INTERNATIONAL LAW-I
UNIT 1: HISTORICAL AND THEORETICAL FOUNDATION OF INTERNATIONAL
LAW
1.1: Definition, origin and development of International Law
1. The words International Law were used for the first time by Jeremy Bentham in
1780. Since then they have been used to denote a body of rules and principles
which regulate the relations amongst members of the international community.
2. International community includes within its ambit- states, international
organisations, individuals and certain non-state entities.
Traditional Definition of International Law
1. Oppenheim in 1905 defined international law as, “The Law of Nations or
International Law is the name for a body of customary and conventional rules
which are considered legally binding by civilised states in their intercourse with
each other.”
2. This definition was criticised on several grounds and thus has become obsolete
and inadequate:
i.
With change in time international law covered not only states but also
international organisations, individuals etc which have certain rights and
duties. This was affirmed by the International Court of Justice in an advisory
opinion.
ii. It was recognised that international law does not only consist of customs and
conventions but also general principles of law recognised by civilised states.
This has been stated in Article 38 of the Statute of International Court of
Justice.
iii. The use of the term ‘civilised states’ was also criticised as earlier only
western Christian states were considered to be civilised states. Neither history
nor culture was a criterion to be considered as civilised states. (later on the
word civilised was deleted)
iv. By referring to international law as a ‘body of rules’, it gave it a very stagnant
and static nature which proved to be inadequate as international law was
dynamic and was continuously being reinterpreted and reshaped from time to
time both nationally and internationally.
v. Another criticism was that international law is not considered to be binding
and it was upto the states to incorporate such law into the municipal law and
make it binding.
3. Thus, certain changes were made to the definition and a Modern Definition of
international law was given by making changes to the definition by Oppenheim.
These changes were incorporated in the 9th edition of Oppenheim’s book (1992)
edited by Sir Robert Jennings and Sir Arthur Watts.
4. The definition now is, “International law is the body of rules which are legally
binding on states in their intercourse with each other. These rules are primarily
those which govern the relation of States, but States are not the only subjects of
international law. International organisations and to some extent also individuals
may be subjects of rights conferred and duties imposed by international law.”
5. Fenwick defined international law as, “the body of general principles and specific
rules which are binding upon the members of the international community in their
mutual relations.”
6. J.G.Starke, “ International law may be defined as that bosy 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 their
relations with each other and includes also:
i.
The rules of law relating to the functioning of international institutions or
organisations, their relations with each other and their relations with States
and individuals;
ii. Certain rules of law relating to individuals and non-State entities so far as the
rights or duties of such individuals are the concern of the international
community.”
This definition was considered appropriate as it takes into considered the
changing character of international law.
7. It can be seen clearly from the above definitions that the individualistic character
of international law is being replaced by the law of social inter-dependence.
1.2 Nature and scope of International Law
International Law is not Law
1. The controversy of whether international law is a true or not is dependent on the
definition of law adopted.
2. If the views of Hobbes, Austin and Pufendorf are subscribed to, then law is the
command of the sovereign and enforced by a superior political authority and
international law cannot be included in the category of law.
3. If the view that law cannot be limited to the rules enacted by a superior political
authority, then international law can be included in the category of law.
4. According to Austin, law is given by a determinate superior political authority to
political inferiors and is backed by coercive enforcement agency. Thus sanction
occupies an important place in the enforcement of law.
5. According to Bentham, Holland, Brown etc, deny the legal character of
international law. Further, international law lacks legislative machinery, executive
machinery and potent judiciary and above all the sanction that is required for the
enforcement of international law.
6. It is thus concluded that state law and international law exist in their own way.
7. In case of international law, conventions, treaties etc can be put into force only by
way of consent. Therefore, unless states give their consent to international law,
there can be no obligation on their part to follow the law.
8. There is no sanction that backs international law. Sanction in law primarily means
punishment in case the law has been breached which is lacking in international
law.
9. Hence it may be said that international law is not law but positive morality. It is
merely followed by habit of action.
10. This theory has been criticised. It is said that if the above definition of law is
accepted in the context of international law, then law will be limited to that which
is enacted by the sovereign legislature but there are other sources of law such as
customs, usages, precedents, unwritten laws like the laws of England etc.
11. Some decisions are also followed by way of habit and also because of the force of
law behind them.
12. Laws are observed not only because of sanctions of law but by way of habit.
Therefore, punishment is not the only way by which laws are followed. Inner
morality further strengthens laws in the form of positive morality and hence is
followed.
International Law is Law
1. Most jurists now subscribe to the fact that international law is law and sanction is
not an essential element of law. Even if it is an essential element it would be
wrong to say that international law does not have any force behind it.
2. The rules of law cannot be limited to enactments of the sovereign authority. In
many communities a system of law existed even before these communities
formed a legislative authority. According to Starke, such law does not differ from
state laws which have a true legislative authority.
3. In practice international law is regarded as law by the States which consider it to
be binding upon them.
4. Today, there exists a community of states and also various institutions which play
a vital role in modelling international law.
5. It is often said that international law is frequently violated, but it does not lose its
legality as it has true legality.
6. When there are breaches of law, the conduct is justified on legal rules and not on
moral grounds. For example, whenever a state is responsible to pay compensation
or damages this is done on a legal basis rather than moral grounds.
7. International law is not limited to treaties, and it includes judicial decisions,
conventions, customs, usages, judicial writings etc. which a State feels bound to
oblige.
8. If there is a breach of international law by any state it may be publicised and have
either of the consequences- (i) The state which violates the law will be under the
constant vigilance of the other States and therefore their behaviour may be
moulded. (ii) International law will be widely recognised. Courts may apply such
law on the basis of true legality.
9. Some jurists are of the view that in international law there is no need for an
executive, a legislature or judiciary. It is enough if the principles are followed and
accepted by States in their relations with each other.
10. International legislations- Geneva Conventions, Hague Conventions etc. exist but
there is no specific legislature. The treaties exist and are followed by the states.
The General Assembly may be regarded as the legislative body.
11. The Security Council is the executive body. If the ICJ’s rulings are not followed
then the Security Council can be approached.
12. The ICJ does not act as a World Court and neither are its rulings binding but the
ICJ exists.
13. Sanctions back the international law. It is for the Security Council to decide
breach of peace etc. then various measures under Chapter VII may be taken where
peaceful means are first resorted to and then later on as the last means war is
resorted to.
Conclusion: International Law is a Weak Law
1. According to Starke, “International law is a law but it is a weak law.” This is in
comparison to municipal law.
2. International law i.e. treaties are comparable to municipal laws. Treaties serve the
purpose of the State even though they are different in enforcement.
3. Treaties are based on consent whereas state laws are not. Most treaties are like
international legislations with the consent of the General Assembly acting as the
World Parliament.
4. Every state has its own court whereas ICJ is a single court for the whole world
without any jurisdiction. When the states go to the ICJ they have to give consent
before the ICJ can adjudicate and do not have compulsory jurisdiction.
5. The Security Council is a controversial political body. Therefore, enforcement of
ICJ’s decisions can be done through the Security Council which is not effective or
adequate due to the veto power existing in the Security Council which is not so in
the States.
6. Stronger states generally tend to suppress the weaker states.
7. The sanctions behind international law are very weak.
8. It cannot intervene in matters which are within domestic jurisdiction.
9. International law has failed to maintain peace and order in the world.
10. Many rules of international law are uncertain and vague.
1.3 Public International Law and Private International Law
1. Public international law holds the same definition as international law. Private
international law on the other hand is that branch of law which decides law
applicable in issues or disputes involving one or more nation, a foreign element
and determines the court which will have jurisdiction to decide the issue.
2. It is more appropriately called “Conflict of Laws”
3. Difference between Public international law and Private international law
Public international law
It deals with states for the major part and
with individuals for the lesser part
Public law may not always be a part of
municipal law
The rules in such law have general
application for all the states.
It does not have anything to do with
determining which law would apply in a
case having foreign element
It does not say anything about a court’s
jurisdiction
It confers absolute rights and its breach
constitutes whatever involves or justifies
war
It comprises mainly of the rules
recognised by the states in their relation
with each other arising out of
international customs and treaties.
Evolved through the consent of states
Private international law
It deals with individuals
It is always a part of municipal law.
It may have different application with
different states.
It determines which law would apply in a
case having a foreign element
It determines which court will have
jurisdiction the issue in question
It does not at all confer absolute rights.
Rules are framed by the legislature of a
State and recognised and developed by
state courts.
Consent of states not required
Some public international law may be
reflected in private law
Definition
Some private law may transform or
crystallise into public international law.
Definition
1.4 Theories as to the Basis of International Law
1. There are two main theories which form the basis of international law: Theories
as to the law of nature and Positivism.
2. Theories as to the Law of Nature
i.
According to the exponents of this theory, international law is a part of the
law of nature and this is why states follow it as the law of nature is a
higher law.
ii.
It is natural law that has conferred binding force on international law.
iii.
In the beginning the law of nature was considered to be associated with
religion. By the 17th century, jurists like Grotius secularised the concept of
the law of nature.
iv.
Grotius (father of law of nations) stated that natural law was the dictate of
right reason.
v.
His followers applied natural law as the ideal law founded on the nature of
man as a rational being.
vi.
International law was considered binding as it was natural law applied to
special circumstances.
vii.
The naturalists considered the law of nations as a part of international law.
Some of the naturalists like Hobbes, Puffendorf etc. divided law intonatural law of individuals and natural law of states. Outside this there
existed no positive law.
viii.
It was believed that natural law is an independent source of international
law apart from customs.
ix.
Principles of natural law are necessary for the survival of man and
civilisation. It is necessary for the maintenance of peace and harmony in
the world.
x.
Recognition of natural law is inherent due to the needs of human nature
and also by experience.
xi.
Thus the peace and order in the human community can be maintained only
when human interests are protected. This means that law should aim at
finding human needs and necessities. For example, the Stockholm
Declaration; New Economic Order which aims at securing the well being
of all people and filling in the gaps between the developed and developing
countries.
xii.
Each follower of natural law gives a different definition to the term natural
law. Different meanings are given by different jurists and hence it is a very
vague and uncertain in the international community.
xiii.
This theory is not based on reality and actual practices of the states and
hence is the biggest demerit of this theory.
xiv.
However, natural law has greatly influenced the growth of natural law.
3. Positivism
i.
Positivists base their theory on the actual practices of the states. It is a will
of the states that is the main source of international law.
ii.
International law is said to be binding because states have given their
consent to the rules of international law.
iii.
Although states are sovereign, yet by the theory of auto-limitation, they
have limited their power and given way to international rules. This theory
is based on the will of the states and independence and sovereignty of the
states, which is what international law and positivism is based on.
iv.
In international law, state has a personality of its own and also is capable
of possessing its own will through legislation, executive action and
judicial decisions. It is an international person.
v.
The will also signifies consent to legal obligations which the treaty binds
the state with.
vi.
The states consent is important for the law to be ratified.
vii.
The binding force of international law and its basis is said to be pacta sunt
servanda- agreements entered into by the states must be respected and
followed in good faith.
viii.
This theory fails to explain the binding effect of international customary
rules of international law.
Criticism:
ix.
With respect to the will of the states, when it becomes decisive is
something one cannot be sure of. Hence the common will of the states in
case of international law is not conclusive.
x.
Consent is important but all rules of international law need not be based
on consent and may be based on habitual obedience or custom. There may
also be implied consent. For example, when one state takes over the
territory of another state, its rights are taken but the liabilities of such state
are not incurred.
xi.
Positivism is also supported by judicial approach. In the Asylum Case, the
court observed that Columbia wanted to establish a customary rule that it
could grant diplomatic asylum to Torres. The court wanted Columbia to
prove it by way of state practices which were binding on the court. Thus
the court can be said to have given effect to positivism.
xii.
International law is binding due to the existence of states and the
obligations arising thereof and also because of the interest of the state
which each state tends to secure. The days of silent suffering are said to be
gone and the voices of developing countries are being heard.
xiii.
This theory fails to explain the concept of consent when a new state enters
the international community.
xiv.
The concept of consent which the positivist theory is based on is severely
criticised by the jurists.
xv.
The ‘general principles of law’ under article 38 of the statute of the ICJ
remains unexplained by the positivists.
Despite the criticism, this theory provides a realistic outlook towards international
law.
True Basis of International Law
1. According to Starke, there is no specific theory capable of explaining the true
basis of international law.
2. There are many principles and theories which form the basis of international law
and all need to be taken into consideration.
3. Theory of Consent:
i.
According to this theory States observe rules of international law because
they have given their consent for them.
ii. This is based on the positivists view and been criticised. This theory fails to
explain the basis of international law.
iii. Another criticism is that with respect to customary riles, it is not necessary for
states to give their consent as the basis of implied consent in this context is
far from correct.
iv. It fails to explain the recognition of a new state.
v. It fails to explain the true basis of international law even if distort facts and
try to fit them in the theory.
4. Auto-Limitation Theory:
i.
This theory is also based on consent and fails to explain the basis of
international law.
ii. It is based on the presumption that every state has a will.
iii. Moreover, auto limitation is no limitation at all.
5. Pacta Sunt Servanda:
i.
The binding force of international law is founded on the fundamental
principles known as pacta sunt servanda which means that the agreements
entered into by the states must be followed in good faith.
ii. This principle is fundamental and very important in international law but
fails to explain the binding force of customary rules of international law.
6. Theory of Fundamental Rights:
i.
This theory is based on the naturalistic viewpoint.
ii. According to this theory, before the existence of states man used to live in a
natural state and possessed some fundamental rights such as right to
independence, equality, self preservation etc.
iii. It is contended that like man, states also possessed these fundamental rights
because there is no authority over and above that of a State.
iv. This theory was also criticised and fails to explain the true basis of
international law. Following are the criticisms:
a) When a new state is admitted into the international community, according
to this theory it brings with it certain fundamental rights which are
inherent. Such rights are meaningless unless and until there is a legal
system that confers validity on them.
b) This theory lays more emphasis on the freedom of the states rather than
on co-operation and social relations with other states. The latter remains
restricted which may pose a problem.
c) This theory regards right to equality, self preservation etc as natural
rights. But in reality these rights are a result of historical development.
7. It can be therefore concluded that the true basis of international law is statehood.
International law is binding on states because they are states and thus rules of
international law become applicable to them.
Whether International Law is the vanishing point of jurisprudence?
1. Holland was of the view that international law is the vanishing point of
jurisprudence. This was because international law lacks sanction and there is no
legislature executive, or judiciary to frame, apply and interpret international law.
2. This view was subscribed to by Austin.
3. This view was held to be incorrect and reasons were stated for the same.
4. Sanction is not an essential element of international law. Moreover, there were
sanctions behind international law but were weaker than those behind municipal
law but were not altogether lacking. For example, if there is a threat to
international peace and security, the Security Council can take necessary action
for the same. Besides this, the decisions in some matters of the ICJ will be
binding.
5. A number of other sanctions in the form of international organisations like WHO,
ILO, etc exist and have their own means and ways to enforce the law and ensure it
observance.
6. Moreover, public opinion is the ultimate sanction behind international law or for
that matter any law.
7. Thus, it would be incorrect to say that there is no sanction behind international
law.
8. Holland continues to contend that there is no Judge to decide international
disputes and that the rules of international law are followed due to courtesy.
9. This is untrue as there is an International Court of Justice, whose role may not be
equivalent to that of a municipal court but is nevertheless there and decisions
made by it can be made binding in certain cases.
10. Further, if a party to a dispute does not comply with the decision of the ICJ,
recourse may be taken to the Security Council which may give effect or make
recommendations to apply the judgment.
11. As far as jurisdiction is concerned, the ICJ has compulsory jurisdiction in certain
cases such as: interpretation of a treaty; any question of international law; breach
of international obligations; the nature and extent of reparation required for the
breach of international law. Decisions of the court have more often than not been
respected and implemented.
12. The General Assembly makes various resolutions and agreements which may be
entered into by a state.
