Public International Law Rama Rao Notes

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PUBLIC
INTERNATIONAL
LAW
M. S. RAMA RAO B.Sc., M.A., M.L.

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PUBLIC INTERNATIONAL LAW
[PEACE ]
Texual & Reference Books
Oppenheim International Law Vo.I Peace

Starke Introduction to International Law
Fen-wick International Law
Green International Law through Cases
Freidman The Changing Structure of international Law
Brierly Law of Nations
Schwarzenberger Manual of International Law
Nussbaum A Concise history of the Law of Nations
Lauterpacht Annual Digest & Report of Public
International Law Cases
1
Harris. Cases and Materials on International Law

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INTRODUCTION
International Law' is one c f the finest subjects for studying, ‘as it opens
up new horizons to navigate beyond the egg-shell enclosure of one’s mental
faculties. It is our duty to know the law of our Country {Ignoranlia juris non.
excusat!) but it is a privilege to know the Law of Nations. States are legal
persons and are subjects of International Law. It is impossible to imagine the
States today, carrying on their multifarious activities across the borders, on an
unprecedented scale, in a legal vacuum! That ipso facto must justify the
existence of a large number of principles and rules governing the conduct of
the States. In recent years the proliferation of International Institutions, has
given a new dimension to the Law of Nations. Moreover, there is so much of
International activity that hundreds of conferences and meeting are held round
the year, speaking volumes to the fact, that International Law is in operation.
In recent years a countless number of Conventions and treaties have been
concluded so much so the corpus of the Law of Nations has grown in its
magnitude Much credit goes to the "International Law Commission" which
has toiled in chiseling & trimming to draft form the norms of International
Law scattered in various forms often obscure and indefinite.
The basic principles of the subject should be carefully studied with a broad-
outlook, to understand the significance; Cases and Materials should be
adroitly selected. Specialization should be attempted later.
World Peace is the cherished objective of all Nations. International Law is
a means to reach that.
The sounding prophetic words' of Isaiah “States shall beat their swords
into ploughshares and their spears into pruning hooks; Nation shall not
lift sword against nation neither shall they learn war anymore,' became the
roots of pacifism and has grown over the centuries into the concept of World
Peace.
State is a composite body consisting of men. Let us then learn specialise
and endeavour to bring about World Peace and Security, Opportunity may
open up to enable you to serve in a bigger capacity but until then there is no
reason to get disappointed! They also serve who only stand and wait!
2
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PUBLIC INTERNATIONAL LAW
1. International law as law (legal basis.)

2. Sources.
3.. Relationship between International Law & Municipal Law.
4. Codification,
4. History & development of the Law of Nations-Schools of Law- Positivists,
Naturalists & Grotians.. Contributions of Grotius, Gentili & others.
6. Recognition-Theories-Practice-De facto-De jure-Monroe doctrine-'
Stimson's doctrine of non -recognition.
6. States-Personality-Vassal States, Neutralised State-Succession-Equality
of States.
7. Self-Preservation- \Intervention: dictatorial and pure & simple.
8. State Responsibility for International delinquency.
10. Territory: (i) Modes of acquiring Territory (ii) Servitudes iii) Rivers (iv)
Canals (v) Aerial Navigation.
1 i. Open Sea-Freedom of the open sea-Jurisdiction-Fisheries, Maritime Belt,
Contiguous zone. Economic zone, Continental Shelf- Piracy jure gentium,
12. Individuals-Nationality- Double Nationality-Statelessness-Asylum-Aliens-
Extradition & Non-Extradition of political criminals-Human Rights-
12. Legation-Head of State-Right of legation, Appointment, powers privileges
and immunities of Ambassadors-Consuls-their appointment & functions-
12. Treaties-Parties-Objects-Ratification-Reservation-Termination of Treaties-
Rebus sic stantibus-Interpretation of treaties.
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QUESTIONS BANK
"International Law is no Law at all' Discuss, Or "International Law is at the

vanishing point of Jurisprudence" Discuss.
2. Discuss the various sources of law with particular reference to their primacy
under the Statute of the I.C.J .Ref to leading cases.
3. "International Law' is part of the law of the land' - Discuss. Refer to the
leading cases & to the British & U.S .practice.
4. State the importance of codification and the steps taken to codify International
Law. Assess the contributions of the International Law Commission.
5. "States only are the subjects of International Law' Discuss.
6. (1) What is Recognition? What are the theories?
What are the consequences of Recognition?
(2) Distinguish between De facto & De Jure Recognition.
7. (1) Distinguish Dictatorial intervention from Intervention Pure and
simple.
When is a State empowered to Intervene in the affairs of another State.
** '
(2) Define Self Preservation. Is it allowed under the U.N. Charter? Explain
with illustrations how on grounds of necessity a State may resort to self-
defence measures.
8. 'The Grotians stand midway between the Positivists and the
Naturalists'.
Explain with reference to the Schools of International Law.
9. (!) Write an essay on the Freedom of the Open Sea.
(2) Discuss the concept of 'Continental Shelf with reference to recent
developments.
10. How are Ambassadors classified? What are their functions? Explain the
privileges & Immunities of the Ambassadors.
11. What is the rationale for ratification of treaties? What is the effect of
reservation to treaties? Refer to the LCI's Advisory opinion on Reservation
to Genocide Convention 1951.
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12. How are treaties terminated? Discuss Rebus Sic Stantibus.

13. What is International Delinquency? Discuss how far a State is liable for
International Delinquencies’
14. State and explain the consequences that flow as a result of State Succession.
15. Discuss the concept of Human Rights and Fundamental Freedoms & trace
the steps taken so far.
16. Discuss 'Occupation' and 'Prescription' as two modes of acquiring territory
by a State.
17. Discuss piracy as an International Crime.
18. 'The Legal equality of States, has four important consequences' Discuss
19. Discuss the concept of Non-extradition of Political Criminals Refer to
decided cases.
20. Write Short Notes on:
1. Maritime Belt 2. Economic Zone. 3. Hijacking. 4. Diplomatic Asylum.
5. Cobotage. 6.1nternational Canals. 7. Consuls. 8. Monroe doctrine. 9.
Stimson's doctrine of non-recognition. 10. Double Nationality and
Statelessness. 11. Neutralised State. 12. Outer Space. 13. International
Servitude 14. Calvo Clause 15. Drago Doctrine.
21. State the facts & the decision in:
1. Corfu Channel Case. 2. Nottembohm's Case. 3. Asylum Case and Haya
de la tarre Case. 4. Eichmann Case. 5-Savarkar's Case. 6.The Lotus Case.
7.Mighell V.Sultan.of Jahore. 8. Palmas Island Case. 9.Piracy jure Gentium.
10. Franconia Case. 11.West Rand Gold Mining Co .V.R. 12. Anglo-
Norwegian Fisheries Case. 13. Barcelona Traction Case. 14. The I am
Alone. 15.Chung Chi Cheung V the King. 16. Lawless Case. 17. North
Atlantic Coast Fisheries Case. 18. North Sea Continental Shelf Cases.
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CONTENTS
(International Law)
Chapters Pages Chapters Pages
1. Legal Basis of 10. Treaties

International Steps 41
law 7 Reservation
2. Sources 9 .Termination
3. International Law V.
Mun.Law 13 11. Equality 45
4. Codification 16 .
5. States as Subjects 18 12 Schools 46
6. Recongnition 20 13. Nationality 48
1. Recognition xt
1 15 Nationality 50
2. De facto, De Jure Double
7. Intervention 23 Statelessness
1. Intervention
2. Self-Preservation 15. Human Rights 52
8. Open Sea 26. 16. Territory 54
1. Freedom , 17. Additional
2. Territorial Waters Topics57
3. Contiguous Zone 1. Hijacking
4. EEZ 2. Hugo Grotius
.5. Continental Shelf 3. Monroe'Doctr
Piracy 4. Neutralised'St
9. Ambassadors 36
1. Institution
2. Privileges, Immunities
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CHAPTER 1
Legal Basis of International Law
i) Definition : International Law is defined as a body of
principles & rules commonly observed by States in their mutual
relationship with each other. It ; includes the law relating to States
& International organisations and also International Organisations
inter se. It also includes the rules of law relating to international
institutions and individuals, and non-State entities and individuals.
ii) Though there are theories on the legal basis. of

International Law, the Austinian theory has received wide
attention. Austin opined that International Law was not law at ail
and called it a 'Positive International Morality' and hence it had
only moral force. He called it
a set of opinions or sentiments current among nations generally and
"laws improperly so called". Hobbes, Pufendrof, Bentham and
Holland were of the same view. Holland said that it was at the
vanishing point of jurisprudence.
Austin defined law as a 'body of rules, set and enforced by
a sovereign political authority. Hence when the rules do pot come
from the sovereign, they would not be legal, but moral. Basing on
this positive law concept Austin declared International Law as a
code of morality. .
iii) Reply to Austin by Oppenheim : This definition is

inadequate and incorrect because there is no reference to unwritten
law (custom) as courts understand and apply them. Customary rules
or rules of morality are founded on conscience. Hence, law must be
defined to include the unwritten law. Neither the law making
sovereign authority nor the court is essential for a law to exist. In
the primitive community that was the position. In the modern State,
the common consent of the people is expressed through the
legislature (Parliament). But, there are unwritten laws as well.
*.
iv) Wider Definition : Law may therefore, -be defined 'as a
body of
rules in a community framed by common consent, and enforced by
an external power'. This definition answers the State-made law and
the customary law. Hence, in a State, the Parliament (representatives
of the Community) is the law making body and that law is
enforced by the
7
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Community called the State. A custom is made by the

community and is enforced by the community itself (Courts
recognise them as a source 6f law). Hence, this definition is wider.
Applying this definition if we are to justify that International Law
is 'Law', we must prove the existence of : (a) An International
community, (b) A body of International Rules and (c) A system of
enforcement (sanction),
a) International Community : The States together
form an
International Community. There are common interests in the
field of
science and technology. There is a 'world net-work of
communications
through telegraphic, telephonic connections and radios. There
are
Inter-State connections by railways, airways and ship navigation.
Further,
there is cultural co-operation and common interests on education
etc.,
Establishment of Organisations like the United Nations and the
Specialised
Agencies, Regional Agencies etc., speak volumes to the fact that
there
is a World Community.
b) Body of International Rules : Treaties & International
customs
are the main sources of International law. Austin's views however
right
for his time, are not true of present day International Law;
International
customs are being formulated into treaties & conventions. There is
great
volume of international legislation :
« f~
Eg. : Declaration of Paris 1856, Hague .Conventions of 1899

& 1907, Peace Treaty 1919, Treaty for Renunciation of War
1929, the U.N. Charter 1945, various conventions of the Law of the
Sea Conference 1958, Vienna Conventions on Diplomatic Relations
etc.,
There are also a large number of International Customary
Rules, evolved from diplomatic relations and correspondence from
the practice of international Organizations & State Practices, etc :
These are formulated into treaties & conventions. The International
Law Commission is playing its major role in this process. Thus,
8
there is no legal vacuum, but a body of international law in

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operation.
Enforcement : States resort to : 1; Self-help.

