205 Public International Law

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LL.B. Semester III

CORE COURSE 205 Public International Law
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Refer (not in any particular order) :
Bare acts are a good source, in any subject of law.
Public International Law - https://www.scribd.com/doc/314397588/Public-
International-Law
Public International Law Guide By Wade Mansell -
https://www.scribd.com/document/101743038/Public-International-Law-Guide
https://www.scribd.com/doc/138716949/Similarities-Differences-Between-
International-Law-Municipal-Law
International Law (Theory and Practice) - By Dr P B Rathod ---
https://www.scribd.com/document/158159513/International-law
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CONTENTS
Module - 1) Definition and Concept of International Law
Module - 2) Theoretical Foundations of International Law
Module - 3) Concept
Module - 4) Miscellaneous
OBJECTIVES OF THE COURSE :

The main thrust of this course shall be development of human rights (HR) law and
jurisprudence at international, regional and national levels. There need not be an
attempt to teach the whole gamut of international law in this course. The HR Dimensions
shall be discussed in other papers like Environmental Law (BCI C 18). In the era of
Globalization, it is a need of time to acquaint the law students about the Principles of
Public International Law and its application to the Municipal Laws of the member
nations.
Module - 1) Definition and Concept of International Law

1.1) Definition
1.2) Public International Law & Private International Law
1.3) Nature of International Law and its functions
1.4) International Law a weak law
1.5) Development of International Law in India
Go To Contents
Module-1 QUESTIONS :
Define International Law. Is International Law a true law ? (Oct-2013)
Discuss the origin and development of public international law. (Dec-2015)
Explain in detail the characteristic of public international law. (Nov-2014)
Explain the meaning and concept of the International Law. (Dec-2016)
Is international law, a true law? (Nov-2012, Nov-2014)
Discuss the theories regarding the relation between international law and state
law. (Nov-2012)
Explain : differences between international law and domestic law
Explain : International Law and Municipal Law
Discuss regarding relationship between the states and International Laws. (Dec-2016)
State the definition and concept of public international law and private international
law. (Nov-2011, Oct-2013)
The main thrust of public international law shall be development of human rights
law and jurisprudence at international, regional and national levels Explain this
statement. (Nov-2011)
Short note : Universal Declaration of Human Rights (UDHR)
State in detail, origin and development of international law in India. (Nov-2011,
Nov-2012)
Go To Contents
Module-1 ANSWERS :
Define International Law. Is International Law a true law ? (Oct-2013)

Discuss the origin and development of public international law. (Dec-2015)
Explain in detail the characteristic of public international law. (Nov-2014)

Explain the meaning and concept of the International Law. (Dec-2016)
Is international law, a true law? (Nov-2012, Nov-2014)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/International_law
What is "International Law" ?
International law is nothing but the 'Law of Nations'. Sometimes, both terms are
used interchangeably. They are synonymous and are equivalent terms. The term
"International law" was introduced by Jeremy Bentham in 1789. Prior to it,
International Law was known by the name 'Law of Nations.'
International Law largely deals with the study that combines two main branches
of law, namely,
the law of nations called jus gentium and
international agreements and conventions, called jus inter gentes,
which have different theoretical foundations and should not be confused.
At present International Law consists of those rules, written or unwritten, which the
states observe in their mutual dealings. Each nation has its own laws which are
generally called as 'Principal Laws'. International law are the laws which govern the
relations between the states. Generally, it is applicable to the states.
International Law not only defines the rights of states but also prescribes the
procedure by which these rights may be protected.
By and large, it is the law for the states and not the law for individuals.
International Law is a product of long evolution. International Law did not grow in a
particular day or a particular period. They are the result of centuries and centuries
of experience.
Definitions :
The Arthashastra of Kautilya laid down rules for the guidance of kings in their
foreign affairs.
Henry Maine defined International Law 'generally consists of principles of lights,
justice, collection of usages, customs and opinions.'
Oppenheim :
In 1955, Oppenheim in Eighth Edition of his book 'International Law' defined
Law of Nations or International Law as the body of customary and treaty rules
which are considered legally binding by states in their intercourse with each
other.
Since 1955, drastic changes occurred in International Law, and therefore, the
definition has become too narrow and is static taking into account elations of
states only. In fact, International Law is a dynamic and living law. Its rules
have been changing with the passage of time out of experiences and
necessities of situations.
Accordingly, in the Ninth Edition of his book published in 1992 Oppenheim
defined the term International Law as follows,
"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 organizations and, to some extent, also
individuals may be subjects of rights conferred and duties imposed by
International Law"
Widely accepted definition :
Traditional : That branch of public law which regulates the relations of states
and of other entities which have been granted international personality.
Modern : That law that deals with the conduct of States and international
organizations, their relations with each other and, in certain circumstances,
their relation with persons, natural or juridical. [American Third Restatement]
Origin of Public International Law :
work on this
Development of Public International Law :
work on this
Characteristics of Public International Law :
work on this
Discussion :
Most jurists concur that definition of International Law consists of three important
elements.
Firstly, International Law consists of a body of rules governing the relations
between states. By the term `relations' is meant that official intercourse which is
maintained by states through their foreign offices or department of external
affairs.
Secondly, states regard these rules as being binding on them in their relations
with one another, and
thirdly, such rules derive from custom and treaties.
International Law is a body of different rules/ moral principles, like natural justice,
traditions, customs, conventions and the principles of different treaties or
agreements among nations, verdicts or decisions of international tribunals or courts
or declarations international institutions of League of Nations and the U.N.
International Law lays down the rights and obligations of different types of states,
i.e., states at peace, states at war and neutral states. These rights and obligations
relate to the recognition of states or governments, successions of states or
governments, territorial limits, treatment of aliens, diplomats and consular
privileges and immunities, treaties, war arbitration and so on.
Acceptance and observance of International Law are optional and NOT compulsory.
It is a law among nations. It's laws are not imposed or enforced by some kind of
supernatural authority. ie all the nations may not accept and observe all of
International Law. Some nations may not accept or observe some aspects or
provisions of International Law. This optional aspect of International Law
distinguishes it from natural law. Note : acceptance and observance of Municipal or
National Law are compulsory.
Though International Law is optional in its acceptance and observance, it does not
mean that it is useless or undependable in international dealings. It lacks sanction
of force. Most of the nations accept and observe International Law most of the
time, because it is based on moral principles, traditions, customs and conventions
and it is found useful and necessary by nations in their dealings with one another
despites its lack of the sanction of force.
International Law is a code of conduct for nations. Nations settle their disputes
through the common code of conduct instead of seeking to solve their problems by
the troublesome and problematic methods of force.
International Law as it is accepted and observed helps to define, regulate and
control the behaviour of states or nations. Diplomacy, balance of power, collective
security and International Law goes a long way in settling the disputes.
Treaties such as the Geneva Conventions may require national law to conform to
respective parts.
Much of international law is consent-based governance. This means that a state
member is not obliged to abide by this type of international law, unless it has
expressly consented to a particular course of conduct.
The differences between international law and domestic law :
International Law governs the state in its capacity as a sovereign, in its relationship
with other sovereign states. To a lesser degree, international law also may affect
multinational corporations and individuals, an impact increasingly evolving beyond
domestic legal interpretation and enforcement. Municipal law, on the other hand,
refers to the law that governs the domestic realm, or the inner workings of the
states, thereby dabbling with private citizens.
The term Municipal Law is given by International Lawyers, to the national or
domestic laws of the state. It essentially seeks to govern the state in its capacity as
a sovereign in relation to its private citizens.
Municipal law acts as a source of law and even lends some of the general principles
of law to International Law, succinctly filling the gaps in the International Legal
realm. However, there are significant and crucial distinctions between international
law and domestic law.
The relationship between International Law and Municipal Law is fraught with
theoretical problems. There are two theories that govern the applicable dimensions
of the two laws when they function in conjunction with each other, (i) monists, and
(ii) dualists.
(i) Monism pursues a contention that is diametrically opposed to the contentions
of the Dualist school of thinking. The theory perceives International Law and
Municipal Law as one, and holds that a states conduct at the national and
International level are governed by the dictates of both sets of rules, national
and international, that the state has consented to be bound by.
Monism does not require a translation of International Laws into Municipal Law
before it is applicable in the domestic realm. Once ratified, the rules of
International Law find immediate acceptance in the domestic legal set up. This
automatically implies that a judge in a monistic judicial system is free to apply
to International Law; a citizen is free to invoke International Law before a
municipal court of law, all as though they were integral parts of Municipal
Law. A judge may even declare a national rule invalid if it is found to be in
contravention of any International rule. Monism in its purest form recognizes
International Law and Municipal Law as being one, to such an extent that
where national law is found contradicting International Law, it is null and void,
even if it was enacted prior to the International Law in question, and even if it
was the constitution itself.
Germany is an example of the monistic school of thinking. It follows a system
of practice where treaties take effect as legislation the moment they are
ratified, and immediately, by way of the rule of lex posterior, they only take
precedence over national legislation enacted prior to their ratification.
(ii) The Dualist theory, also called the pluralist or positivist theory, is a school of
thought that assumes that International Law and Municipal Law are two different
systems of law, that exist independently of each other. The central question that
arises, now, thus, is as to which of the two are superior to the other. The theory
points out that both streams of the law are exist separately and cannot purport
to have an effect on, or overrule each other.
The Dualist theory has been best exhibited in the model of Indian as well as
British Law. A treaty has no effect in English domestic law, unless it is
expressly made a part of it. Once it is made a part of the law, it is entirely
enforceable in the courts.
In international law there is of course no supreme legislature which can promulgate
binding international laws. There is no international law-making body and no

equivalent of a domestic legislature. The international legal regime is
overwhelmingly, but not exclusively, one which requires the consent of those whom
it would govern. It can rarely coerce those state subjects who would not be bound.
It is this that suggests that the international law regime is best understood as a
horizontal system of organisation rather than vertical. This means that whereas in
domestic law, laws are passed down to the subjects from the law making body, in
international law it is the parties themselves who make the law for themselves.
International law is concerned primarily with rules directed to sovereign states.
Similarly there is no international court before which states in breach of
international law may consistently be forced to appear. There is an International
Court of Justice but this concerns itself only with disputes between parties who
have standing before the Court (and only states do have standing if the Court is to
make an authoritative ruling rather than giving an advisory opinion). The Court has
no role in punishing states in breach of their international law obligations. Its role is
to resolve disputes between states, and without use of sanctions.
Although some states have accepted the compulsory jurisdiction of the
International Court of Justice this will only be effective in disputes between states
where all parties to the dispute have accepted that compulsory jurisdiction. A
minority of states do so. Thus here too the emphasis remains upon consent.
This emphasis on consent rests upon two crucial, but not natural, facts.
The first is that each state is said to be sovereign in its own territory. This does
not mean that the rulers of any state can rule with utter impunity. Humanitarian
law in particular has been accepted (generally, if not in particular cases) as
constraining states in their internal governance. Sovereignty gives total control
of domestic jurisdiction.
The second fact is that there is universal acceptance of the sovereign equality of
states that is, each is equal in its sovereignty. Needless to say, the sovereignty
is formal and legal in its equality rather than actual. The relative power of states
does not alter this aspect of equality. Just as under the rule of law, each
individual has formal equality before the law, so in international law each state is
equal. This acceptance of sovereignty and sovereign equality makes clear just
why it is generally unrealistic to expect a greater level of coercion and sanction
in international law than presently exists.
IMPORTANCE OF INTERNATIONAL LAW :
1. Most of the issues of the states are usually political issues hence, they fall
outside the scope of International Law. Inspite of that, International Law attempts
to build a world legal order, without which peace in the world will be in a greater
danger.
2. There are two types of disputes among the nations, (i) Political disputes, and (ii)
Legal disputes. Legal disputes are solved with reference to International Law, while
political disputes are solved at the U.N. level or the diplomatic level. International
Law can atleast solve legal disputes between States. It reduces political tension in
the world.
3. The study of International Law is more widespread and more popular throughout
the world. International Law schools have been opened in all parts of the world. To
study International Law, a vast amount of literature on the subject is developed
today. Foreign Ministers of all countries maintain experts on International Law.
United Nations is helping in the teaching and research in International Law.
International Law Commission which is an agency of the United Nations is doing
much work in this field.
4. International Law helped in many ways to solve disputes among the nations.
Only one thing is that these have not been publicised. But whenever a war is
resorted to, it is shown as a failure of International Law and is published much.
5. It is immensely useful to maintain world peace. It played a very important role
to keep world peace after Second World War.
6. Though, International Law does not have force behind it, most of the nations of
the world willingly submit themselves to International Law. All the nations showing
effective obedience to International Law will ensure peace in the world.
7. In future, even in setting a 'World Government' there is a great necessity of
strengthening and expanding International Law. World government is impossible
without world law. Therefore, all states must willingly obey to it
Is International Law a true law ? Why should international law be defined as law? Is
International Law a weak law ?
Refer : http://kuklawnotes.blogspot.in/p/international-law_72.html
INTRODUCTION :-
Famous legal philosopher John Austin (1790 to 1859) defined 'Law' as
commands from a sovereign, backed by the threat or use of coercion, sanctions
or force.
International Laws essentially came into existence either through treaties (which
require the consent of parties) or through custom. The fact that there is no law-
creating legislature really, it can be argued, simply reflects the reality of
sovereignty. As Shabtai Rosenne observes in a book published in 1984,
International law is a law of co-ordination, not, as is the case of most internal
law, a law of subordination. By law of co-ordination we mean to say that it is
created and applied by its own subjects, primarily the independent states
(directly or indirectly), for their own common purposes.
The best evidence for the existence of international law is that every state
actually recognises that it does exist and that it is itself under obligation to
observe it. States may often violate international law, just as individuals often
violate municipal law, but no more than individuals do states defend their
violations by claiming that they are above the law.
International Law is a legal way of dealing with international issues. What
distinguishes most clearly the law way from the social way of resolving disputes
is that law always requires a translation of social facts in to legal facts. This
necessary translation is both laws greatest strength and paradoxically its
greatest weakness.
It is a strength in that when a dispute is put in legal terms with legal issues, it
becomes legally resolvable in that there will be (almost invariably) a legal
solution to the legal problem. It may also be a weakness because the resolution,
while it will resolve the legal issue, may not resolve the social (untranslated)
problem.
There is little point in having a dispute legally resolved if the underlying political
problems remain. Unless the parties to the dispute accept that the legal outcome
resolves the problem, the resolution itself may in fact simply lead to further
disputes.
Weaknesses in International Law : The weaknesses of International Law become
evident when we compare it with Municipal Law. Its weaknesses reflected in most
of cases when these are compared with the state law. The following are some of
the weaknesses of International Law :-
l. The greatest shortcoming of International Law is that it lacks an effective
executive authority to enforce its rues.
2. Lacks Of effective legislative machinery:- Since the International Laws are
based on international treaties and conventions. Therefore these are interpreted
by the states according to their self interest.
3. The International court of Justice lacks compulsory jurisdiction in the true
sense of the term :- The International court of Justice which is situated in
Hague (Netherland) is not authorised to take cases of all states. The cases can
be filed in this court with the mutual consent of concerned states.
4. Due lack of effective sanctions, rules of International Law are frequently
violated:- There is no sense or fear of sanction in the International Law with the
results the laws are violated frequently by the States.
5. Lack in right to intervene in Internal Affairs :- As per article 2(7) of UNO
Charter, UNO is not competent to interfere in the domestic matters of states.
International law cannot interfere in the domestic matters. Keeping in view these
facts in several cases International Law proves to be ineffective and weak.
6. UNCERTAINTY:- There is one more reason behind the weakness of
International Law is its uncertainty. It is not certain as the laws of states as well
as Municipal law. In addition to this it has not been able to maintain
international peace and order.
It is now very much clear from the above facts that International Law is weak.
Paton says that, from institutional point of view International Law is a weak. It has
no legislative support though there is international court of justice but that
functions or takes case on the basis of mutual consent of states. It has no power
to get the decisions implemented.
According to Karbet, The main course of weakness of International Law is the lack
of social solidarity among highly civilised states.
A case of Queen v/s Ken 1876 :- There is no such institution or body which can
enact laws for sovereign states and there is no court also which can enforce its
decision and to bind the states.
Suggestions For Improving International Law : Despite the above mentioned
weaknesses, it has to be noted that International Law is constantly developing and
its scope is expanding. It is a dynamic concept for it always endeavours to adopt
itself to the needs of the day. As compared to Municipal Law the International Law
is works in a decentralised system. This is because of the facts that the
International policies, Inter-dependence of states and the continuous growth of the
concept of International or world community. However the weaknesses of the
International Law may be improved in following ways :-
l. The International Court of Justice should be given compulsory jurisdiction, in
the true sense of term overall international disputes.
2.An International Criminal Court should be established to adjudicate cases
relating to international crimes.
3. International Laws should be properly codified.
4. The machinery to enforce the decisions of the International Court of Justice
should be strengthened.
5. An International Police system should be established to check international
crimes and to enforce the rules & principles of International Law.
6. An international Bureau of Investigation and prosecution should be
established for investigation of matters relating to International crimes and the
prosecution of International criminals.
7. The U.N.O. should be authorised to intervene in the internal matters of states.
8. For settlement of international disputes the use of judicial precedents must be
encouraged.
9. There must be constant review of International Law.
10. Last but not the least there must be basic recognition of the interest which
the whole international society has in the observance of its laws.

Why should international law be defined as law at all ?
In domestic law it can be argued that the fact that laws are often broken and
wrongdoers often escape punishment is of only marginal importance to the
existence of law. Much more significant is that most citizens have actually
internalised the values of criminal law even if they do not agree with them.
Domestic wrongdoers very seldom attempt to deny the authenticity of the law,
rather they try to justify their transgression. This is just as true in international
law. Here follow small list of glaring examples :
When Saddam Hussein ordered the invasion of Kuwait in 1990 he did not
announce that he intended to flout or, worse still, ignore international law.
Rather he attempted, perhaps not terribly convincingly, to defend his actions as
being consistent with international law. Thus he not only suggested that the
invasion was legitimate self defence but he also referred to historic Iraqi claims
over the territory of Kuwait.
When the United States invaded Grenada in 1983 it too, albeit belatedly and a
little half-heartedly, attempted to justify the invasion legally. The fact that the
justification withstood little scrutiny is less important for our argument than the
fact that the United States felt bound to make it.
Very much the same was true of the US invasion of Panama to capture General
Noriega.
Even the claim by China that both Tibet and Taiwan are integral components of
the Chinese territory is couched in terms calculated to appeal to international
law.
More recently the intervention by NATO in the territory of the former Republic of
Yugoslavia was defended as being consistent with international law; while it is
argued (at least by Israel and the United States) that Israels activities in
Palestine are not necessarily a breach.
Most recently of course has been the bitter legal debate concerning the
intervention of the US coalition in Iraq.
USA and International Law : Within US legal thinking there are even some who
argue that in fact international law is not really law at all. And that it is an
impropriety to speak of these rules as being laws; they are merely moral principles,
in the sense that they are recognized in fact, but destitute of the sanctioning force
which is the distinguishing quality of law. Two major sources of International Laws
are (i) Treaties and (ii) Customs.
(i) International Laws with their source in treaties :
Almost all international lawyers and all state governments are in agreement
that at the heart of international law is the crucial principle of pacta sunt
servanda (Every treaty in force is binding upon the parties to it and must be
performed by them in good faith).
This, however, does not mean that a state will invariably comply with the
principle, just as in domestic jurisdiction not all will obey all laws. But two
obvious points need to be made.
First, the fact of occasional non-compliance in the domestic realm does not
negate the law. The same is true internationally.
Secondly, internationally even if there is no direct sanction, the act of
breaking treaty obligations will rarely be cost free, though it may be nothing
more than a level of opprobrium from other states, or a hesitancy upon their
part to enter into future international legal relations.
Robert F. Turner of the University of Virginia Law School : How do we know
that international treaty commitments are legally binding?
Because every single one of the 185 [now more] states that are members of
the United Nations, and every one of the few states that are not, acknowledge
that fact. Article 26 of the Vienna Convention on the Law of Treaties
recognises the fundamental and historic principle of pacta sunt servanda:
Every treaty in force is binding upon the parties to it and must be performed
by them in good faith. Stalin, Hitler, Kim Il Sung, Gadhafi and Saddam
Hussein all either denied the allegations against them, pretended that their
acts of flagrant international aggression were really in self-defence to a prior
attack by their victims, or proffered some other legal basis for their conduct.
Not one of them asserted that treaties were not binding, because they
realised that no country would accept such a patently spurious assertion.
(ii) International Laws with their source in customs : Following are the issues
with 'customary' international law :
there are problems in defining when customary international law comes into
existence,
there are difficulties in proving opinio juris,
there are problems with the position of the persistent objector, and
there are problems with flexibility and malleability.
CONCLUSION :-
Prof Michael Glennon of the Fletcher School of Diplomacy argued (in reference to
intervention in Kosovo in particular and the question of the use of force in
general) that it is no longer proper, sensible or accurate to speak of the Charter
of the United Nations as bringing legal control over the use of force in
international relations. According to him, "With the close of the twentieth
century, the most ambitious of international experiments, the effort to
subordinate the use of force to the rule of law, almost came to an end the
victim of a breakdown in the consensus among member states concerning the

most basic of issues : the scope of state sovereignty. Never a true legalist order,
the use-of-force regime of the UN Charter finally succumbed to massive global
disagreement pitting North against South and East against West over when
armed intervention in states internal affairs was permissible". He went on to
conclude that such had been the extent of the violation of Charter rules that it
made little sense to speak any more of a legal regime.
It is pertinent to mentioned here that the General Assembly of UNO should make
fruitful efforts in making international a strong law. The above suggestions will
make International Law equivalent to a Municipal Law to some extent. With the
growth of Internationalism and the feeling of universal brotherhood international
law shall also become effective and powerful.
Go To Module-1 QUESTIONS
Go To Contents
Discuss the theories regarding the relation between international law and state
law. (Nov-2012)
Explain : differences between international law and domestic law
Explain : International Law and Municipal Law
Discuss regarding relationship between the states and International Laws. (Dec-2016)
ANSWER :
Refer :
page-49/680 - https://www.scribd.com/doc/314397588/Public-International-Law
What is International Law ?
<Read from elsewhere in this doc>
What is State Law Or Domestic Law Or Municipal Law ?
Municipal law is the national, domestic, or internal law of a sovereign state defined
in opposition to international law. Municipal law includes not only law at the
national level, but law at the state, provincial, territorial, regional or local levels.
While, as far as the law of the state is concerned, these may be distinct categories
of law, international law is largely uninterested in this distinctions and treats them
all as one. Similarly, international law makes no distinction between the ordinary
law of the state and its constitutional law.
International Law does not ignore municipal law. Municipal law is relied upon
largely to evidence customary law, general principles of law and state practice.
International law leaves plenty of questions to municipal law, to answer. Municipal
law cannot be invoked as a justification for the violation of International Law.
Article 27 of the Vienna Convention on the Law of Treaties provides that, where a
treaty conflicts with a state's municipal law (including the state's constitution), the
state is still obliged to meet its obligations under the treaty. The only exception to
this rule is provided by Article 46 of the Vienna Convention, where a state's
expression of consent to be bound by a treaty was a manifest violation of a "rule of
its internal law of fundamental importance.
Illustration :
Alabama Claims Arbitration case, where the US objected strongly when Britain
allowed a confederate ship to sail from Liverpool to prey upon the American
shipping segment.
The court held that the fact that Britain had no legislation necessary to
prevent the construction or departure of the vessel could not be put forward
as a defense, and as a consequence of the decision of the court, Britain was
made liable to pay damages for the depredations caused by the warship.
Thus a state cannot adduce as against another state, its own constitution with
a view to evading obligations incumbent upon it under International Law or
treaties in force.
Relationship Between International and Municipal Law :
It is important to understand how international law principles become part of
domestic law, and to explain what happens if the rules conflict.
The theories of monism and dualism are the two main theories that explain the
relationship between international and municipal law.
Monism (Incorporation Theory) :
In this theory, all law is part of a universal legal order and regulates the conduct
of the individual State. The difference in the international sphere is that the
consequences are generally attributed to the State.
Since all law is part of the same legal order, international law is automatically
incorporated into the domestic legal order.
Some monist theorists consider that international law prevails over domestic law
if they are in conflict; others, that conflicting domestic law has some operation
within the domestic legal system.
Dualism (Transformation Theory) :
This theory holds that international law and domestic law are separate bodies of
law, operating independently of each other.
Under dualism, rules and principles of international law cannot operate directly in
domestic law, and must be transformed or incorporated into domestic law before
they can affect individual rights and obligations.
Harmonisation : Neither monism nor dualism can adequately explain the
relationship between international and domestic law, and alternative theories have
developed which regard international law as having a harmonisation role. If there is
a conflict, domestic law is applied within the domestic legal system, leaving the
State responsible at the international level for any breach of its international law
obligations
Municipal law is an efficient indicator of a countrys stance, or position on a
particular sphere of functioning. As a consequence thereof, an international dispute
redressing forum would be right in vesting reliance upon the municipal legal
systems of the disputing states before arriving at a feasible solution. To pinpoint an
example, is the Serbian Loans case, where reliance was vested in the domestic
laws of Serbia in the course of deciding the dispute.
Municipal law is also evidence of state practice, and the general principles of law. It
is mandatory to keep in mind that where an international court is considering the
concepts of national law, when there is an explicit absence of such concepts in the
realm of International Law, care should be taken to avoid all cases of automatic
transposition.
Municipal Law is also a great index to the extent of compliance or non-compliance
with International Law and obligations.
Difference Between International Law and Domestic Law :
The main differences between international and domestic law are thought to be the
sources of law, its subjects, and subject matter.
International law derives from the collective will of States, its subjects are the
States themselves, and its subject matter is the relations between States.
Domestic law derives from the will of the sovereign or the State, its subjects are
the individuals within the State, and its subject matter is the relations of
individuals with each other and with government.
International law is concerned with the rights and duties of States in their relations
with each other and with international organisations.
Domestic (municipal or national) law, the law within a State, is concerned with
the rights and duties of legal persons within the State.
International law also differs from domestic law in two central respects :
1. The law-making process There is no supreme law-making body in
international law. Treaties are negotiated between States on an ad hoc basis and
only bind States which are parties to a treaty. The General Assembly of the
United Nations is not a law-making body, and so its resolutions are not legally
binding. However, UN Security Council resolutions to take action with respect to
threats to peace, breaches of the peace, and acts of aggression, are binding on
the 192 member States.
In India the law making process for domestic law consists of legislatures
(central and state) and common law principles developed by courts.

2. Enforcement :
International law has no international police force to oversee obedience to the
international legal standards to which States agree or that develop as
international standards of behaviour. Similarly, there is no compulsory
enforcement mechanism for the settlement of disputes. However, there are an
increasing number of specialised courts, tribunals and treaty monitoring
bodies as well as an International Court of Justice. National laws and courts
are often an important means through which international law is implemented
in practice. In some instances, the Security Council can authorise the use of
coercive economic sanctions or even armed force. For example, in 199091
when Iraq invaded and occupied Kuwait the international community used
armed force to enforce international law (resolutions of the Security Council).
Subsequent controversy about the use of armed force against Iraq highlights
how difficult it can be to obtain the necessary authorisation from the Security
Council under the United Nations Charter. In international law, that is the only
legitimate way that collective armed force can be used.
In contrast, in India, domestic laws are enforced through executive actions
of Governments and adjudicatory actions of Courts.
International law is horizontal all states are sovereign and equal
Municipal law is hierarchical or vertical - the legislature is in a position of
supremacy and enacts binding legislation
International law is adopted by states as a common rule of actions among
themselves
Issued by a particular political superior for the observance of of those under the
authority within a state
International law is derived from customs and traditions, international dimensions,
general principles including treaties
Domestic laws are enacted by law-making body/ authority
International laws governs the relationship between and among states
Domestic laws governs the relationship between the individuals and the state
International law produces collective liability in case of violations and sanctions are
for the state itself
If there is a violation of a municipal law, the aggrieved party will avail
administrative and judicial processes within the state. Entails individual liability
Similarities between Domestic Law and International Law :
Domestic law is the statutes and (to a lesser degree) regulations of a particular
country which explain how to interpret the statutes of that country or its
subdivisions.
International law is what is called a "treaty," and usually does not directly create
a crime or create or prohibit anything by individuals. Instead a treaty or
"international law" sets an obligation of a country that is a signatory to the
treaty to make a domestic law which does something related to that treaty. This
can make certain actions illegal, prohibit or require something to be done, or set
standards for certain practices.
Typically, violation of international law carries no penalties; it is only the domestic
law of the jurisdiction where the person is from (if they are outside of a country) or
the jurisdiction where the act was committed that determines whether a crime was
or was not committed.
Development of international law in India :
<Read this from elsewhere in this doc>
It explains, in case of India, relationship of International laws and domestic laws.
Illustration : Mangalore Air INDIA Express Crash :
The crash of a passenger aircraft at Mangalore on 22 May 2010 resulted in the
loss of 158 lives. This accident was the third deadliest aviation disaster in India.
The Civil Aviation Ministry advised that the Airline will provide up to 72 lakh
(US$146,020) to family members of each victim as per the provisions of the
Indian Carriage by Air (Amendment) Act 2009, which follows the Montreal
Convention which imposes on Air India a minimum liability of one lakh Special
Drawing Rights (SDRs) (equivalent to Rs 70 lakh) per passenger in the event of
death in an air accident. SDR is a special currency issued by International
Monetary Fund to which India was a signatory.
This incident is a very good example of how international law has been accepted
interpreted and executed in a municipal court of a sovereign state thus
emphasising on the importance of international law and its co existence among
municipal law.
Conclusion :
The practise of states regarding the relationship of international law and municipal
law is divergent. Application of international law depends largely upon the
legislature as well as the judiciary of the state. They are expected to take
cognizance and endeavour to honour the international obligations of the state.
Neither municipal law nor international law is supreme, but they are concordant to
each other. They both have been made to solve problems of human beings in
different areas and hence in my opinion should be given equal standing in all
proceedings of justice.
No matter what the context of a role that municipal law has in the International
Legal scenario, at **NO** point can the absence or presence of a particular factor
in municipal law stand as the ground for the evasion of an International obligation.
Go To Contents
State the definition and concept of public international law and private international
law. (Nov-2011, Oct-2013)
ANSWER :
https://en.wikipedia.org/wiki/Conflict_of_laws
https://www.scribd.com/doc/44220856/Conflict-of-Laws-Private-International-
Law-Notes
What is "International Law" ?
----> already discussed above.
Types of International Law : The term "international law" can refer to three distinct
legal disciplines :
(1). Public international law
(2). Private international law
(3). Supranational law or the law of supranational organizations
(1). Public international law (or the law of nations), governs the relationship
between provinces and international entities. It includes these legal fields: treaty
law, law of sea, international criminal law and the laws of war or international
humanitarian law.
Public international law is a body of customary or conventional rules which are
considered as legal binding by civilized states in their intercourse with each other
and is concerned solely with the rights and obligations of sovereign states.
The public international law is concerned solely with rules concerning the rights
and obligation of the states (i.e. countries) interest. Whereas, generally,
speaking individuals and their dealings are the sole concerns of private
international law.
Article 13 of the United Nations Charter obligates the UN General Assembly to
initiate studies and make recommendations which encourage the progressive
development of international law and its codification. Evidence of consensus or
state practice can sometimes be derived from intergovernmental resolutions or
academic and expert legal opinions (sometimes collectively termed soft law).
(2). Private international law (or the conflict of laws) may be defined as voluntarily
chosen body of law developed to resolve private, non-state disputes involving more
than one jurisdiction or one foreign law element.
The modern conflict of laws is generally considered to have begun in Northern

Italy during the late Middle Ages and in particular at trading cities such as
Genoa, Piza and Venice.
Maritime law was also a great driver of international legal rules; providing for the
enforcement of contracts, the protection of shipwrecked sailors and property,
and the maintaining of harbours.
In England King constituted special courts for foreigners, the staple courts and
pie-powder courts.
Private international law addresses the following questions of,
A. Jurisdiction : Whether the local court, or forum, has the power to hear and
determine the case, or whether the contacts the case has with another state
or country limit or otherwise restrain the forum courts power or willingness to
decide the case
B. Recognition and enforcement of foreign judgments : Where the case has
proceeded to judgment in the other state or country, whether that judgment
can be recognized or enforced in the forum
C. Choice of law : (i) Even if the forum court has, and will, exercise the
jurisdiction to decide the case, whether it will decide the case in accordance
with the law of the forum (lex fori), or in accordance with the law of the other
state or country, (ii) Is the forum or foreign law to be the law of the cause
(lex causae) that disposes of the case, and how does the forum court choose
one or the other? (iii) This question is naturally only important if application of
the forums law is likely to give a different result to the application of the
foreign law that is, where there is a conflict of laws
Private international law deals with cases in which some relevant fact has a
geographical connection with a foreign country and may on that ground raise a
question as to the application of Indian or some other appropriate foreign law to
they determination of the issue or as to the exercise of jurisdiction by Indian or
foreign courts.
In the case of private international law, the disputes are of a private character.
Moreover, unlike public international law, private international law of every state
is different. Also there are as many systems of private international law as there
are systems of municipal law, thus, we have rules of private international law in
the fields of birth, marriage, divorce insolvency, wells contracts death and the
like.
Today corporations are increasingly capable of shifting capital and labor supply
chains across borders, as well as trading with overseas corporations. This
increases the number of disputes of an inter-state nature outside a unified legal
framework, and raises issues of the enforceability of standard practices.
Increasing numbers of businesses use commercial arbitration under the New
York Convention 1958. Example : Thus, where two Englishmen make a contract
in Portugal for the sale of goods situated in Lisbon, payment to be made in
London, an English court would certainly recognize and apply Portuguese law as
far as it affected the validity of the contract.
HOW is Private International Law Applied ?
The court must first decide whether it has jurisdiction and, if so, whether it is
the appropriate venue given the problem of forum shopping.
The next step is the characterisation of the cause of action into its component
legal categories which may sometimes involve an incidental question (also
note the distinction between procedural and substantive laws).
The next step is to determine which of the competing laws should be applied
to each issue. A key element in this may be the rules on renvoi {The
Doctrine of Renvoi is the process by which the court adopts the rules of a
foreign jurisdiction with respect to any conflict of law that arises. The system
of renvoi, which literally means "send back", is an attempt to prevent forum
shopping}.
Once it has been decided which laws to apply, those laws must be proved
before the forum court and applied to reach a judgment.
The successful party must then enforce the judgment which will first involve
the task of securing cross-border recognition of the judgment.
(3). Supranational law or the law of supranational organizations, which concerns
regional agreements where the laws of nation states may be held inapplicable when
conflicting with a supranational legal system when that nation has a treaty
obligation to a supranational collective.
Systems of "supranational law" arise when nations explicitly cede their right to
make certain judicial decisions to a common tribunal.[13] The decisions of the
common tribunal are directly effective in each party nation, and have priority
over decisions taken by national courts.
Examples :
The European Union is an example of an international treaty organization
which implements a supranational legal framework, with the European Court
of Justice having supremacy over all member-nation courts in matter of
European Union law.
There are numerous international bodies created by treaties adjudicating on
legal issues where they may have jurisdiction. These include, ones claiming
universal jurisdiction like "United Nations Security Council". Others are : the
United Nations International Court of Justice, and the International Criminal
Court (when national systems have totally failed and the Treaty of Rome is
applicable) and the Court of Arbitration for Sport.
Need for Private international law : The very purpose of private international law is to
avoid conflict of laws of two countries on the same subject.
Indian court is called upon to try the question of succession to the property of a
person who died in India leaving property in India and abroad.
Petition of divorce presented by an Indian domiciled in India who had married an
English woman in England.
Custody of children in India of Indian parents domiciled abroad.
Suits connected with foreign country
Question of succession
Question of validity of marriage
Petition of divorce
Custody of children
Supply of goods
Torts committed on short visits
Enforceability of foreign judgment - can a foreign judgment be executable in India.
Go To Contents
The main thrust of public international law shall be development of human rights
law and jurisprudence at international, regional and national levels Explain this
statement. (Nov-2011)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/International_human_rights_law
page-155 of "101743038-Public-International-Law-Guide.pdf"
http://www.ijrcenter.org/ihr-reading-room/overview-of-the-human-rights-
framework/
Intro : What is "International human rights law" ?
Most acceptable definition of Human Rights : Human rights are those activities,
conditions, and freedoms that all human beings are entitled to enjoy, by virtue of
their humanity. They include civil, political, economic, social and cultural rights.
Human rights are inherent, inalienable, interdependent, and indivisible, meaning
they cannot be granted or taken away, the enjoyment of one right affects the
enjoyment of others, and they must all be respected.
International human rights law is the body of customary international law
designed to promote human rights on social, regional, and domestic levels.

