Last Updated: Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:05:48 PM
Not mentioned in syllabus.
1. Principles of Public International Law by Ian Brownlie.
2. Introduction to International Law by J. G. Starke.
3. International Law, A Treatise (a thesis, essay, or lengthy paper) by L. Oppenheim.
4. A Modern Introduction of International Law by Michael Akehurst.
Law is a body of principles (legislature) recognized (courts) and applied (executive) by the state in the administration of justice.
International law has not been defined comprehensively. Many of writers do not consider it as law. Greek scholar Aristotle says, “man is a social animal”. He said rightly because human being needs co-operation, which is most essential and imperative part of life. He needs assistance of others. Man cannot survive alone in society. In pre-historic era, people were living jointly. With the passage of time, society changed different shapes and developed different groups. They thought the importance of co-ordination. They adopted the principle of “give & take”. Survival (existence) became impossible without it. They thought the need of international relations. As the man cannot survive alone, state also cannot survive alone. Now, world has became global village. It became possible with the international relations.
International Law or the law of nations is the system of law, which governs relations between states. At one time states were the only bodies which had rights and duties under International Law, but now-a-days international organizations, companies, and individuals also sometimes have rights and duties under International Law, however, it is still true to say that International Law is primarily concerned with sates.
Importance: In the present developed era, its importance cannot be denied. International law plays an important role in social welfare of society. If the international law is not followed then jungle law will come into operation and life will become miserable (unhappy or uneasy). As municipal law plays an important role in the development of social well being, however International Law plays an important role in the establishment of peace among states. Regardless the size of states, they are treated with the same and equal status. They have same importance as the big state may have. It is at the option of the states as to how they act upon.
Basis of International Law: These are the principles upon which International Law relies:
1. Doctrine of Fundamental Rights: Theory of Fundamental Rights is based upon the thoughts of pre-historic era. However state being a separate entity has some Fundamental Rights which include integrity, equality, liberty, respect, and mutual co-operation. Theory of Fundamental Rights has played an important role in the development of International Law. Relationship of states is based upon the alliance and mutual co-operation. If states do not observe the Fundamental Rights then peace of world cannot come into force.
2. Consent theory: Oppenheim propounded (introduced, proposed, presented) this consent theory. According to him International Law is collection of rules which states feel to observe them and recognize them with mutual consent. If they don not agree upon certain law, then no law can be developed. It exists either in customary law or conventional law, in both cases it is consent. Customary laws are developed with mutual consents of states. They are bound to observe them in different ways and act upon. With the passage of time its roots got strengthen and applied on different states. It was recognized compulsorily. Now the consent of state became unimportant whether it will be applied on it.
The customary rules of International Law have grown up by common consent of the states, i.e., the different states have acted in such a manner as to imply their implied consent to these rules. The intercourse of states with each other necessitated some rules of international conduct.
Now states, which come into existence and are admitted into the Family of Nations through express or implied recognition thereby, consented to the body of rules for international conduct in force at the time of their admittance. It is therefore not necessary to prove for every single rule of International Law that every single member of the international community has consented on it.
Some other sages favour the consent theory. Consents are either directly or indirectly. If any rule is recognized which has binding force or show the consents of parties in treaties or in different matters, then it shall be regarded as consent. Customs and usages are treated artificial consent. Some writers have propounded theory against it that solely this theory does not contribute in International Law. It cannot be understood in circumstances that as to why the rule is followed. States do not respect law before its recognition.
Also the principles which are set by the society are called law. International Law is a body of principles prevailing between states. States solely and collectively are subject of International Law. It deals states and its own.
International Law may be defined as that body of law, which is composed for its greater part of the principles and rules of conduct, which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also:
a) rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with states and individuals; and
b) certain rules of law relating to individuals and non-state entities so far as the rights or duties of such individuals and non-state entities are the concern of the international community.
Professor Charles Cheney Hyde defines International Law as that law concerned with the conduct of states and of international organizations, and with their relations inter se, as well as some of their relations with persons, whether natural or personal.
It is also defined as law of Nations or International Law is the name for the body of customs and treaties, which are considered legally binding by States in their intercourse with each other. Such part of these rules as is binding upon all States without exception, as, for instance, the law connected with the right of legation and treaties, is called universal International Law, in contradistinction to particular International Law which is binding on two or a few States only.
According to Brownlie there are two types of sources of law, i.e., formal sources and the material sources of law. Legal procedures and methods for the creation of rules of general application, which are legally binding on the addressees, are the formal sources of law. Formal sources refer our mind toward state law making machinery such as parliament rules of which are binding to its people. Decisions of the International Courts, unanimous resolutions of General Assembly are lacking the quality to bind states generally in the same way that Acts of Parliament bind its people.
The material sources provide evidence of the existence of rules which, when proved, have the statuses of legally binding rules of general application.
Material sources of International Law: Following are the material sources
3. Decision of judicial or arbitrate tribunals,
4. Juristic work.
5. Decision or determinations of the organs of international institutions.
Material sources of International Law may be defined the actual materials from which an international lawyer determines the rule applicable to a given situation. Final question is that whether what is the order of sources of international law, which is recommended under Article 38, paragraph 1 of the statute of the International Court of Justice. It is as follows:
1. International treaties and conventions.
2. International customs as evidence of a general practice accepted as law.
3. The general principles of law recognized by civilized nations.
4. Judicial decisions, juristic opinion, and teachings of the most lushly qualified publicists of the various countries as subsidiary means for the determination of rules of law.
Following is the some detail of material sources of International Law:
1. Custom: Most part of International Law consists of customary rules. Article 38 refers to “international custom, as evidence of general practice accepted as law” and Brierly remarks that “what is sought for is a general recognition among states of a certain practice as obligatory.” The international community evolves it after long historical process achieved recognition. A custom in the intendment of law is such a usage, as hath obtained the force of law. Customary rules are extracted from usages or practices which have evolved in three sets of circumstances:
(a) Diplomatic regulations between states: There are the acts or declarations by statesmen, opinions of legal advisors to state government, bilateral treaties, and now press releases or official statements by government spokesmen may all constitute evidence of usage followed by states.
(b) Practice of international organs: Conduct or declaration of international organs such as ILO who has power to regulate internationally the conditions of labour of persons employed in an international disputes and UNO are the good example of practice of international organs.
laws, decisions of state courts, and state military or administrative practices:
A British vessel Scotia was collided in mid-ocean with the American vessel
2. Treaties: This is another important source of International Law. Its importance is constantly increasing. There are two types’ treaties:
(a) ‘law making’ treaties, which lay down rules of universal or general application. These are also may be categorized in two types, i.e.,
a) enunciating rules of universal International Law, e.g., the United Nations Charter.
b) laying down general or fairly general rule.
(b) ‘treaty contracts’ for example a treaty between two or few states dealing with special matter concerning with these states exclusively.
Common examples of law making treaties include General Agreement of Trade & Tariff (GATT), un-ratified conventions states have subscribed, limited participation of restricted countries, regional or community rules, Final Acts, International Regulations etc.
Treaty contracts are CETO, CENTO, WARSA PACT, SAARC etc.
3. Decisions of Judicial or Arbitral Tribunals: Decisions of courts and tribunals are a subsidiary and indirect source of International Law. Article 38 of the Statute of International Court of Justice provides that, subject to certain limitations, the Court shall apply judicial decisions as a subsidiary means for the determination of rules of law. They are not strictly speaking a formal source, but in the some instances at least they are regarded as authoritative evidence of the state of the law and the practical significance of the label “subsidiary means” in Article 38(1)(d) is not to be exaggerated (overstated or distorted). Under Article 59 of its Statute the courts decisions were to have “no binding force except between the parties and in respect of that particular case.”
4. Juristic work: The Statute of the International Court of Justice includes among “the teachings of the most highly qualified publicists of the various nations.” These opinions are used widely.
It is indicative of the present potentialities of that particular source that the Court has so far found no occasion to rely on it.
No doubt that juristic work played very important role in the development of International Law, but juristic works are not an independent “source” of law, although some times juristic opinion does lead to the formation of International Law. According to experts, juristic opinion is only important as a mean of throwing light on the rules of International Law and rendering their formation easier.
5. Decisions or determinations of the organs of international institutions: Decisions and determinations of the organs of international institutions or international conferences, may lead to the formation of rules of International Law in a number of different way.
They may represent intermediate or final steps in the evolution of customary rules. Declaration of Charter of General Assembly and Elimination of All Forms of Racial Discriminations are the examples of decisions of international organs.
Resolution of the organs may formulate principles or regulations for the internal working of the institutions may have full legal effect and binding on members.
Some organs are empowered to give general decisions or directives of quasi-legislative effect, binding on all whom they are addressed.
If the embassy is on fire, can a host State allow to her army to enter in an embassy? However half of the population may affect from the incidence, army cannot cross the doors of an embassy, without permission. International Law says let the population burns out but army is not allowed to enter in.
What are the material sources of law which different writers’ elaborated and International Court of Justice have described in its statutes. It is just difference of preferences, however they are more or less similar. Custom is very important source of law but it is less emphasized by International Court of Justice that’s why emphasize shifted from custom to treaty.
In 1863, British Government had
enacted a law regarding the navigation that every ship navigating in high seas
would be duty bound to carry on lights while invisibility by such as fog,
darkness, or other reasons. This domestic legislation was enacted for safety of
navigation. Later on right after one year, in 1864,
It was thought at that time that
how this case to be decided. Whether old customary law of
Is International Law a true law: There is one theory that International Law does not qualify as true law but it is just a moral force.
Positive morality: Austin and his
subscribers say that it is not true law but positive international morality or
rules of conduct of moral force only, for there is not supreme lawgiver and no
coercive enforcement in it. In that time
a penal statute: As Hert points out that the
2. System of law, without a formal legislature: Modern historical jurisprudence has discounted the force of his general theory of law. It has been shown that in many communities, system of law as in force and being observed, without a formal legislative authority. Such law did not differ in its binding force from the law of any state with a true legislative authority.
3. Questions of International Law: Questions of International Law are always treated as legal questions by those who conduct international business and are regularly stated in legal terms and interpreted by legal methods.
Almost from the early stages of the development of the science of the Law of Nations the question whether International Law is law in true sense has been a subject of much speculation. Has it binding force opinion sharply been divided on this vexed (disturbed) question?
A constantly evolving body of norms: International Law is a constantly evolving body of norms that are commonly observed by the members of international community in their relations with each other for providing an orderly management of international relations.
Whether International Law qualifies as law or not – choice of the definition of law: Whether or not one wishes to attribute a legal character to the norms of International Law depends largely upon the definition of law he chooses to accept.
This question has been matter of discussion since long whether it is law? Some writers object the use of word “law”. They say that states are free from external pressure. If they consent to follow the principles of International Law, it does not mean they are debarred from their sovereign powers. It does not affect their sovereign powers. In the opinion of some writers law is the name of rule which every superior issues for inferior.
