1.

Acquisition of Territorial Sovereignty

Q What are the modes of acquiring territorial sovereignty?
Ans Acquisition of Territorial Sovereignty
International law generally recognizes five modes of acquiring territorial sovereignty by a state,
they are
(1) Occupation: When a particular territory is not under the authority of any other state, a state
can establish its sovereignty over such territory by occupation. The territory may never have
belonged to any state, or it may have been abandoned by the previous sovereign. The
PCIJ( permanent court of international justice) held that the occupation to be effective must
consist of the following two elements
(i) intention to occupy. Such intention must be formally expressed and it must be permanent.
(ii) occupation should be peaceful, continuous.
There mere act of discovery by one state is not enough to confer a title by occupation. There
are two requirements (i) the territory subject to claim must not be under the sovereignty of nay
state ( terra nullius) (ii) the state must have effectively occupied the territory.
(2) Annexation: Annexation means to incorporate (territory) into the domain of a country.
Annexation is a unilateral act where territory is seized by one state. It can also imply a certain
measure of coercion, expansionism or unilateralism. e.g 1961 annexation of Goa. Annexation of
Golan Heights by Israel in 1967.
(3) Accretion: Where a new territory is added mainly through natural causes to territory already
under the sovereignty of a state, acquisition by accretion takes place. Accretion refers to the
physical expansion of an existing territory through geographical process.
(4) Cession: When a state transfers its territory to another state, acquisition by cession takes
place in favour of such later state. The cession of territory maybe voluntary or maybe under
compulsion as a result of war. The act of cession maybe even in the nature of a gift, sale,
exchange or lease. Cession is the transfer of territory usually by treaty from one state to another.
e.g France cession of Louisiana to U.S in 1803.
cession of Alaska. Purchases of Alaska by U.S (from Russia in 1867).
(5) Prescription: It means continued occupation over a long period of time by one state of
territory actually and originally belonging to another state. Requirements of prescription (i) the
possession must be peaceful (b) the possession must be public (iii) the possession must be for a
long period of time.
Prescription is the acquisition of territory which belonged to another state, where as
occupation is acquisition of terra nullius. However, international law doesnot prescribe any fixed
period for prescription.
The acquisition of territory by force was historically recognized as a lawful method for
acquiring sovereignty, but has been illegal in international law since the U.N charter came into
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Modes of acquisition of nationality

Q What are the methods for acquiring nationality?

Ans According to Oppenheim" Nationality of an individual is the quality of being a subject of a
certain state and therefore its citizens" Nationality can be both acquired or lost through different
methods. Sometimes there can be double citizenship and sometimes statelessness.
Modes of acquisition of Nationality:
(1) By Birth:- The first and most important mode of acquiring nationality is by birth. The vast
majority of mankind acquires nationality by birth. It may be according to jus soli (right of soil),
that the citizenship of a child is determined by the place of birth. It may be according to jus
sanguinis (right of blood), that nationality is determined by having one or both parents who are
citizens of the nation.
e.g a child born in U.S of French parents has American nationality.
(2) Naturalization: The most important mode of acquiring nationality besides by birth is that of
naturalization. When a person living in a foreign state acquires the citizenship of that state then it
is said to be acquired through naturalization. Through naturalization, an alien by birth acquires
the nationality of the naturalizing state. Naturalization may take place through different acts.
(i) Marriage-- marriage to a foreign national
(ii) legitimation or adoption of children
(iii) acquisition of domicile
(iv) appoint as govt. official
The condition for naturalization found in municipal laws vary from country to country.
Residence for a certain period of time is the most common requirement.
(3) Resumption: Sometimes it so happens that a person may lose his nationality because of
certain reasons. Subsequently he may resume his nationality after fulfilling certain conditions.
(4) By Subjugation: When a state is defeated or conquered, all the citizens acquire the
nationality of the conquering state.

(5) Cession: When a state has been ceded in another state, all the people of the territory acquire
the nationality of the state inwhich their territory has been merged.

State Succession

Q What is Succession? Discuss two kinds of succession.

Ans Succession is merger or absorbtion of one state by another state or states. State succession is
distinguished from govt. succession. When succession takes place then a state loses itself fully or
a part of its territory while in case of govt. succession only the organization of a govt or
constitutional structure changes.
The rule of state succession was incorporated from the Roman Law by Grotius. In Roman
law when a person dies his rights and duties are succeeded by his successor. A state may lose part
of its territory, or it may lose all of it. Loss of territory may result in the enlargement of one or
more states. When a succession situation arises, the point of chief legal interest is the effect, on
the international rights and obligations of the state or states concerned.
Kinds of Succession. State succession are of two types (1) Universal Succession (2) Partial
Succession
(1) Universal Succession: If the legal identity of a community is completely destroyed there is
said to be universal succession of states. Universal succession takes place when a state is
completely absorbed by another, either through subjugation or through voluntary merger.
Universal succession takes place under the following circumstances
(a) When the territory of a state is forcibly annexed by other state.
(b) When a state voluntary merges into one or several states.
(c) When one state is divided into several states and several states are formed.
(2) Partial Succession: When as a result of civil war or war of liberation, a part of state breaks
off and takes up an independent position. Partial succession takes place under the following
circumstances
(a) When a part of the state revolts and after achieving freedom becomes a separate international
person.
(b) When a part of state is ceded to another state.
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(c) When a state accepts the suzerainty or becomes a protectorate of another state.
Rights and Duties arising out of State succession:
When a state takes the place of another state following rights and duties arise.
(1) Political Rights and Duties: No Succession takes place in respect of political duties and
rights. The succession state is not bound by the treaties of peace or neutrality entered into by the
extinct state.
(2) Local rights and duties: In respect of land, rivers, roads, railways etc., therefore the
succeeding state succeeds the rights and duties of the former state.
(3) Debts: It depends on the discretion of succeeding state whether to pay or not to pay the public
debts of the former state.
(4) Nationality: The nationals of the former state lose their nationality at the extinction of the
state and becomes the nationals of new state.
(5) Laws: As far as the law of the former states are concerned, civil law continues until it is
changed by the succeeding state.
(6) Public funds and public property: The successor state takes over the public funds and public
property of the predecessor state.
Posted 24th November 2012 by abdul qadir

Recognition, De-facto and De-jure recognition

Q What is recognition. Differentiate between De-facto and De-jure recognition.
Ans Recognition of a state is the act by which another state acknowledges that the political entity
recognized possesses the attributes of statehood. Fenwick also subscribes to the view that
through recognition the members of the international community acknowledge that a new state
has acquired international personality.
According to kelsen, a state to be recognized must have
(1) The community must be politically organized
(2) It should have control over a definite territory.
(3) The community must be independent.
Mode of recognition:
Recognition may be either expressed or implied. Express recognition takes place by formal
indication or declaration. Implied recognition without directly expressing it.
Recognition is more a question of policy rather than law e.g Recognition of Israel and P.R.China.
The great powers recognized Israel while its boundaries were not yet fully determined. The
Peoples Republic of China was not recognized by several states for several years although many
states had granted recognition to red China.
Recognition once given cannot be withdrawn. Recognition might be given individually by
different states or by some collective international act. Recognition of a country is not affected
by change of govt.
A De-facto recognition.
It is extended where a govt. has not acquired sufficient stability. It is provisional (temporary
or conditional0 recognition. It is not legal recognition. However, it is recognition in principle.
Three conditions for giving de-facto recognition. (i) permanence (ii) the govt. commands popular
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support (iii) the govt. fulfills international obligations.

De-Jure Recognition.
It is legal recognition. It means that the govt. recognized formally fulfills the requirement laid
down by International law. De-jure recognition is complete and full and normal relations can be
maintained.
De-facto recognition of a state is a step towards de-jure recognition. Normally the existing
states extend de-facto recognition to the new states or govts. It is after a long lapse of time when
they find that there is stability in it that they grant de-jure recognition. Such practice is common
among the states. The essential feaure of de-facto recognition is that it is provisional and liable to
be withdrawn.
Legal effetcs of recognition.
The recognized state or Govt. acquires the capacity to enter into diplomatic relations and treaties.
She acquires the right to suing in the courts of the recognizing state. The state can claim
immunity od diploatic representatives.

Asylum
Q What is Asylum?
Ans Asylum means giving protection to an alien who is accused of committing offences of
political nature. Asylum is the protection given to a person seeking it in a territory of another
state. Asylum is the right of a sovereign state to grant shelter and protection to a foreigner and
refuse his extradition. Persons genuinely seeking refuge from persecution are often reffered as
asylum seekers.
Asylum involves the following two elements:(1) A shelter which is more than a temporary refuge. People who live in fear of being tortured or
killed by their govt., often seek asylum as do people who are persecuted for their religious or
political beliefs.
(2) A degree of active protection: On the part of authorities which have control over the territory
of asylum.
According to Universal Declaration of Human Rights , "Everyone has a right to seek and enjoy
in other countries asylum from protection." Asylum is closely connected with extradition and
both are interdependent, where asylum stops extradition begins. Asylum is generally motivated
by human consideration and involves an adjustment between the legal claims of state sovereignty
and the demands of humanity.
Kinds of Asylum:(1) Territorial Asylum: Territorial asylum is the one granted by a state in its territory. Territorial
asylum is not usually granted to ordinary criminals. It is designed and employed primarily for
the protection of persons accused of political offences such as treason, desertion, Sedition,
religious refugees. A well known case is Dalai Lama of Tibet.
The General Assembly said in the Declaration of territorial asylum (1967) that the grant of
asylum is a humanitarian act and it cannot be regarded as unfriendly by another state. But adds,
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states granting asylum shall not permit persons engaged in activities contrary to the purpose and
principles of the U.N.
(2) Extra-territorial asylum.Asylum granted by a state not on its physical territory, but on its
notional territory, like in a legation and consular premises and on warships is called the extraterritorial asylum.
(i) Diplomatic Asylum. The granting of asylum in the legation (building inwhich diplomats
work) premises is known as diplomatic asylum. It should be granted as a temporary measure to
individuals physically in danger. It is an exceptional and controversial measure because it
withdraws the offender from the jurisdiction of the territorial state.
(ii) Asylum in the premises of International Institutions.
There is no general right or practice regarding granting asylum in the premises of international
institutions and of specialised agencies, even on humanitarian grounds. But temporary refuge in
extreme cases cannot be ruled out. e,g Najibullah, former president of Afghanistan sought refuge
in UN headquarters in Kabul, later he was killed by Taliban.
(iii) Asylum on Warships.
The warships and public vessels enjoy immunity under international law and it has been
claims that there exists a right of asylum on ships. Asylum in merchant ships cannot be granted
because merchant vessels donot have immunity.

Extradition
Q What is meant by Extradition. Who are extraditable persons?
Ans When one state surrenders to another state an accused or convicted person, it is called
extradition. According to Oppenheim, extradition is the delivery of an accused or convicted
individual to the state on whose territory he is alleged to have committed a crime. If an
individual commits a crime which is not political one within his country and flees away to
another state and takes refuge there then his home country can ask the other country to extradite
the offender. the surrender of offender is made in compliance with a formal demand through
diplomatic agents and in compliance with a treaty of extradition between the two states. It is
sometimes said that asylum ends where extradition begins, in other words, a state has a right to
grant asylum (refuge) to fugitive criminals unless it is bound by treaty.
Law and Practice as to Extradition:(1) The principle that the offender must be punished by the state of refuge or surrendered to the
state which can and will punish him - is universally recognized and adopted.
(2) The state on whose territory the crime has been committed is most competent to try the
offender.
Necessary conditions for Extradition:
The necessary conditions for extradition are:(1) There must be an extraditable person.
(2) There must be an extraditable crime.
The object of extradition can be any individual. The crime for which extradition is requested
must be a serious crime.
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Offences not subject to extradition:

The following categories of offences are not subject to extradition.
(1) Political crime. Most Western countries insist to shelter political refugees. If the real purpose
of a request is to prosecute the person for his political opinion rather than for crime itself.
(2) Military Offences. e.g desertion
(3) Religious Offences. e.g the case of Dalai Lama who has been granted asylum in India.
Soveregin Right of State of Asylum.
In this connection, States follow two well accepted principles.
(1) Rule of double criminality
(2) Principle of Speciality
In the first case, extradition is usually confined to serious crimes, which must be also crimes
under the law of both of the states concerned.
In the second case the requesting state is under duty not to try and punish the offender for nay
offence than that for which he was extradited.
Who are are extraditable persons.
Generally extradition is granted in criminal cases. Two leading cases are:
(1) Mr Sucha Singh was granted asylum in Nepal but when extradition proceedings started
against him on the request of Govt. of India for alleged murder of the chief minister of Punjab.
Mr Sucha Singh was extradited to face criminal trial in India.
(2) Adolf Eichman - a German wen to Argentina after the defeat of Germany in WWII. In 1960
he was abducted by the Israeli Police. Since the abduction was against the established practice,
the Israeli Govt. apologized. However, the Israeli Govt. tried Eichamn and sentenced him to
death in 1961.

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Peaceful/Pacific or Amicable settlement of International disputes

Q What are different modes of pacific settlement of International disputes? Explain.
Ans The chief methods for peaceful/pacific or amicable settlement of international disputes are:
(1) Negotiations:The term negotiation is used to denote intercourse between states for the purpose of arriving
at a settlement of dispute or for relaxation of international tension. Negotiation is the simplest
form of settling the disputes. Negotiations can be carried out by the head of states or their agents
or the exchange of notes. Examples are Indo-Pak Indus water treaty 1960. Yalta and Potsdam
agreement during second world war.
(2) Good Offices:When a third party offers its services to remove differences between two states who are not
willing to negotiate directly. A friendly third state assists in bringing about an amicable solution
to the dispute. These offices may also be offered by International organization or some
individual. the U.N security council offered its good offices in the disputes between Indonesia
and Netherlands in 1947.
(3) Mediation:Mediation is conducting of negotiations through the agency of third party. The distinction
between Mediation and good offices is very subtle. Unlike good offices in mediation the third
party itself takes part in Mediation. Example is the mediation of Soviet premier Kosygen. in the
dispute between India and Pakistan at Tashkent in 1966.
(4) Conciliation:
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Conciliation means the reference of a dispute to a commission or committee to make a report

with proposals for settlement. Conciliation is the process of ending a disagreement. It
recommends solutions. Mediation is commonly performed by an individual while conciliation is
performed by a committee.
(5) Inquiry:
The main objective of commission of inquiry is to make investigation of relevant matters so
as to establish facts. It is sometimes calles 'fact-finding'. Inquiry differs from conciliation in the
fact that the object of inquiry is not to make any specific proposals for settling international
disputes but it is just to investigate and establish facts.
(6) Arbitration
The hearing and settlement of a dispute by an impartial referee chosen by both sides.
Arbitration decides a dispute and is a binding decree. Example is the Rann of Kutch arbitration
of 1968 for the settlement of disputes between India and Pakistan.
(7) Judicial Settlement or Adjudication:
It is a form of arbitration in which a permanent acts as the arbitral tribunal. At present the
International Court of Justice (ICJ) is the most important tribunal.
(8) Resort to regional agencies and U.N.
One of the main objects of the U.N is the peaceful settlement of differences between
states.The General assembly is empowered to recommend measures for peaceful adjustment of
any situation. The security council can act when disputes endanger international peace and
security.

