International Law Notes

History and nature of
International Law
Dr. Raju KD
Assistant Professor
Rajiv Gandhi School of Intellectual Property Law
IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL/Labour-2008 1
Nature of International Law
 Nation states not individuals.
 Law within the country – municipal law
 Law deals with nations – international law
 No particular legislature to legislate.
 International Court of Justice – voluntary jurisdiction.
 No enforceability.
Theories
 John Austin – command of the sovereign backed by a
sanction or punishment.
 There is no unified system of enforcement.
 use of force is justified in some circumstances.
 There is no international force to implement any
decision of the ICJ.
 Consent theory.
 Theory of self limitation.
Early
 Closely related to western culture
 European notion of sovereignty
 Modern system – 400 years back
 Solemn treaty between the rulers of Lagosh and
Umma – city states situated in the area known to
historians as Mesopotamia – 2100 BC.
 Rameses 11 of Egypt and the King of Hittites – peace
and brotherhood.
 Many agreements by middle eastern powers.
Early
 The notion of universal community.
 Greek awareness.
 Roman’s respect for law and organisations.
 Jus civile to jus gentium – Roman law.
 Roman Law – corpus juris civilis – compilation of legal
materials by byzantine philosophers 534 AD.
 Growth of Islam.
Middle ages
 Organised church
 Development of ecclesiastical law
 Canon law
 Commercial and maritime law developments
 Law merchants
 Francisco Votoria – Professor of Theology – University
of Theology – (1480-1546).
 Suarez (1548-1617) – jesuit and Professor of Theology
 Alberico Gentili (1552 – 1608) – Northern Italy.
Early developments
 Professor Vinogradoff – inter municipal law
 Costmary rules developed on diplomatic envoys.
 Working principles developed on the basis of
reasoning and analogy.
 Development of canon law and later law of nature.
 Grotius – 1583-1645 published
 De jure Nelli ac Pacis (The Law of War and Peace)
 He accepted the law of nature.
 Who is considered as the father of modern
international law.
Hugo Grotius, 1583 -1645
 Father of International law
 worked as a jurist in the Dutch Republic and laid the
foundations with Francisco de Vitoria for international
law, based on natural law.
 Treatise De Jure Belli, Ac Pacis Libri Tres – 1623-24.
 Considered as the starting point for modern
international law.
 He opposed the ‘closed sea’ concept of Portuguese.
 High seas belong to all.
Page written in
Grotius' hand from
the manuscript of
De Indis (circa
1604-05).
Treatise De Jure
Belli, Ac Pacis Libri
Tres
Treaty of Westphalia
 The Westphalian treaties of 1648 were a turning point
in establishing the principle of state sovereignty as a
cornerstone of the international order. However the
first attempts at formulating autonomous theories of
international law occurred before this, in Spain, in the
16th century.
 Roman Catholic theologians Francisco de Vitoria and
Francisco Suárez. Suárez is especially notable in this
regard in that he treatise on international law, de iure
belli ac pacis, which dealt with the laws of war and
peace.
TREATY OF WESTPHALIA - 1648
 Treaty between Roman Emperor and the King of
France.
 Alabama claims Arbitration – 1872.
 Permanent court of Arbitration – 1899 – 1907.
 Permanent Court of International Justice – 1921.
 International Court of Justice – 1946.
Positivist approach
 Locke and Hume – developed after the Treaty of
Westphalia.
 Theory of sovereignty by Bodin and Hobbes.
 Supreme power of states and sovereignty of states.
 Both theories appear in the work of Vattel – (1714-67).
 He introduced equality of states in the international
law.
Dualist and monist theories
 Monist claimed there is no difference between the
international law and municipal law.
 Dualist – supports the consent theory
History
 Still, in the 17th and 18th centuries, the idea of natural
law as a basis for international law remained
influential, and were further expressed in the works of
Samuel von Pufendorf and Christian Wolff.
 in the second half of the 18th century, a shift occurs
towards positivism in international law. In addition,
the idea of international law as a means for
maintaining international peace is challenged due to
the increasing tensions between the European great
powers (France, Prussia, Great-Britain, Russia and
Austria).
History
 At the end of the century, Immanuel Kant believes
that international law as a law that can justify war does
not serve the purpose of peace anymore, and therefore
argues in Perpetual Peace .
 After World War I, an attempt was made to establish
such a new international law of peace, of which the
League of Nations was considered to be one of the
cornerstones, but this attempt failed unfortunately.
History
 The Charter of the United Nations (1945) in fact
reflects the fact that the traditional notion of state
sovereignty remains the key concept in the law of
nations.
Modern customary law
 Consent theory.
 consenting to an international practice is sufficient to
be bound by it, without signing a treaty.
Treaty law
 A customary law can be overturn by a treaty law.
 Contracts between countries.
Definition
 The rules of law that relating to the functioning of
international institutions or organisations, their
relation with each other, their relation with states and
individuals.
 The rules of law relating to individuals and non-state
entities, concern of international community.
 Rules governing relations between states.
 Columbian – Pruvian Asylum Case( ICJ 1950).
 Regional rules are not necessarily subordinate to
international law but may be complementary or
correlated to.
Thank you
Sources of International Law
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL/-2008 1
Sources
 Custom
 Treaties
 Decisions of judicial or arbitral tribunals
 Juristic works
 Decisions or determinations of the organ of
international institutions.
A.38 of ICJ statute
 The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
 a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
 b. international custom, as evidence of a general practice
accepted as law;
 c. the general principles of law recognized by civilized nations;
 d. subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
rules of law.
Material source
 Evidence of existing rules, when proved, have the
status of generally binding rules of general application.
 It is difficult to maintain the difference between formal
and material source in international law.
 Evidences of existing consensus among states
 Decisions of the International Court of Justice
 Resolutions of General Assembly
 Law making multilateral treaties
Treaties
 Binding force of treaties
 Obligations arising from express agreement
 Multilateral law making treaties to which a majority of
states are parties.
International Custom
 A.38 of ICJ statute defines: evidence of a general
practice accepted as law.
 legal norms that have developed through the
customary exchanges between states over time.
 General recognition among states of a certain practice
as obligatory.
 Opinio juris
 Usage: it is a general practice which does not reflect a
legal obligation.
Custom
 Customary international law is something done as a
general practice — not because it is expedient or
convenient, but because it is considered law, out of a
sense of legal requirement (opinio juris).
 Element 1: General practice.
 Element 2: States do it out of a sense of legal
obligation.
 What constitutes state practice?
 How much practice is required?
 How much consistency is required?
Requirements
 Duration
 Consistency
 Repetition
 Generality of a particular practice of states
 Time immemorial
 A peremptory norm (also called jus cogens, Latin for "compelling law")
is a fundamental principle of international law which is accepted by the
international community of states as a norm from which no derogation
is ever permitted.
 Examples include various international crimes; a state which carries
out or permits slavery, genocide, war of aggression, or crimes against
humanity is always violating customary international law.
Duration
 Uniformity, consistency and generality of practice
 Passage of time
 Complete uniformity is not required, but substantial
uniformity is required.
 Fisheries case, ICJ Reports 1951
 ICJ refused to accept the 10 mile rule for bays.
 Asylum case, ICJ Reports 1950 – the customary law
must be ‘in accordance with a constant and uniform
usage practiced by the states in question. – regional
custom.
The Paquete Habana (1900)
 The Paquete Habana case relied on edicts and
agreements as far back as 1403.
 The Paquete Habana and the Lola were Cuban fishing
boats that were seized by the U.S. during the Spanish-
American war.
 The U.S. District Court said that the Navy had acted
within its authority, under Federal statute.
 Cubans argued violation of international law
 This established rule of international law had existed
to protect peaceful fishermen from wartime seizures.
Asylum Case (1950)
 Haya de la Torre, Peruvian national granted asylum in
Columbian embassy in Lima.
 Political asylum
 No match between domestic law and international law
 Variety of conflicting and contradictory evidence
shows it is not a custom.
 Concurrence of the major powers of that field.
Portugal v. India (1960)
 Customary relations between nations becoming
binding.
 Portugal had territory within India, and India wouldn’t
let the Portuguese move their military and equipments
back and forth to the enclaves.
 India asserted the rights that England had enjoyed,
and the right of passage only applied to civil activities.
Generality of practice
 Complements that of consistency.
 Lotus case, absence of protest is not an evidence of
general acceptance.
 Court not accepted the continuous conduct as prima
facie evidence of a legal duty and required a high
standard of proof.
 Fisheries Jurisdiction case, United Kingdom v. Iceland:
extension of a fishery zone up to 12 mile (not 10) limit
is now accepted among states as a preferential rights
for coastal states.
Evidence
 Diplomatic correspondence
 Policy statements
 Press releases
 Opinions of official legal advisors
 Official manuals
 Comments by governments on international relations
 International and national judicial decisions
 The wordings in treaties
 The practice of international organisations.
Uniformity
 Some degree of uniformity amongst state practices was
essential before a custom could come into existence.
 Anglo Norwegian Fisheries Case – ICJ Reports 1951.
 Measuring the breadth of the territorial sea using
straight line between projections.
 Insufficient uniformity of behavior.
Opinio juris sive necessitatis.
 an opinion of law or necessity
 A general practice accepted as law.
 Practice consistent with international law
 The burden of proof
 The ICJ accepts existence of an opinio juris on the
bases of evidence of a general practice.
 Positive evidence of recognition of the validity of the
rules in question in the practice of states.
Lotus case
 Lotus – French ship
 Boz-Kourt – turkish ship
 Essential ingradient of obligation was lacking and the
practice remained a practice, nothing more.
The standard of proof
 North Sea Continental shelf case and in Nicaragua v.
United States –
 A new customary rule to be formed, not only must the
acts concerned ‘amount to a settled practice’ but they
must be accompanied by the opinio juris sive
necessitatis.
 Right of passage over Indian territory, ICJ Reorts 1960
–a special right has to give affirmative proof of a sense
of obligation on the part of the territorial sovereign.
North Sea Continental Shelf Cases (1969)
 There are 3 ways the treaty could have become binding
customary international law:
 The treaty re-stated a pre-existing custom.
 The treaty’s rule crystallized customary law that had been
in the process of formation.
 Both extensive and virtually uniform in the sense of the
provision.
 Holland & Denmark argued that this treaty had generated
a new customary law, a new norm of international law
binding on everyone.
 The ICJ therefore held that there was no customary
international law for
KDR/IIT the Dutch/Danish position.
KGP/RGSOIPL/-2008 19
Nicaragua v. U.S. (1986).
 Customary law may be a source of international law in