This rule binds the people to prepare its structure. Its compliance would be compulsory and its violation will result in punishment. There is no such compulsion in International Law. In International Law there is not sovereign power that issues orders. If there is any sovereign power in International Law, the sovereign power of the states will be lost.
There is no binding force behind it. It is not doubtful, that states observe the rules and regulations in the compliance of international contracts with the feeling of betterment and ethics. These rules and regulations are decided in their limits and are liable to revoke. There is no law force, which can stop them in doing such act.
International Court of Justice is a forum where states bring their disputes for settlement but states are no more bound to accept them and may refuse. It all depends upon them.
There is no forum for its explanation or interpretation.
There is no concept of legislature in International Law for the enactment and enforcement.
In the opinion
of different writers International Law is not real law. According to
Merits of International Law: Presently an International Law is very important for every state. In past there were some problems between states but at present it is very important and all states feel that it should remain there.
of states’ interests: It is doubtless that International Law has protected
the interests of the states. It helps those states, which have no such power to
protect their interests. It also protects states from suffering of loss. It
provides them rules and regulations for which states are bound to follow. It
relates with the boundaries, society, morality, ethics, and religious matters.
2. Welfare of human being: In fact International Law plays an important role in the welfare of human being. Submission of these rules brings prosperity for humankind. It has different institution, which perform its functions.
3. Equality: International Law gives importance to equality. It gives the same status of equality to small state as the big state. In international relations all are equal. One state has no superiority over other one. In international matters, every state plays its role.
4. Individuality: International Law also gives individual importance to each state. All the other states also recognize it. International Law has covered almost all the world and formed a society and promoted brotherhood. Individuality has importance in it.
5. Unity and strength: This law has created the environment of the unity and strength among the different states. It has taken all the states in a line. No one state can separate her from others. Every state has become the need of other one and plays an important role in unity and strength.
6. Development of social values: This law has also played an important role in the development of social values. International Law has tried best to promote the social values.
Demerits of International Law: It has also some demerits as well as merits, which make it weaker. These demerits are as follows:
1. Limited scope: In the present circumstances it seems ambiguous and of limited scope. There is no solid organ of International Law, which can resolve the matters of states equitably. It could not devolve person into state.
2. Ambiguous law: Some of its rules and regulations are not only uncertain but also ambiguous. Pace of its development and promotion is deadly slow. It cannot combat with changing environment of the society.
3. No apparent authority: There is not executive class who can enforce the laws. It lacks the force of law, which enforces the law, and gets exercised. Only International Court of Justice exists. There is not existence of special courts that can decide the particular disputes. International Court of Justice cannot settle certain matters. States do not allow International Court of Justice in the settlement of disputes. After the decision is given, there is no such power that may get it enforced.
4. No administration power: There is no administrative power behind it that can get its decisions enforced.
5. Little enactment: It has little room of enactment. Mostly matters such as excise, intercourse between two or more states, taxes, and market etc. are excluded from its scope.
6. Non interference: International Law does not intervene in the matters, which takes place in any member state.
about facts: There may be a genuine uncertainty about the facts. For instance,
before one who decide whether
8. Uncertainty about law: There may be a genuine uncertainty about the law. For instance, some states think it is lawful to nationalize foreign property without compensation, others disagree. When dispute arises between a state in the first group and a state in the second group, each will be convinced that it is in the right, and it is impossible to predict how an international Court would decide the case.
9. Internal disintegration: Sometimes international dispute may cause internal disintegration such as demand for the increase of wages in employment. However wages are fixed by the contract of employment and contracts can be altered by mutual agreement.
10. Unfriendly legal act: International Law does not prevent a state increasing its tariffs on goods coming from another state, even though the result may be to cause severe unemployment in the other state.
Dualism can easily be observed in the solution of the international disputes.
Dispute of North Tamour has been solved whereas dispute of
It is weaker law in the eyes of J. G. Starke. Another writer says that it is not only a weaker law but it contains mostly on customary law.
Despite the existence of International Court of Justice many hurdles came in its development. This law does not resolve the disputes.
How it can grow: Following are the some suggestions, which can determine its pace:
1. Rules and regulations of this law should be revised and taken into writing.
2. It should be given the form and shape as the ordinary law of the state.
3. It should be formed globally.
4. It should be developed through courts.
Many activities are being taken place in this regard. Conferences and other important treaties are playing an important role in its growth. Changing political environment and expertise are trying in changing the International Law. Also courts are playing important role for its development.
Present day International Law:
Procedure for formulating rules: The procedure for formulating the rules of international legislation is practically as settled if not as sufficient as any state legislative procedure.
Conclusion: International Law is law but a weak one, the cumulative evidence against the position taken by Austin and his followers should not bind us to the fact that International Law is a weak law.
Its enforcement devices: It is obvious that there are gaps and ambiguities in the law, that its enforcement devices are often inadequate and it has not succeeded in eliminating the use of force in international relations.
There is no world legislature, no international police, and no international Court with compulsory jurisdiction.
Historic background of International Law: It has not certain period of its beginning. It is explored that it came into existence right from the commencement of human life on earth. States had established mutual relationship and played an important role in social life. International Law has been developing time to time and its form has been changing with the passage of time.
In thirteenth century B. C. a contract took place between Egyptian King Pharaoh and Syrian King after a war. It was consisted on the conditions of peace and co-operation and land acquisition. It was written on a silver plate. It reveals that no doubt this system was available since long before and states were made treaties as the same now is. In old time there was neither travelling arrangements nor concept of states, but agreements were made. There was also diplomatic representation. Disputes were settled with arbitration. There was tradition of asylum in that age.
Greek period: Greek nation was reluctant to maintain relationship with non-Greeks. They were habitant to make slaves others. They had thought that only Greeks are born to be rulers. In words of Aristotle, “nature has created non-Greeks only for to be slaves.” States either democratic or imperial had mutual relationship and rules and regulations among them. Mostly matters were decided with arbitration. They were not remain civilized but became cruel during war. War was not started without declaration. Religious places were not destroyed. Killed/deceased people were buried. Prisoners of War were exchanged. They had formed Greek union of nations. In that age treaties were made. Such like states may enjoy peace and prosperity.
Roman period: Till 753 B. C. states
were not too big. International Law was clarified till 3rd century
B. C. after the evaluation of big state founded. Relations were developed with
Jews’ period: Jews were considered superior themselves than others. They had superior standard than others. They had treated other inferiors. That’s why they did not contributed in the development of International Law. They were severe enemy of many nations. During the peacetime they had not good moral character. They had bad treatment for others during warfare. They were killed children and aged people. They had good relationship with alien friends. They had respect for diplomatic representatives. Their national law was applied in the territory of subjugated (beaten) country. Agreements were made at the end of war.
Indian period: Historic period of
Three stages of the development of International Law: Development of International Law is observed into three ages. Its roots are found in the beginning of history of human life. But its clear form is 400 years old. A writer has divided its development in three stages.
First period: First period of
International Law is started right from the beginning of human history and ends
at formation of
Second period: In this age religious movements came into force. They left certain effects. They emphasized on the importance of International Law.
Christian influence: Christian religion
Islamic influence: After the dawn of Islam, complete change took place. Infidels started harassment to Hazrat Muhammad (Á¼mË îÎ¼§ "A Ó¼u). In these circumstances they migrated from Makka to Madina. They founded state, which became first Islamic State over the global map (Atlas). They fought many wars. Muslims were martyred and concurred. Moral values were taken into consideration. Killing of women, children, and aged people, if they remain peaceful, transgression of limits, devastation of crops, destruction of buildings and houses, ruin of gardens, killing of animals, and arson of public places became prohibited. Weaker people were remitted. Muslims were spreaded over from east to west.
Hazrat Muhammad (Á¼mË îÎ¼§ "A Ó¼u) said in his Tradition, “O people you are followers of one Allah and are progeny of Adam. The best among you is who refrains from evils”. All the Muslims are brothers. An Islamic state act upon the light of Quran. They do not discriminate, the matters of the world and hereafter. Islam has made all the principles. Islam is code of life and teaches us in all spheres of life. Islam has also clarified the International Law. Western writers have negated the importance of Islam in the development of International Law. The period of Muslims was so brilliant.
Third period: There was a long war between king and church. German king created a big state. In an agreement Pope took over the matters of religion and secular matter left for king. Despite of this agreement the war period remains continue. In fifteenth century Pope became weaker. In seventeenth century many small states came into existence that made mutual treaties. Despite of war many contracts and peace pacts took place.
International Law: International Law is the law, which governs the relations among states and other international legal persons. The sources of International Law are customs grown up among states and lawmaking treaties concluded by them.
International Law regulates relations between states.
International Law is a law not above but between sovereign states and it therefore a weaker law.
Municipal law: Municipal law is the law of a state, which governs the domestic affairs of the state. The sources of Municipal Law are customs grown up within the boundaries of the state concerned and statutes enacted by the law giving authority.
Municipal Law regulates relations between the individuals under the sway (influence) of a state and the relations between the state and the individual.
Municipal Law is a law of a sovereign over individuals subjected to his sway.
Relationship between International Law and municipal law: There are certain questions which come before international lawyer whether what are nice considerations between international and municipal law. The most important practical problem of more immediate concern to municipal courts are as to what extent may courts give effect International Law in municipal courts both where such rules are, and where they are not in conflict with municipal law. It is a practical problem, which requires consideration of the practice of states.
It is the practice of national courts that the relationship of international law to municipal law is of fundamental importance which means that to what extent they are interrelated with each other, or where they conflicts which will be preferred or the system are to oppose or to coordinate with each other.
Theories in this respect: There are two theories as to relation between International Law and municipal law, i.e., dualism and monism.
Dualism: In nineteenth and twentieth centuries philosophers emphasized on the sovereignty of the state-will and the complete system of legislation in a state. It has developed that trend toward the duelist view. According to dualistic both international and municipal law are distinct systems. There are two basic differences between the two systems:
1. Subject of law: In state law subjects are individuals whereas states are solely and exclusively subjects of International Law.
2. Juridical origin: In state source of law is will of the individuals for which they are concerned while in international source of law is common will of the states concerned.
Distinct legal systems: According to dualism, these two systems are entirely distinct legal system, international law having an internally different character from that of state law.
Chief exponents of the theory: The chief exponents of dualism have been the modern positivist writers Triepal and Anzilotti.
Anzilotti’s view: Anzilotti distinguished international law and state law according to the fundamental principle by which each system is conditioned in his view.
State law is conditioned by the fundamental principle or rule that state legislation has to obey, while International Law is conditioned by the principle “pacta sunt servanda”. It means that agreements between states are to be respected.
International Law binds
individuals and entities other than states. B section is something misleading
to the extent of the superior state in International Law.