As a form of international law, international human rights law is primarily made up
of treaties, agreements between states intended to have binding legal effect
between the parties that have agreed to them; and customary international law,
rules of law derived from the consistent conduct of states acting out of the belief
that the law required them to act that way. Other international human rights
instruments while not legally binding contribute to the implementation,
understanding and development of international human rights law and have been
recognized as a source of political obligation.
Enforcement of international human rights law can occur on either a domestic, a
regional or an international level. States that ratify human rights treaties commit
themselves to respecting those rights and ensuring that their domestic law is
compatible with international legislation. When domestic law fails to provide a
remedy for human rights abuses, parties may be able to resort to regional or
international mechanisms for enforcing human rights.
The concept of human rights makes sense only if they are granted to all individuals
regardless of culture and because only of their membership of the human race.
human rights must be clearly definable and define both the holders of the rights
and those having reciprocal duties to provide them.
Need for International Human Rights Law :
In response to the experience of the Second World War resulting from a totalitarian
and racist Nazi regime and the desire to prevent a recurrence of such a
phenomenon, the Universal Declaration of Human Rights (UDHR) was adopted by
the United Nations General Assembly on 10 December 1948 at the Palais de
Chaillot, Paris.
In the post-World War II period, international consensus crystallized around the
need to identify the individual rights and liberties which all governments should
respect, and to establish mechanisms for both promoting States adherence to their
human rights obligations and for addressing serious breaches.
National governments as the guarantors, or violators, of HR :
The concept of human rights has close links with natural law the theory that
argues that beyond the laws created by people there are natural or divine laws
with which created laws must conform.
However, only governments are in a position to put in place the laws and policies
necessary for protection of human rights and to regulate private and public
practices that impact individuals enjoyment of those rights. Therefore, we think
of national governments (States) as the guarantors, or violators, of human
rights.
National, Regional and International framework :
In the decade following the 2nd World War, national governments cooperated in
the establishment of (i) United Nations (UN), (ii) the Organization of American
States (OAS), and (iii) Council of Europe (COE), each including among its purposes
the advancement of human rights.
By the end of the 1950s, these intergovernmental organizations then prepared
non-binding declarations or binding treaties which spelled out the specific liberties
understood to be human rights, including the Universal Declaration of Human
Rights, American Declaration of the Rights and Duties of Man, and the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
In subsequent decades saw creation of additional oversight mechanisms like,
Inter-American Court of Human Rights,
European Committee of Social Rights,
regional human rights treaties and monitoring mechanisms,
African Commission on Human and Peoples Rights and the African Court on
Human and Peoples Rights to monitor State compliance with the African Charter
on Human and Peoples Rights
decline of the Soviet Union spurred the formation of the Organization for
Security and Co-operation in Europe (OSCE) which recognized dialogue on
human rights, political and military relations, and economic development as
being equally important to sustained peace and stability across Europe and the
(former) Soviet States.
In Southeast Asia, the Association of Southeast Asian Nations (ASEAN) created
the ASEAN Intergovernmental Commission on Human Rights, and
the League of Arab States in 2009 created the Arab Human Rights Committee.
The UN High Commissioner for Human Rights supports and coordinates the UNs
human rights activities, in addition to independently addressing issues of concern
through country visits, dialogue with stakeholders, and public statements, much as
rapporteurs do.
Discussion :
International human rights law is, essentially, a set of rules governing State
behavior vis-a-vis individuals and, at its most basic, requires States to ensure that
people can enjoy their fundamental freedoms.
Like national constitutions, which are covenants between governments and their
citizens, international human rights treaties are covenants between States and the
international community, whereby States agree to guarantee certain rights within
their own territories.
When States ratify human rights treaties, they agree to both refrain from violating
specific rights and to guarantee enjoyment of those rights by individuals and
groups within their jurisdictions.

Regional and international oversight bodies contribute to State compliance and
provide opportunities for redress and accountability that may be non-existent or
ineffective at the national level.
However, becoming party to a treaty or agreeing to oversight by a supranational
body generally remains voluntary. The level of participation in the international
human rights framework varies among States.
Universal jurisdiction and its limitations :
Universal jurisdiction is a controversial principle in international law, whereby
states claim criminal jurisdiction over people whose alleged crimes were
committed outside the boundaries of the prosecuting state, regardless of
nationality, country of residence or any other relationship to the prosecuting
country. The state backs its claim on the grounds that the crime committed is
considered a crime against all, which any state is authorised to punish.
The concept of universal jurisdiction is therefore closely linked to the idea that
certain international norms are erga omnes (owed to the entire world
community), as well as the concept of jus cogens ("compelling law", a
fundamental principle of international law that is accepted by the international
community of states as a norm from which no derogation is permitted).
In 1993, Belgium passed a "law of universal jurisdiction" to give its courts
jurisdiction over crimes against humanity in other countries. In 1998, Augusto
Pinochet was arrested in London following an indictment by Spanish judge
Baltasar Garzn under the universal-jurisdiction principle.
The principle is supported by Amnesty International and other human rights
organisations, which believe that certain crimes pose a threat to the
international community as a whole, and that the community has a moral duty
to act.
Limitations : Others, like Henry Kissinger, argue that "widespread agreement
that human rights violations and crimes against humanity must be prosecuted
has hindered active consideration of the proper role of international courts.
Universal jurisdiction risks creating universal tyranny that of judges".
Current Status :
The enforcement of international human rights law is the responsibility of the
nation state; it is the primary responsibility of the State to make the human rights
of its citizens a reality.
In practice, many human rights are difficult to enforce legally, due to the absence
of consensus on the application of certain rights, the lack of relevant national
legislation or of bodies empowered to take legal action to enforce them.
In over 110 countries, national human rights institutions (NHRIs) have been set up
to protect, promote or monitor human rights. Although not all NHRIs are compliant
with the Paris Principles (1991), the number and effect of these institutions is
increasing. The Paris Principles list a number of responsibilities for national
institutions.
Conclusions :
The rise and rise of human rights is probably the most startling development in
international law since the Second World War. In placing the protection of
individuals at the heart of international law the old state-centric international law
has been changed forever. Perhaps the most remarkable effect of this has been on
the fundamental concept of sovereignty. In the twenty-first century no state would
argue that the question of its treatment of its own nationals is a matter of only
domestic concern. And here the role of non-governmental organisations (NGOs)
has also been unprecedented.
Go To Contents
Short note : Universal Declaration of Human Rights (UDHR)

ANSWER :
Intro :
<Include definition/history of International Human Rights Law>
The UDHR was explicitly not intended to be a legal document. But the UDHR
remains a remarkable document and nearly all states would now argue that it is
almost entirely consistent with their aims and aspirations. In retrospect what
perhaps seems most surprising is not that the communist states merely abstained
from, rather than voting against, a Declaration that included many civil and political
rights that they obviously had no intention of accepting; but rather that the radical
economic, social and cultural rights were acceptable to the United States in
particular. Such has been the widespread acceptance of the Declaration that many
of its provisions are regarded as having the status of customary rules, although
this was never the intention.
Summary of UDHR : The UN Centre for Human Rights usefully summarizes the
provisions of the UDHR as follows :
Article 1 All human beings are born free and equal.
Article 2 Everyone is entitled to the same rights without discrimination of any kind.
Article 3 Everyone has the right to life, liberty, and security.
Article 4 No one shall be held in slavery or servitude.
Article 5 No one shall be subjected to torture or cruel or degrading treatment or
punishment.
Article 6 Everyone has the right to be recognized everywhere as a person before
the law.
Article 7 Everyone is equal before the law and has the right to equal protection of
the law.
Article 8 Everyone has the right to justice.
Article 9 No one shall be arrested, detained, or exiled arbitrarily.
Article 10 Everyone has the right to a fair trial.
Article 11 Everyone has the right to be presumed innocent until proven guilty.
Article 12 Everyone has the right to privacy.
Article 13 Everyone has the right to freedom of movement and to leave and return
to ones country.
Article 14 Everyone has the right to seek asylum from persecution.
Article 15 Everyone has the right to a nationality.
Article 16 All adults have the right to marry and found a family. Women and men
have equal rights to marry, within marriage, and at its dissolution.
Article 17 Everyone has the right to own property.
Article 18 Everyone has the right to freedom of thought, conscience and religion.
Article 19 Everyone has the right to freedom of opinion and expression.
Article 20 Everyone has the right to peaceful assembly and association.
Article 21 Everyone has the right to take part in government of ones country.
Article 22 Everyone has the right to social security and to the realization of the
economic, social and cultural rights indispensable for dignity.
Article 23 Everyone has the right to work, to just conditions of work, to protection
against unemployment, to equal pay for equal work, to sufficient pay to ensure a
dignified existence for ones self and ones family, and the right to join a trade
union.
Article 24 Everyone has the right to rest and leisure.
Article 25 Everyone has the right to a standard of living adequate for health and
well- being, including food, clothing, housing, medical care and necessary social
services.
Article 26 Everyone has the right to education.
Article 27 Everyone has the right to participate freely in the cultural life of the
community.
Article 28 Everyone is entitled to a social and international order in which these
rights can be realized fully.
Article 29 Everyone has duties to the community.

Article 30 No person, group or government has the right to destroy any of these
rights.
Conclusion : While such summaries are superfluous, it is important in order to
appreciate the range of lofty ideals expressed and the limitations upon the protections
that have been afforded since 1948. The economic, social and cultural rights seem to
the governments of many Western states to be entirely anachronistic, while many of
the civil and political rights are regularly abused by most states.
Go To Contents
State in detail, origin and development of international law in India. (Nov-2011, Nov-
2012)
ANSWER :
Refer :
Development of Modern International Law and India By R P Anand, Professor
Emeritus of International Law, Jawaharlal Nehru University, New Delhi -
http://publicinternationallaw.in/sites/default/files/articles/LectureII- article.pdf
http://oppenheimer.mcgill.ca/IMG/pdf/SK_Agarwal.pdf
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=29c6ccdf-f94e-
42e5-8bdd-64f58d2a962c&txtsearch=Subject:%20Miscellaneous
http://www.allahabadhighcourt.in/event/InternationalLawinAncientIndiaRKDave.pdf
http://www.politicalsciencenotes.com/articles/international-law-definition-
evolution-and-scope-of-international-law/302
The discussion on the topic may be spread over 4 distinct sub-topics :
(1) Ancient-Medieval India and International Law,
(2) Pre-independence India and International Law,
(3) Post-independence India and International Law,
(4) Indian judiciary and International Law,
(1) Ancient-Medieval India and International Law :
Although European writers, with a tremendous sense of pride, assert that modern
international law is a product exculsively of the Western European Christian
civilization, and that it is not more than four or five hunderd years old, there is little
doubt that ancient societies like India, China, Egypt and Assyria had their own
much older systems of inter-state conduct which had parallel, if not similar, rules of
inter-state relations as modern internaional law. It is true, however, that these
earlier systems were generally confined to their own civilizations in diffenrent

geographical areas because means of travel and communications were neither so
efficient nor fast.
Indians had developed sophisticated rules of inter-state conduct which had been
clearly defined and fully explained in numerous well-respected texts dealing with
law, like Arthasastra, Manu Smriti, Narada Smriti, and others.
Ancient India (up to 500AD) : Even during Ancient India was aware of much of
international law when the rest of the world was in uncivilized stage. References
have been made to these rules in Koutilyas Arthshastra. For example, in the post-
Vedic period there existed certain rules according to which wars were declared, and
waged, treaties were renounced, alliances were negotiated and ambassadors were
accredited Ambassadors were not to be killed, because it were they who gave the
message of their rulers to the foreign rulers. They were never convicted whether
disclosed good messages or bad ones. Indian Rulers observed a regular code of
war. References have been made to these rules in the Mahabharata and in other
books of ancient times.
Medieval India (8th to 18th century) : During this period India had commercial and
cultural intercourse with other nations and Indian sovereigns had diplomatic
relations with other sovereign States. Indian merchants carried on trade on a large
scale with nations as far apart as China, Rome, Egypt and South-East Asia. In
course of time, Indian jurists developed a Code of Law governing relations between
Indian sovereigns and foreign States and between Indian States inter-se.
(2) Pre-independence India and International Law :
With all the terrible destruction and loss of life, which left Europe in ruins, it was
felt that an international organization must be established to avert war in future. At
the Paris Peace Conference in 1919, US President Woodrow Wilson was in the
forefront of statesmen who suggested the establishment of a League of Nations to
avoid war in future. Although India was still a British colony, part of the British
Empire, because of its tremendous contribution in war effort and supply of
hundreds of thousands of soldiers who fought for the cause of peace, Great Britain
insisted that India be invited at the Paris Peace Confereenc to sign the Peace
Treaty. The purpose of Great Britain in insisting on the participation of British
Dominions and India was, of course, to get more influence and votes in the
Conference. Once India signed the Peace Treaty, however, India was permitted to
become an original member of the League of Nations, even over the opposition of
President Woodrow Wilson and several other countries. On the basis of its
membership of the League of Nations,India became a founding member of the
United Nations, even though it was still a British colony. It was invited to
participate in the San Francisco Conference in 1945 for drafting of the UN Charter.
Specific instances of Indian contribution to development of International Law :
Even before India became formally independent in March 1947, Jawaharlal

Nehru called the Asian Relations Conference to challenge European imperialism
and to put pressure on the international community to accept Indonesia s
independence. He asserted : For too long have we of Asia been petitioners in
Western courts and chancelleries. The story must now belong to the past. We
propose to stand on our own legs and to co-operate with all others who are
prepared to co-operate with us. We do not intend to be the playthings of the
others...The countries of Asia can no longer be used as pawns by others; they
are bound to have their own policies in world affairs.
When, the Dutch were reluctant to relinquish their control over Indonesia and
India felt a special involvement in the Indonesian struggle. The Interim Indian
Government, under the leadership of Nehru in September 1946, withdrew Indian
troops from Indonesia where, as part of the Allied forces of occupation, they had
clashed with the nationalist forces. Netherlands officially acknowledged
Indonesia's independence in 1949.
Liberation of Pondicherry and Goa : Post-independent India had small colonial
enclaves of France (Pondicherry) and Portugal (Goa). While France realized the
changed international situation, and was persuaded to agree to hand over
Pondicherry and its other small possessions to India in 1954, Portugal refused to
accept such advice. India had no choice but to use very limited force against
Portugal to liberate Goa in 1961.
Thus, India played very important role in history of modern International Law by
playing an active role in Decolonization and evolution of United Nations.
International law is no longer an exclusive preserve of people with European blood.
(3) Post-independence India and International Law :
Post-partition, although it was a new India which emerged after independence,
India was accepted as the ORIGINAL member of the United Nations. It was only
Pakistan which was deemed a new state and had to apply for membership.
Types of implementation of International Law : Although international law
requires a State to carry out its international obligations, domestic legal
systems of different countries vary in respect of implementation of
international law at national level. States follow different practices in
incorporating treaties within its internal legal structure, so that the provisions
can be implemented by State authorities. There two schools of law on the
relationship between international law and municipal law, (i) monists, and (ii)
dualists.
(i) monist : In nations that follow 'monist' school, as soon as a State has
ratified or acceded to an international agreement, that international law
becomes national law. Under such systems, treaties are generally considered
to be self-executing treaties.
(ii) dualist : In other nations, international law does not automatically

become part of national law. International law in these countries is not self-
executing, that is, it does not have the force of law without the passage
of supplementary domestic national legislation.
MOST of the nations, including India, follow the dualist theory for the
implementation of international law at domestic level. Accordingly,
International treaties do not automatically become part of national law in India.
It requires the legislation to be made by the Parliament for the
implementation of international law in India.
Position of pre-independence laws, treaties and customs : Prior to the adoption of
the Constitution, India followed the erstwhile British system; The constitution of
India did not modify the position, given that it provided for the continued operation
of the law in force immediately preceding the commencement of the Constitution.
Also, Municipal courts have the right to apply the provisions of any treaty if it is
incorporated into the domestic legal regime, and customary law as already being a
part of the law of the land. As long as the customary law is not in any manner
inconsistent with the domestic law of India, it shall be construed to be a part of
domestic law.
Specific Constitutional Provisions :
Definition : 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 treaty obligations in the dealings of
organized peoples with one another; and
(d) encourage settlement of international disputes by arbitration.
Article 51 falls within the ambit of Part IV (Directive Principles of State Policy) of
the Constitution of India, which is the non-enforceable portion of the
constitution.
Note :
Contemporary International Laws essentially came into existence either through
treaties (which require the consent of parties) or through custom.
Constitution of India, in Art-51(c), uses the phrase "international law and treaty
obligations". ie In Constitution of India the phrase "international law" implies
customary international law, and phrase "treaty obligations" covers such other
part of modern "International Law" that has its origin in treaties alone.
Articles 246 and 253 of the Constitution read with Entries 13 and 14 of List I (Union
List) of the Seventh Schedule of the Indian Constitution give the Government of
India the authority to implement any international treaty that the country has
signed.
Articles 246 (Parliament has exclusive power to make laws on subjects in Union
List),
Article 253 (Parliament has power to make any law for the whole or any part of
the territory of India for implementing any international treaty, agreement or
convention)
Under Article 53, the executive powers of the Union rest with the President of
India.
Under Article 73 of the Indian Constitution confers upon the government of India
executive powers.
Thus, India follows the dualist theory of implementing international law through
national laws. It means, that every international treaty, declaration, accord or
agreement, has to be passed as a Legislation for the courts to implement it as law.
Thus, international laws cannot automatically form part of national laws unless they
are incorporated by the Parliament through legislation.
Article 51(c) ("foster respect for international law and treaty obligations in the
dealings of organized peoples with one another") of the Indian Constitution is the
instrument by which International Law becomes enforceable by laws in India.
Since, Article 51(c) is a Directive Principle of State Policy, it is just directive and not
enforceable. Yet the states are morally duty bound by enforce these directives
though one cannot bring a suit in the Courts of the country if the state does not
fulfill its moral obligations with regards to these directive principles.
(4) Indian judiciary and International Law : Treaties are made to be performed. It is
a fundamental principle of statutory interpretation in Indian domestic law that,
wherever possible, a statutory provision must be interpreted consistently with
India's international obligations, whether under customary international law or
an international treaty or convention. If the terms of the legislation are not
clear and are reasonably capable of more than one meaning, the treaty itself
becomes relevant, for there is a prima facie presumption that Parliament does
not intend to act in breach of international law, including therein a specific
treaty obligation; and if one of the meanings which can reasonably be ascribed to
the legislation is consonant with the treaty obligations and another or others are
not, the meaning which is consonant is to be preferred
The Supreme Court and the High Courts as the courts of records are the custodian
of the constitution has an awesome responsibility. Articles 129 and 215
recognize the existence of such power in the Supreme Court and the High Courts
as they exercise inter alia the sovereign judicial power.
Indian judiciary, though not empowered to make legislations, has interpreted
Indias obligations under international law into the constitutional provisions
relating to implementation of international law in pronouncing its decision in

several cases concerning issues of international law. Through "judicial activism
the Indian judiciary has played a proactive role in implementing India s
international obligations under International treaties, especially in the field of
human rights and environmental law.
The self-induced belief of the courts earlier was that treaties are not and cannot be
the law of the land unless incorporated by Indian law officially. However this
assumption has proved false and misleading. First, Indian courts in a marvelously
innovative stream of cases culminating in the Vishaka v. State of Rajasthan on
gender discrimination have signaled that some human right and justice related
treaties may be part of Indian law without being enacted. AND, Parliament does
not have a post-entry control on whether a treaty is binding in all cases.
Case-laws : International Treaty for Construction of law : Wherever necessary,
Indian courts can look into International Conventions as an external aid for
construction of a national legislation.
The Supreme Court in Visakha v. State of Rajasthan, took recourse to
International Convention for the purpose of construction of domestic law. The
Court observed : In the absence of domestic law occupying the field to
formulate effective measures to check the evil of sexual harassment of
working women at all work places, the contents of International Conventions
and norms are significant for the purpose of interpretation of the guarantee
of gender equality, right to work with human dignity in Articles 14, 15,
19(1)(g) and 21 of the Constitution and the safeguards against sexual
harassment implicit therein. Any international convention not inconsistent
with the fundamental rights and in harmony with its spirit must be read
into those provisions to enlarge the meaning and content thereof, to
promote the object of the Constitutional guarantee.
In Jolly George Varghese and Another v. The Bank of Cochin, the Court dealt
with the emerging links between domestic law and human rights by reconciling
Article 11 of the International Covenant on Civil and Political Rights (ICCPR) with
Contractual provisions under municipal law to protect human rights of a the civil
debtor whose personal liberty was at stake due to judicial process under Section
51 (Proviso) and Order 21, Rule 37, Civil Procedure Code.
In Additional District Magistrate, Jabalpur v. Shivakant Shukla, the Supreme
Court amplified the scope of Article 21 (right to life) of the Indian constitution
by referring to Articles 862 and 963 of the Universal Declaration of Human
Rights (UDHR)
Sikri, C.J. Supreme Court in Kesavananda Bharathi vs. State of Kerala,
observed as under : It seems to me that, in view of Article 51 of the directive
principles, this Court must interpret language of the Constitution, in the light of
the United Nations Charter and the solemn declaration subscribed to by India.
Herein above, the judge was referring to Universal Declaration of Human
Rights - respect for human dignity and fundamental human rights. Lord
Denning in Corocraft v. Pan American Airways (1969) 1 All E.R. 82; 87 "it is
the duty of these courts to construe our Legislation so as to be in conformity
with international law and not in conflict with it."
In State of Madras v. G.G.Menon, the Supreme Court held that the Indian
Extradition Act, 1903 had been adopted, but the Fugitive Offenders Act of the
British Parliament had been left alone. The Court stated that the provisions of
the Act could only be made applicable to India by incorporating them with the
appropriate changes into an act of Indian Parliament and enacting on Indian
Fugitive Offenders Act. Since there were no laws on the lines of the act, the
Fugitive Offenders Act could not be held to have force in India by way of Article
372 of the Constitution.
Thus, with the help of judicial activism the Indian judiciary has played a rather
appreciable, proactive role in implementing Indias international obligations under
International treaties. This has happened especially in the field of human rights and
environmental law.
CONCLUSION :
Since Ancient-Medieval ages and also through Pre-independence and Post-
independence, India has played pivotal role in development of International Law.
Indian constitution embodies the basic framework for the implementation of
international treaty obligations undertaken by India under its domestic legal
system. Executive powers of the Union and State governments are co-extensive
with their respective legislative powers. Accordingly, the Government of India
has exclusive power to conclude and implement international treaties or
agreements. This does not mean that international laws, ipso facto, are
enforceable upon ratification. This is because Indian constitution follows
the "dualistic theory with respect to incorporation of international law into
municipal law. International treaties do not automatically become part of
national law in India. They must be incorporated into the legal system by
an act of Parliament, which has the legislative powers to enact laws to
implement Indias obligations under the international treaty.
However, a perusal of the jurisprudence shows that a pro-active role is
being played by Indian judiciary in implementing Indias international
obligations under International treaties, especially in the field of human rights and
environmental law. Thus, Indian judiciary through, "judicial activism fills up of the
gaps in the municipal law of India and International law, thereby playing an
important role in the implementation of international law in India.
Go To Contents
Module - 2) Theoretical Foundations of International Law :

2.1) Basic principles: sovereign equality of state non-intervention, non use of
force, international co-operation, peaceful settlement of disputes
2.2) Individuals as subject of international law
2.3) State jurisdiction on terrorism, hijacking, narcotics, war crimes and Crimes
against peace
2.4) Treatment of aliens
2.5) Mechanism : Amnesty International, International Labour Organization
(ILO) UNESCO, UNICEF
Go To Contents
Explain the concept of sovereign equality of state and non-intervention. (Nov-
2011, Oct-2013)
Explain the principle of sovereign equality of states with its limitations. (Nov-2014,
Dec-2015)
Discuss : non use of force.
Discuss : international co-operation.
Explain in detail the main modes of the settlement of international disputes. (Dec-
2016).
Discuss amicable and coercive means of settlement of International Dispute. (Oct-
2013)
Settlement of international disputes by peaceful means or amicable Explain. (Nov-
2014)
Explain the peaceful methods of settlement of disputes. (Dec-2015)
Discuss an individual as a subject of international law. (Nov-2012, Oct-2013)
Explain in detail regarding individual as a subject of the International Law. (Dec-
2016)
Explain the state jurisdiction on terrorism, hijacking, narcotics, war crimes, and
crimes against peace. (Nov-2011, Oct-2013)
Explain in detail the jurisdiction of state in respect of terrorism, hijacking, narcotic
drugs, etc. (Nov-2012)
Explain in detail : State jurisdiction on Terrorism. (Dec-2016)
Explain : Powers and functions of international organizations. (Nov-2011)
Write short notes : The general assembly of UN. (Nov-2014)
Write short note : Objectives of united nations. (Dec-2015)

Explain : Amnesty International, UNESCO, UNICEF
Explain : International labor organization. (Nov-2012)
Write short notes : International criminal court. (Nov-2014)
Write short note : International court of justice. (Dec-2015)
Explain in detail the purpose and jurisdiction of the International Court of Justice.
(Dec-2016)
Go To Contents
Module-2 ANSWERS :
Explain the concept of sovereign equality of state and non-intervention. (Nov-2011,
Oct-2013)
Explain the principle of sovereign equality of states with its limitations. (Nov-2014,
Dec-2015)
ANSWER :
The principle of sovereign equality :
Sovereignty has two important aspects :
The first lies in the principle of sovereign equality. This lies at the heart of the
present international law regime.
The second, is that states have a duty of non-intervention in any area that falls
within the exclusive jurisdiction of other states.
Treaty of Westphalia : The traditional view of sovereignty is usually traced back to
the Treaty of Westphalia of 1648. Westphalian sovereignty is the principle of
international law that each nation state has sovereignty over its territory and
domestic affairs, to the exclusion of all external powers, on the principle of non-
interference in another country's domestic affairs, and that each state (no matter
how large or small) is equal in international law. The doctrine is named after the
Peace of Westphalia, signed in 1648, which ended the Thirty Years' War, in which
the major continental European states the Holy Roman Empire, Spain, France,
Sweden and the Dutch Republic agreed to respect one another's territorial
integrity. As European influence spread across the globe, the Westphalian
principles, especially the concept of sovereign states, became central to
international law and to the prevailing world order
Treaty of Westphalia created the foundations of a new European system that
has, since the creation of the United Nations, developed into a world system of
independent and separate states.
This reaction to the Thirty Years War, which had devastated Europe, was a move
to enable separate states to co-exist with a reciprocal prohibition on interference
with the internal affairs of other states. Thus the foundations were laid for a
state to enjoy unlimited power over its own territory without interference.
The agreement effectively recognised that inter-state wars could only be avoided
by recognition of this principle.
Needless to say, this Treaty was not entirely effective and there were many
subsequent wars and interventions, though possibly fewer than would have
occurred without it.
The acceptance of the theory of sovereign equality is now enshrined in the UN
Charter, where Article 2(1) states that The Organisation is based on the principle
of the sovereign equality of all its members. I say the theory because of course
the reality of a Security Council with permanent members having special powers
does seem to undercut such equality.
This feature of sovereign equality is of fundamental importance in the international
legal regime because it is this which ensures a form of Rule of Law in that system.
Just as in domestic law each individual (that is, each subject of the legal system)
enjoys formal equality before the law, so in international law each state, as a
subject of the international legal system, enjoys formal equality.
In 1967 Oppenheims Treatise on International Law defined sovereignty :
As comprising the power of a State to exercise supreme authority over all
persons and things within its territory, sovereignty is territorial supremacy
(dominium, territorial sovereignty).
As comprising the power of a State to exercise supreme authority over its
citizens at home and abroad, sovereignty is personal supremacy (imperium,
political sovereignty).
In fairness, the work does go on to recognise limits to external independence
arising from treaty obligations, and internal independence through the obligation of
a state to respect the fundamental human rights of its own citizens. Nevertheless
the emphasis upon liberty of action seems to warrant even more qualification in the
twenty-first century, at least as concerns the majority of states. Here it is
appropriate to make clear the view that the constraints upon sovereignty will
depend not only upon treaty commitments, but upon power.
Sovereign equality : Concept of sovereign equality has three distinct aspects not all
of which lead to assumptions of real equality.
The first aspect is formal equality, defined as no more than equality before the
law and which extends neither to forms of jurisdictional equality nor to equal
capacity to vindicate rights outside the judicial context. This is a truly crucial
feature, necessary for any international rule of law.
The second aspect is legislative equality, to be found for instance in the General
Assembly of the United Nations with its single vote for each state. In truth, this
is one of the few places where legislative equality is accepted and enjoyed. More
typically strength and wealth will dictate legislative power, as is all too clear both
in the Security Council and in the deliberative bodies of the international
financial institutions.
Existential equality is the third aspect of sovereign equality. This is really an
equal right to existence with the accompanying corollary of the principle of non-
intervention (and generally certainly not for purposes of regime change).
Traditionally, historically and contemporaneously this has been more problematic
than some might wish to believe. Historically the reality is that powerful states
have always curbed the freedom of action of lesser states if it was in their interests
so to do, and if the constraints were not counter-productive. Both the US
hegemony in Central and South America, sometimes formalised under the Munro
Doctrine, and Soviet hegemony in Eastern Europe between 1945 and 1990 are
very clear examples. In both cases direct intervention was sometimes resorted to
(usually with a highly doubtful claim to legitimacy) and on occasions regimes were
changed. Powerful states are now questioning sovereign rights of states without
democratic governance, in the same way as in the nineteenth century colonial
powers justified colonial acquisitions on the assumption that all civilised peoples
would approve.
Concept of non-intervention :
https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Internat
ional%20Law/il280207.pdf
The two terms non-intervention and non-interference seem to be
interchangeable. However, non-interference suggests a wider prohibition,
particularly when used in addition to intervention. Yet as Oppenheims International
Law puts it, the interference must be forcible or dictatorial, or otherwise coercive,
in effect depriving the state intervened against of control over the matter in
question. Interference pure and simple is not intervention
Since the reach of international law is constantly changing, so too is the line
between what is, and what is not, covered by the principle of non-intervention. The
general principle includes the prohibition on the use of force, as set forth in the
Charter. Further, it also requires that a State not intervene in the internal affairs of
other States in dictatorial ways not involving the use of force. eg making payments
to political parties and other forms of interference in the internal political processes
of the State.
Exception : Intervention (even military intervention) with the consent, duly given,
of the Government of a State is not precluded.
Difficult questions may arise (e.g. Hungary; Czechoslovakia; Grenada; Panama;
even Sierra Leone) relating to the exception because Intervention by invitation

is notoriously open to abuse. Does the requesting Government have to be in
effective control of the territory of the State at the time it makes the request,
when it may just have been evicted from the capital or even have departed the
country?
It is sometimes suggested that intervention in a civil war on the side of the
Government and at its request is unlawful, but there is little support for this in
practice. Intervention on the side of those opposing the Government, on the
other hand, is clearly prohibited.
Whether there is an exception to the principle of non-intervention in the case of
assistance to peoples seeking to exercise the right of self-determination remains
controversial.
Another question could be intervention in a State which has no government
capable of issuing an invitation. (Failed States and rogue States are not legal
categories. Such terms are best avoided, at least in legal discourse.)
Illustrations :
The International Court expounded on the principle of non-intervention in its
1986 judgment in the Nicaragua case: The principle of non-intervention
involves the right of every sovereign State to conduct its affairs without outside
interference; though examples of trespass against this principle are not
infrequent, the Court considers that it is part and parcel of customary
international law. [...] international law requires political integrity [...] to be
respected .
The Court went on to say that the principle forbids all States or groups of
States to intervene directly or indirectly in the internal or external affairs of
other States and that a prohibited intervention must accordingly be one
bearing on matters in which each State is permitted, by the principle of State
sovereignty, to decide freely. One of these is the choice of a political,
economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such
choices, which must remain free ones. [...] the element of coercion [...]
defines, and indeed forms the very essence of, prohibited intervention.
The Court also dealt with the principle of non-interference in its judgment of 19
December 2005 in Democratic Republic of Congo v Uganda, when it concluded
that Uganda had violated the sovereignty and also the territorial integrity of the
DRC. Ugandas actions equally constituted an interference in the internal affairs
of the DRC and in the civil war raging there (para.165).
The principle of non-intervention includes the following aspects :
(a) The prohibition of the threat or use of force in international relations, as set
forth in Article 2.4 of the UN Charter. This is the most important manifestation of
the principle of non-intervention, yet the international law on the use of force is
not usually thought of in terms of the principle.
Action in self-defence, including the rescue of nationals where the territorial
State is unable or unwilling to do so, does not infringe the principle of non-
interference. On the other hand, threats to use force will often be seen as
contravening the principle, even in cases where it is not clear that if the threat
were carried out it would necessarily be unlawful.
(b) Article 2.7 of the UN Charter Article 2.7 of the Charter of the United Nations
provides that Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state or shall require the Members to submit such matters to
settlement under the present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter VII.
What are enforcement measures under Chapter VII :
An important point to bear in mind is that, with an activist Security Council,
much of what may be seen as intervention is in fact action authorised by
the UN Security Council under Chapter VII of the Charter, and so does not
infringe the principle of non-intervention.
Exception :
humanitarian intervention and the responsibility to protect : The British
Government was the leading advocate of an exceptional and limited right of
States to use force to avert an overwhelming humanitarian catastrophe
Illustration :
Kosovo: Cases have ...arisen...when, in the light of all the circumstances,
a limited use of force was justifiable in support of purposes laid down by
the Security Council but without the Councils express authorisation when
that was the only means to avert an immediate and overwhelming
humanitarian catastrophe ... Such cases would ... be exceptional and would
depend on an objective assessment of the factual circumstances at the time
and on the terms of relevant decisions of the Security Council bearing on
the situation in question
Likewise, USA justified its actions to protect the Kurds in the North of Iraq
and the Shia in the South, and the NATO action over Kosovo, on other
grounds.
(c) International human rights law and mechanisms :
The growth of the international law on human rights, mostly in treaties (but
also in customary international law), and in particular acceptance of the rights
of States to criticise other States human rights record and the inter-State
complaint mechanisms, has made a very large inroad into the domain rserv
of States. One only has to recall the right of States to bring formal complaints
under ICCPR and ECHR, and the various UN procedures. This is not so new; it
goes back to the protection of minorities under the League of Nations.
(d) Vienna Convention on Diplomatic Relations, article 41 : It seems to be still
well-established the diplomats should not interfere in the internal affairs of the
State to which they are accredited. But even here, as the leading work on the
subject points out, there is a tension between the duty of a diplomat under
Article 41 of the Vienna Convention, not to interfere in the internal affairs of the
receiving State and the opinion of liberal States that human rights are a matter
of legitimate international concern whose active promotion is a major part of
their foreign policy.
(e) Other applications of the principle : If the existence, in customary
international law, of the principle of non-intervention in the internal affairs of
States is beyond doubt, its exact content not so clear. Outside the area of the
law on the use of force, it is not always possible to be categorical about what is,
and what is not, prohibited by the principle. Much depends on the context, on
the relations between the States concerned, and perhaps their level of political
development.
The principle of non-intervention and the limits on a States jurisdiction can be
seen as related. Thus, when the United States sought to impose obligations
on foreign companies extra-territorially in support of its own foreign policy
objectives, this could be seen as improper intervention in the affairs of the
States whose companies are affected and lead to counter-measures by them
(Protection of Trading Interests legislation). For example, the 1982 American
export controls in relation to martial law in Poland were widely seen as
interfering with the foreign policy of other States.
Activities which contravene the principle of non-intervention :
(a) Interference in political activities (such as through financial or other support
for particular political parties or candidates, or even perhaps comment on
upcoming elections or on the candidates;
(b) Support for secession. A classic example occurred in 1967, when President
de Gaulle of France, while on an official visit to Canada, made a speech which
was understood as pledging the support of France for the secessionist movement
in Quebec. This was regarded as an interference in Canadas internal affairs, and
the reaction was such that the President felt it necessary to terminate his visit;
(c) Seeking to overthrow the government - so-called regime change, especially
in the case of rogue States The British Attorney General, for example, advised
in March 2003, in the context of force being used pursuant to the authorization
in Security Council resolution 678, that regime change cannot be the objective
of military action. The US recently accused Iran and Syria of interfering or

intervening in Lebanons internal affairs, by trying to overthrow the Siniora
government. It has occasionally been suggested that intervention in order to
restore (or establish) democracy is permitted under international law (e.g. it was
one of the grounds given for the US invasion of Panama in 1989).
Go To Contents
Discuss : non use of force.