2. Intervention-pure & simple.
3. Pacific Settlement under the U.N. Charter-; Also to
Collective
Security Measures of the Security Council.
4. Punish ment of Offenders: e.g. : War Criminals. There are
also
rules of 'International. Community' based on goodwill,
courtesy & reciprocity & Austin is correct when his 'code of
international morality'
. * "' •
refers to them. But, those are different from International

legislation noted above.
5. Political questions may be resolved through the General
Assembly
or the Security Council. Judicial questions may be decided by the
International Court of Justice. There is a frequent resort to
Arbitration
as well. ,
Hence, for enforcement there is the sanction (or force) of the
International Community.
Conclusion: As all the three elements are present,
International! law is evidently law. Of course, the frequent violations
of International Law, show the weakness of the sanction of
International Law. But, as Oppenheim, rightly concludes,
'Compared to Municipal Law, it is a weak law, but a weak law is
still a law.'
CHAPTER 2
SOURCES Sources of
International Law.
i) Meaning : 'Source', according to Oppenheim, means the
ultimate origin from which the law originates. When we see a river
and desire to know its source, we must go up the river until we
reach a particular point where the water is oozing out naturally
from the soil. That is the source of the river. Similarly, in order to
find out the source of the principles of International Law we must
track back to a particular point. That is the source.
9
ii) The Statute of the I.C.J. in Art. 38, has enumerated the
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following sources of International Law on the basic of primacy

before the court:

a) International Conventions or treaties.
b) International Customary Law. '. .
c) General Principles of law recognised by' Civilised Nations.
d) Judicial Precedents.
e) Juristic Writings.
f) Ex aequo et bono. (Equity & good conscience)
These are to be applied in the same order by the I.C.J.
a) International Treaties :
There is primacy for this source at the International Court of
Justice. Treaties are of two kinds :
(i) Law-making and (ii) Treaty-contract.
Eg.: Pact of Paris 1956; Hague conventions of 1899 & 1907,
Peace Treaty 1919, Treaty for the Renunciation of War, 1929,
Geneva Convention relating to Prisoners of War 1929.
Conventions of the Law of the Sea Conference 1958 are examples.
(ii) Treaty-contracts -are non-law making in nature.
• . : - ...:'.•.
International Custom:
This is the original source of International law. It manifests in (i)
Diplomatic Correspondence of States, (ii) Practice of International
Organisations (iii) State Court's decisions, (iv) State Practice &
Administrative actions etc.
Origin : Custom has its-origin in a usage.,If the usage is
continuous, uniform and followed for a number of years it becomes
a custom. Usage is the twilight zone of custom. But. two
conditions must be satisfied :
(i) Corpus test : A material fact of the actual observance of a
line of conduct by the States. This mus. be shown as a fact.
(ii) Animus test : There must be an intention to follow the
custom. It reaches a stage of approval 'opinio juris sive
necessitatis' (Jurists' opinion as of necessity). Then, the principle
(usage) becomes an International Custom. This is the process of the
consummation of an usage into an International custom.
In the Lotus Case, the Court (P.C.I.J.) held that the opinio
juris must be drawn from all the circumstances, & not merely from
the facts on hand. In the Right of Passage case (Portugal Vs.
10
India), the I.C.J. held that a particular practice between two States
only may give rise to binding customary law. It held that Portugal
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had a right of passage for civilians but not for military officials.
In the Paquete Hebana Case the Court (U.S. Supreme Court)

held that looking to all the facts & circumstances, there was
uniform practice of giving 'immunity to small fishing vessels from
belligerent action in times of war. This was recognised as an
International Customary Law.
In the Asylum case
there was a rebellion in Lima (Capital of Peru), and the rebel-
leader Haya de la tarre, sought asylum in the Columbian embassy,
which it granted considering him as a political refugee. The
Peruvian Govt. contested this before the I.C.J. The Colombian
Govt. relied on International custom., but in vain. As the custom of
granting diplomatic asylum was not established, the court held that
the grant of asylum was without legal authority. The Peruvian Govt.
claimed for handing over of the rebel, from Colombian Embassy.
The I.C.J. held in Haya de la Tarre's case, that this decision was
that Colombian Govt. had no right to give asylum. It did not mean
that he should be handed over to Peru ! (He was safely taken to
Colombia).
c) General principles of law recognised by Civilized
Nations
This is the third source of International Law according to the
Statute of the I.C.J. (Art. 38). If there is no International Treaty or
International Custom, the court applies this source. One of the
essential duties of the Court is to decide the case and not to plead
its inability or helplessness on the ground that the law is silent or
obscure. Hence, it may evolve a process to arrive at a general
principle by taking into consideration the Municipal laws of the
major countries of the World. A principle which is common in
these countries may be raised to International level. As Lord
Phillimore points out these are principles which are common in all
Countries or jurisprudences like the principles of Res Judicata,
Subrogation etc. Hence, if the Court finds that a rule has been
accepted generally as a fundamental rule of justice by most
Nations in their Municipal Law, it may be declared as a rule of
International Law.
(i) In Administrative Tribunal Case (I.C.J.) the court held that
'res judicata' was a well-established & generally accepted rule. It
applied 'res judicata'. (According to this, a judgment given by a
competent court, bars any suit by the parties on the same issue).
(ii) In the Eastern Greenland Case the court applied the doctrine
11
of Estoppel and held that the Norway Govt. had accepted

references to Danish Sovereignty over Eastern Greenland, 85 thus
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had estopped itself from questioning the Sovereignty of Danish

Govt.
(iii) In the Temple of Preah Vihear Case the I.C.J. held that
Thailand was precluded by her conduct from questioning
Cambodia's sovereignty over the Temple.
(iv) In the Mavrommatis Palestine Concessions Case the
P.C.I.J. applied the doctrine of Subrogation.
Comments : It is stated that the recognition of 'General
Principles' as a source of law would sound the deathknell of
positivism. This statement is overdrawn, Positivits believe in the
common consent of the States as the basis of International Law.
Naturalists believe in the superiority of natural law only. Hence,
these two are opposite schools. The; above comment is a reference to
this and believes that the recognition of 'General Principles' based on
Natural law ended the positivists theory. But, this is not so. The
I.C.J. applies Treaties & Customs and only in their absence, resorts
to the 'General Principles of Law recognised by Civilised Nations/
Hence, priority is given to positive law.
d) judicial Precedents:
The decisions of the I.C.J., the P.C.I.J., the International
Arbitration Tribunals and the National Supreme Courts form the
fourth source of International Law. This is followed by the Courts
not only as a source, but also as the best evidence available to show
the existence of rules of International Law referred to in those
decisions, e.g.. ( i ) I.C.J.. decisions. The Fisheries Case (drawing of
straight baseline to determine the territorial waters), the
Reparations case declaring the U.N. as successor to the League of
Nations & that U,N. is an International Person have laid down
new principles of International law.
ii) P.C.I.J. : Palmas Island Case
iii) International court of Arbitration : Savarkar's case, Pious
Fund case, North Atlantic Coast Fisheries case etc.
iv) State Courts : Franconia case, Scotia case, Paqueta Habana
case etc.
e) Juristic Writings :
This is the source, next to the precedents. The I.C.J. may
refer to the teachings of the most highly qualified; publicists of the
various nations. In the 16th & 17th Centuries, writers on
International law held a pre-eminent position as this system of
12
law was in its slow ebb of

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development. Even today in areas where the law is uncertain the

classics of the jurists are referred to by the State's before the I.C.J. and
Arbitration Tribunals in support of their arguments. The judges pay
regard to the juristic writings as they are persuasive in nature.
The classical works of Gentili, Hugo Grotius, Zouche, Pufendorf,
Bynkershoek, Moser, Van Martens, Vattel, etc., are relied upon.
References are made to Oppenheim's treatises, and Lauterpacht's
writings, and to the texts of the International Law Commission.
f) Ex aequo et bono
This is the final source. This means equity & good
conscience. This saves the situation of helplessness of the Court.
One of the fundamentals of the judiciary is to solve the .dispute
on hand and not plead its helplessness or non- availability of any
definite law. In such a case, as a last resort, the court relies on its
own concept of equity and good conscience & decides the case on
hand, if the parties agree e.g., The P.C.I.J in the Diversion of
water from the River Meuse case said 'He who seeks equity must
do equity'. Hence, one party by non-performance, cannot take
advantage of a similar non-performance by the other party.
In the Rann of Kutch Arbitration (India V. Pakistan), both
parties relied on equity as part of International law, in deciding the
boundary dispute between the two parties the Tribunal found the
two deep inlets of Nagar Parkar as part of Pakistan, on grounds
of equity.
In the Continental Shelf Cases and in the Barcelona Traction
Case, the I.C.J has applied equitable principles to solve the
disputes.
CHAPTER 3
International Law Vs. Municipal Law
i) Introduction :
Two aspects are to be noted in the relationship between
Municipal Law & International Law. One is the theoretical
question whether both laws are part of a Universal legal order, or,
are two different systems. The other is the conflict between them in
the Municipal courts as to the primacy of Municipal Law over
International Law, or vice versa.
13
Page

ii) Two Schools:

.
The two schools are the Dualistic & the Monistic schools:
Monistic School : According to Anzilotti and Triepel,
International Law & Municipal Law are two separate & distinct
systems of law-one is the antipode of the other. The reasons are :
Sources : Municipal law has Acts of Parliament arid local

custom as sources of law, whereas International law has treaties and
International customs as primary sources. Thus they are
different. Secondly : Individuals are subjects in Municipal law,
whereas the States are subjects in International law. Thirdly :
Under Municipal law the State has its sway over the individuals,
whereas International law is between or among Sovereign States.
Dualistic School : Dualists school has been opposed by the

Monistic school (also called Vienna School) which holds the
following views : (founder Kelsen).
Firstly : Ultimately it is the conduct of the individual that
is regulated in both the systems of Municipal 86 International law.
Secondly : Law is a command on the subjects (Individuals or

States) independently of their will.
Thirdly : Both the systems are the manifestations of a single,
conception of law. Two .branches of the same tree.
From the above schools it is evident that International law

and Municipal law are separate according to the Dualists but one
and the same according to the Monists.
iii) Practice of States : In U.K.: Primary Rule :
International Customs : According to Blackstone, Customary
International Law is part of the law of the land. The British
Courts follow this rule but subject to two conditions ;
1. That such a rule should not be against any British
Statute.
2. That once the Court decides, it is followed thereafter.
The Blackstone's Theory was confirmed by judicial
determinations (Dolder V. Hunting field, Nevello V. Toogood etc.).
14
Page

Leading cases : 1.. R.V. Keyn (Franconia Case) 1876

Franconia, a German ship, collided with a British vessel within
the British Maritime Belt. The British Vessel sank and one
person -died. The British Court convicted the master of the
German ship for manslaughter. Question arose about the
jurisdiction of the Court as the incident had happened within the
British territorial waters. The House of Lords, held that the English
Court wa, bound by Municipal Law and Municipal Law had not
provided for the Jurisdiction hence no jurisdiction.
This was neutralized by the Parliament which passed the
Territorial Jurisdiction Act 1878 by extending the jurisdiction.
2. West Rand Gold Mining Co .V. King 1905.
This was a Company working a gold mine in South Africa.
The Govt. officials seized gold belonging to the Company &
according to laws they were to pay compensation or return the same.
South Africa was defeated by the British, and, the gold was
brought to England. Thereupon, the Company sued the English
Govt. for return of the gold or for compensation.
The Crown made a Declaration which stated that the British
Govt. as a successor would not respect the commitments of the
South African Govt.
The Court held that the Company was not entitled to the
gold or for compensation, as the Crown Declaration was Municipal
Law. binding on Municipal Courts
Hence, municipal Law prevailed.
3) Chung Chi Cheung V. King (Privy Council).

C was a cabin boy on board a Chinese vessel. 'When the
Vessel was in Hongkong Territorial Waters, he shot & killed the
Captain. & another person. C was duly committed. But. the
question was whether the Court of Hongkong (a British ' Colony
then) had jurisdiction to try the case. The Privy Council held that
the Court had jurisdiction. The conviction was affirmed.
Rules of Interpretation . The rules emerge from British practice . *
A rule of construction that the Parliament did not intend-to deviate
from international law. This is a presumption.
15
Page

ii) A rule of evidence according to which courts take

notice of International law.
b) Treaties : Negotiation, signature ratification are matters,
belonging to the prerogatives of the Crown. But legislation is
necessary, if treaties
4
are :-
*
1. Affecting the rights of subjects (citizens).
2. Modifying a statute. *
3. Vesting additional powers on the Crown.
4. Imposing financial burden.
Legislation is also necessary, if there is a provision for
cession of the territory.
Hence in case of treaties, incorporation is necessary,
otherwise, Muncipal law will prevail.
Practice of States : In U.S.A.
i) International Custom : The procedure is the same as in
U.K.
ii) International Treaties : The practice Is different- a s the U.S.
Constitution in Art. 6(2) provides that treaties are The Supreme –
Law of the land'. There is a clear distinction between self executing
and non-self executing treaties. Self executing treaties operate
without legislation. In case of non- self- executing treaties. they will
he operative only after legislation,
INDIA : Art. 51, of Directive Principles of State policy, provides
tor respect for International Law'. This provision is a reference to
the State Policy only. Broadly speaking the practice of U.K. is
followed in India, (Beruberi Union Case).
CHAPTER 4
• CODIFICATION
Codification
To provide definite laws to the International Courts. National
Courts. and Tribunals and to stimulate the willingness of States to
submit International disputes, codification gained momentum.
The idea of
16
Page

codification first came from Bentharn. The declaration of rights of Nations--of

1792 of France was the first attempt. Abhe Gregorie drafted 21 articles for
this purpose. However, the convention was not a success.
The first successful attempt was made at the First Hague Conference
convened by Emperor Nicholas II of Russa in 1899, This showed the
possibility of codification. The conference .codified inter alia : ,
i) Pacific settlement of disputes : and ii) Law and custom of war on land.
The second Hague Conference of 1907 passed 13 conventions. They
relate to Maritime Navigation, rules of war. Neutrality and opening of
Hostilities, etc., ^
A parallel development in the ‘field was the peace Treaty of 1919. It
provided for the League of Nations and the ILO and PCIJ. The League provided
for an International Law Commission consisting of 15 .Jurists. Subjects which
were ripe for codification were selected by them. Codification relating to
nationality, territorial waters, privileges and immunities of Ambassadors etc., were
successfully made.
The convention declared the renunciation of war as an instrument of
National Policy (1929).
. The codification of International Law conference met in 1930 provided for
conflict of Nationality laws; and Statelessness. etc.
Under the United Nations, the International Law Commission is charged with
the duty of codification and progressive development of International law. There
are now 34, members. Since 1948, the International Law Commission has
conducted its deliberations and submitted its drafts.
Codification has been made on many main topics .e.g., Privileges and
Immunities of Ambassadors. & of consuls and treaty law, etc. ,The
Commission has endeavored to give clear expression where there is a common
measure of agreement or uniform practice.
Codification has been viewed as systemization & codification of principles
agreed upon and (ii) agreement on hitherto divergent issues and practices..
Codification exposed the States to dangers of unanimity Rule. It also
showed that certain States did not like to commit in writing what they were
actually practicing.
Further, uniformity in opinion was not available and lengthy preparations
and discussions were inevitable. The earlier Conferences could not, possibly
achieve much:
17
The International Law Commission under the U.N. is almost free from
the dangers stated above. Its work is commendable and laudable
Page