13. Many states conform to international law by asking its officers, courts and
nationals to act in accordance with the obligations imposed by international law.
14. The Security Council acts as an executive authority to check whether the laws
framed are followed by all the states. It has wide powers to declare sanctions
against states which are guilty of violating the provisions of the UN Charter.
15. On basis of the above discussion it may be said that international law is in fact
law and is not the vanishing point of jurisprudence.
Questions:
1. Theoretical Foundation of International Law- Theories of International Law
2. Theoretical Basis of International Law- Natural Law and Positive Law
UNIT II: SOURCES OF INTERNATIONAL LAW
1. According to Starke; the material sources of international law may be defined as
the actual materials from which an international lawyer determines the rule
applicable to a given situation
2. The term ‘source’ refers to methods or procedures by which international law is
created
3. The significance of studying sources of international law is that law has been
deduced from the material source of international law by logic and reason (to
establish rule of law).
4. Classification of sources:
i.
Formal sources- direct source, those legal procedures and methods for the
creation of rules of general application which are legally binding on the
addressee
ii. Material sources- provide evidence for the existence of rules, which when
proved, have the status of legally binding rules of general application
5. Sources of law concern the particular rules which constitute the system and the
processes by which the rules become identifiable as rules of law
6. The Statute of International Court of Justice mentions the sources of International
law, they are not mentioned anywhere except in Art 38 of the statute. It mentions
the following sources:
i.
Primary sources- international conventions, customs and general
principles of law recognised by civilised nations
ii. Subsidiary sources- judicial decisions and juristic work
7. The 6th source that is decisions and determinations of the organs of international
institutions is absent from Art 38 as it was not in a sufficiently developed state
when the Art was drafted and accepted.
8. Art 38 gives an order for use of sources of international law;
i.
International conventions
ii. International customs
iii. General principles of law recognised by civilised nations
iv.
Juristic decisions and juristic works
9. In Nicaragua v. USA; the ICJ held by majority that sources of international law
are not hierarchical but necessarily complimentary and inter-related.
2.1: CUSTOMS
1. International customs used to be the most important source of international law in
the past but its importance has lessened in modern times.
2. Custom is a habit which has been repeated for a long time and has ultimately
assumed the force of law.
3. Usage is the earlier stage of the development of a custom. Usage means those
habits which have been often repeated by the states.
4. Custom beings where usage ends. Usages may be inconsistent and opposed to
each other, but such is not the case with customs.
5. According to Vinet; “ a custom in the intendment of law is such a usage as hath
obtained the force of law”
6. Customary rules of international law have developed in 3 circumstances:
i.
Diplomatic relations between states
ii. Practice of organs of international institutions
iii. State laws, decisions of state’s courts and state’s parliamentary or
administrative practices.
7. Elements of customs:
i.
Evidence of general practice accepted as law
Long duration is an essential element of a custom in municipal law but it
is not necessary for an international custom. Art 38 of ICJ directs world
court to apply international customs as evidence of general practice
accepted as law.
The practice of states accepting the practice concerned as a law is
important and in international law customs emerge in short durations. E.g.
customs relating to sovereignty over air space and the continental shelf.
ii. Uniformity and consistency- the customs should be substantially uniform,
no need for completer uniformity and they need to be consistent.
iii. Generality of practice- though universality is not necessary, should have
been generally observed or repeated by a numerous number of states
iv.
Opinio juris neccesitatis
As pointed out in North Sea Continental Shelf cases; customary practice,
even when it is general and consistent is not a customary law unless an
opinio juris is present, that is to say, unless the practice is recognised as
being required by international law.
It is this sense of law of legal obligation as distinguished for motives of
fairness, convenience or morality that underlies customary law.
8. Importance of customs as a source of international law: there is a marked decline
in the importance of customs in modern day mainly due to the slow process of
development of new customs, though sometimes they even develop very fast like
principles related to sovereignty over air space and continental shelf.
But in view of bringing about an accelerated change in international community,
customs have become an inadequate means for bringing about the desired changes
and development of international law.
In accordance with changing times and circumstances it is sources like
international treaties which can make the rapid change. E.g. Four Geneva
conventions on Law of the Sea, Vienna convention on Law of Treaties etc.They
have thus acquired a second place to international treaties.
9. Cases:
i.
Asylum case- court held that local or regional custom is established in such
a manner that it has become binding on the other party.
ii. Right to passage to India (Portugal v. India)- Pointed out that when in
regard to any matter or practice, two states follow it repeatedly for a long
period of time, it becomes binding customary rule.
iii. West Rand Central Gold Mining co. ltd v. R- test regarding recognition of
custom was laid down. Lay down that for valid international custom it is
necessary that it should be proved by satisfactory evidence that the custom
is of such nature that it has received the general consent of the states and
no civilised nation shall oppose it.
10. In certain cases usage may become a custom, but may not in certain others.
i.
There is no rule of international law or indeed any rule at all which
determines when usage shall become a custom
ii. Together with usage there are other factors like state interests, historical
events, general opinions etc which give rise to an international custom. An
international custom may even develop without usage.
iii. Usage reflects a customary rule if it is connected with a practically
universal opinion juris.
2.2: TREATIES AND CONVENTIONS
1. In modern times, international treaties are the most important source of
international law as in this source the states have found a deliberate method of
creating binding international law.
2. Art 38 of the statute of ICJ lists international conventions whether general or
particular, establishing rules expressly recognised by the consenting states as the
first source of international law.
3. ‘Conventions’ is used in a general and inclusive sense, and would seem to apply
to any treaty, convention, protocol or agreement regardless of its title or form. A
convention may be:
i.
General: either because of the number of parties to it, or because of the
character of its contents;
ii. Particular: because of limited number of members or because of the
limited character of its subject matter.
4. When an International Tribunal decides an international dispute then it gives a
decision based upon the provisions of the international treaty (if any relevant
treaty present on that point).
5. Art 2 of the Vienna Convention on the Law of the Treaties, 1969; ‘a treaty is an
agreement whereby two or more states establish or seek to establish relationship
between them governed by international law’.
6. Art 3 adds that the fact that the present convention does not apply to international
agreements concluded between states and other subjects of international law or to
international agreements not in written form shall not affect:
i.
The legal force of such agreements
ii. The application of them to any of the rules set forth in the present
convention to which they would be subject under international law
independently of the convention
iii. The application of the convention to the relations of states as between
themselves under international agreements as to which other subjects of
international law are also parties.
7. International treaties may be divided into:
i.
Treaty contracts
ii. Law-making treatiesa. Treaties enunciating the rules of universal international law
b. Those enunciating general principles
8. Treaty contracts- these are treaties entered into by two or more states and the
provisions of the treaty are binding on the parties to the treaty. These are said to
be a source of international law as they held in the development of customary
rules of international law.
9. Law-making treaties: the provisions of these are directly the source of
international law and are those entered into by a large number of states. They
perform the same functions in the international field as legislations do in the state
field. They are the means through which international law can be adapted to in
accordance with the changing times and circumstances.
10. Law making treaties are further divided into:
i.
Treaties enunciating the rules of universal international law- treaties
signed by a majority of states like the UN charter;
ii. Those enunciating from general principles- treaties entered into by a large
number of countries like 1958 Geneva Convention on the law of the Sea
and Vienna Convention 1969 on Law of treaties.
2.3: GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILIZED NATIONS
1. This is an important source of law through which international law adapts itself in
accordance with the changing times and circumstances.
2. According to Lord McNair; it describes an inexhaustible reservoir of legal
principles from which tribunals can enrich and develop international law.
3. E.gs. are Res Judicata and Estoppel
4. These principles are recognised by most civilised states, and when the court finds
that they have general recognition it may apply it as a principle of international
law.
5. In R. Key case; court rules that international law is based on justice, equity and
good conscience which have been accepted through long practice by nations.
6. In United States v. Schooner; stated that international law should be based on the
general principles of law recognised by civilised states. This was in a decision
relating to abolition of system of slavery.
7. In the case of diversion of water from Muese, the PCIJ applied res judicata and
estoppel.
8. In Chorzow Factory (Indemnity case); not only applied res judicata but stated that
one who violates a rule is liable to make reparation.
9. In Mavrommatis Palestine Concessions case the court applied the general
principles of subrogation.
10. In Case concerning the Temple of Preach Vihear and Barcelona Traction case the
court recognised and applied principle of estoppel.
11. International courts have recognised and codified the following general
principles:
i.
Good faith
ii. Responsibility
iii. In the absence of any express provisions of the contrary, every court has a
right to determine the limits of its own jurisdiction
iv.
v.
vi.
A party to a dispute cannot himself be an arbitrator or judge
Res judicata
In any judicial proceeding, the court shall give proper and equal
opportunity to hearing both parties.
2.4: JUDICIAL DECISIONS
1. The ICJ is the main International Justice Tribunal and was established as a
successor of the Permanent Court of Justice.
2. Art 59 of the Statute of the ICJ makes it clear that the decisions of the court will
have no binding effect except between parties and in respect to the particular case.
The earlier decisions of the court are not binding on it and it can deviate from the
same.
3. The court usually does not deviate from its earlier decisions except in very special
circumstances. Thus while in principle it does not follow the doctrine of
precedent, in practise it ordinarily does.
4. The advisory opinion of the ICJ is not binding at all, but it clarifies the rule of
international law on a particular point or matter.
5. According to Art 38(1)(d), subject to the provisions of Art 59 judicial decisions
are subsidiary means for the determination of rule of law. Thus they are not direct
sources of law but are indirect or subsidiary sources of international law.
6. State judicial decisions may also become rules of international law in the
following ways:
i.
State judicial decisions are treated as weighty precedents. Held in Bentzon
v. Boyle; that the decisions of national courts show how the law of the
nations in the given case is understood in the nation, will be considered in
adopting the rule which is to prevail in such case
ii. Decisions of state courts may become the customary rule of the
international law in the same way as customs are developed
7. Some jurists believe that decisions of the International Arbitrary Tribunal cannot
be treated as a source of international law as they believe that the arbitrators in
most cases act like mediators and diplomats rather than judges. The kutch award
(1968) is an e.g.
8. However, some of the decisions of the Permanent Court of Arbitration are treated
as weighty precedent and can be regarded as source of international law.
9. One of the reasons usually given for its inadequacy was that the awards rendered
by its tribunals were not legal in form and substance and confuse law with
diplomatic solutions to please both parties.
2.5: JURISTIC WORKS
1. Juristic works cannot be treated as independent source of international law and
hence are not direct sources but instrumental in development of international
customs.
2. According to Art 38 of the ICJ the works of highly qualified jurists are subsidiary
means for the determination of the rules of international law.
3. The importance of the works of jurists has been stressed on in the Paquete Habana
case; that where in deciding a case, if a court does not find any treaty or
legislative act or any established custom, the court may take the help of opinion of
the jurists as subsidiary means for the determination of rules of international law.
2.6: RESOLUTIONS OF GENERAL ASSEMBLY AND OTHER INTERNATIONAL
INSTITUTIONS
1. Before the setting up of the League of Nations, International customs and
conventions were the main source of international law.
2. The Statue of PCIJ under Art 38 did not mention decisions or determinations of
organs of international institutions as a source of law, as international
organisations had not assumed such an important role as they do now.
3. The evolution of international organisation represents a significant stage in the
history and development of international law. International organisations in the:
i.
Wider sense; is the process of organising complexity of international
relations
ii. Narrow sense; is an international institution based on multilateral
international agreement entered into by sovereign states, its organs having
autonomy of will, having permanent organs and distinct from its member
states.
4. Development of international organisation before the League of nations can be
divided into 3 stages:
i.
The concert of Europe, a loose association of great powers of Europe
ii. Two Hague Conferences (Hague system) contains the seeds of present GA
iii. Establishment of public international unions like Universal Postal Union
and International Telegraph Union (now specialised agencies of UN)
5. The League of Nations may be described as the first comprehensive experiment in
the development of international organisation which pioneered all aspects of
international organisations. The UN further developed, elaborated and perfected
these systems.
6. The impact of UN and its specialised agencies is evident on every aspect of life
nowdays. FAO comes to rescue of nations and people in case of food scarcity,
WHO incase of health problem etc.
7. After the establishment of the UN, most of the development and codification of
international law has taken place through the instrumentality of international
organisations
8. International Law Commission which not only surveys the whole field of
international law but also prepares drafts and recommendations to these aspects to
GA is a specialised agency of the UN
9. GA adopts such recommendations and recommends the holding of international
conferences for adopting international conventions on various topics.
10. The ICJ has rendered signal service for development of international law is a
judicial organ of the UN. Art 92 of the charter states that ICJ shall be the principal
judicial organ of the UN and shall function in accordance with the annexed statute
which is based on the State of the PCIJ.
11. Although not mentioned in Art 38 of the statute this has become a very important
source of international law and has been recognised in a number of cases.
12. During the Seuz AND Congo crisis UN armed forces were sent under Uniting for
Peace Resolution(1950) and ICJ held that the expenses incurred by UN to be
apportioned among member states of UN by GA, indirectly upholding validity of
Uniting for Peace Resolution.
13. In South West Africa Cases (1966) the world court declared apartheid violative of
international law based on resolutions of the GA condemning apartheid as an
international crime
14. Organs of international institutions may lead to development of international law
in the following ways:
i.
In international matters, their decisions are the intermediate or final steps
in the development of customary rules. E.g. SC can decide whether a
matter is procedural or important helping in development of customary
law on this point.
ii. The resolutions of the organs of the international institutions may be
binding on the members in regard to the internal matters of the institution.
iii. Organs of international institutions can decide the limits of their
competence.
iv.
Sometimes the organs may make interpretations of different provisions of
their constitutional instruments, making it a part of international law.
v.
Some organs are empowered to give quasi-judicial decisions like
European Economic Community. They submit matters to committee of
jurists whose opinion is of great significance and may help in development
of customary international law
vi.
An organ may refer a matter to an international committee of jurists for its
opinion or investigation of a legal problem. The opinion of such
committees bear some weight and authority
15. In Nicaragua v. USA; ICJ relied on resolutions passed by international
organisations and citied them as evidence of existence of customary rules.
16. In case of Effect of Awards for Compensation Made by the UN Administrative
Tribunal; the ICJ upheld tribunal as an independent and truly judicial body
pronouncing final judgements without appeal in its field of functions, and not
merely an advisory organ. Hence, making its judgements binding on the UN and
its members.
17. Some other subsidiary sources of international law are:
i.
International Comity: when a state behaves with another in a certain way,
the latter reciprocates and behaves in the same way. Therefore, mutual
relations between states are often based on the principle of comity, and
international comity has helped develop international law.
ii. State papers: all most all civilised nations have diplomatic relations with
one another and send letters (state papers) to each other in respect of
mutual interest. These papers may be published and reveal certain
principles which are repeatedly followed in mutual intercourse, they also
sometimes help solve conflict or controversy.
iii. State guidance for their officers: the legal advisors of the states are often
referred to as sources of international law as their advice helps solve most
matters of govt of respective states.
iv.
Reason: reason holds an important place and plays a special role in
development of international law. It is said that the law of nations is
founded on justice, equity, convenience and the reasons of the thing and
confirmed by long usage.
v.
Equity and justice: in the Barcelona Traction Case; emphasis was laid on
need for a body of rules and principles of equity in the field of
international law.
18. In modern times more importance has been given to the principles of equity and
justice. There is some evidence of the application of the principles, three such
areas were demonstrated in the North Sea Shelf cases;
i.
The practice of states in their international relations
ii. International customary law
iii. The administration of justice
19. In the North Sea Shelf cases (1969); observed that whatever the legal reasoning of
the court of justice, its decisions must definitely be just and therefore in that sense
equitable.
20. The principles of equity and justice have made their own contribution in the
development and codification of international law. The principles have been
referred time and again in context of New International Economic Order, new
Law of the Sea and in the field of Environment.
2.7: PEREMPTORY NORMS OF INTERNATIONAL LAW: JUS COGENS
1. The provisions relating to jus cogens is one of the most controversial provisions
incorporated in the Vienna Convention on Law of Treaties. Art 53 of the Vienna
convention states that the treaty is void, if at the time of its conclusion, it conflicts
with a peremptory norm of general international law.