ANSWER :
Refer :

Go To Contents
Discuss : international co-operation.

ANSWER :
Refer :

Go To Contents
Explain in detail the main modes of the settlement of international disputes. (Dec-
2016)
Discuss amicable and coercive means of settlement of International Dispute. (Oct-
2013)
Settlement of international disputes by peaceful means or amicable Explain. (Nov-
2014)
Explain the peaceful methods of settlement of disputes. (Dec-2015)
ANSWER :
Refer :
https://odeenishmaeldiplomacy.wordpress.com/2013/03/16/22-coercive-means-of-
settlement-of-disputes/
Intro :
When there are several units constituting a community of sorts, there is definitely
bound to be conflict of some kind or the other, consequent to friction, ideology and
perhaps, varying degrees of progress of each unit.
This is an integral aspect of any community whether it is that of individuals or
states/ nations. Often States' indulgence in actions and policies give rise to
differences that may sometimes take on the colour of disputes. Dispute settlement,
in this background, assumes particular importance in the level playing field of
international relations, considering that it is extremely necessary to ensure the
maintenance of peace and security.
WHAT is Dispute ?
A dispute is essentially a disagreement, relating to any issue, where, in effect one
side lays a claim, or asserts a fact, and the other denies the claim, or opposes the
claim or assertion with a counter of its own, which in effect is diametrically opposed
to the original claim or assertion so made.
Although individuals and non-state actors are subjects of international law in terms
of a theoretical analysis, the dynamics of international law relating to dispute
settlement concern itself only with states, and international organizations to some
extent.
Need for prompt resolution of disputes :
The occurrence of disputes is integral to the operation of international relations, as
it provides the much needed friction in order to foster development and burgeoning
of inter-relationships at the international level. However, there has to be a limit on
the quantum of these disputes, as a transgression of limits could cause a
catastrophe not less than the Second World War in terms of magnitude, and this is
precisely where settlement procedures come into play.
Methods/ Modes of dispute settlement may be broadly categorized as :
1. Peaceful settlement of disputes
Non-legal Methods :
A. Negotiation,
B. Good Offices and Mediation
C. Fact Finding and Inquiry
D. Conciliation,
Legal Methods :
E. Arbitration,
F. Adjudication
2. Coercive means of settlement of dispute
A. retaliations,
B. reprisals
(i) embargo
(ii) boycott
C. severance of diplomatic relations
3. Violent means of settlement of dispute

1. Peaceful Settlement of Disputes :
Given that several ideals of international law rest upon the strong pre-conditional
pillars of peace and security, it is absolutely essential that dispute settlement
machinery be installed in place, sufficient to avert a chaotic situation in
international relations.
The idea of peaceful settlement of disputes goes back a very long way, into the
erstwhile era of the classical period, where though there was no prohibition on the
use of force, the actors in international law understood the importance of
maintaining peace in international relations.
In the present context, the UN Charter, under Article 2(3) encourages members to
resort to the settlement of their disputes by accessing peaceful means, in a manner
befitting the upkeep of international peace and security, without endangering
justice in any manner.
Purpose for the provision : While the provision is clear on the purpose of settling
disputes, there hasnt been much in concrete terms to understand and define the
scope of international disputes, consequent to which there hasnt quite been an
agreement in place to lay down the meaning of the term itself. One of the basic
purposes of the UN is, as explained under Article 1(1), to bring about by peaceful
means, and in conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations which might lead to
a breach of the peace.
The settlement of disputes generally follows a path, where states try their best to
nip enmity in the bud by relying on the time tested methods of diplomatic
settlement. In the event that this fails, and there is no end in sight to the dispute
itself, states turn to seek recourse under the rubric of the law, and rely on legal
means.
Article 33 of the UN Charter mentions the basic methods that a state may resort to
in the event that it wishes to settle disputes peacefully. These include the
processes of,
Non-legal Methods :
A. Negotiation,
B. Good Offices and Mediation

C. Fact Finding and Inquiry
D. Conciliation,
Legal Methods :
E. Arbitration,
F. Adjudication
A. Negotiation :
Negotiation refers to the dialogue between two or more entities that are
embroiled in a disagreement, in a bid to arrive at an understanding, or a
compromise, or in a bid to resolve any points of difference. The process
essentially involves both sides seeking to gain an advantage over the other, but
finally arriving at a compromise, if the outcome of the negotiation is successful.
In international relations, negotiation is oftentimes conducted through the
foreign offices of the states involved, or through the diplomatic representatives
of the states concerned. Plenty of states settle their differences through the
channel of direct diplomatic negotiations.
Sometimes, if the dispute involves a spectrum of subjects, there may be
delegations comprising representatives of different departments of the
government, or there may be a panel of experts joining the diplomatic
representative, to carry out the process of negotiations. At other times, even
members of the ministries or governments themselves may participate in the
process and seek to arrive at a conclusion.
States are under an obligation to enter into negotiations under Article 2(3) of the
UN Charter, which is also augmented by the 1970 "Friendly Relations
Declaration" which allows the states to rely on any such means as are found to
be appropriate in keeping with the circumstances and the nature of the dispute
concerned. It is not enough that states resort to negotiation as a means to settle
their disputes- they are also under an obligation to conduct themselves in a
manner that ensures that the process of negotiation are meaningful and
successful.
In terms of actual practice, every party to a dispute that resorts to negotiation
ideally aims for a win-win situation that allows room for both sides.
Though, Negotiation is a rather simple and peaceful mechanism involving the
deployment of intellect and the acumen of a skilled diplomat, is not favoured too
largely in international relations. The absence of neutral third parties suggests
that there may not be impartial elements to champion the dispute and coax it to
come to a compromised conclusion, and consequently, there are large
possibilities of extreme claims and demands being made by one or both states,
based on their relative bargaining power and standing in the international
community.
Furthermore, it is also possible that states demand the fulfillment of certain pre-
conditions, only after which it shall enter into negotiations.
There is also a possibility of a cache of demands being imposed by one state
upon another, and the dispute itself would find no solution, dragging on, instead,
for several years together.
Illustration :
In the case of Arab - Israel dispute, where for a considerably long time, the
non recognition of Israel by the Arab states, and Israels non recognition of
the Palestine Liberation Organization had been a massive obstacle to the
actual conduct of direct negotiations to resolve differences. Thus the question
of non-recognition itself was a substantive aspect of the dispute, in that the
very existence of Israel for the Arab world, and of Palestine for Israel, was not
accepted.
Negotiation as a method will be rendered horribly toothless if the states
engaging in the process do not have a common ground with overlapping
interests to hold them together.
There is also the questionable aspect of negotiation in that it encourages the
continuous looping of talks. Bouts of talks about talks, rounds of negotiations to
initiate actual negotiations and plenty of rhetoric are only the tip of the iceberg
of the trouble that negotiation can bring in.
The relations between states are exceedingly dynamic, and what is possible one
day may become completely impossible the next.
Nevertheless, negotiation is, oftentimes, the method of first resort for the
settlement of disputes. There are several treaties that suggest the mechanism in
its dispute resolution clauses, and then also offering several alternatives, in case
negotiations are found bearing no acceptable results.
B. Good Offices and Mediation :
It is not always possible for states themselves to settle their disputes, by
resorting to negotiation or a one-on-one discussion. The need to pursue their
own interests tends to prejudice their perceptions and in the process, makes the
arrival at an impartial settlement a very difficult prospect. At times like these,
the intervention of a third party, an impartial entity coloured purely by non-
partisan considerations, is an extremely useful tool towards settling the dispute.
This is possible through two means (i) Good offices, and (ii) Mediation.
(i) Good offices being one such means, allows the intervening third party to
function anywhere from being a source of moral support by egging the states
to negotiate their differences, to actively being a channel of communication.
This involves an exceptionally passive participation, only being assertive in
that the states must arrive at a settlement.

(ii) However, when the intervening entity takes a more active part in the
process, by suggesting new ideas, allowing a compromise to burgeon by
guiding it into place, by offering its own solutions and also functioning as a
go-between for communiqu between the disputing states, it becomes
Mediation.
For the process of mediation, it is absolutely necessary that the intervening
third-state enjoys the confidence of the disputing states, for without the trust, it
would be impossible to arrive at a solution.
State practice has shown instances of good offices and mediation being
combined, sometimes in a manner that is indistinguishable in action.
While consent is not a mandatory precondition for the commencement of
mediation, it is necessary in order for the process to be effective.
All said and done, however, Mediation as a method of dispute settlement is
hardly as easy as it sounds. It is not impossible for the relations between either
state party to the dispute and the mediator state to go sour, and it is not
impossible for the mediation itself to fail altogether because of the lack of
powerful influence of the mediator on the states involved.
Role of a mediator is easier for a state that is inherently powerful to manage to
sway the parties involved, in the mediation, and to achieve fruitful results, but in
such cases, it is rather necessary to be wary of the possible pursuit of vested
interests that may not be good for the world at large.
As a more practically acceptable solution, Mediation is a better mode of
settlement when the states have understood the futility in continuing their
dispute, and have also conducted an inventory of costs they may have to incur
in keeping the dispute afloat and in settling it, and then concluding that the
latter is a cheaper option.
Illustration :
The classic example is Algerias role in the 1980 dispute pertaining to the
diplomatic hostages, between the United States and Iran. In a situation where
both states were hostile to one another, Algeria functioned as an
intermediary, and encouraged the settlement of the dispute, by assisting the
signing of the Algeria Accords, which ultimately culminated in the
establishment of the Iran-US Claims Tribunal, and then a subsequent
engagement of both states towards the settlement of the dispute.
When Iran and Iraq were embroiled in a dispute, Iraq was decidedly
antagonistic to the Kurdish population. Iran had the option of either allowing
the war with Iraq to mount higher by supporting the Kurds, or to pull the plug
on its support for the Kurds, in exchange for the Iraqi recognition of the
Iranian boundary claims. Iraq presented a picture that the Kurds were a more
important issue as opposed to the territorial quotient, and with the setting
rounding in on one issue, the process of mediation became more pragmatic,
and successful
Time and again, in international relations, mediation has shown the way towards
retaining peace, and averting war. However, it is not a mean task to intervene
between two states that are at loggerheads. Without cooperation, an intervening
state cannot achieve anything, much less succeed in settling the dispute itself.
C. Fact Finding and Inquiry :
Fact-finding fundamentally denotes the determination of facts in a dispute,
bereft of any partisan considerations that may colour the rendition of the facts
by either side to the dispute. It is, in many ways, a precursor to ascertaining a
settlement between the parties. An inquiry refers to a part of the process, which
involves talking to those involved and investigating the events that transpired
ultimately culminating in a conflict.
Fact finding and inquiry function in conjunction as methods that enable the
ascertainment of facts in international law. The facts so gathered are capable of
use for the settlement of disputes and decision making.
The very purpose of fact-finding is to ascertain a completely untainted narration
of events exactly as they happened.
The reason why so much emphasis is laid upon fact finding is that there should
be an avoidance of disputes of facts may constitute a greater part of the
disputes itself.
Disputing states may choose to appoint an impartial tribunal themselves, or,
may also refer to a permanent body or a similar authority, to carry out an
inquiry and prepare a report.
There is no compulsion for the states to accept the inquiry and its outcome, but
practice reveals that the proclivity to accept is the general trend.
While finding the facts itself forms the core of the functions of a fact-finding
body, there is also a possibility that some states may seek a legal evaluation, so
that a series of recommendations towards arriving at a settlement is also made
available. This tends to blur the lines differentiating conciliation, mediation and
fact-finding.
True to its objectives, the United Nations has established a whole range of fact-
finding authorities for investigations into violations of human rights and
humanitarian law, crimes of aggression, genocide, war crimes and crimes
against humanity.
Although largely favoured, the role of fact-finding has not been very significant
in dispute settlement. Restricted to specific areas such as maritime affairs in
state practice, fact-finding has produced few successful results. Fact-finding in

the context of dispute settlement differs from fact finding missions, which are
established even outside a dispute.
D. Conciliation :
Conciliation as a process of dispute resolution refers to the impartial assessment
of the dispute by an impartial entity, who then suggests a settlement that both
parties are most likely to accept.
Conciliation is a form of mediation, except that there is an institutional angle,
and a more formalistic legal approach to the settlement process.
The concept has been defined as being a method for the settlement of
international disputes of any nature according to which a Commission set up by
the Parties, either on a permanent basis or an ad hoc basis to deal with a
dispute, proceeds to the impartial examination of the dispute and attempts to
define the terms of a settlement susceptible of being accepted by them or of
affording the Parties, with a view to its settlement.
States may also choose a course of action that allows the appointment of a sole
conciliator.
In 1921, Germany and Switzerland entered into an Arbitration Treaty. The treaty
noted that a Permanent Board of Conciliation would be given the responsibility of
investigating the factual circumstances, and the law, and then accordingly to
prepare alternatives for a solution. --- Following this, in 1922, the League of
Nations, through its Assembly, adopted a resolution recommending that member
states should seek to conclude agreements between themselves to the effect
that they should submit their disputes to conciliation. There was a favourable
response, with at least twenty treaties coming up, marking that the states were
committed to settling their disputes through conciliatory channels. ---
Nevertheless, the Second World War broke out, conciliation was hardly relied
upon, especially seeing as how states began redressing their grievances by
retaliating with the use of force.
However, the practice managed to resurface through a series of multilateral
and bilateral treaties, a practice which has remained till present day as a
routine process.
The findings of the conciliator do not bind the parties, although parties are
inclined to adhere to the more practical aspects out of courtesy.
The proceedings of conciliation are generally confidential and not confined into a
rigid mandate, allowing the parties to the dispute to enjoy ample flexibility and
ease of procedure.
When the proposals are made, it is up to the parties to accept or reject them. ---
If the proposals are accepted, following a specified period offered for
consideration, the conciliatory commission prepares a proces-verbal, which

enumerates facts, suggestions and the agreed terms. --- If the proposals are not
accepted, there is nothing more that needs to be done.
Conciliation is not without its own cache of advantages and disadvantages.
The major benefits of the process include the flexibility and the voluntariness
attached to its conduct, to such extent that the states are free to accept or
reject solutions.
However, the disadvantage also remains in the very same factors. Overt
flexibility allows the disputing parties to enjoy a long rope. The astute lack of a
binding nature renders the friendly and peaceful process absolutely toothless.
States generally rely on conciliation when the dispute is a smaller one, and do
not get down into accepting the solution unless it comprises a compromise that
keeps both states on an equal footing. Nevertheless, conciliation itself is
generally looked upon as providing an environment most friendly to the interests
of the states in settling their dispute.
E. Arbitration :
Arbitration refers to the settlement mechanism that requires the intervention of
a third party between the disputing entities, where the states involved set up
their own vehicle to enable the arrival at a settlement.
The process has legal recognition, and the outcome is generally binding upon the
parties involved.
Arbitration was essentially the first form of the dispute redress mechanisms to
have developed. The generally accepted practice involves states setting up a
commission comprising an equal number of national arbitrators appointed by
each side, and then the selection of a neutral member who usually works as an
umpire.
The procedure itself is largely much more flexible and easier in comparison with
adjudication. The key to arbitration is the ensured right of party autonomy, in
that the states that are party to the dispute have all the right to determine the
number of arbitrators, the arbitrators themselves, the law applicable, the place
of arbitration and also the procedure to be followed in conducting the arbitration
itself.
The idea of adhering to arbitration can be compared to being bound by a treaty,
which the parties follow in keeping with the norms of pacta sunt servanda.
Past practice reveals that arbitration as a mode of dispute settlement has been
very useful as a mode of dispute settlement. There have been plenty of cases
that have been settled in the course of international relations through seeking
recourse to arbitration.
The beginnings of arbitration as a means of dispute resolution started in 1794,
with the United States and the United Kingdom signing the Jay Treaty by which
the states resorted to arbitration to settle their differences, thereby having a
resounding number of 536 arbitral awards, all passed between 1799 and 1804.
These decisions seem to have been the foundation stone for several arbitral
decisions passed since.
The next development in arbitration as a means of dispute settlement was the
creation of the Permanent Court of Arbitration, which was established in 1899 by
the Hague Convention for the Pacific Settlement of International Disputes.
The Permanent Court of Arbitration has facilitated the establishment of several
other arbitration bodies, of which the most prominent has been the Iran-US
Claims Tribunal at The Hague.
Arbitration has become notably important in the field of commercial dispute
settlement consequent to which plenty of changes have been introduced in the
rules and regulations of the Permanent Court. Some of these changes have
included room for non-state entities to seek the courts assistance in dispute
settlement.
Adjudication is generally less accepted, and states themselves are in a position
where they prefer relying on arbitration instead of adjudication, where they will
have to give up some of their sovereignty in favour of being subjugated by a
court. But this is not to suggest that arbitration has no disadvantages.
Certain kinds of disputes, particularly political and diplomatic problems, simply
cannot be arbitrated, considering their political significance.
Similarly, there are plenty of very minor disputes that can be solved far more
easily with negotiation and mediation, and an arbitration procedure would
virtually be a case of unnecessary expenditure.
Arbitration is most often confined to settling economic issues and disputes of
a commercial or contractual nature.
F. Adjudication :
Adjudication refers to the settlement of disputes by a court of law.
The process typically involves the expounding of the law in relation with the
factual circumstances backing the dispute, whereby the outcome determines a
course of action that actually binds the parties to the dispute.
Adjudication as a means of dispute settlement in international relations is more
or less a last resort, considering the fact that it is both, long-drawn and complex
as a procedure.
Where the international community is concerned, the leading apparatus
governing the process of adjudication is the International Court of Justice. In
addition, there are also other organs such as the International Criminal Court,
which deals with international criminal responsibility, the International Tribunal
for the Law of Sea which is established under the 1982 UNCLOS, the
International Criminal Tribunal for former Yugoslavia and the International
Criminal Tribunal for Rwanda.
International Court of Justice : The International Court of Justice is the only one
that is concerned with the adjudication of differences between states. The
creation of the International Court of Justice was consequent to the passage of a
statute, called the Statute of the International Court of Justice, 1945. The
International Court of Justice is situated at the Peace Palace, in The Hague,
Netherlands. It functions with the status as one among the six principal organs
of the UN, although it is also given a special status as an independent judicial
wing that is not slotted within the confines of a hegemonic structure with respect
to the UN and the other five organs.
The ICJ and its predecessor, the Permanent Court of International Justice, have
functioned as the quintessential world court, since it caters to settling disputes in
the international realm where the world community is arranged in an anarchical
set up. The statute creating the court came into force in 1921, having been
signed a year earlier. The panel of judges officiating in the forum was appointed
by the League of Nations. The court was then dissolved when the League of
Nations was dissolved, at the start of the Second World War. Nevertheless, with
the creation of the United Nations, the International Court of Justice took over.
Although it was never pronounced officially as its successor, the ICJ functioned
in a manner that suggested there was the maintenance of the continuity of the
judicial action wielded by the PCIJ, in that the cases brought before the PCIJ
under the treaties that were still in force between parties to the ICJ would be
taken before the ICJ.
The statute is an annexure to the UN Charter, thereby making all members of
the UN parties to the court. This does not mean that non members of the UN will
be deprived of the opportunity to access the court, because as per Article 93(2)
of the Statute of the ICJ, states may elect to become parties of the ICJ.
The ICJ comprises 15 judges, five of whom are elected every three years to hold
office for nine years. The election procedure requires the elected judges to
receive an absolute majority of votes in the Security Council and the General
Assembly, independent of each other. As a rule, the judges must each be of a
different nationality, while representing the principal legal systems of the world.
The most recent form of practice, however, has suggested that four judges come
from West European States, one from the United States, two from South
American states, two from East European States and six from Africa and Asia. Of
the fifteen judges, as a rule, the five permanent members of the Security
Council are to be represented.
While there is no singular qualification for the judges, it is necessary that they
be deemed qualified enough to be able to hold the highest judicial office in their
respective states, or, must actually be jurists of recognized competence under
International Law.
These judges, upon their appointment, are required to function independently as
magistrates, and not as representatives of their states.
In addition, there is also room for ad hoc judges, in that they can be appointed if
a state appearing before the Court does not have a judge of its own nationality,
in order to adjudge a particular case. The purpose behind this is to safeguard the
interests of the states, in that their interests will definitely be taken into
consideration while the decision is being made.
Duties :
As for the duties of the Court, its responsibilities primarily relate to the
settlement of disputes submitted to it by states themselves, in keeping with
international law.
Secondly, the ICJ is also given the responsibility of offering advisory
opinions on legal questions that are referred to it by international organs
and agencies that are duly authorized to do so.
The jurisdictional ambit of the court, therefore, extends to contentious cases
and advisory cases
2. Coercive means of settlement of dispute :
http://journals.univ-
danubius.ro/index.php/internationalis/article/viewFile/1690/1408
Intro :
Historically, international law has been regarded by the international community
as means to ensure the establishment and preservation of world peace and
security. The maintenance of international peace and security has always been
the major purpose of the international law.
One of the great challenges of the international community is to achieve by
peaceful means, including those of a coercive nature, the effective resolution of
conflicts or disputes that could jeopardize peace and security.
Since the direct cause of violence and war is always a dispute between states, it
is therefore in the interest of peace and security that disputes should be settled.
As a result, various methods and procedures for the peaceful settlement of
disputes have been made available in international law.
The range of possibilities of the methods of peaceful settlement includes
political, diplomatic and legal means. Public international law and the UN Charter
can be utilised in this process which indicate that more than one method (or a
combination of methods) can be applied to solve a particular crisis. However,
when these methods are exhausted in the search of a peaceful settlement, the
possibility of resorting to coercive means is opened.

UN Charter :
According to Article 39 of the UN Charter, the Security Council is the body
responsible for taking measures to remove threats to or breaches of peace, or to
define what is an act of aggression.
Articles 41 and 42 provide that agreements can result in Security Council non-
military actions, all of which can be defined as coercive.
The UN Charter recognises the competence of regional organisations in dispute
settlement, and will coordinate with them, as necessary, and will only apply
coercive measures with the permission of the respective regional organisation.
And if these coercive actions fail to resolved the peace-threatening dispute or
crisis, the Security Council may take other radical measures involving even the
use of force.
Use of coercive actions have been accepted by international law for use only after
repeated attempts to resolve the dispute by ordinary peaceful methods are made.
Means of peaceful coercion :
A. retaliations,
B. reprisals and
C. severance of diplomatic relations
A. Retaliation :
Retaliation is used by a nation state or group of states when they are victims of
a legal unfriendly act of another state. This method must respect prior
established rules, such as reciprocity or proportionality, i.e. the act of retaliation
must have the same subject or the same size as the original damage made.
This type of interaction is without prejudice to international law, as long as it
doesnt degenerate into inhumane treatment of individuals or any kind of illegal
action. Thus, a state cannot decide to act illegally against a foreign ambassador
on its territory, because his counterpart had received the same mistreatment
(other examples can be the destruction of private property or arbitrary
sentencing to death of prisoners of war or convicted foreigners). The punishment
of such acts is governed by international law, and if a member commits any
offense of this kind, in response to similar action by another state, BOTH the
states are legally responsible for their actions.
Illustration :
A special case of imposing retaliatory measures is that of Israel against Gaza
Strip, initiated in 2008, after the latter decided to gain independence from
Israel and to impose a separate sovereignty, in 2005. The Israeli state has not
agreed with the action of the Gaza people, stating his inability to abandon its
citizens, and ceased the fuel and energy supply to the region, as retaliation.
Retaliatory measures were taken by the Romanian state in the summer of
2010, as a consequence of the Russian Federation deciding to declare a
Romanian diplomat, first secretary of the Romanian Embassy in Moscow,
persona non grata and asking him to immediately leave the Federal territory.
In response to this, the Ministry of Foreign Affairs decided to take the same
measure against a Russian diplomat, first secretary to the Russian embassy in
Bucharest (Ministry of Foreign Affairs of Romania).
B. Reprisal : WHAT happens when the offensive act is an ILLEGAL one and the
responsible state does not accept the applicable legal measures?
A victim state can use reprisals against another state when the latter commits
an illegal unfriendly act, but these measures cannot exceed the size of the
original actions. The legal point of view is an extremely important factor for this
method of constraint.
If the offensive act is unfair but legal, the victim state cannot use reprisals
against it, because in that moment this state ceases to be a victim and begins to
be culpable of illegal actions against another state.
A state may only take reprisals against the state that has committed illegal
unfriendly acts against it, and only after failed attempts to resolve the dispute by
other peaceful means.
Exceptions to this rule are UN member states, as they may also apply collective
reprisals against a state guilty of actions that endanger international peace and
security.
One shall not confuse between peaceful reprisals, and armed, violent reprisals,
used too often in this era.
The main manifestations of reprisals are (i) embargo and (ii) boycott, both
having a strong commercial and economic nature.
(i) The term embargo comes from the Spanish verb embargar (to retain)
and represents an action of a state to prohibit the import, export, or
departure of commercial vessels of another state, from its ports or territorial
sea, until the guilty state does not cease the unfriendly illegal actions and
does not compensate for the damage caused.
Illustration :
A special case of application of reprisals was encountered in 2007
between two major countries located south of the Mediterranean Sea,
Egypt and Israel. When the persons designated to maintain the security
of Egyptian nationals brought weapons within the Gaza Strip, Israel
took action and sent proofs of this to the US government, in order to
suspend financial aid offered to Egypt (US subsequently decided to
reduce financial aid for Egypt by 100 million dollars). In response to this,
the government in Cairo accused Israel of sabotaging the US-Egypt
relations and interests of the Egyptian people, and threatened to damage
Israeli interests abroad through the use of reprisals.
Thus, we are dealing with a dual use of reprisals by Israel and the US,
to combat an unfriendly illegal act of Egypt, followed by retaliatory
measure applied only to Israel. We specify that THE THREAT OF THE
EGYPTIAN STATE TO AFFECT FOREIGN INTERESTS OF ISRAEL IS
RECOGNIZED AS RETALIATION, NOT A REPRISALS, as it occurred
after a lawful Israeli act against it.
The most recent example of imposing an embargo as sanction is the one
imposed by the European Union on Iran. This meant banning exports of
oil and oil products from Iran to European countries and freezing the
Iranian bank assets in the Member States of the EU, since January 2012,
as counterbalance to Irans continued hesitation to reveal the true
purpose of its new nuclear program. The European states are concerned
about the possibility of extremely dangerous nuclear arming. The
European Union noted that the decision to impose an embargo on Iran
was not meant to aggravate the dispute existing between parties, but to
convince the Iranian government to peacefully return to direct
negotiations.
(ii) Boycott :
Boycott are those coercive measures implemented by a state, victim of
unfriendly illegal acts, against the culpable state, and may include complete
or partial interruption of trade between states, of rail, sea, postal or any
kinds of communication. The United Nations Organization empowers the
Security Council to take such measures in respect of UN member states,
as a means of coercion against a state which has committed an act of
threat to the peace, breach of peace or aggression (The U.N. Charter, Art.
41, 1945).
Also, another reason why a state may impose boycott on another state, can
be the deterrence of inhumane actions against citizens of the latter state,
while the former state holds a demonstration of leadership in the
international system, although it is not directly affected by those acts.
Illustration :
The policy followed by the United States
(i) against states that do not respect human rights, against apartheid
(racial discrimination) in south Africa,
(ii) against countries that did not comply with international rules on
nuclear non-proliferation and people guilty of terrorists acts, are all
instances of boycott.
One of the most famous cases of boycott is that of a member state of
the Arab League against Israel, launched in December 1945, whose
statement reads : Hebrew products and goods manufactured by them
will be considered undesirable in Arab countries. All institutions,
organizations, traders, Commission officials and individuals are required
to refuse maintenance of contractual relations, distribution or
consumption of goods produced or manufactured in Zionist space.
Here, the main reason for imposing the boycott was the Jewish desire
to form a new Palestinian state: Israel.
C. Severance of diplomatic relations :
The third measure of constraint in peaceful dispute resolution, that can be taken
as a singular act of punishment or included in a different coercion method, is the
severance of diplomatic relations.
Its purpose is to break diplomatic contacts with the guilty state and stop any
negotiation or agreement on its interests. In this way, the latter would be forced
to cease hostilities and to repair damage, followed by the resumption of
negotiations on a common interest.
First and foremost, the severance of diplomatic relations refers to the act of
calling back the diplomatic mission of the victim state from the territory of the
state guilty of unfriendly and illegal actions against it.
This type of act is a right of each state under its sovereignty and can be used
whenever there is a belief that international rights of a nation or of its citizens
have been violated, with no need to provide reasons for taking such a decision.
Also, international law does not oblige the victim to expressly notify the guilty
state of this measure of severing the diplomatic relations between them.
Although international custom requires that peaceful coercive measures are used
to resolve international disputes, only after repeated attempts are made to
resolve such disputes through political, diplomatic and judicial means, we must
highlight that, regarding the severance of diplomatic relations between two
states, prior conduct of dialogue between parties *NOT* necessary, nor are
negotiations or legal processes in order to reach consensus. This is due to the
fact that this action represents a discretionary act of the sovereign state!
However, as a recommendation, the UN Security Council is able to oblige the
member states to appeal to a conciliation procedure before deciding to break
diplomatic relations with another state.
Important ---> Cessation of diplomatic relations between two countries does in
no way imply the cessation of legal relations imposed by bilateral or multilateral
treaties ratified by them, unless maintaining these relations is essential to the
applicability of that agreement (art. 63 of the Vienna Convention of 1969).
Illustration :
A recent example of this coercive method being used was in 2008, when
Georgia decided to cease cooperation at diplomatic level with the Russian
Federation, as the latter formally recognized Abkhazia and South Ossetia as
independent states.
In 2009 Morocco decided to take the same measure of constraint on Iran, as a
consequence of the Iranian diplomatic involvement in the internal religious
affairs of Morocco.
In 2010, the diplomatic relations between Columbia and Venezuela reached a
stopping point, when Venezuelan authorities requested it after accusing
Colombia of tolerating the set-up of bases by the Revolutionary Armed Forces
of Colombia (FARC).
In 2011, Lithuania threatened Austria with the severance of diplomatic
relations, following the release from prison of a former KGB agent (State
Security Committee - USSR), whose arrest was requested by the authorities
in Vilnius on charges of actions of suppression that preceded the
independence of Lithuania
3. Violent means of settlement of dispute :
<work on this>
Go To Contents
Discuss an individual as a subject of international law. (Nov-2012, Oct-2013)

Explain in detail regarding individual as a subject of the International Law. (Dec-
2016)
ANSWER :
Refer :
page-83/680, 360/680 - https://www.scribd.com/doc/314397588/Public-
International-Law
Intro :
An individuals status as a subject of international law has been debated since as
long back as the evolution of international law itself, having originated since the
inception of the law itself.
The inclusion of individuals as subjects of international Law is deeply rooted in the
emergence of the human rights law and international criminal responsibility.
History :
Originally, only states were deemed subjects of International Law, but the theory
began waning with the understanding that individuals were what constituted the
state itself. Inherently entwined with the concept of State Responsibility is the
concept of citizenship.
In the early days, individual rights were only those that were ascribed, or granted
to the citizens of the State. However, this paved the way for issues such as
inclusion and exclusion, which boiled down to a segregation of rights, as such, into
those that could be enjoyed by a citizen, and those that could be enjoyed by non-
citizens. This segregation came up much after the initial segregation as existent
amongst the citizens themselves- i.e., women and people from colonies.
However, from before the United Nations, the individual was steadily being
recognized as a subject. Humanitarian law was steadily being codified, with the
ultimate aim of dispensing with the effects of war on combatants and civilians, and
aliens were given minimal protection. The individual was, at all times, nevertheless,
construed as an entity associated with the state, and was not regarded as a subject
of international law.
After the Second World War, this glaring defect in the status of the individual was
glaringly evident. It became clear that the state was not the permanent and
immediate guardian of the rights of its citizens.
Gory incidents such as the Holocaust paved way for the awareness of the need for
a strong Human Rights regime, which in turn resulted in the grant of recognition of
the individual as a subject of International Law. With the understanding that
human rights are only just guaranteed by the state, and not granted by the state,
by virtue of the fact that such rights are inherent. As a result sovereignty and
citizenship as a link between the state and the individual took a backseat, giving
the individual prominence at the international level.
Evolution of Individual as a 'subject' :
With the end of the World Wars, decolonization came into play, as colonies evolved
into states bearing sovereign powers in their own right.
At that juncture, as international law began to evolve into a field of modern
relevance, states were still subjects of international law in entirety.
The earliest question on international personality was dealt with in the Case of
Reparation for Injuries suffered in the Service of the United Nations, where the
ICJ held that the organization, i.e., the United Nations, is an international
person, implying that it is an entity capable of possessing international rights
and duties, and that it had capacity to maintain its rights by bringing in
international claims.
The classical understanding of sovereignty changed into a more human oriented
perception, as the concept of absolute sovereignty functioned to the detriment of
states and their people. The development was beautifully phrased by Wolfgang
Friedmann as being a movement from coordination to cooperation.