Progressive development means the preparation of draft convention on

subjects which are not yet regulated or developed- Much work is done by the
International Law Commission, e.g. Geneva conventions on the-Law of the Sea
1958. Vienna Convention on Diplomatic Relations 1961, Vienna Convention on
the law of Treaties 1969 etc.,
The modern trend is, towards the speedier method of international law
making process: i.e. Treaties bi and multilateral This is called international
legislation. The role of these law making treaties is considerable. The
contributions of International court of Arbitration, P.Q.I.J. & I.C.J. are of great
significance Apart from these, the part played by
International.Law.Commission.. in formulating treaty-drafts, in respect of
volume & area covered, are phenomenal. The processes in codification & progressive
development of International law are confirming .on and have become part of
law making in the field' of. International law.
CHAPTER 5
STATES AS SUBJECTS
Ch 5. Subjects of International Law.

Primarily, International Law is concerned with the rights duties and interests
of States. As'International law 'is between or among the States, some jurists hold
the view. that 'only the State* are the subjects of International
law'.
Subjects of International Law meajis : .1. Incumbent of International rights
and duties :
2. Possessor of procedural privileges of suing in International Courts
and Tribunals :
'~* -i*
3. Possessor of interests under International law.

4. Capacity to enter into treaties & International obligations.
EXCEPTIONS :
i) Though it. is the conduct of the state that is regulated by international
law, in the ultimate analysis it is the conduct of the individuals that is regulated.
As Westlake opines 'The rights & duties of the States are ultimately the rights and
duties of-men. that compose them. Hence, though the States are normal subjects,
they may endow the individuals with the International rights & duties and to that
extent make them subjects of International law.
18
ii) Pirates who commit Piracy Jure Gentium on the high seas are liable to
punishment under International law. To that extent they are the subjects of
Page
International law,, but some jurists call them as objects.

iii) Slaves : International convention has provides for the abolition of

slavery. The convention also provides for the rights of the,slaves. They enjoy
these rights as subjects of International law.
iv) Belligerents : are subject to International rights and duties in respect of
war. Hence, they are subjects of International law. e.g. Geneva Conventions on the
Prisoners of war apply to them..
v) Individuals : May be allowed to appear before the International tribunals,
like ICJ. In Danzsig officials case, the ICJ. has opined that individuals may be
conferred with certain rights by States.
vi) War Criminals : The Nirenberg and Tokyo trials after II World War
showed that individuals could be tried for International crimes like crimes against
peace, crimes against humanity and crimes under the law of War.
Eichmann’s Trial fortifies the above position. The Nuremberg- Trial rightly
stated that crimes against International law are committed by men not by abstract
entities (States) and only by punishing individuals who commit crimes, can the
provisions of International, law be enforced.
vii) Genocide Convention : This provi des for punishment of those who
commit genocide, the punishment may be awarded by National or International
courts.
viii) European Commission for Human Rights has been empowered to
investigate and to report on violation of' human rights by the Member States. The
Lawless case decided by the European Court of Human Rights is an example.
ix) United Nations : The I. C. J. in the Reparations case held that the
United Nations is an International person. It is also 'declared as the subject of
International law, capable of International rights and obligations.
x) The Specialised Agencies like I.L.O., U.P.U., are International persons and
hence the subjects of International law as per their Constitutions.
xi) Regional Arrangements : Like the NATO., SEATO., etc. are also
endowed with International personality. Hence they are also subjects of
International law in a limited w iv.
These factors evidently prove that apart from Sovereign States, there are others
which are also the subjects though '.in a limited sense. It is no doubt true that
States are mainly the subjects, as the capacity to follow International
obligations, is on them primarily.
CHAPTER 6
19
RECOGNITION Ch. 6-1 Recognition.

Page

i) Definition :
It is the free act by which one or more States acknowledge the existence of
a politically organised independent sovereign community capable of observing
International obligations.
The recognition is for the membership of the 'Family of Nations'. Until
1857, there was an European family of Nations but in 1857, Turkey was admitted to
it and since then, it is no longer an exclusive European family of Nations. Today -
recognition is with reference to this family of Nations. (This is different from the
membership to the United Nations). ) Theories :
There are two theories :i) The Constitutive? theory and ii) The Declaratory
theory According to the Constitutive theory, the act of recognition alone creates
statehood, whereas according to the Declaratory theory, State exists prior to ,
and, independent of recognition. The act of recognition is merely a formal
acknowledgment of. an established situation. Hence, a new State becomes a
member of the family of Nations ipso facto by rising into existence and
recognition supplies only the necessary evidence of this fact.
According to the Montevideo Convention 1933, the essentials of statehood are

: a permanent population, definite territory, and established Go'Vt., and full capacity
to enter into International relations with other States. Sometimes a definite territory
is not always essential as is evident from State practice during World War II.
Hence, if these essentials are present, there is Statehood according to declaratoy
theory whereas according to Constitutive theory, such a community should be
recognised by other States.
Constitutive theory has its own supporters: There are two aspects, (a)
According to the traditional constitutive theory recognition is a political act pure &
simple and therefore an act of policy, (b) Lauterpacht differs from this. He opines
that each State has a duty towards the International community to recognise a new
State which fulfils the legal requirements of Statehood or other necessary
qualifications. This is a quasi- judicial authority. This duty is similar to the duty
under the Charter of United Nations for admission to the U.N. under Art. 4
Extaneous political considerations, should not be taken into consideration. But it
is difficult to accept Lauterpacht's views. If according to him, it is a legal duty to
recognise, what is the sanction behind this duty? Further, the actions of State in
recognising is yet uncontrolled by Independent rules. Even the Declaration of Rights
& Duties of' States 1949, does not prescribe such a duty. It is the traditional
theory that is largely in vogue, as .a matter of vital policy. Oppenheirn supports
this theory.
a) International State practice has recognised Declaratory theory. However,
20
recognition is with-held for political reasons, b) There is retro-active effect of

Page
recognition dating back to the actual rising into existence of the State, c) The
courts, in respect of treaties, take into consideration not the date of operation but
the date of coming into existence of the State.
In Luthor V Sagor : P company had owned a quantity of wood in Russia,
but it was nationalized by Russia which it took over in 1919, under a order. This
wood when sold by the Govt was bought by D company from the new USSR
Govt. P claimed
that the decree was not applicable as U.K. had not recognised USSR Govt. in
1919. U.K. recognised in 192.1. The English Court held that the Crown's
recognition of Soviet regime in 1921 was retroactive dating back to the time of
Soviet regime seizing power in 1917 and hence, its seizure of timber was
recognised as legal.
Hence, ipso facto by raising into existence, the new community becomes a
member of the family of Nations & recognition is only an acceptance of this fact.
Podesta Costa's theory :
His opinion that recognition is Facultative and not obligatory is more in accord
with State practice. When recognition is granted by States, they make it certain
that the new State to be recognised had the requisite legal qualifications. Only to
this degree, the act of recognition is a duty.
Consequences of recognition-:
Recognition confers a 'status' under international law & municipal law. The
recognised state gets certain rights, powers and privileges, as a consequence thereof. In
the absence of recognition, there would be certain disabilities to the unrecognised
state. For example, it cannot sue in the municipal courts of the state which has not
recognised it, similarly, its representatives cannot get privileges & immunities, etc.
Recognition'cures these & pther disabilities.
i) The new State acquires the capacity to enter into'relations with recognised
State and conclude treaties with them. The new State gets the? right to send & to
receive Ambassadors. (Active & Passive Legation), These ambassadors are entitled to
privileges & immunities in these States,
Past treaties revive" and come into force automatically. The new State gets
the right to sue in the recognising States.
iii) It acquires for itself and for its property immunity from the jurisdiction of
the recognising States.
iv) If it is a new successor State which ,is recognised, it becomes entitled to
demand and to receive possession of its predecessor's property situated in the
recognising States.
v) Recognition is retro-active and hence the courts of the recognising States are
not to question the legality of the acts (past & future) of the New State.
21
Page
This means the recognising States, become subject to certain obligations ;

simlarly, the new state also becomes sujects to certain obligations. Thus, it gets
the benefits & burdents according to International Law.
Ch. 6.3 De facto & Dejure.'
De facto is purely provisional or temporary. But de jure is final and binding.
De facto can be withdrawn if the existing circumstances show that the new
community is no longer holding the power and status. But, de jure recognition is
permanent and cannot be withdrawn.
iii) De facto deals with factual status, whereas de jure deals with the
juridical status.
vi) De facto is generally granted looking to the developments as regards
insurgents capacity and establishment. De jure is given if the granting State, is
fully. satisfied about the International capacity of the insurgent state.
The recognising State grants recognistion de jure, when the recognised state has
fulfilled the requirements for statehood and his the capacity to follow
International obligations ; However, it may grant de facto recognition when
there is only actual fulfillment of these requirements and hence may be
temporary & provisional This does not mean that de facto should be given first &
then de jure. In the estimation of recognising state, the recognised state has the
capacity to follow international obligations either de facto or de jure. This is
the policy of the State.
1. U.K. granted de facto recognition to Soviet Govt. in 1921, but
gave de jure in 1924.
2. U.K. granted de facto recognition to Italian conquest of Abyssinia
in 1936, but gave de jure in 1938.
3. The -Franco Govt. in Spain was given de facto recognition in
1936, but de jure was granted in 1938.
Leading Cases : (1) Luthor V Sagor (Refer Ch. 6.2)
(2) Haile Selassie V Cable & Wireless Ltd. C & W Defendant

company, owed monies to Emperor Haile Selassie of
Ethiopia. In 1935, Italy invaded Ethiopia .& took it over. The United .Kingdom
recognised de facto this Italian Govt. But, the Emperor Haile Selassie,
Plaintiff, was the de jure sovereign of Ethiopia. Subsequently, de jure
22
recognition was given to King of Italy; when the case was pending in the
Court.
Page

Held, de. jure recognition of King of 'Italy dates back to date of taking
over. Hence, plaintiff claim for recovery of money failed
(3) Arantazazu rnendi's case: during Spanish Civil War (1936-38) insurgents
had occupied a portion of territory 'and it was recognised de facto by U. K.
Here, Arantzazu rnandi was a ship registered in insurgent territory. Held, the
ship was entitled to immunity as U.K. had given de facto recognition.
CHAPTER 7 I
INTERVENTION
Ch. 7-1 Intervention.
It is of two kinds : i) Dictatorial Intervention &
, ii) Intervention pure & simple.
'Intervention is dictatorial it it is done by a State in the affairs of another State
for the purpose of maintaining or altering the actual condition of things. This is
forbidden by International Law.
But intervention pure and simple, like using Good offices. Negotiation,
mediation, ccmolat.ion are not forbidden. In 1826 at the instance of Portugal, U.K
sent British troops to Portugal to suppress the revolution en-gineered by Don
Dugal,
Intervention as a right can. take place in the following circumstances:
1. A State holding a protectorate has a right intervene in all external

affairs concerning the protected state.
2. When the external affairs of a State are also the affairs of another,
the latter may intervene when the former acts unilaterally. Russia &• ihe
defeated Turkey concluded the peace. U. K. protested as it was
inconsistent with treaty of Paris of 1856 and in the convention of London
1871, Russia agreed to meet & the Congress of Berlin met and resolved.
A state restricted by treaty in the external independence or

territorial supremacy, must comply with the provisions of the treaty. On
failure, the other party may intervene as of right. In 1926, USA,
intervened in Cuba, for the purpose of establishing order. This was in
23
accordance with the treaty of Havana.