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Q What is the definition and origin of International Law? Also discuss Nature, Scope,
Source. International law and Domestic Law may also be differentiated.
Definition:
International Law is the law which determines the general conduct of civilized states in their
dealing with each other. International law maybe defined as the body of legal rules binding upon
states in their relations with one another. It is a law whose primary function is to regulate the
relations of states with one another. International law prescribes procedure for international
agreements.
Origin of International Law:
The ancient Jews, Greeks, Hindus and Muslims started with the International law and good code
of conduct. Later on European colonial powers also contributed to International law. The Dutch
Jurist, scholar and diplomat 'Grotius' is called the father of "Law of nations". However, the term
International Law was coined by Bentham which is synonymous with the Law of Nations.
Modern International law cam,e into being in 1920 during the League of Nations period.
Nature of International Law. Difference Municipal law and International Law:
There is a controversy regarding the nature of International law, whether it is a law or not. Some
say that in the absence of centralized legislature. executive and judicial authority, it is
disqualified as a law, while others say that they are inter-state rules with the consent of
international community.
There is a difference between State(domestic/municipal) and International law. International alw
is a law between states while municipal law applies within a state about the relation of its
citizens. The scope of modern International alw has widened. The subject of International Law
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are both states and individuals.Therefore International alw is superior to national and municipal
law. The public international law is concerned with the rights, duties and interests of individuals.
Scope of International Law:
The modern International alw unlike the traditional law from 1920 onwards, applies to several
other entities e.g. International organizations, individuals and non-state entities. It has extended
its operations further in the post world war-II period In the post war periods, the establishment of
U.N.O, W.H.O, I.L.O tec have tremendously extended the scope of International alw.
Sources of International law:
The most important source of International alw are treaties, customs, decisions of tribunals and
commissions setup at International level and decisions of the International court of justice. the
treaties are the most important source of International law. An important multi-lateral treaty was
the treaty of Westphalia (1648), Vienna Congress in 1815, Treaty of Versailles in 1919. ICJ has
given a large number of judgements and advisory opinions and has contributed much to the
International law.
A state is not bound by a treaty obligation until it incorporates it into its municipal law and the
rules of international law are enforceable by consent. International law gives a procedure for the
making of international procedure.

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Questions with short answers

Q Define nature of International Law.
Ans International Law may be defined as the body of legal rules binding upon the states i n their
relations with one another.
Q What is succession of states?
Ans Succession is absorbtion or merger of one state to another state or states.
Q Define the concept of extradition.
Ans When one state surrenders to another state an accused or convicted person, it is called
extradition.
Q what is territorial asylum?
Ans When a state grants shelter or protection to foreigner and refuses his extradition.
Q What is ISAF?
Ans International security Assistance force
Q Who are counsellors?
Ans A person appointed by a govt. to serve its citizen and business in a foreign city.
Q What is diplomatic immunity?
Ans Exemption to members of diplomatic services from taxes, court action etc.
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Q Define sovereignty.
Ans It means that Govts are supreme authority in their respective territories.
Q what are International rivers?
Ans International rivers are owned by several states.
Q Define Exclusive Economic Zones (EEZ).
Ans EEZ is an area beyond but adjacent to the territorical sea of a coastal state which may not
extend beyond 200 nautical miles from base.
Q What are the limits of continental shelf?
Ans 200 nautical miles from the shore and it should not exceed 350 nautical miles( 560 km)
Q What are basic political rights?
Ans (i) The right to vote (ii) Right to contest elections (iii) Right to public office (iv) The right to
be protected by own govt when abroad (v) The right to petition
Q Define Civil rights.
Ans (i) The right to life (ii) Right to liberty and free movement (iii) Right to property (iv)
Freedom of religion and conscience (v) The right to education (vi) Right to work
Q what is freedom of air?
Ans Complete sovereignty of a state over the airspace above its territory.
Q What are approaches for resolving conflicts?
Ans (i) Negotiations (ii) Mediation (iii) Good Offices (iv) Commission of Inquiry and
Conciliation (v) Arbitration (vi) Adjudication (vii) Regional agencies and U.N.
Q Differentiate between Combatants and Non-combatants.
Ans Person taking active part in hostile activities during war are called combatants. Those who
do not take part in hostile activities are non-combatants.
Q Define fundamental principles of Humanitarian law?
Ans Respect for Human Rights and fundamental freedom for all without distinction as to race,
sex, language or religion.
Q What are civil wars and armed conflicts?
Ans A civil war may occur between parties within the country or revolutionary groups and
legitimate Govt. of the state. An armed conflict is armed contention between two or more states.
Q Define conciliation
16

Ans It is a process of ending a disagreement. Conciliation is made by a committee.

Q Define mediation
Ans Mediation is conducting of negotiations through the third party.
Q What are good offices?
Ans When a third party offers its srvices to remove differences between two states who are not
willing to negotiate directly.
Q Define commission of Inquiry.
Ans A commission of Inquiry investigates the facts of a dispute or case.
Q What are methods for acquisition of nationality?
Ans (1) The 1st method is by birth.
(2) The second method is by naturalization.
(3) By conquest i.e when a country is conquered and people become nationals of a
conquering
country.
Q Who is father of International Law?
Ans Hugo Grotius ( a Dutch).
Q Elaborate the term "Outer Space"
Ans All states have equal rights to outer space and celestial bodies. Space exploration will be for
the benefit
all mankind.
Q Differentiate between High Commissioner and Ambassador
Ans High commissioner is a diplomatic representative of the embassy of commonwealth country.
Ambassador is diplomat for non- Commonwealth countries.
Q Mention the sources of International law.
Ans The most important sources of International law are treaties, customs, decisions of tribunals
and commissions set up at international level and the decisions of courts of international justice.
Q Elaborate the concept of peaceful co-existence.
Ans To live together without hostility or conflict despite differences in political system.
Q What is hijacking
Ans To seize forcibly (an aircraft, Bus, ship, etc) and direct it to go to a non scheduled
destination.
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Q What is mediation?
Ans Mediation is conducting of negotiations through third party.
Q Enumerate the term Good Offices.
Ans When a third party offers its services to remove differences between two states who are not
willing to negotiate directly.
Q Enumerate the term sovereignty.
Ans Sovereignty means that the Govts are supreme authrity in their respective territories.
Q What do you mean by High Sea?
Ans High sea is open sea which is common to all nations for the purpose of commerce etc.
Q Enumerate the term codification of International Law.
Ans The term codification indicates a process by which the entire body of the law is reduced in
writing to a code.
Q What is nationality?
Ans Nationality is acquiring the membership of a person to some particular nation or state.
Q Enumerate the term Intervention.
Ans Intervention is dictatorial interference by one state in the affairs of another state.
Q What are the methods (modes) of losing territory?
Ans (1)abandonment (2) prescription (3) Cession (4) Conquest
Q What do you mean by National Liberation Movement?
Ans A revolutionary political movement for independence.
Q What do you mean by conciliation?
Ans It is a process of ending a disagreement.
Q Differentiate between Pact and Treaties.
Ans A pact is a formal agreement between two or more countries, organization or people for a
particular thing to help each other. A Pact is not binding by International law while a treaty is
binding by International law.
Q What is collective security?
Ans A system of world order in which aggression by one state will be met by collective response
by all.
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Q State briefly Human Rights.

Ans Human Rights are the basic rights which all people should have. The universal declaration
of human rights was approved by U.N General Assembly in 1948. Its two main aspects are:(1) Political and Civil rights
(2) Social, economic and cultural rights.
Q Who is an ambassador?
Ans It is a diplomat sent from one country to another either as a permanent representative or on
special mission.
Q Give a title on a leading case in Asylum.
Ans A leading case of asylum is the Dalai Lama of Tibet who was given asylum in India.
Q What is piracy?
Ans Piracy is robbery on the high seas. Piracy is laso in case of books, CDs, literature etc.
Q Define the word Stratagem.
Ans Trick, scheme or plan for deceiving enemy in war or achieving some purpose.
Q What is meant by CEDAW?
Ans Convention of elimination of discrimination against women.
Q What is difference between Retorsion and reprisal?
Ans Retorsion is a revolutionary measure for unfriendly and unjust acts. The measures taken are
within legal rights but indirectly harmful to other state. Reprisal is putting pressure of a violent
nature.
Q Who is the author of Dr. Jure Bell as Pacis - 1625?
Ans Hugo Grotius who was born in Holland.
Q Who was Dr. Drago?
Ans Mr. Drago was the Argentinian Foreign Minister who in 1902 affirmed that military
couldnot be taken against a defaulting debtor.
Q What is an innocent passage?
Ans Innocent passage is non-scheduled civil aircraft which can fly over a nation and has no
traffic stops without prior permission.
Q Define the term Prescription.
Ans Long continued possession when the legitimate proprietor has neglected to assert its right.
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Q What is pacific Blockade?

Ans Pacific Blockade is an act of force against the state blockaded. It is often adopted by naval
powers.

Q What is meant by sphere of influence or sphere of interest?

Ans When a country has rights on another country but not territorial rights.
Q What is consul General?\
Ans A consul is appointed in a foreign city to supervise other consuls.
Q What is the difference between natrual state and naturalized state?
Ans Natural state is the state where one was born. Naturalized state is adopted state when one is
not born in that state.
Q What is international delinquency?
Ans Failure or neglect to do what international law requires.
Q Who was Hugo Grotius?
Ans Hugo Grotius a scholar and idealist was born in Holland in 1583. He wroyte two books on
international law (1) De Jure Paedae (II) De Jure Belleac Pacis
Q Distinguish between dejure recognition and defacto recognition.
Ans De-facto recognition is the provisional recognition of another country. De jure recognition
is the official and full length recognition to a state.
Q What was the thesis which Grotius wrote?
Ans De jure belli ac pacis (on the law of war and peace)
Q How would you define insurgency?
Ans Rising up against established authority or rebellion.
Q How owuld you differentiate Vassal state from protectorate state?
Ans A vassal state is completely under the suzerainty of another state. A protectorate is a country
that is controlled by a more powerful country. e.g. Maldives was British protectorate until 1965.
Q What is meant by floating island?
Ans An Island on the high seas which is not territory of a particular state.
Q What is Cession?
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Ans When a territory passes from the supremacy of one state to that of another.
Q Territorial Integrity means;
Ans State boundaries are secure and cannot be attacked.
Q Defin e Law.
Ans Law is a general rule of external conduct, passed and enforced by the state. International law
is to regulate the relations of states.
Q What is custom.
Ans Long established general practice accepted as a law.
Q Define Treaty.
Ans Treaties are agreements between subjects (states) of international law.
Q What is usage?
Ans Long established practice or customary practice.
Q What is tribunal?
Ans A court of justice.
Q Write down the three names of jurists on International alw
Ans (i) Grotius (ii) Vitoria (iii) Suarez
Q What is Nation-State?
Ans It is based on the bonds of Nationality, such as common religion, language, customs,
common aspirations etc and is strengthened by national boundaries.
Q What is national Integration?
Ans It is national unity or combining diffrent ethnic groups into one nation.
Q What do you mean by Globalization?
Ans Growth of Economic, Political and Cultural relations across borders.
Q What is ICJ?
Ans The International court of Justice located in Hague, Holland. It is a principal organ of U.N.
It consist of 15 judges.
Q What are main organs of U.N.?
Ans (i) General Assembly (ii) Security Council (iii) The economic and Social council
(ECOSOC) (iv) The Trusteeship Council (v0 The Secretariat (vi) The International Court of
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Justice (ICJ)
Q Define Blockade.
Ans Shutting off a port or region of a belligerent state by the troops and ships of enemy.
Q Define the Hot Pursuit.
Ans Right of hot pursuit is available to a coastal state to pursue into the high seas a foreign
vessel for infraction of its laws and regulations.
Q Defien Annexation.
Ans To incorporate into a country, state, the territory of another country or state.
Q What is International community?
Ans International community is the world public opinion, world organizations and govternments.
Q What is Asylum?
Ans When a person flees away from his home country to any foreign country there is given
shelter or asylum.
Q Define Mediation.
Ans Mediation is the conducting of negotiations through third party.

22

PUBLIC INTERNATIONAL LAW

Guess Paper
Unit - 1
Question:- i) Discuss the nature and basis of International Law which source has
contributed
to the development of International Law? OR
ii) Whether the International Law is law in the proper sense of the term. Give reasons for your
answer. OR
iii) International Law is the vanishing point of jurisprudences. Explain.
iv) Discuss the weaknesses of International Law. Or
International Law is a weak Law.
v) International Law and Municipal Laws are same or not. Explain.
Unit-II
Question :-2.(i) What do you understand by recognition of a state? What are the theories of
recognition? What are the legal effects of recognition and consequences of non-recognition of a
state? Discuss.
(ii) What is the difference between de facto and de jure recognition.
(iii) Discuss the conditional recognition.
(iv) What is meant by Intervention? Under what circumstances intervention by one state in the
affairs of another state considered justified?
Unit-III
Question:-3 (i) What are the categories of diplomatic agents ? What immunities do diplomat
enjoy and how the immunities are lost?
(ii) Define Treaty. What do you understand by ratification of a Treaty? Explain?
(iii)
Define Extradition? Explain the essential conditions for extradition? For which crime extradition
cannot be claimed. Discussed
(iv) Define Asylum, its essentials and types of asylum. What are the differences between extra
territorial asylum and territorial asylum?
Unit- IV
Question :-4 (i) (v) Critically examine the various amicable and force-able means of settlement
of International disputes between the states.
(ii) Define war. What are the legal characteristics and effects of a War?
23

(iii) Discuss the rights and duties of neutral state and belligerent states.
(iv) Define Prize Court.
(v) Distinguish between Neutrality and Neutralization.
(vi) Discuss Blockade and right of Angry.
Write short note on the followings:1. What do you mean by ex acquo ET bonod.
2. What is double veto.
3. Write about jus cogens .
4. Difference between Retorsion and Reprisal.
5. What do you mean by Blockade?
6. What is meant by contraband?
7. Explain the doctrine of Pacta sunt servanda.
8. What is drago Doctrine?
9. Explain Political crime in respect of extradition.
10.
Discuss Monroe Doctrine.
11.
Write a short note on Hijacking.

24

Discuss the sources of International Law Explain them.