State law is based upon the principle and norm, which sates legislation, has to be obeyed. In International Law main principle is agreements between states that are to be respected. Thus the two systems are entirely different. This theory not only has received support from positivists but non-positivists writers and jurists. State law mainly is consisted on judge made law and the statutes passed by legislature whereas International Law is comprised on the customary rules and treaties among the states.
Monism: This is strictly scientific analysis. It is single unity composed of binding legal rules whether those rules are obligatory on states, on individuals, and on entities other than states.
If it is generally accepted that International Law is a true law then there is no doubt to deny that the two systems constitute part of that unity.
Kelson’s view: In the view of Kelson and other monist writers, there cannot be any escape from the position that the two systems, because they are both systems of legal rules, are interrelated parts of one legal structure.
State’s responsibility to enforce International Law: It is the duty of state to enforce the International Law as the state law in its jurisdiction.
Mortenson v peters: In this case High Court of Scotland gave effect to a municipal law against the International Law but the state was under obligation to conform the International Law, therefore, the executive in fact demolished the judgement in order to make Britain’s behavior conform with her international obligation.
Question of priority: Monists are somewhat divided on this point whereas dualists assert that the two systems are not to supersede, but to coordinate with each other, therefore, there arises no conflict between the two.
Practice as to priority – case before International Tribunal: When the case in which conflict arises between International Law and municipal law before an International Tribunal, the practice is to prefer the International Law over the municipal law.
Practice as to priority – case before Municipal Court: Where conflict arises in a case before a municipal Court (except where the state has adopted the International Law to supersede, by constitution or law), the municipal law is preferred.
Question of primacy: Where does primacy reside in International Law or in state law. Rule of ultimate primacy of state law was claimed to break down in two crucial cases:
International Law has drew its validity only from state constitution, it would
necessarily cease its validity when authority rested upon disappears. But valid
operation of International Law does not invalidate its importance and regard.
2. When new states enter in international society then International Law binds them without their consents. Every state is duty bound to bring not only its laws but also its constitution in accordance with International Law.
State practices: There are certain state theories where International Law is applied in municipal courts and upto what extent. Whether its conflict with municipal law loses its validity or not.
Application of International Law by municipal courts: In states, the practice as to apply International Law by municipal courts is different from each other.
Some states have interpreted in
their constitution to apply International Law and therefore, their municipal
courts are bound to apply International Law such as
British practice draw a distinction between:
1. Customary rule of International Law.
2. Rules which are laid down by treaties.
British practice: The rule as to customary International Law to the current of modern judicial authority as that customary rules of International Law are deemed to be a part of the law of the land and applied as such by British municipal courts.
Subject to qualifications: International Law is deemed to be part of the law of land and applied in municipal courts, subject to two important conditions:
1. Whether such rules are not inconsistent with British statutes even statute is earlier or later in date than particular customary rule concerned.
2. Once the British courts of final authority have determined the customary rule, all British courts are thereafter bound to follow them even though a divergent customary rule of International Law later develops.
Chung Chi Chaung v R: In this case Lord Atkin declared that, “the courts acknowledge the existence of a body of rules which nations accept among themselves.”
Practice as to treaties: The British practice as to treaties, as distinct from customary rules of International Law, is conditioned primarily by the constitutional principles governing the relations between the Executive and Parliament.
Treaties requiring approval by Parliament: Treaties which effect the private rights of British subjects, or involve any modification of the common or statute law by virtue of their provisions, must receive assent of parliament through an enabling Act of Parliament.
Treaties inconsistent with statutes: Where a statute contains provisions inconsistent with those of an earlier treaty, a British municipal Court must apply the statute in preference to the treaty.
The law of nations, wherever any question arises which is properly the object of its jurisdiction is here adopted in its full extent by the common law and it is held, to be a part of the law of the land. The courts acknowledge the existence of a body of rules which nations accept among them. On any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.
It is a recognized prerequisite of the adoption in British municipal law of a doctrine of public International Law that it shall have attained the position of general acceptance by civilized nation as a rule of international conduct evidenced by international treaties and conventions, authoritative textbooks, practice, and judicial decisions.
American practice: American practice is similar with as British
practice is, as for as the matters of the customary rules of International Law
is concerned. They are administrated as part of the law of the land. Also an
Practice as to customary International Law – similar to the British practice: In the matter of customary rules of International Law, the American practice is very similar to the British practice.
Part of the law of land: Such rules are administered as a part of the law of the land.
Construction of the Acts: The American courts construe the Act of the US Congress so as to conflict with the customary International Law.
Suggestions of the Executive: The suggestions of the Executive regarding such matter as the public character and immunity from legal jurisdiction of foreign vessel, and the status of diplomatic envoys, has preference over the customary rules of International Law.
Latter clear statute: A latter statute prevails over an earlier customary rule of International Law.
Practice as to treaties – different from British practice: There is
radical difference in matter of treaties as the British practice. American
practice does not follow the reconciliation between the prerogative powers of
the executives and the legislative domain of parliament, but upon the
provisions of the constitution of
Supreme law of the land: The American practice as to treaties depends upon the provisions of the constitution, which declares that “treaties are the supreme law of the land.”
Conclusion: Each and every system is supreme in its own field and neither has dominance over the other. Arguments offered just provide a background to the complex relations between the two systems. Three factors operate on the subject matter:
1. To what extent state organs are willing to apply rules of International Law internally and externally. This raises the responsibility, sanctions, and non-recognition of illegal effects.
2. The second factor is difficulty of proving the existence of particular rules of International Law. In case of difficulty municipal courts may rely on advice from the executive or existing internal precedents, and the result may not accord with an object appreciation of the law.
3. Thirdly, courts, both municipal and international, will often the concerned with the more technical question as to, which is the appropriate system to apply to particular issues arising.
What is an international dispute: According to Professor Lawrence, in order to acquire the status of international dispute the requisites must be fulfilled as:
1. The dispute must be between states.
2. The disputes must relate to reasonable well-defined subject matter.
3. The dispute must lead to some action by the aggrieved state.
Kinds of settlement: There are two types of settlement of international disputes such as amicable or peaceful and forcible and coercive.
Amicable or peaceful sources of settlement: Amicable means of settlement of international disputes are as follows:
1. Negotiation: The term negotiation signifies intercourse between states for the purpose of arriving at a settlement of the dispute.
According to Starke, full fledge sovereign states alone are the regular parties to international negotiation.
Such negotiations are carried on either by the heads of the states or by their accredited (recognized, accepted, admitted) agent. There are many international transactions but negotiation is the most important. Negotiation is conducted:
(1) With a view to reaching on agreement.
(2) Conferring, discussing, or bargaining to reach an agreement.
Case: Permanent International Court of Justice in the case of Railway Traffic v Lithuania and Poland, and in the case of North Sea Continental Shelf, emphasized on the obligation of the parties to negotiate and to purge them as for as possible with a view to concluding agreement. The various attempts made by India and Pakistan to settle some of their outstanding differences by exchange of note, such as, Indo-Pak Agreement on Minorities, 1950 and Indo-Pak Water Treaty, 1960.
2. Enquiry: Enquiry is also a method of amicable
means of international disputes whereby facts are investigated. It may be noted
that it is not an independent method and often used along-with other methods.
In case of navigation disputes, enquiry report is sent to UN. The main object
of enquiry is to make investigation of the relevant matters so as to establish
fact, which may help the ultimate solution of the problem. For example, often
Enquiry Commission is appointed in relation to the settlement of boarder
disputes. The commission clarifies the facts after making enquiry into the
relevant facts, for example,
3. Good offices: When two states are not able to resolve their disputes, a third state may come forward and tender its good offices for the purpose of conciliation. International organization or some individuals may also offer these offices.
The third state creates such an environment as may be conducive for the settlement of disputes. Some general suggestions may also be put forward but the third party does not take active part in the negotiation. Certain examples can be referred in this regard such as:
Role-played by the Russian Prime Minister
United Nations Secretary General offered its
good offices in the disputes between
4. Mediation (reflection, consideration): Mediation is yet another method through which efforts are made to settle international disputes. In the case of mediation third party not only offers its services but also actively participates in the talk to resolve the disputes.
The suggestions of mediators are not binding and parties are free to accept, reject, or modify them according to their own reservations.
Role of American President
Roosevelt, as a mediator in the Russia-Japanese War is good example
of this sort of peaceful settlement. Also
5. Conciliation: The term “conciliation” implies the various methods adopted by a third party to amicably settlement between two or more states. Often matter is referred to a commission or committee, which submits its report and recommends certain measures for the settlement of disputes. These proposals are, however, not binding upon parties. In the words judge Hudson, conciliation is “a process of formal proposals of settlement after an investigation of the facts and an effort to re-conciliate to accept or reject proposals formulated.”
Example: The 1965 Convention of the Settlement of investment disputes between states and the national of other states which provides for conciliation commission for the settlement of dispute.
6. Arbitration: This is very important method of resolving international dispute by peaceful means. By arbitration we mean the method through which a dispute referred to certain persons called arbitrators. Their decision is know as award.
The parties to the dispute select these arbitrators. Although they are selected or appointed on the basis of the consent of the parties to a dispute, their decisions or awards are binding upon the parties.
Article 15 of the Hague Convention of 1899, provides, “international arbitrator has for its object the settlement of differences between states by judges of their own choice and on the basis of a respect for law.”
Following examples can be put to clarify the importance of arbitration:
(3) An important event in the development of settlement of international dispute through arbitration was Albama Claims Arbitration, 1872.
(4) The most important decision or award given by permanent Court of arbitration are:
(i) Mascot – Dhouis Case, 1905.
(iii) Savarkar Case, 1911.
7. Judicial settlement: At present International Court of Justice occupies the most important place so far as the settlement of international disputes through judicial process is concerned.
Article 38 of the statute of International Court of Justice enunciates that the function of the Court is to decide in accordance with the International Law, such disputes as are submitted to it and represented by the states. The decisions of International Court of Justice have not binding force except between the parties and in respect of that particular matter.
Following are the good examples of the judicial settlement:
(2) Anglo Norwegian Fisheries Case, 1951.
8. Under the auspices (medium, means, power, instrument) of United Nation Organization: As successor to the League of Nations, the United Nations Organization, created in 1945, has taken over the bulk of the responsibility for adjusting international disputes. One of the fundamental objects of the Organization is the peaceful settlement of differences between states, and by article 2 of the United Nations Charter, Members of the Organization have undertaken to settle their disputes by peaceful means and to refrain from threats of war or the use of force. The General Assembly is given authority, subject to the peace enforcement powers of the Security Council, to recommend measures for the peaceful adjustment of any situation, which is likely to impair general welfare of friendly relations among nations.
Article 38 of the statute of International Court of Justice (ICJ): International conventions are stated in the article 38 of the statute of International Court of Justice, the first and the most important source of International Law.