Page
3. If a State violates universally recognised customary International

law or a provision of law making treaty, other States may intervene by

right, e.g. If any State does not act which affects the interests of
merchant vessels on the High Seas, the concerned State may intervene, to protect
them.
4. A State 'which has guaranteed another State particular form of.

Govt. or particular Dynasty may intervene in case of a change thereof.
5. A State may intervene to protect its citizens who are resident

abroad intervention may be to protect the interests of the property, person
or honour. U.S. intervened in Panama City to protect Americans.
6. Collective intervention under U . N . ' i s a recognised intervention.
The Security Council in t;he 'interest of maintaining Internationa! peace,
has intervened in Korea and Congo,
7. There are other' interventions which are not interventions by right,

but are nevertheless not prohibited.
a) Intervention in the interests of self-preservation, and
b) Intervention in the interests of balance of- power which is now
being replaced by collective intervention of the Security Council of the
U.N.
c) Humanitarian intervention : When State resorts to cruelties,
atrocities & persecutions of its own nationals, in such a way as to deny
their fundamental freedoms and 'U shock the conscience of mankmg'. in
the interest of humanity at large, intervention is permissible. U.K.,
U.S.S.R, and France intervened in the struggle between Greece and
Turkey, where many atrocities were committed.
Ch. 7-2 Self Preservation

Meaning :
States, as a rule are under a mutual duty to respect the personality of each
other, and also not to violate each other’s territories. However, acts
committed in self-preservation are not prohibited by the Law of Nations.
Self-preservation is considered as the first Law of Nature and every State has a
right to the integrity of its personality, and according to Vattel, it may do
whatever was necessary to preserve it. In later years it became clear that acts
done were legal 8& valid if they were for 'necessity'. Necessity must be 'instant,
overwhelming leaving no choice of means and no moment for deliberation.'
When a body of armed invaders are making preparations to invade the territory
24
of a State, the State cannot resort to self-defence measures, if there is time to

resort to the authorities where the invaders are presently making preparations,
Page
But, if the appeal is fruitless or if there is danger in delaying, the State is

justified in invading and disarming the invaders.

In the 19th century, the concept of 'Balance of Power' had its influence.
According to i t , as Vattal said, no arrangement should be allowed which would
allow an absolute mastery and domination over others. The Co ng ress of Vie nn a
re- arranged the map of Europe. This is now replaced by the Collective Security
measures of the United Nations.
ii) Self defence & Charter :
Art. 51 of the Charter, has recognised self defence as a right of the States. It
says that every State has an inherent right of individual (or collective) self-
defence, if there is an armed attack against a Member and the measures taken
must be reported to the U.N. This right mav be continued until the Security
Council resorts to the taking of Collective Security measures to maintain
International Peace & Security.
Instances of- Self-defence :
a) The Danish Fleet Case :
There was a secret clause in the Peace Treaty of Tilsit 1807. Under it,
Denmark could be forced to wage war against U.K. and France could seize the
Danish Fleet of Denmark. War broke out between U.K.. and France. There wa.s
danger to U.K. as, under the treaty if Danish Fleet was given to France, France
would easily attack U.K. Hence, the U.K. Govt. requested the Denmark Govt. to
deliver up the fleet to U-.K. & promised to return after the War. Denmark
refused. U.K. shelled Copenhagen and seized the Danish Fleet on grounds to
Sell defence.
b)Amelia Island Case :

.A band of Buccaneers had seized Amelia Island, under the command of the
adventurer Me Gregor. The Commercial vessels between Spain and U.S.A. were
pryed upon. Spain was incapable of and unwilling to drive out the Buccaneers.
President Munro sent a war-vessel which destroyed the establishment of the
pirates. This was on grounds of self defence.
c) The Caroline Case :
There was a rebellion in Canada in 1837. The rebels chartered the
vessel'Caroline' to carry ammunition from the U.S. port (Schlossar) to Canadian
Port '(Navy Island). U.K. considered this as an imminent danger. It sent British
forces, which seized Caroline set her on fire & sent her adrift down the Niagara
Falls. The United States strongly protested against the violation of its territorial
supremacy by U.K. apologised.
25
d) The Mexico Expedition :

Page
The U.S. to protect the American citizens and their property in Mexico,
despatched troops in 1916-1919 war. This was founded on necessity.

ff
e) Japanese Invasiorrof Manchuria :

There was a dispute between Japan and China. Japan invaded Manchuria on
grounds of self-defence. The League of Nations condemned Japanese aggfession, as
there was no necessity.
f) French Fleet at bran in 1940 :
•. . . -. /
U.K. wanted that French ships at Oran should not fall a prey to Germans.
France refused to allow U.K. to have Oran fleet. U.K. attacked and sank the fleet,
on grounds of necessity.
CHAPTER 8
Open Sea
Ch. 8-1. Freedom of the Open Sea.
i) History'& development :. -.
A conviction had grown in the beginning of the 15th Century that States
could extend the i r sovereignty over certain parts of the Open Sea. In 1493, the
Pope Alexander VI, divided the New World into two halves one to the Portuguese
& the other to Spaniards. Inspired by this, Spain claimed a major portion : in Pacific
& the Gulf of Mexico and Portugal claimed sovereignty over the whole of the
Indian Ocean. Great Britian had claimed the North Sea, the Narrow Seas,'& the
Atlantic.
These claims were not merely formal. Many ceremonials were in vogue. To
fish in North Sea, the party was to take out Licenses from the U.K. & when in
1636 the Dutch attempted to fish, it was compelled to pay penalty. When
Phillip II of Spain was coming to England to marry Queen Mary, the British
Admiral fired at his ship in 'British Sea' as he did not lower his flag, in honour
of the English Flag !
In 1580, the Spanish Ambassador in England, Mendoza, lodged a complaint
with Queen Elizabeth, against Drake, who had made a successful journey to the
Pacific. Elizabeth declared that vessels of all nations could navigate on the
Pacific Ocean since s the sea and the air were common to all. This was the
germ, out of which grew the freedom of the Open Sea.
In 1609 Grotius wrote his 'Mare Liberum' (12th Chapter of De Jure Belli ac
Pacis) commending the freedom of the Open Sea. John Selden attacked Grotius
26
and wrote his 'Mare closum' commending the closed seas concept, but this
Page
failed .
In later years the concept of the freedom of seas became a

Universally recognised rule in international law.
ii) Open Sea :
Open Sea is the coherent body of salt-water all over the Globe (with the
exception of the maritime belt, the territorial Straits, gulfs and bays of the sea)
but no part of it is an object of the law of Nations. Freedom of the Open Sea,
means that the Open Sea is not and never can be, under the sovereignty of
any State. It means that there is absolute freedom of navigation for all Nations
whether merchantmen or war-ships.
iii) Rationale :
The Rationale for Open Sea according to Grotius are :
a) It could not be occupied effectively by any State.

b) It is Res extra Commercium like light & air and can be used by
everybody & is inexhaustible :
c) The modern reason is that the Open Sea is an International
highway & hence should not be under the sway of any State (Oppenheim).
iv) Law & Order :
Freedom of the Open Sea does not mean anarchy and lawlessness. On the
contrary, over the centuries, International customary law has grown providing
for legal order on the High Seas.
a) Vessels flying the Maritime flag are subject to protection, and
unauthorised use 'of flags is punishable. A ship without a flag may be
seized by any State.
b) Every State may punish as a matter of right, piracy jure Gentium,
c) 'Floating Island' theory provided that each Vessel was subject to
the exclusive jurisdiction of the flag State over persons and goods.
d) Fisheries,in the Open Sea was free & open to all.
e) Various provisions were made by States in their Municipal laws
prescribing qualifications. Seaworthiness Certificate, Registration, Muster
Roll, Log Book, Bill of lading, Charter party etc. P ' my rules developed
relating to Signalling (Washington Conference 1889), collisions (Brussels
Convention), Blockade and contraband, search & seizure 'hot pursuit',
and abuse of flag.
f) The I.M.C.O., as a specialised agency was established in 1945
specially to establish standards & to gurantee Maritime safety & efficiency
in navigation. This has done much commendable job through its
27
Assembly, Council & the Maritime Safety Committee.

Page
v) Law of the Sea Conference 1958 : (Geneva). Much of the law relating
to the Sea is codified under the Geneva Convention on the High Seas 1958,
Geneva a convention on Fishing & conservation of the Living Resources on
the High Seas 1960.
Every State has a right to sail ships under its flag (Art. 4). Ships engaged in
piracy or slave trade may be seized by any State etc.
vi) Recent Developments :
a) Moscow Neuclear Treaty 1963 has imposed a ban on neuclear
tests in the territorial waters & on the High- Seas (Art. 1).
b) Certain duties have been imposed on States in respect of Pollution,

e.g.: Prevention of Pollution from ships convention 1973, and Maritime
Pollution Prevention 1972.
f) Law of the Sea Treaty 1982 has made detailed provisions on the use of
sea, the continental shelf, EEZ & contiguous zone.
Ch. 8-2. Territorial Waters.
i) Origin :
This is the traditional Canon-Shot or the Maritime Belt Rule. The Origin of
this can be traced to Bynkershoeck (an ardent follower of Hugo Grotius). In 1702
he published his work 'Essay on Sovereignty over the Sea', in which he
commended that the Maritime State could dominate only such width of the
Maritime waters as lay within the range of a Canon-Shot from the shore batteries.
He was the first jurist to enunciate this in terms of Canon Shot. In later years, the
range was fixed at the instance of a military expert of those days called
Galiani. He stated that the maximum range for the Canon Shot was 3 miles
from the shore.
ii) Width :
The 3 miles-limit became commonly accepted by the States and the Courts in
the 19th Century, the U.K. &. U.S.A. taking the lead. But, in the 20th Century
a number of States claimed a wider width extending upto 12 miles !
a) The Hague Codification Conference 1930, opposed the traditional
concept of 3 miles. It was a 'idol dethroned and not restored'. Hence,
no agreement could be reached.
b) In Geneva Conference on the Law of the Sea 1958, the U.S. &
the U.K. did not agree on a 12 mile limit, though they were prepared to accept
a 6 mile limit. The opposition for a 12 mile limit was based on Security : (i)
Submarines may travel undetected through the territorial waters of Neutral States
and create problems during war. (ii) There was also the view that with 12 miles
28
the available area of the Sea for free navigation, free fisheries & free over flight
Page
by aircraft etc. would be diminished.