The need to evolve an international anarchy propelled the evolution of international
cooperation, which was slowly institutionalized through the United Nations.
Individuals became the core of all action, as each state emerged responsible for
their people, citizens and aliens on their territory. The awareness of a shared
responsibility, the need to cooperate and the obligation to assert an independent,
dignified living were all the catalytic factors to creating an international community.
Allied with the core tenets of state sovereignty are the principle of citizenship,
nationality and the concept of aliens. Individual rights were essentially those that
were ascribed, or granted to the citizens of a state, thereby creating a system of
inclusion and exclusion. Non-citizens enjoyed a certain measure of rights, but not
an equivalent to the extent accorded to citizens themselves. This resulted in the
creation of a world where the individual became the fulcrum of determination of the
extent and scope of a states powers and functions.
Nationality as a link between the state and the individual :
International law identifies nationality as a link between the state and the
individual. This is a very important factor particularly in the light of jurisdictional
issues, and the international protection of individuals by states. Every state is
vested with the right to determine who its nationals are, but for the acceptance of
such recognition of the identity, there needs to be a genuine connection between
the two.
Despite an explicit recognition of individuals as subjects of International Law, it
must be remembered that an individual is not conferred with locus standi to protest
against a breach of International Law.
In the past, individuals were conferred with particular rights capable of being
enforced in International Law notwithstanding what municipal law stipulated.
The 1919 Treaty of Versailles allowed nationals of the Allies and their associated
powers to bring cases against Germany before the Mixed Arbitral Tribunal in
their own names, for compensation.
In the Danzig Railway Officials case, the PCIJ held that treaties in International
Law did not as such create direct rights and obligations for private individuals.
Particular treaties, however, can provide for the adoption of individual rights and
obligations enforceable by the national courts where this was in particular the
intention of the contracting parties.
eg European Convention on Human Rights, 1950, the European Convention
Treaties of 1957, the Inter-American Convention on Human Rights, 1969, the
International Convention on Civil and Political Rights, 1966, the International
Convention on the Economic, Social and Cultural Rights, 1969 and the
Convention on the Settlement of Disputes, 1965.
Human Rights Laws and Individual as a 'subject' :

With the advent of human rights as a concept and the understanding that all states
are under an obligation to ensure a certain minimum standard of rights for
everyone, irrespective of their nationality or origin, it came to be clear that the
individual did have a role to play under the ambit of international law, as an entity
clothed with rights. The protection of human rights became a rather important
concern of all States.
International criminal law has created a path to ascertain room for an individual to
be clothed with duties. With the Nuremberg Trials and the subsequent cache of
incidents where an individual needed to be extradited to be subjected to a trial, it
became evident that even if there were affiliations to states, for most of these
individuals, there were still duties demanded of them under international law.
With the evolution of the International Criminal Court, there was a path-breaking
development in international law, in 1945, as the Criminal Court essentially takes
into its hands the treatment of individuals at the international level, by dealing with
human rights and humanitarian law.
The adoption of human rights conventions, of both kinds, i.e., those that grant
substantive rights and those that penalize the violation of these rights, by several
states only go on to affirm the extent of recognition the individual has been
accorded under international law. A deviance from the standard so laid down would
invariably elicit sanctions at the municipal level, in the form of penalties subscribed
to by the state.
In the event that the atrocities committed by an individual take on shades of
flagrant violations of humanitarian law, or jus cogens norms, the state may find an
option in the International Criminal Court to prosecute the offender if they are
members.
In the event that they are not members of the Court, the Security Council may step
in and authorize the International Criminal Court to intervene.
International criminal responsibility :
Other judicial remedies at the international level against individuals are found in
the form of the International Criminal Tribunal for the former Yugoslavia, the
European Court of Human Rights and the Criminal Tribunals for Sierra Leone and
Rwanda.
International law has imposed direct responsibility upon individuals in certain
spheres of action. Piracy, slavery and torture are deemed cases where offenders
guilty of the crime can be tried and punished by international tribunals.
The earliest instance dates back to 1919, where the Treaty of Versailles
recognized the rights of the Allied and their associated powers to bring
individuals accused of crimes against the laws and customs of war before
military tribunals, and also established individual responsibility of the Kaiser.

The Nuremberg Trials heralded a new era in international criminal responsibility.
The tribunal was known to have held that international law imposed duties and
liabilities upon individuals, too, because crimes are committed by individuals,
and not by abstract entities such as the state, and, only by punishing the
individuals who commit the crimes, can the provisions of International Law be
enforced.
With the affirmation of these principles and the Tribunals decision by the UN
General Assembly in Resolution 95(1), these principles began to be construed as an
integral part of International Law.
Genocide is deemed a crime in International Law, and attracts individual
responsibility. This parameter is afforded recognition in the 1948 Genocide
Convention and in the 1973 International Convention on the Suppression and
Punishment of the Crime of Apartheid. The International Humanitarian Law regime
also confirms individual criminal responsibility. The four Geneva Conventions of
1949 and the Additional Protocols of 1977 in particular, stress upon the fact that
the High Contracting Parties ought to undertake to enact necessary legislation to
provide effective penal sanctions for grave breaches by an individual.
Does individual responsibility hamper state responsibility ?
The International Law Commission has adopted a Draft Code of Crimes against
Peace and Security of Mankind in 1991, which clamps down individual criminal
responsibility for aggression, genocide, a crime against humanity, a crime against
the United Nations, and any war crimes. Nevertheless, individual criminal
responsibility does not hamper state responsibility.
In 1994, the ILC adopted a Draft Statute for the ICC, which ultimately
culminated in the Rome Statute. Special courts have been established for
Yugoslavia, Rwanda and Sierra Leone to deal with individual criminal cases.
Conclusion :
International law is extremely dynamic, given that it governs not just the people of
one state, but the people of all states. The ethical considerations underlying
international law have come to be accepted and respected by a majority of states.
The contemporary international realm hinges upon a set of values that have come
to be accepted in the form of international treaties, like the UN Charter and the
UDHR, which evince elements of both human rights and state responsibilities.
The notions of individual rights and responsibilities are tightly wound with state
rights and responsibilities under international law, creating a tightly woven weft of
considerations which propel the factors affecting the behaviour of each state, and
each individual, be it at the international or municipal level.
Go To Contents
Explain the state jurisdiction on terrorism, hijacking, narcotics, war crimes, and
crimes against peace. (Nov-2011, Oct-2013)
Explain in detail the jurisdiction of state in respect of terrorism, hijacking, narcotic
drugs, etc. (Nov-2012)
Explain in detail : State jurisdiction on Terrorism. (Dec-2016)
ANSWER :
State jurisdiction on terrorism :

State jurisdiction on hijacking :

State jurisdiction on narcotics :

State jurisdiction on war crimes :

State jurisdiction on crimes against peace :

Go To Contents
Explain : Powers and functions of international organizations. (Nov-2011)

ANSWER :
page-437 / 680 - https://www.scribd.com/doc/314397588/Public-International-Law
https://en.wikipedia.org/wiki/Intergovernmental_organization
What is "international organization" ?
An international organization is an organization with an international membership,
scope, or presence. The first and oldest intergovernmental organization is the
Central Commission for Navigation on the Rhine, created in 1815 by the Congress
of Vienna.
There are two main types :
Intergovernmental organizations, also known as international governmental
organizations (IGOs): the type of organization most closely associated with the
term 'international organization', these are organizations that are made up

primarily of sovereign states (referred to as member states).
Notable examples include the United Nations (UN), Organisation for
Economic Co-operation and Development (OECD), Organization for Security
and Co-operation in Europe (OSCE), Council of Europe (COE), and World
Trade Organization (WTO).
International nongovernmental organizations (INGOs): non-governmental
organizations (NGOs) that operate internationally. These include international
non-profit organizations and worldwide companies such as the World
Organization of the Scout Movement, International Committee of the Red Cross
and Mdecins Sans Frontires.
Important Note :
The UN uses the term "intergovernmental organization" instead of
"international organization" for clarity.
Intergovernmental organizations in a legal sense should be distinguished from
simple groupings or coalitions of states, such as the G8 or the Quartet. Such
groups or associations have not been founded by a constituent document and
exist only as task groups.
Role of International Organizations :
The role of international organizations are helping to set the international agenda,
mediating political bargaining, providing place for political initiatives and acting as
catalysts for coalition- formation. International organizations also define the salient
issues and decide which issues can be grouped together, thus help governmental
priority determination or other governmental arrangements.
Intergovernmental organizations are an important aspect of public international
law. IGOs are established by treaty that acts as a charter creating the group.
Treaties are formed when lawful representatives (governments) of several states
go through a ratification process, providing the IGO with an international legal
personality.
Scope and purpose of International Organizations : Intergovernmental organizations
differ in function, membership and membership criteria. They have various goals and
scopes, often outlined in the treaty or charter.
Some IGOs developed to fulfill a need for a neutral forum for debate or
negotiation to resolve disputes.
Others developed to carry out mutual interests with unified aims to preserve
peace through conflict resolution and better international relations, promote
international cooperation on matters such as environmental protection, to
promote human rights, to promote social development (education, health care),
to render humanitarian aid, and to economic development.
Some are more general in scope (the United Nations) while others may have
subject-specific missions (such as Interpol or the International Organization for
Standardization and other standards organizations).
Types of International Organizations : Common types include :
Worldwide or global organizations - generally open to nations worldwide as long as
certain criteria are met. This category includes the United Nations (UN) and its
specialized agencies, the Universal Postal Union, Interpol, the World Trade
Organization (WTO), the International Telecommunication Union (ITU), the World
Customs Organization (WCO), World Nature Organization (WNO), and the
International Monetary Fund (IMF).
Regional organizations - open to members from a particular continent region or
other specific region of the world. This category includes the Council of Europe
(CoE), European Union (EU), Energy Community, NATO, Organization for Security
and Co-operation in Europe, African Union (AU), Organization of American States
(OAS), Association of Southeast Asian Nations (ASEAN), Islamic Development Bank
Union of South American Nations, Asia Cooperation Dialogue (ACD), and Pacific
Islands Forum.
Cultural, linguistic, ethnic, religious, or historical organizations - open to members
based on some cultural, linguistic, ethnic, religious, or historical link. Examples
include the Commonwealth of Nations, Arab League, Organisation internationale de
la Francophonie, Community of Portuguese Language Countries, Latin Union, Turkic
Council, International Organization of Turkic Culture, Organisation of Islamic
Cooperation, and Commonwealth of Independent States (CIS).
Economic organizations - based on economic organization. Some are dedicated to
free trade, the reduction of trade barriers (the World Trade Organization) and
International Monetary Fund (IMF). Others are focused on international
development. International cartels, such as OPEC, also exist.
Educational organizations - centered around tertiary level study. Academy of
European Law offers training in European law to lawyers, judges, barristers,
solicitors, in-house counsel and academics.
Health and Population Organizations- based on the common perceived health and
population goals and to address those challenges collectively. An example is the
intergovernmental partnership for population and development "Partners in
Population and Development.
Detailed discussions on specific international organizations :
United Nations :
---> <Discussed elsewhere in this doc>
General Assembly :
Security Council :
Amnesty International, UNESCO, UNICEF :
International labor organization (ILO) :
International criminal court :
International court of justice :
The ASEAN :
The Association of South East Asian Nations is the product of a geopolitical and
economic association of 10 states in South East Asia, formed in 1967.
The ASEAN is primarily established for the sake of acceleration of economic
growth, social progress, cultural development andthe protection and
preservation of peace in the region, in a bid to provide opportunities for
members to discuss their differences peacefully.
The policy making process of the ASEAN is vested with the summit, which
comprises all the Heads of State of the members, and also a Coordinating
Council comprising Foreign Ministers, as per Articles 11 and 12 of the Charter.
There are also some community councils and sectorial ministerial bodies devoted
to assisting the functioning of the ASEAN.
The SAARC :
The South Asian Association for Regional Cooperation marks the coming
together of states in South Asia in furtherance of an intention to cooperate
regionally. Founded in 1985, the SAARC is essentially devoted to the economic,
political, social, scientific and cultural development of states in South Asia, with
ample emphasis on collective self-reliance and sovereign power.
There are 11 broad areas of cooperation, which include agriculture; education,
culture, and sports; health, population, and child welfare; the environment and
meteorology; rural development (including the SAARC Youth Volunteers
Program); tourism; transport; science and technology; communications.
The key objectives of the association as mentioned in Article 1 of the Charter
include the promotion of the welfare of the people of South Asia and to improve
their quality of life; the acceleration of economic growth, social progress and
cultural development in the region and to provide all individuals the opportunity
to live in dignity and to realize their full potential; the promotion and
strengthening of collective self-reliance among the countries of South Asia; the
contribution to mutual trust, understanding and appreciation of one another's

problems; the promotion of active collaboration and mutual assistance in the
economic, social, cultural, technical and scientific fields; strengthening
cooperation with other developing countries; strengthening cooperation among
themselves in international forums on matters of common interest; and
cooperating with international and regional organizations with similar aims and
purposes.
The SAARC has 8 member states and 9 observers. The SAARCs Free Trade Area
agreement is worthy of mention, having been created in 2004, it functions to
assist free trade in a zone comprising nearly 2 billion people.
The Commonwealth of Nations :
The Commonwealth of Nations is an organization comprising 53 states, all of
which were formerly under British colonial rule.
The member states function within the ambit of common values and goals, as
mentioned in the Singapore Declaration, and support ideals of democratic
values, human rights and good governance, free trade and multilateralism and
the rule of law and peace.
The Commonwealth is not a political union, but just an associational network of
states with divergent social, political and economic structures sharing common
values and being deemed equal in status.
The permanent Commonwealth Secretariat carries out the activities, with the
Secretary General heading it.
The Commonwealth also serves as a forum for several NGOs, being called the
Commonwealth Family. It also holds the Commonwealth Games. The main aim is
to foster unity through a stream of activities that includes sports, culture,
literary heritage and political opinion.
Go To Contents
Write short note : Objectives of united nations. (Dec-2015)

Write short notes : The general assembly of UN. (Nov-2014)

ANSWER :
wikipedia
UNITED NATIONS :
Intro :
The United Nations primarily aims at facilitating cooperation in International
Law, International Security, economic development, social and political progress,
human rights and the securing of world peace and order.
Founded in 1945, at the end of the Second World War, the United Nations
replaced the League of Nations in a bid to avert the likelihood of war, and to
sustain peace. Consequent to the same, the United Nations, in all the years of its
existence, has expanded its reach and ambit to include several ancillary
mandates that come within the fold of maintaining international peace and
security, to the point that it has widened its operations by deploying several
subsidiary organizations and ancillary bodies towards performing its mandated
obligations.
With 192 member states, the United Nations includes all the sovereign states in
the world with the exception of the Vatican City. Functioning with offices and
bodies placed all over the world, the United Nations and its specialized agencies
decide on substantive and administrative questions by conducting meetings
regularly.
With the widespread acceptance and recognition of the fact that mankind could
not afford to suffer under the brunt of a Third World War, the United Nations was
installed in place of the League of Nations, in a bid to replace the flawed
institution functioning prior to the outbreak of World War II.
Evolution of UN : League of Nations the predecessor of UN :
Franklin Roosevelt was the brain behind the terminology, League of Nations,,
having coined it in an attempt to describe the Allied states in their relations with
one another.
The term itself was officially deployed on January 1, 1942, with 26 states signing
the Atlantic Charter, furthering their pledge to keep their war efforts sustained
and continued.
From August to October 1944, representative authorities from China, France, the
United Kingdom, the United States and the USSR came together, outlining
elaborate plans at the Dumbarton Oaks Conference in Washington DC. Proposals
emanated therefrom that could plausibly contribute towards maintenance of
international peace and security and international cooperation.
Following this, the Yalta Conference took place, paving the way for opening
membership to all nations that had joined the Allies by March 1, 1945.
Official discussions that augmented the intention of creating such an
organization took more formal shape with the San Francisco UN Conference on
International Organization, on April 25, 1945. The conference witnessed the
meeting of minds among as many as 50 governments, and plenty of other non-
governmental entities that assisted in the process of drafting the UN Charter.

Incorporation of UN :
Finally, the UN came into existence on October 24, 1945, following the
ratification of the Charter by five permanent members of the UN Security
Council, namely, China, France, the UK, USA and the Soviet Union, and as many
as 46 other signatory states.
Following this, the first meeting of the General Assembly comprised
representatives of 51 states, and took place at the Westminster Central Hall in
London, in January 1946, and the Security Council took place at the Church
House, London.
Following its establishment, the United Nations sought to be recognized as a
legal person, accorded with international legal personality, in the course of its
application to the International Court of Justice, in the Reparations for Injuries
Suffered in the Service of the United Nations case, seeking an advisory opinion
as to whether the United Nations had the legal standing to bring a claim against
a government, seeking compensation for the loss caused by the states
personnel.
Official Languages :
Six official languages are deployed for all official work, namely, Arabic, Chinese,
English, French, Russian and Spanish.
Organs of UN : The United Nations has as many as six principal organs that it
deploys towards fulfilling its mandates, namely,
the General Assembly,
the Security Council,
the Economic and Social Council,
the Secretariat,
the International Court of Justice and
the Trusteeship Council which at present is inactive.
The UN Secretariat :
The Secretariat, headed by the Secretary General and assisted by a team of
international civil servants placed world over, is the head of the United Nations,
in official terms.
Functions :
The Secretariat functions to provide studies, information and facilities as
needed by the United Nations for their meetings, and also carries out other
functions as designated and directed by the Security Council.
It functions to execute tasks when directed by the Security Council, the
General Assembly, the Economic and Social Council and other UN bodies.
Duties :
The primary duties of the Secretary General include the resolution of
international disputes, the administration of peacekeeping operations, the
organization of various international conferences, implementing the decisions
of the Security Council and engaging in consultations with member
governments in pertinence to different initiatives.
Key Officers :
The Office of the Coordinator of Humanitarian Affairs and the Department of
Peacekeeping Operations function as the key secretariat offices.
The Secretary General can inform the Security Council of any issue that
seems like a threat to international peace and security. The Secretary General
serves for five-year terms, each of which can be renewed indefinitely, and he
is appointed by the General Assembly upon the recommendation of the
Security Council.
The UN General Assembly (UNGA) :
Intro :
The General Assembly is the main deliberative assembly, comprising
representatives of all the UN member states.
Meeting annually in the course of regular yearly sessions under a president
elected from amongst all the member states, the General Assembly votes on
several questions.
For votes on important questions, a two-thirds majority of all those present and
voting is necessary, specific examples for which include recommendations on
peace and security, election of members to organs, admission of members,
suspension and expulsion of members, budgetary requirements and pressing
concerns in the international realm.
Questions are addressed using a majority vote procedure. Each state has one
vote, and aside of resolutions pertaining to budgetary questions, none of the
resolutions are binding on member states.
The Assembly is free to make recommendations on any issues falling within the
scope of the United Nations except those that come within the purview of the
Security Council.
Seating arrangement at UNGA :
Countries are seated alphabetically in the General Assembly according to English
translations of the countries' names.
However, the country which occupies the front-most left position (and hence the
countries' seating position in the Assembly) is rotated annually by lot.
One country is balloted each year to sit in the front-most left position, and the
remaining countries follow alphabetically behind it

Agenda of General Assembly and its adoption :
The agenda for each of its sessions are drawn up about seven months in
advance, commencing with the release of a preliminary list of items that are to
be included in the provisional agenda.
Following this procedure the provisional agenda is shaped up from this outline,
approximately sixty days before the session opens.
Once the session starts, the final agenda is adopted in a plenary meeting, where
work is allocated to different Committees, each of which submits a report back
to the Assembly for its adoption, either by consensus or by vote. The agenda has
a numbered list of items.
The regular, plenary sessions of the General Assembly in terms of a schedule,
runs for three months, but due to additional work, the span of time taken by
each session tends to extend until just before the next session commences.
UNGA resolutions :
The General Assembly votes on resolutions that are presented by sponsoring
states, in the form of statements that symbolize the pulse of the world
community in pertinence to relevant issues.
In terms of a legal character, these resolutions are not enforceable, particularly
because the General Assembly does not have enforcement powers in pertinence
to several issues- except on issues such as the final budget of the United
Nations.
Nevertheless, these resolutions are of immense political value, and are legally
binding on the General Assembly in its operations.
It is also open for the General Assembly to make a reference of an issue to the
Security Council, in order to allow the evolution of a binding resolution.
Resolution numbering scheme :
From the First to the Thirtieth General Assembly sessions, all General Assembly
resolutions were numbered consecutively, with the resolution number followed
by the session number in Roman numbers (for example, Resolution 1514 (XV),
which was the 1514th numbered resolution adopted by the Assembly, and was
adopted at the Fifteenth Regular Session (1960)).
Beginning in the Thirty-First Session, resolutions are numbered by individual
session (for example Resolution 41/10 represents the 10th resolution adopted at
the Forty-First Session).
Important UNGA Resolutions : Some of the most noteworthy resolutions of the
General Assembly have come to remain crystallized versions of state practice and
reflections of customary international law. By way of certain resolutions, the
General assembly has played a catalytic role in contributing towards codifying and
pinning down international law in a structured manner. For example,
Resolution 177 (1947) directed the International Law Commission to formulate
the principles of international law as recognized in the Charter of the Nuremberg
Tribunal and in the judgment of the Tribunal, a move that resulted in the official
creation of the Nuremberg Principles.
Resolution 260 (1948) marked the onslaught of the Convention on the
Prevention and Punishment of the Crime of Genocide.
Resolution 377A (1950) marked the Uniting For Peace endeavour, which
indicated the existence of a perception that the maintenance of international
peace and security sub-serves all conduct embarked upon under international
law and politics.
Resolution 505 (1972) is of particular relevance to the question of peace and
security, considering that it deemed the threats to political independence and
territorial integrity as it happened to China, as threats to peace. Consequent to
this, the notion evolved that any threat to political independence and territorial
integrity would be deemed an anathema to the principles outlined under Article
2(4) and 2(7) of the UN Charter, a principle that has now come to occupy the
exalted status as jus cogens norms.
Resolution 2131 (XX) of 1965 : The move was augmented by Resolution 2131
(XX) of 1965, which brought to fore the "Declaration on the Inadmissibility of
Intervention in the Domestic Affairs of States and the Protection of their
Independence and Sovereignty".
Resolution 1514 (1960) marked the entry into existence of the "Declaration on
the granting of independence to Colonial Countries and Peoples", through which
the term self-determination was defined for the first time by the United Nations.
Resolution 2625 (XXV), of 24 October 1970, witnessed the adoption of the
Friendly Relations Declaration, enthusing states into maintaining friendly
relations with one another in order to ascertain means for international
cooperation and peaceful existence.
Resolution 1962(1963) : The earliest resolution governing the Law of Outer
Space was Resolution 1962(1963), which in turn sparked off the creation of five
treaties specific to the issues concerning Outer Space.
Resolution 3068 (1973) : By way of Resolution 3068 (1973), the Apartheid
Convention opened for signature,
Resolution 61/295 (2007) brought the "Declaration on the Rights of Indigenous
Peoples".
Resolution 3314 (1974) is particularly relevant in international law for having
defined the term aggression, and bears ample relevance in the field of
international criminal law.

With Resolution 62/149 (2007), the General Assembly called for a universal
moratorium on Capital Punishment, with a view of total abolition, and in the
meantime, also called for the respect of the rights of those in the death row, and
called for those states that had abolished the same, not to reinstate it.
Committees of General Assembly : The General Assembly has six main committees,
numbered One to Six.
The first is the Disarmament and International Security Committee,
the second is the Economic and Financial Committee,
third, the Social, Cultural and Humanitarian Committee,
fourth, the Special Political and Decolonization Committee,
fifth the Administrative and Budgetary Committee, and
the sixth is the Legal Committee.
Each of these committees comprise of all members of the General Assembly, and
each elects a chairman, three vice-chairmen and a rapporteur at the beginning
of each regular session of the General Assembly. With time, the committees and
their responsibilities have undergone plenty of changes.
Until the latter part of the 1970s, the First Committee was called the Political and
Security Committee, or the POLISEC, and the Fourth Committee used to deal
with Trusteeship and Decolonization matters.
There was also a Special Political Committee that dealt with some of the
contemporary additional political matters at the time. With the dwindling of trust
territories and with the end of decolonization, the Special Political Committee
and the Fourth Committee became one.
In addition to these committees, there is the Credential Committee that is
charged with ensuring that all diplomatic credentials of individuals functioning as
UN representatives are fully in order. It comprises nine states, each elected in
the early part of each session of the General Assembly.
The General Committee is another committee, which functions as a supervisory
committee, entrusted with ensuring smooth functioning of the Assembly, and
comprises the President and Vice Presidents of the current session of the
General Assembly, and each of the chairmen of the six Main Committees.
Commissions of General Assembly : The General Assembly also has seven
Commissions towards assisting its functioning, namely,
the Disarmament Commission,
the International Civil Service Commission,
the International Law Commission,
the United Nations Commission on International Trade Law,
the United Nations Conciliation Commission for Palestine,

the United Nations Commission on Human Rights, and
the United Nations Peace-building Commission.
Go To Contents
Explain : (i) Amnesty International, (ii) UNESCO, (iii) UNICEF.

ANSWER :
Refer :
wikipedia
https://en.wikipedia.org/wiki/Amnesty_International
(i) Amnesty International :
Intro :
Amnesty International (commonly known as Amnesty and AI) is a non-
governmental organisation focused on human rights that claims to have over 7
million members and supporters around the world. The stated objective of the
organisation is "to conduct research and generate action to prevent and end
grave abuses of human rights, and to demand justice for those whose rights
have been violated."
Amnesty International was founded in London in 1961, following the publication
of the article "The Forgotten Prisoners" in The Observer on 28 May 1961, by the
lawyer Peter Benenson.
Amnesty draws attention to human rights abuses and campaigns for compliance
with international laws and standards. It works to mobilise public opinion to put
pressure on governments that let abuse take place.
Amnesty considers capital punishment to be "the ultimate, irreversible denial of
human rights". The organisation was awarded the 1977 Nobel Peace Prize for its
"campaign against torture," and the United Nations Prize in the Field of Human
Rights in 1978.
In the field of international human rights organisations, Amnesty has the third
longest history, after the International Federation for Human Rights and
broadest name recognition, and is believed by many to set standards for the
movement as a whole.
Objectives :
Amnesty International primarily targets governments, but also reports on non-
governmental bodies and private individuals ("non-state actors").

There are six key areas which Amnesty deals with :
Women's, children's, minorities' and indigenous rights
Ending torture
Abolition of the death penalty
Rights of refugees
Rights of prisoners of conscience
Protection of human dignity.
Some specific aims of AI are to :
abolish the death penalty, end extra judicial executions and "disappearances,"
ensure prison conditions meet international human rights standards, ensure
prompt and fair trial for all political prisoners, ensure free education to all
children worldwide, decriminalise abortion, fight impunity from systems of
justice, end the recruitment and use of child soldiers, free all prisoners of
conscience, promote economic, social and cultural rights for marginalised
communities, protect human rights defenders, promote religious tolerance,
protect LGBT rights, stop torture and ill-treatment, stop unlawful killings in
armed conflict, uphold the rights of refugees, migrants, and asylum seekers,
and protect human dignity.
Structure of AI :
Amnesty International is largely made up of voluntary members, but retains a
small number of paid professionals.
In countries in which Amnesty International has a strong presence, members are
organised as "sections".
Sections co-ordinate basic Amnesty International activities normally with a
significant number of members, some of whom will form into "groups", and a
professional staff. Each have a board of directors.
In 2005 there were 52 sections worldwide. "Structures" are aspiring sections.
They also co-ordinate basic activities but have a smaller membership and a
limited staff.
In countries where no section or structure exists, people can become
"international members". Two other organisational models exist :
"international networks", which promote specific themes or have a specific
identity, and
"affiliated groups", which do the same work as section groups, but in isolation.
The organisations outlined above are represented by the International Council
(IC) which is led by the IC Chairperson. Members of sections and structures
have the right to appoint one or more representatives to the Council according
to the size of their membership.

Principles of AI :
The core principle of Amnesty International is a focus on prisoners of conscience,
those persons imprisoned or prevented from expressing any opinion other than
violence.
Along with this commitment to opposing repression of freedom of expression,
Amnesty International's founding principles included non-intervention on political
questions and a robust commitment to gathering facts about the various cases.
One key issue in the principles is in regards to those individuals who may
advocate or tacitly support resorting to violence in struggles against repression.
AI does not judge whether recourse to violence is justified or not.
However, AI does not oppose the political use of violence in itself since The
Universal Declaration of Human Rights, in its preamble, foresees situations in
which people could "be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression".
If a prisoner is serving a sentence imposed, after a fair trial, for activities
involving violence, AI will not ask the government to release the prisoner.
AI neither supports nor condemns the resort to violence by political opposition
groups in itself, just as AI neither supports nor condemns a government policy of
using military force in fighting against armed opposition movements.
However, AI supports minimum humane standards that should be respected
by governments and armed opposition groups alike.
When an opposition group tortures or kills its captives, takes hostages, or
commits deliberate and arbitrary killings, AI condemns these abuses.
Amnesty International opposes capital punishment in all cases, regardless of the
crime committed, the circumstances surrounding the individual or the method of
execution.
Funding of AI :
Amnesty International is financed largely by fees and donations from its
worldwide membership.
It says that it does not accept donations from governments or governmental
organisations.
According to the AI website,
"these personal and unaffiliated donations allow AI to maintain full
independence from any and all governments, political ideologies, economic
interests or religions. We neither seek nor accept any funds for human rights
research from governments or political parties and we accept support only
from businesses that have been carefully vetted. By way of ethical fundraising
leading to donations from individuals, we are able to stand firm and

unwavering in our defence of universal and indivisible human rights."
Criticism and controversies :
Criticism of Amnesty International includes
claims of excessive pay for management,
underprotection of overseas staff,
associating with organisations with a dubious record on human rights
protection,
selection bias,
ideological/foreign policy bias against either non-Western countries or
Western-supported countries, and
criticism of Amnesty's policies relating to abortion.
Governments and their supporters have criticised Amnesty's criticism of their
policies, including those of Australia, Czech Republic, China, Democratic Republic
of the Congo, India, Iran, Israel, Qatar, Saudi Arabia, Vietnam, Russia and the
United States, for what they assert is one-sided reporting or a failure to treat
threats to security as a mitigating factor.
The actions of these governments and of other governments critical of
Amnesty International have been the subject of human rights concerns voiced
by Amnesty.
(ii) UNESCO :
wikipedia
<work on this>
UNICEF :
wikipedia
<work on this>
Go To Contents
Explain : International labor organization (ILO). (Nov-2012)

ANSWER :
wikipedia
<work on this>
Go To Contents
Write short notes : International criminal court. (Nov-2014)

ANSWER :
<work on this>
Go To Contents
Write short note : International court of justice. (Dec-2015)

Explain in detail the purpose and jurisdiction of the International Court of Justice.
(Dec-2016)
ANSWER :
Refer :
wikipedia
Intro :
The International Court of Justice is the primary judicial organ of the United
Nations. The Court took over from the Permanent Court of International Justice, in
1946, and was brought into existence with the Statute of the International Court of
Justice. The Court is situated at the Peace Palace, in The Hague, the Netherlands.
Vested with the primary duty of adjudicating disputes between states, the ICJ has
heard matters relating to war crimes, intervention, genocide and ethnic cleansing,
nuclear weapon usage, the use of force, self-determination and the question of
unilateral declaration of independence, among a host of other questions of law.
Composition of ICJ :
The court comprises 15 judges who hold office for a 9-year term, and are elected
by the General Assembly and the Security Council, from a list of qualified people
nominated by national groups in the Permanent Court of Arbitration.
A judge may hold office for more than one term, and elections take place every
three years with one-third of the judges on the roster retiring each time.
As a rule, no two judges on the panel may be nationals of the same state, since the
membership of the Court is expected to represent the main forms of civilization and
of the principal legal systems of the world, as Article 9 puts it.
In the event of a Judges passing in office, a judge of the same nationality is
appointed for the remainder of the term in his place. Ad hoc judges are also
permitted to sit on contentious cases before the court, as per Article 31 of the
Statute, whereby any party is free to nominate a judge of their choosing, allowing
as many as seventeen judges to sit on one case.
The judges of the ICJ are not allowed to hold any other post, and are expected to
maintain judicial independence. While this is so, there have been events where the
independence of judges has been questioned.
eg In the Nicaragua Case, the United States indicated that it was not possible
for it to present sensitive material to the Court, since there were judges from
states belonging to the Eastern bloc.
Judges are free to deliver judgments together, or individually, and this also allows
room for separate, dissenting opinions. The Presidents vote is the deciding factor
where there is an equal division of opinion.
Jurisdiction of ICJ :
The jurisdictional ambit of the court comprises the authority to hear two kinds of
cases-
1. those needing the court to exercise its contentious jurisdiction, where
states are in dispute with one another, and
2. advisory jurisdiction, where a point in law needs to be amplified with
clarity.
1. Jurisdiction of ICJ in contentious matters :
In contentious cases, only states are allowed to be parties, although non-state
interests may form a considerably important part of the issues brought before
the court in the dispute. The outcome is a binding ruling that mandates the state
parties to follow in the set manner.
Jurisdiction of the ICJ is exercisable only based upon consent. Article 36 of the
Statute outlines four criteria upon which the Court may exercise jurisdiction.
Clause 1 states that parties may refer their cases to the Court, consequent to a
special agreement or a compromise, whereby consent plays a role as opposed to
compulsory jurisdiction.
This form has come across as a rather effective basis for the Court to exercise
jurisdiction, since the parties concerned themselves have a desire for the
settlement of the dispute, and consequently, may be more inclined towards
obeying and complying with the decision.
Clause 1 also allows the Court to exercise jurisdiction over matters specifically
provided for in treaties and conventions in force at the time. This is relevant
because many modern treaties comprise a dispute resolution clause, according
the forum rights to the ICJ.
Clause 2 allows states to create optional clauses alluding to the Courts
jurisdiction, and subsequently its acceptance. Although titled compulsory, the
access of jurisdiction is purely voluntary.