international disputes.
 It is separate from treaty law and convention law, as it must
be applied even if the countries are parties to a treaty.
 The court held that it is no longer okay to settle disputes
with force, a customary norm.
Custom
 The evidence of objection must be clear and there is
probably a presumption of acceptance which is to be
rebutted.
 Unequivocally manifested a refusal to accept the rules.
 If a party pleas a regional custom as a practice, the
proponent must prove that it has become binding on
the other member.
4. Treaties
 Law making treaties
 Conclusions of international conferences
 Resolutions of the United National General Assembly
 Drafts adopted by the International Law Commission
 The Hague Convention of Paris 1856 and 1907 on Law
of war and neutrality.
 Genocide Convention 1948
Case laws
 North Sea Continental Shelf Cases: To what extent the
German Federal Republic was bound by the provisions
of the Continental Shelf Conventions which it had
signed but not ratified.
 11:6 – ICJ held that first 3 articles of the Convention
were emergent or pre-existing customary law.
 Even if norms of treaty origin crystallize as new
principle or rules of customary law, the customary
norms retain a separate identity even if the two norms
appear identical in content.
Bilateral treaties
 Bilateral treaties may provide evidence of customary
rules.
 Final Act of an intergovernmental conference adopted
an agreement unanimously – even though not
adopted-obvious importance.
 E.g: the principles of international law recognised by
the Charter of the Nuremberg Tribunal and Judgment
of the Tribunal.
General Principles of Law Recognised by Civilized Nations
 A.38(1)(c) of the statute of the ICJ.
 Rules and principles recognised in the domestic laws
of all recognised nations.
Thank you
Relationship between
International Law and
Municipal Law
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL-2008 1
Treaties
 The term "treaty" can be used as a common generic term or
as a particular term which indicates an instrument with
certain characteristics.
 The term "treaty" has regularly been used as a generic term
embracing all instruments binding at international law
concluded between international entities, regardless of
their formal designation.
 Both the 1969 Vienna Convention confirm this generic use
of the term "treaty".
Treaty
 A.2(a): The 1969 Vienna Convention defines a treaty as
"an international agreement concluded between States
in written form and governed by international law,
whether embodied in a single instrument or in two or
more related instruments and whatever its particular
designation".
 The 1986 Vienna Convention extends the definition of
treaties to include international agreements involving
international organizations as parties.
Requirements
 First of all, it has to be a binding instrument, which
means that the contracting parties intended to create
legal rights and duties.
 Secondly, the instrument must be concluded by states
or international organizations with treaty-making
power.
 Thirdly, it has to be governed by international law.
Finally the engagement has to be in writing.
Treaty
 There are no consistent rules when state practice employs
the terms "treaty" as a title for an international instrument.
 Usually the term "treaty" is reserved for matters of some
gravity that require more solemn agreements.
 Their signatures are usually sealed and they normally
require ratification.
 Typical examples of international instruments designated
as "treaties" are Peace Treaties, Border Treaties,
Delimitation Treaties, Extradition Treaties and Treaties of
Friendship, Commerce and Cooperation.
Convention
 The term "convention" can have both a generic and a
specific meaning.
 Convention as a generic term: Art.38 (1) (a) of the
Statute of the International Court of Justice refers to
"international conventions, whether general or
particular" as a source of law, apart from international
customary rules and general principles of
international law and - as a secondary source - judicial
decisions and the teachings of the most highly
qualified publicists.
Convention
 This generic use of the term "convention" embraces all
international agreements, in the same way as does the
generic term "treaty".
 Black letter law is also regularly referred to as
"conventional law", in order to distinguish it from the
other sources of international law, such as customary
law or the general principles of international law.
 The generic term "convention" thus is synonymous
with the generic term "treaty".
Conventions
 The same holds true for instruments adopted by an
organ of an international organization (e.g. the 1951
ILO Convention concerning Equal Remuneration for
Men and Women Workers for Work of Equal Value,
adopted by the International Labour Conference or
the 1989 Convention on the Rights of the Child,
adopted by the General Assembly of the UN).
Charter
 The term "charter" is used for particularly formal and
solemn instruments, such as the constituent treaty of an
international organization.
 The term itself has an emotive content that goes back to
the Magna Carta of 1215. Well-known recent examples are
the Charter of the United Nations of 1945 and the Charter
of the Organization of American States of 1952.
Agreements
 The term "agreement" can have a generic
and a specific meaning.
 It also has acquired a special meaning in the
law of regional economic integration.
 The 1969 Vienna Convention on the Law of
Treaties employs the term "international
agreement" in its broadest sense.
Agreements
 "international agreements" for instruments, which do
not meet its definition of "treaty".
 Its Art.3 of Vienna convention refers also to
"international agreements not in written form".
 "Agreements" are usually less formal and deal with a
narrower range of subject-matter than "treaties".
 It is employed especially for instruments of a technical
or administrative character, which are signed by the
representatives of government departments, but are
not subject to ratification.
Choice of forum
 If foreign law can never apply within the forum state,
then obviously the forum cannot apply foreign choice-
of law rules.
Agreements
 Typical agreements deal with matters of economic,
cultural, scientific and technical cooperation.
Agreements also frequently deal with financial
matters, such as avoidance of double taxation,
investment guarantees or financial assistance.
 The UN and other international organizations
regularly conclude agreements with the host country
to an international conference or to a session of a
representative organ of the Organization.
Protocols
 The term "protocol" is used for agreements less formal
than those entitled "treaty" or "convention". The term
could be used to cover the following kinds of
instruments:
 A Protocol of Signature is an instrument subsidiary to
a treaty, and drawn up by the same parties. Such a
Protocol deals with ancillary matters such as the
interpretation of particular clauses of the treaty, those
formal clauses not inserted in the treaty, or the
regulation of technical matters. Ratification of the
treaty will normally ipso facto involve ratification of
such a Protocol.
Protocols
 An Optional Protocol to a Treaty is an instrument that
establishes additional rights and obligations to a
treaty.
 The Optional Protocol to the International Covenant
on Civil and Political Rights of 1966 is a well-known
example.
Declarations
 The term "declaration" is used for various
international instruments. However, declarations are
not always legally binding.
 The term is often deliberately chosen to indicate that
the parties do not intend to create binding obligations
but merely want to declare certain aspirations.
 An example is the 1992 Rio Declaration.
 The 1948 Universal Declaration of Human Rights is
intended to create legal obligations.
Declarations
 Declarations that are intended to have binding effects
could be classified as follows:
 declaration can be a treaty in the proper sense.
 (a) A significant example is the Joint Declaration between
the United Kingdom and China on the Question of Hong
Kong of 1984.
 (b) An interpretative declaration is an instrument that is
annexed to a treaty with the goal of interpreting or
explaining the provisions of the latter.
 (c) A declaration can also be an informal agreement with
respect to a matter of minor importance.
MoU
 A memorandum of understanding is an international
instrument of a less formal kind.
 It often sets out operational arrangements under a
framework international agreement.
 It is also used for the regulation of technical or
detailed matters.
 It is typically in the form of a single instrument and
does not require ratification.
MoU
 They are entered into either by States or International
Organizations.
 The United Nations usually concludes memoranda of
understanding with Member States in order to
organize its peacekeeping operations or to arrange UN
Conferences.
 The United Nations also concludes memoranda of
understanding on cooperation with other
international organizations.
Public vs. Municipal
 Conflict between international law and municipal law the
dualist assumes the municipal law prevail at municipal
level.
 Hersch Lauterpacht – exponent of monism
 International law is also concerned with the conduct and
welfare of individuals.
 Kelsen – monist – monism is scientifically established if
international and municipal law are part of same system of
norms.
Dualism
 Subject of state law are individuals
 Subjects of international law are states
 Juridical origins are different
 Sources of municipal law is the will of the state
 International law is the common will of states.
 State law is conditioned by fundamental principles
 International law is conditioned by pacta sunt servand
Monism
 Considered all unit as single unit
 Science of law is a unified field of knowledge.
 International law and state law are both part of a
universal body of rules.
Kelsen
 Kelsen does not support the ‘primacy’ of international
law over municipal law.
 Monist – naturalist theory – provision of a universal
basic norm.
 They work in different spheres.
 Never come into conflict
 Rousseau – characterizing international law as a law of
co-ordination which does not provide for automatic
abrogation of internal rules in conflict with
obligations on the international plane.
Int.n. law vs. Municipal law
 A state cannot plead provisions of its own law or
deficiencies in that law in answer to a claim against for
an alleged breach of its obligations under
international law. (Free Zones case) 1932, PCIJ.
 Municipal law cannot prevail over a treaty law. (Greco-
Bulgarian Communities case, 1930, PCIJ.
Position of individual
 Imposes duties on individuals in case of certain cases
 International Military Tribunal at Nuremberg.
 Plea of acts in accordance with municipal law is not
entertained.
 International tribunals has to examine municipal law
relating to expropriation, fishing limits, nationality,
guardianship and welfare of infants to see whether it is
against treaty or customary law.
 Public order
Harmonization
 Infusion of international legal principles into the
municipal legal system.
 Adaptation to local laws.
 Transformation theory – transformation into state law.
 International law as promises and
 Municipal laws as commands
Thank you
Recognition of States
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
States
 No definition as such
 Statehood is a question of fact and not law
 Article 1 of the Montevideo Convention on Rights and
Duties of States provides: State under international
law should possess the following qualifications.
 1. a permanent population
 2. a definite territory
 3. government
 4. capacity to enter into relations with the other states.
Montevideo Convention
 1933 – On the rights and Duties of States – signed by
the United States and certain Latin American
countries.
 Fixed territory is not essential.
 Consistency in the nature of territory
 State must have a capacity to enter into relations with
the other states.
 Kelsen: it is purely a technical notion expressing the
fact that a certain body of legal rules bids a certain
group of individuals living within a defined territorial
area. KDR/IIT KGP/RGSOIPL-2008 3
Law
 Requirement of a legal system is a primary condition
of statehood.
 Legal system juridically valid
 Madzimbamuto v. Lardner – Bruke, [1969] 1 AC 645.
 PC held that unilateral declaration of independence of
11 November 1965 and subsequent legislation was
illegal.
 UN role in declaring a statehood.
 State as a creation of natural law.
Basic rights
 Sovereignty over its subjects and affairs.
 Independence and equality of states.
 Territorial jurisdiction
 Self-defence
 Duties:
 Not resorting to war.
 Carrying out treaty obligation in good faith.
 Not intervening in affairs of other states
Powers
 Power to control its own domestic affairs
 Power to admit and expel aliens
 Privileges of its diplomatic envoys
 Exclusive jurisdiction over crimes committed within its
territory.
 Savarkar case – 1911
 Corfu Channel case - 1949
 Eichmann case - 1961
 Rainbow warrior - 1986
Statehood
 Sovereignty
 Membership of international organisations
 Identity and continuity of States
Recognition of States
 It is a mere declaration or acknowledgement of an
existing state of law and fact.
 Question of policy rather than law
 Unilateral diplomatic act on the part of one or more
states.
 Recognition of states and recognition of governments.
 Estarda doctrine - 1930-Foreign Minister of Mexico
 No definite definition.
Definition
 Institute of International Law:
 The free act by witch one or more states acknowledge
the existence on a definite territory of a human society
politically organised,
 independent of any other existing states,
 and capable of observing the obligations of
international law,
 and by which they manifest therefore their intention
to consider it a member of the international
community.
Definitions
 Oppenheim: “if the new state fulfils the conditions of
Statehood required by International law.
 New states: the nascent community possesses the
requirement of statehood.
Theories
 Constitutive theory – act of recognition alone which
creates statehood.
 Declaratory theory or evidentiary theory– act of
recognition is merely a forma acknowledgement of an
established situation of fact.
 1949-80 recognition of China
 No right of recognition in the Draft Declaration on the
rights and Duties of States – ILC- 1949.
Constitutive theory (Hegel)
 The act of recognition alone which creates statehood
or which clothes a new government become an
authority or status in the international sphere.
 Mere act of recognition is sufficient to create
statehood.
 Openheim, Kelsen, Lauterpacht and Holand:
 “Recognition is indispensable to the full enjoyment of
rights which it connotes.”
Declaratory theory
 The authority of government exist even before
recognition.
 Recognition is merely a formal acknowledgement of an
already existing fact.
 Formal declaration of an existing fact.
 Hall, Wagner, Pitt Cobbet are the exponents of
declaratory theory of recognition.
 The purpose of recognition is declaratory not of
constitutive?
Implied recognition
 Intention to establish formal relations with the new
state or new governments.
 Occasions for conclusively implying recognition:
 Formal signature of a bilateral treaty between states.
 Formal initiation of diplomatic relations
 Issue of a consular facility
 Common participation in a multilateral treaty
 Participation in an international conference
 Initiation of negotiations between recognizing and
recognised states.
Conditional recognition
 The Berlin Congress – 1878
 Failure to fulfill – does not annul the recognition.
 The recognised state may guilty of a breach of
international law.
 Sever diplomatic relations
 Sanctions
 Recognition cannot be withdrawn.
Collective recognition
 Membership in the UN – A.3-4 of UN Charter.
 Conditions of Membership in the United Nations, ICJ
1948, 57.
 Statehood as a primary qualification for the admission
to the UN.
 1991-EU Guidelines for the recognition of states.
 Respect for the provisions of UN
 Guarantees for the rights of ethnic and national groups
and minorities.
EC treaty
 Respect for frontiers
 Acceptance of commitments with regard to
disarmament and nuclear non-proliferation as well as
security and regional stability.
 Regional disputes should be resolved by arbitration.
Recognition of governments
 1977 – US – avoiding recognition of governments.
 1980 – UK- Secretary of State for Foreign Affairs – UK
is no longer going to recognise governments
 1988 – Australia – no recognition to governments
Withdrawal of recognition
 The de jure recognition once granted is irrevocable.
 The withdrawal of diplomatic relations does not mean
withdrawal of recognition.
Types of recognition
 De jure recognition – the state formally recognised
fulfils the requirements laid down by international law
for effective participation in international community.
 De facto – provisionally and temporally and with all
due reservations for the future.
 Soviet Government was recognised de facto in 1921 and
de jure recognition was given by Britain in 1924.
De facto De jure
 Doubt about the long term  Recognizing fully the effective

validity of the government. control permanently.
 De facto recognition does not  Only a de jure government
itself include the exchange of can claim the property in a
diplomatic relations. recognizing state.
 Transaction entered between
states on the basis of de facto
recognition cannot be
repudiated by the subsequent
govenrment.
De facto recognition
 A "de facto" recognition is derived from actions and
contacts between two states if they enter into a relationship
on a political level. The following acts shall inter alia be
considered acts of this nature:
 a) diplomatic activities by representatives of the states
involved in connection with tasks between states,
relationships etc.;
 b) statements of a state on politically relevant issues and
problems of the other state such as statement on mutual
delimitation;
 c) recognition and official endorsement with a visa of
passports issued by the other state as traveling documents.
De jure v. De facto
 If there is a conflict between the interests of de jure
government and de facto government – the rights of de
facto government will prevail.
 Bank of Ethiopia v. National Bank of Egypt and
Liguori.
 Arantazu Mendi case
Thank you
STATE SUCCESSION
KDR/RGSOIPL/2008 1
2 I NTERNATIONAL CONVENTIONS
 1) Treaties: the Vienna Convention on Succession

of States in Respect of Treaties, 1978 (Vienna I);
 2) State property, State debt and State archives:

the Vienna Convention on Succession of States in
Respect of State Property Archives and Debts,
1983 (Vienna II);
KDR/RGSOIPL/2008
3 STATE SUCCESSION
 Approximately 100 new States emerged with the end of
decolonization.
 Germany reunified, while the Soviet Union, Yugoslavia

and Czechoslovakia dissolved.
 the transfer of one State to another is usually described

as ‘State Succession’
 Vienna I and II - state that succession is "the replacement

of one State by another in the responsibility for the
international relations of a territory.
KDR/RGSOIPL/2008
4 BY SECESSION
 Singapore – Malaysia – 1965
 Bangladesh – Pakistan – 1971
 Eritrea - Ethiopia – 1993
 East Timor – Indonesia – 2002
 14 states from the former USSR
KDR/RGSOIPL/2008
5
D ISSOLUTION – H APSBURG
EMPIRE
 First Word War – Yugoslavia and Czechoslovakia
 Second World War – Socialist Republic of