The net result was, though 3 miles was accepted unive rsally, the disagreement
was with the range between 3 to 12 miles.
c) The Third U.N. Conference on the Law of the Sea, gave a decent burial to
the 3 mile limit. The weight of State practice is in favour of a 12 mile-limit,
but this is to be made with multilateral treaties among States.
iii) Measurement :
Although this has not created much difficulty, the baseline method adopted by
the Court (I.C.J.) 1951, has been widely .accepted.
Anglo Norwegian Fisheries Case : U.K. Vs Norway. The facts .were :
Certain claims were made by the Nowegain Goyt. creating an exclusive fisheries zone
for itself.- It followed the straight, baseline method selecting some 48 points to
measure the breadth of the territorial waters. This was upheld by the Court.
This was accepted by the convention on Territorial Waters & Contiguous Zone,
(1958). (However, where the baseline method is not possible the low waterline
method may be followed).
iv) Jurisdiction •:
The 'Territorial Waters' is an area over which the maritime State has
exclusive sovereign rights. Sometimes jurisdiction is extended. The leading case -
.Lotus Case decided by P.C.I.J in 1927. A French, Steamer, the LOTUS, collided
with a Turkish Vessel on the high seas due to gross negligence of officer of Lotus.
The Turkish vessel sank, and 8 Turkish nationals died. Turkey based its claim on
the ground that the 1 negligence on board Lotus, had its effect on Turkish vessel
& hence, on a portion of Turkish territory. Held, Turkey was entitled to
succeed.
a) The Maritime State has exclusive fishery rights and also it may
reserve its right of cabotage (to navigate betweeb two ports of the Maritime
State itself)
b) The Maritime State has sovereignty over the surface, the subsoil,
and" the superincumbent air space (1958 convention).
*
c) There is a customary rule of International law of allowing 'innocent

passage' through the territorial waters. (Recognised & defined by the
1958 convention).
d) The Maritime State has exclusive jurisdiction- Civil, Administra
tive, Sanitation, Custom and Criminal. However, in respect of foreign
vessels passing through territorial water the jurisdiction is limited as per
the convention of 1958.
The leading case is the Corfu Channel case 1949.
Facts were: Mines had been laid within the territorial belt of Albania during
29
October 1946. British Vessel passing through the belt, struck the mine on 22nd
Page
Oct. 46 & was damaged. Subsequently, the British Govt. on, 13th
November_Conducted the mine sweeping operations. It sued Albania for damages,

contending that Albania was responsible or had knowledge about the mines.
The I.C.J. held (i) Albania was liable &
(ii) U.K. has violated Albania's sovereignty, as she has' swept the mines
without Albania's permission.
e) Right t o 'hot pursuit', (to-chase and seize a vessel that has iolated
the Maritime laws of a State) is recognised.
But, this ends when the
vessel enters the territorial waters of any other State.
' Leading Case 'The I am alone' (Canada V.U.S.).

'I am alone', a British vessel (Regd. in Canada) was suspected of smuggling
liquor within 10 miles off U.S. coast (L'ouisiania) "Wolcot" & later another
vessel Dexter set out to seize her & hence made a hot chase.
Both were able to reach at a distance of 200- miles off the coast. They gave
warning, but later fired at. The men on deck died & it was sunk.
Commissioners were appointed to decide
(i) the right of hot pursuit (ii) Whether sinking was justified.
Held, U.S. had the right of hot pursuit & could use
reasonable force to bring to port the suspected vessel.
But sinking in this case was not reasonable force, and hence illegal. The
1924 Convention between U.K. & U.S. discussed and as International Law
does not recognise use of unreasonable force .
U.S. was guilty & 25,000 dollars were awarded as compensation to the
families of persons who died.
**************
Ch, 8-3.-The Contiguous Zone.

i) Traditional Concept :
This is the area over the Sea, beyond the 3 mile limit but extending upto 12
miles from the Sea Shore. The measurement is to be made in the same manner
as in Territorial Waters. (Fisheries Case). The littoral State may claim exclusive
fishing rights within this zone and has no
30
jurisdiction over the waters or the airspace above it

Page

. ii) Recent Trends :

The United Nations Conference on the Law of the Sea. (UNCLOS ) 1973-76
launched an ambitious programme to codify the entire law relating to Sea. A
number of these UNCLOS. sessions have been held so far. The latest is the
1982 Law of the Seas Treaty
The territorial waters,

Contiguous Zone , Exclusive Economic Zone and the Continental Shelf are
shown here for reference
31
Page
Ch. 8-4. Exclusive Economic Zone: Refer Diagram

Though the concept of contiguous zone" is retained, the UNCLOS. .sessions

have accepted the Exclusive Economic Zone (EEZ.). This has its roots in
exclusive fishing zone concept & the doctrine of continental shelf. If combines &
develops the two. Some States have laid claim upto a distance of 200 miles
from the sea-shore. (There is much disagreement for this regime). The EEZ is
the subject of the meritime State for the purpose of exploring & exploiting,
conserving & managing the natural resources of the bed & the superjacent waters.
This includes fisheries. Some States have already proceeded on these lines to
claim over EEZ.
This has many problems yet to be resolved (a) The relation of EEZ to the
high seas, (b) The precise rights & their extent in the zone, (c) The problem of
land-locked areas who have no such natural resounes & advantages.
Fisheries Jurisdiction Case (U.K.V. Iceland) 1974 (I.C.J.). The court recognised
the preferential rights of Iceland for fisheries in the fishery zone, in view of its
economic resources depending on fisheries. Iceland had first extended to 50
miles. Later it extended to 200 miles. The latest position is that United Nations
conference on the Law of the Sea UNCLOS 1985 has recognised upto 200
nautical miles, from the baseline.
This 200-mile limit is not arbitrary . It is based on the fact that the most lucrative fishing
grounds lie within 200 nautical miles from the coast. It has the richest fish food pastures.
Within the EEZ, maritime State has no sovereignty, but has the right of
exploring, exploiting & conserving the resources of the Sea UNCLOS 1985 has
provided detailed provisions in this regard.
Ch. 8-5. The Continental Shelf.

i) Origin and development :
The Origin of this concept may be traced to the proclamation made by
President Truman of the United States in 1945. By 1945 it had become
technically possible to drill for oil & for other resources in the sea-bed, and, the
Truman Declaration gave leg.il status to it. It stated that the littoral States had
jurisdiction over the natural resources of the
subsoil and the sea bed of the 'continental shelf and that the exploitation by that
State was just & reasonable. Other Nations followed suit and made similar
declarations.
ii) Definition: Refer diagram
The Geneva Convention on the Continental Shelf 1958, defined Continental
Shelf as the area adjacent to the coast, outside territorial sea, to a depth of 200
metres (or-to beyond that to a depth where exploitation is possible).
The Coastal State according to the convention exercises exclusive rights of
exploring & exploiting the natural resources, including the living organism and the
32
non-living mineral resources. The Coastal State has only limited rights and has
no sovereignty over the continental shelf. Further, it has no rights over the waters
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or the airspace above the shelf.

In the North Sea Continental Shelf Cases [Federal Republic of Germany Vs.
Denmark & the Netherlands (1969)], the question of
delimiting North Sea Shelf areas was discussed. The Court held that there
was no general customary International Law, in existence. Regarding the
Division of a Common Continental Shelf, the court held that such a delimitation
must be under a treaty & that the arrangements for division must be based on
'equitable principles.' The court also expressed the view that even a joint
exploitation of the Shelf by the concerned States could be made.
i i Developments:
Since the Geneva 1958 settlement, there were fast developments in the field
of Continental Shelf : ,
a) New Technology had developed to exploit oil & gas in Ocean
depths.
b) New States were financially and technologically at a disadvantage
and became grav ly concerned over the monopoly by some powerful
States.
c) 1967, the .Maltese Govt. initiated a plan to declare that the
sea-bed resources beyond continental shelf 'was a common heritage of
mankind', & must ! e developed in the interests of all States.
The fear was the possible arms-race in the sea- bed beyond the
Continental Shelf area.
Such a declaration was made by the United Nations in 1970. It
also appointed a 84 member committee on the peaceful uses of that sea
bed-area beyond the Continental Shelf.
The stretch of the continental shelf is as in diagram.

33
d) The U.N. during 1973-76 held five sessions on the Law of the sea &
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made 5 conventions.
iv) Developments : The Law of the Sea Treaty, 1982 is very
comprehensive with 303 Articles and is the lengthiest treaty . U S
has not ratified even in 2011.
<
There is much controversy among the Nations, and the United Nations in
its various conferences could not make any headway. On the contrary, the U.S. &
other States, including India have defined in their municipal laws : Territorial
waters upto 12 miles, contiguous zone upto 24 miles, & Continental .Shelf upto
200 miles, from the sea shore.
Gh, 8-6 Piracy Jure Gentium.

i) Definition : Piracy is defined as every unauthorised act 0f violence, against
persons or goods committed on the Open Sea, by a'private vessels against another
vessel, or by the mutinous crew or, passengers against their own vessel.
Geneva Convention of 1958 on the Law of the sea, has codified the law
relating to Piracy.- It has given , an extensive definition and Articles 100 to 107,
deal with scope, jurisdiction & suppression of Piracy,
A pirate is considered as an outlaw, a 'Hostis Humani Generis'. The pirate
loses the protection of his home State. Piracy is an International crime. Generally,
it is a private vessel that can commit piracy. (Art, 16 of the convention on the
High Seas).
. . • • - * '
' 'Motive'- It is not necessary that the pirate should have the intent to
plunder (Animus furandi). It was decided in the leading case, 'In re piracy jure
getium' that actual robbery was not an essential element . Even frustrated
attempt was declared as piratical in nature.
Hence, 'the motive may be other than making profit e.g., Revenge.
ii) If the crew or the passengers revolt on the open sea and convert the vessel
and her goods to their own use,, they are guilty of piracy. If the crew resort to
murdering the master because of his cruelty, it is not piracy but only murder. If
the purpose is to convert the ship and the goods to their own use ,it would be
piracy,
iii) If a person stops a vessel for taking a rich passenger off the vessel
with -a view to get high ransom, or if a person stops a vessel to kill certain
persons on board the ship, the act is piratical.
iv) The crew is guilty of piracy when they force the master through intimidation
or force to steer the vessel to other place than its destination.
v) Cases : (1) Case of .in re re piracy jure Gentium ;

34
In 1931, two Chinese junks pursued & fired at a Chinese Vessel. During the
Page
chase the attackers were captured by the English ship which brought them to Hong
Kong & tried for murder. There was no actual robbery. The Privy Council held
that 'actual robbery1 was .not essential for piracy. They were held guilty of
piracy.
The court also referred to The Magellan "Pirates Case where it had been held
that robbery was not essential.
(2) In Ambrose Light Case, the U.S. Supreme Court held that an armed
vessel without State authority was a pirate even though no act of robbery is
committed.
(3) Hauscar's Case :
There was a rebellion in Peru. The insurgents put Huascar, an ironclad
vessel, stopped British steamers, took coal from them without paying for "it and
forcibly took two officials. It was decided that the act was piracy.
(4) Santa Maria Incident (1961) : Political opponents on board a Portuguese
vessel, seized it. It was taken to Brazil. Brazil gave Azylum to them. Vessel later
returned to Portugal. Are they, pirates ? Perhaps, not.
vi) Jurisdiction : National courts have jurisdiction to punish pirates. As piracy
is an International crime any maritime State has,, by customary International Law,
the right to punish. The vessels of any Nation may attack and seize them on the
High Seas and. bring for trial and punishment. The punishment may be capital. The
ship and the cargo may'be returned to the real owner.
Recent developments Since 1990 . the number of pirate attacks has increased . The
International Maritime Bureau (IMB),says in 2003 there were 445 reported attacks against ships .
Somali pirates in December 2011 released an Italian-owned Aframax oil tanker after receiving an
$11.5m payment.
Recently, The Savina Caylyn was seized in February 2011. Pirates have hijacked a Greek-owned
oil tanker carrying 135,000 tonnes of crude oil in the Arabian Sea, : l Britain and other EU
countries are considering air strikes on logistical hubs
The United Nations Convention on the Law of the Sea (UNCLOS). , is the key international legal
instruments governing sovereign rights at sea and the use of the maritime environment. With few
exceptions, all other littoral states have accepted UNCLOS.
The U.S. has not ratified this even in2011.