Reciprocity is also a factor that can stunt jurisdiction. Sixty-six states, as of
date, have declarations in force.
Clause 5 stipulates that jurisdiction can be exercised based on declarations as
made under the statute of the erstwhile Permanent Court of International Justice
(PCIJ), and Article 37 of the statute transfers the jurisdiction under compromise
clauses in treaties that accorded the erstwhile PCIJ jurisdiction.
Lastly, jurisdiction in contentious matters may also be exercised based on the
principle of forum prorogatum, or the principle of tacit consent. If the respondent
state either accepts, or begins pleading on the merits of the case, the court
begins to exercise jurisdiction.
eg In the Corfu Channel Case, where the Court held that a letter from
Albania, which stated that it submitted to the ICJs jurisdiction was sufficient
to grant it jurisdiction over the case.
2. Advisory jurisdiction of ICJ :
Advisory jurisdiction allows the ICJ to offer advice on legal questions, to
specified bodies and agencies of the United Nations.
Procedure followed :
A request is made to the Court, following which it decides which States and
Organizations may offer useful information on the question posed. Then,
these select states and organizations submit either oral or written
agreements. The idea is to allow the Court to explain serious legal issues that
may fall within the gamut of their specific mandates.
The Courts advisory opinions bear consultative character, albeit quite influential
and strong in terms of weightage.
Binding nature of opinion :
By nature they do not bear any binding value, but, if the entities seeking such
advisory opinion mention through declarations, instruments or regulations,
they may be binding upon the parties seeking the same. Even though the
opinions are not legally binding, they hold ample weightage in that these legal
opinions are reflective of the Courts views on international law, and the
reasoning behind them.
In arriving at these conclusions, the Court uses the same set of procedures while
adhering to the same rules that govern the process of making its binding
decisions in contentious cases, and therefore, are of immense importance.
The Advisory Opinions of the Court attain importance in terms of status given
that they are official pronouncements of the principal judicial organ of the United
Nations.
Laws applicable to ICJ :

The Law applied by the International Court of Justice is as mentioned under Article
38, as being the sources of law. It shall apply the law as explained under
international conventions, international customs, the general principles of law as
recognized by civilized nations, academic writing reflecting the teachings of the
most highly qualified publicists of various nations, and decisions and
determinations of courts, tribunals and arbitral forums.
Article 59 establishes that the ICJ is not bound by its own decisions, and if
anything, precedents only hold persuasive value before the Court. The court is also
free to traverse the letter of the law, transcending into deciding the case in keeping
with justice and fairness, through the option of deciding the case ex aequo et bono
(a Latin term which means what is just and fair or according to equity and good
conscience), if the parties agree to such effect, as per Article 38(2). Nevertheless,
till date, the ICJ has never used this option.
Procedures followed by ICJ :
The procedural roadmap for the court is set out in the Rules of the International
Court of Justice, 1978.
The case is lodged by the state which moves the court first, called the applicant.
The applicant state submits a written submission, or memorial, outlining the basis
upon which the court may exercise jurisdiction, along with a detailed enumeration
of all the merits underlying the claim it makes.
Following this, the respondent is informed, and may accept the courts jurisdiction
and file its own set of written submissions or memorial in response, outlining its
stance under the law and on the merits of the case.
In the event that the respondent does not wish to accept the courts jurisdiction,
the respondent state may also raise Preliminary Objections, upon which the
Court should rule first before proceeding to the merits.
The most commonly raised preliminary objections include questions on the
admissibility of the case itself, by deeming it either not justiciable or incapable of
being called a legal dispute.
Other questions raised at the preliminary level include the non-inclusion of all
necessary parties to the case.
In all such events where preliminary objections are raised, the court deals first
with it.
In the event that the case is found to be admissible, the court proceeds to deal
with the merits of the case.
Once hearings begin, either party is free to ask the court for Provisional or Interim
orders to maintain the status quo, while pending hearing of the case, as per Article
41 of the Statute.
While a case is being heard, it is also possible for a third state to interject, should it
be true that its interests are affected, as per Article 62, where such state professes
having an interest of a legal nature. The ICJ may exercise its discretion and allow
the state to participate in the proceedings as a party.
Judgments of ICJ :
Judgments are delivered in the form of opinions, which may be joint, separate or
dissenting. At any rate, the majority opinion prevails and emerges as the decision,
and states do not have the right to appeal.
Nevertheless, clarifications may be sought in respect of the meaning, scope and
ambit of the decision so passed, as per Article 60.
The decisions of the ICJ bind only states party to the dispute, and on none other,
virtually rendering the precedents persuasive.
Enforcement of the decisions of the ICJ is left to the Security Council under Chapter
XIV, thereby making the enforcement subject to the veto of the permanent
members. In this respect, it seems to appear as though the International Court of
Justice does not quite enjoy the benefits of an actual separation of powers.
Go To Contents
Module - 3) Concept
3.1) Sources of International Law : Customs, Treaties, General Principles of
Law recognized by the Civilized Nations, Judicial Decisions, Writing of
Jurists, Equity, Resolutions of General Assembly
3.2) Subjects of International Law
3.3) Jurisdiction of States
3.4) Legal Responsibility of State
Go To Contents
State the sources of international law. (Nov-2011)
Explain in detail the usage, customs and treaties are the main sources of
international law. (Nov-2014)
Discuss : Writing of Jurists as a source of international law.
Discuss : Resolutions of General Assembly as a source of international law.
Discuss in detail : the origin sources of international law. (Nov-2012, Oct-2013, Dec-
2015)
Explain in detail the main sources of International Law. (Dec-2016)
State the subjects of international law. (Nov-2011)
State the general principles of law recognized by the civilized nations and
resolutions of the general assembly. (Nov-2011)
Explain the concept of equity and judicial decisions in the public international
law. (Nov-2011)
Discuss : equity and judicial decisions as sources of International Law.
Discuss : Jurisdiction of States.
Explain the doctrine of fundamental rights and duties of states. (Dec-2015)
Discuss : Legal Responsibility of State.
Explain the doctrine of basic rights and duties of state. (Nov-2014)
Go To Contents
Module-3 ANSWERS :
State the sources of international law. (Nov-2011)
Explain in detail the usage, customs and treaties are the main sources of
international law. (Nov-2014)

Discuss : Writing of Jurists as a source of international law.
Discuss : Resolutions of General Assembly as a source of international law.
Discuss in detail : the origin sources of international law. (Nov-2012, Oct-2013, Dec-
2015)
Explain in detail the main sources of International Law. (Dec-2016)
ANSWER :
Refer :
page-48 of scribd book
Following are the sources of International Law :
1. Custom
2. Treaties
3. General Principles of Law
4. Judicial Decisions
5. Writings of Jurists
6. International Legislation
7. International Comity
1. Custom : Custom is the original and the oldest source of International Law, and it
was the most important amongst all the sources. It was so because a large part of
International Law consisted of customary rules. Customary rules are referred to those
rules which are practiced by most of the states through ages by way of habit.
What is 'custom"? West Lake defines custom as that line of conduct which the
society has consented to regard as obligatory.
The obligation is based upon the common consent of nations extending over a
period of time of sufficient duration.
Distinction between 'custom' and 'usage' :
Custom is not merely a habit or usage. A usage is a general practice which does
not reflect a legal obligation. But custom is more than mere practice.
Custom refers to those habits which are regarded as binding upon the states.
Here, 'usage' is an international habit of action.
When, customs and conventions are practiced by nations over a long period of
time, they acquire the status of International Law. In fact, customs are the most
important source of International Law. International custom is accepted by all
nations and hence, it has become an International Law.
Laws relating to diplomacy, commerce, alliances, laws in respect of those aspects
are not at all written down in codes or treaties. But they are considered as laws,
because they have been observed for centuries.
Laws which is based on custom is very difficult to prove. It must be proved only
with the presentation of evidences. Thus, vast body of customs constitute
International Law.
2. Treaties : In modern age, international treaties are also an important source of
International Law. Treaties are the agreements between two or more states or
between other subjects of International Law by which they create or intend to create
a relationship between themselves. Such agreements are sometimes referred to
convention, protocol, accord etc. The terminology varies but the substance is the
same.
Treaties embody the express consent of the parties to the rule or rules laid therein.
They imply number of agreements made between states from time to time.
Sometimes, treaties are bilateral and multilateral. They are the dominant source of
International Law. This source has gained importance in recent times.
General and particular Treaties :
General treaties are those wherein most of the states of the World community
are parties thereof. In course of time, they transform or crystallize into rules of
universal International Law, which are binding on all the member states of the
world community, be they parties to them or not. General treaties may also be
referred to as law making treaties which create general norms for the future
conduct of the parties in terms of legal propositions, and the obligations are
basically the same for all parties. Examples of such treaties are, Hague
conventions of 1899 and 1907, Geneva protocol of 1925, Treaty of West Phalia
1648, the Congress Vienna of 1815, the Declaration of Paris of 1856, the Geneva
Red Cross Convention of 1864, the Peace Treaty of 1919, the Geneva
Conventions of 1949, the General Treaty for the Renunciation of War of 1928
and so on.
It is to be noted that even the law-making treaties are binding only to the
parties thereof. They do not bind states which are not parties to them.
Particular treaties are generally referred to bilateral treaties, or plurilateral
treaties or ordinary treaties wherein number of parties is two or more than two.
They are also known as contractual type of treaties or 'treaty contracts'.
Treaty contracts deals with special matter between contracting states only.
Such treaties create law for two or more states, and therefore, they have
been distinguished from law-making treaties which create law for most of the
states.
It is to be noted that there is no clear distinction between the two. No doubt,
ordinary treaties normally do not establish rule of general law, but they are of
immense importance. Most of the rules on extradition have evolved through the
conclusion of bilateral treaties. It is to be noted that all the treaties (general as well
as particular), are binding on the contracting parties.
However, their role in international relations varies. Further, their actual
significance is determined by the issues to which they relate and by their actual
effective.
3. General Principles of Law : General principles of law are recognized by the
civilized nations. These principles are the principles of equity, justice and good
conscience. These principles are also applied by the Municipal courts. Thus, general
principles of law include justice, right, reason and commonsense. In fact, justice, right
and common sense are mostly subjective.
For example, laws relating to war, peace and neutrality. They are all based on this
source. But these General principles must be recognized by the civilized nations.
So, General principles of law constitute an important source of International Law.
Examples of such principles which have been recognized are good faith, reciprocity,
presumption and estoppal.
It is significant to note that the principles of law recognized by many states do not
become principles of International Law automatically. They are required to be
recognized by the World Court. And before any such principle is applied by the
court, certain considerations are taken into account.
Firstly, a rule is a general principle of law, that is, it is not limited in scope.
Secondly, the rule is recognized by the states. The word recognized presupposes
the existence of the rule in the municipal law.
Thirdly, the rule is recognized by most of the states of the world community.
When the above three elements are present in any principle of law, the World Court
may apply it in international disputes as well.
General principles of law recognized by civilized nations has been recognized in a
most authoritative international instrument as a source of International Law. This
source has been increasingly used at present by the courts.
4. Judicial Decisions : Previous judicial decisions also constitute important source of
International Law. Judicial decisions are the subsidiary means for the determination of
rules of law and they therefore are the subsidiary and indirect source of International
Law.
They include the decisions of the eminent courts and tribunals. Judicial decisions of
the international courts or tribunals constitute a good source of International Law.
International Court of Justice at present is the main international Judicial tribunal.
However, its decisions are binding only to the parties to the case.
Awards of the international tribunals such as the permanent court of Arbitration
and other tribunals such as the British American Mixed claims Tribunal and others
have contributed a lot of the development of International Law.
It has been asserted that the awards of the tribunals are not judicial but merely
quasi diplomatic compromise and they therefore, cannot be regarded as a source of
International Law.
Awards of a number of arbitrations are based on strictly legal considerations in
form and substance. Decisions of the Municipal Courts form an important part of
the basis of International Law. Similarly,the creation of the regional international
courts for settling the disputes in a particular area is a recent development of
International Law.
Instances of such courts are the court of Justice of the European communities, the
European Court of Human Rights and the Inter-American Court of Human Rights.
5. Writings of Jurists : Similarly the teaching of eminent scholars and international
jurists also constitute an important source of International Law. Because such views
of eminent scholars and international jurists are put on par with International Law.
The statute of International Court of Justice lays down that the teachings of the
most highly qualified publicists of the various nations are a subsidiary means for
the determination of rules of law." It postulates the evidentiary character of
teachings, of the most highly qualified publicists.
Note :
Highly qualified publicists is a relative term and not an absolute one, and
therefore, standard may differ from state to state. While a publicist or a writer is
a highly qualified or not will perhaps be determined by the tribunals before
whom the teachings (writings) will be placed as an evidence for the
determination of rules of law.
The value of the juristic writings carries more weight particularly in those fields
of International Law where treaty or customary rules do not exist.
This source may be resorted to as final resort, ie only when all other sources
listed Article 38 (1)(d) of the statute of the International Court of Justice have
failed to resolve the dispute before the court.
Although Juristic works are not an 'independent source' of law, sometimes juristic
opinion does lead to the formation of International Law. Juristic opinion, very often,
throws light on the rules of International Law and their writings make it easier to
frame a particular rule.
In addition to the writings of jurists and publicists, collective work done by the
International Law Commission, reports and Secretariat memoranda prepared by
the Commission, Harvard Research drafts, the bases of discussion of the Hague
Codification Conference of 1930 and the resolutions of the Institute of International
Law and other similar bodies are also of considerable value.
6. International Legislation : International Legislation is another important source
of International Law. International legislation is the term used for international
conventions. At international conventions number of states establish common rules

and they act as the source of International Law.
A number of conventions relating to labour laws, labour standards, health, fisheries
and control of dangerous drugs are held from time to time.
In the same way, the conventions of the Hague peace conferences are held and a
number of resolutions are passed.
Those resolutions take the form of International Law.
The decisions of the General Assembly of the U.N.O. may also constitute an
important source of International Law, because General Assembly is in-charge of
international legislation.
7. International Comity : International Comity influences the growth of
International Law. The states in their relations came to observe such rules which are
not legally binding, but are the rules of politeness, convenience and good-will. Such
rules may be given the name of comity. Comity is nothing but reciprocal courtesy
which a number of family nations owes to each other.
Comity pre-supposes friendship. It assumes the importance of equity and justice.
'We do justice so that justice may be done in return'. The privileges and immunities
of diplomats are based on the principle of international comity. Equity is nothing
but fairness and reasonableness, and good faith.
Go To Contents
State the subjects of international law. (Nov-2011)

ANSWER :
Refer :

Intro :
Every legal regime comprises entities that are clothed with rights, duties and
obligations under the realm of the law in question. These entities are the subject
of the law, i.e., the very reason the law exists, the very factors that the law seeks
to govern.
Such subjects are considered to be legal persons in that they are deemed as
persons in the eyes of law. As a consequence of being drubbed possessive of such
a status, they are capable of suing and being sued under the law. They are
conferred rights and duties under the law, which, albeit a constant factor under
most legal regimes, the actual nature of the rights and duties conferred depend
largely upon the nature of the law itself.
Affording such a status to entities is called the granting of legal personality. This is
essential to the very existence of these entities, as devoid such recognition, the
concerned entity would lose out on the right to enforce claims.
At the municipal level, individuals and corporations are recognized as being
possessive of a distinct personality of a legal nature, the terms of which are
prescribed by the relevant legislation.
In international law, personality involves a tightly woven weft of rights and duties,
as afforded under International Law, and the ability to enforce claims. Due regard
needs to be had to the intricacies of International Law in order to comprehend the
nature of the capacity and competence so accorded.
For a long time, it was believed that only states are the subjects of International
law, until a while ago when it was believed that states are the primary subjects of
international law, to the rapidly evolving position evinced today, in that there are
other subjects in international law, with a position on par with that of a state.
The notion that states are the primary subjects of international law arises from the
fact that they seem to fit the bill by seeming to be the most complete subject,
being possessive of a more or less stable authority or governing regime over a
defined territorial expanse with its own population.
Though these facets are indeed lacking where individuals, international
organizations and the newly emerging set of non-state actors are concerned, it
is not something that precludes the conferment of a legal status for these latter
entities.
One cannot ignore the burgeoning sphere of human rights that confers
recognition of individual people as part of International law, or the cement that
the United Nations and other transnational organizations world over lends to the
wide cross section of cultures and races constituting states, or even the wanton
mushrooming of a global terror network independent of affiliation to states.
Thus, within the umbrella-term of subjects, are included states, individuals,
international organizations and non-state actors.
Understanding Legal Personality :
Personality is of two kinds, namely, objective and qualified.
Objective personality implies the case where the entity enjoys international
rights and duties, and its status operates erga omnes.
Qualified personality, also deemed conditional personality, as the name
suggests, is operative only on the condition that consent is offered, and thus,
operates only in personam.
States still retain the status of being major subjects of International Law.
Personality can be acquired by a combination of treaty provisions and recognition
or acquiescence by other international persons.
Following are subjects of International Law :

1. States
2. Individuals
3. International Organizations as subjects of International Law :
4. Non-state actors
5. The Holy See
6. National Liberation Movements :
1. States as subjects of International Law :
The Restatement (Third) of Foreign Relations explains that under international law,
a state is an entity that has a defined territory and a permanent population, under
the control of its own government, and that engages in, or has the capacity to
engage in, formal relations with other such entities.
This definition is fundamentally consistent with the definition provided in Article 1
of the Montevideo Convention on the Rights and Duties of States, which provides
that the State as a person of international law should possess the four
qualifications, namely,
A. a permanent population,
B. a defined territory,
C. government and
D. capacity to enter into relations with the other States.
Scholars world over, especially from the United States, deem this definitive
provision as a part of customary international law. The elements spelled out above
are often deemed the essential prerequisites, or essential conditions for an entity
to be regarded as a state under international law.
The Creation of Statehood :
The actual creation of statehood mixes both fact, and law. The creation of states
poses a plethora of questions, as to whether such creation is legal or factual, and
how the interaction as between the criteria of effectiveness and other related
legal principles may be reconciled. Terra nullius ("nobody's land", which is used
in international law to describe territory which has never been subject to the
sovereignty of any state) is no longer in existence, as a result of which states
may only be created as a diminution, disappearance or merger of existing states.
Defined territory : The state is commonly defined as a community that is comprise
of a territory and a population, subject to an organized political authority and that
such state is possessive of sovereignty.
A. Permanent population :A permanent population is naturally a necessary
corollary, as, if there are no people to govern, there really is no state in the actual
sense of the term. There is no minimum number of people as such, to constitute a
state.
B. Territory is also an essential element, because there is no state in existence if
there is no geographically delimited area in its control, to be claimed as its own.
Territoriality is connected with sovereignty, in that it constitutes the
geographical aspect of the geopolitical realm. A state embroiled in a boundary
dispute is still recognized as a state in International Law. As long as there is a
territory under the control of a governmental authority, there is enough to fulfill
the prerequisite of territoriality. eg The State of Palestine as declared in 1988 in
Algiers, was not recognized because the Palestinian organization did not control
any territorial area that they claimed. On a more recent note, Israel is a
recognized state despite the boundary dispute it is privy to.
C. A government is necessary in order for any political society to function
reasonably and effectively. Opinions have been expressed as to how a government
is not really a prerequisite, but is deemed an indication of the existence of a
coherent political structure and society. The criterion of effective exercise of control
by a government has been modified. Croatia, Bosnia and Herzegovina have been
accorded recognition and membership in the UN despite being faced with a
situation where non-governmental forces have controlled the territories in question.
D. The capacity to enter into relations with other states is another listed essential
to be followed for the attainment of statehood. This is not exclusive to sovereign
nations. International organizations need such a capacity to enter into legal
relations, too. It is an essential requisite that the state be able to create such
relations with other states, as this evidences sovereignty and independence in
managing its external affairs. Independence is crucial to statehood and is a formal
statement that the state is not subject to any other sovereign authoritys rule, and
is unaffected by any factual dependence upon other states, or by submission to
International Law.
2. Individuals as subjects of International Law :
-----> read this from elsewhere in this doc.
3. International Organizations as subjects of International Law :
International organizations have played a major role in International Law.
With the end of the First World War, the growth of International Organizations
began with the League of Nations. It is well established in Law that international
organizations possess international legal personality.
However, the question of an organization possessing a status as a subject of
International Law depends largely upon the constitutional conferment of powers
and duties. As evidence of the same, the capacity to enter into relations with other
states and organizations is to be studied in detail.
An international organization once again, boils down to states which in turn boil
down to individuals.
International organizations are usually always established by way of a treaty that
acts as a Charter creating the group. They are totally different from simple
groupings or coalitions of states, such as the G8 or the Quartet.
4. Non-State Actors as subjects of International Law :
Non-state actors is a term used to refer to all those entities in International Law,
that are not states, and do not fit into the description of an international
organization, or that of individuals alone. The extra factor that differentiates an
individual from a non-state actor, aside of the fact that the latter is essentially a
group of individuals, is that non-state actors do not always affiliate themselves to
any state, and operate as a faction on a global plane.
Despite the fact that most scholars question the possibility of including non-state
actors as subjects, and the conferment of responsibility upon them, most scholastic
opinion unanimously agrees that such non-state actors certainly possess rights. At
any rate, this at all costs would spark off debates as to how rights alone may be
conferred, while obligations cannot. It is the fundamental norm of jurisprudence
that a right has a necessary opposite in a duty, and that a right devoid of a duty
would inevitably lead to an untrammeled use of the right.
For any entity to be deemed to be a subject of International Law, certain
requirements need to be met. Mere conferment of rights is not enough. There
needs to be an active entitlement allowing him to claim his rights, or a passive
entitlement allowing him to be tried and held accountable before an international
body.
The question as to who is, or who isnt a subject of international law, is a political
decision. Law makers determine that a non-state actors deeds impact the
international community to such an extent that it necessitates its actions to be
regulated by International Norms, thereby encouraging the law makers to create
the law.
Were it true that International law be in favour of affording Non-State Actors the
status of a subject in International Law, it would put an end to several issues.
Terror outfits, one of the forms of Non-State Actors, could be brought to book
without being hampered by state responsibility and the issue of demanding their
extradition.
Imposition of human rights obligations upon a non-state actor alone would put
them in a straitjacket of sorts, demanding their conformity with international
responsibility.
Two kinds of non-state actors exist, namely, violent non-state actors, and non-
state actors.
Violent non-state actors refer to any organization that uses illegal violence, which is
any form of force that is not officially approved of by the state, in order to reach its
goals. The term has been used in several papers published by the United States
military.
5. The Holy See as subjects of International Law :
The legal status of the Holy See, in the context of both, state practice and
according to the writing of modern legal scholars, is that it is indeed a full subject
of public international law, with all the rights and duties analogous to those of
States.
Although the Holy See does not fulfill the long-established criteria in international
law of statehood, its possession of full legal personality in international law is
backed by the fact that it has diplomatic relations with as many as 177 states, and
that it is a member of various intergovernmental international organizations.
However, it is worthy to note that the Holy See itself, while claiming international
legal personality, does not claim to be a State.
6. National Liberation Movements as subjects of International Law :
International law has long since recognized insurgents in civil wars, as subjects
having certain rights and duties because they control some territory, and may in all
probability, become the effective new governing authority of the state.
Articles 14 and 15 of the ILCs Draft Articles on State Responsibility support this
viewpoint. However, this is largely related to the issue of self-determination and
non-self-governing territories. The UN general Assembly has allowed the grant of
an observers status for National Liberation Movements.
Go To Contents
State the general principles of law recognized by the civilized nations and
resolutions of the general assembly. (Nov-2011)
ANSWER :
Refer :
General Principles of Law :
Intro :
Many a time, courts in the International sphere may find the absence of laws on
a particular issue. This leads the courts to use existing rules, or general
principles that guide the existent legal system, whether they be referred to as
emanating from justice, equity or good conscience.
Since there is no real legislating authority in the International Realm, and that
states seek to ensure the continued maintenance of the anarchical balance of
power, there happen to be a number of situations seeing issues in need of
legislative assistance.
These create what are commonly understood as gaps in the law, and are
termed as Non-Liquet. This lacuna has paved the way for the emergence of the
use of general principles of law, as recognized by civilized states, by the
International Court of Justice in deciding cases.
These general principles are deemed capable of closing the gap in the extant
legal system, and assist the courts in coming to a clear conclusion.
Detailed discussion : The General principles of law recognized by the civilized
nations include within their ambit, a wide spectrum of legal principles. These
principles may be divided in to 3 broad categories,
1. international treaties and customary law, --- read from elsewhere in this doc
2. principles of natural law,
In the Chorzow Factory case, the PCIJ recognized that every violation of an
agreement involves an obligation to make reparation, in the context of a
wrong being consistent of indemnity corresponding to the damage caused.
the damnum emergence and lucrum cessans is a principle common to the
main systems of municipal law, and therefore, a general principle of law which
may be considered as a source of International Law.
Acquired rights are also deemed a part of the general principles of law.
Good faith : The most important of all the general principles of law is the rule
of Good faith. The principle has been exposited under Article 2(2) of the 1970
Declaration on Friendly Relations, and in the Nuclear Test cases. Good faith,
also known by a term of reference in Latin, bona fides refers to good, honest
intention (even if they eventually produce unfortunate results) or belief. In
law, it implies the mental and moral state of honesty, conviction as to the
truth or falsehood of a proposition or body of opinion, or as to the rectitude or
depravity of a line of conduct. This concept is important in law, especially
equitable matters.
Equity : Equity is another major part of the General principles. It refers to the
set of legal principles, in jurisdictions following the English common law
tradition, which supplement strict rules of law where their application would
operate harshly. In the Diversion of Water from the Maine case, it was held
that what are regarded as principles of equity, have long been treated as part
of International Law and have been applied by the Courts. The ICJ has a long
history in deciding cases in accordance with equitable principles. The use of
equity has generally been more pronounced in the 1982 UNCLOS cases,
specifically under Article 59, which provides the basis for the resolution of
conflicts regarding the attribution of rights and jurisdiction in the exclusive
economic zone, and Article 83, which deals with the delimitation of the
continental shelf between States with opposite or adjacent coasts; and in the
context of the Convention on the Law of non-navigational uses of
International Watercourses, 1997.
3. Principles emanating from procedural law and the law of evidence, such as
estoppel and res judicata,
In the Corfu Channel case, the court went on to enunciate that res judicata,
the rule that precludes a matter from being subject to re-litigation if it has
already been decided by a final court of law, as being a part of the general
principles of law.
the rule of estoppel was also deemed a part of the General principles of law.
Resolutions of UN General Assembly :
<read from elsewhere in this doc>
Go To Contents
Explain the concept of equity and judicial decisions in the public international law. (Nov-
2011)
Discuss : equity and judicial decisions as sources of International Law.
ANSWER :
Refer :

Go To Contents
Discuss : Jurisdiction of States.

ANSWER :
Refer :

Go To Contents
Explain the doctrine of fundamental rights and duties of states. (Dec-2015)

Discuss : Legal Responsibility of State.
Explain the doctrine of basic rights and duties of state. (Nov-2014)
ANSWER :
Refer :
page-56 of scribd book
page-72-78 / 680 - https://www.scribd.com/doc/314397588/Public-International-
Law
Intro :
States in the anarchical realm mostly endeavour to function in a manner most
befitting the need for the maintenance of peace and order. As a consequence of
being subjects of the International Legal Realm, states are clothed with rights and
duties. In construing these fundamental rights and duties, it is a fact worthy of
mention, that the rights a state possesses, form the very duties it owes to other
states in the International Realm. Some of these rights and duties are thus
enumerated :
Following are the Fundamental Rights and Duties of States :
A. Independence
B. Equality of States
C. Peaceful Coexistence
A. Independence :
Sovereignty and independence underlie the very crux of a states existence. The
term independence was defined in the Draft Declaration on the Rights and Duties of
States, 1949, prepared by the International Law Commission, to be the capacity of
a state to provide for its own well-being and development, free from the
domination of other states, provided it does not impair or violate their legitimate
rights.
At all points, however, it is important to remember that by subjecting itself to the
rule of International Law, a state does not compromise on its independence.
Political or economic dependence also does not imply that a state forgoes its
independent status, unless such state has been forced, or compelled to submit to
the demands of the superior state.
In the Austro-German Customs Union case, Judge Anzilloti noted that any
restrictions upon a states liberty, whether emerging from customary law or treaty
obligations, do not in any way affect its independence. This is so as long as such
restrictions do not place the state under the legal authority of another state.
Essentially, International Law permits the exercise of such rights unless otherwise
constrained by an explicit rule.
Independence as a right gives way to several other rights and duties, such as the
right to exercise jurisdiction over its territory and population, the right to engage in
self-defense.
As a necessary corollary, a duty not to intervene in the internal affairs of other
sovereign states exists. This was affirmed in the 1970 Friendly Relations
Declaration, and arises out of Article 2(4) of the UN Charter. Non-intervention is
essential in order to maintain the balance of power in the International arena. A
state, at no point, can so much as purport to enforce its laws on the territory of
another state without consent of such other state.
B. Equality of States :
As a consequence of state sovereignty, it is natural that all states be treated equal,
given that the International system hinges on anarchy. This equality is ensured
irrespective of the size, power and age of the state. The UN recognizes this notion
by allowing one vote per state in the General Assembly.
The 1970 Friendly Relations Declaration also purports the same notion. The
underlying philosophy of the equality of states norm is that there needs to be a
balance of power in the international realm.
If every state is sovereign it is mandatory that no state be deemed superior to the
other, and no state can be allowed to exercise rights over another.
Albeit theoretical, the practical manifestations of the rule differ greatly. Major
states always have an influence, purely because their concerns are much wider,
much deeper, and their powers are more effective.
However, the UN maintains the equality of states with the one-state-one-vote
policy, but still maintains the veto power in the Security Council, exclusively for the
USA, UK, China, Russia and France, which seems some sort of an anathema to
what the notion of equality stands for.
C. Peaceful Coexistence :
Peaceful co-existence refers to a principle that was formulated by the USSR, China,
and a few other developing nations. The Non-Aligned movement during the Cold
War, in 1954, crystallized peaceful co-existence as one of the five major principles.
As an extension of the rule of prohibition of a use, or even the threat of use of
force, it is clear that peaceful coexistence emerges as a natural corollary. The UN
has afforded this principle recognition. The UNGA Res 3314 prohibits aggression,
thereby harping on the key rule of peaceful co-existence.
Go To Contents
Module - 4) Miscellaneous
4.1) States, Recognition, State Territory, State Jurisdiction, State Responsibility
4.2) Aliens
4.3) Extradition
4.4) Asylum
4.5) Treaties
4.6) Security Council
4.7) International Terrorism : Aircraft Hijacking, piracy
4.8) Disarmament : Threat to Human Rights
Go To Contents
Explain : Recognition of state and its responsibility. (Nov-2011)
Explain in detail the concept and mode of recognition of state. (Nov-2012)
Explain the recognition and modes of recognition of state in detail. (Oct-2013, Dec-
2015)
Explain in detail : Concept of the recognition of the state. (Dec-2016)
Explain : State territory and its jurisdiction. (Nov-2011)
Write short note : State Responsibility. (Oct-2013)
Explain : Treatment of aliens and concept of extradition. (Nov-2011)
Discuss in detail the rights and duties of states with regard to alien. (Nov-2014)
Explain : Alien. (Nov-2012, Oct-2013)
Explain : Extradition. (Nov-2012, Oct-2013, Nov-2014, Dec-2015)
Discuss in detail the concept of Extradition. (Dec-2016)
Explain in detail : Treatment towards aliens. (Dec-2016)
Explain : Asylum. (Nov-2012, Nov-2014, Dec-2015)
Write short note : Refuge. (Oct-2013)
Explain the validity and invalidity of treaties. (Dec-2015)
Explain in detail the meaning and various steps towards the conclusion of the
Treaty. (Dec-2016)
Write short note : Treaty. (Oct-2013)
Write short note : Security Council. (Oct-2013)
Explain in detail : Security Council of the UNO. (Dec-2016)

Discuss the effects of war and armed conflicts. (Nov-2014, Dec-2015)
Explain : International terrorism. (Dec-2015)
Write short notes : Hijacking. (Nov-2014, Dec-2015)
Explain : Piracy. (Dec-2015)
Discuss : Disarmament : Threat to Human Rights.
Go To Contents
Module-4 ANSWERS :
Explain in detail the concept and mode of recognition of state. (Nov-2012)
Explain the recognition and modes of recognition of state in detail. (Oct-2013, Dec-
2015)
Explain in detail : Concept of the recognition of the state. (Dec-2016)
ANSWER :
Intro :
Recognition, generally speaking, refers to a process whereby certain facts are
accepted and endowed with, or are conferred with a certain legal status, such as
statehood or sovereignty over newly acquired territory. It signifies the willingness,
and positive choice by a state in the international community, in favour of
accepting the new state as a member of the same community.
In a nutshell, thus, Recognition is simply a procedure whereby the governments of
existing states respond to certain changes in the world community, and a means by
which existing states seek to effect changes in the same community.
The process of recognizing a new entity as a state is political in nature, allowing
room for each country to decide for itself as to whether it is to extend such
acknowledgment, or withhold the same. International recognition is a rather
important piece of evidence indicating that the factual criteria of statehood actually
have been fulfilled.
The Institute of International Law defines recognition of states as the free act by
which one or more states acknowledge the existence on a definite territory of a
human society politically organized, independent of any other existing State and
capable of observing the obligations of International law, and by which they
manifest therefore, their intention to consider it a member of the International
Community.
Oppenheim defines recognition as being a means through which the recognizing
state declares that a foreign community or authority is in possession of necessary

qualifications of Statehood, of governmental capacity, or of belligerency.
This definition requires that all the essential qualifications of Statehood,
namely, a population, a defined territory, a government and the capacity to
conduct its international relations independently, needs to be in existence before
the entity is to be fulfilled.
The definite nature of territorial expanse is not a sine qua non for the purposes of
recognition, as was proved in the case of Israel, which was recognized as soon as it
was granted independence in 1948 by the United States and many other nations.
Further, practice also evidences that the prerequisite for a stable and effective
government for Statehood is also not a mandated precondition. However, it must
be remembered, that in fulfilling all the essential criteria for the achievement of
statehood does not automatically imply that recognition must follow. It is possible
that there may be no recognition despite these criteria being fulfilled, because
there is no duty to recognize, but that there is only just a political discretion of
sorts.
States are motivated by their own interests, in determining whether or not it
should recognize the newly emerging state.
The term recognition, when used in the context of recognition of States and
governments in international law, may have several different meanings.
Conceptually, it boils down to a state acknowledging the status of any entity in
International Law, as a subject therein. A state may be recognized as being fully
sovereign, or as an effective authority in a specific area, or even as any state
subordinate to another state.
Illustration :
Historically, the earliest instance of recognition was in 1648, when Spain
recognized the United Netherlands as a state, which had declared their
independence in 1581.
When France and Britain were in dispute as regards the status of the United States
of America, Britain perceived that title to territory could not be established by way
of a revolution or war, if the former sovereign did not recognize the title. France
took a different stance, accepting that based on the doctrine of effectiveness, title
was indeed to be recognized.
National liberation movements :
Recognition of governments and national liberation movements is in definitive
terms, governed by the same parameters of political motivation, and interests of
the states concerned. A classic example of this is the PLO.
The Palestine Liberation Organization was given the status of an observer by the
United Nations General Assembly, in 1974. It went on to declare the establishment
of the independent state of Palestine in 1988 by its Parliament-in-exile, or the

Palestinian National Council. The erstwhile Government in exile was in Tunisia, and
was accorded recognition by several states, including India among others.
Today, newly formed states such as Kosovo, Abkhazia and South Ossetia are still
awaiting recognition from a large majority of states in the International anarchy.
The case of Kosovo is particularly interesting, in that three of the major powers
housed as permanent members of the Security Council, i.e. the USA, UK and
France have recognized Kosovo, while Russia and China have not. This seems a
case of double standards on part of the former, as none of the states as much as
afford an iota of recognition to South Ossetia or Abkhazia.
The legal consequences emanating therein, are that Abkhazia or South Ossetia, or
Kosovo, for that matter, will not enjoy rights under the municipal legal regimes of
the states not recognizing them.
It must be remembered that though some states that are unrecognized by the world
community may be members of the United Nations, it does not automatically evince
recognition, although it is a clear-cut case being made out in favour of announcing
that the concerned entity is indeed a state.
The recognized entity enjoys certain rights and duties under International Law, and
also under the municipal laws of the states that have recognized it. Once recognized,
the state granting such recognition is not allowed to contest the qualifications for
recognition.
Theories of Recognition :
Two theories fundamentally govern the process of recognition, thereby creating
models of recognition. The core contentions of these theories are indicative of
what goes into the recognition process, and what emanates from the accordance of
recognition. These theories are the
1. Constitutive Theory, and
2. Declaratory Theory.
1. Constitutive Theory :
The Constitutive theory puts the process of recognition on a rather high pedestal.
The crux of the theory is that recognition is the fact that constitutes the state, or
brings the state into existence. The theory purports that until such time that
recognition is accorded, the entity is not a state at all.
According to this theory, a state is, and becomes, an international person through
recognition only and exclusively. The state, in effect, evidently deduces its legal
existence from the will of those that have already been established.
The theory originated with Jellinek, who was essentially the first to give modern
formulation to the constitutive doctrine of state recognition, contending that legal
relations in the form of legal rights and duties between two entities can arise only
as the result of mutual recognition of legal personality.