The term “international conventions”: The term “convention” is used in a general and inclusive sense. It would seem to apply to any treaty, convention, protocol, agreement, and arrangement, regardless of its title or form.
Treaty – Oppenheim: According to Oppenheim, “treaties” are agreements of a contractual character between states or organizations of states, creating legal rights and duties or obligations between the parties.
Sehwarzanberger: Sehwarzanberger states that treaties are agreements between subjects of International Law creating a binding obligation in International Law.
J. G. Starke: A treaty may be defined as an agreement whereby two or more states establish or seek to establish a relationship under International Law between themselves.
Types of treaties: Treaties may be divided in two groups, i.e., law making treaties and treaty contracts.
Treaties may be bilateral or multilateral and also may be law making treaties or treaty contracts. In nearly all cases, the object of a treaty is to impose binding obligations on the states that are parties to it.
Law making treaties – Brierly: Law making treaties are those which a large number of states have concluded for the purpose:
1. Either of declaring their understanding of what the law is on a particular subject, or
2. Of laying down a new general rule for future conduct, or
3. Of creating some international institutions.
Adopted by all or most of the great states: Generally to be “law making” a treaty should be adopted by all or most of the great states as then the rules approved by such states “have very great weight in practice even among states which have never expressly conducted to them.”
General norms for the future conduct: Treaties create “general norms” for the future conduct of the parties in terms of legal proposition.
Direct source of International Law: The provisions of a lawmaking treaty are directly a source of International Law. This is not so with the treaty contracts which simply purport to lay down special obligations between the parties only.
International Legislation: There is no legislative organ in the field of International Law comparable to legislature within the state, but the lawmaking treaties fulfil the gap quite sufficiently and are labeled as International Legislation.
Example of lawmaking treaties: The examples of lawmaking treaties are as follows:
2. The Geneva Convention of 1864, 1906, 1929, & 1949.
4. Hague Conventions of 1899 & 1907.
Convention of the
6. A great treaty for the renunciation of war and the charter of the United Nations 1945 are pure law making treaties.
Treaty contracts: Following are the characteristics of the treaty contracts:
Indirect source: In contrast to lawmaking treaties, treaty contracts are not directly a source of International Law. They may, however, as between the parties of signatories thereto, constitute particular law.
Lead to the formation of International Law: Such treaties lead also to the formation of International Law through the operation of the principles governing the development of customary rules.
A series or recurrence (reappearance, return) of treaty contracts: A series or a recurrence of treaties laying down similar rule may produce a principle of customary International Law to the same effect.
Generalized by subsequent acceptance or imitation: It may happen with a treaty originally concluded between a limited number of parties only that a rule in it be generalized by subsequent independent acceptance or imitation of other states.
Crystallized into law by independent process of development: A treaty may be of considerable evidence such as to the existence of a rule which has crystallized into law by an independent process of development.
Importance of treaties in International Law: The present day International Law cannot survive without lawmaking treaties. The reasons are as follows:
1. Industrial and economic changes: Modern industrial and economic changes have brought states into closer intercourse with each other which can be regularized only by treaties.
2. To meet the urgent demands: The lawmaking treaties are the only source by which International Law can meet the urgent demands of international society of states for the regularization of the common interests.
3. Effective regulation of international communication, trade, travel etc.: Treaties effectively regulate the international communications, trade, travel, and other important activities.
Summing up: It may be said that the treaties are the eminent source for regularizing the relations of modern interdependent states with each other and International Law cannot be completed without treaties.
Termination of treaties: Treaties may be terminated either by act of the parties or operation of law.
1. Termination of treaties by act of parties: Parties may terminate the treaties in the following way:
a) By mutual agreement: The parties to a treaty may terminate it by mutual agreement in the same way as they concluded it.
b) By denunciation (charge, blame): A party may terminate its treaty obligations by act of denunciation if this right was provided in the treaty or with the consent of other parties if it is not provided in the treaty.
2. Termination of treaties by operation of law: Sometimes operation of law terminates the treaty. Such situation may arise in the following cases:
a) Extinction of either party: Extinction
of either party to a bilateral treaty may discharge the instrument. Thus treaty
b) Expiration of the specified period: A treaty specifically concluded for a fixed period of time, for example, five years, terminates on the expiration of that period.
c) Fulfillment of the object: In case of treaties imposing no continuing obligation, they cease to operate on the fulfillment of the object.
d) Non-performance of certain essential conditions: If a treaty is conditioned on the happening of a certain event or on performance of certain act, the treaty will be not operative until such happening or performance and if a such performance becomes impossible the treaty will become void.
e) Obligations incompatible with the charter of UN: Article 103 of the charter specifically provides that in the event of a conflict between the obligations of the members of the UN and their obligations under any other agreement, their obligations under the charter shall prevail.
f) Impossibility of performance: A treaty may terminate when the performance of obligations imposed by treaty becomes impossible.
g) Outbreak of war: Treaties may come to an end on the outbreak of war between the parties. The modern view, however, is that the outbreak of war does not necessarily bring a treaty to an end.
h) Number less than required for convention: If successive denunciation (charge, blame) of a treaty reduce the states parties to less than the number provided for by the convention, the treaty ceases to be in force.
i) Doctrine of rebus sic stantibus (major change in the state of fact): Treaties may be discharged as a result of the rebus sic stantibus doctrine. According to this doctrine a treaty may become null and void in case there is a fundamental change in the state of facts which existed at the time, when treaty was concluded.
j) Doctrine of jus cogen: According to this doctrine, a treaty may be declared void if it conflicts with peremptory (authoritative) norms of general International Law. Article 53 of the Vienna Convention on the Law of Treaties, 1969 lays down, that a treaty is void if, at the time of its conclusion, if conflicts with a peremptory norm of general International Law.
Ratification of a treaty: It is an act of adopting an international treaty by the parties thereto. In other words, “ratification” implies the confirmation of the treaty entered into by the representatives of the different states.
According to J. G. Starke: In theory, ratification is the approval by the Head of State or the government of the signature appended to the treaty by the duly appointed plenipotentiary.
Form of ratification: As regards the form of ratification, there is no express rule, it may be made express or implied.
Rational grounds for ratification: The practice of ratification rests on the following rational grounds:
b) Sovereignty: By reason of its sovereignty, a state is entitled to withdraw from participation in any treaty if it desires.
c) Approval of parliament: The time between the signature and actual ratification affords an opportunity to obtain the approval of parliament.
d) Consult pubic opinion: It also gives the government an opportunity to consult public opinion.
According to Brierly: There is neither legal bar nor even by its own plenipotentiary. It can only be said that refusal is a serious step which ought not to be taken lightly.
Conclusion of treaties: There is no specific form for the conclusion of treaties. An oral agreement between representatives of the state charged with the task of conducting negotiations and empowered to bind their respective countries is sufficient to have binding effect if it is the intention of the representative to conclude a legally binding transaction.
The enormous importance of the issues involved in such agreements however necessitates the compliance of formal requirements and reducing the agreements into a document. The various steps towards the conclusion of a treaty are:
1. Accrediting (charge, assign) of representatives: Once a state has decided to commence negotiations with another state or other states for a particular treaty, the first step in the appointing representatives of a state is provided with a very formal instrument given either by the Head of State or by the Minister for Foreign Affairs. It shows his authority to conduct such negotiations, which is known as the Full Power.
2. Negotiation: The plenipotentiaries exchange their full powers or a copy thereof before entering upon their task. They then proceed with negotiation. In the case of a bilateral treaties negotiations are conducted through pour-parlers but they take the shape of a diplomatic conference when a multilateral treaty is to be adopted or concluded.
3. Signature: When the final draft of a treaty is drawn up, the instrument is ready for signature. The signature is affixed at a formal closing session. A treaty generally comes into force on signature by plenipotentiaries of the contracting states unless the states desire to subject it to ratification. Treaties and conventions are generally always sealed.
4. Ratification: The next stage is that the delegates who signed the treaty or convention refer it back to their governments for approval if such further act of confirmation be expressly or implied is necessary.
5. Accession and adhesions: A third state can become a party to an already existing treaty by means of accession. This may be brought about by formal entrance of the third state with the consent of the original contracting parties. Adhesion denotes the entrance of a third State into an existing treaty with regard to certain stipulations or certain principles only embodied in the treaty.
6. Entry into force: The treaty, unless where ratification is necessary, comes into force on the date of signature. In case of ratification the treaty comes into force after the exchange or deposit of ratification by the state signatories. Multilateral treaties come into operation on the deposit of a prescribed number of ratification and accessions.
7. Registration and publication: Article 102 of the UN Charter provides that treaties and international agreements entered into by members of the United Nations Organization shall “as soon as possible” be registered with the secretariat of the organization and be published by it.
8. Incorporation in Municipal Law: The final stage of the treaty making process is the actual incorporation, where necessary of the treaty provisions in the municipal law of the state parties.
Rules for interpretation of treaties: Numerous rules, canons, and principles have been laid down by international tribunals and by writers to be used as tools in the interpretation of treaties.
J. G. Starke prescribe the following as a summary of the more general rules:
1. Grammatical interpretation: Words and phrases are in the first instance to be construed according to their plain and natural meaning. However if the grammatical interpretation would result in an absurdity, or in marked inconsistency with other portions of the treaty, it should not be adopted.
2. Intention of the parties: It is
legitimate to consider what was the “purpose” or “plan” of the parties in
negotiating the treaty. What must be ascertained is the ostensible intention of
the parties, as disclosed in the
3. Object and context of treaty: If particular words and phrases in a treaty are doubtful, their construction should be governed by the general object of the treaty and by the context.
4. Reasonableness and consistency: Treaties should be given an interpretation in which the reasonable meaning of words and phrases is preferred, and in which a consistent meaning is given to different portion of the instrument. In accordance with the principle of consistency, treaties should be interpreted in the light of existing International Law.
5. The principle of effectiveness: This principle requires that the treaty should be given an interpretation which “on the whole” will render the treaty “most effective and useful”, in other words enabling the provisions of the treaty to work and to have their appropriate effects.
6. Recourse (support) to extrinsic (foreign, external) material: Normally, the interpreting tribunal is limited to the context of the treaty. However, the following may be resorted to, provided that clear words are not thereby contradicted:
a) Past history, and historical usage, relevant to the treaty.
b) Preparation work, i.e., preliminary drafts, records, etc.
c) Interpretative protocols, resolution, and committee reports, setting out agreed interpretations.
d) Subsequent conduct of the state parties, as evidencing the intention of the parties and their conception of the treaty.
Recognition: According to Fenwich “recognition” is a formal acknowledgement by an existing member of the international community of the international personality of a state or political group not hitherto (previously, formerly) maintaining official relations with it.
Recognition of state may be defined that the free act by which one or more states acknowledge the existence on a definite territory of human society politically organized, independent of any other existing state which is capable of observing the obligations of International Law.