35
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CHAPTER - 9
\
AMBASSADORS
Ch. 9-1. Institution of Legation : Ambassadors.. i) History t
The institution of Legation started first and religious Ambassadors were
sent to start with. Later for political purposes Ambassadors were
The institution of Legation started first and religious Ambassadors were
sent to start with. Later for political purposes Ambassadors were
sent on a temporary basis. Eg.: to conclude peace; Permanent legation
was initiated by Venice. It sent permanent Ambassadors to France,
Switzerland, Germany etc. in the 15th century. It then became an
established institution. All sovereign States are having permanent offices
called diplomatic enclaves. Legation is a sovereign attribute of the State.
Ambassadors position is not based on representation is omni -modae which
means representation with all powers like the Sovereign or Crown. His
authority is limited.
ii) Appointment:
..*
Ambassadors are appointed by one Head of State, to another
Head of State. Before appointment, States consult the receiving
State, as to whether the individual is persona grata or non-grata,
(Person acceptable or not). A letter of exequature is given to
Ambassadors which states his appointment, authority and powers.
iii) Functions:
v ,
a) Negotiation, (b) Observation, (c) Reporting (d)

Miscellaneous.
a) Negotiation :
He is the mouth-piece and the representative of his State. He
can negotiate on behalf of the State,. collect the view-points, and
enter into treaty conclude peace etc.
b) Observation :
He must come in contact with State Officials, V.I.P.s.,
business magnates etc. He should attend social and other
gatherings. He must work with a 'serpent's ear and eagle's eye'. He
must collect all relevant information relating to the State.
c) Reporting:
36
Reporting to his Country of all information gathered by him,

Page
is his
i essential duty. He must keep his country informed of all

political and
other developments taking place in the receiving State.
d) Miscellaneous :
i
He must keep in touch with his people who are residing in the
receiving State. He must protect their interests. , He
officiates in marriages, keeps records of births and deaths etc,
37
Page

iv) Classes of Ambassadors :

The classification was made at the .Congress of Vienna in
1815, in which the order of merit was placed as the criterion for
classification. Special honours are due to each class.
a) Ambassadors.
b) Plenipotentiaries.
c) Ministers Resident.
d) Charge de affaires.
The Ambassador is entitled to be addressed as 'Your
Excellency'. The Plenipotentiary may, by courtesy, be called
'Your Excellency'. Minister resident are not addressed like that.
Charge de affairs are sent by one foreign office to another
foreign office. He is never addressed as your Excellency.
v) Privileges and Immunities of Ambassadors :Privileges and
immunities are special rights of Ambassadors built on reciprocal
basis through International custom and treaties.
T he very fact that Ambassadors are saddled with
multifarious functions and responsibilities shows that in effect, they
must have certain privileges and immunities, for the due discharge
of their functions & responsibilities. The objective, is to provide an
independent & free atmosphere to discharge their functions
effectively, with dignity & honour.
Codfication : The Vienna Convention on Diplomatic Relations
1961 has codified the customary law relating to* Ambassadors
and of their
privileges & immunities.
a) Exterritoriality:
Under the legal fiction even though physically an Ambassador
and his diplomatic enclave are inside the receiving State, they are
considered to be legally outside the territory of the receiving State.
Ambassador is beyond the jurisdiction of local authority.
The police have no jurisdiction over the diplomatic enclave.
Similarly civil and criminal courts have no jurisdiction. On.the
contrary, the receiving state is under a duty to protect the person
of the Ambassador and of his retinue.
Further, the building, records, his equipment, should also be
38
protected against any possible strike and invasion, civil

disturbance etc. Further, the local
Page

administrative authorities have no jurisdiction over the enclave.

Postal bags are to be protected. They are not to be tampered.
h) Immunity from Criminal Jurisdiction':

An Ambassador is beyond the jurisdiction of the Criminal Courts in
receiving State. The Portuguese Ambassador Mendoza, had
attempted to dethrone Queen Elizabeth in 1584 in England. Gentili, a
great jurist was consulted. He declared that Ambassadors were immune
& that they should not be arrested, or tried or punished at all. Thereupon,
the Queen requested Mandoza, 'His Excellency', to leave the country. De
Boss, an Ambassador in England attempted against the life of Cromwell.
He was asked to leave the Country within 24 hours. L'Auhespine
attempted against the life of Queen Elizabath. He was warned.
c) Immunity from Civil Jurisdiction :

He is immune from the jurisdiction of the Civil Courts. He is not
liable for tortious and contractual liabilities.
d! Immunity fro in Administrative Tribunals :

He is outside the jurisdiction. Tribunals have no powers over
them.
e) Immunity from Taxes :

He is free from the income tax and all other local taxes of the
receiving State. He may of course pay fee or charges for services done
(current, water, sewage etc.).
f) Rights of Subpoena :
This means, he is' privileged and cannot be called to a court as a
witness. Summonses should not be issued to him.. , ,
g) Right of Chapel [religious practices] within the enclave. :
h) Right of Waiver
Ambassador may waive his 'right and submit to the jurisdiction
of the Court in cases he thinks fit.
i) Right of self jurisdiction :
He has jurisdiction over all the persons" inside the enclave, within
certain limits.
iv) Classes of Ambassadors :
The classification was made at the .Congress of Vienna in 1815, in
40
which the order of merit was placed as the criterion for classification.
Special honours are due to each class.
Page

e) Ambassadors.
f) Plenipotentiaries.
g) Ministers Resident.
h) Charge de affaires.
The Ambassador is entitled to be addressed as 'Your
Excellency'. The Plenipotentiary may, by courtesy, be called 'Your
Excellency'. Minister resident are not addressed like that.
Charge de affairs are sent by one foreign office to another foreign
office. He is never addressed as your Excellency.
v) Privileges and Immunities of Ambassadors :Privileges and
immunities are special rights of Ambassadors built on reciprocal basis
through International custom and treaties. T he very fact that
Ambassadors are saddled with multifarious functions and responsibilites
shows that in effect, they must have certain privileges and
immunities, for the due discharge of their functions & responsibilities.
The objective, is to provide an independent & free atmosphere to
discharge their functions effectively, with dignity & honour.
Codfication : The Vienna Convention on Diplomatic Relations
1961 has codified the customary law relating to* Ambassadors and
of their
privileges & immunities.
a) Exterritoriality:
Under the legal fiction even though physically an Ambassador
and his diplomatic enclave are inside the receiving State, they are
considered to be legally outside the territory of the receiving State.
Ambassador is beyond the jurisdiction of local authority. The police
have no jurisdiction over the diplomatic enclave. Similarly civil and
criminal courts have no jurisdiction. On.the contrary, the receiving
state is under a duty to protect the person of the Ambassador and of
his retinue. Further, the building, records, his equipment, should also
be protected against any possible strike and invasion, civil
disturbance etc. Further, the local administrative authorities have no
jurisdiction over the enclave. Postal bags are to be protected.
They are not to be tampered.
h) Immunity from Criminal Jurisdiction':

An Ambassador is beyond the jurisdiction of the Criminal Courts in
receiving State. The Portuguese Ambassador Mendoza, had
41
attempted to dethrone Queen Elizabeth in 1584 in England. Gentili, a

great jurist was consulted. He declared that Ambassadors were immune
Page
& that they should not be arrested, or tried or punished at all. Thereupon,
the Queen requested Mandoza, 'His Excellency', to leave the country. De

Boss, an Ambassador in England attempted against the life of Cromwell.
He was asked to leave the Country within 24 hours. L'Auhe spine
attempted against the life of Queen Elizabath. He was warned.
c) Immunity from Civil Jurisdiction :

He is immune from the jurisdiction of the Civil Courts. He is not
liable for tortious and contractual liabilities.
d! Immunity fro in Administrative Tribunals :

He is outside the jurisdiction. Tribunals have no powers over
them.
e) Immunity from Taxes :

He is free from the income tax and all other local taxes of the
receiving State. He may of course pay fee or charges for services done
(current, water, sewage etc.).
f) Rights of Subpoena :
This means, he is' privileged and cannot be called to a court as a
witness. Summonses should not be issued to him.. , ,
g) Right of Chapel [religious practices] within the enclave. :
h) Right of Waiver
Ambassador may waive his 'right and submit to the jurisdiction
of the Court in cases he thinks fit.
i) Right of self jurisdiction :
He has jurisdiction over all the persons" inside the enclave, within
certain limits.
42
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CHAPTER 10
TREATIES Ch. 10.1 Steps in Treaty

making :
i) Treaty defined :
The Vienna Convention on the Law of Treaties 1969 codified
the law relating to the Treaties, which was hitherto mostly in the
customary form.' This is the authoritative text on Treaty law.
A treaty is defined (Art. 2), as an agreement whereby two or
more States, establish or seek to establish a relationship between
themselves governed by International Law. The object of the treaty
is to impose obligations on the States parties to it.
i i ) Steps in Treaty-making :
a) Appointment of Representatives or delegates
b) Negotiation
c) Draft and final draft
d) Signature & exchange of instrument
e) Ratification
f) Reservation to Treaties
g) Registration.
iii) Effect of Signature :
The conclusion of. a treaty or convention is marked by the
State-parties subscribing their signatures. The effect of such
signature depends on whether the treaty is subject to ratification or
not.
a) If subject to ratification, signature means that the parties
have
agreed to the text and are willing to refer it to their States for
ratification.
b) If not subject t o ratification, the general opinion is that the
treaty
is binding from the date of signature.
iv) Ratification :
It is the approval by the Head of State or the Govt. of the signature
43
appended to by their delegates. It is defined as an International

Page
act whereby a State establishes on the International plane its

consent to be bound by a treaty. (Art. 2: Vienna Convention);

Whether ratification is necessary for a treaty or not depends on
the intentions of the parties.
v) Rationale:
The rationale (or reason) for ratification are :
a) State as a Sovereign must have the opportunity of examining
and
reviewing the treaties signed by their delegates.
b) State may withdraw from the treaty if it so desires.
c) The duration between signature & ratification is an
opportunity
to the State to follow the constitutional processes for ratification.
d) The democratic principle is that the Govt. should refer
to its
people in Parliament or elsewhere.
e) The acts of omissions can be corrected by the State.
Excesses
may be checked. Omission may be supplied.
Ch. 10.2 a) Reservation to Treaties':
A reservation is defined by the Vienna convention as an unilateral
statement made by a Stale when signing, ratifying, accepting
approving or acceding to a treaty, the State thereby desires to
modify legal effects of certain provisions of the treaty in their -
application to that State.
e.g. : Reservation stipulating exemption from certain sections or
modification of certain provisions, or interpretation of certain
provisions.
The privilege of making reservation is considered as an incident of

sovereignty.
b) Reservations to the Genocide Convention ;
The United State made certain reservations to the Genocide
convention. The question was whether in a multilateral treaty such a
reservation could be made. The I.C.J. held : (advisory opinion).
a) That if the reservation affects the very basis or vitals of
the treaty the other States may treat the reserving State as not a
party at all.
44
Page
b) If it does not so affect hut is compatible with the objectives &

principles of the treaty, then the other States may consider the
reserving State as a party to the treaty.
In the Vienna convention, the test of compatibility was
adopted.
c) Consequences :
The complications caused by the reservations can be avoided.
a) by making a provision in the treaty that no reservations
are
allowed arid
b) by providing for reservation of some clauses stated in the
treaty
itself.
Ch. .10.3 Termination of Treaties.

Modes :
International law recognises the termination of treaties by
operation of law or by act of parties.
a) By mutual agreement
b) By efflux of time, [when the period is fixed by the
parties.]
c) By achieving the objectives or the purposes of the treaty.
d) Impossibility due to permanent destruction of the subject of
treaty.
e) By Novatio ; [ substituting a new treaty].
f) Another mode of termination is under clausula rebus sic
stantibus
Rebus Sic stantibus

The sanctity and the binding force of International law is
expressed by Anzilotti in the expression 'Pacta sunt servanda' (sanctity
behind treaty). The clausula Rebus Sic Stantibus is more or less
an antithesis[opposite] of the. Above concept. The clause
provides that a State is freed from its treaty-obligations by reason of
an essential change of circumstances under which the treaty was
concluded
45
ii) Origin :
Page
The principle may be traced to the Canon Law (Church Law).