Introduction:-The term sources refer to methods or procedure by which international law is
created. A distinction is made between the formal sources and material sources of law. The
formal, legal and direct sources consist of the acts or thing which gives that the content its
binding character as law. The material sources provide evidence of the existence. The sources of
international law may be classified into five categories:- 1.International Conventions: - In the
modern period international treaties are the most important source of international law. This is
because the reason that states have found in this sources. Article 2 of the Vienna Convention on
the law of treaties 1969, a treaty is agreements whereby two or more states establish or seek to
establish relationship between them govern by international law. Prof. Schwarzenbergr,
Treaties are agreements between subjects of international law creating a binding obligation in
international law. International treaties may be of the two types: - a) Law making
treaties:- these are the direct source of international law and the development of these treaties
was changing of the circumstances. Law making treaties perform the same functions in the
international field as legislation does in the state field. b) Treaty contracts:-As compared to law
making treaties treaty contracts are entered into by two or more States. This may happen when a
similar rule is incorporated in a number of treaty contracts.
2.International Customs:-International customs have been regarded as one of the prominent
sources of international law for a long time. However even today it is regarded as one of the
important sources of international law. Usage is an international habit which has yet not received
the force of law. STRAKE Says, Usage represents the twilight stage of custom, custom begins
where usage ends. Usage is an international habit of action that has yet not received full legal
attestation. A custom in the intendment of law is such usage as that obtained the Force of
law i.e.:- It is not necessary that the usage should always precede a custom. ii) In certain cases
usage gives rise to international customary law. iii)When a usage is combined with a rule of
customary law exists. iv)It is an important matter to see as to how international custom will be
applied in international law. Refer a case of West Rand Central Gold Mining Compy.v/s R1905, court held that for a valid international customs it is necessary that it should be roved by
satisfactory evidence that the custom is of such nature which may receive general consent of the
States and no civilized state shall oppose it. Porugal v/s India-1960, ICJ pointed out that when in
regard to any matter or practice, two states follow it repeatedly for a long time, it becomes a
binding customary rule. Still other resolutions amount to an interpretation of the rules and
principles which he charter already contains and which are in binding upon States.
3. General Principles of Law recognised by civilized States: -Art.38 of ICJ provides that the
Statute of International Court of Justice lists general principles of law recognised by civilised
States as the third source of international law. In the modern period it has become an important
source. This source helps international law o adapt itself in accordance with the changing time
and circumstances. On the basis of this view the general principle of law recognised by civilized
States have emerged as a result of transformation of broad universal principles of law applicable
to all the mankind. Following are some important cases relating to the general principles of law
recognised by civilized States:-1.R. v/s Keyn-1876, that I. Law is based on justice, equality and
25

conscience which have been accepted by practice of States. 2. U.S v/s Schooner-held that I. Law
should be based on general principles.
4. Decisions of Judicial or Arbitral Tribunals and Juristic Works:- i) International judicial
Decisions:-In the modern period international court of justice is the main international judicial
tribunal. It was established as a successor of the permanent court of I. justice. Art.59 of the
statute of ICJ makes it clear that the decisions of the court will have no binding force except
between the parties and in respect of that particular case. While in principle it does not follow the
doctrine of precedent. Thus judicial decisions unlike customs and treaties are not direct sources
of law; they are subsidiary and indirect sources of international law. State judicial
decisions:- These decisions may become rules of international law in the following two ways:1. State judicial decisions are treated as weighty precedents. 2. Decisions of the state courts may
become the customary rule of I. Law in the same way as customs are. Decisions of
International Arbitral Tribunals:- Jurists have rightly too pointed out that in most of the
arbitral cases arbitrators act like mediators and diplomats rather than as judges as in Kutch
Award-1968. Juristic Works. Juristic Works:- Art.38 of ICJ, the work of high qualified jurists
are subsidiary means for the determination of the rules of I. Law. In Paquete Habana and Lola
fishing vessels with Spanish flags on them in 1898 during war between America & Spain, held
that they could not be seized or apprehended during the state of blockade.
5. Decisions or determinations of the organs of international institutions:-Art.38 of
ICJ incorporated these sources and also introduced one new source namely general principles of
law. In view of the strong reasons the decisions and determination of organs are now recognised
as an important source of I. Law. The resolutions of the organs may be binding on the members
in regard to the internal matters. Organs of international institution can decide the limits of their
competence. 6. Some other sources of International Law:- Besides the above sources of I.
Law, following are some of the other sources of international law: - 1. International Comity:
mean mutual relations of nations. 2. State Paper:-In modern period diplomats send letters to
each others for good relations are also the sources of I. Law. 3. State guidance for their
officers: Numbers of matters are resolved on the advice of their legal advises. 4. Reasons: has a
special position in all the ages.5. Equity & Justice: I t may play a dramatic role in supplementing
the law or appear unobtrusively as a part of judicial reasoning.
What do you mean by subjects of International Law? Can an Individual be a subject of
International Law? If so in what circumstances.
INTRODUCTION:-A subject of rules is a being upon which the rules confer rights, capacity
and imposes duties and responsibility. Generally it is the State who enters into treaties with each
other and is thus bound by its provisions. This does not however mean that other entities or
individuals ar outside the scope of international law. International law applies upon individuals
and certain non-state entities in addition to states. In the modern era the international law has
expanded a lot. Now this law is applied besides States and individuals also.
THEORIS REGARDING SUBJECTS OF INTERNATIONAL LAW:- Following are the
three main theories prevalent in regard to the subjects of international law:-1. Only States are
the subject-matters of I. Law:-Certain jurists have expressed the view that only International
26

law regulates the behaviour of states hence states are its subject matters. Percy E.Corbett says,
The triumph of positivism in the late eighteenth century made the individual an object not a
subject of international law.
CRITCISM: - The jurists have bitterly criticised as this theory fails to explain the case of slaves
and pirates. The pirates are regarded enemy of humanity and they can be punished by the State
for piracy. In international arena by some ordinary treaties community of states have granted
certain rights. But those jurists who say that states are the only subject-matter of international
law but are object of it. To say that individuals are not the subject but object of the International
law seems to be incorrect. Prof. Schwarzenberger, has aptly remarked that this view is
controversial. He asserts that he individual who is the base of the society is only an object of the
I. Law is not justified.
2. Only individual are the subjects of International law: - Just contrary to the above theory
there are certain jurists who have expressed the view that in the ultimate analysis of international
law it will be evident that only individuals are the subject of International Law. The main
supporter of this theory is Professor Kelson. Before keelson this view was expressed by Westlae,
who opined, the duties and rights of the States are only the duties and rights of men who
compose them. Kelson has analysed the concept of State and according to him it is a legal
concept which as a mixture of legal rules applicable to all the people living in certain area hence
the obligations of a State in international law in the last resort are the duties of individuals of
which state consists.
In fact there is no difference between international law and state law. In his view
both laws apply on the individuals and they are for the individuals. However he admits that the
difference is only this that the state law applies on individuals intermediately whereas
international law applies upon the individuals mediately.
Criticism:-So far as logic is concerned the view of Kelson seems to be correct. An example is
the Convention on the settlement of invest Disputes between States and Nationals of the other
states, 1965. By this treaty provision is made to settle the disputes which arise by investment of
capital by nationals of one state in other states. So it is clear that the view of Kelsen that
international law is made applicable through the medium of a State seems justified.
3. States individuals and certain non-state Entities are Subjects: - This view seems to be
justified as against the above views. In support of this, the following reasons may be advanced: i) in modern times many treaties grants rights and duties to individuals. ii) In case Danzing
Railway PCIJ-1928, in case the State Parties of a treaty intended to grant rights to individuals
then International Law would recognise such rights and International Court will enforce
them. iii). Geneva Convention of Prisoners of War-1949 has also accorded certain rights o
prisoners of war. iv) According to Nuremberg Court since crimes against International Law are
committed by individuals the provisions of International Law can be enforced. vi) Genocide
convention- 1948:- In the convention also individuals have been assigned directly certain duties.
By article 4 of this convention those individuals who commit international crime of genocide
should be punished whether they are public servants or ordinary person.

27

1.
2.

3.

4.

1.

2.

By the above description it is clear that only states are not subject matter of Internationals Law
but in modern times individuals international Institutions, Non-state entities minorities are also
the subject-matter of International Law.
PLACE OF INDIVIDUALS IN INTERNATIONAL LAW: - As pointed out earlier
individuals are also treated to the subjects of international law although they enjoy lesser rights
than states under international law. In the beginning they were accepted as subjects of
international law as an exception of the general rule and number of jurists treated them as objects
rather than the subject. In the recent times several treaties concluded wherein rights have been
conferred and duties have been imposed upon the individuals. Some of the provisions are as
under:Pirates: Under I. Law pirates are treated as enemies of mankind. Hence every state is entitled to
punish them.
Harmful acts of individuals: - For the amicable and cordial relation of the state it is necessary
that the individuals should not be involved in such acts as may prove detrimental for the good
relations among states. A leading case ex parte Petroff-1971, wherein two persons who were
found guilty of throwing explosive substances on the Soviet Chancery were convicted.
Foreigners: to some extent international law also regulates the conduct of the foreigners.
According to international law it is the duty of each state to give to them that right which it
confers upon its own citizens.4.War criminals: can be punished under international law. 5.
Under some treaties individuals have been conferred upon some rights whereby they can claim
compensation or damages.
3. Discuss the basis and nature of International Law. Or
Whether the International Law is law in the proper sense of the term? Give reasons for
your answer.
INTRODUCTION: - Austin in his definition of law has given more importance to sanction
and fear in compliance of law. In case of International law there is neither sanction nor fear for
its compliance hence it is not law in proper sense of the term. But now the concept has changed
and International Law is considered as law. There is no consideration of fear or sanction as
essential part of law. If fear and sanction are considered necessary then there are sufficient
provisions in UNO charter for compliance of the International Law as Law :According to Benthams classic definition international law is a collection of rules governing
relations between states. Two of the most dynamic and vital elements of modern international
law.
In its broadest sense, International law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors i.e. primarily sovereign
states but also increasingly international organizations and some individuals.
Although international law is a legal order and not an ethical one it has been influenced
significantly by ethical principles and concerns, particularly in the sphere of human rights.
International is distinct from international comity, which comprises legally nonbinding practices
adopted by states for reasons of courtesy. e.g. the saluting of the flags of foreign warships at sea.)
INTERNATIONAL LAW AS REALLY LAW
28

According to Oppenheim, International Law is law in proper sense because:In practice International Law is considered as law, therefore the states are bound to follow
them not only from moral point of view but from legal point of view also.
When states violate international law then they do deny the existence of international law but
they interpret them in such a way so that they can prove their conduct is as per international law.
Starke while accepting International Law as Law has said, that in various communities law
is in existence without any sanction and legal force or fear and such law has got the same
acceptance as the law framed and enacted by state Legislative Assemblies.
With the result of international treaties and conventions International Law is in existence.
U.N.O. is based on the legality of International Law. According toProf.Briely, To deny the
existence and legal character of International Law is not only inconvenient in practice but it is
also against legal thoughts and principles.
The states who are maintaining the international relations not only accept International Law as
code of conduct but has also accepted its legal sanction and force. Prof. Hart, There are many
rules in practice which are honoured by states and they are also bund by them, now the State
Government accept the existence of International Law. According to Jus Cojens,
International Law may now properly be regarded as a complete system.
It is pertinent to mention here that from the above noted contents it is clear that the following
grounds are supportive for accepting the International Law as law:Now so many disputes are settled not on the basis of moral arguments but on the basis of
International Treaties, precedents, opinions of specialists and conventions.
States do not deny the existence of International Law. On the contrary they interpret
International Law so to justify their conduct.
In some states like USA and UK international Law is treated as part of their own law. A
leading case on the point is the, Paqueta v/s Habanna-1900. Justice Gray observed that the
international law is a part of our law and must be administered by courts of justice.
As per statutes of the International Court of Justice, the international court of Justice has to
decide disputes as are submitted to it in accordance with International Law.
International conventions and conferences also treat international Law as Law in its true sense.
The United Nations is based on the true legality of International Law.
That according to article 94 of UNO charter, the decisions of the International Court of
Justice are binding on all Parties (States).
Customary rules of International Law are now being replaced by law making treaties and
conventions. The bulk of International Law comprises of rules laid down by various law-making
treaties such as, Geneva and Hague conventions.
On the basis of above mentioned facts and arguments, the International Law is law in true sense
of the term. United States and U.K., treat International Law as part of their law. In a case ofWest
Rand Central Gold Mining Company Ltd., v/s Kind- 1905, the court held the International
Law has considered it as a part of their law. From the above analysis it is revealed that the
International Law is law. The International Law is law but the question arises as to what are the
basis of International Law. There are two theories which support it as real law:29

1. Naturalist Theory:- The Jurists who adhere to this theory are of the view that International Law
is a part of the Law of the Nature. Starke has written, States submitted to International Law
because their relations were regulated by higher law, the law of Nature of which International
Law was but a part. Law of nature was connected with religion. It was regarded as the divine
Law. Natural Laws are original and fundamental. They incorporate the will of the Governor and
governed and advance their consent or will. That is why international law is also based on
natural law.
Vattel Furfendorf, Christain, Thamasius, Vitona are the main supporters of this theory.It
was viewed that natural law is uncertain and doubtful but it is accepted that Natural Law has
greatly influenced the growth and has given the birth to International Law and its development.
Most of its laws are framed from Natural Law.
2. Positivist Theory:- This theory is based on Positivism i.e. law which is in the fact as contrasted
with law which ought to be. The positivists base their views on the actual practice of the states.
In their view customs and treaties are the main sources of International Law. According to
German economist, Heagal, International Law is the natural consent of states. Without the
consent of states, no law can bind the states. This consent may be express or implied. As
pointed out by Starke, International Law can in logic be reduced to a system of rules
depending for their validity only on the fact that state have consented to them. As also
pointed by Brierly, The doctrine of positivism teaches that International Law is the sum of
rules by which states have consented to be bound. As said by Bynkeshock, The basis of
International Law is the natural consent of the states. Without the consent of states no law can
bind the states.
The critics of the above views say that consent is not always necessary for all laws. There are
some laws which are binding on states irrespective of their consent e.g. Vienna Convention on
the Law of Treaties. Article 36 of the Treaty says that the provisions of the Treaty may be
binding on third parties even if they have not consented to it.
CONCLUSION: - Gossil Hurst says, That International Law is in fact binding on states,
because they are states. This is very much correct because every state in the world wants peace,
Law and order and that is possible only through existence of International Law. Therefore it is in
natural interest of States to accept the existence of International Law.

