateral acts- like exchange of consuls
• Collective acts- when an unrecognised state participate in multilateral treaty.

81. • 3-Conditional recognition
• The recognition of state with which certain conditions are attached in order to obtain its status as a
sovereign state is conditional recognition. The conditions attached varies from state to state such as
religious freedom, the rule of law, democracy, human rights etc. The recognition of any state is
already associated with the essential conditions to be fulfilled for the status of a sovereign state but
when addition condition is attached it is conditional recognition.
• in 1978 while recognising bulgaria and romania Germany imposed the the condition that the said
states shall not discriminate their citizen on the basis of religion.
• 4-PREMATURE RECOGNITION- some times recognition is granted to an entity even if it does not
possess attribute of statehood.
• It is to be noted that premature recognition given to a state amount to an unwarrnated and illegal
internvention in the affairs of the existing state.
• The recognition of Israel by the U.S. in 1948 is the such example.
• A clear example of premature recognition is that of the
• Georgian regions of South Ossetia and Abkhazia, which have established separate de
• facto governments with Russian support.

82. • In Collective Recognition,
• the relationship is between the state which is to
be recognized and all the states which are
recognizing it.. Collective Recognition is generally
done by multilateral treaty, convention,
conferences, and meetings. For example – when
a state is admitted to the united nation , it will
mean collective recognition by those state which
voted in favour of the admission of such a state.

83. • Legal Effects of recognition
• When a state acquires recognition, it gains certain rights,
obligations and immunities such as.
• It acquires the capacity to enter into diplomatic relations with other
states.
• It acquires the capacity to enter into treaties with other states.
• The state is able to enjoy the rights and privileges of international
statehood.
• The state can undergo state succession.
• With the recognition of state comes the right to sue and to be sued.
• The state can become a member of the United Nations
organisation.

84. • THE LEGAL EFFECTS OF RECOGNITION
• The English courts have adopted the attitude over many years that an entity
unrecognised by the
• Foreign Office would be treated before the courts as if it did not exist and
accordingly it would not be able to claim immunity before the courts .
• The leading case in English law on the issue of effects of recognition of an entity
within the domestic sphere is
• Luther v. Sagor 1921 3 KB 532
• This concerned the operations and produce of a timber factory in Russia owned
by the plaintiffs, which had been nationalised in 1919 by the Soviet government. In
1920 the defendant company purchased a quantity of wood from the USSR and
this was claimed in England by the plaintiffs as their property since it had come
from what had been their factory. It was argued by them that the 1919 Soviet
decree should be ignored before the English courts since the United Kingdom had
not recognised the Soviet government. The lower court agreed with this
contention and the matter then came to the Court of Appeal.

85. • In the meantime the UK recognised the Soviet government de facto
and the Foreign Office informed the Court of Appeal of this in
writing. The result was that the higher court was bound to take
note of the Soviet decree and accordingly the plaintiffs lost their
case, since a court must give effect to the legislation of a recognised
state or government.
• The Court also held that the fact that the Soviet government was
recognised de facto and not de jure did not affect the issue.
Another interesting point is that since the Foreign Office certificate
included a statement that the former Provisional Government of
Russia recognised by the UK had been dispersed during December
1917, the Court inferred the commencement of the Soviet
government from that date.

86. • The essence of the matter was that the Soviet
government was now accepted as the
sovereign government of the USSR as from
December 1917. And since recognition once
given is retroactive and relates back to the
date that the authority of the government was
accepted as being established.

87. De facto Recognition
• 1-De facto recognition is a provisional
and factual recognition.
• 2-De facto recognition is granted when
there is the fulfilment of the essential
conditions of statehood
• 3-De facto recognition is a primary step
towards grant of de jure recognition
• 4-De facto recognition can either be
conditional or non-conditional.
• 5-De facto recognition is revocable in
nature.
• 6-The states recognised under this
mode have only a few rights and
obligations against other states.
• 7-The state with de facto cannot
undergo state succession
De jure Recognition
• 1-De jure recognition is legal
recognition.
• 2-De jure recognition is granted when
the state fulfils all the essential
condition of states along with sufficient
control and permanency.
• 3-De jure recognition is the final step of
recognition
• 4-De jure recognition is a final and non-
conditional recognition
• 5-De jure recognition is non-revocable.
6-The state recognised under this mode
have the absolute right and obligations
against other states.
• 7-The state with de jure recognition can
under state succession.

88. • Obliteration of distinction between de jure and defacto recognition
• the relationship between a de facto government and a de jure government as far
as English courts were concerned, manifested itself again during the Spanish Civil
War.
• The case of the Arantzazu Mendi
• concerned a private steamship registered in Bilbao in the Basque province of
Spain. In June 1937, following the capture of that region by the forces of General
Franco, the opposing Republican government issued a decree requisitioning all
ships registered in Bilbao. Nine months later the Nationalist government of Franco
also passed a decree taking control over all Bilbao vessels. In the meantime, the
Arantzazu Mendi itself was in London when the Republican government issued a
writ to obtain possession of the ship. The owners opposed this while accepting the
Nationalists’ requisition order.
• It was an accepted rule of international law that a recognised state cannot be sued
or otherwise brought before the courts of another state. Accordingly, the
Nationalists argued that since their authority had been recognised de facto by the
UK government over the areas they actually controlled, their decree was valid and
could not be challenged in the English courts. Therefore,

89. • the action by the Republican government must be dismissed.
• The case came before the House of Lords, where it was decided
that the Nationalist government,
• as the de facto authority of much of Spain including the region of
Bilbao, was entitled to be
• regarded as a sovereign state and was able to benefit from the
normal immunities which follow
• therefrom. Thus, the action by the Republican government failed
• Lord Atkin observed that – excercising de facto administrative
control or excercising effective control , I understand excercising all
the functions of a sovereign government/ He further observed that
there is ample authority for the proposition that there is no
difference for the purpose between a recognition of a state de
facto as opposed to de jure.

90. Recognition of Insurgency
• Insurgency denotes the state of poltical revolt in a state. Insurgency is used to denote the condition
of political revolt in a country where the rebels have not attained the character of belligerents .
Thus Insurrection is a war of citizens against the state for the purpose of obtaining power in the
whole or part. It always implies sustained armed struggle by a group of citizen against an
established order.
• Tranquality ---- Insurgency -------Belligerency.
• Essential condition for recognising insurgents
• 1- Control over considerable part of territory
• 2- Considerable support to the insurgents from the majority of the people living in the territory.
• 3- Insurgents should have the capacity and will to carry out the international obligations
• Effects of recognition of insurgency
• 1- Thery are not treated as pirates
• 2- The rebels of civil strife are treated as hostes generis humani ( ie. Public enemy) until they are
recognised as insurgents.
• 3- the international rules of war applicable to them.

91. Recognition of Belligerency.
When the insurgents are well organised ,conduct hostilities
according to laws of war and have a determinate territory
under their control they may be recognised as belligerents
whether or not the parent state has already recognised
that status.
As in the case of a recognition of a state of belligerency is
the question of policy and not the of law.
The policy of state in this regard hinges upon national interest
of recognising state.
Recognition of belligerency is the acknowledgement of a
juridical fact that there exist a state of hostilities between
two factions contending for power or authorities.

92. Tranquality ---- Insurgency -------Belligerency
-> belligerency is in fact the final status of three stages of the
ascending intents of the conflict which presents a violents
challenge to sovereign authority within a state.
Essential condition for the recognition of belligerents
1- the armed conflict is to be general character
2- the belligerents occupy and administer a considerable portion of the
national territory
3-they conduct hostilities through armed forces under a responsible
authority. Moreover they conduct hostilities according to laws of
war.
4- the hostilities are to be of such magnitude that the foreign state
may find it necessary to define their attitude towards the
belligerents and the establish government.