The
Roman Jurists applied it in their jus civile, for contracts. It was
Gentili who introduced it into International Law,
iii) Juristic Opinions :

Grotius Opined that a change of circumstances did not
affect a promise unless it was .most patently clear that the original
circumstances were part of the consideration of the Contract.
Hence, a party could, repudiate.
Bynkershoeck rejected the unilateral repudiation of a treaty.
To Vattel, a change in those circumstances which were essential

to the treaty, created to the State an opportunity to repudiate;
HEFFTER" and BLUNTSCHLI, rocked in the cradle of

Nationalism of the 19th century stated that if the treaty conflicted
with the rights and Welfare of the people, the State might violate
the treaty.
Trieske went a step further and said that if the treaty is

different from the actual political conditions, it may request the
other parly to cancel the treaty. On refusal, it may declare war to
find out and prove the existence of change of circumstances.
Hautefeille said that a treaty, which surrenders it’s land or
national right was not obligatory.
Bonfils said that -the very cause which gave birth to the
treaty when comes to an end, the treaty gets dissolved.
To Fiore, treaties which hamper the free development of the
State activity were null and void.
To Oppenheim self-preservation and development of the
Nation were grounds to denounce treaty obligations.
The Internationa! "Law Commission in Art. 62 of the
Vienna Convention on the Law of Treaties stated that a
fundamental change on grounds of equity & justice' would be a
reason to repudiate a treaty. But it provides exception to boundary
treaties, treaties imposing International obligations etc, and hence
these cannot be repudiated.
iv) State Practice :

46
Page
a) Russian Action, 1870 :

Treaty of Paris 1856 provided for the 'Neutralisation of Black

Sea.' It restricted Russia from having troops there. Russia-repudiated
.this and claimed that it was no longer bound by it for the following
reasons : ( 1 ) There was combination of Danubian Principalities.
There was use of iron-clad vessels .in war. Russia was rebuked by
the Conference of
London, but it was condoned.

b) Peace Treaty 1919':
This was repudiated by Germany. Germany was condemned
by
the States, but was condoned. i
e) Straits Convention of 1923 :
The German violation of this, was condoned-by States.
v) Case La\v;
There is not a single instance wherein the Clausula has been
applied. In the Serbians and Brazilian's claims case, the
International Court ol Justice heard on the doctrine, but did n ot
apply it.
Hence, the Clausula is not in vogue but. a State may

desperately resort to it to justify its action.
C HAPTER 11
EQUALITY OF STATES
Ch. 1 1 . Equality of States.
a) Concept :
The origin of the doctrine of equality of States may be
traced to Jus 'Naturale (Natural Law). According to it ; 'A dwarf
is as much a man, as a giant is.' This concept is extended to the
relationship "between str^'-s, by the Naturalists who hold that all
States are equal in the eye of law. In fact, equality is the quality
that is derived from State's International Personality.
According to this doctrine, all States are equal in law,
irrespective of the size, population, economic or military power,
degree ot civilisation wealth, social patterns & other qualities.
47
b) Consequences :
Page

There are four important consequences, that flow from the

concept i) Every State has a right to vote and to one vote
only.
ii) Legally, the vote of the weakest and the smallest State
is as weighty as the vote of the largest & the powerful State;
Hi) The third consequence is 'Par in parern, npn habet
irnperium' (No State can claim jurisdiction over another). Hence,
although the States can sue in Foreign Country they cannot be
sued unless they submit. Eg. : A suit in rem against a vessel in
possession of a Foreign State is entertained. However, there is the
Sovereign immunity of States, and hence, a Foreign State cannot,
be sued.
iv) Courts of one State do not question the validity or
legality of the official acts of another Sovereign State.
Legal equality should not .be confused with political equality
Politically, they are not equal. Great powers always enjoy a priority
of actions.
In the United Nations, there is equality in the General

Assembly. Each member has only one Vote. In the Security Council,
the permanent big five - U.S.A. U.K., U.S.S.R., France & China
(enjoy the Veto Power. Art. 27 of the U.N. -Charter). All substantial
questions require the consent of all the permanent members. A
Permanent member may exercise 'Double Veto' and stampede the
progress. The enforcement measure for breach of the peace and acts
of aggression may be strained by the Veto Power.'
Subject to this, equality is a practical concept and a
concomitant
aspect of State personality.
CHAPTER 12
, ' EXTRADITION
Ch. 12 i) Definition & Scope :
Extradition is a process by which an accused is reconducted
back to the place Where he is alleged to have committed an
offence. The person should be tried only for the offence for
which he has been
extradited.
48
It is based on the principles that evidence is freely available

in the
Page
State where the offence is committed, and that a criminal should

not go unpunished.
i i ) Conditions :
a) Double criminality test : The act must be an offence in
both the sending and the receiving States. (Jacob Factor's Case and
Eislers Case).
b) Principle of Specialty : The requesting State is under a
duty not
to punish the fugitive for any offence -other than for which he
was
extradited.
c) Extraditable crime : The act must be one which is
extraditable
according to the treaty of extradition between the parties, e.g.:
Murder,
cheating etc.
Exception : i) Political crimes, ii) Military crimes e.g. desertipn.
iii) Religious offences are non-extraditable.
d) The persons must be extraditable. States refuse to
surrender its
nationals who have taken refuge in their own Countries.
Ch. 12.2. Non-extradition of political criminals.
One major exception to extradition is that there would be -no

extradition for political criminals, religious & military offenders.
These are called as non-extraditable offences.
The concept of non-extradition can be traced to the Frenc h

Revolution. Persons accused of political crimes could have been
extradited prior to the French Revolution. Even Grotius had
commended the extradition of political criminals. Many other
writers had also- written on similar lines.
In 1815 the Govt. of Gibralter surrendered political criminals

to 'Spain. This gave rise to great indignation among the States.
In 1833 Austria, "France and Russia concluded the treaty &

defined certain offences. In the same year, Belgium enacted an
extradition law incorporating the non-extradition, rule. In. 1867,
49
other.States followed suit.

Page
.. Attempts were made to define 'political crimes'. High treason,

'lege Majeste' and relative political crimes were broadly classified as

crimes which are not extraditable.
The Russian project, of 1881 attempted at "defining lege

majeste Clauses. A Conference was convened, but if failed to
reach any conclusion.. The Swiss law of 1892 related to extradition
of persons who were accused of offence having more complexities
in crimes. In 1934 an attempt was made under the League for a
convention to extradite persons accused of acts of political
terrorism. 23 State participated. This was not ratified.
' . - -
• -
Cases : (i) In 1857 Jacqulin Brothers in France

attempted at a-railway explosion, to murder Napolean III & escaped
to Belgium. Belgium refused to extradite them. *
ii) Savarkar's. Case : Savarkar, an Indian and a British subject,
was being transported from U.K. to India for the purpose of his
trial on a charge of high treason and murder. -He escaped whe n
the vessel w as at Marseilles. France.- But he was caught by a
French policeman who in mistaken execution of his duty, handed
him over to the Captain of the ship without extradition
proceedings. French Govt. demanded U.K. to send him back. U.K
did not comply with this demand. This matter went to the
Permanent Court of Arbitration at the- Hague. It decided in
favour of U.K. in holding, that there were no rules of
International law imposing in such circumstances, any obligation
on a State which has in its custody a prisoner, to restore him
because of a mistake committed by the foreign agent who delivered
him up to that power. France failed. Savarkar could not get the
benefit.
hi) Asylum Cases : Hay a de la Tarre was given Asylum as a
political refugee by the Columbian Embassy in Peru. There was no
provision to surrender him to the Peruvian Govt. the I.C.'J. held.
He was protected.
iv) In re castioni, the court refused extradition to the political
refugee who had in a revolution shot and killed a member of the
Govt. in. Ticinio.
v) Kolsynski's Case : K & others had political opinions
against Poland for-which th(>v could '.be.punished. They forced the
ship (English) to go to England but were arrested in England. It
50
was held that they were political refugees & hence not to be
extradited to Poland.
Page
vi) Recent cases : Re Nielsen (1984); U.S. v Mccaffery

(1984) Belgium Govt. v Post Lethwaite (1987)
CHAPTER 13
SCHOOLS
Ch. 13 Schools of International Law.
It is said "Grotians stand midway between Positivists &
Naturalists
The three schools are : Positivist's School. Naturalist's School

and Grotian's School.
Positivists': England is the cradle of positivism. The most
impressive & historically prominent among positivists is
Bynkershoeck the founder of this school.
The main line of approach of the positivists is that rules of

International "Law are, in the final analysis, the same as
positive municipal law, because' of the 'Will' or the common
consent of the States to follow them. The State is a meta-
physical entity and hence it has a 'Will'.
The States have accepted International Law by auto

limitation, without this consent rules of International law are not
binding. In respect of International Custom, this school holds the,
view, that there is tacit consent and hence are binding.
Zouche : Opined that outside positive law there was no
l International
a
w
.
51
Page

Moser : He deliberately ignored the Law of Nature & declared

the omnipotence of positive Law of Nations,
Martens : The rules of International Law were, to him,
positive rules & to ascertain these the special relationship between
Nations must be noted.
i •-
Zorn : To him International Law was a branch of Municipal
law
& on that ground binding. Treipel, holds the same view.
Anzilotti : is the outstanding positivist of recent years. He

traced the binding force of International law to 'Pacta Suut
Servandar.
Naturalists:
This school is diametrically opposed to positivists school.

Briefly stated it holds the view that Natural law is the basis of law
arid so of International Law. It does not recognise treaties & customs
as based on consent but says that they are part of Natural Law.
Natural Law means the law of reason.
Pufendorf : is the founder and the Champion of this school

of thought. He opined that there was no law among Nations,
except the Law of nature. He is not a denier of International Law.
To him Natural law is a legal order superimposed on men &
Nations by a higher power.
Equality among Nations is a concept derived from Law of
Nature. 'A dwarf is as much a man as' a giant is' he argues. Vattel
strongly supported the Law of Nature and claimed that as States
are composed of men & as the policies are determined by men
these men are subject to the Law of nature. Zouche, opined that
customary Law of Nations was purely founded on Natural Law.
Influence : The Law of Nature has had a tremendous

beneficent influence on the development of International Law.
Som e of the covenants like (i) the covenant on Economic, Social &
Cultural rights and (ii) Covenant on Civil & Political rights (1966)
Universal Declaration of Human Rights 1948 etc. have their origin
in the Law of Nature.
52
Grotians :
Page
It is said that Grotians stand -midway between Positivists

and , Naturalists.
Grotius started with the Law of Nature and selected such rules
which were eternal and unchangeable having their origin in the
Natural Law. Certain principles of conduct accepted by the States
in the form of treaties & customs were voluntary Law of Nations.
His'-'method of secularisation with his brilliant expositions mainly
bused on jus naturale and coordinating that with voluntary law of
Nations, placed him at the highest pedestal as the Father of the
Law of Nations. His followers Zouche "and Vattel commended the
writings of Grotius: besides contributing heavily to the Law of
Nations.
CHAPTER 14
NATIONALITY .
Ch. 14.1 Nationality. i) Definition :
'Nationality is the principal link between the Individual and
the benefits of International Law' (Oppenheim). In practical terms it
is a continuing legal relationship between the Sovereign State and its
citizens. The basis of his Nationality is his allegiance and
membership of the Sovereign State. It gives him the political status
as a 'National' of his State. It is the Municipal Law of each Stat e
that determines who are its .Nationals. Hence Nationality Law is
made by the States themselves. This .is not the concern of
International Law.
ii) Importance:
a) The right to diplomatic protection abroad is an essential
attribute
of Nationality of the individual. Every State has a right to
protect its
Nationals 85 property abroad. (Calvin's Case)
b) Enemy status is determined during war, on the basis of
Nationality.
c) A State may refuse to extradite its own Nationals.
53
iii) Acquisition :
Page
a) jus soli-place of birth.

b) Jus Sanguinis (Parentage)

c) By Naturalization or
d) Registration.
e) By acquisition of territory by a State and conferring
Nationality
on the inhabitants thereof.
E ac h S t at e ha s p r o v id e d in it s N at io n a l i t y La w t he p r o ced u r e
t o a cq u ir e N at io n a l it y. Ac c o r d in g t o t h e I . C. J. t h er e mu s t b e a
'g e n u in e l in k ' b et w ee n t h e in d i v id u a l a n d t h e S t at e.
The lead ing case is Nottehoh m' s Ca se : decided by t he
I.C.J. The question was whether Nottebohm was a National of
Liechtenstein ? If so he could get protection of his property in
Gautemala. The I.C.J. held that there must be a 'genuine link',
between the individual & the State. Nottebohm a German, was
resident in Gautemala. He acquired the Nationality of
Liechstenstein (without observing the requirements of residence etc.)
and took oath of allegiance. In 1943, his property in Gautemala was
taken over under War measures. Nattebohm was refused admission to
Gautemala. Hence, he went to Liechstestein which instituted
proceedings against Gautemala, to give protection to the property
of Nottebohm in Gautemala.
The I.C.J. held that there must be a 'genuine link' between
Nottebohm & Liechstestein, but, there was no such link. Hence,
it rejected Liechstestein's claim.
Ch. 14.2 Double Nationality :

t/ . . . . .
As the Nationality laws of different States are different,

conflicts may arise. Hence, in a State where both Jus Soli and
Jus Sangauinis are recognised, a child born there may acquire two
nationalities. A child born of German Parents in India, acquires
Indian Nationality by birth and German Nationality by parentage.
Similarly, a woman marrying a person of another State may
acquire Double Nationality.
54
The Hague .Convention of 1930, on the conflict of Nationality

Laws provided for treating a person who had double nationality as
Page

one who has only one Nationality.