30

2. International Law is the vanishing point of Jurisprudence. Explain.

INTRODUCTION:- Holland has remarked that International Law is the vanishing point of
jurisprudence in his view , rules of international law are followed by courtesy and hence they
should not be kept in the category of law. The international Law is not enacted by a sovereign
King. It has also no sanctions for its enforcement which is the essential element of municipal
law. Holland further say that International Law ass the vanishing point of Jurisprudence because
in his view there is no judge or arbiter to decide International disputes and that the rules of the I.
Law are followed by States by courtesy.
Austin also subscribes to this view, Justice V.R.Krishna Iyerformally member of Indian Law
Commission has also remarked, It is a sad truism that international law is still the vanishing
point of jurisprudence. This view is not correct. It is now generally agreed that Hollands view
that international law is the vanishing point of jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that International Law is not
enacted by sovereign and has no agency for its enforcement. But it is true that it is a weak law.
A majority of International lawyers not subscribe to this view is based on the proposition that
there are no sanctions behind international Law are much weaker than their counterparts in the
municipal law, yet it cannot be successfully contended that there are no sanctions at all behind
international law.
The jurists who do-not consider international law as the vanishing point of jurisprudence say that
there is difference between state law and International Law. International Law cannot be enacted
by the state but still there is agency for its enforcement. According to Dias, International Law
is obeyed and complied with by the states because it is in the interests of states themselves.
For this object they give the following arguments:1. The judgements of International court of Justice are binding on States.
2. If any state does not honour the order/judgement of International court of justice, the Security
Council may give its recommendation against that state for action.
3. The judicial powers of International Court of justice (Voluntarily and compulsory) have been
accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security, under chapter VII of the
U.N. Charter, the security council can take necessary action to maintain or restore international
peace and security. Besides this the decisions of the International Court of Justice are final and
binding upon the parties to a dispute.
The gulf war 1991 Iraq trespassed and acquired the whole territory of Quait in her possession
by violation of International Law. The Security Council passed a resolution against Iraq and
asked her to liberate Quait. But Iraq did not honour the resolution of Security Council; hence
therefore may economic and political restrictions were composed against Iraq. But all in vain.
Then USA and her allies were permitted to compel Iraq to honour resolution of Security Council.
Consequently USA and her allies used force against Iraq and freed Quait.

31

The same action was taken against North Korea and Cango during the year l948 and 1961. The
Security Council imposed penalty against Libya for shooting down American Plane in Lockerbie
(Scotland) in 1992, consequently two citizens were also killed. The Security Council forced
Libyan Government to surrender two terrorists who were involved in this mishap and Libya
obeyed the order of S. Council.
The greatest proof of its utility and importance is the fact that its successor the International
Court of Justice established under the United Nations charter is based on the Statute of the
Permanent Court of International Justice, the United Nations & Security Council Charter possess
wide powers to declare sanctions against the states who are guilty of violence of the provisions
of the same under chapter-VII
Thus International Law is in fact a body of rules and principles which are considered to be
binding by the members of International Community in their intercourse with other. The legal
character of International Law has also been recognized in 1970 Declaration on the Principle of
International Law Concerning Friendly relation and Cooperation among states.
Conclusion:- On the basis of above discussion it may be concluded that the International Law is
in fact law and it is wrong to say that it the vanishing point of Jurisprudence.

32

3. Discuss the weaknesses of International Law. What are the suggestions for
removing/improving the International Law?
INTRODUCTION: - International Law is said to be a weak Law. The weaknesses of
International Law become evident when we compare it with Municipal Law. Its weaknesses
reflected in most of cases when these are compared with the state law. The following are some
of the weaknesses of International Law:WEAKN ESSES
l. The greatest shortcoming of International Law is that it lacks an effective executive
authority to enforce its rues.
2. Lacks Of effective legislative machinery:- Since the International Laws are based on
international treaties and conventions. Therefore these are interpreted by the states according to
their self interest.
3. The International court of Justice lacks compulsory jurisdiction in the true sense of the
term :- The International court of Justice which is situated in Hague (Netherland) is not
authorised to take cases of all states. The cases can be filed in this court with the mutual consent
of concerned states.
4. Due lack of effective sanctions, rules of International Law are frequently
violated:- There is no sense or fear of sanction in the International Law with the results the laws
are violated frequently by the States.
5. Lack in right to intervene in Internal Affairs :- As per article 2(7) of UNO Charter, UNO is
not competent to interfere in the domestic matters of states. International law cannot interfere in
the domestic matters. Keeping in view these facts in several cases International Law proves to be
ineffective and weak.
6. UNCERTAINTY:- There is one more reason behind the weakness of International Law is its
uncertainty. It is not certain as the laws of states as well as Municipal law. In addition to this it
has not been able to maintain international peace and order.
It is now very much clear from the above facts that International Law is weak. Paton says that ,
from institutional point of view International Law is a weak. It has no legislative support
though there is international court of justice but that functions or takes case on the basis of
mutual consent of states. It has no power to get the decisions implemented.
According to Karbet, The main course of weakness of International Law is the lack of social
solidarity among highly civilised states.
A case of Queen v/s Ken 1876 :- There is no such institution or body which can enact laws for
sovereign states and there is no court also which can enforce its decision and to bind the states.
SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW
Despite the above mentioned weaknesses, it has to be noted that International Law is constantly
developing and its scope is expanding. It is a dynamic concept for it always endeavours to adopt
itself to the needs of the day. As compared to Municipal Law the International Law is works in a
decentralised system. This is because of the facts that the International policies, Interdependence of states and the continuous growth of the concept of International or world

33

community. However the weaknesses of the International Law may be improved in following
ways:l. The International Court of Justice should be given compulsory jurisdiction, in the true sense of
term overall international disputes.
2.An International Criminal Court should be established to adjudicate cases relating to
international crimes.
3. International Laws should be properly codified.
4. The machinery to enforce the decisions of the International Court of Justice should be
strengthened.
5. An International Police system should be established to check international crimes and to
enforce the rules & principles of International Law.
6. An international Bureau of Investigation and prosecution should be established for
investigation of matters relating to International crimes and the prosecution of International
criminals.
7. The U.N.O. should be authorised to intervene in the internal matters of states.
8. For settlement of international disputes the use of judicial precedents must be encouraged.
9. There must be constant review of International Law.
10. Last but not the least there must be basic recognition of the interest which the whole
international society has in the observance of its laws.
CONCLUSION: - It is pertinent to mentioned here that the General Assembly of UNO should
made fruitful efforts in this direction. The above suggestions will make International Law
equivalent to a Municipal Law to some extent. With the growth of Internationalism and the
feeling of universal brotherhood international aw will also become effective and powerful.

1. International Law and Municipal Law are the same. Please discuss. Or
Discuss the various theories regarding relationship between International Law and
Municipal Law.
INTRODUCTION: - Certain theories have been propounded to explain the relationship
between International Law and Municipal Law. In general it is notionally accepted that the state
municipal law control the conduct of individuals within the state while International Law
controls the relations of nations. But now this concept has altogether been changed and the
scope of International Law has increased and it not only determines and controls the relations of
states but also the relations of members of International community. Both the laws have cohesion with each other and the relations between these two are more prominent. These theories
have been put forward to explain the relationship between International Law and State Law. Of
all these theories as per following details, the most popular are the Monism and dualism and they
are diametrically opposed to each other:34

1.

2.

3.

i)

MONISTIC THEORY:-It is also known in the name of Monism theory. According to the
exponents of this theory International Law and Municipal Law are intimately connected with
each other. International Law and Municipal Law are the two branches of unified knowledge of
law which are applicable to human community in some or the other way. All Law are made for
individuals. The difference is that municipal law is binding on individual while International
Law is binding on states. Conclusively it can be said that the root of all laws is individual.
According to Strake, International Law is part of state Municipal Law and therefore decisions
can be given by Municipal courts according to the rules of International Law.
According to O.Kornell, The objective of all laws is human welfare whether it is state
municipal law or International Law.
DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and state
Law are two separate laws and contained legal systems. The Monist view of law is part of
philosophy according to which totality is a single structure. But within the framework of the
unitary universe is diversity of phenomenon. International Law cannot become part of state
municipal Law till the principles of International Law are applied under State Municipal Law.
According to Strake, The main foundation of the proponents of dualistic theory is that state
Municipal Law and International Law are two different legal systems because the nature of
International law is fundamentally different from State Municipal Law.
Angilotti has also recognised both the systems as two different legal systems. According to him
the fundamental principle of State Municipal Law in compliance of law enacted by state
legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the
agreements executed between the states.
The main basis of separation of these two systems is as follows:The main source of International Law is customs and treaties while in case of Municipal Law
are an enactment by sovereign power.
International Law controls the relations between state while state law controls the relations
between state and individuals.
The main cause of compliance of state law is fear of sanction while the basis of compliance of
International Law is the moral liability and vested interests of states.
THEORY OF SPECIFIC ADOPTION: - International Law cannot be directly enforced in the
field of State Law. In order to enforce it in the field of Municipal Law it is necessary to make its
specific adoption. The theory of adoption is based on Hague convention-1970, Vienna
Convention-1972 and Tokyo Convention-1975. In case of Jolly George v/s Bank of Cochin1980: The court held that any agreement does not become part of Indian constitution
automatically, but the positive commitment of state parties inspires their legislative action.
The use of International Law in different countries like India, Britain, America and Russia. The
rules of International Law and treads have been based in a different ways e.g.
INDIAN ADOPTION :- The International Law has been given important place and mention
the customary rules of International Law in Article 51(6) of the Indian constitution with the
following strive :
To increase international peace and security.
35

ii)
iii)
iv)

To maintain just and good relations among states.

To increase faith and honour for use of International Law treaty, obligations in natural relations
and conduct of organised people.
To act as mediator to encourage for settlement of international dispute.
Some of the cases in this regard are : i) Shri Krishna Sharma v/s State of west Bengal-1964 :
It was decided that whenever the court interprets the domestic Municipal Law, it should be taken
into consideration that it does not go against International Law.
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the
implementation of Kutch Agreement between India and Pakistan on the basis of correspondence
between them. Similarly there are two other case viz: Vishakha v/s State of Rajasthan1997. And Apparel Export Promotion Council v/s A.K.Chopra-1999: In both of the cases the
court held that the right of sex equality of women has assumed the important rule of International
Law and its convention, court said that in cases of violation of human right the court should
always consider international documents and conventions and should make them binding.
British Adoption: In Britain International customs are treated as part of domestic law. British
courts apply international customs subject to the conditions (i) International customary rules are
not inconsistent with British Laws (ii) they are accepted by lower courts when the limit of these
customary rules are fixed by High Court. For use of treaties, the case of International
Tin Council v/s Dept., of Trade and Industry-1900: the Lord Council decided that in England
treaties are not binding automatically. It is binding only when the Parliament makes it a part of
English Law and incorporates in Law by enactment of law in this regard.
Adoption in America: In America the courts interpret the state law in such a way that it does
not go against International Law. The rules of customary International Law are treated as part of
State Law. It has been done in the case of Paqueta Habana Case- 1900: It was held that
International Law is part of our state Law and when any question or case relating International
Law is filed before courts of proper powers then the rights based on these questions should be
determined and enforced.
4. THEORY OF TRANSFORMATION:- The exponents of this theory contented that for the
application of International Law in the field of Municipal Law, the rules of international law
have to undergo transformation. Without transformation they cannot be applied in the field of
Municipal Law.
According to Strake:- That the rules of International Law can be applied when they are
transformed in to domestic law, is not necessary in every case.
5.THEORY OF DELIGATION:- The theory of transformation has been criticised by the Jurists
with the result of this craterisation it put forward a new theory called Delegation theory. The
supporters of this theory say that according to the statutory rules of International Law, the powers
have been delegated to the constitution of different states o ensure that how and what extent
according to International Law. States to determine as to how International Law will become
applicable in the field of Municipal Law in accordance with the procedure and system prevailing
in each state in accordance with its constitution.

36

CONCLUSION:- Last but not the least in a recent case namely, Chairman, Railway Board &
others v/s Mrs. Chandrima Das and others-2000: The supreme Court of India observed that the
International Conventions and Declarations as adopted by the United Nations have to be
respected by all signatory states and meaning given to the words in such declarations and
covenants have to such as would help in effective implementation of those rights.

i)
ii)
iii)
iv)

UNIT-II
1. What do you understand by recognition? What are the various kinds of it? Also
differentiate between de facto and de jure recognition. Explain those situations when de
facto become de jure recognition. What are the disabilities of an unrecognised state?
INTRODUCTION: - It can be said that through recognition, the recognising state
acknowledges that the recognised state possesses the essential conditions of Statehood, a
Government and Sovereignty, a definite territory and has a complete control over his territory.
The community is independent. So recognition has an important place in International Law. By
recognition only the state is accepted as a member of International community.
DEFINITION:- Many of the Jurists has define Recognition in different ways. Some of them
have opined as under:
Prof.L.Oppenheim :- In recognising a State as member of International community, the
existing states declare that in their opinion the new state fulfils the conditions of statehood as
required by International Law.
Fenwick: - That through recognition the members of the International community formally
acknowledge that the new state has acquired international personality.
In the words of Phillip C Jessup: - By recognition is such a function of a state by which she
accepts that any political unit contains the essential elements of nationality.
According to Prof. Schwarzenberger:- Recognition can be absorbed easily by a procedure
developing International aw by which the state have accepted the negative sovereignty of each
other and willing to develop their legal relations on the basis of their natural relations.
According to Kelson: A community to be recognised as an International person must fulfil the
following conditions:The community must be politically organised.
It should have control over a definite territory.
This definite control should tend towards performance.
The community thus constituted must be independent.
Thus the conditions of statehood are, People, a territory, a government and sovereignty.
TYPES OF RECOGNITION
Recognition is of two types, De facto and de jure recognition. The practice of States shows that
in first stage the State generally give de facto recognition. Later on when they are satisfied that
the recognised state is capable of fulfilling International obligations, they confer de jure

37

i)
ii)
iii)

recognition on it, that is why sometimes it is said that de facto recognition of state is a step
towards de jure recognition. The detail of de facto and de jure recognition is as under:DE FACTO RECOGNITION: - According to Prof.G.Schwarzenberger:- When a state
wants to delay the de jure recognition of any state, it may, in first stage grant de facto
recognition.
The reason for granting de facto recognition is that it is doubted that the state recognized
may be stable or it may be able and willing to fulfil its obligations under International Law.
Besides this it is also possible that the State recognised may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the essentials elements of
statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :- The de facto recognition of a State or government takes
place when the said State is free state and enjoys control over a certain fixed land but she is not
enjoying the stability at a deserved level and lacking the competence to bear the responsibility of
International Law.
For example :- De jure recognition had not been given to Russia by America and other countries
for a long time because Russia was not having competence and willingness to bear responsibility
of International Law. The same position was with China.
In view of the Judge Phillips C Jessup, De facto recognition is a term which has been used
without precision when properly used to mean the recognition of the de facto character of a
government; it is objectionable and indeed could be identical with the practice suggested of
extended recognition without resuming diplomatic relations.
The de facto recognition is conditional and provisional. If the state to which De Facto
recognition is being given is not able to fulfil all conditions of recognition then that recognition
is withdrawn.
DE JURE RECOGNITION
De jure recognition is granted when in the opinion of recognizing State, the recognized State or
its Government possesses all the essential requirements of statehood and it is capable of being a
member of the International Community.
According to Prof.H.A.Smith :- The British practiced shows that three conditions precedent
are required for the grant of de jure recognition of a new State or a new Government. The three
conditions are as under:A reasonable assurance of stability and performance.
The government should command the general support of the population.
It should be able and willing to fulfil its international obligations.
Further Recognition de jure results from an expressed declaration or from a positive act
indicating clearly the intention to grant this recognition such as the establishment of diplomatic
relations.
According to Phillips Marshall Brown: - De jure recognition is final and once given cannot
be withdrawn, said intention should be declared expressly and the willingness is expressed to
establish political relations.
DISTINCTION BETWEEN DE FACTO AND DE JURE RECOGNITION
38

As observed by Prof.G.Schwarznbeer, De jure recognition is by nature provisional and may

be made dependent on conditions with which the new entity has to comply. It differs from de jure
recognition in that there is not yet a formal exchange of diplomatic representatives. De jure
recognition is complete implying full and normal diplomatic relations.
De facto recognition
De jure recognition
1. De
facto
recognition
is
conditional and Provisional.
2. If the conditions are not fulfilled
by the concerned state then it is
withdrawn.
3. To maintain political relation in
this recognition is not necessary.
4. De facto recognition is the first
step towards de jure recognition.