Recognition is, one of the most difficult topic, in International Law. It is a confusing mixture of politics, International Law, and municipal law.
Elements of new emerged state requiring recognition: New emerged state, which requires recognition must have certain elements such as, population, territory, government, sovereignty, and capability of agreement.
Legal nature of recognition: Recognition is as the practice of most states shows much more a question of policy then of law. There are two theories as to legal nature of recognition, such as, constitutive theory and declaratory theory.
1. Constitutive theory –
2. Declaratory or evidentiary theory: According to this theory, statehood or the authority of a new government exists as such prior to and independently of recognition. The act of recognition is merely a formal acknowledgement of an established situation of fact.
German – Polish Arbitral Tribunal 1929: The tribunal observed that recognition of a state is not a constitutive but merely a declaratory act inasmuch as (because, since, due to the fact that, for the reason that) the state exists by itself. Recognition is nothing but the ascertainment (estimation, conclusion, measurement) of that existence.
Retroactive (backward) effect of recognition: Recognition of state has retroactive effect and dates back to the time when the recognized community possesses the necessary elements of statehood.
Modes of recognition: Following are the different modes of recognition, such as express and implied recognition and de facto and de jure recognition.
Express recognition: Recognizing state may make the act of recognition expressly through mere declaration to that effect. Normally, when a state recognized another state or government, it says so expressly.
Implied recognition: Implied recognition is very much a matter of intention of the state said to have given recognition. It is sometimes said that recognition cannot be implied from a state’s conduct unless the state intends that it should be implied but law may deduce intentions from behavior, which are different from a state’s real intention. It is just as a person who signs a contract without reading it will be deemed by the law to have intended all sorts of things, which he never intended in fact.
The implication is made solely when the circumstances unequivocally (openly, frank) indicate the intention to establish formal relations with the new state or new government. Implied recognition may be inferred from:
1. Entering some form of relations with new state or government.
2. Common participation in a multilateral treaty.
3. Participation in an international conference.
4. Initiation of negotiation between a recognizing and recognized state.
De facto recognition: Recognition de facto means that in the opinion of the recognizing state, provisionally and temporarily and with all due reservations for the future, the state and government recognized fulfills the requirement laid down by International Law for effective participation in the international community.
De jure recognition: Recognition de jure means that according to the recognizing state, the state or government recognized formally fulfills the requirements laid down by International Law for effective participation in the international community.
Conditions for recognition: New emerged state is subject to recognize provided it has certain ingredients such as:
1. Politically organized community.
2. Community must have a specific territory.
3. Strong occupation.
4. Free and independent community.
5. Establishment of constitutional system.
Difference between de facto and de jure recognition: Following points can be referred as distinction in both the recognitions:
(1) De jure: It is permanent and durable.
(2) De facto: It is temporary and transitory.
(1) De jure: It cannot be revoked.
(2) De facto: It can be revoked.
(1) De jure: Legally or constitutionally recognized government succeeds former government.
(2) De facto: De facto recognition does not follow succession.
(1) De jure: State having de jure recognition can sue.
(2) De facto: State having de factor recognition cannot sue.
5. Diplomatic relations:
(1) De jure: This recognition enjoys diplomatic relations and immunities as well.
(2) De facto: Diplomats do not enjoy immunities.
6. Demand of property:
(1) De jure: State, which is recognized de jure, can demand her share in state property.
(2) De facto: This recognition lacks demand of property.
(1) De jure: State may make treaties with other states.
(2) De facto: State cannot make treaties with other states and if so, temporarily and with due reservations.
Legal effects of recognition: Following are the points notable as legal effects of recognition:
1. Right to sue: Right of suing in the courts of the recognizing state.
2. Effect on enactment: Have effect of its legislation by these courts.
3. Certain immunities: May claim immunity from suit in regard of its property and its diplomatic representatives.
4. Right to demand property: Entitles to demand and receive property.
5. Certain privileges: Privileges of membership of international community.
6. Right of treaties: Capacity to conclude treaties.
7. International obligations: Subject to various obligations under International Law.
Territorial waters: Waters adjacent to the territory of a state may be either national or territorial. Territorial waters lie within a definite maritime zone or belt adjacent to a state’s territory.
National waters: National or interior waters consist on internal ports, rivers, lakes, canals, gulfs, bays, and harbors etc.
Maritime belt: The maritime belt is that part of the sea, which is under the sway (power, authority, dominance, influence, control) of the littoral (beach, coast) states.
There is considerable unanimity of opinion that the open sea cannot be state property and only such part as stated above of the sea would be the state property of the littoral states.
Marginal belt: Territorial waters are also termed as “marginal belt” over which the littoral state has completed territorial sovereignty.
Territorial sea: The International Law Commission of UN has
expressed a preference for the term “
Extent of jurisdiction over Territorial Waters: The extent of jurisdiction over territorial water has not been specifically determined. The customary rules and the jurists prescribes the extent of jurisdiction as follows:
1. Range of cannon shot: Bynker Shoek published his work, (Essay on Sovereignty over the Sea), in which he adopted the rule that the littoral state could dominate only such width of coastal water as by within range of cannon shot from shore batteries; and the territorial sovereignty extends as far as the power of arms carries.
2. Three miles limit: The three mile limit
was suggested by
3. Universally accepted rule: The three mile rule is so universally accepted as a minimum that one may safely postulate (assume, suppose, presume) a customary rule of International Law that the recognized minimum breadth or width of the maritime belt is three miles.
4. Grotius: Grotius introduced the principle of limiting the dominion to the distance to which protection could reach it from the shore.
5. According to Valtel: Valtel observed that in general the dominion of the state over the neighboring sea extended as far as her safety rendered it necessary and her power was able to assert it.
6. English law:
7. Sea convention adopted by the law of Sea Conference, 1982, signed by 117 countries: The convention provides for a twelve nautical (naval) miles territorial sea in which a coastal state can exercise its sovereign power with few exceptions. But foreign vessels would be allowed “innocent passage” through these waters for purposes of peaceful navigation.
8. International conference on the law of sea
Rights of the coastal state over the territorial sea: The coastal state’s sovereignty over the territorial sea includes the following rights:
1. An exclusive right to fish, and to exploit the resources of the seabed and subsoil of the territorial sea.
2. Exclusive enjoyment of the air space above the territorial sea, unlike ship, foreign aircraft have no right to innocent passage.
3. The coastal state’s ships have the exclusive right to transport goods and passengers from one part of the coastal state to another.
4. If the coastal state is neutral in time of war, belligerent (hostile) states may not fight, or capture merchant ships, in the coastal state’s territorial sea.
5. The coastal state may enact regulations concerning navigation, health, customs duties, and immigration, which foreign ships must obey.
6. The coastal state has certain powers of arrest over merchant ships exercising a right of innocent passage, and over persons on board such ships.
Pirates (sea robber) are enemies of mankind: A pirate is an enemy of the whole human race “hostis humani genris”. He is outlawed (unlawful, illegal, prohibited, and wrong) by the law of all nations, his act being one directed against the whole body of civilized states.
Molley: Molley defines a pirate as a sea thief who to enrich himself either by surprise or open face sets upon merchants or other traders by seas.
Kenny: Piracy is any armed violence at sea which is not a lawful act of war.
Story: Robbery or forcible depredation (stealing, theft) upon the sea is piracy.
L. Oppenheim: Piracy, in its original and strict meaning, is a very unauthorized act of violence committed by a private vessel on the open sea against another vessel with intent to plunder (robbery or theft).
If the members of the crew revolt and convert the ship, and the goods thereon, to their own use, they are considered to be pirates, although they have not committed an act of violence against another ship.
If unauthorized acts of violence, such as murder of persons on board the attacked vessel, or destruction of goods thereon, are committed on the open sea without intent to plunder, such acts are in practice considered to be piratical.
Object of piracy: The object of piracy is any public or private vessel, or the person or the goods thereon, whilst on the open sea. In the regular case of piracy the pirate wants to make booty, it is the cargo of the attacked vessel, which is the centre of his interest, and he might free the vessel and the crew after having appropriated the cargo.
Piracy according to the International Law Commission: Piracy consists of an illegal act of violence, detention, or any act of depredation, committed for private ends by those aboard (on board, loaded, shipped) a private ship or private aircraft, and directs either on the High Sea, against a ship or persons or property thereon, or, in the territory or waters of nature of terra nullius.
Essential ingredients of piracy: The essential ingredients of an act of piracy are:
is an act performed by a person sailing the
2. Such an act is without the authority or commission of any state.
3. Actual robbery is not an essential element in the crime of piracy; frustrated attempt to commit robbery is equally piracy jure gentium.
4. Such act of robbery is committed by a private vessel against another vessel or by the mutinous (rebellious, seditious) crew against their-own vessel.
5. The essence of piracy consists in the pursuit of pirate, as contrasted with public, ends.
Universal jurisdiction: Piracy subject to universal jurisdiction is one, which comes under the jurisdiction of all states wherever it is committed.
It is treated as a delict jure gentium and all the states are to apprehend and punish the offenders.
Protection of flag state: By this conduct, the pirate is deemed automatically to lose the protection of his flag state and any privileges due to him virtue of his nationality.
Piratical acts authorized by a government: Professor Hyde maintains that “national authorization of the commission of piratical acts would not free pirates from their intentionally illegal aspects.”
Right of visit and seizure of pirate ship: All warships (aircraft carrier) are entitled to visit a vessel deemed to be piratical for the purpose of ascertaining her true character.
Ownership of property in piracy: A robbery by piracy does not deprive the rightful owner of his property, which has to be restored to him when recaptured.
UN contention (contest, struggle) on the Law of Seas, 1982: Article 102 of the convention lays down that the act of piracy committed by a warship, government ship, or government aircraft, whose crew has mutinied (revolt, sedition) and taken control of the ship or aircraft are assimilated (amalgamated) to acts committed by a private ship or aircraft.
Right to arrest pirates and seize pirate ship: Article 105 further provides that on the High Seas or in any other place outside the jurisdiction of any state every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.
Decision by the Court in good faith: The courts of the state which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to ships, aircraft, or property, subject to the rights of third parties acting in good faith.
Article 105, further provides that where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the state making the seizure shall be liable to the state the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.
Article 107 states that a seizure on account of piracy may only be carried out by warships or military aircraft or other ships or aircraft clearly marked and identifiable as being a government service and authorized to that effect.
Nationality –J. G. Starke: “Nationality” is a status of membership of the collectively of individuals whose acts, decisions, and policy are vouchsafed (accord, bestow, confer) through the legal conception of the state representing those individuals.
Fenwick: “Nationality” is the bond that writes a person to a given state which constitute his membership in a particular state, which gives him a claim to the protection of that state and which subjects him to the obligation created by law of that state.
Hyde: “Nationality” refers to the relationship between a state and individual that the former may with reason regard the latter as owing allegiance (faithfulness, loyalty) to itself.