2. A peremptory norm of general international law is a norm accepted and
recognised by international community of states as a whole as a norm from which
no derogation is permitted and which can be modified only by a subsequent norm
of general international law having the same character.
3. Art 64 of the Vienna convention is in corollary with Art 53 and states that when a
new peremptory norm of general international law emerges, any existing treaty
which is in conflict with that norm becomes void and terminates.
4. When the principle of jus cogens was formulated by the International law
Commission it was favoured and held in importance by majority of jurists from
the developing and European countries. Some contended that certain principles
embodied in Art 2 of UN charter possess the character of jus cogens.
5. Though majority of international lawyers from Western Europe expressed
considerable alert. Some stated that international law does not know of any jus
cogens.
6. There was a controversy with respect to the formulation of rule of jus cogens. A
compromise formula was brought forth by a group of African and Asian delegates
led by Nigeria which is incorporated in Art 66 of the Vienna Convention.
7. Art 66 states that if under Art 65 para 3, no solution has been reached within a
period of 12 months following the date on which the objection was raised, any
one of the parties to a dispute concerning the application or interpretation of Art
53 or 64, may by written application submit to the ICJ for a decision unless the
parties by common consent agree to submit the dispute to arbitration.
UNIT 3: RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL
LAW
Significance of Relationship between International Law and Municipal Law
1. To have a better understanding of international law, relationship between
international law and municipal law needs to be established.
2. It is important to know limitations between state law and international law. By
this, it is meant that one should not assume that these are exclusive. There may be
instances where Municipal Courts are faced with international matters and viceversa. States often try to use their own law before international law. Therefore
there are certain limits in each case so that conflicts are avoided or resolved in a
peaceful manner.
3. International law is applied in case of conflict between 2 states, it is the law
between two or more sovereign states. Whereas, state laws are applicable to
individuals, corporations, etc. and operations within the state.
4. There are some practical problems that may arise in the application of state law
and international law regarding which one should prevail. It is of concern whether
state courts can directly apply international law. This can be done if international
law is a part of municipal law and can be applied as municipal law provided they
are adopted, transformed or incorporated. For example, diplomatic immunity may
be given under international law but this can be adopted only when incorporated
in state law
5. International law may be applied when not in conflict with state law. For
example, extradition is governed by bilateral agreements. In India we are guided
by the Indian Extradition Act and therefore any treaty cannot be directly applied
and are governed by the provisions of this act. This is the case with the laws of
sea also.
6. International law may be applied directly when there is no law in the country
existing at the time regarding the issue which has arisen before the court. For
example in the Vishaka case, international law was applied directly.
7. Therefore there is a need to understand state practices to understand how
international law may be applied in these states.
3.1 Theories
1. There are 2 main theories regarding the relationship between international law
and municipal law-Dualism and Monism
2. Two theories have been derived based on the dualism theory- Specific Adoption
Theory and Incorporation Theory
3. Based on the monism theory the delegation theory has been derived.
4. Dualism
i.
According to dualists international law and state law are distinct, separate and
independent legal systems. There are some basic differences between the two
as stated below.
ii. Sources: there is a mark difference between the sources of international law
and state law. State law is derived from the customs of that state, statutes and
precedents are the main sources and individuals consent does not matter.
International law is derived from customs, law making treaties are the main
sources based on consent of the sovereign states.
iii. Subjects: state law governs the relationship between two or more individuals,
corporate bodies, states and individuals, states and corporations which is
recognised by the state legal system. Whereas, international law governs the
relationship between two or more states.
iv. Substance: state law is the law of the sovereign over individuals and the law
is above individuals. International law is between states only. Therefore, no
one is above the states, it is what is understood and accepted by the states.
v. Creation of Law: state law is not created by individuals and international law
is made by the states.
vi. Addressed: state law is applicable to individuals and international law is
applicable to states.
vii. Principle: state law is obeyed on the principle on obedience to the law.
International law is obeyed on pacta sunt servanda i.e. agreements between
states are two be respected in good faith.
viii. Origin: state law originates from statutes, judicial precedents etc and the will
of the state. International law originates customs and treaties and the common
will of the states.
ix. Ambit/Dynamism: State law does not cover as much, the subjects are limited.
International law covers a wide range of subjects and is dynamic.
x. Therefore, both are different theoretically and hence there cannot be any
conflict as they operate in their own way. But this is not so in actuality.
xi. A practical solution to make international law applicable in state law by the
means of transformation, adaptation and incorporation.
5. Transformation Theory:
i.
Transformation is possible when the rules of international law exist in the
state and therefore automatically become a part of the law of the land.
ii. It is from one system to another by way of constitutional process.
iii. In case of treaties, adoption is the only means. This is done by means of
Article 51 C (respect for international law and treaty obligations).
iv. There is no mention of customs and therefore it is assumed that international
law includes customs.
v. Article 253- when treaties are entered into, if the Parliament has made a law
and it can be incorporated. If no law is made, the agreement cannot be
enforced.
vi. For example, an agreement boycotted South Africa. India had signed they
agreement but not incorporated it but on 2 South Africans entering India they
were not allowed to do so.
vii. It is not necessary for the parliament to transform the treaty to be enforced. It
will be enforced if it is implicitly applied by state law. For example, CEDAW
in Vishaka’s Case. Thus all treaties need not undergo transformation.
viii. In any situation when the primacy of law is questioned in the ICJ
international law will be held as supreme and in State courts, state law will be
given primacy. (Mortensen’s case)
6. Specific Adoption Theory:
i.
According to this theory, international law can be enforced in the field of
state law after it has specifically been adopted by state law.
ii. There are several cases where international law is applied in the field of state
law without any specific adoption.
iii. However this view is generally followed with respect to treaties such as the
Vienna Convention, Tokyo Convention etc. which were enacted by the Indian
parliament or there is some sort of transformation, international treaties as
such cannot be enforced in the municipal field.
iv. In Jolly George v. Bank of Cochin, the court held that there cannot be direct
implementation of the ICCPR in India and can be done only if there is some
legislative action with respect to the same.
v. India has adopted many treaties like the Air Hijacking Act, the Anti
Apartheid (UN Convention) Act, etc.
vi. Many principles of international law are however applied in the municipal
field without specific adoption
7. Incorporation theory
i.
Well settled principles of international law are incorporated into state law
automatically or by way of evidence.
8. Orissa State Abolition Act Case: Property was acquired by the government.
Questions were raised with regard to compensation to be paid by the government
for the same under A. 17 of the UDHR. But there was a provision for the same
under A. 31 of the Indian Constitution and hence A. 31 was upheld.
9. There is a difference in state law and international law but only in form and
procedure.
10. Monism:
i.
State law and international law are not two separate legal systems but a part
of the same legal system of legal rules.
ii. They are two different aspects of the same legal system. Here the legal
system is said to be a coin having two sides- international law and state law.
iii. The legal rules i.e. international law and state law are applicable to
individuals. State law is directly applicable to individuals and international
law is applicable to states which is in turn indirectly applicable to individuals.
iv. It is the individual that is the root of all laws.
v. Theoretically and logically this appears to be the correct theory and is very
difficult to disapprove of. However this is not the actual practices of the
states.
11. Delegation Theory:
i.
This theory presumes that international law is superior. The constitutional
principles of international law delegate to the constitutional machinery of
every state, the right to determine how and when treaty rules can be adopted
and implemented to constitutional principles.
ii. There must exist constitutional principles of international law and delegations
of international law to state machinery are the 2 basic premises of this theory.
iii. This theory cannot stand if there is consent on part of the sovereign states.
iv. The procedures and methods to be adopted by the state is a continuation of
the process which begins with the conclusion of the treaty.
v. Here, there is no transformation but it is only a prolongation of one single act
of creation i.e. creation of law.
3.2 State Practices
Practices followed by the state courts and the extent to which and the manner in which
international law is applied
BRITISH PRACTICES
1. They make a distinction between customary rules and international treaty rules for
the purpose of application.
2. Customary Rules: the judicial authority of Britain is of the view that customary
laws are a part of the law of the land or they are deemed to be so. This is on the
basis of the following conditions/qualifications:
i.
Such customary rules should not be inconsistent with British statutes. If not
so, statutes will prevail.
ii. The house of lords determines the scope of customary laws, and this is final
and binding on all the lower courts. No derogation is permitted and no rule
can be enacted contrary to such judicial decision.
iii. The courts in England have asserted time and again that they are bound by
settled rules of international law. Such settled rules shall not be inconsistent
with statutes or judicial decisions. It may be evidenced by authoritative text
or judicial decisions of other countries.
iv. Act of the state particularly of the Executive i.e. the Crown cannot be
questioned by the Courts as is based on executive authority but should be
done in concurrence with the rules of international law. For example,
annexation, declaration of war etc.
v. Authoritative statements, for example recognition, granting of diplomatic
immunity etc., made by the executive cannot be questioned in Municipal
courts.
vi. When the acts of Parliament are clear and unambiguous, the provisions of the
Act of Parliament will prevail over customary law.
vii. International law need not be proved as a fact.
viii. Parliament Belge Case
Parliament Belge was a Belgian ship which was carrying mails from Belgian
to Liverpool. There was a treaty between the 2 Crowns which granted
immunity to the Belgian sovereign from English Courts.
When the 2 countries’ ships collided, the plea was brought before the English
courts. The Belgians pleaded sovereign immunity on basis of the treaty. This
was not accepted by the English Courts because it was a commercial ship as
per parliamentary law as granted for public ships or warships.
The Crown did not have the power to grant immunity without the guidance of
the parliamentary rules.
3. Treaties
i.
Such practices depend on the relationship between the executive and the
parliament.
ii. Negotiation and signature are matters under the domain of the executive and
matters relating to the ratification and commencement of the treaty are under
the domain of the parliament.
iii. Courts have established certain practices to avoid conflict between the
executive and the parliament.
iv. Treaties which affect private rights of British citizens need parliamentary
approval by way of legislation and not of the Crown.
v. Parliamentary consent is required for treaties that impose additional powers
on the Crown and for additional financial burden on the Crown and thereby
additional taxes to be imposed on citizens.
vi. When the treaty itself provides expressly that parliamentary approval is
required it should be followed.
vii. When treaties involve cessation of territory, it requires parliamentary
legislation.
viii. Beruberi’s Case and Magan Bai Ishwar Bai Patel v. UOI
In both cases, the question of whether parliamentary legislation or approval
was required, with respect to cessation (Kutch award).
Beruberi’s case: there was a need to amend the existing law and
parliamentary law regarding the same was required.
Magan Bai’s Case: The court was of the view that implementation of the
Award did not involve cessation. It is a case of boundary adjustment where
the territory is not ceded, being recognised by international law and state
practice. It can be done normally by the executive authority.
ix. All treaties may not require parliamentary approval by way of legislation. For
example, administrative agreements.
AMERICAN PRACTICE
1. Customary rules
i.
The American practice is similar to that of the British practice.
ii. Customary rules should not be in conflict with state practices or American
statutes.
iii. Once such rule is declared by the judiciary it is binding. Such customs
become a part of the law of the land with certain qualifications.
iv. Such customary rules should not be inconsistent with the American
Constitution.
v. If there is some conflict then the courts resort to harmonious construction
incase of 2 or more interpretations and if there is only one interpretation, then
statutes prevail.
vi. Executive notes and decisions prevail over international customary laws.
2. Treaties
i.
The state practice is based on the provisions of the American constitution.
ii. Article 6 provides that international treaties are considered the supreme
law of the land and hence become a part of the law of the land.
iii. US Courts make a distinction in case of treaties between Self Executing
treaties and Non- Self executing treaties.
iv. Self executing treaties are those which do not require any legislation and
come into effect on their own without any parliamentary legislations.
v. Non self executing treaties need to affirmed and come into effect only
after parliamentary legislation is made.
3. In the US there are well established rules of customary international law and are
followed by municipal courts.
4. Municipal courts are bound by the self executing treaties.
5. No treaty or customary rule should be in conflict with the American Constitution.
INDIAN PRACTICES
1. Article 51 (c) under Chapter IV regarding DPSP’s if read with Article 37, it will
be clear that the provisions under this Chapter are not enforceable.
i.
State shall endeavour to foster respect for international law and international
treaties.
ii. No clear guidance is given to States with regard to international law. No
relationship between state law and international law.
iii. A special reference is made to treaty obligations but no specific reference to
customs. Although, it is assumed that customs are included under
international law.
2. Article 372
i.
British practice is adopted in State courts by virtue of A. 372.
ii. All laws in force before the commencement of the constitution continue to
remain in force unless annulled, repealed etc.
3. Article 395
i.
It lists those acts which existed before the commencement of the
constitution which are not in force anymore.
ii.
British practice is still followed in case of those acts which have not been
annulled or abrogated.
4. Article 253: Laws are enacted to give effect to treaties or conventions or
international conferences by the Parliament.
5. Entry 14 Schedule VII: provides the subject matter on which the Parliament can
enact laws.
6. Even today, British practice prevails in India. Therefore, recognised rules of
customary law are part of the law of the land in India by virtue of A. 372,
provided it is not in conflict with Indian Constitution, statutes and judicial
decisions.
7. They automatically become a part of the law of the land. Sometimes, the courts
may ask for satisfactory evidence of other state practices.
8. Treaties: (same as Britain) they need to be adopted by Parliamentary legislation
and some treaties are self executing and automatically incorporated.
CASE LAWS:
1. State of Madras v. G.G. Menon
Facts:
Mr. And Mrs. Menon came from Singapore and were Members of the High
Legislature and Council. The Singapore Government requested the Indian
Government to extradite them as they were charged under the Fugitive Offences
Act, 1881.
Held:
The court held that the Fugitive Offences Act has not been enacted in India after
independence and therefore India refused to extradite them.
Reasons:
Under the Indian Evidence Act, 1908 it would have been possible but not under
the fugitive Offences Act as it was not applied or adopted by the parliament and
therefore the Indian courts were not bound by it. Therefore it is clear that treaties
need specific adoption or transformation which was not so in this case.
2. Shiv Kumar Sharma v. UOI, 1969
It dealt with the implementation of the Kutch Award. The court was of the view
that they were adjusting boundaries and had nothing to do with cessation and
hence allowed the application of the Award.
3. Magan Bai’s Case, 1969
Here, the Supreme Court was of the same view that in the case of an arbitration
award, it may directly be given by the Executive with regard to boundary
adjustments and required Parliamentary legislation only in the case of cessation.
4. Beruberi’s Case
This case was with respect to exchange of enclaves which clearly was cessation
and hence it was held that parliamentary legislation was required to give effect to
such act.
5. Jolly George Varghese v. Bank of Cochin, 1980
This case explicitly lays down that in order for treaty obligations to arise there
needs to be transformation or adoption of such treaties.
S. 51 of the C.P.C and Article 11 of the ICCPR were in conflict with regard to
contractual obligations and whether one could be put into jail for non-fulfilment
of contractual obligations.
The ICCPR was definite and stated that this could not be done.
The CPC was clear and states that one can be sent to jail if one has the money but
doesn’t pay the money malafidely or he does not have the money.
Krishna Iyer, J. Interpreted the state law and international law harmoniously. He
stated the following:
i.
International law cannot be applied unless transformed into state law.
ii.
Remedy for breach of international law cannot be found in municipal
courts unless made a part of the law of the land.
iii.
International law per se does not have application in the Indian legal
system.
iv.
UDHR sets a common standard and principles to be obliged by everyone
but does not create and obligation to follow it.
v.
Individual citizens cannot complain of human right violation in the
municipal courts unless made a part of the law of the land.
6. Treaties and conventions even after being ratified can only be applied if there is
legislation through constitutional principles made in this regard.
7. International conventions may inspire the judiciary to make law but beyond deep
reverence to such declarations nothing can be done if not legislated upon by the
Parliament.