Yugoslavia
 Yugoslavia – successor to Serbia.
 End of cold war – Bosnia, Herzegovina, Croatia,

Macedonia, Serbia and Montenegro.
KDR/RGSOIPL/2008
6 MERGER
 1958 – Egypt and Syria – United Arab Republic – dissolved in 1961.
 1976 – North Vietnam and South Viet Nam – Socialist Republic of

Viet Nam.
 1990 – North Yemen and South Yemen – Republic of Yemen.
 Absorption – 1990 - unification of Germany – no new state is

formed.
KDR/RGSOIPL/2008
TABULA RASA : T HE C LEAN S LATE D OCTRINE
7
 The option of simply denying State succession to treaties, known as

the tabula rasa or clean slate doctrine and re-inventing international
law after each case of State succession has never been adopted or
openly defended in recent State practice.
 The ‘clean slate’ thesis appears to have emerged in the late
nineteenth century.
 there can be no ‘transfer’ of rights or obligations between the old
and the new state.
 main argument in favor of the clean slate doctrine is that treaties are
generally burdensome restrictions to sovereignty and that a new
State should be free to reconsider the Predecessor State's treaties.
KDR/RGSOIPL/2008
U NIVERSAL S UCCESSION : T HE C ONTINUITY
8 T HEORY
 The continuation theory of state succession is an anti-thesis to the

clean-slate theory of membership.
 Under the continuity theory, rights and duties may still pass to States
that have lost extensive portions of their territories and/or have
undergone radical changes in government as long as they are
considered to have inherited the essential legal identity of the former
member.
 The universal successor assumes the whole of the legal clothing of the
person to whom he succeeds; steps, as it were, into his shoes.
 He takes over his rights and liabilities of every kind; his property ,the
debts and other obligations (such as rights of action for damages for
breach of contract) owing to him, and the debts and obligations which
he owes.
KDR/RGSOIPL/2008
9 SUCCESSION
 How far the new state is bound by the treaties

and contracts entered by its predecessor.
 Continuity of legal personality
 Session, annexation or merger
 Recognition and responsibility
 All international rights and duties will devolve

upon the new sate.
KDR/RGSOIPL/2008
10 SUCCESSION
 Succession of states was defined as ‘the

replacement of one state by another in the
responsibility for the international relations of
territory.’ (1978 & 1983 Convention).
 international obligations passes to the successor

state.
 Sovereignty of a lessee state over particular

territory reverts to the lessor state.
 1997 China resumes sovereignty over Hong Kong.
KDR/RGSOIPL/2008
11 SUCCESSION
 International Convention on Succession of States in

Respect of Treaties 1978.
 Vienna Convention of 1983 on Succession of State
Property, Archives and Debts.
 Change of sovereignty over territory.
 Passing of rights and obligations upon external
changes of sovereignty over territory.
 The passing of rights and obligations upon internal
changes of sovereignty, irrespective of territorial
changes.
KDR/RGSOIPL/2008
12
PASSING OF RIGHTS AND
OBLIGATIONS
 Passing of territory to another state.
 One state divided into many states.
 New states from colonial states
KDR/RGSOIPL/2008
13 T REATY RELATIONS
 Vienna convention on Succession of States in respect

of treaties, 1978. entered into force - 1996
 A.15- treaties of the predecessor state are to be in
force in relation to the territory thus passing
 Treaties of the successor state are to be in force in
respect of the territory thus passing, unless it appears
from the treaty or is otherwise established that the
application of the treaty to that territory would be
incompatible with the object and purpose of the
treaty or would radically change the conditions for its
operations.
KDR/RGSOIPL/2008
14 S TATE P RACTICE
 A new state does not succeed automatically to a treaty if the

subject matter is closely linked to the relations of the predecessor
state with the other party or parties. Example include’ political
treaties’ such as treaties of alliance or defence.
 In case of absorption – all treaties entered into by the absorbed

state will either simply lapse or the absorbing state will extend to
the absorbed state.
 A.31 of the 1978 Convention
 A successor state will be bound on human right treaties.
KDR/RGSOIPL/2008
15 C ONTRACTUAL OBLIGATIONS
 The relevant treaties will continue in force.
 ‘Free choice’ doctrine
 Damages for unliquidated damages won’t exist
 If there is any unjust enrichment to the predecessor

or successor state the right and corresponding
obligations may survive.
KDR/RGSOIPL/2008
16 SUCCESSION
 West Rand Central Gold Mining Co v. R, [1905] 2 KB

391.
 Extinction of rights by conquest or annexation, the

successor state has the right to decide whether to
submit to the contractual rights.
 If any concessionary agreement will extinct with the

transition.
 Unless the successor state renews it.
KDR/RGSOIPL/2008
17 P UBLIC DEBTS
 Taking the burden with the benefits

 No obligation accrues for a successor state in respect
of a public debt incurred for a purpose hostile to the
successor state or for the benefit of some other
state.
 If a country is divided into many countries – the debt
become divided among the successors.
 Ottoman Debt Arbitration, 1925.
 Proportionate benefit
KDR/RGSOIPL/2008
18 DEBTS
 Vienna Convention on Succession of States in Respect of

State Property, Archives and Debts, 1983. – NOT IN FORCE
 Usually all disputes has to be settled by agreements.
 the successor State acquires the whole property of the

predecessor State or States.
 Equitable proportion is to pass to the successor state.
 A.37 – if the successor state is a newly independent state,

no debt will pass unless the agreement otherwise agrees.
KDR/RGSOIPL/2008
19 P ROPERTY & A RCHIVES
 Those States should receive not only the whole property of the
predecessor State situated in the territory of the new State,
but also property having belonged to the territory of the
successor State and situated outside it and having become
property of the predecessor State during the period of
dependence.
 If no agreement was concluded, in the case of cession the
successor State should receive the part of the archives
necessary for an efficient administration of the acquired
territory, as well all the documents relating fully or mostly to
the ceded territory.
KDR/RGSOIPL/2008
20 A RCHIVES AND DEBT
 in the case of the unification of States the successor State acquire all
the archives of the predecessor State.
 Archive includes documents, photographs, films, cultural heritage
etc.
 The Convention did not refer to any classification of debts.
 the criterion generally adopted by the Convention was that the debt
passes to the successor State in an equitable proportion.
 The exception was the situation of the newly independent States, for
which no debts pass to them, unless an agreement provides
otherwise, provided that this agreement does not infringe the
principle of sovereignty of peoples over wealth and natural resources
(Article 38).
KDR/RGSOIPL/2008
21 A SSETS & DEBT
 Similar solutions were applied in cases of secession and dismemberment of

the predecessor State (Art.40 and 41) - the debt should be divided into
proportional shares.
 The primary rule with regard to the allocation of assets (including archives)
and debts in succession situations is that the relevant parties should settle
issues by agreement.
 the first principle applicable to State succession is that the successor States
should consult with each other and agree a settlement of all questions
relating to succession.
 States does not as such affect the rights and obligations of creditors. Art. 40
of Vienna II provides that where part of a state separates to from another
state, unless otherwise agreed, the state debt of the predecessor state
passes to the successor state in an equitable proportion taking into account
in particular the property, rights and interests which pass to the successor
state in relation toKDR/RGSOIPL/2008
that debt.
22 CLAIMS
 the successor state has a right to take up fiscal claims belonging to

the former state, including the right to collect taxes due.
 In practice municipal courts will enforce obligations of the

predecessor state against the successor only when the latter has
recognized them.
 Local debts clearly pass under customary international law to the

successor State.
 Similarly, localized debts, being closely attached to the territory to

which the succession relates, also pass to the successor state in
conformity with the same territorial principle.
KDR/RGSOIPL/2008
23 TORT
 The successor state is not bound to respect an

unliquidated claim for damages in tort.
 Hawalian claims, AJIL 20, 1926.
 Brown Claim, 19 AJIL 1925.
KDR/RGSOIPL/2008
24 M EMBERSHIP OF I NT.N.O RG
 A new state will not succeed to membership of

the UN or other international organisations.
 India and Pakistan – India continued – Pakistan as

a new state has to apply for Membership of the
UN.
 Russia continued to be the member of UN after

the dissolution of USSR.
KDR/RGSOIPL/2008
25
N ATIONALITY OF N ATURAL
P ERSONS
 As a result of succession no national of the