L. Oppenheim: Nationality of an individual is his quality of being a subject of a certain state, and therefore its citizen. It is not for International Law but for Municipal Law to determine who is, and who is not, to be considered a subject.
Re Lynch case: In the case “Re Lynch”, the United States Mexico General Claims Commission defined the term “Nationality” as follows:
A man’s nationality is a continuing relationship between the sovereign state on the one hand and the citizen on the other.
Modes of acquisition of nationality: The practice of states shows that nationality may be acquired in the following principal ways:
1. By birth: Generally the nationality is acquired by birth, a person becomes the national of that state when he borne. Nationality by birth is acquired on the following two basis:
(1) Jus Soli: Jus Soli means the territory of birth, a person may acquire the nationality of that state, in which territory he borns.
(2) Jus Sanguinis: Jus Sanguinis means that the nationality of the parents at birth. Most of the states gives the their nationality to the children of their nationals notwithstanding whether they born in its territory or not.
2. By naturalization: Naturalization is an administrative act of the state conferring citizenship or nationality on an alien. A person may acquire the nationality of a state on the following bases.
(1) By marriage: Many states give the right that to wife or husband of his national may assume the nationality of his or her spouse.
(2) By legitimization: A person may acquire the nationality of state on application on the basis of long residence in its territory or having the domicile of that state.
(3) By official grant: Nationality may be acquired by official grant of nationality on application to the state authorities.
3. Inhabitants of a conquered territory: The inhabitant of a subjugated or conquered state or territory may assume the nationality of the conquering state.
4. By resumption: If the national of a state loses the nationality of that state on any ground, he may resume the nationality of that state. This is called resumption of nationality.
5. Inhabitants of
6. Inhabitants of a newly emerged state’s territory: The inhabitants of the territory of a newly emerged state may assume the national of that new state.
Lost of nationality: According to the practice of states, following modes may lose nationality:
1. By release: A person may loss nationality of a particular state by release. For example, by deed signed and registered at a consulate, or by declaration of alienate under British statute.
2. Renunciation: For, example some states declare a child born of foreign parents on their territory to be their natural born subject, although he becomes at the same time, according to the Municipal Law of the home state of the parents. A subject of such state, give the right to such child to make, after coming of age, a declaration that he desires to be a citizen.
3. By deprivation: A state may deprive a person from its nationality, for example, under special denationalization laws passed by the state of which the person concerned is a national.
4. Accession or conquer: Inhabitants of acceded or conquered state may lose the nationality of that acceded state and her inhabitants.
5. Substitution or acquisition of other state’s nationality: A person may lose its prior nationality on acquisition of other state’s nationality. According to the law of many states, the nationality of their subject is extinguished ipso facto by their naturalization abroad.
6. Sentence or punishment: A state may deprive the person from its nationality by way of sentence or punishment of a crime, e.g., treason etc.
7. Long residence abroad or expiration: A person may lose his nationality on account of long residence abroad.
Statelessness: Statelessness is a condition of a person having no citizenship and no official belonging to any country.
J. Russell: It was observed by J. Russell in the case of Stoeck v The Public Trustee that statelessness is a condition recognized by English law.
L. Oppenheim: Oppenheim observed that “a person may be destituted of nationality knowingly or unknowingly, intentionally or through no default of his own.” A stateless person vis-a-vis a person without nationality is peculiarly (highly) open to persecution and general hardships.
Cases of statelessness: Oppenheim mentions several cases of statelessness such as:
By birth: He says, that even by birth a person may be stateless.
Thus an illegitimate child born in
After birth: Statelessness may also take place after birth, i.e., by deprivation of nationality. All individuals who have lost their original nationality without having acquired another are in fact destitute of nationality.
Remedial actions for statelessness: Following are the remedial actions taken for the relief to stateless persons:
Hague Convention of 1930: The Hague Convention of 1930 on the conflict of nationality laws not doubt desired to end the state of statelessness and double nationality, but the provisions contained therein did not help much for want of ratification on the part of the states.
1. Nationality of a child: The convention provided that a child whose parents are unknown or who have no nationality or whose nationality is unknown is to have the nationality of the country of birth.
2. Imposing duties upon states: Statelessness can be remedied by imposing duties upon states to regard a certain nationality as lost.
3. Obliging states to refrain from denationalization: Remedial action for the condition lies in obliging states to refrain from denationalization measures unless there is just cause.
4. Conferment (giving) of nationality by liberal minded states: Statelessness can be to much extent remedied by conferment by liberal minded states of their nationality upon stateless persons.
5. Article 15 of the Universal Declaration of Human Rights: It is provided in Article 15 that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality.
6. Naturalization: The process of naturalization can remedy statelessness but it can easily be happened or done when the states will encourage it.
The convention relating to the
status of stateless persons signed in
The subject of statelessness, and of remedial action in regard to it, has been under study by the International Law Commission, 1953, and by the General Assembly of the United Nations.
Extradition –Lawrance: Lawrance defines extradition as “the surrender by one state to another of an individual who is found within the territory of the former and is accused of having committed a crime within the territory of the latter.
L. Oppenheim: “Extradition” is the delivery of an accused or a convicted individual to the state on whose territory he is alleged to have committed, to have been convicted of, a crime, by the state on whose territory the alleged criminal happen to be for the time being.
J. G. Starke: The term “extradition” denotes the process whereby one state surrenders to another state at its request a person accused or convicted of a criminal offence committed against the laws of the requesting state, such requesting state being confined to try the alleged offender.
A criminal may take refuge in a state which has no jurisdiction to try him, or in a state which is unable or unwilling to try him because all the evidence and witnesses are abroad. To meet this problem, International Law has evolved the practice of extradition, individuals are extradited, i.e., handed over, by one state to another state, in order that they may be tried in the latter state for offences against its laws. Extradition also includes the surrender of convicted criminals who have escaped before completing their punishment.
Object of extradition: Since extradition is the delivery of an accused or convicted individual to the state on whose territory he is alleged to have committed, or to have been convicted of, a crime, by the state on whose territory he happens for the time to be. The object of extradition can be any individual, whether he is a subject of the prosecuting state, or of the state which is required to extradite him, or of a third state.
Extradition in the absence of an extradition treaty: Following rules govern extradition in the absence of extradition treaty:
Reciprocity or courtesy: In the absence of a treaty or statute, the grant of extradition depended purely on reciprocity or courtesy. No government is understood to be bound by positive law of nations to deliver up criminals and fugitives from justice who have sought an asylum within its limits.
Common rules: Following are the common rules, which govern the extradition in absence of an extradition treaty:
1. Extraditable persons: There is uniformity of state practice to the effect that the requesting state may obtain the surrender of its own nationals or nationals of a third state. But most states usually refuse the extradition of their own nationals who have taken refuge in their territory, although as between states who observe absolute reciprocity of treatment in this regard, requests for surrender are sometimes acceded to.
2. Extraditable crimes: Serious crimes generally, states extraditing only for serious crimes, and there is an obvious advantage in thus limiting the list of extradition crime since the procedure is so cumbrous (huge, heavy) and expensive.
3. Special principle: This means that an extradited person cannot be tried for a crime other than that for which he was extradited, until he has been given a chance to leave the country to which he was extradited.
4. Definition of extraditable offences: Extradition is usually confined to serious crimes, which must also be crimes under the law of both of the states concerned (double criminality principle). This object can be met in one of two ways. First, the treaty may apply to all crimes, which are punishable in both countries by so many months or years of imprisonment. Alternatively, the treaty may list the extraditable offences by name.
Exempted offences: As a general rule, the following offences are not subject to extradition proceedings:
(1) Political crimes.
(2) Military offences, for example, desertion (escape).
(3) Religious offences.
5. Principle of specialty: This principle
means that the requesting state is under a duty not to punish the offender for
any other offence than that for which he was extradited. This principle is
approved by the Supreme Court of the
6. Rule of double criminality: As regards the character of the crime, most states follow the rule of “double criminality”, i.e., that it is a condition of extradition that the crime is punishable according to the law both of the states of asylum and of the requesting state.
7. Reasonable prima facie evidence: There must be reasonable prima facie evidence of the guilt of the accused.
Intervention – defined by Oppenheim: “Intervention” is dictatorial interference by a state in the affairs of another state for the purpose of maintaining or altering the actual condition of things.
Lawrance: “Intervention” is an interference with the proceedings of a sovereign state by another state or group of states. The interfering state endeavors to compel it to do something which, if left to itself, it would not do, or refrain from doing something which, if left to itself, it would do.
J. G. Starke: “Intervention” means something more than mere interference and much stronger than mediation (reflection) or diplomatic suggestion. To fall within the terms of their prohibition, it must be dictatorial interference, in opposition to the will of the particular state affected.
Kinds of intervention: There are three different kinds of intervention, which are as follows:
1. Internal intervention: It is the interference by one state between disputing sections of the community in another state either for protection of the legitimate government or the insurgents (rebel).
2. External intervention: It is the intervention by one state in the relations generally of the hostile relations of other states. It is, in other words, an intervention in the foreign affairs of another state.
3. Punitive intervention: It is a punitive measures falling short of war and it in the nature of a reprisal (revenge) for an injury suffered at the hands of another state.
When intervention can be permitted – general rule: General rule is that intervention is not allowed under International Law. Use of force by one state against another state, is always unlawful.
Article 2 of the Charter of the United Nations clearly condemns intervention when it provides that all members shall refrain in their relations from the threat or use of force against the territorial integrity or political independence of any state.
Exceptional cases: There are, however, exceptional cases in which a state has at International Law a legitimate right of intervention.
Grounds of intervention: The intervention can be permitted upon following grounds:
1. Self-protection: The supreme interest of the state overrides law. A state has a right to interfere in the affairs of another state where the security and immediate interests of the former are compromised.
2. Enforcement of Treaty Rights: A state is justified in interfering in the affairs of another state if the provisions of any treaty oblige the former to preserve the independence or neutralists of the latter.
3. Invitational intervention: As regards invitation by the lawful government of the state to intervene in its international affair, the matter is not free from difficult. It is again highly controversial whether the invitation from the government could be legitimately regarded as from the lawful government in such cases.
4. Grounds of humanity: Another justification for intervention is based on the ground of humanity. Lawrance observes that in the opinion of many writers such interventions are legal, but they can not be brought within the ordinary rules of International Law.
5. Balance of power: Preservation of the balance of power has been as undoubted maxim of European diplomacy from the middle of the seventeenth century. But the intervention on this ground has been condemned by jurists of all ages.
6. Protection of persons and property: Protections of the persons, property and interests of its nationals may provide justification for intervention. The necessity for protection may arise due to gross injustice or due to injury caused by unfair discriminations.
7. Intervention in civil war: With the establishment of the United Nations there is not justification for intervention by individual states in the civil wars of other states.