93. Effects of recognition of belligerents
1- From the date on which the recognition of belligerency is accorded
international law rules governing the conduct of hostilities apply.
2- the conflict is internationalised and the belligerents get some rights
under international law
3-relation between the recognised belligerent authorities estalblish
government and the recognised state are governed by international
law rather than municipal law.
[T]he Sandinista National Liberation Front (FSLN), that ousted the
dictatorship of Anastasio Somoza in Nicaragua, received the
recognition of belligerency towards the final years of the 1970s”.

94. State Responsibility
• Every State has certain obligations under International Law. A State
has a capacity to perform totality of rights and duties under the
International law. Rights and duties of the States are correlated with
each other. A right of one State is Duty of another State. In case a
State violates its duties as provided by the rule of International Law,
it becomes responsible for the other State having
corresponding rights as provided by the rule of Internationa Law.
State Responsibility may incur during the time of peace or even
during the time of war. The responsibility of State may be Direct or
Indirect. The aggrieved party (State) has a right to claim
compensation from other State.
• The rules of international law as to state responsibility concerns the
circumstances in which and the principles whereby the injured state
become entitled to redress for the damage suffered.

95. • original responsibility of the state are for the works of its goverments .
• Original” responsibility is borne by a state for acts which are directly imputable to
it,such as act of its government, or those of its officials or private individuals
performed at the government command or with its authorizations.
• Vicarious responsibility are for its citizens and the works done by its agents
• When the private individuals of state cause harm to other state through their acts
,the question of Vicarious responsibility arises.
• Vicarious responsibility arises out of certain internationally injurious act of
private individuals (whether national or aliens in the state territory) and of officials
acting without authorisation.
• International delinquency – OPPENHEIM- An international deliquency is any
injury to another state committed by the head or government of a state in
violation of an international legal duty.
• International Delinquency: If any state official or authorize person violates any
international law or non contractual obligation, it is called International
Delinquency.

96. • State responsibility for the acts of mob violence -
•
A state is responsible for the harm caused to the aliens by mob violence only when it has
not made due diligence to prevent it. This Principal is uncertain ambiguous because "due diligence"
to prevent mob violence depends upon the time, to act and circumstances. If the alien person is
some officer of the foreign country then the state responsibility is more. The responsibility of state
also extends to officers or servant or the International Organisation.
•
Modes of reparation or compensation:
• There are following modes available of Reparation:
•
Restitution: the restoration of something lost to the sufferer state.
• Monetary Compensation: By giving proper compensation.
• Satisfaction of Apology.
•

97. State Succession
• A Succession of government occurs when the government of a state is replaced
with the a new one.
• State Succession occurs when a state ceases to exist or a new state is formed
within the territory of an existing state or territory is transformed from one state
to another state.
• . Art 2(1)(b) of the Vienna Convention on the succession of States in respect of
treaties in 1978 defines the term State succession as ‘the replacement of one
State by another in the responsibility for the international relations of territory’
• Succession of states is a theory and practice in international relations regarding
the recognition and acceptance of a newly created sovereign state by other states,
based on a perceived historical relationship the new state has with a prior state.
• Oppenheim- A succession of international person occurs when one or more
international persons take place of another international person,in consequence
of certain change in the latter’s condition.
•

98. • Types of State Succession
•
Universal Succession
• This is also referred to as Total Succession. When the entire identity of the parent State is destroyed
and the old territory takes up the identity of the successor State, it is known as Universal
Succession. This can happen in cases of:
• Merger
• Annexation
• Subjugation
• In certain cases of universal succession, the old State gets divided into multiple States. The
dissolution of Czechoslovakia is an example of universal succession. The new States of the Czech
Republic and Slovakia are both successor States
• Partial Succession
• Partial Succession occurs when a part of the territory of the State gets severed from the parent
State. This severed part now becomes an independent State. This can occur when there is a civil
war or a liberalization war.
• The glaring examples of partial succession is the separation of Bangladesh from Pakistan.
• The existing States continued with their legal obligations and duties while the new States got their
own recognition and carried no rights or duties of the parent States.

99. Theories of State Succession
• Continuity Theory
• Negative Theory
• Theories importing international law
• Communist Theory
• 1- continuity theory
• A-Universal Succession Theory
• . According to this theory, the rights and duties of the old State i.e., the predecessor State pass on
to the new State i.e., the successor State upon succession without any exceptions and
modifications
• B- Theory of Popular Continuity: Change of sovereignty is fictitious.
• C-Theory of Organic Substitution: Formation of a new state is a mere substitution of old state.
• D-Theory of self abnegation: state are at liberty to take over or reject whatever suits it in the
previous legal order.This is optional for new state to continue the activities of old state.

100. • Negative Theory
• The successor State does not exercise its jurisdiction over the territory in
virtue of a transfer of power from its predecessor but it has acquired the
possibility of expanding its own sovereignty in the manner dictated by its
own will.
• Theories importing international law- According to this theory
International law is based on positive practice of state “directs the
successor state to discharge certain of its predecessor’s obligations,and
vest in it,certain of it predecessor’s rights.
• Communist Theory
• The main emphasis under this theory is that a successor state is
unencumbered by the economic and political commitments of the
predecessor.

101. Rights and Duties arising out of State
succession:
•
When a state takes the place of another state following
rights and duties arise.
(1) Political Rights and Duties: No Succession takes place in
respect of political duties and rights.
• The peace treaties or the treaties of neutrality entered into
by the previous State aren’t binding on the new State.
• But the only exception here is in case of human rights
treaties since it would be desirable for the new State to
adhere to such terms.
• Other than this, the new State would have to enter into
new political treaties of its own

102. • (2) Local rights and duties: In respect of land, rivers, roads, railways
etc., therefore the succeeding state succeeds the rights and duties
of the former state.
(3) Debts: It depends on the discretion of succeeding state whether
to pay or not to pay the public debts of the former state.
(4) Nationality: The nationals of the former state lose their
nationality at the extinction of the state and become the nationals
of new state.
(5) Laws: As far as the law of the former states is concerned, civil
law continues until it is changed by the succeeding state.
(6) Public funds and public property: The successor state takes over
the public funds and public property of the predecessor state.

103. Nationality
• Nationality may be defind - As the legal status of membership of the
collectively of individuals whose acts, decisions and policy are vouchsafed
through the legal concept of the state representing those individuals.
• Nationality is often determined by state laws.
• Nationality is the principal link between an individual and international
law
• importance of nationality- Starke
• 1- the protection of rights of diplomatic agents are the consequences of
nationality
• 2- ordinarily state do not refuse to take the persons of their nationality. By
nationality we mean loyality towards particular state.
• 3- Nationality may also mean that the person may be compelled to do
millitary service for the state.
• 4- Enemy character is determined on the basis of nationality.
• 5- Yet another effect of nationality is that the state can refuse to extradite
its own nationals.