successor state becomes stateless.
 UN draft guidelines
KDR/RGSOIPL/2008
State Responsibility
Dr. Raju KD
Assistant Professor of Law
IIT Kharagpur
West Bengal
State responsibility
 The law of responsibility is concerned with the
incidence and consequences of illegal acts, and
particularly the payment of compensation for loss
caused – Ian Brownlie
Spanish Zone of Morocco claims, 1923
 J. Huber:
 ‘Responsibility is the necessary corollary of a right. All
rights of an international character involve
international responsibility. Responsibility results in
the duty to make reparation if the obligation in
question is not met.’
Chorzow Factory, PCIJ, 1927
 ‘it is a principle of international law that the breach of
an engagement involves an obligation to make
reparation in an adequate form. Reparation therefore
is the indispensable complement of a failure to apply a
convention and there is no necessity for this to be
stated in the convention itself.’
Chorzow Factory, 1928
 It is a principle of international law, and even a general
conception of law, that any breach of an engagement
involves an obligation to make reparation.’
State responsibility
 State responsibility for internationally wrongful acts.
 State acts in breach of international law.
 State cannot evade international obligation under
municipal law.
 International criminal responsibility.
 Crime of apartheid
 Racial discrimination
 State responsibility in nuclear experiments
Component state
 Responsibility of component state is imputed or
attributed to the federal state, in the same way as the
conduct of its federal organs,
 Federal state is vicariously liable for the conduct of a
component state.
1974 ILC Report
 The principle that the state is responsible for acts and
omissions of organs of territorial governmental
entities, such as municipalities, provinces and regions,
has long been unequivocally recognised in
international judicial decisions and the practice of
States.
Defense to state responsibility
 Coercion by another state to commit a wrongful act.
 Consent by the affected state.
 Countermeasures recognised by international law.
 Force majeure contributing to the unlawful act.
Breach of treaty
 If any treaty provision is broken responsibility follows.
 PCIJ in Chorzow Factory (Indemnity), (1928) PCIJ Ser
A, No.17, p.29.
 ‘any breach of an engagement involves an obligation to
make reparation.’
 The compensation or punishment may be in
accordance with the illegality and seriousness of the
act committed.
 Rainbow Warrior case -
Rainbow Warrior
 On 10 July 1985 an undercover operation conducted by
the French military security service (DGSE) sank the
British-registered Greenpeace ship Rainbow
Warrior berthed in Auckland Harbour.
 The Greenpeace ship was planning to disrupt French
Nuclear tests on the islands of French Polynesia. New
Zealand subsequently caught and convicted several
members of the French secret forces.
Rainbow warrior
 France initially offered an official apology and
acknowledgement of breach of international law.
 Additionally, the UN secretary-general awarded New
Zealand 7 million USD. This is in addition to
compensation which France paid to the family of the
only victim of the mission and to Greenpeace (settled
privately).
Contracts
 Excluded from international law purview
 Specifically provides international law as the
governing law?
Liability for expropriations
 Concessions regarding mining, manufacturing,
transportation, utilities and communications.
 Anglo Iranian Oil Co Case ICJ 1952. (UKThe Anglo
Iranian Oil company case.docx v. Iran)
 The UN Resolution on Permanent Sovereignty over
Natural Resources, 1962.
General Assembly resolution 1803 (XVII) of 14 December 1962,
"Permanent sovereignty over natural resources"
 Nationalization, expropriation or requisitioning shall be based on
grounds or reasons of public utility, security or the national interest
which are recognized as overriding purely individual or private
interests, both domestic and foreign.
 In such cases, the owner shall be paid appropriate compensation in
accordance with the rules in force in the State taking such measures in
the exercise of its sovereignty and in accordance with international law.
 In any case where the question of compensation gives rise to a
controversy, the national jurisdiction of the State taking such measures
shall be exhausted.
 However, upon agreement by sovereign States and other parties
concerned, settlement of the dispute should be made through
arbitration or international adjudication.
Expropriation of foreign private property
1. be for a public purpose in accordance with a declared
national policy.
2. Not discriminate between aliens and citizens, or
between different foreign nationalities.
3. Not involve the commission of an unjustified
irregularity.
4. Be accompanied by the payment of appropriate
compensation.
Standard of reparation
 Restitutio in integrum – monetary equivalent.
 Damnum emergens – market value of assets
 Lucrum cessans – loss of expected profits
Calvo clause
 Argentinian jurist Calvo
 Legal disputes arising out of the contract shall be
referred to the municipal courts of the state granting
the concession or grants.
 Oust the jurisdiction of the international arbitral
tribunals.
 North American Dredging Co Case
Hull Formula
 A number of developed countries endorsed the “Hull formula”, first
articulated by the United States Secretary of State Cordell Hull in
response to Mexico’s nationalisation of American petroleum companies
in 1936.
 Hull claimed that international law requires “prompt, adequate
and effective” compensation for the expropriation of foreign
investments. Developing countries supported the Calvo
 doctrine during the 1960s and 1970s as reflected in major United
Nations General Assembly resolutions. In 1962, the General Assembly
adopted its Resolution on Permanent Sovereignty over Natural
resources which affirmed the right to nationalise foreign owned
property and required only “appropriate compensation”.
Debts
 Lord Palmerston’s theory – 1848 – intervene
diplomatically and even resort to military intervention
against defaulting debtor state.
 The Drago doctrine – Argentinian Minister – 1902 –
non use of military force
 Included in the Hague Convention of 1907 –
Employment of Force for the Recovery of Contract
Debts – non use of force.
Person or property
 Immutability
 1. conduct of the state organ or official in breach of an
obligation defined in a rule of international law.
 2. That breach would be attributed to the state.
Conditions for state responsibility
 1. state organ r official is guilty of the relevant act with
state authority.
 2. state responsible at international law – if the person
exceeds authority – impute liability on the state.
 Youman’s case – Mexican troops exceeded orders and
killed Americans.
 3. Under municipal law there is no authority –
imputation will fail.
Protection of citizens abroad
 Denial of justice
 Chattin Claim (1927) – US-Mexico
 Exhaustion of local remedies is a condition precedent.
Fault theory
 One state is not responsible to another state for
unlawful acts committed by its agents unless such acts
are committed willfully and maliciously or with
culpable negligence.
 Jessie – British American Claims Arbitral Tribunal in
1921.
 ‘any government is responsible to other governments
for errors in judgment of its officials purporting to act
within the scope of their duties and vested with power
to enforce their demands.’
Claims
 Presence of malice or culpable negligence is not a
condition precedent of state responsibility.
 A state can bring claims if one of its subjects has
sustained unlawful injury for which another state is
responsible.
 Mavrommatis Palestine Concessions Case, 1924, PCIJ –
‘once a State has taken up a case on behalf of one of its
subjects before an international tribunal, in the eyes of
the latter the State is the sole claimant.’
Corporations
 Nationality of claims canon – nationality of the
company.
 Barcelona Traction (Belgium v. Spain)
 Only the national of the company (Canada) can
initiate any claim.
 Belgium claim on behalf of its citizens fail.
 Real and effective nationality is the criteria – Cf
Florence Strunsky Merge Case (1955).
 Artificial personality in corporations - only nationality
is criteria.
Damages
 Material damage or pecuniary loss.
 Nicaragua Case
Thank you
Diplomatic Immunities
Dr. Raju KD
IIT Kharagpur
West Bengal
Developments
 English Diplomatic Privileges Act of 1708
 Congress of Vienna – 1815
 Regulation of Vienna
 Vienna Convention on Diplomatic Relations 1961.
 183 state parties
 ‘extra ordinary’ Ambassadors on temporary mission
 Title of ‘Plenipotentiary’
 Envoy Extraordinary and Minister Plenipotentiary’
Missions
 A.2 of the Vienna Convention – mutual consent of
states.
 No right of establishment of missions
 Consent of both states are necessary.
 Usually embassies
 53 states – High Commissions – all common wealth
countries.
Formalities
 Letters de Credence to be issued
 Letters of ‘full powers’ relating to particular
negotiations or specific instructions to be submitted to
the accredited state.
 In order to avoid conflict the appointment of a
particular person as envoy must ascertain beforehand
whether that person will be persona grata.
 Once the ascent is obtained, proceed with
appointment.
Functions of missions
 A.(1) - (a) representing the sending State in the receiving State;
 (b) protecting in the receiving State the interests of the sending
State and of its nationals, within the limits permitted by
international law;
 (c) negotiating with the Government of the receiving State;
 (d) ascertaining by all lawful means conditions and
developments in the receiving State, and reporting thereon to
the Government of the sending State;
 (e) promoting friendly relations between the sending State and
the receiving State, and developing their economic, cultural and
scientific relations.
Mission
 All buildings, land, irrespective of ownership
 Residence of head of mission and staff.
 The Diplomatic and Consular Premises Act 1987
requires the consent of the British Government before
acquiring property.
 Receiving state must facilitate the acquisition and
accommodation of the staff.
 S.25 – ‘full facilities’ – telephone line, permits etc.
Persona non grata
 A.9 – unqualified power on the receiving state to
remove any member of the mission.
 Not acceptable.
 The receiving state will refuse to recognise him as a
member of the mission.
 No longer enjoy privileges and immunities
 No reason for demanding recall
Foreign territory
 Part of the territory of receiving state
 Buying or leasing be under the local law.
 A.22 – premises of the mission are inviolable
 Agents of the receiving state cannot enter the mission
without the consent.
 Police intrusion is violation of inviolability
 the remedy is only personal non-grata or serving
diplomatic relations.
Movement
 A.26 – freedom of movement within the receiving
state.
 Freedom of communication
 A.27(1) – inviolability of official communication
 All correspondence relating to mission and its
functions.
Diplomatic bag
 Any bag for communication or any equipment.
 Even a container can be termed as diplomatic bag but
not the vehicle itself.
 A.27(4) – Specific external mark
 Label + official stamp
 A.27(4) - stipulates the bag should only contain
diplomatic documents or articles intended for official
use.
 Use of the bag for sending drugs, arms or explosives
are abuse of the Convention.
Rights and privileges
 Article 20-41 of the Vienna Convention
 Representative theory
 Ex - territoriality – no more accepted
 R v. Turnbull, ex p Petroff, (1971) 17 FLR 438.
 Throwing explosives in USSR Embassy in Canberra.
 Held – Embassy is not a part of the foreign territory
and the accused could be prosecuted for such alleged
offences against local law.
Foreign territory
 A.31 of the Vienna Convention of 1963
 No entry without consent
 Consent assumed in case of fire or prompt protective
action.
 1948 - Kasenkina Case – lady jumped through the
window of Soviet consular office.
Protection
 A.22 of Vienna Convention –
 US Diplomatic and Consular Staff in Tehran, ICJ 1980,
3.
 ICJ held that it the host state to protect the premises,
staff and archives of the mission against any attack.
 A.25 – full facilities for a mission to perform its
functions.
 A.26 – freedom of movement and travel of mission
personnel (except in prohibited areas).
Protection
 1984 – Firing from Libyan People’s Bureau in London
at demonstrators outside the Bureau killing one
women police officer.
 Recall of the staff.
 A.34 and 36 – exemption from all dues and taxes.
 A.27 – freedom of communication for official
purposes.
 Exception from social security provisions
Protection of diplomats
 UN Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons
including Diplomatic Agents – 1973.
 Protection against him and family members.
 Murder, kidnapping or other attack upon person
 Violent attack on official premises or private
accommodation.
 Transport,
Personal inviolability
 Arrest or detention
 Keep freedom and dignity (A.29)
 Duty to take all appropriate steps to prevent any attack
on diplomatic persons.
 Inviolability to the residence of the head of mission.
 Private residence of diplomatic agent enjoys same
inviolability.
Diplomatic immunity
 Criminal jurisdiction
 Civil and administrative matters
 The immunity can be waived only by the sending state
[A.32(2]
 Social security exemption
 Exemption from taxation
 Property tax exemption on reciprocal basis.
 Exemption from income tax
 Customs duties and inspection
Family
 The immunities are extended to the family of a diplomatic
agent forming part of his house hold. A. 37(1).
 Spouse and children
 Unmarried couples
 Wife is not immune from civil and administrative
jurisdiction.
 A.37(2) – Administrative and technical staff are immune.
 Staff – only in respect of acts performed in the course of
duties.
Termination of diplomatic mission
 Recall of envoy – Lettre de Recreance
 Notification by the sending state to the receiving state
that the envoy function has come to an end.
 Request by the receiving state that the envoy be
recalled.
 No explanation is required – A.9 of the Vienna
Convention.
 War between two states
End of Diplomatic mission
 Envoy has been declared as persona non grata.
 Expiration of the letter of credence.
Consuls
 The title Consul is used for the official representatives
of the government of one state in the territory of
another, normally acting to assist and protect the
citizens of the consul's own country, and to facilitate
trade and friendship between the people of the
country to whom he or she is accredited and the
country of which he or she is a representative.
 Thus, while there is but one ambassador representing
a nation's head of state to another, and his or her
duties revolve around diplomatic relations between
the two countries.
Consuls
 Vienna Convention on Consular Relations, 1963.
 Consuls
 Vice-consuls
 Consular agents
Ambassador - Consul
 An ambassador is the  A consul is the
foreign diplomatic commercial agent of a
representative of a nation nation, who is
who is authorized to empowered only to
handle political engage in business
negotiations between his transactions, and not
or her country and the political matters in the
country where the country where he or she
ambassador has been is stationed.
assigned.
Powers
 The powers of an  In general, a consul is
ambassador are specified authorized to safeguard
in his or her credentials, the legal rights and
or documents of property interests of the
introduction, which the citizens of his or her
country and to appear in
ambassador submits to
court to ascertain that the
the foreign government. laws of the nation where
he or she is assigned are
administered impartially to
all of the ambassador's
compatriots.
Immunity
 The development of harmonious international
relations and protection against arrest, harassment, or
other unjustified actions taken against diplomatic
representatives.
 Such an agent is immune from criminal liability in the
nation in which he or she serves, but the commission
of a crime may result in a recall request to the
ambassador's country.
Immunities
 In addition, a diplomatic agent is immune from civil
lawsuits, except for actions involving estates, when he
or she is the executor, administrator, or beneficiary;
actions concerning real property held by the
diplomatic agent for personal, not official functions;
and actions relating to professional or business
activities that are beyond the scope of diplomatic
duties.
 A diplomatic agent is not required to testify as a
witness; and the family members living in the agent's
household enjoy the same immunities.
Immunity
 No full immunity to consular agents
 According to bilateral treaty
 Not subject to local proceedings unless their
government assents to the proceedings.
 Right of free communication
 Inviolability of official papers and archives
 Right to be released on bail when accused
 Limited exemption of taxation and dues.
Special missions
 Convention on Special Missions 1969
 States for common interest
 Freedom of movement and communication necessary
for the function of the mission
 No immunity from action for damages in case of
accidents of vehicles
 Permanent missions to international organisations
 Permanent observer missions
 Delegations to international missions
Vienna Convention 1975
 Convention on the Representation of States in their
Relations with International Organisations of a
Universal Character.