Unit IV- State in General
4.1 State as a subject of International law
1. A subject of rules is one on which such rules confers certain rights and capacity as
well as imposing certain duties and responsibilities.
2. The general view is that international law deals only with states as subjects as
only the states enter into treaties and are bound by them.
3. There are essentially 3 theories as regards the subjects of international law,
namely(a) States alone are the subjects of international law.
(b) Individuals alone are the subjects of international law.
(c) States are the main subjects of international law but to a limited extent
individuals and non-state entities have certain rights and duties under international
law.
4. As regards the first theory, only states are the subjects of international law as their
conduct is regulated by way of such law.
5. This theory however has been severely criticised. One such ground for criticism is
that international law applies even to pirates and slaves and confers certain rights
upon such individuals.
6. In answer to this, the proponents of the theory state that pirates and slaves are
mere objects of the international law. Their rights come into the picture only when
the state fulfils its obligations under the law.
7. However, the modern view of international law states that nations are not the sole
subjects of international law. This is because it may be not be said that individuals
who form the basis of society are the objects of international law.
8. This view has been reiterated by the ICJ which stated that the UN may bring a
claim against a state for any injury caused to any of its agents while performance
of any of his duties. Thus, it implies that states are not the only subjects of
international law.
9. Exactly opposite of the above theory is that only individuals are subjects of
international law. This view has been championed by jurists like Kelsen who
supports his argument by saying that as a state is a complex legal concept which
involves rules of law applicable to individuals living within a definite territory,
the duties of a state are technically the duties of an individual.
10. He also states that there is no real difference between state law and international
law. The only difference is perhaps with respect to the fact that state law applies
intermediately to individuals while international law applies mediately to them.
11. This view has been criticised on the ground that generally speaking treaties are
entered into between states for rights and obligations between such states.
12. However, even though the traditional view is that only states can be parties to
international proceedings, a number of international instruments have recognised
the procedural capacity of an individual.
13. The same has also been recognised by the Permanent Court of International
Justice (PCIJ) in a case relating to the Postal Service in Danzig. It was stated in
this case that individuals may acquire rights under international treaties provided
that is the intention of the contracting parties.
14. Another instance may be seen of the Convention on Settlement of Investment
Disputes between States and Individuals. This negates Kelsen’s contention that
international law applies to individuals only mediately as the convention deals
with resolution of disputes between states and individuals.
15. Even though an individual possesses substantial rights under international law, he
doesn’t have the required procedural capacity in order to enforce such rights. In
such case, the aid of the state is necessary.
16. The third view is that states, individuals, international organisations and non-state
entities are subjects of international law.
17. Several reasons may be given as to why this view is the most acceptable, namely-
(a) Rights and duties have been conferred on individuals by way of treaties like
the Convention on Human Rights, Convention on Settlement of Investment
disputes between states and nationals of other states.
(b) In the Danzing Railway Official Case, the PCIJ stated that if under any treaty,
the intention of the parties was to grant rights to certain individuals, the same
shall be recognised and enforced by the law.
(c) Even the Geneva Convention on Prisoners of War has conferred certain rights
on such prisoners.
(d) The outcome of the Tokyo and Nuremberg trials have been that international
law may impose certain obligations on individuals. The same has been done under
the Genocide convention as well.
(e) Also, individuals may now claim certain rights against states. An example may
be given of the European Convention on Human Rights (ECHR) which creates
the European Commission (for investigating cases with respect to human rights
violations) and the European Court. However, in order that a case is instituted
before the court, the same must be brought forth by the state. Another example is
that of a person whose human rights have been violated by his state. In such case,
if the state is a member of the UN, the individual may send a petition with respect
to such violation to the UN Commission on Human Rights.
(f) Even international organisations have now been regarded as subjects of
international law as in the ICJ case of ‘Reparation for injuries suffered in the
services of the UN’. (Read previous notes).
(g) Even with respect to international criminal law, certain obligations have been
imposed on individuals as in the case of the Narcotic Drugs Convention, etc.
(h) Further, there are certain treaties conferring rights on minorities such as the
Treaty of Versailles.
4.2 Essential elements of Statehood (Explain)
1. Generally speaking, every state must have a definite territory, population, a
government and must exercise sovereign powers through such government within
its territory over the population/subjects.
2. This has also been stated in Article 1 of the Montevideo Convention, 1933.
3. The convention states that every state must have(a) A permanent population
(b) A defined territory
(c) A government (legitimacy of government is not a question)
(d) Capacity to enter into relations with other states.
4. As per Oppenheim, another element of ‘civilisation’ may be added as the state
becomes an international person because of the same.
4.3 Kinds of States
4.4 Non-state entities
1. There are 5 basic kinds of states/non-state entities, namely(a) Confederations
(b) Federal states
(c) Condominiums
(d) Vassal state
(e) Protectorate state
2. A confederation is formed between independent states for the purpose of
cooperation between such states. The states have independence with respect to
their internal and external matters and the confederation has no international
personality as such. Any state may withdraw from the confederation at any point
of time. An example may be given of the SAARC group of countries.
3. A federation on the other hand is a sovereign state which is formed by the coming
together of several formerly independent states. The federal state has international
personality and exercises control over both the constituent states as well as its
citizens. The states in a federation enjoy autonomy in some respects due to
division of power between the centre and the states. But, they are under the
general control of the Centre and cannot secede from the union easily. Examples
may be given of USA, India, etc.
4. A condominium is an area over which more than one state exercises sovereign
power. An example may be given of New Hebrides over which Britain and France
jointly exercised power from 1914 to 1980, Britain and Egypt over Sudan from
1898 to 1955.
5. A vassal state is one which is under the suzerainty (paramount authority) of
another state. Such a state possesses no importance under international law. It
may be autonomous with respect to its internal matters but its foreign affairs are
completely controlled by the state of which it is a vassal. An example may be
given of Tibet which is a protectorate state as such but in all practicality is a
vassal state of China.
6. A protectorate state is one which although is not independent may enjoy
considerable immunity. It remains a state under international law. An example
may be given of the case of the Ionian ship, wherein it was held that if the
protecting state declares war against another state, the protectorate state is not
required to declare such other state as its enemy. Sikkim was also a protectorate
state.
7. The differences between a vassal state and a protectorate state may be given as
followsVassal State
1. It is autonomous in its internal matters
but external matters are largely controlled
by the state of which it is a vassal.
2. It is not regarded as a member of the
international community.
Protectorate State
1. It generally entrusts matters of security,
defence and external affairs to the
protecting state by way of a treaty.
2. It may become a member of the
international community.
3. It is a semi-sovereign state.
3. It is not completely sovereign and its
sovereignty is generally taken by the state
of which it is a protectorate.
4. It is bound by any treaty entered into by 4. It is not bound by any treaty entered
the state of which it is a vassal.
into by the protecting state. (example of
Ionian ship)
5. It has no separate and independent
5. It may remain a state.
existence under international law.
8. The Vatican City is a wholly independent and sovereign state under the
international law though it is not a member of the UN.
9. All members of the Commonwealth of Nations are independent, sovereign states.
The commonwealth is merely a loose association of independent states.
10. There are also neutral and neutralised states. A neutral state is one which doesn’t
support either of the belligerent states in times of war. A neutralised state on the
other hand whose neutrality is ensured by way of an agreement by way of which
its independence and sovereignty is collectively accepted. Examples of such states
may be given of Switzerland, Austria and Belgium.
11. A neutral state may give up its neutrality at will. However, a neutralised state
cannot do so without violating the agreement.
12. Starke has taken a view that neutralised states may become members of the UN as
under Art.48 of the Charter, the SC may exempt states from taking part in
enforcement action. However, this provision is not mandatory and is based on the
SC’s discretion. Thus, membership of the UN may dilute the neutrality of a state.
UNIT V: RECOGNITION OF A STATE
5.1: DEFINITION
1. There is need for recognition as states are sovereign which implies no state can
impose anything on such states. They are independent.
2. Negative sovereignty is when other states accept the sovereignty of one state. This
is done primarily to establish a relationship with the other states, generally a legal
relationship. This is done by way of recognition for trade, commerce, diplomatic
relations etc.
3. Recognition is a device or mechanism by which a state is enabled to establish a
legal relation with such other states. The act of recognition also leads to the
development and growth of international law as relations between states are
formed and legal consequences develop.
4. Normally the problem of recognition does not arise but may arise:
i.
When old states disappear, combine with other states and new states arise
ii. When a state disintegrates or fragments and a number of new states are
formed like USSR
iii. Colonial territories may acquire independence forming and new state
iv.
Sometimes liberation organisations may emerge which therefore require
recognition
v.
In case the parent govt is changed due to a civil war or rebellion then the
new govt needs to be recognised. This becomes important due to the
recognition by another state of such state in case of the relationship that
exists with nationals living in such states.
5. Oppenheim; “in recognising a state as a member of international community the
existing states declare that in their opinion the new state fulfils the conditions of
statehood as required by international law”.
6. In the Montevideo Convention (1933) the rights and duties of the state were
mentioned and objectives, definition and conditions for statehood were given.
7. The conditions for recognition of new state according to the convention were:
Population, Territory, Government and Capacity to maintain international
obligation
8. Recognition is said to be a political diplomatic function as international law does
not provide how those essential conditions are to be determined but leaves it on
the members of the international community to determine.
9. E.g. Monaco is a small state, Pakistan does not have continuity and India has a
large territory nevertheless they are all recognised states.
10. Fennick: “ by the act of recognition a new state acquires international
personality.”
11. The Institute of International law said; “the act of recognition includes the
acknowledgement of the existence of a definite territory of human society which
is politically organised and is independent in its international relations by which
intention is to treat the new state as a member of international community of
states.”
12. The practical definition was given by Brown; “Recognition is a political
diplomatic function determined by the reason of expediency and state policy.”
13. Sometimes there is instant recognition and sometimes delayed due to various
reasons varying from state to state.
14. USA did not recognise Russia or China for a very long time but it did not mean
they did not exist. Similarly India wanted to recognise Israel but due to good
relations with Israel’s Arab neighbours recognised and established diplomatic
relations with them much later.
15. According to Kelson; “a community needs to be politically organised, have
control over definite territory which has a reasonable degree of permanence and is
independent”. Stability is necessary for permanence to be established.
16. Recognition is a free act, i.e. a political diplomatic act. A state is not compelled to
recognise another state and no such obligations will be carried out. Recognition is
dependent on its economy, practices etc.
17. It is not a legal act as no legal rules exist anywhere and is left purely to the
discretion of the state. Some say it is a legal duty whereas there are others who
think it is not.
18. Parent govt should try and suppress the new govt or rebellion; sometimes the
parent govt has to move out of the country and is called govt in exile.
19. Recognition of a state v. recognition of a govt;
i.
A new state should have the requisites of statehood to be eligible to be
recognised by other states.
ii.
In case of the govt, it should have sufficient control of the territory,
command of the population, able and willing to fulfil international
obligation and must show a degree of permanence and stability.
20. Recognition clearly shows that international relations may be established which
may later be changed into diplomatic relations. Legal consequences are similar to
defacto recognition.
21. Legal consequences of the recognition are the rights and duties of the nationals of
the recognising state within the state; diplomatic relations arise only when de jure
recognition arises.
5.2: THEORIES OF RECOGNITION
1. There are 2 main theories of Recognition:
i.
Constitutive theory
ii. Declaratory theory
Constitutive Theory:
2. Recognition and recognition alone confers the recognised state with rights and
duties under international law. As long as the new state is recognised it has rights
and duties thereby giving it international personality.
3. Holland; “some say that recognition confers maternity on the state.” It is in the
position to enter into international relations or it is eligible to enter international
community.
4. Oppenheim; “a state is and becomes an international person through recognition
only and exclusively.”
5. Launterpacht; “ there is a legal duty to recognise a state if it has acquired the
essentials of statehood.” This does not hold good because the state cannot be
compelled to recognise another state.
6. Criticism:
i.
Recognition is and should be the free will of the recognising state and not
be an obligation to recognise. The act of recognition is a political not legal
act.
ii. It is incorrect to say that if a state is not recognised then it is not in
existence and that it does not have rights and duties. Rights and duties may
exist irrespective of whether state is recognised or not.
7. Bangladesh and China being not recognised did not imply they have no rights and
duties.
8. Art 4 of the UN charter speaks of new states to enter the UN; they should be
peace loving and have international co-operation with other states.
Declaratory Theory:
9. The authority of state or statehood or government exists as such prior to and
independent of recognition. Existence of a state is a matter of fact.
10. The state comes into existence when it fulfils the requirements of statehood.
Recognition is not a pre-condition for the existence of a state.
11. Brierly; “granting of recognition to a new state is not constitutive (essential) but a
declaratory act”
12. A state may exist without being recognised if it exists in fact, (it will exist once it
has the attributes of statehood) then whether or not it has been formally
recognised, it has a right to be treated as a state.
13. Criticism: Recognition is declaratory of an existing fact is not completely correct.
Infact when a state is recognised, it is a declaratory act. But the moment it is
recognised, there ensue legal effects of recognition which may be said to be
constitutive in nature
Conclusion:
14. It can be concluded that recognition is both declaratory as well as constitutive in
nature. It means that once recognition is awarded then certain legal consequences
follow but not otherwise.
15. Oppenheim; “recognition is declaratory of an existing fact but constitutive of
nature as far as legal consequences are concerned”
5.3: KINDS OF RECOGNITION- DE FACTO AND DE JURE
1. There are 2 modes of recognition- de facto and de jure recognition.
2. The practice of states shows that in the first stage State generally give de facto
recognition. Only when they are later satisfied that the recognised state is capable
of fulfilling international obligations, they confer de jure recognition on to it. Its
sometimes said that de facto recognition is a step towards de jure recognition.
De-facto Recognition:
3. Prof. Schwarzenberger; “when a state wants to delay recognition de jure of any
state, it may in the first stage grant de-facto recognition.”
4. De-facto recognition is given because it is doubted that the state recognised may
not be stable or may not be able and willing to fulfil its obligations under
international law.
5. De facto recognition means that the state recognised possesses the elements of
statehood and it is fit to be a subject of international law.
6. Oppenheim; “the de facto recognition of a state or govt takes place when in the
view of the recognising state the new authority although actually independent and
wielding effective powers in the territory under its control, has not acquired
sufficient stability or does not yet offer prospects of complying other
requirements of recognition such as willingness or ability to fulfil international
obligation”
7. Further he also added that de facto recognition is in a sense provisional and liable
to be withdrawn if the absent requirement of recognition fails to materialise
8. Under de facto recognition, diplomatic relations are not established. In
Lauterpacht’s view, de facto recognition shows that the recognising state wants to
establish its relations with the recognised state without establishing diplomatic
relations.
9. De facto recognition is a term which has been used without precision when
properly used to mean the recognition of the de facto character of the govt, it is
objectionable and indeed could be identical with the practice suggested of
extended recognition without resuming diplomatic relations
De-jure Recognition:
10. De jure recognition is granted when in the opinion of the recognising state the
recognised state or its govt possess all the essential requirements of statehood and
is capable of being a member of the international community.
11. According to Brown; “recognition de jure results from an expressed declaration or
from a positive act indicating clearly the intention to grant this recognition, such
as establishment of diplomatic relations.”
12. De jure recognition is final and irrevocable in nature.
13. Prof. H.A. Smith gave three conditions precedent that are required for the grant of
de jure recognition to a new state or new govt. These are:
i.
A reasonable assurance of stability and permanence
ii. The govt should command the general support of the population
iii. It should be able and willing to fulfil international obligations
14. Recognition de jure results from an expressed declaration or from a positive act
indicating clearly the intention to grant recognition such as establishment of
diplomatic relations. De jure recognition once given cannot be taken back.
Distinction between De jure and De facto Recognition:
15. There is something common between de jure and de facto recognition i.e. the act
of recognition which means the existence of all requirements of statehood. It is
presumed that the new state has all characteristics of statehood.
16. Oppenheim says that as far as legislative and other internal acts are concerned
there is hardly any difference between the two recognitions. Same in case of the
legal effect, de facto and de jure govts enjoy same immunities from suits.