Though essentially stating that every state actually part of organized humanity
enters ipso facto into the general community of States, Jellinek urged that
recognition is a necessary factor in order to make it a part of the juridical
community of States, thus seeking to distinguish between statehood and
membership in the international community, which is the fount of rights dependant
on recognition.
Despite rather supportive scholastic viewpoints, the theory has a catena of
downsides to it. When a new state appears on the scene, possessive of all the
requisite attributes that deem it a state, and it is not recognized, the state would
essentially be a cat on the fence, being both, an international person, and not an
international person, all at once.
Recognition cannot, for all practical reasons, be afforded by all the states at one
time together. States take time in deciding whether or not to afford recognition, in
the process taking longer, or less longer in comparison with other states.
With all these practical potholes in place, there is no wrong in admitting that
recognition is in no way any form of conclusive proof of the existence of the state
itself. This is buttressed ably by state practice, which indicates clearly that non-
recognition does not automatically mean that the entity does not exist, given that
legal history is full of instances where judicial remedies have been sought against
unrecognized states or governments under International Law.
Illustration :
In the Pueblo case, the case was between the United States and North Korea,
although the United States did not recognize North Korea. The United States
ship was captured by North Korea for spying in North Korean territorial waters.
It was released later without trial, when the United States a document,
indicating that the Pueblo, their vessel, was indeed spying.
Similarly, the Tinoco Arbitration case, was an arbitration between the United
Kingdom and Costa Rica, the latter not being recognized by the former. The
Tinoco government took over the country by force in 1917, while at the same
time proclaiming its own constitution. The government, which remained in power
until 1919 was subsequently ousted, paving way for the new government which
passed a decree that repudiated some of Tinocos obligations towards British
Nationals, among other obligations. The Tinoco government was not recognized
by the United Kingdom, thereby leading to the UK bringing in a claim on behalf
of its nationals against Costa Rica. The Costa Rican contention was that the UK
did not recognize Tinoco, and hence, the claim could not be sustained. The
arbitrator, however, ruled that the UK could very well bring in a claim even
though it did not recognize Costa Rica.
In 1949, when British airplanes were shot over Egypt, by Israeli airmen, the
British government demanded compensation from Israel though it had not

recognized Israel.
Important note : Were it true that the constitutive theory be the rulebook that
ought to be followed, there would be too many fallacious consequences to deal
with.
If an entity is not a state until it is recognized as one, as a natural corollary, it
would imply that such entity has no rights or duties under International Law, and
under the concerned municipal law.
While in each of the above cases there was no recognition, it is clear that the
entities were all under obligations to the states suing them in the International
sphere of action.
Secondly, states are free to decide if they wish to accord recognition, or
withhold the same. This is entirely a political decision of sorts, one that cannot
be put in a straitjacket of mandate. When a state decides to grant recognition, it
is merely a case of recognition following the cognition of the very factual
existence of the entity.
Thirdly, recognition works retrospectively, in that the state once recognized, all
acts and laws of the state are given effect to from the time the state in question
fulfilled the very quintessence of the criteria for the attainment of statehood.
Retroactivity flows from the underlying philosophy of State sovereignty, in that
there should be continuity in the states functioning, which would otherwise lead
to nullifying transactions entered into by the unrecognized entity with private
citizens of a State.
The Declaratory Theory :
The declaratory theory, popularly known as the evidentiary theory contends that
recognition is merely perfunctory, because a state exists even if there is no
recognition accorded to it. Recognition is merely a declaratory piece of evidence,
indicating that the state has indeed fulfilled all the essential requirements of
statehood.
The theory purports that an entity does not derive statehood from the consent of
other states, but from its own set of factual circumstances. The state is what it is
for the simple reason that it acquires independence by way of its own efforts, and
does not need to await recognition in order for it to attain statehood.
The declaratory theory enjoys greater favour as opposed to the constitutive theory,
given that it is highly accommodative of the political nature of recognition. The
theory does not depict a situation of incapacitation on part of the state if there was
no recognition. State practice and judicial opinions depict that even non-recognized
entities are bound by their international obligations.
Over the past century, practice has evidenced that the declaratory approach has
been preferred over the constitutive approach. States that have refused to
recognize other states, rarely contend that the other party is devoid of powers and
obligations before International Law and exists inside a legal vacuum. This
indicates that recognition is not given for purely political reasons, and that such
refusal does not mean that the state in question is not bound by rights and duties
in International Law.
The Charter of the Organization of American States adopted at Bogota in 1948,
enunciates clearly under Article 9 that the political independence of states is
independent of its recognition by other states. A state is free to defend its integrity
and independence, even before formal recognition is afforded.
The 1936 Resolution adopted by the Institut de Droit International emphasized that
the existence of the new state with all the legal effects connected with that
existence, is not affected by the refusal of one or more states to recognize.
The states that emerged with the end of the First World War regarded their
emergence as states upon their declaration of independence, and not as a
consequence of peace treaties.
The existence or disappearance of a state is a question of fact, and the effects of
recognition by other states are purely declaratory.
The declaratory theory, although pragmatic in its own way by identifying
recognition as decidedly perfunctory, is flawed in one respect. An entity though in
existence, when not recognized by say, a state, or a few states, or even many
states, would find itself in a situation where despite being a state for all practical
reasons, it fails to enjoy the rights and duties under the non-recognizers municipal
laws; and, would also find itself in a situation where its status under international
law, with respect to the other state(s) not recognizing it, would be one lacking legal
personality. To this extent, thus, recognition seems constitutive.
In reality, recognition is essentially undertaken on the middle-path by combining
both declaratory and constitutive elements.
It is declaratory in that the process of recognition is based upon certain
definitive facts and the fulfillment of the essential prerequisites of statehood.
It is constitutive in that the acceptance by the recognizing state of the
particular community as an entity possessing all the rights and obligations
already inherent in statehood.
Manner of Recognition : Recognition is a dynamic process, involving a mix of
knowledge of necessary facts and an intention to recognize the entity as a state itself.
International law does not clamp down a duty to recognize, and does not lay down a
mode of action to be followed in order to depict recognition. State practice has
showed that recognition may be granted explicitly or implicitly, the latter being a
matter of inference and presumptuous understanding.
A. Explicit Recognition :
Explicit recognition, as evident from the name, is a form whereby the state
declares, or announces its recognition of another entity as a state. This may
come to be either in the form of a public statement, or a notification, or a
diplomatic note, or even a personal message sent to the new entity, or in the
form of concluding a bilateral treaty or agreement.
Illustration :
The Indian governments recognition of Bangladesh was by way of a formal
declaration.
The United Kingdom followed this mechanism in its recognition of its
erstwhile colonial and dependent territories. This was evident in the context of
its many treaties with its colonies at the time of their independence.
Explicit recognition is easy to cull out, and to use in order to understand the
position of each state in the International realm. Explicit recognition also works
in favour of the state emerged newly, in that it is capable of accurately
determining where its rights and duties can be enforced, and sought to be
enforced in the International Sphere of action.
B. Implicit Recognition :
Recognition need not be expressly depicted all the time. Recognition can easily
be inferred from the conduct of the parties in question.
However, in order to draw a conclusion in favour of recognition, it is necessary
that the act must be of such nature that it is indicative of the fact that
recognition was indeed intended, and that it was an inescapable consequence.
As long as the intention is in favour of according recognition, nothing can
preclude an inference in favour of a position that evinces the accordance of
recognition.
As far as implicit recognition is concerned, bilateral and multilateral acts are
most efficient in aiding a favourable inference. Where a state signs a bilateral
treaty with a new entity, it implies recognition.
Allied therewith, is the establishment and forging of diplomatic relations between
the recognizing and the recognized, the receipt of consuls of the new state, and
sending individuals in capacity of representatives for the purpose of ceremonial
functions in the new state.
Similarly, multilateral acts evince a similar conclusion. A state is free to express
its intention to recognize a new entity, by way of common participation in a
multilateral treaty, or an international conference, along with the unrecognized
entity.
Kinds of Recognition : Common Types and Prototypes : There is no set of norms to
abide by in the course of practice. This has only lead to a wide venation of types and
prototypes on the leaves of International Law. Some of the most common ones are
explained herein.
1. De Facto and De Jure Recognition
2. De jure recognition
3. Premature Recognition
4. Collective Recognition
5. Conditional Recognition
1. De Facto and De Jure Recognition : De Facto recognition indicates the existence
of some doubt as to the long-term viability of the government in question. Where
the recognizing state opines that the new state or governmental authority lacks the
stability and permanency it needs to remain on the International Scene
permanently, it generally tends to afford de facto recognition.
2. De jure recognition, on the contrary, indicates that the state granting recognition
accepts that the effective control as vested in the hands of the new government is
permanent and that there is no legal reason detracting from this.
If the recognizing authority is sure of the stability and permanence, and is sure
of the other requisite criteria being fulfilled, it accords de jure recognition.
3. Premature Recognition : The acceptable recognition of a state differs entirely
from the intervention in the domestic affairs of the state by way of premature
recognition. An example of premature recognition is the case of Croatia.
Recognition afforded to Croatia by the European Community on 15 January, 1992
was premature. Croatia had not fulfilled the preconditions for recognition,
particularly because the Croatian constitutional act had not fully incorporated the
requisite guarantees in pertinence to human rights and minority rights.
4. Collective Recognition : Collective recognition arises when several states
recognize a newly formed entity together, in the form of a collective act. Collective
recognition is neither prohibited nor prescribed as the norm under International
Law. As a matter of policy, states are free to decide whether or not they wish to
recognize states, and in the course of according recognition, they are free to
determine whether they wish to do it in conjunction with other states, collectively.
Illustration : The Berlin Congress of 1878 accorded recognition to Bulgaria,
Serbia, Romania and Montenegro, and Estonia and Albania were recognized by
the Allies in 1921.
5. Conditional Recognition : Conditional recognition refers to that form of
recognition whereby the newly created entity is accorded recognition, depending
upon the fulfillment of certain conditions in further addition to the normal
requirements.
Conditional recognition was a rather integral part of international practice in the
nineteenth century, but has dwindled since. Conditional recognition, however,
has no standpoint in the eyes of legal theory, given that non-fulfillment of the
condition and subsequent disobedience of the conditional requirement does not
warrant the withdrawal of recognition.
Legal consequences of Recognition :
Recognition is an essentially political function, with consequences bearing both,
legal and political overtones. Politically, a state opens up its avenues for relations
with a newly accepted entity, which in turn is likely to have tangible impacts on its
policies and economic structure, where applicable.
The legal side of the consequences flows from the series of rights, privileges and
duties that are conferred upon the newly recognized state by the recognizing state.
The newly recognized state is entitled to conclude treaties, establish diplomatic
relations and create corresponding obligations for the other nations under
International Law.
The new entity is conferred recognition as a sovereign, and is granted the entire
array of rights it is entitled to, in capacity as being a sovereign authority.
The general practice of most States in International Law allows the newly
recognized entity to sue in the courts of the recognizing state, to claim immunity
from legal action for all its diplomatic representatives and properties in the
recognizing state, and to demand and receive possession of all public property that
belong to it.
When states recognize a claim to statehood, which directly implicates issues of
sovereignty, the legal position essentially depends partly on a distinction between
matters which are obligatory in international law, and those which are left to the
states good judgment.
The states recognition of a new entity will open up avenues for the state in
congruence with the new entity, but, as far as norms such as jus cogens, or erga
omnes obligations go, non-recognition does not preclude the right to sue, or to
take action against the non-recognized entity. However, this is not a hard and fast
rule.
Another aspect that needs to be understood is that recognition functions
retroactively. Retroactivity, thus, functions as the stop-cork in the process, and
secures the position of the state in the international realm, by dating the
recognition back in time, thereby accepting the legitimacy and legal standing of all
the legal, administrative and executive acts.
Go To Contents
Explain : State territory and its jurisdiction. (Nov-2011)
ANSWER :
Refer :
https://www.ilsa.org --- International Law Students Association
https://www.ilsa.org/jessup/intlawintro.pdf
STATE TERRITORY :
The state is, has, and will remain one of the most important and major subjects of
international law. It cannot exist, without the contributing factors of a territory, a
population, a government, and sovereignty.
Sovereignty is essential to the identity of a state, as it implies supremacy in dealing
with its own internal and external affairs, and implies supremacy of the
governmental institutions internally and the supremacy of the state as a legal
person externally. A populace is essential, for without the intervention of a human
hand, the implementation of a law is futile. A government is of course necessary,
given the fact that a people need to be ruled and subjected to some form of
authority. Of course, all of these fall totally without territory.
Without territory, a legal person cannot be a state. As it stands clearly defined,
sovereignty and jurisdiction are all concepts couched in the principles of territory.
As a consequence, thereof, it is vital to understand the importance of territory in
International Law.
Classical International Law hinges upon the axiomatic perception that a state is
deemed to exercise exclusive power over its territory. Since international law
originally grew on the foundations of the state being the sole subject for a
considerable amount of time, it can logically be concluded that territory is a
fundamental concept in international law.
Sovereignty is the exclusive right to exercise supreme political authority over a
defined territory (land, airspace and certain maritime areas such as the territorial
sea) and the people within that territory. No other State can have formal political
authority within that State.
Therefore, sovereignty is closely associated with the concept of political
independence.
Classical international law developed doctrines by which States could make a valid
claim of sovereignty over territory. The doctrines included discovery and occupation
and prescription.
During the period of Western colonial expansion new territories and islands were
subject to claims of sovereignty by discovery and occupation. Sovereignty could
also be transferred to another State by conquest (use of force) or by cession where
the sovereignty over the territory would be ceded by treaty from one State to
another.
Since a State has sovereignty over its territory, the entry into its territory by the
armed forces of another State without consent is a prima facie breach of

international law. Among the attributes of sovereignty is the right to exclude
foreigners from entering the territory, which is traditionally referred to as the right
to exclude aliens.
Since a State has sovereignty within its territorial sea (with some exceptions such
as the right of innocent passage), it has the exclusive authority to exercise police
power within its territory sea. For example, if foreign ships are attacked by
pirates in the territorial sea of a State, the only State that can exercise police
power and arrest the pirates in the territorial sea is the coastal State.
While there have been instances of dents on the exclusivity, it is still pertinent to
note that the territorial sovereignty accorded to a state remains a fundamental and
important concept in international law.
International law is not like most other legal sub-sects, in that most of its precepts
personify and mirror political conditions and evolves in tandem with reality. This
has led to the emergence of a plethora of rules governing the transfer and control
of territory. Oftentimes, these rules have successfully borne effects of legitimizing
the consequences emanating from an exercise of power. The anarchical set up that
international law revolves around has augmented the way in which a law must
come to terms with the wielding of power, authority and force.
Territory and domestic law -vs- international law :
There is a tangential difference in the way municipal law and international law
deals with territory. Municipal law is rather crafted, intricate and neatly detailed.
This obviously stems from the fact that for a state, land is an important resource
and a contributing factor to the process of wealth-creation and addition to the
economy.
Land law within the municipal realm functions to establish an acceptable balance
of power within a society. Plenty of legal rights and obligations exist over land,
and this stems from the division of land into different segments.
However, international law does not treat territory in a manner of such
sophistry and quality, primarily because it is exclusively a state resource, and
there is only so much that international law can intervene.
Secondly, the lateral system of territorial sovereignty in international law that
places states on an equal footing is different of the vertically aligned order of
land law under municipal law. This leads to another dimension.
The understanding of territory in international law and domestic law is the
difference in the ramifications each brings in its stride as a result of a change in
ownership under each realm.
When there is a change in ownership, or in clearer terms, in the sovereignty
handling the state, there are consequences of a larger scale involved.
When the nationality of the inhabitants changes, the laws applicable change, and
the obligations owed under the law would take a different route. Under municipal
law, however, this is not the case. The ramifications are far less far-reaching as
opposed to those under international law.
International law is obligated to deal with the effects of a change in sovereignty,
and not just the mere process of transfer, acquisition or loss of territory.
One factor that has been instrumental in marking the difference between the
treatment of territory under both legal regimes, is the fact that in international
law, territory is most often relative, as opposed to municipal law where it is
absolute.
STATE JURISDICTION :
Intro :
Jurisdiction, as a term, has varied connotations. In relation to a court, it refers to
the power or the competence of a court to hear and adjudicate upon a case, in
relation to which its decision is sought. In the context of a state, it may refer to
territorial expanse, such as, by saying that a certain event occurred within its
jurisdiction; it may refer to the powers a state may exercise over its people,
property and circumstances that occur within its territorial ambit, stemming from
the key tenets of sovereignty and legal status arising out of the position the
state holds, with respect to its domestic or municipal realm.
Jurisdiction of a state, thus, is clearly founded on territorial sovereignty although
it extends well beyond it. However, there lies quite a marked distinction as
between the powers enumerated above, although the distinctions tend to blur in
practice.
Illustration :
A simple case in point is the instance of an offence committed by a man, in
State A, and his subsequent escape to State B. While State B can indeed
subject him to a trial, since they do have jurisdictional competence for the
same, the police officials belonging to State B cannot enter State A to
apprehend him. If they do wish to try the perpetrator, they should apply and
request the authorities of State A to arrest and hand over the perpetrator, and
to surrender him for trial to State B. This is a practical exposition of the law as
it applies, and indicates the existence of strong overtones of territoriality and
sovereignty.
If an offender is a national of State A, commits an act in State B, he cannot
be subject to a trial for it in State C even if he is present there, although State
A and State B can apply and request for him to be handed over for a trial,
from State C.
Kinds of Jurisdiction : The Three Wings : The three wings of any governmental
power are best known as the legislature, executive and judiciary.

1. the legislature passes the law, while
2. the executive enforces it, and
3. the judiciary expounds the law where there is any ambiguity, and
adjudicates any disputes where it arises in relation to the law, whether in its
theoretical sense, or in its application.
1. Legislative jurisdiction refers to the supremacy of the organs of the state that
derive recognition from the constitution, to make binding laws within the territorial
expanse of the state. However, sometimes, by virtue of being what is called, a
long-arm statute, certain pieces of legislation extend abroad, or to aliens.
States are permitted to enjoy jurisdictional exclusivity in the legislative sphere,
with which it may determine the procedural and substantive legal set up for its
territory and the people on its territory. This, consequently, is a recognized
notion in international law. A state is free to levy taxes against individuals, who
are not within its territory, as long as there is an acceptable link of nationality or
domicile, a state is also free to nationalize foreign-owned property which lies
within its borders, but cannot take over any foreign-owned property situated
abroad.
Albeit vested with a considerable measure of legislative supremacy, a state
cannot adopt a law contrary to the provisions of international law. There is no
room to plead municipal laws as a justification or as a basis for the breach of an
international obligation.
A state is also not allowed to abuse the rights it has, in a bid to legislate for its
nationals abroad, who may be guilty of breaching international law.
2. Executive jurisdiction refers to the capacity of a state to enforce the laws passed
by the legislature, within its borders and within the borders of another state.
States possess sovereignty within their territorial realm, in that the state is
permitted to execute, or to enforce its law within its territorial expanse.
As a corollary, states may not carry out their functions on foreign land, nor
enforce their laws on foreign land without express consent of the host state.
A state cannot apprehend or arrest people abroad, and cannot seize property
abroad.
Illustration : The Eichmann case, is an example, where Eichmann, a Nazi
criminal was apprehended by Israeli agents in Argentina in 1960. This action was
denounced as a breach of Argentinas territorial sovereignty and was deemed an
illegal exercise of Israeli jurisdiction.
States cannot send their military forces into the territory of another state, except
where authorized.
3. Judicial jurisdiction refers to the power of the courts of a state to try cases
where a foreign element exists. States are permitted to exercise jurisdictional
powers in respect of civil and criminal cases, based on several principles, such as
the territoriality, universality, nationality, passive personality and protective
principles.
Jurisdictional competence of states in issues pertaining to jurisdiction has raised
the largest number of debates and has initiated ample discussions.
Principles of Jurisdiction :
The concept of jurisdiction refers to the power of a State to prescribe and
enforce criminal and regulatory laws and is ordinarily based on the territorial
principle, under which a State has jurisdiction over activities within its territory.
Some states also claim jurisdiction over activities outside their territory which
affect their territory.
States can also claim jurisdiction based upon the nationality principle by
extending jurisdiction over their nationals even when they are outside the
territory. For example, civil law countries extend their criminal law to cover their
nationals while abroad while common law countries usually only do so in
exceptional cases.
There is also a very narrow category of crimes including genocide and war
crimes - over which States may assert jurisdiction based upon the universality
principle, which gives all States have jurisdiction irrespective of nationality or
location of the offence.
Almost all States claim jurisdiction under the protective principle, under which a
State asserts jurisdiction over acts committed outside their territory that are
prejudicial to its security, such as treason, espionage, and certain economic and
immigration offences.
The most controversial basis for jurisdiction followed by very few States - is
the passive personality principle, which establishes jurisdiction based on the
nationality of the victim.
In recent years States have asserted jurisdiction over terrorist acts outside their
territory directed against their nationals, thereby basing jurisdiction on a
combination of the protective and passive personality principles.
Modern counter-terrorism treaties establish jurisdiction among State Parties
based on the presence of the offender within their territory. If a persons who are
alleged to have committed the offence established in the treaty (e.g, hijacking of
an aircraft) is present in their territory, a State Party to the treaty is under an
obligation to take the persons into custody, and to either prosecute them or
extradite them to another State Party that has jurisdiction over the offence.
If two or more States have jurisdiction over a particular offence, they are said to
have concurrent jurisdiction. In such cases the State which is most likely to
prosecute the offender is the State which has custody over him.
No State may exercise jurisdiction within the territorial sovereignty of another
State. The police of State A cannot enter the territory of State B to arrest a
person who has committed a crime in State A.
Also, if a crime takes place in the territorial sea of a coastal State, no State other
than the coastal State my intercept and arrest the ship carrying the offenders.
States enter into bilateral treaties to provide for the extradition of alleged
offenders. Sending an alleged criminal to another State for investigation or
prosecution in the absence of an extradition treaty is referred to as rendition.
The high seas and outer space are outside the territorial jurisdiction of any
State. The general principle of jurisdiction in these common areas is that ships,
aircraft and spacecraft are subject to the jurisdiction of the flag State, or State
of registration. The general principle is that ships on the high seas are subject to
the exclusive jurisdiction of the flag State, and cannot be boarded without its
express consent. The most notable exception is piracy. All States have a right to
board pirate ships on the high seas without the consent of the flag State.
The Representational Principle : As the name suggests, this principle accords a
state the right to exert jurisdiction extra-territorially, by allowing the state to
virtually step into the shoes of a State with a more pressing claim to prosecute
the offender. The process may ensue as a consequence of a request made by a
State to such other state that pursues the exercise of jurisdiction accordingly, or,
as a consequence of a refusal to extradite, in keeping with the norm of aut
dedere aut judicare, which implies either extradite or prosecute.
Conflicts in exercise of Jurisdiction :
Plenty of bases exist in pursuance of which a state may exert its jurisdictional
prowess over a criminal. Several states may, as a consequence, have powers
that run concurrently. This paves the way for a different question altogether, as
to whether the exercise of jurisdiction by one state creates a bar to the
subsequent process of prosecution in other countries.
While this does indeed find an answer in the affirmative in some states, in some
others, this is not so.
International law itself does not offer an answer to the issue. As a consequence,
therefore, there are plenty of difficulties in the process of trying criminals.
Nevertheless, human rights and its burgeoning presence in international law has
proved to be an exception, preventing a few obstacles of this sort.
Nationality as a basis for jurisdiction and the exercise of jurisdiction on the basis
of objective and subjective territoriality has sparked off more difficulties than
any other principle, since the laws of the states involved may tend to permit,
prohibit and mandate a certain act or omission, which in turn may create
contradictory results.
This arises more commonly in instances of economic disputes, where states have
been found to enact blocking statutes to defeat the exercise of jurisdiction by
another state that wields power as a consequence of an extraterritorial statute.
The exertion of economic sanctions by the United States in pursuance of its
exercise of powers as under the ambit of the Helms-Burton Act, 1996, which was
signed by erstwhile US President Bill Clinton in response to the shooting down by
the Cuban Air Force of two planes, flown by an organization of Cuban-American
origin, in 1996. The act stipulates that nationals of third states dealing with
American property expropriated by Cuba, using such property, or making benefit
of the same, may be subjected to a suit for damages before courts of America,
and even be barred from entering the United States.
Many protests were made, because of the ambit and purport of the act,
which in effect was undermining international law.
The implications of jurisdictional powers and the need to pursue them are
manifold. However, care must be taken to ensure that the very essence of the
procedure should remain subservient to substantive law, to see that jurisdiction
is rationally exercised for the sake of bringing the offender to book, and not for
the assertion of one states superiority over the other.
Immunities from Jurisdiction :
The principle of sovereign equality of States requires that the official
representatives of one State should not be subject to the jurisdiction of another
State.
For example, the law of the sea provides that warships are subject only to the
jurisdiction of the flag State. Even if warships commit acts contrary to the right
of innocent passage or the laws and regulations of the coastal State, the coastal
States only remedy is to escort the offending warship out of the territorial sea.
The principle of State immunity or sovereign immunity provides that foreign
sovereigns enjoy immunity from the jurisdiction of other States. The principle of
diplomatic immunity provides that the diplomatic agents of the sending State
have complete immunity from the criminal jurisdiction of the receiving State.
However, since this immunity belongs to the sending State and not to the
diplomat, it can be waived by the sending State.
Also, the receiving State has the right to expel any diplomatic agent from its
country by declaring them persona non grata.
The premises of an embassy or diplomatic mission as well as its records and
archives are also inviolable. The authorities of the receiving State cannot enter a
foreign embassy without the express permission of the head of mission, even in
the case of an emergency.
Go To Contents
Write short note : State Responsibility. (Oct-2013)

ANSWER :
Intro :
There are rights and duties owed to and by all states as regards the international
community as a whole. The status of a state as a subject entails that it is an entity
that is governed by and subject to international law. As a consequence, a state is
granted certain rights under law, and is expected to conform to certain obligations
under the law. This rule takes root in the rudiments of jurisprudence, that every
right has a duty as a corollary.
When a state either breaches its duty, or poses a hindrance to the rightful
enjoyment of another states rights, a state must necessarily face the
consequences. This is entirely governed by the rules of state responsibility. The law
of state responsibility deals with the determination as to whether there is a
wrongful act in the first place, and then the legal consequences of the wrongful
acts, and how the state may be held responsible for the wrongful act as carried out
by it.
A breach of an international obligation gives rise to a requirement for reparation in
any form. The active interaction between international law and the rules of state
responsibility has resulted in the emergence of several instances of judicial
precedents and plenty of scholastic debates and evolved into a form of customary
international law.
The international law commission has been working extensively in this field, having
divided the entire sphere of law into three parts,
Part I origin of International Responsibility,
Part II form, content and degrees of International Responsibility, and
Part III settlement of disputes and the implementation of International
Responsibility.
Responsibility : Meaning and Nature :
The rules of international law as to state responsibility concern the circumstances
in which, and the principles whereby the injured state becomes entitled to redress
for the damage suffered.
All rights of an international character involve international responsibility, and
responsibility results in the duty to make a reparation if the obligation in question

is not met.
At times, the term responsibility is used interchangeably with the term liability,
but the use of either term in a straitjacket has not been known.
Liability is commonly understood to be the second part of responsibility, in that it
is the part where the payment, or compensatory reparation needs to be made.
Responsibility, however, refers to the determination of who or what the force
behind the act or omission itself is, and thereafter the demand for reparation
from such identified force.
Ingredients : The quintessence (most perfect example of quality or class) of state
responsibility hinges on the fulfillment of three basic essentials.
Primarily, there needs to be in international obligation between the two states, in
force at the material time.
Secondly, an act or an omission which is imputable to the state responsible
should have occurred, and
Finally, there must be loss or damage ensuing as a result of such act or
omission.
Contractual and tortuous responsibility :
In the Rainbow Warrior case, it was held that international law did not distinguish
between contractual and tortuous responsibility, so that any violation by a state of
any obligation of whatever origin gives rise to state responsibility and consequently
to the duty of reparation.
Draft Articles on the Responsibility of States for Internationally Wrongful Acts : Until
recently, the theory of the law of state responsibility was not well developed. The
position has now changed, with the adoption of the Draft Articles on the Responsibility
of States for Internationally Wrongful Acts ("Draft Articles") by the International Law
Commission (ILC) in August 2001. The crux of the conceptual framework of state
responsibility is found under Article 1 and Article 2.
Article 1 reemphasizes the general rule that every intentionally wrongful act of a
state entails the international responsibility of that state.
Article 2 indicates that there occurs an internationally wrongful act of a state WHEN
the conduct consists of an action or omission that is attributable to the state under
International Law, and constitutes a breach of an international obligation of that
state.
Article 3 has been included under the Draft Articles, as purporting that international
law shall determine what constitutes an internationally wrongful act, and not
municipal law.
Article-12 : A breach of an international obligation occurs when an act of that state
is not in conformity with what is required of it by that obligation, regardless of its
origin or character, as per Article 12.

Article 13 holds that an act of a state shall not be considered a breach of an
international obligation unless the state is bound by the obligation in question at
the time the act occurs.
Note :
A breach need not be a one-time event, if the state in question is repetitively
indulging in conducting the act or omission, thereby repetitively injuring the
other state. This is called a continuing breach.
A state assisting, directing or controlling another state, or coercing another
state, to commit an internationally wrongful act will also be responsible if it so
acted with knowledge of the circumstances and where it would be wrongful if
committed by that state.
Fault as a Basis of Responsibility :
Many a time, varying perceptions have been known to have arisen in relation to
whether fault can be deemed a basis for state responsibility.
The objective responsibility theory contends that the state is strictly
responsible without any importance attached to fault as a basis.
The subjective responsibility theory contends that a state can be held
responsible only if there is proof of the element of dolus, which means
intention, or culpa which means negligence.
Only if either exists, can the state be held responsible.
Most scholastic opinion and judicial precedents have been known to lean towards
the objective theory of state responsibility.
In the Neer Claim, an American Superintendent of a Mexican mine was shot. The
USA claimed damages on behalf of the surviving family members for the
lackadaisical handling of all investigations. Using the objective theory, the US Claim
was disallowed. In the Caire claim, where a French citizen was shot by Mexican
soldiers for failing to give them 5000 Mexican dollars, it was decided that Mexico
was liable, in keeping with the objective theory, holding that the responsibility for
the acts of the officials or organs of the state, which may devolve upon it even in
the absence of any fault on its part.
Original and Vicarious Responsibility :
Original responsibility clamps down on a state for the acts of its government and
allied entities,
while vicarious responsibility arises for the acts of its citizens and its agents.
Original responsibility is essentially that which a state bears for its own actions, for
its governments actions, and for the actions of the lower agents and private
individuals as performed with the command or authorization of the Government.
Vicarious liability arises when there are acts other than their own, such as those
unauthorized acts of their agents, subjects and aliens on their territorial
expanse.
The philosophy underlying vicarious responsibility emanates from the old school of
thought wherein only the state was deemed a subject of International Law, and
since individuals could not be held liable, the state itself as an entity ought to be
held liable on behalf of the individual in question. A state is an inanimate entity,
incapable of acting on its own without the involvement of human action.
The essential difference between original and vicarious responsibility is that the
former involves a case where the state is directly in breach of legal obligations
binding on it, while the latter is a case of indirect liability.
However, the legal consequences are not the same for both, since one is a case of
neglect of its own duty and the other is that of anothers duty. A state bears a
higher degree of responsibility when it has neglected its legal duties. In cases of
vicarious responsibility, the State has an obligation to make the concerned
individuals to make reparation.
Imputability of Responsibility :
When a state is made absolutely liable wherever an official is involved, it
encourages that state to exercise greater control over its various departments and
representatives. It encourages stringent compliance with objective standards of
conduct in International Relations. However, to hold a state thus responsible, it is
essential to prove a link between the state and the person, or persons actually
committing the unlawful act or omission.
However, a state is not responsible under International Law for all acts performed
by its nationals. A state is only liable for those acts that are imputable or
attributable to the state. ie Imputability is that legal fiction which links the actions
of, or omissions of state officials to the State itself, in the process thereby,
rendering the state responsible for the damage ensuing therein to the property or
person of an alien.
Illustration :
In the Nicaragua Case,[443] the ICJ found that acts imputable to the US clearly
included the laying of mines in the Nicaraguan waters, and attacks on
Nicaraguan ports, oil installations and a naval base by its agents.
In the Rainbow Warrior Arbitration case, when the vessel of the same name was
destroyed by French Agents in New Zealand, the latter received a sum as
compensation from France after liability was imputed. It is not altogether
impossible for a state to be charged with responsible for the activity of its
officials in injuring a national of another state, and this activity need not be one
authorized by the authorities of the state.
Ultra-Vires Acts :
A state may be held responsible for an unlawful act, even if it is beyond the legal
capacity of the official involved in the act, provided, the officials have acted at least
to all appearances as competent officials or organs or they must have used powers
or methods appropriate to their official capacity.
In the Youmans claim, unlawful acts by the militia, namely joining a riot from
which they had to protect Americans, and thereby killing the very ones they had to
protect, were imputed to Mexico.
The ILC Draft Articles also touch upon this aspect. Article 7 states that the conduct
of an organ or of a person or entity empowered to exercise elements of
governmental authority shall be considered an act of the concerned state under
International Law in that capacity even if it exceeds its authority or contravenes
instructions.
This is an indication of the acceptance of absolute liability, implying that the
objective theory is the correct approach.
Even though a private individual is not regarded as a state official, so that the state
is not liable for his acts, a state may be held responsible for failing to exercise the
control necessary to prevent such acts.
Quantifying the Extent of Control and Responsibility :
Oftentimes, the responsibility of states is linked to the extent of control the state
has, over the person or entity. This usually occurs in the context of private and
corporate entities in the private sector that commit any unlawful acts.
Article 8 of the ILC Articles stipulates that the conduct of a person or group of
persons shall be considered as an act of state under International Law if the
persons or group of persons is in fact acting on the instructions of, or under the
direction and control of, that state in carrying out the conduct.
Thus, as long as there is clear proof of the instructions given, the imputation of
responsibility is not difficult. But, the proof of direction and control is an area
replete with controversy and difficulty.
The most famous case in this regard is the Nicaragua Case, the ICJ held that in
order for the conduct of the contra guerillas to have been attributable to the US,
who had financed and equipped them, it would, in principle, have to be proved that
the state had effective control of the military and paramilitary operation in the
course of which the alleged violations were committed.
Note --->
Overall general control is NOT sufficient to impute responsibility.
Physical control of a territory and not sovereignty or legitimacy of title is the
basis of state liability for acts affecting other states.
Mob Violence, Insurrections, Civil Wars and State Responsibility :