India
 Diplomatic Immunities Privileges Act, 1964.
Thank you
Territorial Jurisdiction &
sovereignty
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
State
 Settled population
 Definite territory
 Capacity to enter into legal relations
State territory
 Essential element of statehood is the occupation of a
territorial area.
 It includes geographical area of earth’s surface over
which supreme and exclusive sovereignty of a state
extends.
 It not only includes the surface of earth, territorial
waters and air space over the territorial land and water,
subsoil and underneath.
 Territory is a fundamental concept of international
law.
Kelsen
 Defined state territory as:
 ‘a space within which the acts of the state, and
specially its coercive acts, are allowed by general
international law to be carried out, a space within
which the acts of a state may legally be performed.’
Sovereignty : Max Huber
 Arbitrator in Island of Palmas Arbitration
 ‘sovereignty in the relation between states signifies
independence.
 Independence in regard to a portion of the globe is the
right to exercise therein, to the exclusion of any other
state, the function of a State.’
Acquisition of territory
 Cession
 Occupation
 Annexation
 Prescription
 conquest
 Accretion
 Acquiescence, recognition and estoppel
 Plebiscite.
Modes of Acquisition
 Cession: Transfer from one state to another, usually by
treaty.
 May be voluntary by a treaty.
 If any treaty is concluded by use of force or threat is void.
 Violation of UN charter and A.52 of the Vienna Convention
of 1969.
 Voluntary session – sale of Alaska by Russia to US in 1867.
 Exchange of Heligoland for Zanzibar by Germany and
Great Britain in 1860.
 Island of Palmas case – US-Holland-
 All sovereign rights ceded – transfer of sovereignty.
Occupation
 Occupation of terra nullius:
 Never belonged to anyone, or
 Abandoned (intentionally, not just through neglect)
 Occupied (with intent)when place under effective control
 Look at nature of territory
 Does anyone else claim it
 Annexation – display of effective control and authority.
 Occupation and annexation are based on an act of
effective apprehension of territory.
Occupation
 Eastern Greenland Case – PCIJ
 Two elements required –
 1. an intention or will to act as sovereign.
 2. the adequate exercise or display of sovereignty.
 Dispute by Norway and Denmark – Denmark proved
these criteria.
 Physical assumption of control is necessary.
 Minquiers and Ecrehos Case – ICJ – actual exercise of
state function.
Continuity
 Island of Palmas Arbitration:
 Mere act of discovery by one state without more is not
sufficient to confer a title by occupation.
 Continuous and peaceful display of authority can
confer title.
 Theory of continuity.
 Claim of North pole and South pole.
Annexation
 Two circumstances:
 Where the territory annexed has been conquered or
subjugated by the annexing state.
 Where the territory annexed is in a position of virtual
subordination to the annexing state at the time the
latter’s intention of annexation is declared.
 Annexation of Korea by Japan in 1910.
 By force against the UN charter, not recognised by
other states.
 Prescription
 Immemorial exercise of sovereignty or de facto
exercise of sovereignty for a long period of time.
 Belonged to another state
 Control with intent
 Probably requires other state to agree
 Operations of Nature
 Adjudication: mainly limited to drawing line
Conquest
 Use of force legal or illegal.
 A.2(4) of the UN Charter prohibits use of force against
any state.
 Occupation doesn’t transfer sovereignty.
 Conquest of Garmany by Allies in 1945.
 S.C. resolution – inadmissibility of force for acquisition
of territory.
 S.C. Reslution 662 – Iraqi annexation of Kuwait –
illegal.
Accretion
 Accretion – addition to a portion of territory.
 New territory is added through natural causes.
 Alluvial deposition
 Sudden and abrupt transfer of soil.
 River side depositions
 Conquest: An aggressor cannot acquire territory by
conquest [Stimson Doctrine]
 How about the state attacked???
 Does not apply to civil wars
 Acquiescence, recognition, and Estoppel
 Acquiescence requires express statement
 Recognition by third parties
 Estoppel requires detriment
Acquiescence
 The common law doctrine of estoppel by
acquiescence is applied when one party gives legal
notice to a second party of a fact or claim, and the
second party fails to challenge or refute that claim
within a reasonable time. The second party is said to
have acquiesced to the claim, and is estopped from
later challenging it, or making a counterclaim. The
doctrine is similar to, and often applied with, estoppel
by laches.
 Political Arguments: evidence of presumption of
effective occupation
 Geographical contiguity
 Historical continuity
 Self-determination
 Minor Rights
 Condominium: agree to joint sovereignty
 Lease
 Servitudes: territory belonging to one made to serve
the interests of another
 Run with the land, change of sovereign do not affect
Loss of territorial sovereignty
 Dereliction: abandonment of all rights
 Revolt: cession of territory
Sovereignty over air space
 First World War: airspace over open sea and over
unappropriated territory was absolutely free.
 A. 1 of the Paris Convention of 1919 for the Regulation
of aerial Navigation, whereby the parties recognised
that every state has complete and exclusive sovereignty
over the air space above its territory and territorial
waters.
 freedom of innocent passage
 Havana Convention on Commercial Aviation - 1928
Boundaries
 Boundary is not only merely a line in a borderland.
 Rann of Kutch Arbitration between India and Pakistan –
1965.
 Pakistan claimed that Rann had always been a part of
Kutch territory.
 India claimed effective authority.
 India won most of the claims and the boundary was fixed
on the Northern edge of the Rann.
 Read: The Rann of Kutch J. Gillis Wetter The American
Journal of International Law, Vol. 65, No. 2 (Apr., 1971), pp.
346-357.
Rivers
 Passing through one state.
 More than one state.
 Freedom of navigation:
 At the time of peace only.
 Countries through which the river passes have the right of
passage.
 Freedom of passage is without any limitation.
 Treaty of Paris – 1814
 Vienna congress: 1815
 Peace Treaties – 1919-1920.
Rivers
 1930 – League of Nations convention
 1956 – Bangkok Convention
 1960 – Geneva Convention
 Lake Lanoux Arbitration – France – Spain
 There was no duty on a riparian state under customary
international law to consult, or obtain the prior
agreement of a co-riparian, as a condition precedent of
its right to begin new river works, although in carrying
out the project it must take into account, an a
reasonable manner interest of co-reparian.
Thank you
Treaties
Dr. Raju KD
IIT Kharagpur
West Bengal
Objective
 the maintenance of international peace and security,
the development of friendly relations and the
achievement of co-operation among nations,
Developments
 International Law Commission – draft articles 1966.
 Vienna Convention on Law of the Treaties – 85 Articles
and an Annex.
 Convention entered into force in 1980.
 Source of law – codification of existing laws on treaties
– Namibia case (A.O) ICJ held that
 ‘the rules laid down by the Vienna Convention….
Concerning termination of a treaty relationship on
account of breach may in may respects be considered
as a codification of the existing customary law on the
subject.’ KDR/IIT KGP/RGSOIPL/-2008 3
Applicability
 It does not deal with:
 1. treaties between states and organizations or between
two organizations
 2. questions of state succession
 3. the effect of war on treaties.
International conventions
 Vienna Convention of the Law of the Treaties, 1969
 Entered into force in 1980.
 Deals only with treaties between states – Art. 1.
Definition
 S.2. "treaty" means an international agreement
concluded between States with an intention to create
legal obligations in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments and
whatever its particular designation;
 "ratification", "acceptance", "approval" and "accession"
mean in each case the international act so named
whereby a State establishes on the international plane
its consent to be bound by a treaty;
Treaties
 The object of a treaty is to impose binding obligations
on the states who are parties to it.
 Based on the maxim ‘pacta sunt servanda’
 Two or more states establish or seek to establish a
relationship between themselves governed by
international law.
Examples
 Heads of sovereign states
 Inter governmental form – technical or non-political
agreements.
 Ministers of the countries.
 Inter state form – drafted expressly or impliedly as an
agreement between states.
 Inter departmental agreement.
 Political heads of the countries.
 Even a treaty need not be in the form of writing.
Different forms
 1. Convention
 2. Protocol
 3. Agreement
 4. Arrangement
 5. process-verbal
 6. statute
 7. covenant
 8. Declaration
 9. exchange of notes.
Conventions
 Proper formal instrument of a multilateral character.
 Standard formal instruments of a multilateral
character.
 Instruments adopted by international organisations
like ILO or ICAO.
Protocols
 Less formal than a treaty or convention.
 An instrument subsidiary to convention
 Ancillary matters such as the interpretation of
particular clauses.
 Ancillary instrument to a convention.
 A supplementary treaty.
Agreement
 Less formal
 Fewer parties
 Technical or administrative character only.
 Signed by representatives of governments.
 Not subject to ratification.
Process –Verbal
 Summary of the proceedings and conclusions of a
diplomatic conference.
 Minor alteration to a convention.
 Not subject to ratification.
Statute
 Collection of constituent rules relating to the
functioning of an international institution.
 Statute of the ICJ.
 Collection of rules laid down by international
agreement.
 An accessory instrument to a convention setting out
certain regulations to be applied.
Covenant
 Engagements of fundamental importance.
 United Nations Covenant on Civil and Political Rights.
 Covenant on Economic, Social and Cultural Rights,
1966.
Declaration
 Joint declaration, 19 December 1984 between UK and
China on the revision of Hong Kong to Chinese by
1997.
 An informal instrument appended to a treaty or
convention interpreting or explaining the provisions of
the latter.
 Minor importance.
 Resolution in a diplomatic conference.
Modus vivendi
 Is an instrument recording an international agreement
of a temporary or provisional nature intended to be
replaced by an arrangement of a more permanent and
detailed character.
Exchange of notes
 Informal method.
 Through diplomatic route or military representatives.
Practices and entry into force
 1. Accreditation of negotiators
 2. Negotiations and adoption.
 3. Authentication, signature and exchange of
instruments.
 4. Ratification.
 5. Accessions and adhesions
 6. Entry into force
 7. Registration and publication
 8. Application and enforcement
Credentials
 First step to appoint negotiators.
 Power to attend and negotiate with other states.
 Power to sign is not required for negotiations.
 The power to negotiate signed by the head of the state
or Minister of Foreign Affairs is known as Full Powers
or Pleins Pouvoirs.
 The sending for negotiations with Full Powers –
A.7.1(b).
Negotiation and adoption
 Either through discussions in case of bilateral treaties.
 Multilateral diplomatic conferences.
 Different committees were constituted like steering
committees and drafting committees.
 The Conference appoints a prominent member as
Rapporteur.
 A.9(2) – vote of two thirds of the states present and
voting.
 Even can be adopted by consensus.
Authentication, signature and exchange of
instruments
 Once the final draft is agreed upon it will be made
public for sometime.
 Signature is effected at a formal closing session.
 It should be authenticated by a resolution.
 Heads of the states may sign.
 1919- Woodrow Wilson – Treaty of Versailles.
 1972 – US – USSR – Anti-ballistic Missile System.
Open for signature
 Common practice to open the convention for signature
by certain states.
 Generally this period does not exceed 9 months.
 After expiry of the date – no signature
 Signature, without reservation
 Signature subject to later acceptance
 Acceptance simpliciter.
 Signature subject to reservation.
Exchange of instruments
 Exchange by representatives.
 Result: parties becomes bound by the treaty – Vienna
convention Art. 13.
Ratification
 Signed treaty will be send to respective governments
for approval.
 Ratification is the approval by the head of the state.
 A. 2(1)(b) - 'ratification', 'acceptance', 'approval' and
'accession' mean in each case the international act so
named whereby a State establishes on the
international plane its consent to be bound by a treaty;
Object of ratification
 Opportunity to re-examine the instrument before
undertaking any obligations.
 Enable the state to pass any domestic legislation or
parliament approval in between signature and
ratification.
 In international law there is neither a legal nor a moral
duty to ratify a treaty.
 Obligation not to defeat the object and purpose of a
treaty - A.18 of the Convention.
S.18
 A State is obliged to refrain from acts which would defeat
the object and purpose of a treaty when:
 (a) it has signed the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance
or approval, until it shall have made its intention clear not
to become a party to the treaty; or
 (b) it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that
such entry into force is not unduly delayed.
Exchange or deposit of ratifications
 After exchange it should be deposited or exchanged
between the parties.
 Notice of ratification is necessary.
 Bilateral treaties – exchange
 Multilateral – deposit with authorised authority
Accessions and adhesions
 A state not signed the treaty can accede or adhere to it.
 Accede – full treaty without any reservation.
 Adhere – acceptance of part of a treaty.
 Accession – after prescribed ratifications.
 Same form as of ratifications – accessions.
Entry into force, Registration
 According to the provisions of the treaty – A.24.
 Deposit of prescribed number of ratifications.
A.102 of UN Charter
 1. Every treaty and every international agreement
entered into by any Member of the United Nations
after the present Charter comes into force shall as soon
as possible be registered with the Secretariat and
published by it.
 2. No party to any such treaty or international
agreement which has not been registered in
accordance with the provisions of paragraph 1 of this
Article may invoke that treaty or agreement before any
organ of the United Nations.
Registration
 It means that, non registered treaties cannot be
challenged in ICJ.
 The treaty will be published by the UN Treaty Series
Application and enforcement
 Incorporation in the municipal law of state parties.
 Provisional application provisions.
A.253 of the Constitution of India
 Notwithstanding anything in the foregoing
provisions of this Chapter, Parliament has power
to make any law for the whole or any part of the
territory of India for implementing any treaty,
agreement or convention with any other country or
countries or any decision made at any
international conference, association or other
body.
Reservation
 Certain provisions of the treaty do not bind it, or apply
with modifications. This can be effected by:
1. Express provision in the treaty itself
2. By agreement between the contracting states;
3. By a reservation duly made
Ratifications
 S.2(1) (d) 'reservation' means a unilateral statement,
however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to
a treaty, whereby it purports to exclude or to modify
the legal effect of certain provisions of the treaty in
their application to that State;
Reservation
 17(1): Without prejudice to articles 19 to 23, the consent
of a State to be bound by part of a treaty is effective
only if the treaty so permits or the other contracting
States so agree.
 2. The consent of a State to be bound by a treaty which
permits a choice between differing provisions is
effective only if it is made clear to which of the
provisions the consent relates.
Sovereignty
 Reservation as an incident of sovereignty and perfect
equality of states.
 It applies to relations with other parties.
 Assent of other states party to the treaty are necessary.
 Reservations are made as a Protocol of Signature.
 A.23 - Objections to the reservation must be in writing
and communicated to other members.
Effect of reservation
 If the reservation is incompatible with the convention,
it may legitimately consider that the reserving state is
not a party thereto.
 If a state is not ratified a treaty don’t have the right to
object to a reservation.
ICJ advisory opinion
 Reservations to Genocide Convention, ICJ Reports
(1951), 15.
 ‘a state which has made…a reservation which has been
objected to by one or more of the parties to the
Convention but not by others, can be regarded as
being a party to the Convention if the reservation is
compatible with the object and purpose of the
convention.’
Amendment of treaties
 Altering the provisions of treaties by revision,
amendment, and modification.
 A.39 – amended by agreement of the parties.
Invalidity of treaties
 1. treaty making incapacity
 A.46 – representative exceeded their treaty making
power.
 A.47 – if the restriction and power of the
representative is not notified to other members prior,
no invalidity.
 2. Error – ground for invalidity – error of fact or
situation.
 Not error of law.
Invalidity
 3. A.49 - fraud – fraudulent conduct of negotiating
state.
 No precedents
 A. 50 - Procured through corruption of its
representative.
 A. 51-52 – coercion – coercion of representative.
 Use of force in violation of the principles of
international law.
 Conflict with norms of Jus Cogens
Thank you
Law of the Sea
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
The oceans are the very foundation of human
life...
 The ocean is vast, covering 140 million square miles,
some 72 per cent of the earth's surface.
 most of the world's people live no more than 200 miles
from the sea and relate closely to it.
 The oceans had long been subject to the freedom
of-the-seas doctrine - a principle put forth in the
seventeenth century essentially limiting national
rights and jurisdiction over the oceans to a narrow
belt of sea surrounding a nation's coastline.
Grotius
 1. no ocean can be the property of a nation because it is
impossible for any nation effectively to take it into
possession by occupation.
 Nature does not give a right to anybody to appropriate
things that may be used by everybody and are
exhaustible –
 open sea is a res gentium or res extra commercium.
History
 The dispute over who controls the oceans
probably dates back to the days when the
Egyptians first plied the Mediterranean in
papyrus rafts.
 Over the years and centuries, countries large and
small, possessing vast ocean-going fleets or small
fishing flotillas, husbanding rich fishing grounds
close to shore or eyeing distant harvests, have all
vied for the right to call long stretches of oceans
and seas their own.
History
 Conflicting claims, even extravagant ones, over the oceans were
not new.
 In 1494, two years after Christopher Columbus' first expedition to
America, Pope Alexander VI met with representatives of two of
the great maritime Powers of the day - Spain and Portugal - and
neatly divided the Atlantic Ocean between them.
 A Papal Bull gave Spain everything west of the line the Pope drew
down the Atlantic and Portugal everything east of it.
 On that basis, the Pacific and the Gulf of Mexico were
acknowledged as Spain's, while Portugal was given the South
Atlantic and the Indian Ocean.
18th century: Cannon Shot Theory
 In the eighteenth century, the so-called "cannon-shot" rule
gained wide acceptance in Europe.
 Coastal States were to exercise dominion over their
territorial seas as far as projectiles could be fired from a
cannon based on the shore.
 According to some scholars, in the eighteenth century the
range of land-based cannons was approximately one
marine league, or 3 nautical miles.
 It is believed that on the basis of this formula developed
the traditional three-mile territorial sea limit.
1702
 Bynkershoek: published a book Essay on Sovereignty
or the Sea.
 Territorial state could only dominate such width of
coastal waters as lay within the range of cannon shot
from shore batteries.
 19th century – 3 mile limit received widespread
recognition by jurists.
 US and UK – proponents of this theory.
 But failed to get acceptance.
Hot pursuit
 If any ship violates the laws and regulations of a
maritime state, the ship might be pursued
immediately before leaving the maritime belt of that
country.
 Sufficient auditory signal should be given to the
foreign vessel to stop.
 The arrest of personnel and the ship must be made
within the territorial waters.
Challenges
 twentieth century, by mid-century there was an
impetus to extend national claims over offshore
resources.
 In 1945, President Harry S. Truman, responding in part
to pressure from domestic oil interests, unilaterally
extended United States jurisdiction over all natural
resources on that nation's continental shelf - oil, gas,
minerals, etc.
 This was the first major challenge to the freedom-of-
the-seas doctrine.
Territorial claims
 In October 1946, Argentina claimed its shelf and the
continental sea above it.
 Chile and Peru in 1947, and Ecuador in 1950, asserted
sovereign rights over a 200-mile zone, hoping thereby
to limit the access of distant-water fishing fleets and to
control the depletion of fish stocks in their adjacent
seas.
 Geneva Convention of 1958 on the Territorial Sea and
Contiguous Zone - sovereignty of the territorial state –
right of innocent passage.
Territorial claims
 Soon after the Second World War, Egypt, Ethiopia, Saudi
Arabia, Libya, Venezuela and some Eastern European
countries laid claim to a 12-mile territorial sea, thus clearly
departing from the traditional three-mile limit.
 Later, the archipelagic nation of Indonesia asserted the
right to dominion over the water that separated its 13,000
islands.
 The Philippines did likewise. In 1970, Canada asserted the
right to regulate navigation in an area extending for 100
miles from its shores in order to protect Arctic water
against pollution.
Oil explorations
 In the late 1960s, oil exploration was moving further
and further from land, deeper and deeper into the
bedrock of continental margins.
 Beginning in 1947 in the Gulf of Mexico, offshore oil
production, still less than a million tons in 1954, had
grown to close to 400 million tons.
 Oil drilling equipment was already going as far as
4,000 metres below the ocean surface.
Oil
 Offshore oil was the centre of attraction in the North
Sea.
 Britain, Denmark and Germany were in conflict as to
how to carve up the continental shelf, with its rich oil
resources.
 In the 1960s oceans were generating a multitude of
claims, counterclaims and sovereignty disputes.
 By the late 1960s, a trend to a 12-mile territorial sea had