The U.N. has made provisions relating to the mitigation of
the artificial link. Married woman may retain their pre- marriage
nationality.
Ch. 14.3 Statelessness :
This is a peculiar condition recognised by both the municipal
law and International law. The Universal Declaration of Human
Rights provided that everyone has a right to Nationality, and that no
one should be arbitrarily deprived of his Nationality. Statelessness
may arise by :-
1, Change of sovereignty over territory or
2. Denationalisation by States. The consequences are grave.
There
will be a great hardship and insecurity to the Stateles's person as
there
will be no State to protect him and of his interests. International
Law
has provided for certain remedies :- Imposing duties on States to
regard Nationality as acquired.
a) Making States oblige in not passing denationalisation laws.
b) Granting of Nationality by Liberal-minded States.
c) Reliefs provided for in the Geneva Convention 1954.
d) International Refugee Organisation has to a large extent
solved
this problem.
CHAPTER 15
HUMAN RIGHTS
Ch 15 Human Rights & Fundamental Freedoms.

i) Introduction :
One of the foremost developments, of the Post-Second World
War is the recognition of the Human rights and the Fundamental
freedoms on a Global scale. Perhaps, the Nazi persecutions
between 1933-45, gave an impetus to establish the respect for
55
human rights as the .corner stone of the present day World

movement.
Page

ii) Instruments & Declarations-:

a) The U.N. Charter 1945 : In the preamble it affirmed
faith in
the fundamental human rights, and in Art. 2. it declared the
objective
of promoting fundamental freedoms. The General Assembly and
: the
ECOSOC, may take steps to promote these freedoms. These
are not
binding, but are only recommendatory.
b) The Pairs Peace Treaty (1947) with Italy, Rumania.
Bulgaria,
Hungary and Finland. These were general pledges but only
enunciations.
c) Universal Declaration of Human Rights 1948 adopted
by the
General Assembly.
Various Human rights have been declared. This is a 'pathfinding'
instrument. The purpose of the Declaration, is limited. It
provides for a generally acceptable catalogue of man's rights. There
is of course no enforcement machinery.
d) The European Convention for the Protection of Human
Rights
56
Page

and Fundamental Freedoms 1950, This applies to the ‘Member of the

Council of Europe, This is a step more effective than the Universal
Declaration of 1948.
i) It imposed binding provisions. ii) It defined the various rights.
iii) It provided for" European Commission for Human Rights to
investigate and to ,report on violations,
iv) It provided for a European Court for Human rights. This became
operative, from 1958. This Court has as many judges as there are
Member-States. Their tenure is 9 years. Appeals or references fire made
from the member-States to this court.
The Leading Cases are :
1. Lawless Case : The court held that the detention of Lawless for over
5 months, by Ireland was violative of the European convention.
, 2 . In Wemhoff Case from West Germany, W was arrested and
detained for breach of trust. There was delay in conducting the trial. The
European Court held that in the light, of the circumstances the delay was not
unreasonable.
3. Neumeister Case : An Austrian was arrested for tax evasion in
1961. He was brought 'to trial in Austria in 1964. The case had not
been decided even in 1968,
• . . ". ' - . " - • - ' - '..- " " • " " - ! • ' " . • • ' ' / . -- - ' ' _ . ' -
The European Court held that there was unreasonable r delay & hence,
there was violation of the European Convention;
4. Golder Case-: (United Kingdom) :- In this case, the prison
authorities refused permission to the prisoner Golder to consult his solicitor.
The European Court held that this was violative of = the European
Convention.
e).- Covenant on Economic, Social & Cultural Rights arid Covenant on.
Civil SB Political rights 1966. Both were adopted by the General'
Assembly. The annual report of the progress made under these two
Covenants is reviewed by the ECOSOC of the United Nations.
f) There are a score of other covenants made in recent years some of
them are regional and others global.
Inter-American Convention on Human Rights 1969 and the
57
Page

Inter-American Court of Human Rights. These are similar to the

European Commission and Court.
Similarly the Helsinki Declaration of 1975 with over 30 States,
pledges respect to human rights and freedoms.
All these endeavors show the remarkable progress made in this vital area
of the development of human personality, which is a movement of significance
par excellence.
CHAPTER 16
TERRITORY
Ch. 16 Acquisition of Territory.

i) Definition:
Territorial Sovereignty is one of the attributes of the International
•personality of the State. 'Sovereignty in regard to a territory meanthe
right to exercise therein the functions of the State, to the exclusion of
others. The functions of the State, are the State activities on an adequate
scale as per the I.C.J. in Western Sahara Case. (1975)
ii) Modes of Acquiring Territory :
There are five traditional modes of acquiring territorial sovereignty.
1. Occupation.
2. Prescription.
3. Accretion.
4. Cession.
5. Annexation.
i i i ) Occupation :
It is the oldest and the original mode of acquisition of territory, by a
State. A territory which belongs to no 'State' (terra nullius) or a newly
discovered , territory or abandoned area may be the object of occupation.
58
Two conditions must be satisfied :

(1) 'The animus' or the intention of acquiring sovereignty over the
Page
territory and
(2) 'The Corpus', adequate display of sovereignty over the territory

taken under its sway.
(1) The animus or intention is to be inferred from all the facts and
circumstances. There must be a permanent intention. Hence, mere
discovery is not enough. Huber J. in Palmas Island Case held that mere
discovery gave inchoate (incomplete) title. In this case, •• there was a
dispute over the Palmas -Island. Spain had originally discovered it. and,
the United States had succeeded to it. But, according to the historical
evidence the Netherlands had for a very long time exercised .sovereign
activities. Huber J. held that Spain by 'mere' discovery got incomplete
title, and as such its successor the U.S. also got incomplete title. Hence,
the court found in favour of the Netherlands.
(2) The Second is the Corpus test. : There must be an actual display
of State activity to constitute effective occupation. ^.g. flying of the
National flag, collection of taxes & tolls, exercise of administrative control,
application of legislative Acts, rules or executive measures, etc. the act
may be manifest or symbolic. In remote areas elaborate 'control is not
required,
a) The Eastern Greenland Case (P.C.I.JJ the dispute was between
Norway & Denmark. Denmark was able to establish its actual display of
sovereignty and also its animus. Denmark succeeded.
,.b) In Minqu'icrs. & Ecrehos Case (I.G.J) U.K. and France claimed-
there'"two eyelets. U.K. was able to show the evidence of its actual
sovereign activity with the intention thereof. U.K. succeeded.
c) In Western Sahara Case (I.C.J.) the court held that the territory was
not a terra nullius at the time of Spanish occupation. It found that the two
tests were riot established by Morocco or Mauritania, the claimants.
Hence, it advised that the General Assembly of the U.N. may apply its
principle of decolonisation and self-determination of Western Sahara.
59
Page

CHAPTER 17
ADDITIONAL TOPICS
Gft. 17.1. Hijacking.

i) The increase in the volume of air-traffic brought in its wake a grave.
menace to the safety of civil aviation in the form of 'Hijacking'. by 1960, there
were sufficient number of Hijacking incidents .& terrorist activities, to call for some
International action.
Two conventions were made :
a) Tokyo Convention of 1963.
b) Hague Convention of 1970.
to deal with Hijackers and to punish them.
ii) Definition : The Hague Convention 1970 defined the offence of Hijacking :-
A person is guilty of the 'Offence', if he, when on board an aircraft in flight,

unlawfully seizes or controls that aircraft (or attempts thereof) with the use of
force or threat. An accomplice is also liable.
iii) Hijacking Acts : Many States have made Hijacking Acts and prescribed
severe punishments. The jurisdiction is 'Universality' and hence any State may
catch him. The States may not allow extradition of Hijackers guilty of 'political
offences'.
Incidents :
1) The most daring Hijacking was done at -Dawson Field in 1970
at Jordon, with 400 passengers & crew. The Hijackers succeeded •in
getting the Palestinian arab guerrillas held at London released.
2) Entebbe raid is another example.
In recent years many incidents have been reported. However, the two
conventions are adequate to meet such situations with the active cooperation of the
Member-States.
60
Page

Ch. 17.2 Hugo Grotius
i) As Father of the Law of Nations

Hugo Grotius a Dutch Scholar, jurist and diplomat is rightly called as the
'Father of the Law of Nations'. His treatise 'De jure belli ac pads' (The law of
war & .peace) is a masterpiece. This is the first comprehensive framework of the
modern science of International Law.
•ii) Biography
He was born at Delft in Holland in 1583. He was a precocious child with
marvelous gifts & talents. He started studying law when he was 11 years and
took the Doctor of Laws at Orleans in Erance when he was fifteen years of age
! He was a lawyer for some years, but took to politics & became involved in
political and religious quarrels for which he was arrested and sent to prison for
life. In ,1621, he escaped and entered Sweden and became an Ambassador. He
died in 1645,
iii) His Contributions :
a) He started from the Law of Nature as the law of 'reason'. His
brilliant scientific analysis of the Law of Nations is broad based -on the
Law of Nature but he gave the due place to the voluntary Law 'of Nations
(Positivists theory).
b) His treatise De jure belli-ac pacis dealt with a number of doctrines:
: The Freedom of the Open Seas (Mare liberem), 'Just and unjust Wars'.
'Qualified Neutrality' 'the- rights and freedoms of individuals' etc. He
also stressed the importance of 'Periodical Conference & meetings' of
States.
c) No doubt Grotius had drawn heavily from his predecessor Gentili
and others, but no one can deny that Grotius was the formost thinkers in the
field of the Law of Nations. He left a deep impression on his successors.
d) his writings are often referred to by International Arbitral Tribunals
and the International Court of Justice.
His contributions to International law are so valuable in magnitude and
application that he richly deserves the title the Father of the Law of Nations.
Ch. 17.3 Monroe doctrine. (1823)

i) History :
Russia, which was in possession of Alaska (later this was sold to the U.S.)
claimed t h e Pacific Coast. The Spanish Colonies in South America had become
independent Republics. Spain to get back these Colonies, attempted to intervene
61
with the assistance of Russia, Prussia & Austria (Trip!e alliance). President Monroe
of the United States saw the American interests being deeply affected, declared in
Page
a Message to the Congress in 1823 :

a) American continent would no longer be a subject for future

colonisation by a European power.
b) America has not interfered so far and has no desire, in. future to
interfere in European colonies & dependencies.
c) Any attempt, .by European powers to extend their system to any
portion of the American Continent would be regarded as dangerous to
the peace & safety of the United States.
This prevented any interference by Spain or the Triple alliance, ii)
Development :
a) Though this was more political than legal, it had its impacts in
the years to come. The League, recognized the regional security
arrangements made .by the U.,S., on the. basis of this doctrine. These were
later called as 'regional arrangements under the U.N. Charter.'
b) Cuban Operation : The selective blockade of Cuba in 1952, by the
U.S. to remove root & branch the Missile installation by the U.S.S.R. in Cuba, is
an extension of this doctrine.
Ch. 17.4 Neutralised State.

Switzerland is an example.
It is a State whose independence & political & territorial integrity "are
guaranteed permanently by a collective agreement of great powers subject to the
conditions that are imposed therein. The neutralised State should not wage war
with other States except in self defence ; Further it should not enter in to
alliances, pacts etc,, which may affect its impartiality.
The object is to protect small States & to safeguard the interests of 'Buffer'
States which lie between two big powers. Switzerland's status as a neutralised
state remains a fundamental principle in Inte
THE END
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"International Law is no Law at all' Discuss, Or "International Law is at the

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Community called the State. A custom is made by the

Eg. : Declaration of Paris 1856, Hague .Conventions of 1899

there is no legal vacuum, but a body of international law in

Enforcement : States resort to : 1; Self-help.

refers to them. But, those are different from International

following sources of International Law on the basic of primacy

before the court:

In the Paquete Hebana Case the Court (U.S. Supreme Court)

of Estoppel and held that the Norway Govt. had accepted

had estopped itself from questioning the Sovereignty of Danish

law was in its slow ebb of

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development. Even today in areas where the law is uncertain the

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ii) Two Schools:

Sources : Municipal law has Acts of Parliament arid local

Dualistic School : Dualists school has been opposed by the

Secondly : Law is a command on the subjects (Individuals or

From the above schools it is evident that International law

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Leading cases : 1.. R.V. Keyn (Franconia Case) 1876

3) Chung Chi Cheung V. King (Privy Council).

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ii) A rule of evidence according to which courts take

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codification first came from Bentharn. The declaration of rights of Nations--of

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Progressive development means the preparation of draft convention on

Ch 5. Subjects of International Law.

3. Possessor of interests under International law.

International law,, but some jurists call them as objects.

iii) Slaves : International convention has provides for the abolition of

RECOGNITION Ch. 6-1 Recognition.

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According to the Montevideo Convention 1933, the essentials of statehood are

recognition is with-held for political reasons, b) There is retro-active effect of