104. Modes of Acquisition of Nationality
• By Birth – The most important mode of acquiring nationality is by birth. Nationality is conferred to a person by
many States on the basis of birth. All those persons who take birth within the territorial limit of a State acquire the
nationality of the State.
• India also provides citizenship by birth under s.3 of the Indian Citizenship Act.
• By Naturalization – The next mode of acquiring a Nationality is by naturalization. A person requires nationality at
birth. But, his nationality may later on change. When the nationality of a person changes subsequently, and he
acquires the nationality of some other State, the process of acquisition is called as naturalization. A person may
acquire nationality through naturalization in various ways. There are six ways which are as follows –
• (1) Through marriage. Example wife assuming her husband’s nationality.
• (2) legitimation,
• (3) Option.
• (4) Acquisition of domicile,
• (5) Appointment as Government official
• (6) Grant on the application of the state. Adoption of the child by parents who are nationals of the other States
also entitled the children to acquire the nationality of his parents.
•
Section 6 of the Indian Citizenship Act 1955 provides that a person may acquire citizenship by naturalization upon
fulfilment of certain conditions.

105. • By Resumption – The next mode of acquiring Nationality is by
resumption. Sometimes a person may lose his nationality because
of certain reasons. But later he may resume, recover his original
nationality after fulfilling certain conditions. Section 20 of the
Citizenship rules 1956 provides a procedure for the restoration of
nationality.
• By Subjugation – The fourth mode of acquiring nationality is
subjugation. Section 7 of the Indian Citizenship Act 1955 Lays down
that if any territory becomes a part of India those persons from
such territory shall automatically become citizens of India.
• By Cession – The fifth mode of acquiring Nationality is the Cession.
When a part of the territory of a state is ceded to another State. All
Nationals of the former acquires the nationality of the latter State.

106. Modes of Loss of Nationality
• By Release: In some States, such as Germany., Law provides
that the citizens may lose their nationality by release. In the
loss of nationality by release it is necessary to submit an
application for the same. If the Application is accepted, the
person concerned is released from the nationality of the
State concerned.
• Deprivation: The certain States have framed some
municipal laws the breach of which by its nationals results
in the deprivation of their nationality. Under the American
laws, service in the armed forces of a foreign state also
results in deprivation of citizenship.
• Expiration: In certain States, on account of legislation
citizenship expires due to a long stay abroad.

107. Extradition
• 1) Introduction
•
It is quite possible for a person to escape to another State after committing
a crime in his own State because of the development of technology of air-traffic.
• Extradition is the official process whereby one nation or State surrenders a
suspected or convicted criminal to another nation or state. Between nation, States
Extradition is regulated by treaties.
• Extradition is the delivery of an accused or a convicted individual to the state on
whose territory he is alleged to have committed or to have been convicted of
crime,by the state on whose territory the allegede criminal happens to be for the
time being.
• Starke-
• According to Starke, “The term extradition denotes the process whereby under
treaty or upon a basis of reciprocity one state surrenders to another at its
request a person accused or convicted of a criminal offence committed against
the laws of the requesting state.

108. • Purpose of Extradition -
•
A Criminal is extradited to requesting State because of the following reasons -
(i) Extradition is founded on the broad principle that it is in the interest of the civilized
communities that criminals should not to go unpunished and on that account it is recognized as a
part of the comity of nations that one State should ordinarily afford to another state assistance
towards bringing offenders to justice.
(ii) Extradition has a deterrent effect because extradition act as a warning to criminal that
they cannot escape punishment by playing to another State
(iii) Criminals are surrendered as to safeguard the interest of territorial State.
(iv) Extradition is done because it is a step towards the achievement of international co-
operation in solving international problems of a social character.
(v) Extradition is based on reciprocity.
(vi) The State on whose territory the crime has been committed is in better position to try
the offender because evidence is more freely available in that State only

109. • Essentials condition of granting extradition
• 1- Non extradition of political criminal
• 2- Extradition is not allowed for millitary criminals also.
• 3- Extradition is not allowed for religious criminals .
• 4- rule of speciallity- state can prosecute that person only for the crime for which he was
extradited.
• 5-double criminality – the crime for which extradition is claimed should be crime in both the
countries .( country claiming for extradition and country giving extradition)
• 6- There should be sufficient evidence for crime relating to extradition.
• The Mehul Choksi Case:
• The case involving Mr. Choksi was one that stirred great controversy in India. Mr Choksi is wanted in
India for counts of criminal conspiracy, corruption, money laundering and criminal breach of trust
on account of the Punjab National Bank Loan Fraud.
• After being accused of his crimes, Mr. Choksi fled to Antigua, where he purchased citizenship under
am investor scheme, in light of avoiding deportation to India for his Trial.
• The Antiguan authorities are naturally reluctant to extradite one of their citizens as they believed
he would be subject to inhumane conditions in India. Thus, India is facing a difficult time retrieving
Mr. Choksi from Antigua

110. Asylum:
• Definition:
•
• According to Starke, the conception of asylum in International law involves two elements
1.Shelter, which is more than merely temporary refugee ; and
2.A degree of active protection on the part of the authorities in control of the territory of asylum
•
• The Institute of International law, at its Bath session in September, 1950 defined the term
asylum as under
•
• “Asylum is the protection which a state grants on its territory or in some other places under the
control of certain its organs to a person who comes to seek.”
• According to Article 14 of the Universal declaration of Human Rights, adopted by the General
Assembly of United Nations on 10 December 1948 –
•
• Everyone has the right to seek and to enjoy in other countries asylum from persecution.

111. • Kinds/ Types of Asylum:
•
There are two types of Asylum are as follows:
A) Territorial Asylum; and
B) Extra-territorial Asylum
•

112. • A) Territorial Asylum:
Territorial Asylum is granted by a State on its Territory, it is called Territorial
Asylum. The right to grant asylum by a State to a person on its own territory flows from the fact that
every State exercises territorial sovereignty over all persons, on its territory to anyone. The grant of
territorial asylum therefore depends upon the discretion of a State which is not under a legal
obligation to grant asylum to fugitive.
• Talisman Nasreen a Bangladeshi writer for her novel Raja granted asylum by Sweden.
Tiger Menno, wanted in Bombay Bomb blast case, granted asylum by Pakistan.
Dalai Lama and his followers was granted asylum by government of India.
•
Salman Rushdie for his controversial novel Satanic Verses given Asylum by Great Britain.
• B) Extra-territorial Asylum -
Active protection is given outside the territory not belonging to the state
granting it. Thus when Asylum is granted by a State at places outside its own territory. It is called
extra-territorial Asylum’. It usually describes to those cases in which a State refuses to surrender a
person demanding who is not upon its own physical territory but is upon one of its public ships
lying in foreign territorial borders or upon its diplomatic premises within foreign territories. Thus
Asylum is given at legation, consular premises and warships are the instances of extra-territorial
asylum.
• Asylum case( Columbia vs peru)

113. • The United Nations (UN) is an international
organization founded in 1945. It is currently made up
of 193 Member States.
• The forerunner of the United Nations was the League
of Nations, an organization conceived in circumstances
of the First World War, and established in 1919 under
the Treaty of Versailles "to promote international
cooperation and to achieve peace and security.
• The name "United Nations", coined by United States
President Franklin D. Roosevelt.
• The UN Charter of 1945 is the foundational treaty of
the United Nations,

114. • Components
• The main organs of the UN are
• the General Assembly,
• The General Assembly is the main deliberative, policymaking and representative organ of the UN.
• the Security Council,-It has primary responsibility, under the UN Charter, for the maintenance of international
peace and security. five permanent members—China, France, Russia, the United Kingdom, and the United
States—and ten non-permanent members . Veto power" refers to the power of the permanent member to veto
(Reject) any resolution of Security Council.
• the Economic and Social Council,-It is the principal body for coordination, policy review, policy dialogue and
recommendations on economic, social and environmental issues, as well as implementation of internationally
agreed development goals.It has 54 Members,
• the Trusteeship Council,-By 1994, all Trust Territories had attained self-government or independence. The
Trusteeship Council suspended operation on 1 November 1994.
• the International Court of Justice,- The International Court of Justice is the principal judicial organ of the United
Nations. It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
• The ICJ is the successor of the Permanent Court of International Justice (PCIJ), which was established by the
League of Nations in 1920.
• UN Secretariat.-The Secretariat comprises the Secretary-General and tens of thousands of international UN staff
members who carry out the day-to-day work of the UN.