gradually emerged throughout the world.
Initiatives
 On 1 November 1967, Malta's Ambassador to the
United Nations, Arvid Pardo in an address to the
General Assembly call for "an effective international
regime over the seabed and the ocean floor beyond a
clearly defined national jurisdiction".
 A Conference was convened in New York in 1973.
 United Nations Convention on the Law of the Sea 1982
concluded.
Freedom of the high seas
 Conflicting claims of the open sea.
 1982 United Nations Convention on the Law of the
Sea, which has gained nearly universal acceptance
since its entry into force on 16 November 1994.
 Sovereignty of the costal state extends to the seabed
and subsoil of the territorial sea and the airspace over
it.
 As the work of the Conference progressed, the move
towards a 12-mile territorial sea gained wider and
eventually universal acceptance.
Law of the Sea Convention, 1982
 Setting Limits
 Navigation
 Exclusive Economic Zone
 Continental Shelf
 Deep Seabed Mining
 The Exploitation Regime
 Technological Prospects
 The Question of Universal Participation in the Convention
 Pioneer Investors
 Protection of the Marine Environment
 Marine Scientific Research
 Settlement of Disputes
 Navigational rights,  conservation and
 territorial sea limits, management of living
marine resources,
 economic
 protection of the marine
jurisdiction, environment,
 legal status of  a marine research
resources on the regime and,
seabed beyond the  a more unique feature,
limits of national
 a binding procedure for
jurisdiction, settlement of disputes
 passage of ships between States - these
through narrow are among the
straits, important features of
the treaty
Convention
 The Convention was adopted as a "Package deal",
to be accepted as a whole in all its parts without
reservation on any aspect.
 The Convention came into force on 16 November
1994.
 The right of landlocked countries of access to and
from the sea is now stipulated unequivocally.
 The right to conduct marine scientific research is
now based on accepted principles and cannot be
unreasonably denied.
Institutional system
 Already established and functioning are the
International Seabed Authority, which organize
and control activities in the deep seabed beyond
national jurisdiction with a view to administering
its resources;
 as well as the International Tribunal for the Law
of the Sea, which has competence to settle ocean
related disputes arising from the application or
interpretation of the Convention.
Rights
 In addition to their right to enforce any law within their
territorial seas, coastal States are also empowered to implement
certain rights in an area beyond the territorial sea, extending for
24 nautical miles from their shores, for the purpose of preventing
certain violations and enforcing police powers.
 This area, known as the "contiguous zone", may be used by a
coast guard or its naval equivalent to pursue and, if necessary,
arrest and detain suspected drug smugglers, illegal immigrants
and customs or tax evaders violating the laws of the coastal State
within its territory or the territorial sea.
Exclusive Economic Zone
 it recognizes the right of coastal States to
jurisdiction over the resources of some 38 million
square nautical miles of ocean space.
 To the coastal State falls the right to exploit,
develop, manage and conserve all resources - fish
or oil, gas or gravel, nodules or sulphur - to be
found in the waters, on the ocean floor and in the
subsoil of an area extending 200 miles from its
shore.
Fishing
 About 87 per cent of all known and estimated
hydrocarbon reserves under the sea fall under
some national jurisdiction as a result of EEZ.
 The most lucrative fishing grounds too are
predominantly the coastal waters.
 The desire of coastal States to control the fish
harvest in adjacent waters was a major driving
force behind the creation of the EEZs.
Fishing
 The special interest of coastal States in the
conservation and management of fisheries in
adjacent waters was first recognized in the 1958
Convention on Fishing and Conservation of the
Living Resources of the High Seas.
Claims
 The claim for 200-mile offshore sovereignty made by
Peru, Chile and Ecuador in the late 1940s and early
1950s was sparked by their desire to protect from
foreign fishermen the rich waters of the Humboldt
Current (more or less coinciding with the 200-mile
offshore belt.
 This limit was incorporated in the Santiago
Declaration of 1952 and reaffirmed by other Latin
American States joining the three in the Montevideo
and Lima Declarations of 1970.
 The idea of sovereignty over coastal-area resources
continued to gain ground.
Disputes and claims
 Between 1974 and 1979 alone there were some 20
disputes over cod, anchovies or tuna and other
species between, for example, the United
Kingdom and Iceland, Morocco and Spain, and
the United States and Peru.
 The Third United Nations Conference on the Law
of the Sea was launched shortly after the October
1973 Arab-Israeli war.
Oil
 Figures on known offshore oil reserves now range
from 240 to 300 billion tons.
 Production from these reserves amounted to a
little more than 25 per cent of total world
production in 1996.
 Experts estimate that of the 150 countries with
offshore jurisdiction, over 100, many of them
developing countries, have medium to excellent
prospects of finding and developing new oil and
natural gas fields.
Duties
 Convention encourages optimum use of fish
stocks without risking depletion through
overfishing.
 Coastal States have certain other obligations,
including the adoption of measures to prevent
and limit pollution and to facilitate marine
scientific research in their EEZs.
 Coastal States are obliged to give access to others,
particularly neighbouring States and land-locked
countries, to the surplus of the allowable catch.
Continental shelf
 What should be the extent of a coastal State's
jurisdiction over resources?
 Where and how should the lines demarcating
their continental shelves be drawn?
 How should these resources be exploited?
 These were among the important questions facing
lawyers, scientists and diplomats as they
assembled in New York in 1973 for the Third
Conference.
Sea bed and subsoil
 many States had started claiming wide continental-
shelf jurisdiction since the Truman Proclamation of
1945, these States did not use the term "continental
shelf" in the same sense. In fact, the expression
became no more than a convenient formula covering a
diversity of titles or claims to the seabed and subsoil
adjacent to the territorial seas of States.
 In the mid-1950s the International Law Commission
made a number of attempts to define the "continental
shelf" and coastal State jurisdiction over its resources.
Definition
 In 1958, the first United Nations Conference on the
Law of the Sea accepted a definition adopted by the
International Law Commission.
 The continental shelf to include "the seabed and
subsoil of the submarine areas adjacent to the coast
but outside the area of the territorial sea, to a depth of
200 metres, or, beyond that limit, to where the depth
of the superjacent waters admits of the exploitation of
the natural resources of the said areas".
Delimitation
International waters
Continental Shelf
Base line
 baseline from which the territorial sea is measured is
the low-water line along the coast as marked on large-
scale charts officially recognized by the coastal state.
 This is either the low-water mark closest to the shore,
 or alternatively it may be an unlimited distance from
permanently exposed land,
 provided that some portion of elevations exposed at
low tide but covered at high tide (like mud flats) is
within 12 nautical miles (22 km) of permanently
exposed land.
Base line
 Anglo Norwegian Fisheries Case, ICJ 1951.
 Drawing baseline at some distance from the coastline
of the littoral state concerned, breadth of the maritime
belt was to be measured, instead of the low-water
mark constituting the linear edge of the maritime belt.
Territorial sea
 A state's territorial sea extends up to 12 nautical miles
(22 km) from its baseline. If this would overlap with
another state's territorial sea, the border is taken as the
median point between the states' baselines.
 Two recent conflicts occurred in the Gulf of Sidra
where Libya has claimed the entire gulf as its
territorial waters and the U.S. has twice violently
enforced freedom of navigation rights (Gulf of Sidra
incident (1981), Gulf of Sidra incident (1989)).
Contiguous Zone
 A.33 – costal state laws applied
 The contiguous zone is a band of water extending
from the outer edge of the territorial sea to up to
24 nautical miles (44 km) from the baseline,
 within which a state can exert limited control for the
purpose of preventing or punishing "infringement of
its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea".
 This will typically be 12 nautical miles (22 km).
Exclusive Economic Zone
 An exclusive economic zone extends for 200 nautical miles
(370 km) beyond the baselines of the territorial sea, thus it
includes the territorial sea and its contiguous zone.
 A coastal nation has control of all economic resources
within its exclusive economic zone, including fishing,
mining, oil exploration, and any pollution of those
resources. However, it cannot regulate or prohibit passage
or loitering above, on, or under the surface of the sea,
whether innocent or belligerent, within that portion of its
exclusive economic zone beyond its territorial sea.
Continental shelf
 The continental shelf of a coastal nation extends out to
its continental margin, but at least 200 nautical miles
(370 km) from the baselines of its territorial sea.
 It is the submerged bed of the sea, contiguous to the
continental land mass.
 General recognition by Geneva Convention of 1958 on
the continental shelf.
Delimitation
 There was a strong consensus in favour of extending
coastal-State control over ocean resources out to 200 miles
from shore so that the outer limit coincides with that of the
EEZ.
 It satisfied those nations with a broader shelf C about 30
States, including Argentina, Australia, Canada, India,
Madagascar, Mexico, Sri Lanka and France with respect to
its overseas possessions C by giving them the possibility of
establishing a boundary going out to 350 miles from their
shores or further, depending on certain geological criteria.
Continental shelf
 the continental shelf of a coastal State comprises
the seabed and its subsoil that extend beyond the
limits of its territorial sea throughout the natural
prolongation of its land territory to the outer
edge of the continental margin,
 or to a distance of 200 miles from the baselines
from which the territorial sea is measured, where
the outer edge of the continental margin does not
extend up to that distance.
1958 Conventions
 First UN Conference on the Law of the Sea at Geneva
 1. convention on Territorial Sea and the Contiguous
Zone.
 2. Convention on High Seas.
 3. Convention on fishing and Conservation of the
Living Resources of the High Seas and
 4. the Convention on the Continental Shelf.
Deep Seabed Mining
 On 13 March 1874, somewhere between Hawaii and
Tahiti, the crew of the British research vessel HMS
Challenger hauled in from a depth of 15,600 feet a
trawl containing the first known deposits of
manganese nodules.
 Analysis of the samples in 1891 showed the Pacific
Ocean nodules to contain important metals,
particularly nickel, copper and cobalt.
Common heritage
 In 1970 the United Nations General Assembly
declared the resources of the seabed beyond the
limits of national jurisdiction to be "the common
heritage of mankind".
Exploration
 The developed countries took the view that the
resources should be commercially exploited by mining
companies in consortia and that an international
authority should grant licenses to those companies.
 The developing countries objected to this view on the
grounds that the resource was unique and belonged to
the whole of mankind, and that the most appropriate
way to benefit from it was for the international
community to establish a public enterprise to mine the
international seabed area.
International Sea Bed Authority
 Agreement on Part XI to Law of the Sea
convention, is administered by the International
Seabed Authority, headquartered in Jamaica.
 The Authority is divided into three principal
organs, an Assembly, made up of all members of
the Authority with power to set general policy, a
council, with powers to make executive decisions,
made up of 36 members elected from among the
members of the Authority, and a secretariat
headed by a secretary-general.
Protection of marine environment
 There are six main sources of ocean pollution
addressed in the Convention: land-based and coastal
activities; continental-shelf drilling; potential seabed
mining; ocean dumping; vessel-source pollution; and
pollution from or through the atmosphere.
 The Convention lays down, first of all, the
fundamental obligation of all States to protect and
preserve the marine environment.
 Coastal States are empowered to enforce their national
standards and anti-pollution measures within their
territorial sea.
Conventions
 Two conventions adopted in 1969
 1. International Convention relating to Intervention on
the High Seas in cases of Oil Pollution Causalities –
Intervention Convention
 2. International Convention on Civil Liability for Oil
Pollution Damage. – Liability Convention
 1973 protocol – Cases of Marine Pollution.
IMO
 On the other hand, it is the duty of the "flag State", the
State where a ship is registered and whose flag it flies,
to enforce the rules adopted for the control of marine
pollution from vessels, irrespective of where a violation
occurs.
 This serves as a safeguard for the enforcement of
international rules, particularly in waters beyond the
national jurisdiction of the coastal State, i.e., on the
high seas.
Settlement of disputes
 The Convention on the Law of the Sea is unique in that the
mechanism for the settlement of disputes is incorporated
into the document, making it obligatory for parties to the
Convention to go through the settlement procedure in case
of a dispute with another party.
 Options: submission of the dispute to the International
Tribunal for the Law of the Sea, adjudication by the
International Court of Justice, submission to binding
international arbitration procedures or submission to
special arbitration tribunals with expertise in specific types
of disputes.
1982 Convention
 1. maintenance of international peace and security.
 2. universally accepted limits of territorial sea,
contiguous zone, exclusive economic zone and on the
continental shelf.
 3. freedom of navigation
 4. innocent and transit passage.
 5. conservation of optimum utilization of the living
resources of the sea.
 6. preservation of marine environment.
1982 Law of the Sea Convention
 Marine scientific research.
 Equitable balance between states.
 Peaceful settlement of disputes.
 Resources of the deep sea bed constituted the common
heritage of mankind.
 Revenue sharing on the continental shelf beyond 200
miles.
Convention
 320 Articles
 17 parts
 9 annexes
Thank you
Law of the High Seas
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
High seas
 Art.1 - The term "high seas" means all parts of the sea
that are not included in the territorial sea or in the
internal waters of a State. – convention on High Seas
1958.
 Part VII – Art. 86 – 1982 Convention – ‘apply to all
parts of the sea that are not included in the exclusive
economic zone, in the territorial sea or in the internal
waters of a state, or in the archipelagic waters of an
archipelagic state.
High seas
 Common heritage of mankind
 Res extra commercium
 Grotius: stated two principles: -
 1. the sea could not be the object of private or state
appropriations;
 2. use of the high seas by one state would leave the
medium available for use by another.
Freedoms, A. 2
 1. Freedom of navigation;
 2. Freedom of fishing;
 3. Freedom to lay submarine cables and pipelines;
 4. Freedom to fly over high seas.
 Other freedoms recognised by international law.
 Confirmed in fisheries case and Behring Sea Fisheries
Arbitration.
Maintenance of order in the HS
 Ships have nationality of the state whose flag they are
entitled to fly.
 The primary duty is with the state whose flag is over
the ship.
 Jurisdiction is subject to national laws of the flag state.
 A.4 - Every State, whether coastal or not, has the right
to sail ships under its flag on the high seas.
 A.8 Warships on the high seas have complete
immunity from the jurisdiction of any State other than
the flag State.
Exceptions
 Piracy:
 Dissenting opinion of the Judge Moore the Lotus case
– ‘the person charged with the offence may be tried
and punished by any nation into whose jurisdiction he
may come.’
 It should be considered as an offence against the law of
nations.
 Any nation may in the interest of all capture and
punish.
Lotus case
 Vessel on the high seas are subject to no authority
except that of the state whose flag they fly.
 No state may exercise any kind of jurisdiction over
foreign vessels upon them.
 92.1 of 1982 convention – exclusive jurisdiction over the
flag state.
Article 15 of Convention on HS
 according to the United Nations Convention on the Law of
the Sea (UNCLOS) of 1982,
 consists of any criminal acts of violence,
 detention, or depredation committed for private ends by
the crew or the passengers of a private ship or aircraft
 that is directed on the high seas against another ship,
aircraft, or against persons or property on board a ship or
aircraft.
 Piracy can also be committed against a ship, aircraft,
persons, or property in a place outside the jurisdiction of
any state.
A.15
 Piracy consists of any of the following acts:
 (1) Any illegal acts of violence, detention or any act of depredation, committed
for private ends by the crew or the passengers of a private ship or a private
aircraft, and directed:
 (a) On the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;
 (b) Against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
 (2) Any act of voluntary participation in the operation of a ship or of an aircraft
with knowledge of facts making it a pirate ship or aircraft;
 (3) Any act of inciting or of intentionally facilitating an act described in sub-
paragraph 1 or sub-paragraph 2 of this article.
Seizure
 Seizure on account of piracy may only be carried out
by warships or military aircraft, or other governmental
ships.
 No general right of search of foreign ships can be
claimed on the high seas by any nation.
Interference
 A warship which encounters a foreign merchant ship on the
high seas is not justified in boarding her unless there is
reasonable ground for suspecting:
 (a) That the ship is engaged in piracy; or
 (b) That the ship is engaged in the slave trade; or
 (c) That though flying a foreign flag or refusing to show its
flag, the ship is, in reality, of the same nationality as the
warship.
Additional grounds
 Art. 109 of 1982 convention –
 1. engaging in unauthorized broadcasting
 2. ship is without nationality, A.110.
 A. 22.3. If the suspicions prove to be unfounded,
and provided that the ship boarded has not
committed any act justifying them, it shall be
compensated for any loss or damage that may have
been sustained.
Hot pursuit, A.23
 The hot pursuit of a foreign ship may be undertaken
when the competent authorities of the coastal State
have good reason to believe that the ship has violated
the laws and regulations of that State.
 Such pursuit must be commenced when the foreign
ship or one of its boats is within the internal waters or
the territorial sea or the contiguous zone of the
pursuing State, and may only be continued outside the
territorial sea or the contiguous zone if the pursuit has
not been interrupted.
A.24 & 25
 Every State shall draw up regulations to prevent
pollution of the seas by the discharge of oil from ships
or pipelines or resulting from the exploitation and
exploration of the seabed and its subsoil.
 Every State shall take measures to prevent pollution of
the seas from the dumping of radio-active waste.
A.26
 All States shall be entitled to lay submarine cables and
pipelines on the bed of the high seas.
 the State in question shall pay due regard to cables or
pipelines already in position on the seabed.
 In particular, possibilities of repairing existing cables
or pipelines shall not be prejudiced.
Pollution
 Remedial action may be justified on the ground of
necessity.
 1969 – Brussels International Convention Relating to
Intervention on the High Seas in Cases of Oil Pollution
Causalities.
Indian Provisions
Developments since independence
 Since independence in 1947, India had been content to proclaim the
traditional territorial sea of three miles.
 (a) On 30 August 1955, India claimed full and exclusive sovereign rights
over the seabed and subsoil of the continental shelf adjoining the coast
but beyond territorial waters. Neither the depth nor the distance from
the coastline was indicated.
 (b) On 22 March 1956, India claimed Territorial Waters of six miles
from appropriate baselines.
 (c) On 29 November 1956, India claimed a Conservation Zone for
fisheries up to a distance of 100 miles from the outer limit of territorial
waters.
 (d) On 3 December 1956, India claimed a Contiguous Zone.
Developments
 On 12 September, 1967, India extended its territorial
waters to twelve miles.
 This was largely a reaction to Pakistan's extension of
her territorial waters from three to twelve miles, rather
than an act of maritime policy.
 In the early 1970, the Indian Government had initiated
a programme of scientific investigation and evaluation
of the manganese nodule resources in the Indian
Ocean.
70’s
 By the early 1970's, India had discovered oil and gas in
Bombay High and promising fields were being forecast
in the Godavari, Krishna and Palk Bay basins, as also
gas in the Andaman Offshore.
 India is with a coastline of over 64000 kilometers.
 India has maritime boundaries with five opposite
states (Sri Lanka, the Maldives, Myanmar, Indonesia,
Thiland) and two adjacent States (Pakistan and
Bangladesh).
Constitution
 40th amendment in 1976.
 A.297 - "297. Things of value within territorial
waters or continental shelf and resources of the
exclusive economic zone to vest in the Union.-
(1) All lands, minerals and other things of value
underlying the ocean
within the territorial waters, or the
continental shelf, or the exclusive economic
zone, of India shall vest in the Union and be held
for the purposes of the Union.
Indian Constitution
 2) All other resources of the exclusive economic
zone of India shall also vest in the Union and be
held for the purposes of the Union.
 (3) The limits of the territorial waters, the
continental shelf, the exclusive economic zone,
and other maritime zones, of India shall be
such as may be specified, from time to time, by or
under any law made by Parliament.".
THE TERRITORIAL WATERS, CONTINENTAL SHELF, EXCLUSIVE
ECONOMIC ZONE AND OTHER MARITIME ZONES ACT, 1976
 S. 3(1) The sovereignty of India extends and has always