17. According to Prof Schwarzenberger; de facto recognition is by nature provisional
and dependent on conditions with which the new entity has to comply without
formal exchange of diplomatic relations. While de jure is complete, implying full
and normal diplomatic relations.
18. Kelsen; de jure recognition is final but de facto recognition is not and may be
withdrawn.
19. Oppenheim; diplomatic courtesies and representations are usually not accorded to
de facto recognition except in extraordinary circumstances occurring in times of
war. The distinction between them in essence that de jure is fullest kind of
recognition while de facto is a lesser degree of recognition.
20. The differences between de jure and de facto recognition are chiefly political and
not legal in nature. Difference mainly;
DE FACTO
DE JURE
Being provisional can be withdrawn
Cannot be withdrawn
Full diplomatic relations cannot be
Full diplomatic relations can be
established
established
Full diplomatic immunities are not
Full diplomatic immunities are
granted to diplomatic representatives
granted to diplomatic representatives
of de facto recognised state
of recognised state
De facto recognised state cannot claim recognised state can claim to receive
to receive the state property situated in the state property situated in the
the territory of recognising state
territory of recognising state
If such property within another states
territory is claimed it can normally be
ignored
Official visits to and official dealings
with the state in relation to its
additional territory which has been
recognised de facto may be kept to the
minimum or avoided altogether
21. In Arantzazu Mendi; held that by exercising de facto administrative control, for
exercising effective administrative control understood to be exercising all the
functions of a sovereign govt. It necessarily implies the ownership and control of
property whether for military or civil purposes, including all vessels. Held that in
present case no disctinction between recognition of the state de facto as opposed
to de jure recognition.
22. In Luther v. Sagor; it was held that there is no difference between de facto and de
jure recognition for the purpose of giving effect to the internal acts of the
recognised authority.
23. In Bank of Ethopia v. Bank of Egypt; court ruled that in view of the fact that the
British govt granted recognition to the Italian govt as being the de facto govt of
the area of Abyssinia, which was under Italian control, effect must be given to an
Italian decree in Abyssinia dissolving the plaintiff bank appointing liquidator.
5.4: DOCTRINES OF RECOGNITION: STIMSON AND ESTRADA
Stimson Doctrine:
1. The Stimson’s doctrine of non-recognition was propounded by Stimson, who was
Secretary of state of USA. He said that under certain circumstances, factual
situations will not be regarded or recognised if the factors that contribute to those
factual situations are related to moral or legal issues.
2. It was based on the principle that legal rights cannot be recognised if brought
about by illegal means. E.g. Japanese invasion of Manchurian.
3. According to the doctrine, recognition granted to any state in violation of an
international treaty particularly the Pact of Paris 1928 (provides for renunciation
of war by national policy) and covenant of League of Nations will be deemed to
be invalid.
4. The doctrine of non-recognising any situation or treaty or agreement brought
about by non-legal means was known as the Stimson doctrine.
5. However the state practices varied and this doctrine did not receive universal
acceptance till 1945 as states refused to accept such obligation and treat
recognition as a discretionary matter and political diplomatic function.
6. E.g. Italian conquest of Ethiopia was recognised by UK, Germany taking over
Czechoslovakia.
7. Soviet Union also made several territorial acquisitions by illegal means like
Finland, Estonia, and Lithonia.
8. After 1945, the doctrine received broader acceptance from the states.
9. The UN charter under Art 2(4) prohibits the use of force that includes war.
Exception to rule is Art 51 which talks about self-defence.
10. The draft declaration of rights and duties of states was prepared by the UN
11. Under the Declaration of principles of international law, Vienna Convention on
Law of Treaties and Montevideo convention; territorial acquisition by use of force
is not recognised.
12. Security Council resolutions are binding on states. There is a case in 1918 where
Israel occupied Jerusalem. This was not recognised by Security Council.
13. In 1982, the administration of Israel over Golan Heights was treated to be of no
international significance.
14. In the matter of Rhodesia, it claimed unilateral independence in Nov 1965 and no
state recognised this particular regime. SC passed a resolution not to accept the
Rhodesian regime.
15. Turkish occupation of Cyprus, more recently Iraq’s occupation of Kuwait.
16. Stimson’s doctrine is a statement of American national policy and came up due to
the happenings of the Far East. (Japan- Manchuria)
17. India’s policy:
i.
It is influenced by political considerations and based on dictates of
national interest. India uses the substantial measures of effectiveness and
in a doubtful situation its policy is to wait and watch.
ii. In certain situations, India also takes extra legal considerations like
security, strategies or policies. India’s policy is in line with other countries
and gives preference to de facto leadership.
iii. India also supported national liberation movement and also has obtained
political freedom and establishment of democratic nature. It has adopted
the broader version of Stimson’s doctrine.
iv.
In Dec 1949, the communist regime of China (People’s Republic of
China) was in position of Mainland China. The earlier govt (Nationalist
govt) left China and occupied the Island of Formosa (Taiwan) which
according to India was not a part of China.
India did not recognise the Nationalist govt in Taiwan as that was a part of
Japan. Also India never favoured colonialism. It recognised the
Communist regime of China as it fulfilled all essential conditions of a
state.
v.
The state of Israel was formed in 1948 and India delayed recognising it by
2 years due to India’s diplomatic relations with its neighbouring Arab
nations.
vi.
When Franco’s power came to authority they took over most of Spanish
territory, the allied powers were not in favour of this and India supported
UN GA resolution opposing membership of Spain to the UN. However, in
1956 India softened its policy and established diplomatic relations with
Spain.
vii.
South Africa was given the mandate of South West Africa (SWA) which
was a former German colony. In 1966, the mandate was revoked but South
Africa did not comply and continued its presence in SWA.
This amounted to illegal presence but the US and other Western powers
secretly encouraged South Africa due to the number of mining companies
operating in Namibia and South Africa was their ally.
India protested colonialism and supported the freedom struggle of
Namibia and held SA’s occupation as illegal.
Estrada Doctrine:
18. Mr. Estrada, the foreign minister of Mexico, propounded the doctrine. He
declared that as regarding the establishment of diplomatic relations with other
states, Mexico govt will be free to determine it with accordance with the facts and
circumstances of each case.
19. Mexico govt considers that after the change of govt in any state through
revolution, a revolutionary govt commands the support of the people; it may
establish diplomatic relations with it.
20. He believed that some countries did not follow the Stimson’s doctrine but the new
regime is in the receiving end and there was a clear impediment on the states in
establishing international relations.
21. Any country which does not support violent behaviour will not recognise such
states that do.
22. Recently such trend has changed; they do not recognise such state but are willing
to establish trade or commercial relations with them like U.K and U.S.
23. British in 1980’s adopted the policy of non-recognition of such states.
24. Focus shifted from formal recognition to informal dealings.
25. The doctrine has been criticised because it disregards rules of international law
and encourages individual appraisal.
5.5: RECOGNITION OF INSURGENCY AND BELLIGERENCY
Insurgency:
1. The term ‘insurgency’ denotes a state of political revolt. It pre-supposes a civil
war. Recognition of insurgency leads to conflict acquiring international character.
2. It is the period between tranquillity and belligerency. It also means a state of
political revolt where insurgents have not acquired status of belligerency.
3. Insurgency is a war of the citizens against the state. Once they are treated as
insurgents, they are not treated as violators of the state.
4. Insurgency implies sustained armed struggle by a group of citizens against an
established order or regime.
5. Conditions for the recognition of insurgency:
i.
Insurgents should have control over considerable part of the territory.
ii. They should have substantial support of people of that territory
iii. Such insurgents should be capable and willing to fulfil international
obligations.
6. Effects of recognition:
i.
Insurgents are not treated as pirates
ii. They are not treated as public enemies
iii. Once recognised, international rules of war become applicable to them.
Belligerency:
7. When insurgents are well organised and they conduct hostility in accordance with
international law (laws of warfare) and they have sufficient territory under their
control it is belligerency.
8. Belligerency is a matter of policy and not of law so it is left to the state’s
discretion and it also depends on the national interest.
9. It is the final stage of the 3 stages of ascending intensity of conflict which
presents a violent challenge to the sovereign authority within a state.
10. Conditions for recognition of belligerency:
i.
The armed conflict should be general in character
ii. They should occupy and administer a considerable portion of national
territory
iii. They should conduct hostilities through armed forces under a responsible
authority and in accordance with the rules of war
iv.
The hostilities should be of such magnitude that it may become necessary
for the foreign state to define their attitude towards the belligerents and the
established govt.
11. Effects of recognition:
i.
Once recognised, their relations are governed by international not
municipal law
ii. The conflict gets an international character.
Additional topics:
1. Legal effects of recognition:
i.
The recognised state gets entitled to sue in courts of the recognising state
ii. Courts of recognising state give effect to the past as well as present
legislations and executive acts of the recognised state
iii. In regard to the property and diplomatic relations; recognised state can
claim certain immunity
iv.
The diplomatic envoys of the recognised state get a number of privileges
and immunity in the recognising state.
2. Consequences of non-recognition:
i.
Non-recognised state cannot sue in courts of state that has not recognised
it.
ii. The unrecognised state can neither establish diplomatic relations not enter
into any treaty with state that has not recognised it
iii. No privileges or immunities to diplomatic representatives of unrecognised
state in state that has not recognised it
iv.
An unrecognised state is also not entitled to claim its property situated in a
foreign country (Bank of China v. Wells Fargo Bank and Union Trust co).
3. Implied recognition: it may be inferred when circumstances show that the state
concerned has been accepted as a member of international community. In practice
such implied recognition is only de facto but under following circumstance may
be deemed to be de jure also:
i.
When the recognised state and recognising state get into a bilateral treaty
by formally signing it
ii. The beginning of formal diplomatic relations and exchange of consults.
4. In addition following conditions may also indicate implied recognition:
i.
Participation of the state concerned in a multi lateral treaty
ii. Participation in international conference
iii. The start of negotiations between recognised and recognising states.
Unit VI- The State and the Individual
6.1 Nationality
1. Nationality may be defined as the legal status of individuals whose acts, decisions
and policy are vouchsafed by the legal concept of state representing such
individuals.
2. In Re Lynch, it was held that nationality involves a continuous legal relationship
between the state and the individual, creating rights and duties for every side.
3. The basis of nationality is the membership of an independent community.
4. In US v. Wong Kum Ark, it was held that it was upto the state to confer or not to
confer nationality on someone, however it must do so in consonance with the
rules of international law, else it need not be deemed acceptable to the other
states.
5. But, due to divergent state laws with respect to nationality, there arises several
problems such as that of statelessness, dual nationality, etc.
6. In 1930, at the Hague Convention, efforts were made to end such problems
arising out of such divergent laws. This was followed by the Convention on
conflict of nationality laws which aimed at tackling the problems of nationality
and statelessness.
7. Then came the Convention on Nationality of Women, 1957 and the Convention
on the reduction of Statelessness, 1961.
8. Nationality is the principal link between the state and the individual and justifies
state intervention into the affairs of another state so as to protect its nationals even
in the absence of an agreement between the states.
9. The laws relating to nationality have the following importance(a) The protection of rights of diplomatic agents is a consequence of nationality.
(b) If a state doesn’t prevent from or allows its citizens to commit acts which are
harmful to another state, such former state shall be liable for the acts of its
nationals.
(c) Normally states do not refuse to take in their own nationals.
(d) States may even compel their nationals to render military service.
(e) States may refuse to extradite their nationals.
(f) In times of war, states generally recognise enemies on the basis of nationality.
(g) States exercise jurisdiction in criminal and other matters on the basis of
nationality.
10. There exists a difference between domicile and nationality. Nationality means the
membership of an independent community while domicile denotes residence.
11. Nationality denotes the relationship of a man with his country whose rules he
must follow and which provides his protection. Domicile however only denotes
residence. Protection may be provided by the state in which one is domiciled and
one may have to follow the laws of such state. But, in certain cases such as
succession, marriage, etc. the application of such law shall remain limited.
12. There is also a great difference between nationality and citizenship. Nationality
shows a relationship between the individual and the nation while citizenship
denotes relationship between the individual and the state law.
13. Under nationality, the civil and natural rights of persons may come under
international law but the rights of citizenship are the sole concern of the state law.
14. Citizens in contrast to nationals possess full political rights in the particular state.
15. The following are the modes of acquisition of nationality(a) By birth- A person also acquires the nationality of his parents at birth.
(b) By naturalisation- When a person living in a foreign state acquires citizenship
of such state, it is called nationality by naturalisation.
(c) By resumption- A person may lose the nationality of his state due to some
reason and then he may resume the same after the fulfilment of certain conditions.
(d) By subjugation- When a nation is conquered/defeated by another, the nationals
of the former automatically acquire the nationality of the latter.
(e) By cession- When a nation becomes a part of another nation, the nationals of
the former come to be regarded as the nationals of the latter.
16. Nationality may be lost in the following manner(a) By release- If a person submits an application for release from nationality of a
state and the state accepts the same, his nationality of that state is lost.
(b) By deprivation- In certain circumstances for example when an individual takes
up a profession in another nation without informing the state of which he is a
national, he may be deprived of being a national of the state.
(c) By long residence abroad- State laws of several states contain provisions in
this regard.
(d) By renunciation- A person may renounce his nationality especially when he
acquires nationality of more than one state.
(e) By substitution- A person may lose the nationality of his state by getting the
nationality of another state in its place.
17. In Nottebohm’s case, the ICJ stated the principle of effective nationality stating
that the state of Lichtenstein couldn’t possibly protect Nottebohm as the latter did
not have the nationality of the state by virtue of the fact that he had been residing
in Guatemala for a longer period of time (34 years) and did not have any plans to
shift his business activities to Lichtenstein. Nationality shall be recognised by
another state only if there is a genuine connection between a state and its national.
18. Because of different laws relating to nationality in different states, several
problems of double nationality may come up as may be seen in the case of
married women. Double nationality may also be acquired at birth when the child
acquires the nationality of his parents as well.
19. The Hague Convention tried to solve this problem as well. For example Article 5
states that the person with such dual nationality will be given rights in a third state
as if he was the national of only one state. The same shall be decided by the third
state based on the place where such person generally resides or using other
criteria keeping in mind the facts and circumstances of every case.
20. Articles 8 to 11 deal with the nationality of married women and state that a
woman shall automatically acquire the nationality of her husband on marriage.
This problem has also been solved by the Convention on the nationality of
married women.
21. The UDHR under Article 15 provides that everyone has the right to nationality
and no one shall be arbitrarily deprived of his nationality or denied the right to
change his nationality. However, the ICCPR only recognises the right of
nationality of a child.
22. After the adoption of the UNGA declaration on the elimination of discrimination
against women and the Convention on elimination of all forms of discrimination
against women, it was agreed that women shall have the same rights as men with
respect to acquiring, changing or retaining their nationality.
23. It has now been agreed that neither marriage to an alien nor change of nationality
by the husband during the marriage shall change the nationality of the woman or
render her stateless or force upon her, the nationality of her husband. Further, the
state parties have also granted women equal rights with respect to nationality of
their children.
24. Sometimes a person may become stateless. A stateless person is one who doesn’t
possess the nationality of any state. In such case, he cannot have rights under
international law.
25. In Stoeck v. The Public Trustee, Oppenheimer v. Cattermole and under Article 2
of the Hague Convention it has been stated that any question as to the nationality
of a person shall be determined in accordance with the municipal law of the state.
26. The situation of statelessness is recognised under German law, English law and
International law.
27. The Convention on the Reduction of Statelessness has the following main
provisions(a) A state which is party to the convention must grant nationality to a person
born within its territory who would otherwise be stateless. Such nationality must
be granted either by birth or by operation of law.
(b) A state which is party to the convention must grant nationality to a person
born in wedlock in its territory who would otherwise be stateless, if the mother of
such child is a national of such state at that time.
(c) A contracting state shall grant nationality to a person born within its territory
who would otherwise be rendered stateless and is not able to acquire the
nationality of such state due to certain reasons. However, this is subject to the
condition that one of the parents of such child must be a national of the state.