115. UDHR( Universal Declaration of Human
rights )
• Second World War lead to the creation of the adopting of the Universal
Declaration of Human rights on 10 December, 1948
• Article 1 of the Universal Declaration proclaims that “All human beings are
born free and equal in dignity and rights”.
• Again according to article 2 “Everyone is entitled to all the rights and
freedoms set forth in this Declaration without distinction of any kind, such
as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status
• Civil rights include -Article 3 Everyone has the right to life, liberty and the
security of person
• Article 4. No one shall be held in slavery or servitude
• Article 5 No one shall be subjected to torture
• Article (6-11) Right to equality before law and legal remedies etc.
• Economic social and cultural rights include – social security (art 22)
• Right to work ,employment ,right to education (art.26)etc.

116. International Covenant of Civil and
Political Rights (ICCPR)1966
• Total 53 article with VI parts
• The United Nations International Covenant of Civil and Political Rights (ICCPR) attempts to ensure the protection
of civil and political rights. It was adopted by the United Nations’ General Assembly on December 19, 1966, and it
came into force on March 23, 1976.
• The rights protected under the ICCPR include:
• Article 6 – Right to life.
Article 7 – Freedom from torture.
Article 8 – Right to not be enslaved.
Article 9 – Right to liberty and security of the person.
Article 10 – Rights of detainees.
Article 11 – Right to not be imprisoned merely on the ground of inability to fulfil a contractual obligation.
Article 12 – Freedom of movement and choice of residence for lawful residents.
Article 13 – Rights of aliens.
Article 14 – Equality before the courts and tribunals. Right to a fair trial.
Article 15 – No one can be guilty of an act of a criminal offence which did not constitute a criminal offence.
Article 16 – Right to recognition as a person before the law.
Article 17 – Freedom from arbitrary or unlawful interference.
Article 18 – Right to freedom of thought, conscience and religion.
Article 19 – Right to hold opinions without interference.
Article 20 – Propaganda for war shall be prohibited by law.
Article 21 – Right of peaceful assembly.
Article 22 – Right to freedom of association with others.
Article 23 – Right to marry.
Article 24 – Children’s rights
Article 25 – Right to political participation.
Article 26 – Equality before the law.
Article 27 – Minority protection.

117. • OPTIONAL PROTOCOLS:
• There are two optional protocols to the ICCPR which gives additional human rights
protections.
• First Optional Protocol:
• This protocol allows victims claiming to be victims of human rights violations to be
heard. The Human Rights Committee (Committee), which is established by the
Covenant, has the jurisdiction to receive, consider and hear communications from
victims. The first Optional Protocol came into force with the Covenant. There are
currently 35 signatories and 115 parties to this protocol.
• India has not ratified the optional protocol I to the covenant on civil and political
rights, which allowed individuals to petition against the state to the human right
committee.
Second Optional Protocol:
• This protocol aims to abolish the death penalty. It was entered into force on July
11, 1991 and it currently has 37 signatories and 81 parties.

118. International Covenant on Economic,
Social and Cultural rights,1966
• The ICESCR is a multilateral treaty adopted by the United Nations General
Assembly on 16 December 1966 as part of the larger resolution on Universal
Declaration of Human Rights. It aspires to provide non-self governing and trust
territories and individuals , labour rights, right to health , right to education and
the right to an adequate standard of living .
• Article 2: right to non-discrimination and the right to an effective remedy
• Article 3: equal right of men and women to the enjoyment of economic, social and
cultural rights in the ICESCR
• Article 6: right to work
• Article 7: right to just and favourable conditions of work
• Article 10: protection of the family, mothers, children and young persons
• Article 11: right to an adequate standard of living, including adequate food
• Article 12: right to health
• Article 13: right to education
• Article 14: primary education
• Article 15: right to participate in cultural life

119. Law on treaty
• A treaty is basically an agreement between parties on the international
scene. Although
• treaties may be concluded, or made, between states and international
organisations, they are primarily concerned with relations between states.
• The 1969 Vienna Convention on the
• Law of Treaties reflects customary law and constitutes the basic
framework for any discussion of the nature and characteristics of treaties.
Certain provisions of the Convention may be regarded as reflective of
customary international law, such as the rules on interpretation,material
breach and fundamental change of circumstances. Others may not be so
regarded, and constitute principles binding only upon state parties.
• A treaty is defined, for the purposes of the Convention,
• in article 2 as: an international agreement concluded between states in
written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designation.

120. • The term ‘treaty’ itself is the one most used in
the context of international agreements but there
are a variety of names which can be, and
sometimes are, used to express the same
concept, such as
• protocol, act, charter, covenant, pact and
concordat. They each refer to the same basic
activity and the use of one term rather than
another often signifies little more than a desire
for variety of expression

121. pacta sunt servanda(binding force of
the treaties)
• Law of nature ,principle of morality,self restraint excercised by
states , lauterpacht-there exist a customary rule of international law
• The fundamental principle of treaty law is undoubtedly the
proposition that treaties are binding upon the parties to them and
must be performed in good faith. This rule is termed as
• pacta sunt servanda and is arguably the oldest principle of
international law. It was reaffirmed in article 26 of the 1969
Convention,
• Article 26 “Pacta sunt servanda”
• Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.
• The requirement of good faith is also inherent in united nation
charter preamble – UN is determind to establish condition under
which justice and respect for the obligation arising from treaties
and other sources of international law can be maintained.

122. • Exception of pacta sunt servanda- concept of rebus sic stantibus is an important exception to the
principle pacta sunt servanda-
• According to it there is an implied clause in every treaty that provides that the the agreement is
binding only so long as the material circumstances on which it rests remain unchanged.
• The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates that, where there has
been a fundamental change of circumstances, a party may withdraw from or terminate the treaty in
question. An obvious example would be one in which a relevant island has become submerged. It
is a fundamental change of circumstances.
• Article 62 Fundamental change of circumstances
• 1. A fundamental change of circumstances which has occurred with regard to those existing at the
time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked
as a ground for terminating or withdrawing from the treaty unless:
• (a) the existence of those circumstances constituted an essential basis of the consent of the parties
to be bound by the treaty;
• (b) the effect of the change is radically to transform the extent of obligations still to be performed
under the treaty.

123. • 2. A fundamental change of circumstances
may not be invoked as a ground for
terminating or withdrawing from a treaty:
• (a) if the treaty establishes a boundary; or
• (b) if the fundamental change is the result of
a breach by the party invoking it either of an
obligation under the treaty or of any other
international obligation owed to any other
party to the treaty.