In the context of state responsibility for rioters, violence or rebellious elements, the
extent of responsibility depends on whether the government has acted in good
faith, and without negligence. If there has been good faith and no negligence, the
government is not held responsible for the acts of rioters and rebels that cause loss
or damage.
Note : Where an insurrectional movement is successful either in becoming the new
government of a state, or in establishing a new state in part of the territory of the
pre-existing state, it will be responsible for its activities prior to its assumption of
authority.
State Responsibility for Injury to Aliens :
International Law has laid down a consistently maintained standard for the
treatment of aliens.
States are not under a duty to allow aliens into their territorial expanse, but, if
aliens do come in, they are to be treated in a manner befitting their status as
humans. When this is transgressed from, there happens to be a violation of
International Law. These obligations are categorized as primary rules by the
International Law Commission.
International law requires that aliens living in a state should be granted the same
rights that the citizens of the state are given. This is a duty on part of the state.
Where an alien suffers any injury due to any agent of a state, the state itself is
responsible.
A state owes a duty to the international community as a whole, to exercise due
diligence in preventing injury to aliens from its own subjects as also from other
foreign subjects within its own territory. If the citizen of a state causes some
damage or harm to an alien on that states territory, the alien gains the right to file
a suit for compensation according to law of that state.
Of course, the decisions of the court bind the aliens, and all rights of appeal, review
and revision also flow.
Defenses to State Responsibility : State responsibility is not absolute, but is subject to
certain defenses, which flow from circumstances that oblige a state to act in a certain
manner, or make a state act in such a manner. These defenses are stipulated under
the ILC Draft Articles, and are also existent norms under customary practice.
(a) Consent
(b) Self-Defense
(c) Countermeasures
(d) Force Majeure
(e) Distress
(f) Necessity
(a) Consent : Where a state consents to an act by another state which would
otherwise constitute an unlawful act, wrongfulness is precluded provided that the
act is within the limits of the consent given.
eg When there is a dispatch of troops from one state to another, at the request
of the latter, the latter state cannot hold the former state liable for any acts of
the troops.
(b) Self-Defense : When an act is undertaken in conformity with the UN Charter, as
self-defense, a state is precluded from being held responsible. This covers self-
defense as under customary International Law and as under the UN Charter, which,
under A.51, speaks of self- defense as being an inherent right of an individual
state, and as being a collective right as well. However, the ILC clarifies that the fact
that an act is taken in self-defense does not preclude all wrongfulness, because at
all times, human rights and humanitarian laws have to be respected. As stated in
the Legality of the Threat of Use of Nuclear Weapons case, respect for the
environment is one of the elements that go to assessing whether an action is in
conformity with the principles of necessity and proportionality, and thus, is in
accordance with the right to self-defense.
(c) Countermeasures : Article 22 of the ILC Draft Articles states that if an act
constitutes a countermeasure, it precludes wrongfulness and averts responsibility
for the state.
Originally, the word reprisal was used to depict such acts, and meant any act
otherwise unlawful, but rendered legitimate by way of the prior application of
unlawful force.
A countermeasure is different from Article 60 of the Vienna Convention on
the Law of Treaties, which speaks of the consequences that emanate from the
material breach of a treaty, holding that the other parties to a treaty may well
terminate or suspend the treaty. Countermeasures do not affect the legal
validity of the obligation that has been breached, by way of a reprisal.
In order to be justifiable, a counter-measure must meet certain conditions.
Firstly, it must be an act in response to a prior internationally wrongful act of
another state and must be directed against that state.
Secondly, the injured state must have called upon the state committing the
wrongful act to discontinue its wrongful conduct or to make reparation for it.
Thirdly, the countermeasure must be commensurate with the injury suffered,
taking account of the rights in question.
Lastly, its purpose must be to induce the wrongdoing state to comply with its
obligations under International Law, and the measure must therefore be
reversible. Chapter II of the ILC Draft Articles,
Note that, a countermeasure is limited only to the extent of non-performance of

the obligation, and must be taken in such a way as to allow the state to resume
the performance of the obligation.
(d) Force Majeure : Force majeure refers to those acts that are out of the control of
the entity, and hence cannot be averted. They refer to the acts of god, or the acts
of any entity that wields a higher power beyond human control.
Force majeure has long been accepted as precluding wrongfulness, and the
standard of proof to be advanced is rather high. War was rejected as a form
of force majeure in the Serbian Loans Case, where the First World War was
cited as the reason for Serbias impossibility to repay a loan.
Article 23 of the ILC Articles provides that force majeure can be construed as
a ground precluding state responsibility. In the Gill Case, a house that
belonged to a British National, in Mexico had been destroyed as a Force
Majeure was taken up as a defense in the Rainbow Warrior Arbitration, where
the tribunal stated that the test of applicability of this doctrine was one of
absolute and material impossibility, and a circumstance rendering the
performance of an obligation more difficult or burdensome did *NOT*
constitute a case of force majeure.
(e) Distress : Article 24 of the ILC Draft Articles states that wrongfulness is
precluded if the author of the conduct concerned had no other reasonable way in a
situation of distress of saving the authors life or the lives of other persons
entrusted to his care.
An example of this is the agreement in the 1946 US-Yugoslav correspondence,
which specified that only in an emergency would unauthorized entry into foreign
airspace be acceptable, or the seeking of safe haven in a foreign port without
sanction by a ships captain in stormy conditions.
Distress differs from force majeure, given that it has an element of choice
involved, but oftentimes, this is illusory, given that in both cases, extreme peril
exists and whether or not there is a choice, is highly debatable.
In the Rainbow Warrior Arbitration, the tribunal enunciated three conditions as
being necessary preconditions for the defense of distress to be applicable.
First, there should be exceptional circumstances of extreme urgency,
recognized by the other interested party, or is clearly demonstrated.
Second, the re-establishment of the original situation as soon as the
reasons of emergency invoked to justify the breach of the obligation has
disappeared, and
third, the existence of a good faith effort to try and obtain the consent of
the other state based on an agreement.
(f) Necessity : Article 25 provides that necessity may not be invoked unless the act
was the only means for the state to safeguard an essential interest against a grave
and imminent peril, and the act does not seriously prejudice a crucial interest of
the Alien states or of the International Community as a whole.
Necessity cannot be invoked if the state itself has contributed towards the
creation of the situation of necessity.
The Torrey Canyon case, is an example of this kind, where a Liberian oil tanker
spilled large quantities of oil when it went aground off the UK bombed the ship.
This was deemed a legitimate action by the ILC.
The defense of necessity has often been deemed controversial. It is a ground
well recognized and accepted in customary law, and precludes responsibility for
a state if proved.
Go To Contents
Explain : Treatment of aliens and concept of extradition. (Nov-2011)

Discuss in detail the rights and duties of states with regard to alien. (Nov-2014)
Explain : Alien. (Nov-2012, Oct-2013)
Explain : Extradition. (Nov-2012, Oct-2013, Nov-2014, Dec-2015)
Discuss in detail the concept of Extradition. (Dec-2016)
Explain in detail : Treatment towards aliens. (Dec-2016)
ANSWER :
Treatment of Alien :
Refer :
https://en.wikipedia.org/wiki/Alien_(law)
Intro :
The term "Alien" is derived from the Latin alienus, meaning stranger, foreign,
etym. "belonging (somewhere) else".
In law, an alien is a person who resides within the borders of a country and is
not a national of that country, though definitions and terminology differs to some
degree.
Without doubt, a plethora of differences exist in the rights of nationals and
aliens.
Aliens have no political rights and may be barred from employment in certain
spheres, such as government jobs, while being subject to the local law at all
times.
A state has absolute authority to refuse the influx of aliens, or to allow
admittance of aliens.
Categories : Different countries use varying terms for "aliens" including :
a legal alien is a non-citizen who is legally permitted to remain in a country. This
is a very broad category which includes tourists, guest workers, legal permanent
residents and student visa resident aliens.
a nonresident alien is a non-citizen who is visiting a country, for example as a
tourist, on business, entertainers, sportspeople or in the country to receive
medical treatment.
a resident alien is a non-citizen who has permanent resident status in a country.
an enemy alien is a non-citizen who is a national of an enemy country.
an illegal alien or 'undocumented alien' is a non-citizen who has entered a
country through irregular migration, for example entered illegally, or an alien
who entered a country legally but who has fallen "out of status."
State Responsibility for Injury to Aliens : International Law has laid down a
consistently maintained standard for the treatment of aliens.
States are not under a duty to allow aliens into their territorial expanse, but, if
aliens do come in, they are to be treated in a manner befitting their status as
humans. When this is transgressed from, there happens to be a violation of
International Law. These obligations are categorized as primary rules by the
International Law Commission.
International law requires that aliens living in a state should be granted the
same rights that the citizens of the state are given. This is a duty on part of the
state. Where an alien suffers any injury due to any agent of a state, the state
itself is responsible.
A state owes a duty to the international community as a whole, to exercise due
diligence in preventing injury to aliens from its own subjects as also from other
foreign subjects within its own territory. If the citizen of a state causes some
damage or harm to an alien on that states territory, the alien gains the right to
file a suit for compensation according to law of that state.
Of course, the decisions of the court bind the aliens, and all rights of appeal,
review and revision also flow.
Claim for injury to an alien :
Any failure to comply with this minimum international standard causes
international responsibility, and the state of the injured claimant is allowed to
exercise its right of diplomatic protection, by claiming through its diplomatic
channels. The claim may be one for compensation or any other mode of
reparation.
The claims are usually always settled by way of negotiation, arbitration,
conciliation or even judicial settlement. It must be remembered that these duties

are owed to the injured state, and not to the injured alien, because the state
suffers an injury when its own citizens themselves suffer injuries. This implies
that the injured state has a choice whether or not to pursue a claim.
In the Barcelona Traction Case, the court held that within the ambit of
International Law, a state may exercise diplomatic protection by whatever
means and to whatever extent it deems fit, in keeping with its own choices for
its own interests.
The court went on to enunciate that the persons, legal or natural, on whose
behalf the state acts, cannot do anything if they feel that their remedy is
inadequate. They can only resort to municipal law, which is again a
preponderance of possibilities, because there need to be avenues open for
them in municipal law.
The state is the sole judge where it comes to deciding whether it should grant
protection, and if so, to what extent. This is not to say that international law
disregards the individuals, since the focal point in calculating the extent of loss
suffered is entirely the individual.
Illustration : In the "I am Alone" case, the USA sank a British vessel that was
smuggling liquor into the United States. The sinking, though declared illegal,
did not attract compensation, since the same was employed by citizens of the
US for the sake of importing liquor. But, an apology and a sum of US$25,000
was ordered to be paid by the USA to Britain, for the disrespect to their flag.
In making a claim, it is important that it be presented without any unreasonable
delay. It is also important to note that contributory acts on part of the alien
himself, precludes the state from seeking redressal on any account. A state
cannot claim on behalf of an injured alien, if his hands are not clean.
The Calvo Doctrine :
The Calvo Doctrine provides that aliens are not entitled to rights and privileges
that are not accorded to nationals of a given country, and
ie aliens doing business in a given country may seek redress for any
grievances only before local authorities.
The corollary of this concept is that governments can have no greater
responsibility toward aliens than they have to their own citizens.
The Calvo Doctrine was propounded by Calvo of Argentina and contends that
during a civil war, the state is not responsible for the losses suffered by the
aliens on its territory. The reason being, IF this responsibility is accepted, then
bigger nations would gain an excuse to intervene in the independence of weaker
states.
At heart, the doctrine is a justification of the right of governments to be free of
interference of any sort.

The doctrine was created in the wake of the armed interventions in Mexico by
France in 1838 and 1861 to effectuate certain claims of French citizens against
the Mexican government.
The Doctrine has not been completely accepted by states such as America and
the UK.
The Calvo Doctrine often, is found to be included in contracts, where liability is
sought to be averted upon contingent events.
Illustration :
In the Orinoco Steamship Co. Case, the arbitral tribunal did not accept the
Calvo Clauses inclusion.
The leading arbitral decision addressing the validity of the Calvo Clause is
North American Dredging Co. of Texas (United States of America v. United
Mexican States). The U.S. government asserted a claim for $233,000 on
behalf of a U.S. corporation for breach of a contract for dredging a Mexican
port. The contract provided in Article 18 that the U.S. company would be
considered as a Mexican in all matters concerning the contract, it would not
have any rights aside of those granted to Mexicans, and that diplomatic
intervention on its behalf was not permitted.
Despite its acceptance in Latin America, the Calvo Clause has not been generally
accepted by nations outside Latin America, and has not become a generally
accepted principle of customary international law.
Over the years, the clause seems to have lost much of its appeal and
controversy. Generally, the United States government today does not intervene
diplomatically on behalf of its citizens in disputes with Latin American
governments except in cases of flagrant denials of justice.
Difference in approaches of developed nations and developing nations :
Western nations have aspired for protection of investments and their nationals
abroad, and their property. States in the West have contended the existence
of an international minimum standard for the protection of foreign nationals
that needs to be upheld, irrespective of how it treats all its own nationals.
On the other hand, developing nations contend that a state needs to treat the
alien as it treats its own nationals. States, such as those of Latin American
origin perceive the minimum standard concept as a ground of interference in
internal affairs of other states.
The Calvo Doctrine evolved at this juncture, which re-ascertained the principle of
non-intervention, asserting that aliens were entitled only to such rights as were
accorded to nationals, and thus, had to seek redress for grievances exclusively
in the domestic sphere.
The Calvo doctrine was essentially a shield against state intervention.

Illustration :
In the Neer Claim, an American superintendent of a mine in Mexico had been
killed, and the commission held that the propriety of governmental acts
should be put to the test of international standards.
In the Certain German Interests in Polish Upper Silesia Case, the Court upheld
the existence of a common or generally accepted norm under International
Law, respecting the treatment of aliens, applicable irrespective of what
municipal law contends.
The Garcia case, followed by the Chattin Case, witnessed the view that an
international standard needs to be adhered to;
Expulsion of alien :
Jurisprudence depicts that a state is obliged to divulge convincing reasons for
expelling an alien.
In the Boffolo Case, the court held that expulsion can be resorted to only in
extreme circumstances, in a manner least injurious to the alien. Reasons for
expulsion need to be enunciated whenever demanded. The onus of proof of the
wrongfulness of expulsion falls on the claimant alleging wrongful expulsion.
Expelled aliens are required to be taken back by the state whose nationality it
possesses.
Conclusion :
The evolution of human rights has created a certain minimum standard of state
behaviour in pertinence to civil and political rights. None of the instruments
distinguish nationals and aliens, specifically applying to individuals within the
territory and subject to the jurisdiction of the state without discrimination.
Extradition :
Intro :
Extradition is an act undertaken in pursuance of the principles of mutual
cooperation and mutual assistance. The practice simply refers to the handing
over of suspected and convicted criminals from one state to another, when such
criminals have fled abroad in a bid to avoid any form of legal consequences for
crimes committed by them in the place they have fled from.
Extradition per se, is based on the existence of a treaty upon which it shall be
undertaken. It is not an obligation under customary international law.
The general consensus in international law is that a state does not have any
obligation whatsoever, to surrender any alleged criminal to another state. This
hinges upon the purport and ambit of the principle of sovereignty, which holds
that every state has control and legal authority over the people within its
borders.
As a consequence, thus, plenty of states have gone into bilateral treaties and
agreements with other states, in a bid to ensure that they have the machinery
installed should the occasion warranting its usage arise. At the same time,
however, it is necessary to note that not every state in the world has extradition
bilateral with every other state in the world.
States, however, are free to decline from entertaining any requests for
extradition by way of enacting a law to help them do so.
Extradition implies a setting where there lies some form of cooperation between
different countries, in civil, criminal and administrative matters, based upon the
dictates of a bilateral or a multilateral treaty.
Cooperation may manifest itself in different ways.
A criminal may seek refuge in a state which has no jurisdictional rights to try
him, and such state may hand the individual over.
Another example is where a criminal seeks refuge in a state, which, though
has jurisdiction to try him, does not do so because all the necessary evidence,
witnesses and other requirements are abroad.
WHEN is extradition denied ?
1. Failure to fulfill double criminality, which implies a requirement where the
act for which extradition is sought for needs to be an offence punishable by
law in both, the requesting and requested states.
2. Political crimes, where the requested state may refuse to extradite the
accused for an act that is essentially a crime involving a political colouration.
3. Possibility of certain punishments being imposed, whereby states refuse to
extradite individuals under the fear of his likelihood of facing the death
penalty, or sometimes even torture. Some states are known to refuse
extradition to states that administer penalties that they themselves do not.
4. Jurisdiction, where states may refuse extradition under the guise that the
requesting state has no jurisdictional rights to pursue a trial.
5. Citizenship of the accused in question, where some states are known to
refuse extradition of their own citizens, since they themselves have
jurisdiction over their citizens.
Several states are known to deny extradition requests if their government opines
that the offense is a political crime. Refusal of extradition on the ground that the
death penalty is administered is often seen to occur in Canada, Mexico, Macao
and several European states, unless they are each assured that the death
sentence will not be passed, or carried out.
Illustration :
In Soering v. United Kingdom, the European Court of Human Rights held that
it would violate Article 3 of the European Convention on Human Rights to
extradite a person to the United States from the United Kingdom in a capital-
punishment case, which occurred on account of the harsh conditions on death
penalties and the uncertain timescale within which the sentence would be
executed.
Often, such restrictions on extradition exist in the treaties themselves, as agreed
upon by the governments.
States such as France, Germany, Russian Federation, Austria, the People's
Republic of China, the Republic of China (Taiwan) and Japan, forbid the
extradition of their own citizens.
Extraordinary rendition or irregular rendition :
Literally, Extraordinary rendition or irregular rendition means government-
sponsored abduction and extrajudicial transfer of a person from one country to
another. --- (especially in the US) the practice of sending a foreign criminal or
terrorist suspect covertly to another country.
Where a state does not extradite an individual, chances are, that the requesting
state seeks to take the law into their own hands, by making a foray into their
territory and apprehending the individual.
Per se, the entry of the officials or individuals of one state into the territory of
another state without its permission constitutes a violation of the norms of
international law, such as non-intervention involving state responsibility, with
the sole exception of self-defense.
While, in principle, it is possible to question the entire act as being a wholesome
act of violation of state sovereignty, augmented by the exercise of jurisdiction, it
has not been put into practice. A line is drawn demarcating apprehension and
exercise of jurisdiction for prosecution.
Various modes of apprehension of an individual :
Amongst apprehensions themselves, plenty of different instances exist.
Apprehension may occur on the high seas, or on the territorial seas, or even on
the territory of another state devoid of its consent. In the last segment, again,
there is a two fold bifurcation, implying apprehension without consent occurring
on another states territory, either with which it has an extradition territory, or
does not.
Depending upon the offences concerned, apprehension and the means used to
execute it, the question of whether any irregularity in the procedure would
interfere with the process of prosecution will be analyzed.
US Practice : The American practice indicates two divergent ways.
In Ker v. Illinois, and Frisbie v. Collins,it was held that the government's
power to try a criminal defendant is not impaired by the defendants having

been brought back illegally to the United States from a foreign country.
In US v. Toscanino, however, it was held that the rule of jurisdiction being
unaffected by illegal apprehension should not be applied where the presence
of the defendant has been procured by use of force or fraud, has to a
considerable extent been eroded.
However, in the subsequent ruling of US ex rel. Lujan v. Gengler, it was held
that the rule so laid down is limited by exceptions to cases of torture, brutality
and similar outrageous conduct, which, if occur, would affect the exercise of
jurisdiction.
The issue was dissected in more detail in the case of US v. Alvarez-Machain,
where an extradition treaty subsisted between Mexico and the USA, in the
context of which the Court ruled that where the terms of an extradition treaty in
force between the states concerned prohibited abduction of suspects and alleged
offenders, jurisdiction in pursuit of such mode of apprehension cannot be
exercised. In the absence of such treaty, the Ker-Frisbie rule would apply
without restriction.
UK Practice : As for the United Kingdom, the approach finds some modification.
In R v. Plymouth Justices, ex parte Driver, it was held that once a person comes
into the lawful custody of the states authorities within the states jurisdiction,
the means used to apprehend him cannot be questioned, and therefore,
jurisdiction may continue to be exercised. Subsequently, however, in R v.
Horseferry Road Magistrates Court, it was held that where an extradition treaty
subsists, if he has been forcibly apprehended, the courts will refuse to exercise
jurisdiction over him, since the stipulated procedures as laid down by the
extradition treaty cannot be violated.
Entrapment as a means of apprehension is also outlawed in the presence of an
extradition treaty.
Case of extraordinary rendition :
In the Abu Omar Case, where Hassan Mustafa Osama Nasr (Abu Omar), was
kidnapped by the CIA in Milan, Italy, as he walked to his Mosque for his noon
prayers, and then deported to Egypt. He was flown to Ramstein, Germany, after
which a second plane took him to Cairo, where he was imprisoned and as per his
claims, even tortured. At the time of his disappearance, Italy was investigating
allegations that purported that Nasr had tried to recruit jihadists. Prosecutor
Amarando Spataro declared that his abduction was touted as illegal as it violated
Italian sovereignty and disrupted ongoing police investigation.
Go To Contents
Explain : Asylum. (Nov-2012, Nov-2014, Dec-2015)

Write short note : Refuge. (Oct-2013)
ANSWER :
Refer :
http://www.ijrcenter.org/refugee-law/
Refugee :
Intro :
Modern refugee/ asylum regime is largely the product of the second half of the
twentieth century. Like international human rights law, modern refugee law has
its origins in the aftermath of World War II as well as the refugee crises of the
interwar years that preceded it. Article 14(1) of the Universal Declaration of
Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek
and enjoy asylum in other countries. Subsequent regional human rights
instruments have elaborated on this right, guaranteeing the right to seek and
be granted asylum in a foreign territory, in accordance with the legislation of the
state and international conventions.
The controlling international convention on refugee law is the 1951 Convention
relating to the Status of Refugees (1951 Convention). establishes the definition
of a refugee as well as the principle of non-refoulement and the rights afforded
to those granted refugee status.
Who Is a Refugee?
Article 1(A)(2) of the 1951 Convention defines a refugee as an individual who is
outside his or her country of nationality or habitual residence who is unable or
unwilling to return due to a well-founded fear of persecution based on his or her
race, religion, nationality, political opinion, or membership in a particular social
group.
Applying this definition, following are NOT considered refugees,
internally displaced persons (IDPs) including individuals fleeing natural
disasters,
stateless individuals not outside their country of habitual residence or not facing
persecution, and
individuals who have crossed an international border fleeing generalized violence
Countries in the Americas and Africa experiencing large-scale displacement as the
result of armed conflicts found that the 1951 Convention definition did not go far
enough in addressing the protection needs of their populations. Consequently, (i)
Article 3 of the Cartagena Declaration and (ii) Article 1(2) of the 1969 OAU
Convention, extended refugee status to,

an individual who owing to external aggression, occupation, foreign domination
or events seriously disturbing public order in either part or the whole of his
country of origin or nationality, is compelled to leave his place of habitual
residence in order to seek refuge in another place outside his country of origin or
nationality.
The United Nations High Commissioner for Refugees (UNHCR) also provides
protection to IDPs and stateless individuals in addition to 1951 Convention
refugees.
Exceptions : Exclusion and Cessation Clauses : The 1951 Convention places a
number of restrictions on eligibility for refugee status.
Article 1(D) excludes individuals who, at the time of the 1951 Convention, were
already receiving protection or assistance from another UN organ or agency. This
article 1(D) largely applied to Koreans receiving aid from the United Nations
Korean Reconstruction Agency (UNKRA) and Palestinians receiving aid from the
United Nations Relief and Works Agency for Palestine Refugees in the Near East
(UNRWA) and continues to apply to the latter.
Article 1(F) excludes individuals : with respect to whom there are serious
reasons for considering that :
(a) he has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of
refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the
United Nations.
Individuals who voluntarily avail themselves of the protection of their country
of nationality or habitual residence or individuals who have received protection in
a third country are also not considered refugees.
Rights of refugee : What Rights Do Refugees Have? : Refugee law and international
human rights law are closely intertwined; refugees are fleeing governments that
are either unable or unwilling to protect their basic human rights. Additionally, in
cases where the fear of persecution or threat to life or safety arises in the context
of an armed conflict, refugee law also intersects with international humanitarian
law. Rights of refugees may be categorized as follows :
1. NON-REFOULEMENT
2. FREEDOM OF MOVEMENT
3. RIGHT TO LIBERTY AND SECURITY OF THE PERSON
4. RIGHT TO FAMILY LIFE

5. OTHER RIGHTS
1. NON-REFOULEMENT : Art. 33(1) of 1951 Convention relating to the Status of
Refugees :
The basic principle of refugee law, non-refoulement refers to the obligation of
States not to refoule, or return, a refugee to the frontiers of territories where
his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.
Non-refoulement is universally acknowledged as a human right. It is expressly
stated in human rights treaties such as Article 3 of the Convention against
Torture and Article 22(8) of the American Convention on Human Rights.
There are two important restrictions to this principle. Persons who otherwise
qualify as refugees may not claim protection under this principle where there are
reasonable grounds for regarding the refugee as a danger to the national
security of the host country or where the refugee, having been convicted of a
particularly serious crime, constitutes a danger to the host community. 1951
Convention, art. 33(2).
2. FREEDOM OF MOVEMENT :
The rights to seek asylum and freedom of movement can be found within the
text of the same article. The rights are closely related, since the inability to
return to ones country is the basis of an asylum claim while the ability to leave
ones country is a prerequisite for claiming refugee status under the 1951
Convention.
Freedom of movement, however, is also a key right for refugees within their host
country.
Article 26 of the 1951 Convention provides that States shall afford refugees the
right to choose their place of residence within the territory and to move freely
within the State.
Article 28 obliges States parties to issue refugees travel documents permitting
them to travel outside the State unless compelling reasons of national security
or public order otherwise require.
Freedom of movement is an especially important issue with regard to protracted
refugee situations in countries with limited national resources and/or limited
legal frameworks for protecting refugees who nonetheless host large refugee
populations. In such countries, refugee warehousing in which refugees are
confined to refugee camps, thereby restricting their access to employment and
education is commonly practiced. U.S. Comm. for Refugees & Immigrants,
World Refugee Survey 2009 (2009).
Countries such as Kenya and Ethiopia specify in their national laws that the
movement of refugees throughout the country may be restricted and that

refugees may be limited to living in designated areas, namely refugee camps.
3. RIGHT TO LIBERTY AND SECURITY OF THE PERSON :
The right to liberty and security of the person is important in the context of how
asylum seekers are treated within the intended country of refuge.
The national laws of several countries provide for the detention of asylum
seekers at one point or another during the adjudication of their claims.
The detention of asylum seekers is a contentious issue because of the conditions
found in the detention facilities of several countries. This is particularly an issue
in Greece, a country overwhelmed by the number of asylum seekers it receives,
many of whom use Greece as a port of entry as they try to access other
European countries.
In order to clarify which State has responsibility for a particular asylum
applicant, the Council of Europe issued Council Regulation EC No. 343/2003 of
18 February 2003 establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application lodged in one of
the Member States by a third country national (commonly known as the Dublin
Regulation).
Under the Dublin Regulation, the State through which the third country national
first entered Europe is generally considered the State responsible for
adjudicating that nationals asylum claim.
4. RIGHT TO FAMILY LIFE :
The family is seen as the natural and fundamental group unit of society and is
entitled to protection by society and the State. See, e.g., International
Covenant on Civil and Political Rights, art. 23(1).
In respect of this right, a number of countries provide for the granting of
derivative status to dependent relatives. Thus, where an individual is granted
asylum, his or her dependent relatives will also receive protection through him
or her. See 8 U.S.C. 1158(b)(3)(A) (U.S.); Immigration Rules, 2012, S.I.
2012/11, art. 339Q(iii) (U.K.);
However, should that individuals refugee status be terminated, the status of
dependent relatives will also be terminated.
Consequently, these domestic laws do not preclude dependent relatives from
making their own asylum claims.
The definition of a dependent relative, however, varies by the cultural notions of
family prevalent in the State party. In the U.K., dependents are defined as the
spouse, civil partner, unmarried or same-sex partner, or minor child
accompanying [the applicant] while in Kenya, dependent relatives include the
brother or sister of an applicant under the age of eighteen, or any dependent
grandparent, parent, grandchild or ward living in the same household as the

refugee.
5. OTHER RIGHTS : 1951 Convention Art.16, art.17, art.13 :
The 1951 Convention also protects other rights of refugees, such as the rights to
education, access to justice, employment, and other fundamental freedoms and
privileges similarly enshrined in international and regional human rights treaties.
In their enjoyment of some rights, such as access to the courts, refugees are to
be afforded the same treatment as nationals while with others, such as wage-
earning employment and property rights, refugees are to be afforded the same
treatment as foreign nationals.
Exceptions to refugee rights :
Despite these rights being protected in the 1951 Convention and under human
rights treaties, refugees in various countries do not enjoy full or equal legal
protection of fundamental privileges.
Ethiopia, for example, made reservations to Article 22 (public education) and
Article 17 (wage-earning employment), treating these articles as
recommendations rather than obligations.
Although not a party to the 1951 Convention, Lebanon is host to a large
population of refugees, predominately Palestinians. Restrictive labor and
property laws in Lebanon prevent Palestinians from practicing professions
requiring syndicate membership, such as law, medicine, and engineering, and
from registering property.
ASYLUM :
Intro :
The adjudication of asylum claims is reserved to individual States. Although
some States, namely those that comprise the Council of Europe, have made an
effort to adopt a uniform asylum system, international and regional bodies lack
the jurisdiction to adjudicate individual asylum claims.
International and regional bodies do, however, adjudicate claims asserting
violations of the human rights of refugees and asylum seekers.
Despite differences across, and sometimes within, States, there are a number of
commonalities between the asylum procedures of States who have national
frameworks for granting refugee status. The following is a general and simplified
explanation of these procedures.
Key Terms : In order to understand how these procedures operate it is necessary
to first identify how certain key terms in the 1951 Convention are defined within
the domestic legal systems of particular States.
Refugee :
<discussed elsewhere in this doc>

Asylum seeker :
person within a State party who has applied for recognition as a refugee. If
the asylum seeker is determined to meet the definition of a refugee they are
granted asylum.
Well-founded fear :
individual States have interpreted the 1951 Conventions requirement of a
well-founded fear of persecution to require asylum seekers to show that there
is a reasonable possibility that they will suffer persecution if returned to their
country of nationality or habitual residence.
Persecution :
persecution is not defined in the 1951 Convention or the 1967 Optional
Protocol. In an attempt to provide guidance on what constitutes persecution,
the Council of Europe included a non-exhaustive list in the Qualification
Directive of acts that could be considered persecution such as :
acts of physical or mental violence, including acts of sexual violence; legal,
administrative, police, and/or judicial measures which are in themselves
discriminatory or which are implemented in a discriminatory manner;
prosecution or punishment, which is disproportionate or discriminatory; denial
of judicial redress resulting in a disproportionate or discriminatory
punishment; prosecution or punishment for refusal to perform military service
in a conflict, where performing military service would include crimes or acts
falling under the exclusion clauses as set out in Article 12(2); acts of a
gender-specific or child-specific nature.
Persecution need to have been committed by a State actor; persecutory acts
committed by non-state actors may qualify under the 1951 Convention where
the State is unwilling or unable to protect the individual claiming refugee
status.
Race, religion, nationality :
the asylum applicant need not actually possess the racial, religious, or
national characteristic in question provided that characteristic was attributed
to the asylum seeker by the persecutor and is the reason for the persecution
Political opinion :
like the above three grounds, political opinion may be imputed to the asylum
seeker.
Membership in a particular social group :
there is still a lack of consensus as to what constitutes a particular social
group and whether women and homosexuals, fall within this category. The
Council of Europe has stated that persons may be considered to constitute a

particular social group when they share a common immutable characteristic,
that is, something innate to their being or so fundamental to their being that
they cannot be expected to change it, and have a distinct identity within their
country of nationality or habitual residence because they are perceived as
being different by that society.
War crimes, Crimes against Humanity :
States apply the definition provided in international humanitarian law, as
articulated in Articles 7 and 8 of the Rome Statute of the International
Criminal Court.
Procedures for Claiming Asylum :
Typically, refugee status determinations or asylum adjudications are conducted
by an official from a designated government department or agency. These
officials should have a solid knowledge of refugee law. In most cases, the official
will interview the asylum seeker to evaluate his or her evidence and credibility.
The burden is on the asylum seeker to prove that he or she meets the definition
of a refugee and asylum seekers are encouraged to supply as much supporting
evidence as possible. Supporting evidence may take the form of country reports,
NGO reports, news articles, affidavits, or the in-person testimony of witnesses.
In accordance with Article 31 of the 1951 Convention, an applicants irregular
entry (i.e., without an entry visa or other documentation) will not have a
negative effect on the asylum seekers application. Some States, however, do
place time restraints on how many days after entry into their country an asylum
seeker may make an application.
If the official finds that the asylum seeker has a well-founded fear of persecution
based on one of the five grounds, he or she can grant the applicant asylum.
Individuals granted asylum receive a residence permit for themselves as well as
one for any dependent relatives.
States provide that where the Government denies an asylum application, the
asylum seeker is to receive an explanation of the reasons for the denial.
Asylum seekers have a right to appeal their negative decision.
Generally, an applicant may not be removed unless they have exhausted all
of their available remedies.
Individuals who are ineligible for asylum may nonetheless be eligible for more
limited forms of protection. These include protection under Article 3 of the
Convention against Torture, which forbids States parties from extraditing or
returning an individual to a country where they risk being tortured or subjected
to cruel, inhuman, or degrading treatment or punishment.
States also grant complementary forms of protection, such as withholding of
removal, subsidiary protection, and Temporary Protected Status to individuals

who do not meet the definition of a refugee but whose life or freedom would be
in danger if returned to their country of nationality or country of habitual
residence.
Determination of Refugee Status by the UNHCR :
There are a number of States who host large refugee populations but who are
either not a party to the 1951 Convention and 1967 Optional Protocol or who do
not have laws or policies in place to address asylum claims.
These States include a large number of countries in the Middle East and Asia
with significant refugee populations, including Egypt, Jordan, India, Malaysia,
Lebanon, and Pakistan.
In such cases, refugee status determinations are carried out by field offices
of the United Nations High Commissioner for Refugees (UNHCR).
The refugee status determination (RSD) conducted by the UNHCR is similar to
asylum adjudications conducted by States.
After registering with the local UNHCR office, asylum seekers meet with an
Eligibility Officer who examines their application and supporting documentation.
All asylum seekers have the right to an individual in-person interview and may
be accompanied by a legal representative.
Asylum seekers are permitted to bring witnesses, but UNHCR policy is that the
testimony of witnesses should not be given in the presence of the applicant and
should never be given in the presence of other witnesses or third parties.
All applicants are informed in writing of the Eligibility Officers decision. Where
the eligibility officer has decided not to award refugee status, the applicant is
entitled to an explanation of the negative determination.
All individuals granted refugee status as well as derivative relatives are issued a
UNHCR Refugee Certificate which stipulates that the holder is a refugee and is
therefore entitled to protection, including protection from refoulement.
Unfortunately, in practice, issuance of a Refugee Certificate does not always
guarantee an individuals ability to work or protect them from being detained in
their host country.
UNHCR normally determines refugee status on an individual basis; however, the
agency will afford prima facie refugee status to groups in cases where a large
group of individuals has been displaced and the need for protection is especially
urgent. A recent example of this was the UNHCRs 2007 decision to give prima
facie refugee status to asylum seekers from southern and central Iraq. Id.
Go To Contents
Explain the validity and invalidity of treaties. (Dec-2015)