De jure recognition is final.

De jure recognition cannot be
withdrawn once given it is final.
The willingness is to be expressed
for maintenance of political
relations.
De jure recognition is the final
step towards recognition.

In Luther v/s Sagor-1921:- It was held that there is no distinction between de facto and de jure
recognition for the purpose of giving effect to the internal acts of the recognized authority.
Bank of Ethopia v/s National Bank of Egypt and Liquori- 1937:- The court held that in view
of the fact that the British government granted recognition to the Italian Government as being the
de facto government of the area of Abyssinia which was under Italian control, effect must be
given to an Italian decree in Abyssinia dissolving the plaintiff bank appointing liquidator.
But in the case of Luther v/s Sagore-1921 the court held that as far as internal affairs of a state
is concerned De facto recognition is interim and it can be withdrawn.
CONSEQUENCES OF RECOGNITION
There are many political and legal advantages of getting recognition and many disadvantages of
not getting recognition. They may be said as disabilities of a state of not getting recognition.
The following are the advantages of getting recognition and disadvantages of not getting
recognition.
ADVANTAGES
DISADVANTAGES
1. Can establish diplomatic and The states who did not get such recognition
commercial relation with the states cannot establish such relations.
granting recognition.
The state which does not get recognition
2. Recognised states can institute a suit in cannot do so.
the courts of states granting recognition.
3. Can institute suit relating to property Unrecognised states cannot institute suit
situated in the courts of state granting relating to property.
recognition.
4. The representatives of recognised states The representatives of unrecognised states
39

are entitled to enjoy diplomatic and cannot enjoy such relations.

political communities in the territories of
state granting such recognition.
5. The recognised states can execute treaty
agreement with states granting such The unrecognised states cannot sign any
recognition.
treaty agreement with any states.
CONCLUSION
Recognition of any state means, that state become a member of International community and
acquires International entity. The state becomes entitled to all rights and special rights as a
member of the International community. In the absence of recognition any state cannot establish
her diplomatic and political relations with any states and also unable to sign any treaty agreement
with any state.

40

2. Define intervention? Under what circumstances intervention by one state in the affairs
of another state considered justified.
INTRODUCTION: - Intervention in fact principally prohibited under the provisions of
International Law. According to International Law no state has the right to intervene in the
affairs of another state for the purpose of maintaining or altering the actual condition of thing. All
members shall retrain in their international relations from the threat or use of force, against the
territorial integrity or political independence of any state or in any other manner inconsistent
with the purposes of the United Nations. So in this way when any state interferes in the internal
and external affairs of other state, then as per International Law, it becomes a matter of
intervention.
DEFINITION OF INTERVENTION: - In simple words intervention means to interfere
directly or indirectly by one or more states in the internal or external affairs of another state.
Prof.L.Oppenheim : Intervention is dictatorial interference by a state in the affairs of another
state or the purpose of maintaining or altering the actual condition of things. Interference pure
and simple is no intervention. Hans Kelson pointed out that, International Law does not
prohibit intervention in all circumstances. He further says that when one state intervenes in the
affairs of another state through force, then as a reaction against this violation International Law
permits intervention.
TYPES OF INTERVENTIONS:- It can be accessed from the above view of different Jurists
regarding types of intervention that there are so many types of Interventions. However some of
them are as under:1. Military interference: It is done with military force.2. Political Interference: is done by giving
threatening information.3. Dictatorial Interference: Is done in threatening tone.4. Interference
without right: It is done without any purpose & right. 5. Internal Interference: is done in
interfering in the internal affairs. 6. External Interference: It is also done in interfering in
external affairs. 7. Penal Intervention; 8. Subversive Intervention: is done by another state
through exciting the people against the state.9. Economic Intervention: is done by creating
obstacles in the trade.
BASES OF INTERVENTION: - It is very much pertinent to mention here that what is the basis
of doing of intervention and what type of interventions are valid under UNO Charter. However
the following have been considered as the main basis of intervention:i. On the basis of self defence ii) On the basis of humanity iii) for application of treaty
rights iv) to stop illegal intervention v) to maintain balance of power vi) to protect individuals
and their property vii) collective intervention viii) to protect International Law ix) at the time
internal war.
All above basis of intervention have been recognised by the UNO except the followings :- i) for
application of treaty rights. ii) to stop illegal intervention iii) to maintain balance of
power IV) to protect individuals and their property. V) to protect International Law.
Despite all these the following types of intervention are in use and recognised:i) Intervention for self defence and self protection: - Self defence and self protection is main
traditional basis of intervention. The intervention for self defence is rather limited as compared to
41

that self protection. Oppenhein says that the use of power of intervention should have been
made when it becomes necessary for self protection. A famous case, The Caroline-1841: In
this case Mr. Webster declared that the necessity of self defence should be instant
overwhelming and leaving no choice of means and no moment for deliberation. Art. 51 of UN
Charter provide that the right of intervention is still available. Under this the state has the right
to individual and collectively protection. But this right is available only when: - i.There has been
attack on any state. ii) No step has been taken by the Security Council for international peace and
security.
1. Intervention on the basis of humanity:- Every person on this earth has a right to live with
human dignity. The state cannot devoid her of this right. It the state behaves her citizens with
cruelty then it is violation of International Law of human rights. The action for intervention by
UNO can be taken only in case when the degree of violation of human rights is such that if
created danger for maintenance of International peace and security. The best example of such
intervention is by UNO in 1991 in Iraq for the protection of Kurds.
2. Collective Intervention:- In Chapter 7 of UNO Charter the Security Council is empowered to
take action of collective intervention. The collective intervention means just and legal base of
Modern times. UNO can intervene for maintenance of world peace and security and to stop or
avoid attack on the following conditions:i) When there is actual danger or possibility of danger for international peace and
security. ii) Actual attack has been made by the concerned state.
The use of such right was made by UNO in Korea in 1950, Kango in 1961 and Iraq in
1991. 3. Intervention in case of internal war:- When in any state there is possibilities of
Internal war, the intervention is considered as legal and just basis because there are strong
apprehensions of breach of International peace. Under this situation the Security Council can
decision to take collective action under Chapter 7 of UNO Charter. The action taken by UNO
in 1961 in Kango is the best example of intervention. This action was taken to stop internal
war. CONCLUSION: - It is absolutely fact that every state is entitled to manage willingly her
own internal and external affairs and does not like interfere of another state. Similarly it is also
the duty of the other state not to interfere in the internal and external affairs of any state.
International Law also like this. The main motto of the Security Council is maintaining peace in
all the member states.
6. Detail note on Acquisition and loss of territory.
INTRODUCTION:-The act of appropriation by a State by which it internationally acquires
sovereignty over such territory as it is at the time not under the sovereignty of another state.
Further it is therefore an original mode or acquisition is that the sovereignty is not derived from
another State. Occupation can only take place by and for a State. The leading case on the point is
Island of Palmas Arbitrations, as regards the sovereignty over the Island of Palmas there
was a dispute between America and Netherlands.
The following are the modes of acquisition of territory: In International Law a territory may be
acquired by the following means:-

42

1.
Occupation: - Oppenheim said that, Occupation is such an action by which any State
may obtain sovereignty on that territory over which there is no sovereignty of any other
state. According to Starke, Occupation consists in establishing sovereignty over a territory
not under the authority of any other State, whether newly discovered or an un-likely case
abandoned by the State formerly in control.
To decide whether on a territory occupation of a particular state exists or not, it is seen whether
that State has an effective authority and control over that territory or not. A leading case on this
topic Island of Palmas Arbitration, AJIl-1928.
2.
Accretion:-A territory by accretion may be obtained by a State. Sometimes by natural
calamities also a territory comes within the jurisdiction of a State through the same was
previously a portion of another State. For this here is no need of any formal action or declaration.
3.
Prescription: - By prescription a territory comes within a State when by continuous
occupation and control of that territory for a long time creates a vested authority in the
controlling State and by passage of time that State becomes the actual and real sovereign over
that territory. Reference, J.G.Strake Introduction to International Law-1989.
4.
Cession: - By cession also a territory comes within the authority of a State. The
cession may occur as a result of a war through pressure or it may be voluntary. The Cession will
be valid only when the sovereignty over the territory is transferred from one state to another with
the territory. while in accretion only one party may act. Under article 368 Parliament may make
a law to give effect to an implement the agreement in question covering Cession of a part of
Berubari Union NO.12 as well as some of the Cooch-Behar Enclaves.
5.
Conquest: When a state gets victory over the other State then the sovereignty over the
conquered state is not established only by victory. For sovereignty it is necessary that the victor
State establishes an effective authority over the territory of the conquered state through
annexation. The importance of this means is more or less extinct because of the Charter of the
U.N.O. by which intervention of one state on the affairs of another is prohibited.
6.
Lease: - The territory may also be acquired through lease. A state may give its territory
o another state under lease for a certain period. For the said certain period some rights of
sovereignty are transferred to another. A good example of this type of lease is transfer of certain
Islands on lease by Malta to Great Britain for some years. Recently India had also leased three
Bigha to Bangladesh. Case Union of India v/s Sukumar Sengupta-1990, it was held that the
concessions given to Bangladesh over the said area amounted to servitude.
7.
Pledge:-Sometimes there arise certain circumstances under which a State becomes
compelled to pledge a part of its territory in return of some amount of money for which it is in
dire need. In this case also a part of sovereignty over the territory concerned is transferred. For
example in 1768 the Republic of Geneva had pledged the Island of Corsica to France.
8.
Plebiscite:-Some writers of the view that through plebiscite also new State may be
acquired. Although in International Law there is no such rule but some modern writers have
expressed the view that by plebiscite also a new territory can be acquired by a State. An example
to this concern is of West Irian, Netherland and Indonesia both had put their claims on the
territory of West Irian. UNO decided for voting of the residents of west Irian. Irians voted in
43

favour of Indonesia. Now Irian is a part of the Indonesia. Example of Kashmir, Govt. Of india
have taken the position that since the merger of J&K with India several elections have taken
place and the people have voted.
9.
Through Independence obtaining of territorial sovereignty:-those States which
were colonies after attaining independence get sovereignty over the territory which consisted
within the colonial setup. The difficulty in this context is that nationality and sovereignty in the
concerned colonial territory comes only after it attains independence.
Mode of loss of State Territory:-1.According to Oppenheim, A territory of a State is lost
through cession means if one state gets some territory the same territory is lost by the other
state. 2. National Calamity: By operation of nature also sometimes territory of a state is lost e.g.
floods, by volcanic events. 3.Defeat in War: if by conquering a State gets some territory the
same is lost by the defeated state. 4. Prescription: by occupation of a territory for a long time
state gets that territory through prescription. Original States loses that very territory by
prescription. 5. Revolution: through revolution a new state comes into being so it may be said
that the state against which revolt occurred had lost its territory in the shape of a new state.
Example: Netherland revolted against Spain. & in 1971Bangladesh was born by revolution. 6.
Dereliction:- When any state abandons a territory completely or relaxes its authority over it then
it loses that territory. In history there are lesser examples of this kind.

7. Short notes on Non State entities or State Succession.

INTRODUCTION: - State is the main subject of International Law and it is very difficult to
define the term State. In principle all States are equal and this equality is due to their
international personality. All states as international persons are equal. According to Oppenheim
when any question is to be decided by consent each state is entitled to have one vote. Several
efforts have been made to formulate and codify rights and duties of States. Declaration of Rights
and Duties of Nations proclaimed by the American Institute of International Law.
Different kinds of Non State entities:- Here are some different kinds of Non-State entities:1. Confederation: - It is formed by independent States. Under International Law confederation has
no international personality. The aim and objective of confederation is to establish a sort of coordination among the States.
2. Federal State:- Generally a federal state is formed by the merger of two or more than two
sovereign states. Under international law a federal state is an international person. In a Federal
State generally there is a division of powers between the central authority and states through a
contribution. The main difference between a confederation and a Federal State is that while the
Federal State in an International person under international law and Confederation is not an
international person.

44

3. Condominium:- When two or more states exercise rights over a territory it is called
condominium. It exists when over a particular territory joint dominion is exercised by two or
more external powers. New Hebrides is a good example of a condominium. Both England and
France exercised control and had rights over the territory of New Hebrides between 1914 &1980.
4. Vassal States:-A state which is under the suzerainty of another State is called a Vassal State. Its
independence is so restricted that it has no importance under international law. According to
Starke, Vassal State is one which is completely under the suzerainty of another State.
Internationally its independence is so restricted as scarcely to exist at all.
5. Protectorate State: - Starke, Although not completely independent a Protectorate State may
enjoy a sufficient measure of sovereignty to claim jurisdictional immunity in the territory of
another state. In the Lonian Ship Case-1855: the court held that a State may remain
international person even though it is dependent upon some other State.
KINDS OF STATE SUCCESSION:- State succession is of two types:i)
Universal succession ii) Partial succession.
If the legal identity of a community is completely destroyed there is said to be a total
succession of States. If the territory is lost while personality and legal responsibility remain
unimpaired the process is described as partial succession. This does not imply a total or partial
succession respectively to the legal relation of the previous sovereign but is merely an
abbreviated way of defining the extent of the change.
The following are the different kinds of state succession:1. Universal Succession: - i) Universal succession occurs when one state occupies or annexes the
State completely or amalgamates fully whether voluntarily or through winning of war.
ii) When a state is divided into two or more parts or limits and every such unit becomes a
separate international entity or a state.
2. Partial Succession: - i) Partial succession occurs when any portion of a state revolts and
separates itself and attains independence and becomes an international person or state.Example
of Bangladesh who revolted against Pakistan and became independent separate state is a
good illustration of partial succession.
ii)
Or when a state gets some portion of another state through Cession.
iii)
When a sovereign state amalgamates itself with some Union of States and loses some portion
of its independence or comes within the sovereignty or protection of any other state.