(d) If a person is not born within the territory of a state, he may still be granted
nationality by the state if he would otherwise be stateless provided one of his
parents is a national of the state and subject to such other laws of the state as may
be there.
(e) Loss of nationality as a result of marriage, dissolution of marriage or adoption
shall be conditional upon possession of or acquiring another nationality.
(f) A person shall not be deprived of his nationality on the ground of departure,
residence abroad or failure to register.
(g) Naturalisation abroad or renunciation shall not result in loss of nationality
unless the person acquires another nationality.
(h) Except for the provisions under Art.7, a state should normally not refuse
nationality to a person who would in such case become stateless.
28. Some suggestions with respect to statelessness may be stated as follows(a) It shall be the duty of the state to regard definite nationality of a person or
refuse the same. Several conventions like the Hague convention, etc. have come
up in this regard.
(b) No state shall deny nationality unless there is sufficient cause for it.
(c) States shall grant nationality liberally.
(d) There must be some recognition of rights of stateless persons in law as has
been seen under the Geneva Convention on the Status of Refugees and on the
Status of Stateless Persons.
6.2 Rights and duties of the States with regard to Aliens
1. The reception or admission of aliens into the state is completely the discretion of
the state as it enjoys territorial sovereignty over its territory. International law
doesn’t impose any duty on the state to admit aliens on its territory and it may be
seen that even state immigration laws are very rigid on the same.
2. Further, in the absence of any treaty to the contrary, a state is not under any
obligation to refuse an alien into its territory. It has every right to grant asylum to
an alien if it so wishes. However, an alien cannot claim the same as a matter of
right.
3. Nevertheless, no alien is allowed to settle down in the state without authorisation.
4. After being admitted to the state’s territory, an alien is subject to the same laws as
the citizens and is responsible for all acts committed within the territory of the
state.
5. He may even have to pay taxes if he stays in the state for a longer duration. Also,
the state may compel him to work for the fire service, the police force, etc. but it
cannot compel him to work for the armed forces as it doesn’t have personal
supremacy over such individual.
6. However, if a state treats its citizens badly, it cannot treat aliens in the same
manner. Herein, the concept of an international minimum standard comes into the
picture. This view has been taken in the Hague Codification Conference and later
on in the UNGA Declaration on Permanent Sovereignty over Natural Resources.
7. As per this principle, whenever the treatment of an alien by a state amounts to
violation of international customary or treaty law or otherwise when the person or
property of such alien is injured, the state to which such alien belongs has the
legal right to make a diplomatic protest against and submit a claim for damages
against such other state and such state must make reparation for the same.
8. However, in this case, a state can be held liable only if the acts of its officials
causes injury to the individual and not otherwise.
9. Also, it is not clear as to what exactly are the international rights of aliens which
if encroached upon or the deprivation of which will give the individual’s home
state the right to take up the matter with the erring state.
10. There is nevertheless a condition imposed under such rule that the affected alien
must have exhausted all local remedies available before his home state steps in.
This is known as the ‘Exhaustion of Local Remedies’ rule.
11. The application of this rule is subject to the following conditions(a) The exhaustion of local remedies must pertain to such local procedure which
protects such local interests which may be as closely similar to interests in a
subsequent international claim.
(b) The local remedy must be an effective one.
(c) The local remedy will not be regarded as being effective when the local courts
do not have the jurisdiction in relation to the matter in terms of local law.
(d) It has been stated that this rule doesn’t apply when the measure affecting the
alien’s interest is taken by constitutional or legislative power or by the highest
executive organs.
(e) This rule applies only in relation to state responsibility for an unlawful act.
12. The whole system of legal protection under the municipal law must be put to test.
13. Also, this principle is a fundamental principle of customary international law and
cannot be dispensed of by states unless by way of express provisions of a treaty.
14. Further, it may be seen that expropriation (nationalisation and confiscation) of
property of an alien by the state is allowed only when there has been no
irregularity or discrimination with the foreigners. This was previously considered
to be a violation of international law.
15. As a state doesn’t hold personal supremacy over aliens in its territory, it has no
right to stop an alien from leaving its territory provided he has fulfilled all his
local obligations such as payment of taxes, other dues, etc. This has also been
recognised under Art. 13(2) of the UDHR and Art. 12 of the ICCPR.
16. A state can expel an alien as and when it desires due to territorial sovereignty,
however the same must not be done in an unreasonable manner and the alien must
not be injured.
17. Further, the alien must not be detained before expulsion unless such person
refuses to leave the state or is likely to evade the authorities.
18. Also, an alien shouldn’t be deported to such territory where his person or freedom
would be threatened on account of his race, religion, nationality or political views.
He shouldn’t be exposed to unnecessary indignity either.
19. When an alien who has been residing in the territory of a state for a long period of
time and has been conducting business in such territory, his expulsion may give
his home state the right to question the same asking the expelling state to give
reasons for such expulsion.
20. Expulsion must always be for just causes and the same has been stated under Art.
13 of the ICCPR which states that all expulsions must be in accordance with the
law and the person expelled must be given an opportunity to present reasons
against his expulsion and have his case reviewed by a competent authority and
have the right of representation before such authority, unless the expulsion is for
reasons of national security.
21. However, mass expulsion of aliens is regarded as not being justified and amounts
to violation of human rights. It has also been expressly prohibited under various
conventions such as under Art. 22(9) of the American Convention on Human
Rights.
22. It will be justified only if it doesn’t go against rules of international customary or
treaty law or any norms and principles developed with respect to human rights.
6.3 Extradition
1. Each state exercises complete jurisdiction over individuals within its territory but
a difficulty arises when a person after committing a crime in the country runs
away to another country.
2. Herein, there is a social need to punish such criminals and thus the principles of
extradition have been recognised.
3. However, there is no universal treaty for the same and extradition largely depends
upon bilateral agreements between countries.
4. Extradition is the delivery of an accused or a convicted individual to a state where
he is alleged to have committed or have been convicted of the crime by a state
where the alleged criminal happens to be for the time being.
5. Some essential factors involved in extradition may be discussed as follows(a) There may be no extradition for political crimes- This is a general rule being
followed particularly after the French Revolution even though what is a political
crime is not clearly defined. However, in Re Munier, the court held that any crime
committed in furtherance of political activities shall be regarded as a political
crime.
(b) There may be no extradition for military crimes.
(c) There may be no extradition for religious crimes.
(d) Rule of specificity- When an accused is being extradited for a particular crime,
he shall be tried specifically for that crime only.
(e) Rule of double criminality- As per this rule, the crime committed by the
accused must be a crime both in the country extraditing the accused as well the
country requesting for such extradition.
(f) Prima facie case- For the purpose of extradition, a prima facie case must be
established against the accused. This principle has three main facets- (i) the
witness must be entitled to a reasonable degree of credit, (ii) the requirement of
proof must be higher than what is required in ordinary criminal cases and (iii) the
evidence must be inconvertible leading to a strong and probable presumption
against the accused.
(g) The conditions mentioned in the extradition treaty and all other factors must
be complied with.
(h) When a person is accused of having committed a crime and his extradition is
sought for, it is not necessary that he is present in the state where he has
committed the crime.
(i) There must be a formal bilateral treaty and not simply a agreement or
notification.
(j) Generally, states don’t prefer extraditing their own citizens however this has
been severely criticised.
6. The restrictions for surrender under Indian law may be given as follows(a) When the offence is of a political character, there shall be no extradition.
(b) There shall be no extradition when the same is time barred.
(c) The accused shall not be tried for any offence committed prior to his surrender
or return if such offence is not the same offence for which he is being extradited.
(d) He cannot be tried for an offence committed in India which has no connection
with the offence for which he is being extradited.
(e) The criminal or fugitive shall not be extradited till 15 days have lapsed from
the date of him being committed to prison by the magistrate.
7. Important cases- Dharam Teja’s case, Abu Salem’s case and Quatrochi’s case
6.4 Asylum- Territorial and Extra-territorial (Diplomatic)
1. Asylum means shelter and active protection offered by a state to the national of
another state in the form of political refuge on the request of such national.
2. Asylum has 2 elements, namely(a) The shelter provided is something more than mere temporary refuge.
(b) It involves a degree of active protection on the part of the authorities which
have the right to grant asylum over such territory.
3. Art. 14 of the UDHR recognises the right to receive asylum however as it is a
declaration, it doesn’t have binding force.
4. Thus, the right to asylum merely indicates the competence of a state to grant the
same.
5. The state may after granting asylum even intern such person or put restrictions on
him if necessary. This is because every state has a duty to prevent individuals
from launching attacks against other states and their citizens/nationals from its
territory.
6. The UNGA Declaration on Territorial Asylum was unanimously adopted in 1967.
One of its most important provisions was that the states shall refrain from
rejecting people at their frontier. However, being a declaration it didn’t have
binding force.
7. Thereafter, in 1977, the UN Conference of Plenipotentiaries on Territorial
Asylum was held and the draft text of the conference considered Art. 14 of the
UDHR. However, here as well no obligation was created on the states to grant
asylum. Thus, the position now is that every individual has the right to seek
asylum but the states are not under any obligation to grant the same.
8. Asylum may be divided into two categories- territorial and extra-territorial or
diplomatic asylum. The difference between the two has been explained in the
Asylum case (Columbia v. Peru). It was stated that when a state grants territorial
asylum (granting asylum to person within its territory), it exercises its normal
powers with respect to territorial sovereignty. However, in case of extra-territorial
asylum (granting of asylum outside the state’s territory by the state), there is a
derogation of sovereignty of the state. It withdraws the person from the
jurisdiction of another state and thus intervenes into the matters of such state.
Such derogation cannot be allowed unless it has a strong legal basis.
9. It was also stated in this case that the state has a plenary right to grant territorial
asylum unless it has accepted some restriction with respect to the same. However,
extra-territorial asylum must be granted only in exceptional cases after
establishing the reasons for doing so.
10. Asylum is generally granted to fugitives and offendors when there is considerable
danger to the person and otherwise of such fugitive in another state.
11. With respect to territorial asylum, there are two documents which are very
important- the Convention on Territorial Asylum and the Draft Declaration on
Territorial Asylum adopted by the UNHRC.
12. The Draft Declaration clearly states that no person seeking asylum under the
principles of the UDHR shall be subjected except for overriding reasons of the
population, to measures such as rejection at the frontier, return or expulsion to
another territory or to remain in a territory where there is danger of him being
prosecuted and danger to his life, physical integrity or liberty. The Refugee
Convention of 1951 has also adopted the same.
13. The UNGA resolution of 1967 recommended the following(a) When a person requests asylum, he must not be rejected at the frontier or if he
enters the state, he must not be expelled or returned by the state. However, a large
number of persons seeking asylum may be rejected for national security of the
people.
(b) If any state faces difficulty in granting asylum, it may turn to the UN or other
nations for assistance.
(c) If a state grants asylum to a fugitive, other nations must respect the same.
14. The right of a state to grant asylum may be restricted by way of treaties.
15. With respect to protection of refugees, the instruments in force are the UN
Convention relating to the status of refugees, 1951 and its Protocol of 1967.
Further, there is also the UN High Commissioner for Refugees for provision of
material assistance to such persons.
16. The Convention lays down 2 main principles(a) Refugees must not be discriminated against nationals as far as it is possible.
(b) Refugees must not be discriminated on the basis of race, religion, country or
origin.
17. The refugees as per this convention must in order to avoid
punishment/prosecution, immediately present themselves to the authorities and
give good cause for their refugee status. Further, the parties to the convention
must impose only such restrictions on the movement of refugees as are necessary.
Such restrictions shall be applied only till the time their status is regularised or till
the time to move into another country.
18. The convention also provides that refugees must respect the laws of the country in
which they take refuge and they must not do anything inconsistent with their
refugee status.
19. The convention also talks of non-refoulment. Refoulment is the forcible return of
a refugee when he is likely to be prosecuted, persecuted or tortured.
20. Example of Dalai Lama’s case.
21. Extra-territorial asylum is granted by the state outside its territory. Some of the
ways in which it is granted may be seen in the following points.
22. The first way is by grant of asylum in foreign embassies. Such a grant of asylum
would be a derogation of the sovereignty of a state. It would withdraw the person
who has been granted asylum from the jurisdiction of the state of which he is a
national or otherwise and would interfere in the internal matters of such state.
Thus, such asylum must be granted only when its legal basis is established.
23. The most celebrated case in this regard is that of Columbia v. Peru which is
popularly known as the asylum case or the Haya Dela Torre case. In this case, a
Peruvian leader, Victor Raul Haya Dela Torre was accused of having incited
military rebellion. Torre took refuge in the Columbian embassy at Peru’s capital
Lima. This gave rise to a dispute between the two nations who decided to refer the
case to the ICJ particularly with respect to the interpretation of the Pan-American
Havana Convention on Asylum which provided that under certain conditions
asylum may be granted to a political offendor in a foreign embassy inside the state
of which such offendor was a national. It was contested by Peru that Columbia
couldn’t have unilaterally decided that Torre was a political offendor and thus
justified protection. The court was also asked as to whether the territorial state
was required to give a guarantee that the offendor shall be allowed to leave the
state safely. The ICJ answered both these questions in the negative but stated that
Peru had not in any way proved that Torre was a common criminal. On the day of
the judgment, Columbia filed a request for interpretation asking the ICJ as to
whether the decision implied that there was now an obligation on the Columbian
embassy to surrender Torre to the Peruvian authorities. The court stated in this
regard that though asylum had been irregularly granted as 3 months had lapsed
since the military rebellion in Peru and thus the ground for granting asylum had
ceased to exist. However, it also stated that as Torre was a political offendor,
Columbia was under no obligation to surrender him to Peru. These two
conclusions were not contradictory as there are other ways of termination of
asylum as well.
24. Under international law, asylum may be granted in the embassy premises under 3
circumstances, namely(a) It may be granted temporarily to persons who are physically in danger due to
mob violence or such fugitives who are in danger due to political corruption in the
local state.
(b) It may be granted when there is a long standing, well established and binding
custom in this regard.
(c) It may also be granted where there exists a special treaty between the two
countries.
25. Asylum may also be granted in Consular premises in the same way as it may be
granted in an embassy.
26. Temporary asylum may be granted in international institutions if there is
imminent danger of violence. However, this is not recognised under international
law and is only an exceptional case. These institutions have no general right to
grant or refuse to grant asylum.
27. Asylum may be granted on warships when there is imminent danger of violence
or danger to the life of such person to whom asylum is granted. Further, asylum
may also be granted to political offendors.
28. However, asylum may not be granted on merchant ships to local offendors.
29. Extradition is exactly the reverse of asylum. Infact, extradition starts where
asylum stops.
6.5 Some celebrated cases
1. Peru v. Columbia
2. Dalai Lama’s case
3. Chahal v. UK
Unit VII- Jurisdiction
7.1 General Observations
1. Jurisdiction involves both the power to prescribe rules as well as the power to
enforce such rules.
2. Jurisdiction of a state may be concurrent with that of other states or it may be
exclusive. The state may also have civil or criminal jurisdiction.
3. State jurisdiction essentially means the right of every state to regulate conduct on
the consequences of events.
4. It is closely related to sovereignty but is still different from the latter. This is
because a state has exclusive jurisdiction over its territory but the same is not
absolute as it is subject to the rules of international law. Further, a state may even
exercise jurisdiction outside its territory.
5. Refer to Central Bank of India v. Ram Narain and Chung Chi Cheung v. The
King
6. The term jurisdiction may be defined as the legal competence of state officials to
prescribe and enforce rules with regard to persons, things and events.
7. There exists something called the subjective territorial principle by which the
state can exercise jurisdiction for an act initiated within its own territory but
completed outside its territory. This rule finds mention under various conventions
like the Geneva Convention on Suppression of Counterfeiting of Currency and the
Convention for Supervision of Illicit Drug Traffic.