124. Modes of expression of state consent
• Consent by Signature
• A state may regard itself as having given its consent to the text of
the treaty by signature in defined circumstances noted by article 12
• Consent by Exchange of Instruments
• Article 13 provides that the consent of states to be bound by a
treaty constituted by instruments exchanged between them may be
expressed by that exchange when the instruments declare that
• their exchange shall have that effect or it is otherwise established
that those states had agreed that the exchange of instruments
should have that effect.
• Consent by Ratification,Acceptance or approval
• Consent by Accession
• Consent by any other means if so agreed

125. Formation or conclusion of treaties
• Various Stages of formation of the treaties :
According to Starke the various Stages of formation of the treaties are as follows –
1) Accrediting of persons by a contracting state
• The first step in the conclusion of treaty is the appoint ment of the representative , having
necessary authority by states. The representative are provided with instrument called full power
2) Negotiation and adoption
• the Accreditedof persons of contracting state enter into negotiation for the adoption of treaty
.After the matters are settled ,the treaty is adopted Adoption take place by the consent of all
participating state . In international conference adoption of text of treaty take place by 2/3 vote
of state present and voting.
•

126. • 3) Signature -
When the final draft of a treaty is drawn up, the instrument is
ready for signature. The signature is affixed at a formal closing
session. A treaty generally comes into force on signature unless the
States desire to subject it to ratification. But where a treaty is
subject to ratification, the signature only implies that the
representive have agreed upon a text and willing to accept it and
refer it to government which have a competency either to approve
or reject it

127. • 4) Ratification
When a treaty signed by the representative of of the states is
confirmed by the states,the act of confirmation is called ratification.
The state parties become bound by the treaties after ratification.
Ratification of a Treaty may withhold on the following grounds
i) If the representative has exceeded his powers;
ii) If any deceit as to matters of fact has been practiced upon him
iii) If the performance of treaty obligations becomes impossible
iv) If there has not been consensus ad idem (meeting of mind) e.g.
there has not been agreed as to the same thing.

128. • 5) Accession and Adhesion
A third state can become a party to an already existing treaty by means
of accession. Accession and Adhesion is a consequential part of the
treaty. Accession is a process when a non-party state joins the already concluded
treaties. They are not the original members of such treaty. Adhesion is a process
when a non-party State accepts the terms and conditions of the already concluded
treaty. When a state become a party to through accession ,ratification is not
required.
6) Entry into force:
There can be a specific provision in a treaty as to the effective date or date
of application of the treaty. It can be by signing process or by ratification. Some
treaties enter into force immediately after signature .But the treaty in which
ratification is necessary enterinto force only after they have been ratified by the
prescribed number of state parties

129. • 7) Registration and Publication : Article 102 of U.N. charter
After the treaty has been so ratified, it has to be registered at the headquarters of the
international organization. According to Article 18 of the Covenant of the League, every treaty or
international engagement should be registered with the Secretariat of the League and published by
it as soon as possible. No such treaty or international engagement was binding on any state until it
was so registered. This means that in case of any dispute, the treaty could not be relied upon if it
was not registered.
• To the same effect are the provisions in the United Nations Charter. Article 102 of the
Charter reads: ----
Every treaty and every international agreement entered into by any Member of the United
Nations after the present Charter comes into force shall as soon as possible be registered with the
Secretariat and published by it.
No party to any such treaty or international agreement which has not been registered in
accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement
before any organ of the United Nations.
The second part of Article 102 clearly prohibits State to bring before the bar of world opinion any
secret treaty. The effect of non registered treaty is valid , however, limited to this extent that parties
to the treaty cannot invoke it before any organ of the United Nations.

130. RESERVATIONS TO TREATIES
• A reservation is defined in article 2 of the Convention as:
• a unilateral statement, however phrased or named, made by a state, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their
application to that state.
• Where a state is satisfied with most of the terms of a treaty, but is unhappy about
particular provisions, it may, in certain circumstances, wish to refuse to accept or
be bound by such provisions, while consenting to the rest of the agreement.
• By the device of excluding certain provisions, states may agree to be bound by a
treaty which otherwise they might reject entirely.
• The capacity of a state to make reservations to an international treaty illustrates
the principle of sovereignty of states, whereby a state may refuse its consent to
particular provisions so that they do not become binding upon it.
• According to Soviet members of commission ,reservation were necessary
institution because treaties should be the expression of the will of the parties.

131. • Genocide Convention case. This was an advisory opinion by the Court,
requested by the General Assembly after some states had made
reservations to the 1948 Genocide Convention, which contained no clause
permitting such reservations, and a number of objections were made.
• The Court held that:
• a state which has made and maintained a reservation which has been
objected to by one or more parties to the Convention but not by others,
can be regarded as being a party to the Convention if the reservation is
compatible with the object and purpose of the Convention.
• Compatibility, in the Court’s opinion, could be decided by states
individually since it was noted that:
• if a party to the Convention objects to a reservation which it considers
incompatible with the object and purpose of the Convention, it can . . .
consider that the reserving state is not a party to the Convention.

132. INVALIDITY OF TREATIES
• A Treaty concluded by the parties may on various ground
subsequently be invalidated.(art.46-53)
• Article 46 Provisions of internal law regarding competence to
conclude treaties
• Article 47 Specific restrictions on authority to express the consent
of a State
• Article 48 Error-Article 48 declares that a state may only invoke an
error in a treaty as invalidating its consent to be bound by the
treaty, if the error relates to a fact or situation which was assumed
by that state to exist at the time when the treaty was concluded
and formed an essential basis of its consent to be bound by the
treaty. But if the state knew or ought to have known of the error, or
if it contributed to that error, then it cannot afterwards free itself
from the obligation of observing the treaty by pointing to that error.

133. • Article 49 Fraud If a State has been induced to conclude a treaty by the fraudulent
conduct of another negotiating State, the State may invoke the fraud as
invalidating its consent to be bound by the treaty.
• Article 50 Corruption of a representative of a State If the expression of a State’s
consent to be bound by a treaty has been procured through the corruption of its
representative directly or indirectly by another negotiating State, the State may
invoke such corruption as invalidating its consent to be bound by the treaty.
• Article 51 Coercion of a representative of a State The expression of a State’s
consent to be bound by a treaty which has been procured by the coercion of its
representative through acts or threats directed against him shall be without any
legal effect.
• Article 52 Coercion of a State by the threat or use of force
• Article 53 Treaties conflicting with a peremptory norm of general international
law (“jus cogens”) A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm accepted
and recognized by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.

134. Termination of treaty
• Article 54 Termination of or withdrawal from a treaty under its provisions or by consent of the
parties
• Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a later
treaty
• A- it appears from the later treaty or is otherwise established that the parties intended that the
matter should be governed by that treaty; or
• (b) the provisions of the later treaty are so far incompatible with those of the earlier one that the
two treaties are not capable of being applied at the same time.
• 2. The earlier treaty shall be considered as only suspended in operation if it appears from the later
treaty or is otherwise established that such was the intention of the parties.
• Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach
• Article 61 Supervening impossibility of performance 1. A party may invoke the impossibility of
performing a treaty as a ground for terminating or withdrawing from it if the impossibility results
from the permanent disappearance or destruction of an object indispensable for the execution of
the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the
operation of the treaty.
• According to provision of treaty
• Outbreak of war
• Jus cogens
• Rebus sic stantibus

135. Jus Cogens
preamptive or authritative or final norm of international law
• There are certain principle in the international law which all the states must observe ,their non
observance may affect the very foundation of the legal system to which they belong. They
therefore cannot be altered by concluding treaties. The basic or fundamental rules posses the
characters of jus cogens.
• It is evolved with doctrine jus publicum privatorum pactis mutari not potest which means that a
public law or right cannot be altered by the agreement of private persons.
• Article 53 of the Convention provides that:
• [a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognised by the international community of states as a
whole as a norm from which no derogation is permitted, and which can be modified only by a
subsequent norm of general international law having the same character.
• Article 64 declares that ‘[i]f a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and terminates’.
• the concept of jus cogens, of fundamental and entrenched rules of international law.