extended to the territorial waters of India (hereinafter
referred to as the territorial waters) and to the seabed
and subsoil underlying, and the air space over, such
waters.
 The limit of the territorial waters is the line every
point of which is at a distance of twelve nautical miles
from the nearest point of the appropriate baseline.
Innocent passage
 S.4(1) Without prejudice to the provisions of any other
law for the time being in force, all foreign ships (other
than warships including submarines and other
underwater vehicles) shall enjoy the right of innocent
passage through the territorial waters.
 Definition of passage: explanation to 4.1:
 passage is innocent so long as it is not prejudicial to
the peace, good order or security of India.
War ships
 4. 2 - Foreign warships including submarines and
other underwater vehicles may enter or pass through
the territorial waters after giving prior notice to the
Central Government.
 Provided that submarines and other underwater
vehicles shall navigate on the surface and show their
flag while passing through such waters.
Contiguous zone
 5. (1) The contiguous zone of India (hereinafter
referred to as the contiguous zone) is and area
beyond and adjacent to the territorial waters and
the limit of the contiguous zone is the line every
point of which is at a distance of twenty-four
nautical miles from the nearest point of the
baseline
Inspection
 5(4) The Central Government may exercise such
powers and take such measures in or in relation to the
contiguous zone as it may consider necessary with
respect to,-
 (a) the security of India, and
 (b) immigrations sanitation, customs and other fiscal
matters.
Continental shelf
 6. (1) The continental shelf of India (hereinafter
referred to as the continental shelf) comprises the
seabed and subsoil of the submarine areas that extend
beyond the limit of its territorial waters throughout
the natural prolongation of its land territory to the
outer edge of the continental margin or to a distance of
two hundred nautical miles from the baseline
Sovereignty
 S.6 Union has in the continental shelf,-
 (a) Sovereign rights for the purposes of exploration, exploitation,
conservation and management of all resources;
 (b) exclusive rights and jurisdiction for the construction, maintenance
or operation of artificial islands, off-shore terminals, installations and
other structures and devices necessary for the exploration and
exploitation of the resources of the continental shelf or for the
convenience of shipping or for any other purpose;
 (c) exclusive jurisdiction to authorize, regulate and control scientific
research; and
 (d) exclusive jurisdiction to preserve and protect the marine
environment and to prevent and control marine pollution.
historic waters of India?
 8. (1) The Central Government may, by
notification in the Official Gazette, specify the
limits of such waters adjacent to its land territory
as are the historic waters of India.
Punishment
 11. Whoever contravenes any provision of this Act
or of any notification thereunder shall be
punishable with imprisonment which may extend
to three years, or with fine, or with both.
Company liability
 12. (1) Where an offence has been committed by a
company,
 every person who at the time the offence was
committed was in charge of and was responsible
to the company for the conduct of the business of
the company,
 as well as the company shall be deemed to be
guilty of the offence and shall be liable to be
proceeded against and punished accordingly
Thank you
A IR LAW
KDR/RGSOIPL/2008 1
2 H ISTORY
 In 1880, the Institut de Droit International, a private association of