8. Protector’s affairs: A state has at International Law a legitimate right of intervention in the affairs of a protectorate (colonial state) under its dominion.
9. Removal of international nuisance: An intervening state may justify its intervention on the ground of removal of international nuisance.
10. Collective intervention: Collective intervention at the present time is in pursuance of the provisions of the United Nations that is the enforcement action under the authority of the United Nations Organization.
State servitude (slavery) – J. G. Starke: Stake defines an international servitude as “an exceptional restriction imposed by treaty on the territorial sovereignty of a particular state whereby the territory of that state is put under conditions or restrictions serving the interest of another state.”
M. P. Tandon: It is a right whereby the territory of one state is made liable to permanent use by another state for some specified purpose. For example, by agreement a state may be obliged to allow the passage of troops of a neighboring state or may be prevented to fortify its frontiers in the interest of the neighboring state.
L. Oppenheim: International servitude is that exceptional restrictions through which a state may exercise certain rights over the territory of another state. State servitudes are those exceptional restrictions made by treaty on the territorial supremacy of a states by which a part or the whole of its territory is in a limited way made perpetually to serve a certain purpose or interest of another state.
Rights in rem: The right arising out of servitude is one in rem. It follows that the servitude remains in force whatever happens to the territory of the state bound by the servitude, for example, if it be annexed or merged in another state.
Object of state servitude: The object of state servitude is always the whole or a part of the territory of the state the territorial supremacy of which is restricted by any such servitude.
Subjects of state servitude: Subjects of the state servitude are states only and exclusively, since state servitude can exist between states only.
Kinds of servitude: Oppenheim mentions four kinds of servitude, which are as follows:
1. Military servitude: Military servitude is a servitude acquired for military purposes, such as, the right to keep troops in foreign territory or to send an armed forces through foreign territory.
2. Economic servitude: Economic servitude is a servitude which is acquired for the purpose of commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign territorial waters, or to enjoy the advantages of a free zone for custom purpose, to built a railway-line on foreign territory.
3. Positive servitude: Positive servitude means that a state has to perform certain acts on the territory of another state. For example,
(1) Building and operating a railway in a certain territory.
(2) Construction of a customhouse.
(3) Having fishery rights in the territorial waters of another state.
(4) Lay down telegraph cable through foreign territory and such like.
Positive servitude is also termed as “active or affirmative” servitude.
4. Negative servitude: Negative servitude connotes that the state is bound by the servitude must refrain from doing something on that territory or abstain from exercising its territorial rights in some ways. For instance, it may permit a state to demand that a neighboring state shall not fortify its frontiers or increase its naval on land armament beyond a certain limit.
Succession of states: By “state succession” is meant the factual situation, which arises when one state is substituted for another over a given territory.
M. P. Tandon: “Succession of states” means the replacement of one state by another in the responsibility for the international relations of the territory.
Predecessor state and successor state: The state which has been replaced by another state on the occurrence of a succession of state is termed as the “predecessor state” while the state which has replaced is called the “successor state”.
Succession to rights and obligations: Starke mentions that we are principally conceived with the transmission of right or obligations from states which have altered and lost that identity to other states or entities. Therefore, the terminology “state succession” is somewhat inappropriate and the terminology “succession to right and obligations” looks more suitable.
Legal question: When this take place, a succession or substitution, in fact of one state by another, the legal question arises that as to what extent there is a transmission of the rights and obligations of the old state to the new.
Kinds of succession: Succession of states is of two kinds, i.e., universal succession and partial succession.
1. Universal succession: Universal succession takes place when one state is completely absorbed by another either through conquest or through voluntary merger or by breaking into independent parts.
2. Partial succession: Partial succession takes place when a part of the territory of a state, for instance, breaks off in a result and by winning independence becomes itself a new state or when one state acquires a part or the territory of another state, or when a protectorate becomes a full sovereign state.
State succession: State succession falls under the following kinds:
1. Succession to treaty rights and obligation: There is no general rule that all treaty rights and obligations pass. But when a treaty has acquired the force of customary International Law, it will be binding on the new state.
It seems to be a generally accepted that the legal treaties devolve automatically upon the new state, as about boundaries, devolve automatically upon the new state, a servitude, or quasi servitude.
2. Succession to non-fiscal contractual
treaties and obligations: The extent to which those pass is highly
A contractual right, which is solely of the nature of a claim to un-liquidated damages, does not survive the change of sovereignty.
3. Succession and concessionary contracts: The general weight of practice and opinion lies in the direction of holding the obligation under concessionary contacts are terminated upon changes of sovereignty resulting in the extinction of the predecessor state, unless indeed the successor state renews the concession.
4. Succession and public debts: There is a great divergence of opinion on the question whether the successor state is obliged to take over public debts.
But it appears that the most commonly applied principle is that he who takes the benefit must also take the burden. So where an identified region has benefited by public expenditure to an ascertainable extent, then whoever takes over that part of the territory also takes over part of public debt which corresponds to the benefit.
5. Succession and private or municipal law rights: Such of these rights as have crystallized into vested or acquired rights must be respected by the successor state more especially where the former municipal law of the predecessor state has contained to operate, subject to alteration, as though to guarantee the sanctity of the rights.
6. Succession and claims in tort: There is no general principle of succession to delictual liabilities. According to the principles annunciated in two well-known cases The Robert E. Brown claim and the Hawaiian claims, the successor state is not bound to respect an un-liquidated claim for damage in tort.
7. Succession and public funds and property: It is generally recognized that the successor state takes over the public funds and public property, whether moveable or immovable of the predecessor state.
8. Succession and nationality: The problem here is whether and to what extent the successor state can claim so its nationals’ citizens of the predecessor state. Prima facie, person living or domiciled in the territory, subject of change, acquires the nationality of the succession.
Geneva Convention, 1949 on Prisoners of War: Four conventions were
1. The treatment of prisoners of war.
2. The amelioration (amendment, correction) of the condition of the wounded and sick in Armed Forces in the field.
3. The Amelioration of the condition of wounded and sick and shipwrecked (sinking) members of Armed Forces at sea.
4. The protection of civilian persons at the time of war.
Prisoners of War: One of the convention concluded at
Persons to be treated as Prisoners of War: Under Article 4 of following categories of persons are to be treated as Prisoners of War:
1. Members of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of organized resistance movements.
3. Persons who accompany the armed forces with actually being members thereof.
4. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Powers.
5. Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces.
Treatment of Prisoners of War: With regard to Prisoners of War they must be cared for and treated with humanity.
Prohibits violence to life: The Geneva Convention of 1949 prohibits violence to life and person of prisoners.
Prohibits humiliating treatment: Under the conventions, humiliating or degrading treatment with the prisoner is prohibited.
Physical or mental torture: No physical or mental torture is allowed to inflict on prisoners to compel them to give information.
Removal from the danger areas: After capture the Prisoners of War have to be removed from the danger area.
Termination of capacity: Capacity may be terminated by repatriation, accommodation in natural countries, release, escape, or death of prisoners.
Sick and wounded: The convention for the amelioration (editing, amendment, correction, or improvement) of the condition of the wounded and sick in Armed Forces in the field provides that sick or wounded persons officially attached to armies must be respected. They also to be protected and cared to without distinction of nationality, religion, race, sex, or political opinion.
Hospital zones: The convention also provides for the possibility of establishing by agreement of the parties hospital zones for protecting the wounded and sick.
Treatment of dead soldiers: Article 15 & 16 relate to the treatment of the dead soldiers. They have made an obligatory provision for reciprocal and speedy communication by the belligerents of the names and identity of the wounded and dead and for collection and transmission of articles found on the battle field or on the dead.
Medical transport: Article 36 of the convention protects aircraft used as a means of medical transport for the time they are used in transporting medical personnel and material and evacuating (void, remove) wounded and sick.
Role of International Law including individuals and non-state entities with reference to the opinions of jurists and modern practices: The question can be discussed conveniently with reference to the comments of those who assert that the International Law is exclusively concerned with the states and of those who affirm that individuals and non-state entities also are the subjects of International Law and with reference to certain modern practices.
States as subject of International Law: L. Oppenheim and his followers comment that since the International Law is based on the common consent of the states and not of individual human being, the states solely and exclusively are the subjects of International Law.
Law for the conduct of states: The subscribers of this view claim that the International Law is a law for the international conduct for states and not of their citizen.
Individuals as subject of International Law: Kelson has analyzed the notion of a state and affirms that it is purely a technical legal concept serving to embrace the totality of legal rules applying to a group of persons within a defined areas.
Individual alone are subjects: He states that in the ultimate analysis, individuals alone are the subjects of International Law. The rights and duties of states are only the rights and duties of individuals who compose them.
Individuals and non-state entities as subjects of the International Law: The authorities and jurists, after and before the out break of 2nd world war inclined to the concept that the International Law is not exclusively concerned with states. That was because of certain developments.
Post 2nd world war developments: These are as follows:
1. The establishment of a large numbers of permanent international institution as organizations, for example, the United Nations Organization, World Health Organization, etc.
2. The movements to protect human rights and fundamental freedoms of individuals.
3. The erection of new rules for the punishment of persons committing international crimes of genocide or race destruction.
J. G. Starke’s view – states are principally subject but include individuals and non-state entities: According to Starke and other modern jurists, International Law is primarily concerned with the rights and duties of states but this does not mean that no other entity or person can be subject of the law. They include individual and non-state entities as subject of International Law.
1. Crimes against peace and humanity and
2. Conspiracy to commit these crimes.
According to the
Deznig Railway Official’s Case: In this era permanent International Court of Justice observed that if by a particular treaty the parties intended to confer rights on individuals, then these rights should receive recognition and effect at International Law, that is to say from an International Court of Justice.
Conclusion: To sum up, it may be said that:
1. Under modern practice: Individuals and non-state entities enjoy rights and become subject to duties directly under International Law.
2. The interest of individuals: Their fundamental rights and freedoms, etc. have become primary concern of International Law.
The developments of modern era appear to show the theory that states are the exclusive subject of International Law cannot be accepted today as accurate in all respects, although it may be a good working generalization for a practical international lawyer.
Diplomatic agents: In order to develop relationship states send their representatives to other states. These representatives are called diplomatic agents.
Diplomatic agents in other states are called officials or recognized representatives.
Ambassador is a person who is sent to abroad to take care of interest of his state.
Kinds of agency: There are two kinds of agencies, i.e., formal representatives and political representatives. Political representatives have further two kinds, i.e., interim representation and permanent representation.
Classification of diplomatic agents: There are four broad classifications of diplomatic agents, i.e., ambassador, extra ordinary envoy, minister resident, and charge affairs.