Explain in detail the meaning and various steps towards the conclusion of the
Treaty. (Dec-2016)
Write short note : Treaty. (Oct-2013)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Treaty
https://www.scribd.com/document/101743038/Public-International-Law-Guide
Intro :
The Vienna Convention on the Law of Treaties of 1969 (VCLT) regulates
international treaties. It defines a treaty and relates to how treaties are made,
amended, interpreted, how they operate and are terminated. However, VCLT does
not create specific substantive rights or obligations for parties.
VCLT is a treaty on treaties and governs treaties irrespective of its subject matter
or objectives.
What is a treaty ?
Article 2(1) (a) of the VCLT defines a treaty as :
treaty means 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;
Essential ingredients of a treaty :
(1) International agreement concluded between States governed by international
law :
The Vienna convention applies to only such treaties which are concluded between
States who are parties to the VCLT, and to such treaties that entered into force
after the VCLT (ie 1980). This does not prevent a provision of the VCLT that
reflects customary international law from applying to a treaty even if it does not
meet the above requirements. Moreover, unlike in domestic laws, a treaty remains
a legally binding agreement even without consideration eg 1984 Agreement of UK
and China on Hong Kong
(2) Written agreements either embodied in a single instrument or in two or more
related instruments : The word written does not mean that oral and tacit
agreements under international law have no legal force or that the substance of the
VCLT articles may not be relevant to them it merely means that they are not
dealt under the VCLT. Relevant customary law provisions of the VCLT continue to
apply to all treaties, regardless of whether it is codified or not.
(3) Whatever its particular designation : Title of the written agreement is not
important for treaty to come in to effect. It could a formal document like a treaty,
convention, protocol, charter, covenant, pact, act, statute, or even an informal
document like agreed minutes, exchange of notes or letters, memorandum of
understanding.
Discussion :
Article 26 of the VCLT formally states the principle of pacta sunt servanda. It
provides that every treaty in force is binding upon the parties to it and must be
performed by them in good faith. States are forbidden from relying on the
provisions of its domestic law as justification for its failure to perform its obligations
under a treaty.
Under the VCLT the validity of a treaty can only be impeached by using the
provisions of the VCLT.
Similarly the termination of a treaty, its denunciation or the withdrawal of a party
will be valid only if it is consistent with the provisions of the treaty itself, or the
provisions of the Convention.
General provision regarding validity of a treaty :
In case of a conflict with domestic law, international law will always prevail.
A convention/ treaty which is concluded for a specified time period terminates
when the period expires, so that anyone nevertheless called upon to apply it
may refuse to do so.
Likewise, it is clear that a treaty which provides contracting states with the
possibility of denunciation or withdrawal, perhaps on a set timetable, is not
rendered in-applicable until a state has exercised its option in accordance with the
treaty provisions
As a rule, treaties do not come to an end automatically but entitle all the states
parties to the treaty to plead on the basis thereof the invalidity or termination of a
treaty. In principle, therefore, it is up to the discretion of the party(ies) concerned
to make the relevant choices.
In this respect, no general role of the judiciary can be grounded in specific national
provisions, application by analogy of the rules on the treaty-making power, or the
courts' power to interpret the applicable law.
A customary rule, however, has emerged on the basis of which courts of the parties
concerned are under an obligation to impeach the validity, or terminate the
operation, of treaties concluded under the threat of use of force or conflicting with
jus cogens.
It is also reasonable to conceive a rule of customary law allowing any third party to
invoke invalidity or termination in accordance with Article 52, 53, or 64 (or the
corresponding customary rules).
Invalid treaties :
The VCLT states the reasons and causes that may justify a treaty being held
invalid. There are several reasons, an otherwise valid and agreed upon, treaty may
be rejected as a binding international agreement, most of which involve problems
created at the formation of the treaty. Following are some of these grounds,
1. Ultra vires treaties
2. Misunderstanding, fraud, corruption,
3. Coercion of a state or its representative
4. Contrary to peremptory norms
1. Ultra vires treaties :
A party's consent to a treaty is invalid if it had been given by an agent or body
without power to do so under that state's domestic law. States are reluctant to
inquire into the internal affairs and processes of other states, and so a "manifest
violation" is required such that it would be "objectively evident to any State
dealing with the matter".
A strong presumption exists internationally that a head of state has acted within
his proper authority. It seems that no treaty has ever actually been invalidated
on this provision.
Consent is also invalid if it is given by a representative who ignored restrictions
he is subject to by his sovereign during the negotiations, if the other parties to
the treaty were notified of those restrictions prior to his signing.
2. Misunderstanding, fraud, corruption :
Under Article 48 error may be invoked 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.
However, this will not apply if the state in error contributed by its own
conduct to the error or should have been aware of the mistake.
Article 49 provides for invalidating an expressed consent to be bound to a
treaty if a state has been induced to conclude it by the fraudulent conduct of
another negotiating party, and Article 50 provides similarly where a states
consent has been procured by the corruption of its representative.
3. Coercion of a state or its representative :
Much more significant are the provisions of Articles 51 and 52 concerning the
coercion of a state or its representative.
Article 51 states that where a states consent to be bound by a treaty has been
procured by the coercion of its representative through acts or threats directed
against him, that expression of consent shall be without any legal effect.
Article 52 states that a treaty is void if its conclusion has been procured by the
threat or use of force in violation of the principles of international law embodied
in the Charter of the United Nations.
Prior to the Covenant of the League of Nations it had not been thought that the
validity of a treaty could be affected because it had been concluded where one
party was under threat from another. Many treaties had been concluded by
powerful states insisting upon acquiescence from weaker ones and this had
simply been accepted as a description of how international relations were
conducted.
Article 2(4) of the Charter of the United Nations proscribing the threat or use of
force had however recognized a major change in such relations and the
emphasis upon sovereign equality in the Charter was also important.
Furthermore, the VCLT was negotiated during a period of decolonization and the
newly independent states wanted their independence to be real.
Within the International Law Commission there were arguments as to what sort
of coercion should be proscribed. Pressure to define coercion beyond threat or
use of force in violation of the principles of the Charter was resisted.
The crucial principle determining the binding nature of a treaty should be that it
was concluded on the basis of the equality of the parties; and that unequal
treaties were not legally binding.
At the Vienna Treaty Conference a compromise was reached with the provisions
being reinforced by a Declaration on the Prohibition of Military, Political or
Economic Coercion in the Conclusion of Treaties, adopted by the Conference and
stating that the Conference :
Solemnly condemns the threat or use of pressure in any form, whether
military, political or economic, by any state in order to coerce another State to
perform any act relating to the conclusions of a treaty in violation of the
principles of the sovereign equality of States and freedom of consent.
That notwithstanding, the exact scope of the provisions remains uncertain. Many
states have been forced to conclude treaties with other states or to assume
obligations required by such international bodies as the International Monetary
Fund or the World Bank because their parlous financial position left them with
little alternative. There is no indication that the ICJ will accept such economic
reality as coercion.
4. Treaties conflicting with a peremptory (final/ settled) norms of international law
(jus cogens) :
Article 53 is another provision of the Convention over which debate has been
long. It provides that a treaty will be void if it conflicts with a peremptory norm
of international law, which is defined within the Article as a norm accepted and
recognised by the international community of States as a whole as a norm from

which no derogation is permitted....
This was a provision that attracted strong support from Eastern European
countries and from developing countries but was resisted by others. It was
included because of the widespread acceptance of the reality of jus cogens which
at the least included the prohibition on the unlawful threat or use of force,
genocide, slavery or piracy.
The Commission considered listing examples of peremptory norms but concluded
that to do so might appear to prioritise or privilege those listed.
The effect of the provision is to recognise that under the rules and principles of
international law there are some (generally humanitarian) principles that are so
basic to international relations that their exclusion could not be permitted. Thus
a treaty intended to further aggression against another state or to forcibly
acquire territory from another is to be void regardless of the level of support and
acceptance it receives internationally.
Go To Contents
Write short note : Security Council. (Oct-2013)

Explain in detail : Security Council of the UNO. (Dec-2016)
ANSWER :
Intro :
The Security Council, as its name suggests, is vested with the duty of maintaining
peace and security among states in the international sphere. The Security Council
is a considerably powerful unit under the United Nations, especially since it has the
power to make binding decisions and resolutions that member states are obligated
to follow, as per Article 25 of the UN Charter.
In comparison, other units of the United Nations are free to make
recommendations that do not have any binding value on the member states.
The Charter mentions that Security Council's powers include, among other things,
the establishment of peacekeeping operations,
the establishment of international sanctions and
the authorization of military action.
The primary reason behind the Security Councils existence is the urge to dispel the
weaknesses that plagued the League of Nations in rendering it incapable of
maintaining peace and security. The prime aim of maintaining this wing of the
United Nations is to establish a setting that allows quick responses to international
concerns.
In keeping with this goal, the members are required to be present at all times at
the UN Headquarters in New York, so that the Security Council can meet any time,
in the face of any pressing concerns in international politics.
Article 27 of the UN Charter indicates that the Security Council makes decisions on
all substantive matters that require the affirmative votes of nine members.
Composition : The Security Council comprises 15 members, of which 5 states are
permanent members, being China, France, Russia, the UK and the USA, and 10 non-
permanent members who hold fort for two years at a stretch.
Although the Security Council at any given time can have only fifteen members,
non-members are free to participate in discussions, where the Council itself agrees
to entertain such states considering their interests which may be at stake.
President : A President heads the Security Council, and his duties include setting
the agenda, presiding over meetings and generally overseeing crises. Presidency
rotates on a monthly basis, in alphabetical order of the names of the member
nations of the Security Council. The President is permitted to issue Presidential
Statements and Notes, both of which are deployed as means to make declarations
of intentions, which can then be pursued by the Security Council.
Permanent members of SC :
The five permanent members enjoy an exalted position, particularly flowing from
their status as founding members of the United Nations, pursuant to their role in
creating the organization itself.
Controversy over seat for China : Chinas seat was originally filled by the Republic
of China, and with the stalemate emerging from the end of the Chinese Civil War
that came to be in 1949, two states emerged as claimants to the seat in the United
Nations. A decision was finally made in 1971, where the Peoples Republic of China
gained foothold into the UN in the Republic of Chinas original seat, while the new
Republic of China (Taiwan being the place it is based out of), lost membership in all
UN wings.
Similarly, Russia acquired the seat that was originally the Soviet Unions.
The non-permanent members are chosen by regional groups, and are confirmed by
the UN General Assembly.
The African bloc has three representatives, and
two representatives each represent the Latin Americas and the Caribbean,
Asia, West Europe and Others, and one representative for the Eastern
European bloc.
Consequent to the position occupied by the Five permanent members, they each
enjoy the exclusive right of exercising a veto, which allows each to block the
adoption of a resolution altogether, if the state so finds the resolution

unacceptable.
Veto Provision :
In effect, the veto is a negative vote. Called the Great Power of Unanimity, the veto
is a means for any of these permanent members to prevent a proposal from being
adopted.
A veto is not the same as an abstention, and the exercise of the latter by any of
the five permanent members does not amount to a veto.
While veto power can be exercised for all substantive questions, it does not extend
to procedural matters, and therefore, a veto cannot be exercised to avoid
discussions or debates.
In addition, a veto cannot be deployed by a state to defeat a decision taken against
itself.
Duties / Responsibilities of SC :
As far as the responsibilities of the Security Council are concerned, all of its duties
come under the ambit of an umbrella term that angles towards preserving
international peace.
Chapter Six of the UN Charter deals with Pacific Settlement of Disputes, and
entrusts the responsibility in the Security Council to investigate any dispute, or any
situation which may result in international friction or give rise to a dispute.
Consequently, the Council may recommend appropriate procedures or methods of
adjustment, if it concludes that the situation prevailing may pose a threat to, or
may even endanger international peace and security.
Recommendations under Chapter Six do not bind the UN members. Save for self-
help as a measure, there isnt any means to enforce these resolutions, and
therefore there is no binding effect.
Chapter seven grants the Council a wider cache of powers, allowing the Security
Council to take decisions on measures it needs to indulge in, in pertinence to
situations involving threats to peace, breaches of peace and acts of aggression. All
decisions taken under this chapter bind members.
Example : Using Chapter Seven, the Security Council has taken measures to,
undertake armed action in Korea in 1950 with Resolution 82, while the Korean
war took place;
deploy coalition forces in Iraq and Kuwait in 1991,
impose a sanctions regime covering individuals and entities associated with
the Al-Qaeda, Osama Bin Laden and the Taliban, wherever they may be
located through Resolution 1267; and
the most recent endeavour to assist Libya in its peoples uprising against
dictatorship, through Resolution 1973 (2011), among a host of others.

The Security Council is vested with the duty to deal with collective security, which
in turn allows it to investigate situations threatening international peace, to
recommend procedures towards the peaceful resolution of a dispute, to call upon
other member nations to completely or partially interrupt economic relations along
with air, sea, postal and radio communications, or to sever diplomatic relations, to
enforce its decisions militarily or any other means that appears necessary, and to
avoid conflict while retaining the focus on cooperation.
Article 25 of the UN Charter states that the Members of the United Nations agree to
accept and carry out the decisions of the Security Council, in accordance with the
present Charter.
Article 24 grants the Council the authority to act on behalf of the members while
exercising its responsibility for the maintenance of international peace and security.
In addition, the Security Council has the duty to recommend the new Secretary
General to the General Assembly.
SCs power to refer cases to International Criminal Court : Outside of the UN Charter,
the International Criminal Court recognizes the Security Council as the wing with the
authority to refer cases to the Court, where the Court could not otherwise exercise
jurisdiction. This power has been invoked twice, till date, with,
the first referral being made in March 2005, for the situation prevailing in Darfur
since July 2002, as Sudan was not a party to the Rome Statute and therefore the
ICC could not exercise jurisdiction otherwise.
the second is a more recent referral through Resolution 1970 (2011), asking the
ICC to investigate the Libyan government, headed by Colonel Muammar Gaddhafi,
and its violent retaliation to the uprising in the state, amidst the 2011 uprisings in
the Middle East.
Conclusion :
The Security Council has been the cynosure of world attention in particular context
of its reform. In a world with nearly 200 states, most of the members of the
international community find the representation at the United Nations inadequate.
In suggesting reforms, ideas have been thrown up to dismantle the veto power, to
expand permanent membership and to accommodate a fairer representation of the
geographical structure of the world in the permanent membership of the Security
Council.
Go To Contents
Discuss the effects of war and armed conflicts. (Nov-2014, Dec-2015)
ANSWER :
Refer :

Go To Contents
Explain : International terrorism. (Dec-2015)

ANSWER :
Refer :
https://en.wikipedia.org/wiki/Terrorism
Intro :
Terrorism is a phenomenon that has been known to mankind for over two
millennia, but over this long period of time, there hasnt been any all-encompassing
definition of the term.
Origin of the term 'terrorism' : "Terrorism" comes from the French word terrorisme,
and originally referred specifically to state terrorism as practiced by the French
government during the 17931794 Reign of Terror. Although "terrorism" originally
referred to acts committed by a government, currently it usually refers to the
killing of innocent people for political purposes in such a way as to create a
spectacle.
What is terrorism ?
Terrorism is, in its broadest sense, the use of intentionally indiscriminate violence
(terror) in order to achieve a political, religious, or ideological aim.
Terrorism is classified as fourth-generation warfare and it is a violent crime. In
modern times, terrorism is considered a major threat to society and therefore
illegal under anti-terrorism laws in most jurisdictions. It is also considered a war
crime under the laws of war when used to target non-combatants, such as civilians,
neutral military personnel, or enemy prisoners of war.
A broad array of political organizations have practiced terrorism to further their
objectives. It has been practiced by both right-wing and left-wing political
organizations, nationalist groups, religious groups, revolutionaries, and ruling
governments.
According to data from the Global Terrorism Database, more than 61,000 incidents
of non-state terrorism claiming over 140,000 lives have been recorded from 2000
to 2014.
Definition :
The definition of terrorism has proven controversial. Various legal systems and
government agencies use different definitions of terrorism in their national
legislation.
These divergences have made it impossible for the United Nations to conclude a
Comprehensive Convention on International Terrorism that incorporates a single,
all-encompassing, legally binding, criminal law definition of terrorism.
Instead, the international community has adopted a series of sectoral conventions
that define and criminalize various types of terrorist activities.
1994 UN General Assembly declaration defined the term terrorism, as being
criminal acts intended or calculated to provoke a state of terror in the general
public, a group or person or persons or particular persons for political purposes are
in any circumstance unjustifiable, whatever the considerations of a political,
philosophical, ideological, racial, ethnic, religious or any other nature that may be
invoked to justify them
U.S. Code Title 22 Chapter 38, Section 2656f(d) defines terrorism as :
"Premeditated, politically motivated violence perpetrated against noncombatant
targets by subnational groups or clandestine agents, usually intended to influence
an audience."
Modern distinction between a terrorist and a freedom fighter :
There is the famous statement: 'One man's terrorist is another man's freedom
fighter.'
But that is grossly misleading. It assesses the validity of the cause when terrorism
is an act. Unanimity is building around the view that, one can have a perfectly
beautiful cause and yet if one commits terrorist acts, it is terrorism regardless.
Some groups, when involved in a "liberation" struggle, have been called "terrorists"
by the Western governments or media. Later, these same persons, as leaders of
the liberated nations, are called "statesmen" by similar organizations.
Two examples of this phenomenon are the Nobel Peace Prize laureates
Menachem Begin and Nelson Mandela.
WikiLeaks editor Julian Assange has been called a "terrorist" by Sarah Palin
and Joe Biden.[67][68]
Those media outlets who wish to convey impartiality may limit their usage of
"terrorist" and "terrorism" because these terms are loosely defined, potentially
controversial in nature, and subjective terms.
Kinds of responses to terrorism : Responses to terrorism are broad in scope. They can
include re-alignments of the political spectrum and reassessments of fundamental
values. Specific types of responses include :
Targeted laws, criminal procedures, deportations, and enhanced police

powers
Target hardening, such as locking doors or adding traffic barriers
Preemptive or reactive military action
Increased intelligence and surveillance activities
Preemptive humanitarian activities
More permissive interrogation and detention policies
The term "counter-terrorism" has a narrower connotation, implying that it is
directed at terrorist actors
International response :
As far as international law is concerned, there are plenty of political difficulties and
obstacles that have made it difficult to implement a law relating to terrorism.
Consequently, therefore, a dual approach has been followed in dealing with
manifestations of terrorism and its condemnation.
The United Nations has a system of thirteen conventions pertaining to terrorism,
relating to different aspects of terrorism. Most of the conventions relate to a
scheme of extradite or prosecute, as the basis upon which jurisdiction shall be
established to bring terrorists to book.
The General Assembly constituted an ad hoc committee on terrorism in December,
1972, and also adopted the 1994 Declaration on Measures to Eliminate
International Terrorism, which denounced all acts, methods and practices of
terrorism as criminal and unjustifiable, wherever and by whomever it may be
committed.
International Law denounces terrorism as a threat to international peace and
security through,
Resolution 731 (1992) in pertinence to the Lockerbie bombing and the
subsequent question on the extradition of suspected bombers from Libya which
was not complied with, and,
Resolution 1070 (1996) which was adopted in pertinence to Sudan.
Resolution 1368 (2001) adopted after the terror attacks of 9/11 also noted that
the international community was devoted to combat terrorism, and deemed all
acts of terrorism as threats to international peace and security.
The Security Council also established the Counter-Terrorism Committee, to monitor
the implementation of the resolution.
Indian response :
TADA : Terrorist and Disruptive Activities (Prevention) Act, commonly known as
TADA, was the first anti-terrorism law legislated by the government to define and
counter terrorist activities. This anti-terrorism law was in force between 1985 and
1995 (modified in 1987) under the background of Punjab insurgency and was
applied to whole of India.
It came into effect on 23 May 1985. It was renewed in 1989, 1991 and 1993
before being allowed to lapse in 1995 due to increasing unpopularity due to
widespread allegations of abuse.
Controversial provisions : The Act was widely criticised by human rights
organisations as it contained provisions violating human rights. The criticism are
centred on the following facts :-
The Act virtually criminalises free speech. Under this Act whoever advocates
directly or indirectly for cession or secession in any part of India is liable to be
punished under this Act.
The Act provided that a person can be detained up to 1 year without formal
charges or trial against him.
Section 20 of the Act provides that detainee can be in police custody up to 60
days which increases risk of torture. Also the detainee need not be produced
before a judicial magistrate, but instead may be produced before an executive
magistrate who is an official of police and administrative service and is not
answerable to high court.
The trial can be held secretly at any place and also keeps the identity of the
witnesses secret violating international standards of fair trial.
The Act reverses the presumption of innocence of the accused under the Act.
Under section 21 of the Act, the person who is accused of committing a
terrorist act where arms and explosives were recovered or made confessions
to someone other than a police officer or provided financial assistance for the
commission of the terrorist act or by suspicion that the person has arms or
explosives or financial assistance to commit the terrorist act, then the person
shall be presumed to be guilty unless contrary is proved.
A person making confessions to a police officer not below the rank of
superintendent of the police can be used as evidence against him.
Section 19 of the Act bars persons accused under this Act to appeal except
the Supreme court.
The Prevention of Terrorism Act, 2002 (POTA) was an Act passed by the Parliament
of India in 2002, with the objective of strengthening anti-terrorism operations. The
Act was enacted due to several terrorist attacks that were being carried out in India
and especially in response to the attack on the Parliament. The Act replaced the
Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive
Activities (Prevention) Act (TADA) (198595), and was supported by the governing
National Democratic Alliance. The Act was repealed in 2004 by the United
Progressive Alliance coalition.
Go To Contents
Write short notes : Hijacking. (Nov-2014, Dec-2015)

ANSWER :
Refer :
https://en.wikipedia.org/wiki/Aircraft_hijacking
What is Aircraft hijacking or skyjacking ?
Aircraft hijacking (also known as air piracy or aircraft piracy, especially within
the special aircraft jurisdiction of the United States, and informally as
skyjacking) is the unlawful seizure of an aircraft by an individual or a group. In
most cases, the pilot is forced to fly according to the orders of the hijackers.
Occasionally, however, the hijackers have flown the aircraft themselves, such as
the September 11 attacks. In at least three cases, the plane was hijacked[1] by
the official pilot or co-pilot.
Unlike the typical hijackings of land vehicles or ships, skyjacking is not usually
committed for robbery or theft. Most aircraft hijackers intend to use the
passengers as hostages, either for monetary ransom or for some political or
administrative concession by authorities. Various motives have driven such
occurrences, including demanding the release of certain inmates (notably IC-
814), highlighting the grievances of a particular community (notably AF 8969),
or political asylum (notably ET 961). Hijackers also have used aircraft as a
weapon to target particular locations (notably during the September 11, 2001
attacks).
Hijackings for hostages commonly produce an armed standoff during a period of
negotiation between hijackers and authorities, followed by some form of
settlement. Settlements do not always meet the hijackers' original demands. If
the hijackers' demands are deemed too great and the perpetrators show no
inclination to surrender, authorities sometimes employ armed special forces to
attempt a rescue of the hostages (notably Operation Entebbe).
11-Sep-2001 : Worst cases : On September 11, 2001, 19 al-Qaeda Islamic extremists
hijacked,
American Airlines Flight 11,
United Airlines Flight 175,
American Airlines Flight 77, and
United Airlines Flight 93
These were crashed in to (i & ii) the Twin Towers of the World Trade Center, (iii)
the southwestern side of the Pentagon, and (iv) Stonycreek Township,

Pennsylvania (after passengers acted to stop the hijackers; its intended target was
either the White House or the U.S. Capitol).
All in all, 2,996 people perished and more than 6,000 others were injured in the
attacks. This casualty toll makes this incidents of hijackings as the most fatal in
aviation history.
Dealing with hijacking :
Prevention : Cockpit doors on most commercial aircraft have been strengthened
and are now bullet resistant. In the United Kingdom, United States, Canada,
Australia, Austria, the Netherlands and France, air marshals have also been added
to some flights to deter and thwart hijackers. Airport security plays a major role in
preventing hijackers. Screening passengers with metal detectors and luggage with
x-ray machines helps prevent weapons from being taken on an aircraft. Along with
the FAA, the FBI also monitors terror suspects. Any person who is seen as a threat
to civil aviation is banned from flying.
Most hijackings will involve the plane landing at a certain destination, followed by
the hijackers making negotiable demands. Pilots and flight attendants are still
trained to adopt the "Common Strategy" tactic, which was approved by the United
States FAA. It teaches crew members to comply with the hijackers' demands, get
the plane to land safely and then let the security forces handle the situation. Crew
members should advise passengers to sit quietly in order to increase their chances
of survival. They were also trained not to make any heroic moves that could
endanger themselves or other people.
International response to hijacking :
Hijacking and terror attacks are a looming threat to the peace and freedom of
airspace. This has led to the adoption of several conventions penalizing and
outlawing any form of hijacking, and bringing in a scheme of enforcement
measures.
It is possible, however, as put in Shaws words, that the law against hijacking
would begin to be treated as an equivalent to the legal regime governing piracy on
the high sea.
In dealing with hijacking, the Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, 1971 deems the performance of an act of
violence against a person on board an aircraft in flight, where the act is likely to
threaten the safety of the aircraft as being an offence. Similarly, it treats the
destruction of an aircraft in the course of service, or damaging it in order to render
such flight unsafe or impossible, as an unlawful offence. The same is construed of
an act sought to destroy, damage or interfere with the operation of air navigation
facilities, and the communication of false information knowingly, if the same is
likely to endanger the aircraft in flight.
The Montreal Protocol of 1988 augmented the ambit of the convention, and
brought in acts of violence against people at an airport serving international civil
aviation causing thereby, or likely to cause serious injury or death; and also the
destruction or serious damage of the facilities of such airports and aircrafts that are
not in service, and disrupting the airport services.
There has also been a convention denouncing the acts of hijacking, taking hostages
and terrorist bombings, with the advent of
the Convention on Offences Committed on Board an Aircraft, 1963,
the Convention for the Suppression of Unlawful Seizure of Aircraft, 1970, and
the Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, 1971.
These developments of laws took place way before 11-Sep-2001 attacks on the
World Trade Centre. These conventions operate on the basic tenets of quasi-
universal jurisdiction, and create a weft of International obligations that
signatory states are bound to obey.
Indian response to hijacking :
India published its new anti-hijacking policy in August 2005. The policy came into
force after the Cabinet Committee on Security (CCS) approved it. The main points
of the policy are :
Any attempt to hijack will be considered an act of aggression against the country
and will prompt a response fit for an aggressor.
Hijackers, if captured, will be sentenced to death.
Hijackers will be engaged in negotiations only to bring the incident to an end, to
comfort passengers and to prevent loss of lives.
The plane will be shot down if it is deemed to become a missile heading for
strategic targets.
The plane will be escorted by armed fighter aircraft and will be forced to land.
A grounded plane will not be allowed to take off under any circumstance.
The list of strategic targets is prepared by the Bureau of Civil Aviation in India. The
decision to shoot down a plane is taken by CCS. However, due to the shortage of
time, whoever the prime minister, the defense minister or the home minister
can be reached first will take the call. In situations in which an aircraft becomes a
threat while taking off which gives very little reaction time a decision on
shooting it down may be taken by an Indian Air Force officer not below the rank of
Assistant Chief of Air Staff (Operations)
Go To Contents
Explain : Piracy. (Dec-2015)

ANSWER :
Refer :
http://www.un.org/depts/los/piracy/piracy.htm
https://en.wikipedia.org/wiki/Piracy
Intro :
Piracy is an act of robbery or criminal violence by ship- or boat-borne attackers
upon another ship or a coastal area, typically with the goal of stealing cargo and
other valuable items or properties. Those who engage in acts of piracy are called
pirates. The earliest documented instances of piracy were in the 14th century BC,
when the Sea Peoples, a group of ocean raiders, attacked the ships of the Aegean
and Mediterranean civilizations.
The term 'piracy' does not normally include crimes committed against people
traveling on the same vessel as the perpetrator (e.g. one passenger stealing from
others on the same vessel).
Historic examples include the waters of Gibraltar, the Strait of Malacca,
Madagascar, the Gulf of Aden, and the English Channel, whose geographic
strictures facilitated pirate attacks
Acts of piracy threaten maritime security by endangering, in particular, the welfare of
seafarers and the security of navigation and commerce.
These criminal acts may result in the loss of life, physical harm or hostage-taking of
seafarers, significant disruptions to commerce and navigation, financial losses to
shipowners, increased insurance premiums and security costs, increased costs to
consumers and producers, and damage to the marine environment.
Pirate attacks can have widespread ramifications, including preventing humanitarian
assistance and increasing the costs of future shipments to the affected areas.
Modern Pirates :
Modern pirates armed with automatic weapons and rocket propelled grenades use
small motorboats to attack and board ships, a tactic that takes advantage of the
small number of crew members on modern cargo vessels and transport ships. They
also use larger vessels, known as "mother ships", to supply the smaller
motorboats.
The international community is facing many challenges in bringing modern
pirates to justice, as these attacks often occur in international waters.
Today, many of nations use their naval forces to protect private ships from
pirate attacks and pursue pirates. Also some private vessels are taking steps to
defend their vessels and their crews from piracy, by using armed security
guards, high-pressure hoses or sound cannons to repel boarders, or using radar

to avoid potential threats.
Modern pirates often target the personal belongings of the crew and the contents of
the ship's safe, which potentially contains large amounts of cash needed for payroll
and port fees.
Some times, the pirates force the crew off the ship and then sail it to a port to be
repainted and given a new identity through false papers purchased from corrupt or
complicit officials.
The attack against the German-built cruise ship the Seabourn Spirit offshore of
Somalia in November 2005 is an example of the sophisticated pirates mariners
face. The pirates carried out their attack more than 100 miles (160 km) offshore
with speedboats launched from a larger mother ship. The attackers were armed
with automatic firearms and an RPG
International response to piracy :
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the
framework for the repression of piracy under international law, in particular in its
articles 100 to 107 and 110. The Security Council has repeatedly reaffirmed that
international law, as reflected in the United Nations Convention on the Law of the
Sea of 10 December 1982 (The Convention), sets out the legal framework
applicable to combating piracy and armed robbery at sea, as well as other ocean
activities (Security Council resolution 1897 (2009), adopted on 30 November
2009).
Article 100 of UNCLOS provides that all States shall cooperate to the fullest
possible extent in the repression of piracy on the high seas or in any other place
outside the jurisdiction of any State.
The General Assembly has also repeatedly encouraged States to cooperate to
address piracy and armed robbery at sea in its resolutions on oceans and the law
of the sea.
For example, in its resolution 64/71 of 4 December 2009, the General Assembly
recognized the crucial role of international cooperation at the global, regional,
subregional and bilateral levels in combating, in accordance with international
law, threats to maritime security, including piracy.
The Division for Ocean Affairs and the Law of the Sea, as the secretariat of
UNCLOS, has a mandate to provide information and advice on the uniform and
consistent application of the provisions of UNCLOS, including those relevant to the
repression of piracy. It also has a mandate to provide information on relevant
developments in oceans and the law of the sea to the General Assembly, as well as
to the Meeting of States Parties to UNCLOS, in the annual reports of the Secretary-
General on oceans and the law of the sea. These reports provide updated
information on developments in respect of piracy and other crimes at sea.
In the late 2000s, the emergence of piracy off the coast of Somalia spurred a
multi-national effort led by the United States to patrol the waters near the Horn of
Africa.
In an emergency warships can be called upon. In some areas such as near
Somalia, patrolling naval vessels from different nations are available to intercept
vessels attacking merchant vessels. For patrolling dangerous coastal waters, or
keeping cost down, robotic or remote-controlled USVs are also sometimes used.
Go To Contents
Discuss : Disarmament : Threat to Human Rights.

ANSWER :
Refer :

Go To Contents
*** End-of-Compilation ***

Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
All credits/ copyrights duly acknowledged.
Suggested Reading :
S. K. Verma, Public International Law Prentice- Hall, New Delhi.
Peter J. Van Kricken (ed). The Exclusion on Clause, Kluwer
Human Rights Watch Womens Rights Project. The Human Rights Watch Global Report
on Womens Human Rights, Oxford
Limacora, Nowak and Tretter, International Human Rights, Sweet & Maxwell
Wallace, Internationla Human Rights, Text & Materials, Sweet & Maxwell
Muntarbhom. The Statu of Refugees in Asia, Oxford
Human Rights and Global Diversity, Frank Cass, London
Nirmal C.J. (ed) Human Rights in India, Oxford
Nirmal B.C. The Rights to Self determination in International Law, Deep & Deep
P.R. Gandhin, International Human Right Documents, Universal, Delhi.
Agrawal : Public International Law
Dr. S. K. Kapoor : International Law : Central Law Agency

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LL.B. Semester III

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OBJECTIVES OF THE COURSE :

Module - 1) Definition and Concept of International Law

Define International Law. Is International Law a true law ? (Oct-2013)

Explain in detail the characteristic of public international law. (Nov-2014)

binding international laws. There is no international law-making body and no

the whole international society has in the observance of its laws.

victim of a breakdown in the consensus among member states concerning the

(central and state) and common law principles developed by courts.

The modern conflict of laws is generally considered to have begun in Northern

designed to promote human rights on social, regional, and domestic levels.

groups within their jurisdictions.

Short note : Universal Declaration of Human Rights (UDHR)

Article 29 Everyone has duties to the community.

earlier systems were generally confined to their own civilizations in diffenrent

Even before India became formally independent in March 1947, Jawaharlal

(ii) dualist : In other nations, international law does not automatically

relating to implementation of international law in pronouncing its decision in

Module - 2) Theoretical Foundations of International Law :

Write short note : Objectives of united nations. (Dec-2015)

even Sierra Leone) relating to the exception because Intervention by invitation

of military action. The US recently accused Iran and Syria of interfering or

Discuss : non use of force.

Discuss : international co-operation.

B. Good Offices and Mediation

that the states must arrive at a settlement.

state practice, fact-finding has produced few successful results. Fact-finding in

consideration, the conciliatory commission prepares a proces-verbal, which

possibility of resorting to coercive means is opened.

Discuss an individual as a subject of international law. (Nov-2012, Oct-2013)

Friedmann as being a movement from coordination to cooperation.

Human Rights Laws and Individual as a 'subject' :

military tribunals, and also established individual responsibility of the Kaiser.

Explain : Powers and functions of international organizations. (Nov-2011)

term 'international organization', these are organizations that are made up

contribution to mutual trust, understanding and appreciation of one another's

Write short note : Objectives of united nations. (Dec-2015)

governmental entities that assisted in the process of drafting the UN Charter.

remaining countries follow alphabetically behind it

international criminal law.

the United Nations Conciliation Commission for Palestine,

Explain : (i) Amnesty International, (ii) UNESCO, (iii) UNICEF.

governmental bodies and private individuals ("non-state actors").

to the size of their membership.

leading to donations from individuals, we are able to stand firm and

Explain : International labor organization (ILO). (Nov-2012)

Write short notes : International criminal court. (Nov-2014)

Write short note : International court of justice. (Dec-2015)

access of jurisdiction is purely voluntary.

Laws applicable to ICJ :

international law. (Nov-2014)

conventions. At international conventions number of states establish common rules

State the subjects of international law. (Nov-2011)

Following are subjects of International Law :

Discuss : Jurisdiction of States.

Explain the doctrine of fundamental rights and duties of states. (Dec-2015)

Explain in detail : Security Council of the UNO. (Dec-2016)

state declares that a foreign community or authority is in possession of necessary

of the independent state of Palestine in 1988 by its Parliament-in-exile, or the

as the result of mutual recognition of legal personality.

British government demanded compensation from Israel though it had not

* End-of-Compilation *