136. • The seas have historically performed two important functions: first, as a medium
of communication; ssand, secondly, as a vast reservoir of resources, both living and
non-living.
• Both of these functions have stimulated the development of legal rules.
• Sea is divide into 3 parts
• Maritime zone
• Contiguous zone
• High sea
• There is maxim called mare liberum or freedom of the sea.
• due to economic interest the mare liberum maxim gets eclipsed.
• Series of conferences were held to reconcile the conflicting interest of the state in
sea. Among them
• In 1982 Third united nations conference on law of sea (UNCLOS III) is very
important .
• The 1982 Convention contains 320 articles and 9 Annexes

141. • Internal Waters
• Internal (or inland) waters are the waters on the
landward side of the baseline from which the breadth
of the territorial sea is measured. The coastal State has
full sovereignty over its internal waters as if they were
part of its land territory. The coastal State may exclude
foreign flag vessels from its internal waters subject to
the right of entry of vessels in distress. The right of
innocent passage does not apply in internal waters.
Examples of internal waters include rivers, canals, and
lakes, including The Great Lakes.

142. • Baselines
• By virtue of the 1958 Convention
• on the Territorial Sea and the 1982 Law of the Sea Convention, the low-water line of a low-tide
• elevation may now be used as a baseline for measuring the breadth of the territorial sea if it is
• situated wholly or partly within the the territorial sea measured from the mainland or an island
• The width of the territorial sea is defined from the low-water mark around the coasts of the
state.This is the traditional principle under customary international law and was reiterated in
article 3 of the Geneva Convention on the Territorial Sea and the Contiguous Zone in 1958 and
• article 5 of the 1982 Convention, and the low-water line along the coast is defined ‘as marked on
large-scale charts officially recognised by the coastal state
•
• Sometimes, however, the geography of the state’s coasts will be such as to cause certain problems:
for instance, where the coastline is deeply indented or there are numerous islands running parallel
to the coasts, or where there exist bays cutting into the coastlines. Special rules
• have evolved to deal with this issue.

143. • This point was raised in the Anglo-Norwegian Fisheries case, ICJ 1951
• before the International Courtof Justice. The case concerned a Norwegian decree delimiting its
territorial sea along some 1,000 miles of its coastline. However, instead of measuring the territorial
sea from the low-water line,
• the Norwegians constructed a series of straight baselines linking the outermost parts of the land
• running along the skjaergaard (or fringe of islands and rocks) which parallels the Norwegian
• coastline. This had the effect of enclosing within its territorial limits parts of what would
• normally have been the high seas if the traditional method had been utilised. As a result, certain
• disputes involving British fishing boats arose, and the United Kingdom challenged the legality of
• the Norwegian method of baselines under international law. The Court held that it was the outer
• line of the skjaergaard that was relevant in establishing the baselines, and not the low-water line
• of the mainland. This was dictated by geographic realities. The Court noted that the normal
• method of drawing baselines that are parallel to the coast (the tracé parallèle) was not applicable
• in this case because it would necessitate complex geometrical constructions in view of the
• extreme indentations of the coastline and the existence of the series of islands fringing the
• Coasts.
• The court held that in the normal coast the low –water line is base line. But straight baseline system
can be used on the basis of geographic ,economic and historic considerations.

144. Territorial Sea or meritime belt or
territorial waters
• There has historically been considerable disagreement as to how far
the territorial sea may extend from the baselines. Originally, the
‘cannon-shot’ rule defined the width required in terms of the
• range of shore-based artillery, but at the turn of the nineteenth
century, this was transmuted into the 3-nautical mile rule
• Now under united nations conference on law of the sea 1982
• LIMITS OF THE TERRITORIAL SEA
• Article 3
• Breadth of the territorial sea
• Every State has the right to establish the breadth of its territorial
sea up to a limit not exceeding 12 nautical miles, measured from
baselines determined in accordance with this Convention.

145. • Right of states over territorial state
• The sovereignty of a coastal State extends, beyond its land territory and
internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial sea.
• Article 19
• Right of innocent passage
• The docterine of innocent passage reconciles the interest of the world
community on the one hand , and the coastal states on the other
• Meaning of innocent passage
• . Passage is innocent so long as it is not prejudicial to the peace, good
order or security of the coastal State. Such passage shall take place in
conformity with this Convention and with other rules of international law
• Passage of a foreign ship shall be considered to be prejudicial to the
peace, good order or security of the coastal State if spying ,fishing
,causing marine pollution, launching or taking on board any aircraft is
there.

146. contiguous zone
• The contiguous zone may not extend beyond 24
nautical miles from the baselines from which the
breadth of the territorial sea is measured.
• the coastal State may exercise the control
necessary to
• prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations
within its territory or territorial sea;
• in contiguous zone only police and revenue
jurisdiction could be excercised by coastal state.

147. CONTINENTAL SHELF
• Article 76
• Definition of the continental shelf
• The continental shelf of a coastal State comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or to
a distance of 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental margin does
not extend up to that distance
• Rights of the states (article 77)
• Coastal state can not exercise sovereignty over this part of sea. However they may
exercise it for the purpose of exploring it and exploiting its natural resources.
• The rights referred above are exclusive in the sense that if the coastal State does
not explore the continental shelf or exploit its natural resources, no one may
undertake these activities without the express consent of the coastal State.

148. • India position on continental shelf
• Sec 6 of indian maritime zone act ,1976
• India has, and always had, full and exclusive sovereign
rights in respect of its continental shelf.
• -sovereign rights for the purposes of exploration,
exploitation, conservation and management of all
resources
• -exclusive rights and jurisdiction for the construction,
maintenance or operation of artificial islands, off-shore
terminals
• -right to scientific research
• - right to protect marine environment

149. exclusive economic zone
or patrimonial sea
• Article 56
• Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
• In the exclusive economic zone,
• the coastal State has:
• (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the seabed and of the
seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds;
• (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the
establishment and use of artificial islands, installations and structures; (ii) marine scientific
research; (iii) the protection and preservation of the marine environment;
• Article 55 provides that the zone starts from the outer limit of the territorial sea, but by
• article 57 shall not extend beyond 200 nautical miles from the baselines from which the
• breadth of the territorial sea is measured.
• Article 58 Rights and duties of other States in the exclusive economic zone
• all States, whether coastal or land-locked, enjoy, navigation and overflight and of the laying of
submarine cables and pipelines.

150. THE HIGH SEAS
• all parts of the sea that are not included in the exclusive economic zone, in the
territorial sea or in the internal waters of a State, or in the archipelagic waters of
an archipelagic State are called as The high SEAS.
• Article 87
• Freedom of the high seas
• . The high seas are open to all States, whether coastal or land-locked. Freedom of
the high seas is exercised under the conditions laid down by this Convention and
by other rules of international law.
• It comprises, inter alia, both for coastal and land-locked States:
• (a) freedom of navigation;
• (b) freedom of overflight;
• (c) freedom to lay submarine cables and pipelines, subject to Part VI;
• (d) freedom to construct artificial islands and other installations permitted under
international law,
• (e) freedom of fishing,
• (f) freedom of scientific research,

151. The right of Hot Pursuit
• The right of hot pursuit of a foreign ship is a principle designed to ensure that a
vessel which has
• infringed the rules of a coastal state cannot escape punishment by fleeing to the
high seas.
• In reality it means that in certain defined circumstances a coastal state may extend
its jurisdiction
• onto the high seas in order to pursue and seize a ship which is suspected of
infringing its laws.
• The right, which has been developing in one form or another since the nineteenth
century.
• It notes that such pursuit may commence when the authorities of the coastal
state have good
• reason to believe that the foreign ship has violated its laws. The pursuit must start
while the ship,
• or one of its boats, is within the internal waters, territorial sea or contiguous zone
of the coastal
• state and may only continue outside the territorial sea or contiguous zone if it is
uninterrupted

152. Settlement of International Dispute
• Legal and Political Disputes
• There are two grounds on which a disagreement can arise between
two parties; political or legal. The distinction between the two is
purely subjective. It is primarily the attitude of the states that
decide whether a dispute is a legal or a political one. Owing to the
involvement of the states, it becomes difficult to distinguish the
two. For a dispute to be regarded as a legal one, States must desire
to settle it on the basis of law, or else it becomes a political dispute.
• In Nicaragua v. Honduras, a case concerning Border and
Transborder Armed Action, the court clearly stated that it is only
concerned with the legal aspects of disputes.
• In an advisory opinion given in the Legality of the Threat or Use of
Nuclear Weapons that the presence of a political aspect along with
the legal aspect does not deprive the case of its a legal question.