8. As per the objective territorial principle, a state shall have jurisdiction over such
matters wherein any element of the crime has been consummated on the state’s
territory provided the same had resulted in some harmful effect in the state. Under
this principle, there is presumption as to constructive presence of the offendor
within the territory of the state.
9. KTMS Abdul Cader & ors. v. UOI- Extra-territorial operation of law
10. Art. 245 of the Indian Constitution provides that a law enacted by Parliament
cannot be rejected merely on the ground that it has extra-territorial application and
such law cannot be questioned merely on the fact that it may not be found as
being capable of application outside the territory of the state.
11. Criminal jurisdiction under international law may be applicable in the following
ways(a) By following the territoriality principle, only within the territory of the state.
(b) Within the territory of the state and for certain acts committed outside the
territory of the state on the basis of national security or economic grounds.
(c) On the basis of the theory of extra-territoriality which states that crime is a
social evil and it is in the interest of the entire international community that
criminals are punished.
12. The sovereignty of a coastal state also extends to its territorial sea. However, this
is subject to the fact that all ships must be allowed innocent passage through such
territorial sea. Article 19 of the UN Convention on the law of sea states that
innocent passage means one which is not prejudicial to the peace, security and
good order of the territorial state. Such passage shall take place in conformity
with the convention and the principles of international law.
13. Art. 19(1) of the Geneva Convention on the territorial sea and contiguous zone
states that criminal jurisdiction of territorial sea shall not be extended to arrest any
person or conduct any investigation on board a foreign ship passing through such
territorial sea unless the (i) consequences of such crime is extended to the coastal
state or (ii) if the act is of a nature so as to disturb the security of the state or good
order of the territorial sea or (iii) if help is sought from the locals by the captain of
the ship or by the consul of the country whose flag the ship bears or (iv) in order
to suppress illicit traffic in narcotics and drugs.
14. However, this provision will not in any way affect the authority of the state under
any law to conduct such arrest or investigation.
15. Art. 17 of the UN Convention on law of sea states that all ships enjoy innocent
passage through the territorial sea of a state which may be landlocked or coastal.
The ship shall also have the right to stoppage and anchorage provided the same is
incidental to ordinary navigation or is rendered necessary due to the operation of a
force majeure or distress or for the purpose of helping out individuals, ships, etc.
in distress.
16. Universal jurisdiction of a state is granted to punish crimes/criminals which are
regarded as being a threat to the entire international community such as piracy,
hijacking and war crimes.
17. It may be suggested that such jurisdiction be also extended to crimes such as
apartheid, genocide and international terrorism.
18. There exists another concept in international law called servitude which means
exceptional restrictions on the territorial sovereignty of a state by way of a treaty
by which a part or whole of the territory of a state is in a limited way required to
serve the interests of another state.
19. Servitude may be of the following kinds(a) Positive servitude- It is when a state allows another state to do some work on
its territory.
(b) Negative servitude- It is when a state claims that other states must not work in
its territory in a particular manner and the same is accepted by the other state.
(c) Military servitude- This refers to keeping of troops of another state in one’s
territory.
(d) Economic servitude- This is when one state allows another certain commercial
or transport facilities.
20. Read Teen Bigha case/ UOI v. Sukumar Sengupta (Pg. 224)
7.2 Kinds of Jurisdiction-Territorial, Personal, Protective and Universal
1. Generally speaking, jurisdiction is essentially territorial owing to the territorial
sovereignty of a state over its territory and persons residing in such territory.
2. However, there may be some other kinds of jurisdiction and the same have been
discussed in the points given as under.
3. The state may exercise personal jurisdiction over acts of its citizens committed
abroad.
4. There is also another principle of universal jurisdiction whereby the state has the
power to exercise its jurisdiction over acts such as piracy no matter what is the
nationality of the perpetrators of such crime.
5. The state also has the right to exercise protective jurisdiction in order to punish
foreign nationals whose acts committed outside the country have seriously
jeopardised public order and safety within the country.
6. Then there is the passive personality principle according to which the state may
exercise jurisdiction with respect to acts committed by a foreign national abroad
which affects any of its nationals.
7. It may however be noted that the state can exercise jurisdiction outside its
territory only when there is a permissive rule derived from international custom or
convention authorising the state to do so.
7.3 Piracy and Air Hijacking
Piracy
1. As per the traditional definition, piracy means navigation on the high seas with
the object of committing violent acts against person or property for private ends
without the authorisation or permission of the state.
2. As per the Federal Court in the US, any armed ship at sea would be regarded as a
pirate ship if it is not authorised by the state, even if it has not committed any act
of piracy.
3. The Geneva Convention on High Seas gave a concrete definition of the term in
S.15 which states that ‘Piracy consists of any of the following acts(a) Any illegal act of violence, detention or any act of depredation committed for
private ends by the crew or passengers of a private ship or aircraft directed on the
(i) high seas against a ship or aircraft or against persons or property on such ship
or aircraft or (ii) against a ship or aircraft or persons or property in a place outside
the jurisdiction of the state.
(b) Any act of voluntary participation in the operation of a ship or aircraft with the
knowledge of such facts as make it a pirate ship or aircraft.
(c) Inciting or intentionally facilitating any of the abovementioned acts.
4. Article 16 provides that piracy cannot be committed by warships or government
ships/aircrafts except the crew has mutinied and taken control of such ship or
aircraft.
5. Acts committed by the crew against the ship itself or against persons or property
on the ship are not within the scope of this definition.
6. A ship or aircraft will be regarded as being a pirate ship/aircraft as long as it stays
within the control of such persons who keep control with the purpose of
committing any of the acts mentioned in Art. 15.
7. The essential elements of piracy may be stated as follows(a) It must be carried out for private ends.
(b) It must be carried out by the crew or passengers of a private ship. The only
exception made is given in Art. 16 when a government ship or a warship may be
made liable.
(c) Such illegal acts must be committed on the high seas or in any place outside
the state’s jurisdiction.
(d) It must be against another ship or aircraft or persons and property on such
other ship.
(e) The above elements must be necessarily satisfied to prove that violence,
detention, depredation, etc. was infact piracy.
(f) Even an unsuccessful attempt of committing such acts would amount to piracy.
(g) Even those who voluntarily work on the ship will be regarded as being part of
the crime if they have knowledge of such facts which make the ship or aircraft a
pirate ship or aircraft.
(h) Inciting or intentionally facilitating such act is a crime as well.
8. Art. 102 of the UN convention on the law of the sea provides for the exception
given in Art. 16 of the Geneva Convention.
9. Insurgents are not generally considered to be pirates but any unrecognised
insurgents may be held for acts of piracy.
10. Art. 21 of the Geneva Convention provides that seizure of a ship on account of
piracy may only be carried out by warships or military aircrafts or such other
ships or aircrafts authorised by the government.
11. Art.19 of the Convention states that acts of piracy come under universal
jurisdiction and thus any state can carry out such seizure. Such acts are regarded
as ‘delict jure gentium’.
12. The courts of the state which carried out the seizure shall decide on the penalties
to be imposed and may also determine actions to be taken against the ship or
aircraft or property subject to rights of third parties acting in good faith.
13. In the 17th century, the property of such ship became the property of the state
which seized it. However, after the 18th century, the property was to be returned to
the real owner. If however, the owner was unknown or couldn’t be found, the
ship/property would belong to the state.
14. Where seizure of a ship or aircraft is carried out by a state on the suspicion of
piracy and the same is disproved, the state carrying out such seizure shall be liable
for any loss or damage caused to the state to which the ship or aircraft belongs.
15. Piracy may be different under municipal law and international law. For example
in the UK, every British citizen who assists the enemy of the King or Queen or
transports slaves on the high seas is regarded as a pirate.
Air Hijacking1. It is an act which endangers the safety of an aircraft and resembles piracy.
2. The Tokyo Convention provides for the following(a) Under Art. 11, it has been provided that where any person commits an act of
interference, seizure or exercises wrongful control over an aircraft by force or
threat, the state parties shall take appropriate steps to restore control to the
commander or keep control over such aircraft.
(b) The article also provides that when the aircraft lands, the states shall make
arrangements for passengers and crew to continue their journey as soon as
possible.
(c) It shall also return possession of the aircraft to persons who are lawfully
entitled to the same.
(d) Art. 13 further provides that the state shall take delivery of any person handed
over by the captain and shall conduct required inquiries.
3. Article 1 of the Hague Convention provides that the following are the essential
elements of hijacking(a) Unlawful use of threat or force or any form of intimidation.
(b) In order to seize the aircraft or exercise control over it.
(c) The said acts must be committed on board an aircraft in flight.
(d) Any accomplice of a person committing such acts shall also be guilty of the
offence.
4. The Montreal Convention gave a broader view of the term under Art.1 as follows(a) Hijacking is act which is unlawful and is committed intentionally.
(b) By performing any act of violence against any person on board an aircraft in
flight which endangers the safety of such aircraft.
(c) By destroying or damaging an aircraft in service thereby rendering it incapable
of flight or endangering its safety.
(d) Placing any device or substance in an aircraft in service which is likely to
damage or destroy the aircraft in flight or endanger its safety.
(e) Any act of interference in air navigation facilities or destroying or damaging
such facilities if any information such person knows to be false thereby
endangering the safety of the aircraft in flight.
(f) Any person who attempts to do the above acts or is an accomplice in such act
is also liable to be punished.
5. Some of the main changes brought about by the Hague Convention were that the
state parties would have jurisdiction over hijackers in some way or the other.
Also, hijacking was asked to be made an extraditable offence by the states.
6. In consonance with the Montreal Convention, India enacted the Suppression of
Unlawful Acts against Safety of Civil Aviation Act, 1982.
7.4 General Exemptions
1. Diplomatic Agents are immune from the jurisdiction of the civil and criminal
courts of the receiving state. The earlier view as to the rationale behind this was
that such agents were beyond the jurisdiction of the state. However, the modern
view is that such agents have immunity due to the kind of functions they perform.
2. Foreign embassies are also granted immunity on the basis of the principle that its
diplomatic agents perform certain special functions.
3. Foreign sovereigns enjoy immunity based on the principle of par in Parem Non
habit Imperium which means that no state can claim jurisdiction over another
state. However, such sovereign may waive such immunity and subject himself to
the jurisdiction of the state. An important case in this regard was that of Mighell
v. Sultan of Johore whereby a suit was brought against the Sultan for breach of
promise to marry the appellant. However, it was stated that the Sultan being a
sovereign had immunity from such proceedings. However, the position is
different with respect to an ex or former or deposed sovereign who shall not be
granted immunity unless the state granting immunity recognises him as a
sovereign capable of being granted immunity.
4. Immunity in respect of public property of sovereign state- Like the person of a
foreign sovereign, immunity is also granted with respect to the property of such
sovereign. In certain countries like the USA, distinction is made between the
sovereign and other functions of the state. Immunity is generally not granted with
respect to the other functions which are primarily commercial in nature. However,
it is difficult to determine as to what exactly is a commercial function.
5. International organisations are also granted certain immunities and privileges in
states in which they are situated. Some conventions in this regard include the
Convention on Privileges and Immunities of the UN, Convention on the
Privileges and Immunities of the Union passed by the Dominion Legislature of
India, etc.
6. Extradition treaties are also an exception to the territorial jurisdiction of a state.
7. Foreign Troops- If a state allows foreign troops to pass through its territory, it
implies of waiver of all jurisdiction with respect to such troops.
8. Immunity of warships and their crew- A warship has immunity and the same
extends to its captain and crew as well. However, the state to which the warship
belongs is responsible for all its actions. Also, no immunity will be available if a
warship intrudes foreign territory under disguise or false pretence. Under such
circumstances, the ship shall be regarded as a spy and shall be liable for
confiscation and the legal process of the aggrieved coastal state shall be made
applicable.
9. Also, incase of collision of two ships, jurisdiction is generally exercised by the
state whose flag flies on the ship.
Unit VIII- The United Nations
8.1 Origin, Purpose, Principles and Membership of United Nations, Use of force and the
UN Charter
1. The League of Nations failed to prevent the Second World War and thus the UN
was established by way of adoption and signing of the UN charter at the San
Francisco Conference in 1945 by 51 member states.
2. The following steps led to the establishment of the UN(a) The Declaration of St. James Palace.
(b) The Atlantic Charter.
(c) The UN Declaration.
(d) The Moscow Declaration.
(e) The Tehran Conference
(f) The Dumbarton Oaks Conference
(g) The Yalta Conference
(h) The San Francisco Conference
3. The UN Charter lays down the following as the purposes of the UN under Art.1(a) Maintenance of International peace and security- This means taking up
collective measures to prevent or remove threats to peace, suppress aggression
and other breaches of peace. It also includes adjustment or settlement of
international disputes by peaceful means in conformity with the principles of
justice and international law.
(b) Developing friendly relations among nations. - This includes respect for equal
rights and self-determination of people. The right to self determination was
further strengthened by the GA declaration on the granting of independence to
colonial countries and peoples.
(c) International cooperation for solving international problems of social, cultural
and humanitarian character. – This also includes respect for human rights and
fundamental freedoms of all without any discrimination as to race, religion, sex or
otherwise.
(d) Making the UN, the centre for carrying out the abovementioned purposes.
4. Art.2 of the Charter provides that the states must act in accordance with the
following principles in order to achieve the purposes laid down in Art. 1-
(a) The principle of sovereign equality of all states.- This principle has been
compromised in the SC where the 5 permanent members are given special veto
powers. Also, the UN Charter cannot be amended without the approval or
ratification of the permanent members.
(b) All states to carry out obligations assumed by them in good faith.
(c) Peaceful settlement of disputes.
(d) Principles of non-intervention.- This means that no state shall use any force or
threat of force against the territorial integrity and political independence of any
other state or do any other act which goes against the purposes of the UN.
(e) Assist the UN in common action. - This also means that the states shall refrain
from aiding such states against whom the UN takes up collective action.
(f) Non-members to act in accordance with principles for the maintenance of
international peace and security. - This shows that even non-members may be
made amenable to the charter.
(g) Non-intervention in domestic matters of a state. – This may be seen like a
major handicap to the functions of the UN. However, this principle does not apply
to measures taken by the UN under Chapter VII. Further, the term ‘domestic
jurisdiction’ is very vague and thus with the passage of time several acts like
apartheid or racial discrimination which were previously under the domestic
jurisdiction of states has come within the purview of the UN.
5. The UN Charter provides for two kinds of membership- original members and
those are admitted by way of Art.4.
6. Original members of the UN are those who were present at the San Francisco
Conference or those who previously signed the UN Declaration in 1942 and later
signed and ratified the UN Charter in consonance with Art.110 of the Charter.
7. Members other than such original members are to be admitted by way of Art.4
wherein such admission being a substantial matter needs election by a 2/3rd
majority in the GA as well as recommendation by an affirmative vote in the SC(9
affirmative votes including the votes of the 5 permanent members).
8. A state must also satisfy the following requirements in order to be a member(a) It must be a state.
(b) It must be a peace loving state.
(c) It must accept the obligations under the Charter.
(d) It must be willing to carry out such obligations.
(e) It must be capable of carrying out such obligations.
9. The ICJ has opined that admission of a state to the UN can only be by following
the provisions of Art.4 and not otherwise. No state can block the membership of a
state by asking for admission of another state alongwith such state.
10. Further, the affirmative recommendation of the SC is required at all times and the
GA cannot on its own elect a state as a member.
11. At the San Francisco Conference, it was decided that no member shall be allowed
to withdraw from the UN unless warranted by special circumstances. It is to be
noted here that the League of Nations allowed for such withdrawal by a member
state by giving a notice of 2 years or if such state opposed or couldn’t accept an
amendment.
12. The first and only instance of withdrawal from the UN has been seen incase of
Indonesia which withdrew temporarily from the UN on the admission of Malaysia
as a member. But, there was no withdrawal in the true sense as it merely rejoined
the UN after sometime and sat for its meetings as if nothing had happened.
13. Art.6 provides that a member state may be expelled from the UN by the GA on
the recommendation of the SC if it persistently violates the principles of the UN
Charter.