8. State Jurisdiction. What are the exemptions to the territorial Jurisdiction of state?
INTRODUCTION:-State jurisdiction is the power of a state under international Law to govern
persons and property by its municipal law. It includes both the power to prescribe rules and the
power to enforce them. The rules of State jurisdiction identity the persons and the property
45

within the permissible range of a states law and its procedures for enforcing the law. A State
may regulate its jurisdiction by legislation through its courts or by taking executive or
administrative action. Thus the jurisdiction of a State is not always a co-incident with its territory
Case of KTMS Abdul Cader and others v/s Union of India-1977, the court held that act has
no extra-territorial application and hence the State government has no power under the Act to
pass orders of detention against persons who at the time when the orders were made were not
within India but were out-side its territorial limits.
STATE JURISDICTION
In general every State has exclusive jurisdiction within its own territory but this jurisdiction is
not absolute because it is subject to certain limitations imposed by international law. Thus in
practice it is not always necessary that a State may exercise jurisdiction in its territory on the
other hand in some circumstances may exercise jurisdiction outside its territory. Though the
relationship between jurisdiction and sovereignty is close jurisdiction is not co-extensive with
State Sovereignty. Each state has normally jurisdiction over all persons and things within its
territory.
Illustration:-A French armed public ship flying the flag of France was in the British territorial
waters when M, the Cabin boy of the ship committed the offence of murder by shooting dead D
the captain of ship. Both M &D were British nationals. During the trial that took place that the
British courts had no jurisdiction to try him for the murder committed on board a French cruiser
flying French flag. The defence cannot succeed because he theory that the pubic ship of a state
should be treated to be a floating portion of that state has long been discarded. Secondly the
offence was committed within the territory of Britain. Thirdly seeking good office of British
police and medical aid amounted to a waiver of the immunity. Thus M could be tried by British
court.
EXEMPTION TO THE TERRITORIAL JURISDICTION
There are some exceptions of the exercise of jurisdiction which definitely recognizes the
protective jurisdiction of one state to deal with foreign nationals acting in their country against
its security and integrity:1. DIPLOMATIC AGENTS:- Diplomatic agents enjoy certain privileges and immunities. They are
immune from the jurisdiction of the civil and criminal courts of the receiving State. In this
connection the old view was tha the diplomatic agents enjoy these immunities and privileges
because they were deemed to be outside the jurisdiction of receiving State. In the present time
this theory has been discarded. Modern view diplomatic agents enjoy certain immunities and
privileges because of the special functions they perform. This was affirmed in a case Ex-parte
Petroff-1971 by the Supreme Court of Australia.
2. Foreign Embassies: - Foreign embassies are often considered to be outside the jurisdiction of the
State in which they are situated. For sake of convenience embassies are to be treated a part of
their home States. The correct view however is that though not part of their home States
embassies enjoys certain immunities because of the special functions performed by the
diplomatic agents.

46

3. Foreign Sovereigns:-Foreign sovereigns are often treated to be outside the jurisdiction of other
states and possess many privileges and immunities. In the case of Christina-1938, Lord Wright
observed that there are general principles of International Law according to which a sovereign
state is held to be immune from the jurisdiction of another sovereign State.
The principle of immunity of immunity of Foreign Sovereign was developed in the early
years of the nineteenth century. In the case of the Schooner Exchange v/s McFaddon-1812, A
French Naval Vessel stayed in Philadelphia for repairs after a storm. Some persons sought
possession of the ship on the ground that in reality the ship Schooner Exchange. An American
ship which they owned and was seized by French on the High Seas in 1810 in pursuance of a
Napoleonic Decree. The U.S. Govt. however requested the court to refuse jurisdiction on the
ground of sovereign immunity. Court held that the vessel was exempt from U.S. Jurisdiction.
The jurisdiction of the nation within its own territory is necessary exclusive and absolute.
It is susceptible of no limitation not imposed by it. In another case of Vavasseur v/s Krupp1878, the plaintiff contended that the Japanese Govt., has violated his patent rights and therefore
he demanded that the delivery of the goods by it be stopped. But the court had that it had no
jurisdiction over the property of the foreign sovereigns more especially with what we call the
public property of the State of which he is sovereign.

UNIT-III
9. what is Nationality? What are the various modes of acquiring and losing nationality? Is
there any difference between nationality and citizenship in India?
INTRODUCTION:- Starke, Nationality has been defined as the status of membership of the
collectively of individual whose acts decision and policy are vouch safed through the legal
concept of the State representing these individuals.
Prof. Oppenheim, Nationality of an individual the quality of being a subject of a certain State
and therefore its citizens.
Fenwick:-Nationality is such a bond which binds an individual with a state and makes him a
member of that specific State and provides for right of protection from that State with an
obligation to abide the laws promulgated by that State,
Kelson:- Citizenship or Nationality is the status of an individual who is legally an member of a
state and ornamentally he can be called a member of that community.
IMPORTANCE OF NATIONALITY: - i) The right of protection of diplomatic representatives
are available because of nationality.
ii) If any state does not restrain a person of its nationality from such disadvantageous action
which are affecting other States then the fist State shall be responsible to other states for such
actions of its nationals.
iii) Ordinarily states do not refuse to accept its nationals in extradition.

47

1.
2.

3.
4.
5.

iv) One of the effects of the nationality is that the state has a right to refuse extradition of own
national.
vi) By the practice of many States, at the time of war the Enemy character is determined on the
basis of nationality.
MODES OF ACQUISITION OF NATIONALITY:- According to International Law
nationality can be obtained by following means :By Birth: - In the country in which a person is born he obtains the nationality of that country by
birth or at the time of birth person gets the same nationality which his parents are having.
By Naturalization: - By naturalization also nationality can be obtained. When an alien living in
a country obtains the nationality of that country it is called naturalization. In Nottebohm case1955, it was held that a State has no obligation in granting nationality to a person through
naturalization if that person has no relations with that state. The court propounded the real and
effective nationality doctrine. If any person obtains nationality of two states then in case of
controversy between the two nationalities the nationality of that state shall be accepted with
which the person fundamentally has real and effective relationship.
By Resumption:-Sometimes it so happens that a person may lose his nationality because of
certain reasons subsequently he may resume his nationality after fulfilling certain conditions.
By Subjugation:-When a State is defeated or conquered all the citizens acquire the nationality of
the conquering State.
Cession:-When a state has been ceded in another State all the people of the territory acquire
nationality of the State in which their territory has been merged.
LOSS OF NATIONALITY
1. By Release:-In some states there are such legal provisions are available by which they grant
permission to release their nationals from its nationality. For this type of release an application is
necessary. If the application for release is accepted then the applicant is released from the
nationality of that state.
2. By Deprivation:-Often in many states such legal provisions are available by which if a
national of that state enters into service of another state without the permission of home state. He
would loss nationality.
3. By long residence abroad:- The loss of nationality may take place on the ground that the
individual stayed abroad beyond a certain time limit. Many states have such type of legal
provisions which terminates the nationality for the stay of beyond limit.
4.By Renunciation:- It may also be the cause of loss of nationality, when a person is having
nationality of two or more states, he has to choose the nationality of one & has to renounce the
nationality of other state.
5. By Substitution:-In some states the nationality is terminated by substitution. A person gets
nationality of one state in place of other states.
DIFFERNCE BETWEEN NATIONALITY & CITIZENSHIP
NATIONALITY
CITIZENSHIP
The legal relationship which exists between the Denotes the relations between the person and the
48

nation & Individual.

state law.

Through Nationality the civil & natural rights of The rights of citizenship are the sole concern of
a person may come.
state law.
All citizens may possess the nationality of a
particular state.
A person who possesses only nationality in a It is not necessary that all the nationals may be
particular state may not possess all political the citizens of that particular state
rights.
Citizens are those persons who possess full
political rights in the state.

1.
2.
3.
4.

10. What do you mean by Treaty? How it is signed and what is the procedure of
ratification.
INTRODUCTION:-In the modern period International treaties have been the first and foremost
source of international law. Whenever an international court has to decide an international
dispute its first endeavour is to find out whether there is an international treaty on the point or
not. In case there is an international treaty governing the matter under dispute the decision of the
court is based on the provisions of the treaty. International treaties occupy the same significant
position in the field of international law as the legislation occupies in the municipal law.
DEFINITION OF TREATY: - International treaty is an agreement between two or more states
under the international law to create mutual relationships. According to Oppenheim,
International treaties are those agreements between the states which are of contractual nature
and produce legal rights and obligations.
According to Starke, Usually in all cases, the purpose of treaties is to create binding nature of
obligations on the parties to the treaties.
According to Vienna Convention on treaties-1969, Treaties and contracts are document under
which two or more states under international law establish or try to establish their relations.
CLASSIFICATION OF TREATIES:- One of famous jurist Mc Nair has classified treaties in
the following manner:Treaties having the character of conveyance.
Treaty contracts.
Law making treaties: a) Treaties creating constitutional law just as charter of ICJ. b) Pure law
making treaties e.g. labour conventions negotiated by ILO.
Treaties akin to charter of incorporation e.g. treaty by which International Posta Union -1874
came into existence.
49

5. Vattel has classified treaties into four categories i.e. equal, unequal, real and personal.
6. Prof.Oppenheim has classified the treaties into two categories:1. Law making treaties. 2. Treaties made for other purposes.
HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of binding nature, the following
conditions are to be fulfilled:
1. Accreditation of persons on behalf of contracting parties:- The intending parties of treaties
should appoint persons as their representatives to negotiate on their behalf authoritatively for
arriving at terms and conditions of a treaty.
2. Negotiations and adoption:- After due negotiations the terms and conditions of a treaty are
clunched and for its adoption a decision is made by both the parties.
3. Signature: - The representatives sign on each and every terms of a treaty to make it enforceable.
A treaty becomes enforceable against a party only after the signature of the party or its
representative is obtained on the treaty papers.
4. Accession and Adhesion: - The practices of the States show that by the process of accession and
adhesion a state which is not a party to a treaty may become a party to it by signing it afterwards.
5. Enforcement of a treaty:- Usually the enforcement of a treaty depends and begins according to
the terms and provisions as laid down in the treaty itself. Many treaties commence after the
signature is affixed by the authorised person while those which need ratification by the other
states in certain number begin after the required number of states have ratified. The general rule
of International Law is that a treaty is enforceable against the parties only which have entered
and signed a treaty.
6. Registration & Publication:- It is necessary after the treaty comes into force, it may be got
registered and published. Under the provisions of article 102 of UNO charter. If it is not
registered with the UNO that in case of any dispute comes into existence for its settlement
through the organs of UNO the treaty which is not registered cannot be referred to for the
settlement of that dispute.
7. Basis of binding force of the International treaties:-According to Angilotti, Binding force of
International treaty gains its binding force.
PROCEDURE OF RATIFICATION:- Ratification is a very important processes ordinarily the
terms and conditions of a treaty. Treaty does not become enforceable without ratification. The
President of a State or Chief of the Govt. Ratify the signatures of its representatives who
negotiated for arriving at the agreed terms and conditions of a treaty.

11. What do you understand from the term of Extradition? Is it different from Asylum?
Difference between Extra Territorial & territorial Asylum.

50

INTRODUCTION: - Each State exercises complete jurisdiction over all the persons within its
territory. But sometimes there may be cases when a person after committing crime runs away to
another country. In such a situation the country affected finds itself helpless to exercise
jurisdiction to punish the guilty person. This situation is undoubtedly very detrimental for peace
and order. There is a social need to punish such criminals and in order to fulfil this social
necessity the principle of extradition has been recognised.
Meaning & Definition of Extradition:- Extradition is the delivery of an accused or a convicted
individual to the State on whose territory he is alleged to have committed or to have been
convicted of a crime.
According to Starke, The term extradition denotes the process whereby under treaty or upon a
basis of reciprocity one state surrenders to another at its request a person accused or convicted of
a criminal offence committed against the laws of the requesting state.
According to Grotius:- It is the duty of each state either to punish the criminals or to return
them to the States where they have committed crime.
Under International Law extradition is mostly a matter of bilateral treaty. In principle each state
considers it a right to give asylum to a foreign national, thus there is no universal rule of
customary international law in existence imposing the duty of extradition. Afamous case Music
director Nadeem who was accused of the murder of Gulshan kumar. Nadeem fled to Britain.
Lack of providing sufficient evidence England refused to extradite Nadeem.
IS EXTRADITION IS DIFFERENT FROM ASYLUM
There is a great difference in between extradition and Asylum. Extradition means delivery of
an accused or a convicted individual to the state on whose territory he is alleged to have
committed or have been convicted of a crime whereas inAsylum the active protection
extended to a political refugeefrom another state by a state which admits him on his request.
DIFFERENCE BETWEEN EXTRA TERRITORIAL & TERRITORIAL ASYLUM:- In
the asylum case Colombia v/s Peris- ICJ-1950.
Extra territorial Asylum

Territorial Asylum

In case of diplomatic asylum the refugee is The refugee is within the territory of the state of
within the territory of the state where the offence refuge
was committed.
Grant of diplomatic asylum involves
derogation from the sovereignty of that state.

a Territorial asylum is granted by a State in its

own territory.

It withdraws the offender from the jurisdiction

of the territorial state and constitutes an Every state has right in the exercise of its
intervention in matters which are exclusively sovereignty to admit into the territory such
within the competency of the state.
persons as it deems advisable without exercising
51

the Declaration of Asylum.

Grant of extra territorial asylum is rather a
derogation from the sovereignty.
The grant of territorial asylum is an incident of
territorial sovereignty itself.
Right to grant extra-territorial asylum is
exceptional and must be established in each Each state has a plenary right to grant territorial
case.
asylum unless it has accepted some particular
restriction in this regard.