153. • Negotiation
• This is regarded as the oldest and the simplest form of
settling disputes. When the disputant parties settle the
dispute themselves by discussion or by adjusting the
disagreement, the process is called a negotiation. The
dictionary meaning of negotiation defines it as a discussion
aimed at reaching an agreement. Hence in a case of
disagreement, the method of negotiation can be used to
reach a state of peaceful agreement. This process of
negotiation may be carried out by the Heads of the State,
or by their representatives or by diplomatic agents. In 1976,
India and Pakistan settled their pending boundary disputes
in the Simla Conference through the negotiation method.

154. • Mediation and Good offices
• when parties are not willing to go for the negotiation method or they fail to reach a state of
settlement through a healthy negotiation. A third person assists them in resolving their legal
matters. Such a third person may either be appointed by the parties themselves or by the Security
Council
• instances where the appointment has been made by the Security Council. McNaughton in 1949, in
1950 Dixon, in 1951 Graham, in 1957 Jarring
• In the process of mediation, the mediator participates in the discussion, gives his views and
suggestions in resolving the dispute. The mediator is usually known to settle the disputes as he may
even help in signing the treaty embodying the settlement that is reached.
• A famous example of mediation is when the Soviet Premier Kosygin settled the dispute between
India and Pakistan by signing the Tashkent Agreement in 1966.
• Good offices is basically the act through which the third party either arranges for a meeting
between the disputant parties or he acts, in ways through which a peaceful settlement can be
reached
• When the parties have failed to come to terms through negotiation, it is the third party that
provides for their good offices for the peaceful settlement of disputes
• The Prime Minister of the United Kingdom, James Harold Wilson, had lent his good offices to India
and Pakistan to reach an agreement in reference to the Kutch issue.

155. Conciliation
• The process where a Commission or a Committee is appointed and the dispute is referred to them
and it is required by them to find out about the facts and then to write a report for the settlement
of the dispute, is called conciliation. Here an effort is made for a peaceful compromise, to sign an
agreement but important to note that the proposals made by the commission are never binding on
the parties to the dispute
•
• Such commissions or committees that provide for conciliation may either be permanent or ad hoc
in nature. The idea of the Conciliation Commission was born in 1899 and 1907 Hague Conventions
for the Pacific Settlement of Disputes. Several treaties after the end of the First World War were
made through the Conciliation Commission. The General Assembly under Article 10 and 14 and the
Security Council under Article 34 has the power to appoint a commission to settle disputes.
• Arbitration
• Arbitration is the process of using the help, advice and recommendation of a third party called
arbitrator to settle disputes. The International Law Commission defines it as ‘a procedure for the
settlement of disputes between states by a binding award on the basis of law and as a result of a
voluntarily accepted undertaking’. Owing to its tendency to blend civil law procedure and common
law procedure, International arbitration is sometimes also referred to as a hybrid form of
international dispute resolution

156. • Retortion
• Retortion is based on the principle of tit for tat and is also a synonym for retaliation or to say it is
the technical term. It is an act done by one state in a manner similar to what was done earlier by
another state. Such acts done by the States are not illegal but are permitted under International
Law. It is an effective tool of law enforcement although the method of implementation may seem
unfriendly
• Reprisals
• If the problem is not solved by Retorsion the States have the right to resort to Reprisal. In
retaliation, the state can initiate such a proceeding where the problem may be resolved. However,
reprisal is one such method that can only be resorted against a State when it has indulged in some
illegal or inappropriate activity. The method and process of reprisals were clearly defined in the
Naulilaa case, (Germany v. Portugal).
• For example, Israel has resorted to reprisal many times against Lebanon. It has bombarded those
regions of Lebanon where Arab terrorists attacked the territories of Israel. The members of the UN
cannot indulge in reprisals of such a type which endangers international peace and security. It is
commonly accepted that Reprisal becomes justified and legal when the other country has
committed an international tort or violates the norms of International law.

157. • Embargo
• Embargo is of Spanish origin. It is also a kind of Reprisal.
• If the ship belongs to a State which has committed an international
tort or has committed some other international wrong and is
available in the territorial waters of the State against which tort or
wrong has been committed then such vessels can be restrained
from traveling through that area as a matter of right by the other
State. The purpose of such an embargo is to compel another state
to settle the dispute. In reprisals also vessels of one state may be
detained by another state. If the vessel is detainted for the purpose
of seeking redressal, embargo is deemed as a form of reprisal. But if
the detention is for any other purpose then it is not regarded as
reprisals

158. • Pacific Blockade
• A pacific blockade is a blockade used for the purpose of bringing
pressure exercised by a great power to bear on a weaker state
without actual action. When the coast of a state is blocked by
another state for the process of preventing ingress of vessels of all
nations by use of warships and other means in order to exercise
economic and political pressure on that state, the act is specifically
called a blockade
• Intervention
• Intervention by state in the affairs of another state is a recourse to
the settlement of disputes. It is important to note that after the
establishment of the United Nations a state has been substantially
prevented from taking compulsive actions to settle international
disputes

159. Air Space and International Law:
• Air transport is an integral part of the globalized
• world economy. By facilitating the growth of
• international trade, tourism and international
• investment, and generating employment not only
in
• the aviation sector but also in other industries, it
• plays one of the key roles in developing and
• fostering modern international relations.
• .

160. aircraft hijacking
• in its wide sense hijacking is an act against the safety of
civil aviation and resembles piracy.
• An aircraft crime which is also commonly called as air craft
hijacking in international law terminology is one of the
crimes within the range of internationallaw that is
condemned by international community who loves
peacefulness and maintains humanity values.
• Aircraft hijacking is one of the crimes against humanity that
devastates humanity values, threatens lives, and destroys
belongings. Aircraft hija cking continually occurs,
committed by different hijackers with whatever motives,
for as long as there are national and international
commercial flights.

161. • The wider concept of hijacking has been incorporated in the montreal
convention 1971
• a) an act of violence against a person on board an aircraft in flight which is
likely to endanger the safety of the aircraft
• . (b) destroys an aircraft in service or causes damage to such an aircraft
which renders it incapable of flight or which is likely to endanger its safety
in flight.
• c) places or causes to be placed on an aircraft in service, by any means
whatsoever, a device or substance which is likely
• to destroy that aircraft, or
• to cause damage to it which renders it incapable of flight,or
• to cause damage to it which is likely to endanger its safety in flight.
• (d) destroys or damages air navigation facilities or interferes with their
operation, if any such act is likely to endanger the safety
• of aircraft in flight.