Appointment of diplomats: Following is the procedure for the appointment of diplomats:
1. Appointment letter.
2. Welcome of diplomats.
3. Duties of diplomats:
a) Talks and relationship.
b) Awareness of circumstances.
d) Protection of interests.
e) Protection of his nationals within limits of International Law.
f) Explanation of state’s policies.
g) Conversation for extradition.
Immunities available to diplomats: Diplomats enjoy following immunities:
1. Protection of diplomatic envoys.
2. Fundamentals of diplomatic immunities.
3. Immunity from criminal jurisdiction.
4. Immunity from civil and administrative jurisdiction.
5. Immunity from giving evidence.
6. Immunity as to residence.
7. Immunity from police rule.
8. Immunity from arrest and detention.
9. Right of worship.
10. Right of self-jurisdiction.
11. Freedom of communication.
12. Freedom of movement.
13. Exemption from taxes.
14. Right of diplomatic asylum.
15. Duration of immunities and facilities.
16. Travelling facilities.
Termination of diplomatic mission: Diplomatic mission may be terminated on the following ways:
1. Call back by Head of State.
2. Termination of Head of the State.
3. Completion of mission.
4. To preserve peace and prosperity.
5. In case of death.
6. Persona non grata.
7. In case of undesirable act.
8. Drastic change in country or change of Head of State.
9. Merger or extinction of state.
Losing of territorial sovereignty: Following reasons may cause lose the territorial sovereignty:
5. Natural factors.
7. Sway or domination.
8. Judicial decision.
Neutrality: In its popular sense, neutrality denotes the attitude of a state, which is not at war with belligerents, and does not participate in the hostilities. In its technical sense, however, it is more than an attitude, and denotes a legal status of a special nature, involving a complex of rights, duties, and privileges at International Law, which must be respected by belligerents and neutrals alike.
Rational basis of neutrality: Neutrality is often justified by reference to the following consideration:
1. That it serves to localize war.
2. That it discourages war.
3. That is enable states to keep out of war.
4. That is regularizes international relations.
Neutrality and the United Nations Charter: Members states of the United Nations have no absolute right of neutrality. By article 41 of the United Nations Charter they may be under a duty to apply enforcement measures against a state or states engaged in war, if so called upon pursuant to a decision by the Security Council. Neutrality is not, however, completely abolished.
Rights and duties, in general, of neutral states: The status of neutrality involves rights and duties inter se of neutral states on the one hand, and of belligerent states on the other. Rights and duties are classified as under:
1. Abstention (restraint): The neutral state must give no assistance – direct or indirect – to either belligerent side, for example, it must not supply troops, or furnish or guarantee loans, or provide shelter for a belligerent'’ armed forces.
2. Prevention: The neutral state is under a duty to prevent within its territory or jurisdiction such activities as the enlistment of troops for warlike measures in its territory or territorial waters.
3. Acquiescence (compliance): The neutral state must acquiesce in the acts of belligerent states with respect to the commerce of its nationals if the laws of war duly warrant them. For example, the seizure of vessels under its flag for the carriage of contraband, adjudication by Prize Courts, and so on.
Duties of belligerent states: Similarly the duties of belligerent states may be summarized as:
1. Abstention (restraint): A belligerent state must not commit warlike acts on neutral territory or enter into hostilities in neutral waters or in the airspace above neutral territory, nor may it interfere with the legitimate intercourse of neutrals with the enemy, nor may it use neutral territory or waters as a base for belligerent operation, or as a starting point for an expedition.
2. Prevention: A belligerent state is duty bound to prevent the ill-treatment of neutral envoys or neutral subjects of injury to neutral property on enemy territory occupied by it.
3. Acquiescence (compliance): A belligerent state must, for instance, acquiesce in internment by a neutral state of such members of its armed forces as take refuge in neutral territory, or in the granting of temporary asylum by neutral ports to hostile warships so that necessary repairs may be effected.
Security Council: The Security Council consists of fifteen
member-states. Five are permanent members—
The number of non-permanent was
increased from six to ten on
There is an informal understanding that five of the non-permanent places should be filled by Afro-Asian states, two by Latin American states, one by an Eastern European state, and two by Western European and other states.
Functions and powers of the Security Council: Following are the functions of the Security Council:
1. Maintenance of international peace: In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. The Security Council’s principal functions consist on making recommendations for the peaceful settlement of disputes and taking enforcement action to deal with threats to the peace, breaches of the peace, and acts of aggression.
2. Binding decisions: The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. The Security Council thus has a power to take binding decisions, which member-states are under a legal obligation to obey.
3. Settlement of international disputes: Security Council is responsible for the pacific settlement of international disputes.
4. To call parties in disputes: The Security Council shall, when it deems necessary call on the parties to a dispute, the continuance of which is likely to endanger peace and security, to settle that dispute by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, action by regional agencies or under regional arrangements, or other peaceful means.
5. Investigation power: The Security Council may investigate not only any kind of dispute, but also situations which are such that they may lead to international friction or give rise to a dispute, in order to determine whether the dispute or situation is likely to endanger peace and security.
6. Recommendations for settlement: During the course of any dispute or situation, the continuance of which is likely to endanger peace and security, the Security Council may recommend appropriate procedures or methods of settlement. If all the parties to any such dispute so request, the Security Council may recommend terms of peaceful settlement.
7. Enquiry power: The Security Council may investigate not only any kind of dispute, but also ‘situations’, which are such that they may lead to international friction (wearing away) or give rise to a dispute, in order to determine whether the dispute or ‘situation’ is likely to endanger peace and security.
8. Preventive measures: Security Council is also responsible to take preventive or enforcement action to maintain peace and security.
9. Regional agreements: Security Council has to take care of regional agencies and regional agreement.
10. Control and supervision: Security Council is responsible for the control and supervision of trust territories classified as ‘strategic areas’.
11. Regulation of the members: The admission, suspension, and expulsion of members.
12. Legislative powers: Security Council has power to amend the Charter.
13. Election of the judges: The election in conjunction with the General Assembly, of the fifteen judges of the International Court of Justice.
14. Voting power: Each member of the Security Council has one vote.
15. Veto power: Members have also veto power as to binding on all the members of the United Nations.
1. Definition of International Law – different writers.
2. Definition of International Law – with reference to International Court of Justice.
3. Legal status of International Law.
against International Law –
5. Theory of Anti-writers – enforcement of superior to inferior, compel to obey, punishable. No such compulsion. Just rule of morality.
6. Arguments against International Law.
(1) Contractual constitution.
(2) Lack of enforcement power.
(3) Lack of interpretation.
7. Writers in favour if International Law – Oppenheim, Lawrence, Han, Brownlie, Starke.
8. Arguments in favour of International Law.
(1) Enforcement powers – public opinion and mutual interest of states.
(2) Hostile power also takes its support.
(3) State interpretation.
(4) Resemblance as to municipal law upon violence.
(5) Part of municipal law.
(6) International Court of Justice – part of manifesto.
(7) Assistance in problem solving.
(8) Agreements as legislature.
(9) Power of sanctions.
(10) Military action.
(11) Decision of states’ disputes.
9. Demerits of International Law.
(1) Absence of legislature.
(2) Lack of enforcement power.
(3) Ambiguous law.
(4) Slow pace of progress or development.
(5) Non-conformity with modern requirements.
(6) Limited jurisdiction of International Court of Justice.
(7) Non-accession on municipal matters.
(8) Limited law.
Importance and base of International Law.
Importance of International Law:
1. Achievement of common interest.
2. Economic and social progress or development.
3. Establishment of peace and order.
4. Role in constitution of civilized society.
5. Recognition of states’ individuality.
6. Conclusion of complexity.
7. Assurance of interference of states’ rights.
8. Importance of states’ interests.
9. Amendment and renewal as and when required.
10. Security assurance of states rights.
Base of International Law:
1. Consent theory:
(1) International Law – rules and regulations, recognition at will.
(2) Consent as integral part of international treaties and agreements.
(3) Kinds of consents:
(i) Direct consents – in agreement and treaties.
(ii) Indirect consents – in customs, mutual relationship.
(4) Criticism of consent theory:
(i) Writers – Starke, Brownlie, Sir Host.
(ii) Non-explanation of compliance.
(iii) Acceptance as law – not for facility.
(iv) Compulsion of International Law – no one may escape.
2. Basic rights’ theory:
(i) Writers – Starke, Finwick, Brownlie, Sir Host.
(ii) Result of natural age.
(iii) Emphasize of basic rights.
Criticism on basic rights:
(i) Worn out or outdated theory.
(ii) Non-practicable in modern age.
(iii) Obstruction in healthier and international matters.
Sources of International Law:
1. Kinds of sources of International Law:
(1) Formal sources of International Law.
(2) Material sources on International Law.
2. Sources – International Court of Justice Article 38.
(1) Treaties and conventions.
(3) General principles – civilized states.
(4) Judicial decisions and juristic opinion.
3. Material sources in general.
(1) Customs and conventions.
(ii) Treaty contracts.
(3) Decision of courts and arbitrators.
(4) Decisions of municipal courts.
(5) Juristic opinion.
(6) Decision of International Organizations.
4. Customs and conventions.
(2) Emergence – conduct
(3) Conditions to form customs.
(i) Continue practice or exercise.
(ii) Practice of multi-states.
(iii) Long historical process.
(iv) Increased value of common conduct.
(v) Recognition of stares and practice.
(vi) Obligatory practice of states.
5. Difference in common and municipal custom.
(1) Enforceability. States – subjects or not. Maritime laws – local or territorial – only few states.
(2) Kinds of treaties.
(3) Kinds of treaties by source of International Law.
(a) Form law as municipal law.
(b) Alteration pre-existed treaties.
(c) All treaties are not law making.
(e) Red Cross, protection of Industrial Property, Currency, rights and Measures, International Navigation, Space Rights.
(ii) Treaty contracts.
(a) Not internal status but universal.
(b) Partial enforceability but universal likes extradition.
(c) Written and more important than customs.
(d) International Court of Justice decision 1923, priority of treaty contract over customs.
7. Decisions of courts and arbitrators.
(1) Form rule for International Law.
(2) Enforceability at will.
(3) Guidance for municipal courts.
(4) Important role of arbitrators – International Court of Justice gets guideline.
(5) New laws made – boundaries, sovereignty, state territory, responsibility, and slavery.
(6) Criticism of arbitrators should not lawmaking.
8. Juristic opinion.
(2) Practice of US Supreme Court.
(3) International Court of Justice – 38 – order for utilization.
(4) Only opinion of recognized jurists internationally.
9. Decisions of International Organizations.
(2) Power to decide rights and obligation of states – UNO.
(3) General Assembly Resolution – Right of self-determination.
(4) Interpretation for subsidiaries.
(5) Semi judicial decisions – European Economic Council.
(6) Effects of experts.
10. Decision of municipal courts.
(1) Precedent – sometime.
Blockade (barrier), prohibitions of war,
continue sea navigation are examples –
(3) Extradition, state recognition, municipal decisions.