12. What are the different classes of Diplomatic Agents? Describe briefly their privileges &
Immunities.
INTRODUCTION: - During the Ramayana and Mahabharata period some aspects of
International Law were in their developed stage. Examples of international law relating to
diplomatic agents may be cited in this connection. The permanent appointment of diplomatic
envoys began from the seventeenth centaury. The rights, duties, immunities and privileges etc.,
of the diplomatic in 18th. &19th. Centaury was mostly in the term of customary rules. The first
great landmark was the Congress of Vienna in 1815, wherein the customary law regarding
diplomatic agents was clarified and codified. The contents of Vienna Convention were adopted
finally in 1961. The Indian Parliament passed the Diplomatic Relations on the basis of Vienna
Convention-1972 to give effect to this convention. This law relating to the diplomatic and
consular affairs remains the strongest section of International Law. DIFFERENT CLASSES
OF DIPLOMATIC AGENTS:-The diplomatic agents have been classified according to their
status and functions. The first classification of diplomatic agent was made in the Congress of
Vienna in- 1815 under which diplomatic agents were classified under the following categories:1.Ambassadors and Legates:-These are the first category of diplomatic agents and are the
complete representatives of the sovereignty states. Their designation is Ambassadors or
Permanent Representatives of their respective countries of U.N. They are appointed by POP.
2.Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic agents of second
category and as compared to the diplomatic agents of the first category. They enjoy less
privileges and immunities.
3.Charge-d affairs: - They are the diplomatic agents of the last category. The main reason for
this is that they are not appointed by the head of State but are appointed by the Foreign Minister
of the State. Their status is considered below the Minister Resident.
4.Minister Resident: - In the congress of Aix-la-Chappele-1818, this category was added at
category No.3, but it was again dropped by 1961 Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed by the International
Court of Justice on 15.12.79 in a case of United States Diplomatic and Consular Staff in Tehran:
52

For enabling states irrespective of their differing constitutional and social systems to achieve
mutual understanding. One of the pillars of modern International Law is the diplomatic
immunities of the Ambassadors. However the following are the immunities and privileges of the
diplomatic agents:1. Inviolability of the person as envoys: - The diplomatic agents are extended personal safety
and security. If an envoy is attacked it is deemed that attack was on the country to which the
envoy is belonging.
2. Immunity from criminal jurisdiction of the court: - The courts of the state where the envoy
is posted do not treat the envoys within its criminal jurisdiction. It ordinarily believed that
envoys will not violate the laws of the host country. But there are certain circumstances when
the envoys lose their immunity for example when they indulge in conspiracy against the host
state.
3. Immunity from civil jurisdiction:- the envoys also enjoy the immunities of civil nature also
no suit is filed in the civil court of the host state against envoys. As per Vienna convention three
exceptions when immunity is not available: i) for any immovable property within the jurisdiction
of host state he has. ii) in a matter of inheritance where the envoy is a successor or executor in
his personal capacity. iii) The commercial activities of the envoy in personal capacity.
4. Immunity regarding residence:-His premises are inviolable and no search is allowed in his
residence. If any person intrudes the premises of envoy to avoid arrest, it is the duty of envoy to
deliver such person to the host government to decide.
5. Immunity from presence in a court as a witness:- Any envoy cannot be compelled to give
an evidence in any Court but he himself can waive this privilege and appear before a court.
6. Immunity from Taxes:-Vienna convention provides this immunity to envoys for payment of
local taxes. But water, electricity, telephones etc. not included.
a. Right to worship:-Within the premises of their embassy, envoys are free to follow according
to their choice the mode of worship. B)Right to exercise jurisdiction over the staff and family
in the embassy:- Envoys are free to exercise their jurisdiction over the subordinate staff &
family in the Embassy to keep the embassy going on.
c. Right to travel freely in the territory of receiving state:-Vienna convention has provided a
new right to envoys, they can travel freely within the territory of host state and go anywhere.
d. Freedom of communication for official purposes:- Vienna convention-1961 the envoys have
freedom to communicate with his own state in context to their official work.
e. Immunity from Military and other local obligations :- Vienna convention granted the
immunity to envoys from military and other local obligations of the host state. BASIS OF
IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS:- Theory of extra
territoriality: - According to Grotius diplomatic agents though physically present upon the soil
of the country to which they are accredited. It is justified base when they are treated to remain
for all purposes upon the soil of the country to which they represent. Functional Theory: - the
reasons for granting privileges and immunities to the diplomatic agents are that they perform
special type of functions that is why they are called functional and in modern times this theory is
accepted as correct.
53

UNIT-IV
13: Discuss the various compulsive means of settlement of International disputes. OR write
notes on Retorsion, Reprisal as compulsive means of settlement of International disputes.
Introduction:- The primary purpose of the United Nation is that there should be complete peace
and security in all the members of UNO. First of all to seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own
choice. In the other meaning when it deems necessary call upon the parties to settle their dispute
by such mean which shall be convenient to them. Compulsive or coercive means of settlement of
International disputes are as under:1. Retorsion:- Retorsion is the technical term for retaliation. If any state behaves in unequal or in
courteous way with the other State, then the other state under the International Law gets the right
of retorsion. In this way the meaning of Retorsion is retaliation. But in connection with
Retorsion the State can initiate only that proceeding which is permitted by the International Law.
For example in retorsion the diplomatice channels can be terminated and immunities and
privileges of the diplomat can be withdrawn together with the existing economic subsidies. In
the past Pakistan declared the diplomat of Iraq as persona non grata and that diplomat had to
leave Pakistan. Pakistan took this action because in the Embassy of Iraq a lot of arms and
ammunition was stored.
2. Reprisal:- If the problem is not solved by Retorsion the States have the right under the
International Law to resort to Reprisal that is, in Retaliation the state can initiate such a
proceeding that violator of the problem may be solved. The reprisal can be resorted against a
State when it has indulged in some illegal or inappropriate activity. For example Israel has
resorted to Reprisal many times against Lebnon and has bombarded those regions of Lebnon
where from Arab Terrorists attacked on the territories of Israel. The members of UN cannot
indulge in Reprisals of such a type which endangers the international peace and security. It is
commonly accepted that Reprisal becomes justified and legal when the other country has
committed an international tort or violated the norms of International Law. In the provocative
action and Reprisal there must be adequate proportion i.e. in proportion to the violation, the
damage should be caused. The Reprisal is valid only when demand for reparation was made and
this was not fulfilled.
3. Embargo:- Embargo is also a kind of Reprisal. If the ship belongs to a State which has
committed international tort or has committed some other international wrong and is available in
the territorial waters of the State against which tort or wrong has been committed then such
vessels can be restrained from travelling through that area as a matter of right by the other State.

54

4. Pacific Blockade: - By this method the outer boundary of a State is blocked peacefully. It is
resorted during the peace time against a State. The coming and going ship is stopped. By
blockade of Ports of a country compelled that state to solve the problem.
5. Intervention: - Under article 2(4) of the U.N. Charter, the principle of non-intervention in the
internal affairs of a State has been propounded. But according to Kelson, he has asserted that
International Law does not prohibit intervention in all circumstances, meaning thereby that in
certain circumstances intervention is valid and legal.

55

14. Explain the purpose and principles of United Nation. How for United Nation has been
successful in achieving its object?
INTRODUCTION:-In the 20th. Century two world wars of highly destructive nature were
fought. After the First World War the league of Nation was established. The main objects of the
League of Nations were established and maintain world peace and security. The League of
Nations failed in its mission. The large scale destructive effects of the second World War forced
the Nations of the world once again to establish some institution of International Statute which
may solve peacefully the disputes amongst them and establish peace and security world over. On
26th.anuary, 1945 at Sanfransisco different Nations buttressed the establishment of U.N.O. and
after its the membership of the UNO increased substantially and now it stands at 192.
PURPOSES OF UNO: - The purposes and objects for which the UNO has been established are
laid down in Article 1 of the Charter:1. To maintain international peace and security:- In the preamble of the charter it is resolved to
save the succeeding generations from the scourge of war and be united to achieve these ends. To
achieve the target the Organisation shall prevent or remove threat to the peace, breach of peace
and acts of aggression by taking effective and collective measures. The international problems
were to be solved by peaceful means under the norms provided in the International Law and
canons of justice.
2. To develop friendly relations among nations:- The friendship should be prosper on the basis of
respect for the norms of equal rights and equality in self determination of people. So this thought
which developed friendly relations & universal peace among the nations was set-up by UNO.
3. For removal of social, economic, cultural and human problems soliciting of international
co-operation:- In the preamble of the charter of UNO it has been resolved to energize the
International machinery for the development of economic and social status of the people. A
belief is to b developed in promoting and encouraging the respect for human rights and
fundamental freedom for all without distinction to race, sex, language or religion.
4. To make the UN an International Centre for harmonization:- The general purpose of UNO
has to be made a centre for co-ordination of activities executed by different nations in this
regards to avoid clashes in choosing priority, the UNO is to harmonise the different activities of
different nations to achieve the main purpose.
PRINCIPLES OF UNO:- There are following principles of UNO:1. Principle of sovereign equality: - Principle of Sovereign Equality means that all the members of
UNO are equal in the eye of International Law. No discrimination in dealings with them is
permitted.
2. Principle of honouring of obligations:- Being member of UNO, they enjoy certain rights and
benefits. Members are required to fulfil in good faith the obligations assured by them in
accordance with the Charter of UNO.
3. All nations shall settle their disputes through the principals of peaceful settlement:-All the
international disputes are to be settled by peaceful means with the results that peace and security
and justice of any region may not endanger.

56

4. Principle of non-use of force:-All members of UNO should refrain from the use of force or
threat of force against the territorial integrity or political independence of any State.
5. Principle of assistance to the UNO:-It is the essential duty of every members of UNO to support
and assist to take action against the State who is not following the UNO charter.
6. Principle for non-member States: - As provided in Art.2 of UNO charter that the States which
are not members of UN, act in accordance with the principles of UN for maintaining
international peace and security.
7. Principle of non-interference in domestic affairs of a state: - Art.2 (7) provides that the UN
shall not intervene in the matters which are essentially within the domestic jurisdiction of any
State or to compel any members to submit such matters settlement.
If all the above principles are faithfully followed by all the members of UNO, than there will be
no doubt at all that this path will lead to World Peace and the sayings of Kelson that UNO is
World Government will remain in existence.
HOW FOR U.N. HAS BEEN SUCCESSFUL IN ACHIEVING ITS OBJECTS
The United Nation has performed important functions in the social, economic and cultural fields
as well as in the fields of human rights. Besides this Uniting for Peace Resolution. There has
been constant development of the powers and functions of UN. United Nations has become the
symbol of democratisation in the world.
Public opinion is an important factor which comes into play in the new
international law. The Gulf War-1991 and the breaking up of the Soviet Union are likely to bring
about the revolutionary changes in the U.N. in the present Uni-polar world (United State as the
super power), majority of the member-State are now demanding democratization of the world
body. Un-doubtly the United Nations has achieved its objects in maintaining the peace, security
and canons of justice at the International Level.

57

15. Short notes on i) Neutrality ii) Blockade.

INTRODUCTION: - The term neutrality has been derived from the Latin word Neuter which
means impartiality. In wider sense by neutrality which can be means an attitude of impartiality
adopted by the States who do not take part in the war. Ordinarily by neutral States it may be
presumed that states which try to keep themselves aloof from the war of their neighbours.
Neutrality is the attitude of impartiality adopted by third States towards the belligerents and
recognized by belligerents. Such attitude creating rights and duties between the impartial States
and belligerents.
DEFINITION: - According to JG Strake, Neutrality denotes the attitude of a state which is
not at war with belligerents and does not participate in hostilities. In its technical sense however
it is more than an attitude denotes a legal status or a special nature involving a complex of rights
and duties and privileges at International Law which must be respected.
According to Lawrence: Neutrality is the status of such States which do not participate in war
and maintain their relations with belligerents. Lawrence has emphasized only on the point that
neutrality is such a position of a state by which they do not participate in a war and maintain
their peaceful transactions and journey with belligerents.
ESSENTIAL ELEMENTS OF NEUTRALITY:-Impartial Attitude:-states who do not takes
part in war and remain impartial. Impartiality is an important element of Neutrality.
Recognition of the attitude of impartiality by the belligerent States: - Impartiality of
Neutrality State is accepted or recognized by the belligerents
Emergence of certain rights and duties because of impartial attitude and its recognition by
the belligerents.
Development of the law of Neutrality:-During 18th.Century it began to accept that the countries
which do not participate in war have a right to remain impartial. During 19 th.Century Law of
Neutrality get more development and credit for this goes to America.
Rational basis of Neutrality: - Neutrality usually because of the following reasons:
1. It helps in limiting the area of war. 2. It discourages war. 3. Because of it the States keep
themselves aloof from the war. 4. It regulates the international relations.
Provisions regarding Neutrality in the Charter of UNO:-1. The right to commence a was
suspended. 2. Wars which are fought even without violating the conventions/treaties entered into
the charter of UNO or where there is lack of no war treaty then the member States have freedom
to solve matters of disputes either by enquiry through Security Council.3. If any States begins a
war after the violation of Art.12 to 15 of the UN Charter then such war shall be deemed to be a
war against all the members of States of the UNO.
BLOCKADE
DEFINITION:-According to JG Strake, blockade occurs when a belligerent bars access to the
enemy coast or part of it for purpose of preventing ingress or egress of vessels or air-crafts of all
Nations. And according to Oppenheim, It is blocking men of war of the approach to the
enemy coast or part of it for the purpose of preventing ingress and egress of vessels or aircrafts
of any nations. The law as to blockade represents a further restriction on the freedom of neutral
States as to trade with belligerents.
58

Essential elements of Blockade:-i) It should be done by men of war. ii) The part of coast or
whole coast of the enemy can be blockade. iii) The ingress and egress of the ships should be
prevented through blockade. iv) Blockade is an act of war. v)Blockade should be such that no
discrimination is made between the ships of different countries.
Besides the above elements the additional necessary elements are also to
follow :- i) Declaration and Notification ii) Geographical limits of the blockade area: It is
essential to clarify the areas where the blockade will operate and vessels and aircrafts shall be
prohibited from entering. iii) Exemption to neutral parts: Neutral ports should be exempted
from blockade. iv) Impartiality: There should not be any discrimination with the vessels of any
Nation; the vessels should stop impartially by the country which has imposed
blockade. v) Effectiveness: For making blockade binding it is necessary that it should be
effective. For effectiveness it is essential to utilize the force and such measures which are fit for
stopping the ingress and egress of the vessels.
TERMINATION OF BLOCKADE: The blockade comes to an end in the following:1. By termination of war.
2. The country which has imposed blockade can itself terminate it.
3. When the blockade is continuously violated and it does not remain effective then it is
understood that blockade has terminated.
4. The blockading State captures and occupies the blockaded coast or port.
5. When blockading forces are vanquished by the enemy forces.
6. When the military vessels blockading area leave the blockaded coast it is understood that
blockade has ended.