162. • The Paris Peace Conference of 1919 made an Inter-Allied Aeronautical Commission
that was to believe the limits on commercial aviation to be permitted to the
defeated Germany in the universal war – I. Also, the Commission was welcome to
set up a Convention on international aerial navigation in the peace of harmony
recognition that flying had become a developing innovation requiring explicit
worldwide lawful regulation “to prevent controversy” and “to encourage the
peaceful intercourse of nations by means of aerial communications”.
• This convention framed certain rules regarding aerial navigation during peace
time. According to convention, each state excercises complete sovereignty over its
space. Further during peace ,parties to the convention will give innocent passage
to the other state parties to the convention. The convention did not frame rules
for the period of war.
• The Convention is traditionally the first international multilateral instrument
relating to air navigation. It also helped to formulate the concepts of contracting
states’ domestic law, many of which had no legislation regulating aviation by 1919.
The Paris Convention of 1919 is no longer in effect and is now part of history.
However, its pioneering contribution to the formulation of some basic concepts of
air law survives and maintains its relevance

163. • Pan American Convention on Commercial Aviation had
been finalized in Havana early 1928 under the auspices of
the Sixth Pan-American Conference (held in Havana, Cuba,
from 16 January to 20 February 1928)
• The Havana Convention was modeled after the Paris
Convention; it applied exclusively to private aircraft
(government aircraft were not included) and laid down
basic principles and rules for aerial traffic, recognizing that
every State had complete and exclusive sovereignty over
the airspace above its territory and adjacent territorial
waters.
• Clauses largely enabled USA owned airlines to freely
operate services within North and South America.

164. • Although the principles of the Havana Convention were the mutual freedom of air
passage, it made however no attempt to develop uniform technical standards, nor
was there any provision for periodic discussion on common problems through the
agency of a permanent organisation (i.e. a Secretariat).
• The Convention did not contain provisions for continuing administrative
machinery and entrusted certain duties of coordination to the Pan-American
Union, mainly to its conference that met every five years. The Havana Convention
had no Annexes; all rules were contained in the treaty itself. Aircraft regulation
was done according to the laws of each country; no uniformity was provided.
•
• In summary, the Havana Convention contained no provisions for a permanent and
dynamic means of facilitating civil aircraft’s progressive development and
evolution. States were expected to take the initiative in guiding the development
of civil aviation and in the writing of regulatory codes. This permitted a good deal
of flexibility among States, but also led to a degree of uncertainty or confusion in
practice.

165. CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO
INTERNATIONAL CARRIAGE BY AIR, SIGNED AT WARSAW ON 12 OCTOBER
1929 ( WARSAW CONVENTION
• Total 41 Articles.
• Article 1 .
• 1-This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for
reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
• 2. For the purposes of this Convention the expression "international carriage" means any carriage in which,
according to the contract made by the parties, the place of departure and the place of destination, whether or not
there be a break in the carriage or a transhipment, are situated either within the territories of two High
Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place
within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that
Power is not a party to this Convention. A carriage without such an agreed stopping place between territories
subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to
be international for the purposes of this Convention.
• 3. A carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to
be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed
upon under the form of a single contract or of a series of contracts, and it does not lose its international character
merely because one contract or a series of contracts is to be performed entirely within a territory subject to the
sovereignty, suzerainty, mandate or authority of the same High Contracting Party.
• Article 2
• 1. This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the
conditions laid down in Article 1
• 2. This Convention does not apply to carriage performed under the terms of any international postal Convention.

166. • Warsaw convention is a legal framework that serve as an effective
instrument used by the International civil aviation. The Warsaw system is
the result of the modifications and additional protocols, rules, and
regulations in the Warsaw convention. The International Civil Aviation
Organization (ICAO) oversees the operations of this system.
• The convention contains definitions of terms, documents or carriage,
luggage and passenger ticket, liability of carrier, provisions of combined
carriage and other general provisions which sum up to five chapters. Aside
from broad topics in international flight treated by the Warsaw
convention, there are also certain provisions of the convention that are
specific such as passengers tickets and baggage checks.
• The convention explicitly explains international carriage and its
application. It also sets rules binding the carriage of documents. As a legal
framework, the Warsaw convention also specifies the carrier's liability and
limitations. The convention provides a limitation which states that claims
must be brought forward within two years

167. • Chicago Convention
• Known more commonly as the ‘Chicago
Convention’, this landmark agreement laid the
foundation for the standards and procedures for
peaceful global air navigation. It set out as its
prime objective the development of international
civil aviation “…in a safe and orderly manner”,
and such that air transport services would be
established “on the basis of equality of
opportunity and operated soundly and
economically

168. Five freedom of Air
• freedom to fly across foreign country without
landing
• Freedom to land for non traffic purposes
• Freedom to disembark in foreign territory traffic
originating in the state of the origin of craft
• Freedom to pick up in any foreign country traffic
destined for the state to origin of aircraft and
• Freedom to carry traffic between two foreign
countries.

169. • Total 17 articles
• Article I
• Outer space, including the Moon and other celestial bodies,
shall be free for exploration and use by all States without
discrimination of any kind, on a basis of equality and in
accordance with international law, and there shall be free
access to all areas of celestial bodies.
• Article II
• Outer space, including the Moon and other celestial
bodies, is not subject to national appropriation by claim of
sovereignty, by means of use or occupation, or by any other
means.

170. • Article IV
• States Parties to the Treaty undertake not to place in orbit
around the Earth any objects carrying nuclear weapons or
any other kinds of weapons of mass destruction, install
such weapons on celestial bodies, or station such weapons
in outer space in any other manner.
• The Moon and other celestial bodies shall be used by all
States Parties to the Treaty exclusively for peaceful
purposes. The establishment of military bases, installations
and fortifications, the testing of any type of weapons and
the conduct of military manoeuvres on celestial bodies
shall be forbidden

171. Syllabus for exam
• 1-Introduction:
• Structure of the International Community Historical Development and Specificities of Public International Law, Definition, Nature, Legality of
International Law, Theories as to basis of International Law, Relation of International Law to Domestic, Practice of States, UK USA and India, Sources
of International Law , Codification.
• -Subjects of International Law:
• The Concept of Subject of Law and of Legal Personality, Various Theories like Realistic Theory, Fictional Theory, Functional Theory, State as Subject,
Definition and Conditions for Statehood, rights and duties of states, Territory, Modes of acquisition and loss of state territory, Sovereignty
• 2-Recognition:
• De Facto and De Jure, Theories of Recognition, Recognition of Belligerency and Recognition of Insurgency, Collective Recognition, State
Responsibility, Original and Vicarious Responsibility, State Responsibility for various Acts, Individual Acts, Mob Violence, Insurgency and for
International delinquencies, The Invocation of Responsibility and Diplomatic Protection, State Succession, Theories of State Succession, Rights and
Duties arising out of State Succession.
•
• 3- Individual as a subject of International Law:
• The Basic modification, post charter in the position: Nationality, extradition, Asylum, Territorial and Extra, territorial, UNO & Human Rights, UDHR,
Covenant on Civil Political Rights,1966, Covenant on Economic Social and Cultural Rights, 1966.
• 4-Law of Treaties:
• Concept of Treaty, Kinds of Treaties, Binding Force of Treaties, Pacta Sunt Servanda, Jus Cogens, Rebus Suc Stantibus, Parties of a Treaty, Formation
of a Treaty, Reservation, Invalidity and Termination of Treaties
• 5--Law of the Sea: Historical Background, Maritime Belt, Territorial Sea, The Contiguous Zone, Exclusive Economic Zone, Continental shelf,
The High Seas, International Sea Bed Area, Common Heritage of Mankind , Law of the Sea Conventions (United Nations Convention on the Law of the
Seas).