14. Art.5 provides for suspension of a member against whom preventive or
enforcement action has been taken by the SC. Such member may be suspended by
the GA on the recommendations of the SC. But, the rights and privileges of the
member may again be restored by the SC.
15. At present there are 192 members of the UN with East Timor being the most
recent member.
8.2 The General Assembly-Constitution, Powers and Functions, Role of General
Assembly in the development of International Law.
1. Each member of the UN is represented at the GA and each state has one vote
though it may send a total of 5 delegates (Art.9).
2. Decisions with respect to important and substantial matters require voting by 2/3rd
majority and recommendation by the SC by 9 affirmative votes including the vote
of 5 permanent members.
3. Such matters include matters involving international peace and security, election
of the members of the Economic and Social Council (ECOSOC) and the
Trusteeship Council, admission of members to the UN and suspension/removal of
member states.
4. All other decisions are to be taken by a majority of members present and voting.
5. The functions of the GA may be discussed under the following heads(a) Deliberative functions
(b) Supervisory functions
(c) Financial functions
(d) Elective functions
(e) Constituent functions
6. The deliberative functions of the GA involve such functions with respect to
discussions, studies and recommendations. These functions may be elaborated as
follows(a) The GA may discuss any question within the scope of the charter or with
respect to the functions of any organs of the UN (Art.10). However, this power
has been limited under Art.12 which states that any matter or dispute which has
been taken up by the SC can be deliberated on by the GA only on the
recommendation of the SC.
(b) As per Art. 11, the GA may consider general principles of international
cooperation in the maintenance of international peace and security including
principles with respect to disarmament or regulation of armaments and make
recommendations to the SC.
(c) Under Art.11, it may bring to the attention of the SC such matters which pose
a threat to or endanger international peace and security.
(d) As per Art.13, it may conduct studies or make recommendations (i) with
respect to promotion of international cooperation in the political field and
encouraging the progressive development of international law and (ii) with
respect to matters in the economic, cultural, social, health and education fields
and assist in the realisation of human rights and fundamental freedoms for all
without any discrimination based on age, religion, race, sex or otherwise.
7. There are however certain limitations on such functions of the GA. The first
limitation is that the resolutions of the GA are merely recommendatory in nature.
Further, as per Art.2 (7), it cannot intervene in the domestic matters of states.
8. However, if certain resolutions are passed unanimously by the GA or are recited
again and again and then passed by an overwhelming majority, the same may
become a part of international law. Also, a resolution which lays down general
principles of international conduct or authoritatively interprets the UN Charter
may also become a part of international law.
9. The GA also performs certain supervisory functions as it supervises the various
organs and specialised agencies of the UN. Two UN organs which are mostly
supervised by the GA are the ECOSOC and the Trusteeship Council.
10. The ECOSOC works as a subordinate of the GA. Also, except with respect to
strategic areas which are under the SC, the Trusteeship Council also works as a
subordinate of the GA.
11. Further, all organs of the UN including the SC submit reports to the GA which it
considers and discusses.
12. Even the Secretary General is to submit an annual report of the working of the
organisation to the GA which is considered and discussed in its annual session.
13. The GA performs the following financial functions(a) It considers and approves the budget of the UN under Art.17.
(b) Further, under Art.17 the expenses of the UN are to be borne by the member
states as appointed by the UN.
(c) The GA shall consider and approve any financial or budgetary arrangements
with any specialised agencies and shall examine the administrative budget of such
agencies in order to make recommendations with respect to the same.
14. The GA performs elective functions with respect to (a) admission of new
members to the UN and (b) election of members of other organs.
15. With respect to admission of new members, it performs the following functions(a) New members are elected to the UN by the GA by a 2/3rd majority and on the
recommendation of the SC.
(b) Under Art. 5, a member of the UN may be suspended on the recommendation
of the SC and a 2/3rd majority in GA when enforcement or preventive action is
being taken against such state by the SC.
(c) A state may also be removed from the UN under Art.6 by 2/3rd majority in the
GA and recommendations of the SC if such state persistently violates the
principles of the Charter.
(d) Further, a member who has arrears with respect to its financial contribution to
the organisation may be deprived of its vote by a 2/3rd majority of the members
present and voting in the GA.
16. With respect to election of members to other bodies, the GA performs the
following functions(a) It elects the 10 non-permanent members of the SC.
(b) It elects the 54 members of the ECOSOC.
(c) Under Art. 86(c) it elects such number of members of the Trusteeship council
as are required for the administration of trust territories.
(d) It takes part in the election of the judges of the ICJ.
(e) It takes part in the election of the Secretary General under Art. 27 who is
appointed by the GA on the recommendation of the SC.
17. The GA also performs constituent functions. Under Art. 108, all amendments to
the Charter require adoption by a 2/3rd majority in the GA and then required to be
ratified by a constitutional process requiring 2/3rd majority of all the members
including the five permanent members.
18. One of the major steps taken by the GA is with respect to the Uniting for Peace
Resolution of 1950.
19. Due to disagreements amongst permanent members of the SC, the provisions of
Art.48 with respect to contribution of armed forces couldn’t be enforced.
20. Thus, with the initiative of the US and other western nations, the Uniting for
Peace Resolution was passed in 1950.
21. This resolution provides for the following(a) An emergency meeting of the GA may be called by 9 affirmative votes of the
SC or by a majority of members of the GA.
(b) If the SC was unsuccessful with respect to preventing aggression or failed to
take any action with respect to breach of peace, the GA could take up such matter.
(c) The GA could also call for collective measures including the use of armed
forces for the maintenance of international peace.
(d) A fourteen member Peace Observation Commission was established to
supervise conflict areas and submit reports to the GA. However, such commission
was to be allowed into such areas subject to approval by member states.
(e) Every member state had to keep certain elements of its military fully equipped
so that the same may be made available as and when required by the UN.
(f) Also, a fourteen member Collective Measures Committee was also established
in order to study and report matters relating to international peace and security.
22. This resolution was criticised by Russia on the ground that Art.24 of the Charter
provided that maintenance of international peace and security was the primary
responsibility of the SC. However, this view was criticised on the ground that
maintenance of peace was stated as being the primary responsibility of the SC and
not as ONLY being the responsibility of the SC. Hence, nothing barred the GA
from taking up such functions as under Art.10, the GA could consider any matter
within the scope of the Charter.
23. Also, another critic of the Russian view has argued that for a resolution to be valid
it must not contravene any provisions of the UN Charter and it must fulfil the
purposes of the UN as provided under Art. 1. Thus, the Uniting for Peace
Resolution was valid as it fulfilled both the criteria.
24. Similarly, the validity of the GA sending UN emergency forces to Egypt and later
to Congo has also been accepted.
25. GA resolutions as a source of international law- Refer to previous notes.
8.3 The Security Council-Constitution, Powers and Functions, Role of the Security
Council in the maintenance of International peace and security- An appraisal
Refer to assignment
8.4 The International Court of Justice (ICJ) - Constitution and Jurisdiction, Contribution
to the development of International Law
1. The ICJ is the principal judicial organ of the UN and it is based on a statute which
forms an integral part of the UN Charter as per Art. 92.
2. All member states are ipso facto members of the statute. However, a non-member
may also become a member of such statute on the recommendations of the SC and
on the basis of the conditions laid down by the GA. (S.93)
3. The judges of the ICJ are elected by the SC and GA separately. There are a total
of 15 judges and a President of the court.
4. All decisions are taken by a majority vote and incase of a tie, the President has a
casting vote.
5. As per Art.38(1) of the ICJ statute, the ICJ shall apply the following while
deciding a case(a) International Conventions
(b) International Customs
(c) General principles of law decided by civilised nations.
(d) Judicial decisions or work by jurists
6. As per Art. 38(2), if the states ask the ICJ to do so, it may even decide a case ex
aequo et bono. This means that it need not follow the principles of law as such
and may give a decision based on the principles of good faith and fair dealing
which may even be contrary to the provisions of law at times however the same is
not desirable.
7. Art.59 states that the decision of the court shall be binding only on the parties to
the dispute and only with respect to the specific matter concerned in the dispute.
8. Only states and not individuals may be party to a dispute before the court. Even
international organisations may seek the advisory opinion of the court.
9. Jurisdiction may be conferred on the court in any of the following ways(a) Two or more states may do so by special agreement.
(b) By way of a multilateral treaty
(c) By way of a bilateral treaty
(d) Jurisdiction may also be conferred on the court in an informal way after
proceedings have commenced. For example when a party brings a case before the
court for settlement with respect to its merits but doesn’t accept the court’s
jurisdiction. In such case as the court has already been approached with respect to
deciding the merits of the case, jurisdiction has already been conferred.
10. The jurisdiction of the ICJ may be divided into 2 heads, namely- contentious and
advisory jurisdiction.
11. Further, contentious jurisdiction may be voluntary or optional.
12. Voluntary jurisdiction as stated under Art.36 (1) provides that the court shall have
jurisdiction with respect to such cases wherein a case is entrusted to it by the
parties or where such matter falls within the ambit of the UN Charter or
International treaties.
13. Optional jurisdiction has been provided under Art.36 (2) of the statute. State
parties may confer compulsory jurisdiction on the ICJ by making a declaration in
respect of any state which accepts similar obligations. This doesn’t require any
special agreement and may be done with respect to the following matters(a) Interpretation of a treaty.
(b) Any question of international law.
(c) The existence of a fact which if established would amount to a breach of
international law.
(d) Nature and extent of reparation to be made for breach of any international
obligation.
14. Art. 36(3) further provides that the declaration made under Art. 36(2) may be
made unconditionally or on the condition of reciprocity on the part of several or
certain states or for a certain period of time.
15. State parties may also accept such jurisdiction by inserting a provision in a
convention or treaty stating that incase of any dispute, the court shall have
jurisdiction with respect to the same.
16. Several scholars have pointed out that such jurisdiction is not compulsory as prior
consent of the state parties is required for the same.
17. The ICJ shall give its advisory opinion when asked for the same to the SC, GA,
and other organs of the UN and such other specialised agencies of the UN if they
are authorised in this regard by the UN. Till now only the Secretariat has not been
authorised.
18. Art. 65 of the statute of the ICJ lays down that the court may give advisory
opinion with respect to any legal question at request of whatever body may be
authorised by the UN Charter to make such request.
19. Art. 68 further provides that in respect of its advisory jurisdiction, the court shall
apply the principles given in its statute.
20. Such jurisdiction of the court is not binding but it authoritative.
21. Art. 36(5) of the statute further provides for transferred jurisdiction whereby the
court may acquire jurisdiction over matters which were previously within the
purview of the Permanent Court of International Justice (PCIJ). An example may
be given of a case wherein the state parties confer jurisdiction on the PCIJ for 20
years and within 5 years of the same, the PCIJ gets dissolved. In such case, the
ICJ shall exercise jurisdiction for the remaining period of 15 years.
22. Art. 62 of the statute provides that a 3rd party may ask for allowing it to interfere
in the dispute if it has a legal interest which may be affected by the case and the
same is approved by the ICJ.
23. The court has helped in the progressive development of international law in the
following ways(a) When there is no international treaty or convention, the ICJ has resorted to
Art. 38 of its statute and has applied the general principles of law recognised by
civil states.
(b) By clarifying vague rules of international law.
(c) Even though Art. 59 of the statute undermines the authority of precedents and
states that decisions are applicable only to parties to the dispute, the court has
deviated from the same.
(d) By interpreting the charter or other treaties.
24. Examples of several cases decided by the ICJ may be given such as the
Norwegian fisheries case wherein the court clarified the law relating to the
delimitation of the fisheries zone and the method of measurement of the territorial
sea.
25. Also, in the Corfu Channel case, it clarified the law on self-defence in foreign
territory, intervention and innocent passage through maritime belt, etc.
26. In the Nuclear test case, the ICJ granted an injunction restraining France from
conducting nuclear tests which affected the lives and health of people in other
countries.
27. Further in the US Diplomatic and Consular staff in Tehran case or the US v. Iran
case, the court clarified on the point of laws relating to diplomatic and consular
envoys especially their immunities.
28. In the Nicaragua v. US case, the court interpreted the provisions of the UN
Charter with respect to intervention.
Unit IX- International and Criminal Law
9.1 Evolution of International Criminal Responsibility: Tokyo and Nuremberg Trials
Nuremberg Trial1. After the Second World War, the victorious nations entered into an agreement in
1945 and conferred jurisdiction on a court by way of a charter to try German war
criminals for atrocities committed against the Jews.
2. These persons were tried for War Crimes, Crimes against Peace and Crimes
against Humanity. The accused were charged with violating the Treaty of
Versailles, 1919 and the Pact of Paris, 1928 which clearly asked for peaceful
settlement of international disputes without resorting to war.
3. The trial began on November 20, 1945 and the judgment was given on September
30, 1946. 10 persons were awarded death penalty, 3 were punished with
transportation for life, 4 with imprisonment for a long period and 3 were
acquitted.
4. The following principles/judgment were laid down in the trial(a) The crimes against international law are committed by individuals and not
abstract entities. Thus, such individuals must be punished for the same.
(b) Punishment for war crimes can be awarded to any person even when he is the
head of the state.
(c) A war criminal cannot plead that he was acting under the orders of superiors
provided there is a moral choice available to him.
(d) The defendants pleaded the defence of ‘nullum criminem sine lege, nulla
poena sine lega’ (there may be no punishment without the existence of a prior
law). However, this was rejected in this case.
(e) The treatment of prisoners of war by the German forces was derogatory to the
provisions of the Geneva Convention and thus they were to be punished for the
same. The defendants contended that as the USSR was not a signatory to the
Convention, its POW s need not get the same rights under the convention. This
was rejected by the tribunal.
(f) The court also held that waging aggressive war was the highest crime under
international law and the same had been denounced by the Pact of Paris. Thus,
there ought to be punishment for such acts.
(g) Further, crimes against humanity formed a part of waging an aggressive war
and thus punishment ought to be meted out for the same.
5. The verdict of the Nuremberg trial has been justified by jurists on several counts
such as it acts as a deterrent against war crimes, crimes against humanity,
genocide, etc.
6. However, certain criticisms have been levelled against the tribunal as well which
may be discussed as follows(a) The Pact of Paris was given too much emphasis. Also, this treaty never made
war an international crime. Further, the charge of waging aggressive war was not
justifiably levelled.
(b) The fact that there was no law before the crimes were committed so as to
punish the alleged criminals was not considered.
(c) The plea of committing acts under the orders of superiors was not
appropriately dealt with.
(d) The circumstances under which the tribunal was created couldn’t have
possibly led to a fair trial.
(e) It was not an international tribunal in the true sense as it consisted of judges
from the victorious powers.
(f) Doubts have been expressed with regard to the principles propounded in the
trial.
7. The importance of the trial may be seen as follows(a) It made international law applicable not just to states but also to individuals.
(b) It also laid down the principle that the status of the accused was irrelevant in
such cases.
(c) It acted as a deterrent with respect to war crimes.
(d) It helped in codification of international law as its judgment was summarised
in the International Law Commission Report, 1950.
Tokyo Trial1. The Tokyo Trial was started for trying the war criminals of Japan after the World
War.
2. The tribunal started hearing on June 4, 1946 after it was established by the
victorious powers by adopting a Charter conferring jurisdiction on the tribunal.
3. A special feature of this trial was that some of the judges were also from countries
other than the victorious powers such as Dr. Radha Vinodpal from India.
4. During the trial, Japan contended that as most of the judges were from the
victorious states, there was no fair trial. However, this contention was rejected.
5. Finally, several Japanese war criminals were sentenced and punished.
6. Dr. Radha Vinodpal gave a dissenting judgment in this case stating the following
reasons(a) War is not within the scope of international law as the rules of international
law were not developed enough then to deal with the same.
(b) The Pact of Paris cannot be given the status of ‘law’ and it has not changed the
status of war in any way.
(c) Conspiracy was not an independent crime under international law.
(d) There was no evidence on record to prove the guilt of the accused.