59

16. State briefly the rules of Land and Aerial warfare.

INTRODUCTION: - The law of war consist of the limits set by International Law within which
the force required to over-power the enemy may be used and the principles there under
governing the treatment of individual in the course of war and armed conflict. The objective of
the rules of war is not to govern the war or regulate it as rules of games.
Law of Land Warfare:-The Hague Convention-1907 is a landmark in respect of rules of land
warfare. Hague convention clarified the status of belligerent states and clarified the distinction
between combatants and non-combatants. According to it the persons in the regular army having
specific regiment number etc., are lawful combatants. Besides this is the guerrillas volunteers
corps etc., may also be included in the category of combatants provided they fulfil the
following three conditions:1. They serve under a definite and specific authority. 2. They have specific emblem which may
be recognised from distance. 3. The conduct was in accordance with the rules and customs of
war.
Prohibited Means in Land Warfare:-War is contest between Armed forces of two or more
States wherein force can be used within certain limits laid down by Laws and Customs of war.
International customs, treaties have prohibited certain means in land warfare. Hague
Convention- 1907, the use of poisonous weapons, gas, pollute, food material, poison water,
projectiles which cause unnecessary sufferings and pain etc., have been prohibited and it will
also violation of the laws and customs of war. During land war undefended cities, villages cannot
be attacked or destroyed. Killing of wounded and sick persons of the armed forces during war
has also been prohibited. However they can be made prisoners of war. Ruses of War or
Stratagem : It is a permitted way during land warfare. By ruses of war or stratagem we mean
that for the attainment of its military objectives a belligerent State can misguide or mislead the
enemy. According to modern concept of war, war is not only the test of physical strength but also
intelligence provided under article 24 of Hague Convention.Deceit:- Ruses of war are
permitted but in Deceit which is different from stratagem is contrary to International Law. For
example, according to Hague Convention, unauthorised use of flag or emblem of the armed
forces has been prohibited. Flag of peace or emblem of red- cross cannot be used to deceive the
enemy.ESPIONAGE:- The position of Espionage is very peculiar. On one hand I.Law
recognises espionage during land war and on the other hand it also recognised the punishment
can be awarded to those who are caught or apprehended while spying. Hague Regulation-1907
has defined spy as one who under false pretences obtain information. True spy acting in
disguise or under the pretences is himself responsible.

LAWS OF AERIAL WARFARE

INTRODUCTION: - In the modern times the importance of aerial warfare has greatly
increased. Aircrafts were used in large scale for the first time during the First World War. Since
the First World War he aircrafts have been used in all the major wars that formulation of definite
rules of International Law to regulate their use during war. Bombing by aircrafts causes
60

excessive loss of public and private property. In order to regulate use of aerial warfare many
conferences have been called for from time to time and many rules have been formulated.
LAWS OF AERIALWARFARE: - Brussels Conference of 1874: laid down the following
rules/laws: 1. Bombardments on undefended cities, villages and towns was prohibited. 2.
Bombing of buildings and works relating to art, science, religion and culture and philanthropic
works was prohibited. 3. It was also laid down that the buildings of public utility should not be
destroyed during aerial warfare.4. Bombing on hospitals etc., was completely prohibited. Hague
Convention- 1899, approved the rules formulated in Brussels Conference, 1874 and also laid
down the following additional rules: - 1.Bombing on civilian people and their property without
just and appropriate cause was prohibited. 2. Bombardment for the realisation of money or things
was declared illegal. 3. Bombardment of those cities and villages which are away from the war
areas was also prohibited. 4. It was also laid down that bombardment should be made only for
the achievement of military objectives.
Washington Conference-1922: The use of aircrafts during the First World War had made it clear
that the rules of aerial warfare formulated so far were not in conformity with the changing facts
and circumstances. In order to amend these rules and to frame certain rules a conference was
called in Washington in 1922:-1.Aiming of private aircrafts with weapons for self-defence was
prohibited. 2. Bombardment to frighten civilian population was prohibited.3.villages and towns
and buildings which are unconnected with or are away from war areas should not be
destroyed. 4. Building connected with religion culture or the philanthropic works cannot be
destroyed. 5. Hospitals and other places where the patients are treated cannot be destroyed.
Further the main object of The Hague Air warfare Rules was to propose a legal regulation of the
special problems raised air warfare.

Aerial Bombardment is legitimate only when directed at military objectives.

Belligerent non-military aircraft can be fired upon unless they make the nearest available
landing on the approach of enemy military aircraft.

Aerial bombardment for the purpose of terrorising the civilian population of destroying or
damaging private property not of military character of injuring non-combatants is prohibited.

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Unit-V
Intervention
DEFINITION OF INTERVENTION: - In simple words intervention means to interfere
directly or indirectly by one or more states in the internal or external affairs of another state.
Prof.L.Oppenheim : Intervention is dictatorial interference by a state in the affairs of another
state or the purpose of maintaining or altering the actual condition of things. Interference pure
and simple is no intervention. Hans Kelson pointed out that, International Law does not
prohibit intervention in all circumstances. He further says that when one state intervenes in the
affairs of another state through force, then as a reaction against this violation International Law
permits intervention.
TYPES OF INTERVENTIONS:- It can be accessed from the above view of different Jurists
regarding types of intervention that there are so many types of Interventions. However some of
them are as under:1. Military interference: It is done with military force.2. Political Interference: is done by
giving threatening information.3. Dictatorial Interference: Is done in threatening tone.4.
Interference without right: It is done without any purpose & right. 5. Internal Interference: is
done in interfering in the internal affairs. 6. External Interference: It is also done in interfering in
external affairs. 7. Penal Intervention; 8. Subversive Intervention: is done by another state
through exciting the people against the state.9. Economic Intervention: is done by creating
obstacles in the trade.
BASES OF INTERVENTION: - It is very much pertinent to mention here that what is the basis
of doing of intervention and what type of interventions are valid under UNO Charter. However
the following have been considered as the main basis of intervention: - i. On the basis of self
defence ii) On the basis of humanity iii) for application of treaty rights IV) to stop illegal
intervention v) to maintain balance of power vi) to protect individuals and their
property vii) collective intervention viii) to protect International Law ix) at the time internal war.
All above basis of intervention have been recognised by the UNO except the followings :- i) for
application of treaty rights. ii) to stop illegal intervention iii) to maintain balance of
power IV) to protect individuals and their property. V) To protect International Law.

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Relation between International Law and Municipal Law.

There are certain theories have been propounded to explain the relationship between
International Law and Municipal Law. In general it is notionally accepted that the state
municipal law control the conduct of individuals within the state while International Law
controls the relations of nations. But now this concept has altogether been changed and the
scope of International Law has increased and it not only determines and controls the relations of
states but also the relations of members of International community. Both the laws have cohesion with each other and the relations between these two are more prominent. These theories
have been put forward to explain the relationship between International Law and State Law. Of
all these theories as per following details, the most popular are the Monism and dualism and they
are diametrically opposed to each other:1. MONISTIC THEORY:-It is also known in the name of Monism theory. According to the
exponents of this theory International Law and Municipal Law are intimately connected with
each other. International Law and Municipal Law are the two branches of unified knowledge of
law which are applicable to human community in some or the other way. All Law are made for
individuals. The difference is that municipal law is binding on individual while International
Law is binding on states. Conclusively it can be said that the root of all laws is individual.
According to Strake, International Law is part of state Municipal Law and therefore decisions
can be given by Municipal courts according to the rules of International Law.
According to O.Kornell, The objective of all laws is human welfare whether it is state
municipal law or International Law.
2. DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and state
Law are two separate laws and contained legal systems. The Monist view of law is part of
philosophy according to which totality is a single structure. But within the framework of the
unitary universe is diversity of phenomenon. International Law cannot become part of state
municipal Law till the principles of International Law are applied under State Municipal Law.
According to Strake, The main foundation of the proponents of dualistic theory is that state
Municipal Law and International Law are two different legal systems because the nature of
International law is fundamentally different from State Municipal Law.
Angilotti has also recognised both the systems as two different legal systems. According to him
the fundamental principle of State Municipal Law in compliance of law enacted by state
legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the
agreements executed between the states.
De-Facto- RECOGNITION
Recognition are two types, 1. De facto 2. de jure recognition.
The practice of States shows that in first stage the State generally give de facto
recognition. Later on when they are satisfied that the recognised state is capable of fulfilling
International obligations, they confer de jure recognition on it, that is why sometimes it is said
that de facto recognition of state is a step towards de jure recognition. The detail of de facto and
de jure recognition is as under:63

DE FACTO RECOGNITION:- Prof. G. Schwarzenberger:- When a state wants to delay the

de jure recognition of any state, it may, in first stage grant de facto recognition.
The reason for granting de facto recognition is that it is doubted that the state recognized
may be stable or it may be able and willing to fulfil its obligations under International Law.
Besides this it is also possible that the State recognised may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the essentials elements of
statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :- The de facto recognition of a State or government takes
place when the said State is free state and enjoys control over a certain fixed land but she is not
enjoying the stability at a deserved level and lacking the competence to bear the responsibility of
International Law.
For example: - De jure recognition had not been given to Russia by America and other countries
for a long time because Russia was not having competence and willingness to bear responsibility
of International Law. The same position was with China.
In view of the Judge Phillips C Jessup, De facto recognition is a term which has been used
without precision when properly used to mean the recognition of the de facto character of a
government; it is objectionable and indeed could be identical with the practice suggested of
extended recognition without resuming diplomatic relations.
The de facto recognition is conditional and provisional. If the state to which De Facto
recognition is being given is not able to fulfil all conditions of recognition then that recognition
is withdrawn.

STATE JURISDICTION
State jurisdiction is the power of a state under international Law to govern persons and property
by its municipal law. It includes both the power to prescribe rules and the power to enforce
them. The rules of State jurisdiction identity the persons and the property within the permissible
range of a states law and its procedures for enforcing the law. A State may regulate its
jurisdiction by legislation through its courts or by taking executive or administrative action. Thus
the jurisdiction of a State is not always a co-incident with its territory Case of KTMS Abdul
Cader and others v/s Union of India-1977, the court held that act has no extra-territorial
application and hence the State government has no power under the Act to pass orders of
detention against persons who at the time when the orders were made were not within India but
were out-side its territorial limits.
STATE JURISDICTION
In general every State has exclusive jurisdiction within its own territory but this jurisdiction is
not absolute because it is subject to certain limitations imposed by international law. Thus in
practice it is not always necessary that a State may exercise jurisdiction in its territory on the
other hand in some circumstances may exercise jurisdiction outside its territory. Though the
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relationship between jurisdiction and sovereignty is close jurisdiction is not co-extensive with
State Sovereignty. Each state has normally jurisdiction over all persons and things within its
territory.
Illustration:-A French armed public ship flying the flag of France was in the British territorial
waters when M, the Cabin boy of the ship committed the offence of murder by shooting dead D
the captain of ship. Both M &D were British nationals. During the trial that took place that the
British courts had no jurisdiction to try him for the murder committed on board a French cruiser
flying French flag. The defence cannot succeed because he theory that the pubic ship of a state
should be treated to be a floating portion of that state has long been discarded. Secondly the
offence was committed within the territory of Britain. Thirdly seeking good office of British
police and medical aid amounted to a waiver of the immunity. Thus M could be tried by British
court.
The jurisdiction of the nation within its own territory is necessary exclusive and absolute. It is
susceptible of no limitation not imposed by it. In another case of Vavasseur v/s Krupp-1878, the
plaintiff contended that the Japanese Govt., has violated his patent rights and therefore he
demanded that the delivery of the goods by it be stopped. But the court had that it had no
jurisdiction over the property of the foreign sovereigns more especially with what we call the
public property of the State of which he is sovereign.

DIPLOMATIC AGENTS
During the Ramayana and Mahabharata period some aspects of International Law were in their
developed stage. Examples of international law relating to diplomatic agents may be cited in this
connection. The permanent appointment of diplomatic envoys began from the seventeenth
centaury. The rights, duties, immunities and privileges etc., of the diplomatic in 18 th. & 19th.
Centaury was mostly in the term of customary rules. The first great landmark was the Congress
of Vienna in 1815, wherein the customary law regarding diplomatic agents was clarified and
codified. The contents of Vienna Convention were adopted finally in 1961. The Indian
Parliament passed the Diplomatic Relations on the basis of Vienna Convention-1972 to give
effect to this convention. This law relating to the diplomatic and consular affairs remains the
strongest section of International Law.
DIFFERENT CLASSES OF DIPLOMATIC AGENTS:-The diplomatic agents have been
classified according to their status and functions. The first classification of diplomatic agent was
made in the Congress of Vienna in- 1815 under which diplomatic agents were classified under
the following categories:1. Ambassadors and Legates:-These are the first category of diplomatic agents and are the
complete representatives of the sovereignty states. Their designation is Ambassadors or
Permanent Representatives of their respective countries of U.N. They are appointed by POP.
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2. Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic agents of second
category and as compared to the diplomatic agents of the first category. They enjoy less
privileges and immunities.
3. Charge-d affairs: - They are the diplomatic agents of the last category. The main reason for
this is that they are not appointed by the head of State but are appointed by the Foreign Minister
of the State. Their status is considered below the Minister Resident.
4. Minister Resident: - In the congress of Aix-la-Chappele-1818, this category was added at
category No.3, but it was again dropped by 1961 Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed by the International
Court of Justice on 15.12.79 in a case of United States Diplomatic and Consular Staff in Tehran:
For enabling states irrespective of their differing constitutional and social systems to achieve
mutual understanding. One of the pillars of modern International Law is the diplomatic
immunities of the Ambassadors.
However the following are the immunities and
privileges of the diplomatic agents:1. Inviolability of the person as envoys: - The diplomatic agents are extended personal safety and
security. If an envoy is attacked it is deemed that attack was on the country to which the envoy is
belonging.
2. 2. Immunity from criminal jurisdiction of the court:- The courts of the state where the envoy
is posted do not treat the envoys within its criminal jurisdiction.
DEFINE TREATY& ITS RATIFICATION
In case there is an international treaty governing the matter under dispute the decision of the
court is based on the provisions of the treaty. International treaties occupy the same significant
position in the field of international law as the legislation occupies in the municipal law.
DEFINITION OF TREATY: - International treaty is an agreement between two or more states
under the international law to create mutual relationships. According to Oppenheim,
International treaties are those agreements between the states which are of contractual nature
and produce legal rights and obligations.
According to Starke, Usually in all cases, the purpose of treaties is to create binding nature of
obligations on the parties to the treaties.
According to Vienna Convention on treaties-1969, Treaties and contracts are document under
which two or more states under international law establish or try to establish their relations.

1.
2.
3.
4.

CLASSIFICATION OF TREATIES:- One of famous jurist Mc Nair has classified treaties in

the following manner:Treaties having the character of conveyance.
Treaty contracts.
Law making treaties: a) Treaties creating constitutional law just as charter of ICJ. b) Pure law
making treaties e.g. labour conventions negotiated by ILO.
Treaties akin to charter of incorporation e.g. treaty by which International Posta Union -1874
came into existence.
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5. Vattel has classified treaties into four categories i.e. equal, unequal, real and personal.
6. Prof.Oppenheim has classified the treaties into two categories:2. Law making treaties. 2. Treaties made for other purposes.
HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of binding nature, the following
conditions are to be fulfilled:
1. Accreditation of persons on behalf of contracting parties:- The intending parties of treaties
should appoint persons as their representatives to negotiate on their behalf authoritatively for
arriving at terms and conditions of a treaty.
2. Negotiations and adoption:- After due negotiations the terms and conditions of a treaty are
clunched and for its adoption a decision is made by both the parties.
PROCEDURE OF RATIFICATION
Ratification is a very important processes ordinarily the terms and conditions of a treaty. Treaty
does not become enforceable without ratification. The President of a State or Chief of the Govt.
Ratify the signatures of its representatives who negotiated for arriving at the agreed terms and
conditions of a treaty.

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