eminent jurists from many countries, included aviation on the
agenda of its convention held in Oxford, England.
 The first successful flight of a powered controlled and sustained

flying machine by Orville and Wilbur Wright on 17 December 1903
was the beginning of the evolution of flight and civil aviation.
KDR/RGSOIPL/2008
3 H ISTORY
 the first important conference on an international air

law code was convened in Paris in 1910.
 This conference was attended by 18 European States

and a number of basic principles governing aviation
were laid down.
 The first world war made a tremendous change in

technical advancements.
KDR/RGSOIPL/2008
4 H ISTORY
 Paris Peace Conference of 1919 - Aviation was

an important subject and it was entrusted to a
special Aeronautical Commission, which hat its
origin in the Inter-Allied Aviation Committee
created in 1917.
 in 1919, two British airmen, Alcock and Brown,

made the first West-East crossing of the North
Atlantic from Newfoundland to Ireland and the
"R-34", a British dirigible made a round trip flight
from Scotland to New York and back.
KDR/RGSOIPL/2008
5 H ISTORY
 Paris Peace Conference and was ultimately ratified by 38 States. This
Convention consisted of 43 articles that dealt with all technical,
operational and organizational aspects of civil aviation and also foresaw
the creation of an International Commission for Air Navigation (ICAN)
to monitor developments in civil aviation and to propose measures to
States to keep abreast of developments.
 In 1919, six European airlines founded in The Hague, Netherlands, the
International Air Traffic Association (IATA) to help airlines standardize
their paperwork and passenger tickets and also help airlines compare
technical procedures.
 The modern IATA (International Air Transport Association), founded in
1945 in Havana, Cuba, is the successor to the International Air Traffic
Association.
KDR/RGSOIPL/2008
6 1944 C HICAGO C ONVENTION
 Preamble: development of international civil aviation can greatly

help to create and preserve friendship and understanding among
the nations and peoples of the world.
KDR/RGSOIPL/2008
7 THEORIES
 Airspace above territories and territorial waters.
 Right of innocent passage over the territory for

foreign civil aircraft.
 Airspace above high seas is free and open to all.
 State sovereignty into upwards
 State practice an defence point of view
KDR/RGSOIPL/2008
8 R IGHT OVER AIR SPACE
 1919 Paris Convention for the Regulation of Aerial Navigation.

 Recognised the sovereignty over land and territorial sea.
 Nicaragua case - ‘the principle of respect for territorial sovereignty
is also directly infringed by the unauthorized over flight of a state’s
territory by aircraft belonging to or under the control of the
government of another state.’ ICJ Reports 1986.
 1944 – Chicago Conference – Chicago Convention on International
Civil Aviation.
 No right of scheduled international passage over state airspaces
without prior consent.
KDR/RGSOIPL/2008
9 E ARLY DEVELOPMENTS
 Nationality of the flight were it is registered.
 Chicago International Air Services Transit Agreement, 1944
 Picking up passengers, mail and cargo
 US withdraw from it in 1946
 UK – US Bermuda Agreement of 1946
 The formation of ICAO – UN specialised agency for co-operation

between states upon technical and administrative co-operation.
KDR/RGSOIPL/2008
10 ICAO
 Objective is to develop the principles and techniques of international air

navigation and to foster the planning and development of international air
transport.
 Chicago Conference which formed the ICAO reaffirmed the 1919
convention with regard to sovereignty of the state over its airspace and
need for permission to operate scheduled international flights.
 ICAO – 190 contracting parties
 UK denounced the Bermuda Agreement in 1976.
 1977 – a new Agreement Bermuda II was signed with USA.
 ICAO – IATA – International Air Transport Association.
KDR/RGSOIPL/2008
11 ICAO
 Planning and development of international air navigation.
 International standards and recommended practices.
 Only concerned with civil aircraft. State, military, customs and

police aircrafts are excluded.
 Encourage the safe and orderly growth of international civil

aviation throughout the world.
 Encourage the development of airways, airports, air navigation

facilities for international civil aviation.
KDR/RGSOIPL/2008
12 ICAO
 Promote safety of flight in international air navigation and
 Promote the development of all aspects of international civil

aeronautics.
 A.68 – Report to ICAO about the designation of all air routes and
airports in order to streamline flow of air traffic.
 A transit agreement was entered, Air Services Transit Agreement,

1945. - 129 parties.
KDR/RGSOIPL/2008
13 A IR FREEDOMS
KDR/RGSOIPL/2008
14 A IR FREEDOMS
 1. The freedom to overfly a foreign country (A) from a home

country en-route to another (B) without landing. Also called the
transit freedom.
 2. The freedom to stop in a foreign country for non traffic purposes

(technical/refueling purpose only).
 A flight from a home country can land in another country (A) for
purposes other than carrying passengers, such as refueling,
maintenance or emergencies.
 The final destination is country B.
KDR/RGSOIPL/2008
15 N EGOTIATED FREEDOMS
 Third Freedom. The freedom to carry traffic from a home country to

another country (A) for purpose of commercial services.
 Fourth Freedom. The freedom to pick up traffic from another

country (A) to a home country for purpose of commercial services.
 Third and Fourth Freedoms are the basis for direct commercial
services, providing the rights to load and unload passengers, mail
and freight in another country.
KDR/RGSOIPL/2008
16 A IR FREEDOMS
 Fifth Freedom. The freedom to carry traffic between two foreign countries
on a flight that either originated in or is destined for the carrier’s home
country.
 It enables airlines to carry passengers from a home country to another
intermediate country (A),
 and then fly on to third country (B) with the right to pick passengers in the
intermediate country.
 Also referred to as "beyond right".
 This freedom is divided into two categories: Intermediate Fifth Freedom
Type is the right to carry from the third country to second country. Beyond
Fifth Freedom Type is the right to carries from second country to the third
country.
KDR/RGSOIPL/2008
17 FREEDOMS
 Sixth Freedom. The "unofficial" freedom to carry traffic between

two foreign countries via the carrier’s home country by combining
third and fourth freedoms.
 Not formally part of the original 1944 convention, it refers to the

right to carry passengers between two countries (A and B) through
an airport in the home country.
 With the hubbing function of most air transport networks, this

freedom has become more common, notably in Europe (London,
Amsterdam).
KDR/RGSOIPL/2008
18 F REEDOMS
 Seventh Freedom. The freedom to base aircraft in a foreign country for

use on international services, establishing a de facto foreign hub.
 Covers the right to operate a passenger services between two countries

(A and B) outside the home country.
 Eighth Freedom. The freedom to carry traffic between two domestic

points in a foreign country on a flight that either originated in or is
destined for the carrier’s home country.
 Also referred to as "cabotage" privileges. It involves the right to move

passengers on a route from a home country to a destination country (A)
that uses more than one stop along which passengers may be loaded and
unloaded.
KDR/RGSOIPL/2008
19 FREEDOMS
 Ninth Freedom. The freedom to carry traffic between two

domestic points in a foreign country.
 Also referred to as "full cabotage" or "open-skies" privileges.
 It involves the right of a home country to move passengers within

another country (A).
KDR/RGSOIPL/2008
20
T HE WARSAW C ONVENTION ,
1929
 Warsaw Convention for the Unification of Certain Rules Relating to
International Carriage by Air.
 Fixed upper limit for liability
 Responsibility
 Insurance
 Modified by Amendment in 1955 and later on by Agreement in Montreal
in 1975.
 Raised the liability as regards airlines flying in or to the US.
 The Montreal Convention, signed in 1999, will replace the Warsaw
Convention system, once Montreal has been ratified by all states.
KDR/RGSOIPL/2008
21 WARSAW
 mandates carriers to issue passenger tickets;
 requires carriers to issue baggage checks for checked luggage;
 creates a limitation period of 2 years within which a claim must be

brought (Article 29); and
 limits a carrier's liability to at most:

 250,000 Francs or 16,600 Special Drawing Rights (SDR) for personal injury;
 17 SDR per kilogram for checked luggage and cargo,
 On April 1, 2007, the exchange rate was 1.00 SDR = 1.135 EUR or 1.00 SDR
= 1.51 USD.
 5,000 Francs or 332 SDR for the hand luggage of a traveller.

KDR/RGSOIPL/2008
22 WARSAW
 A.3 – Ticket – places of departure and destination
 The carrier shall deliver to the passenger a baggage identification tag for
each piece of checked baggage.
 The passenger shall be given written notice to the effect that where this
Convention is applicable it governs and may limit the liability of carriers
in respect of death or injury and for destruction or loss of, or damage to,
baggage, and for delay.
KDR/RGSOIPL/2008
23 BAGGAGE
 deliver to the consignor a cargo receipt permitting identification of

the consignment and access to the information contained in the
record preserved by such other means.
 A. 4(2) - Baggage check shall constitute prima facie evidence of the

registration of baggage.
KDR/RGSOIPL/2008
24 L IABILITY OF CARRIER
 A.17 - The carrier is liable for damage sustained in case of death or bodily injury
of a passenger upon condition only that the accident which caused the death
or injury took place on board the aircraft or in the course of any of the
operations of embarking or disembarking.
 The carrier liable for damage sustained in case of destruction or loss of, or of
damage to, checked baggage upon condition only that the event which caused
the destruction, loss or damage took place on board the aircraft or during any
period within which the checked baggage was in the charge of the carrier.
 If the carrier admits the loss of the checked baggage, or if the checked baggage
has not arrived at the expiration of twenty-one days after the date on which it
ought to have arrived, the passenger is entitled to enforce against the carrier
the rights which flow from the contract of carriage.
KDR/RGSOIPL/2008
25 C OMPENSATION
 A.21 - For damages arising under paragraph 1 of Article 17 not

exceeding 100,000 Special Drawing Rights for each passenger, the
carrier shall not be able to exclude or limit its liability.
 Not liable if:
 (a) such damage was not due to the negligence or other wrongful act
or omission of the carrier or its servants or agents; or
 (b) such damage was solely due to the negligence or other wrongful
act or omission of a third party.
KDR/RGSOIPL/2008
26 B AGGAGE AND CARGO
 In the case of damage caused by delay as specified in Article 19 in

the carriage of persons, the liability of the carrier for each passenger
is limited to 4,150 Special Drawing Rights.
 If he declared the validity more than 1000 SDR at the time of check
in the carrier will be liable to pay a sum not exceeding the declared
sum.
 In the carriage of cargo, the liability of the carrier in the case of
destruction, loss, damage or delay is limited to a sum of 17 Special
Drawing Rights per kilogram, unless the consignor has made, at the
time when the package was handed over to the carrier, a special
declaration of interest in delivery at destination and has paid a
supplementary sum if the case so requires.
KDR/RGSOIPL/2008
27 C ONTRACTUAL PROVISIONS
 Any provision tending to relieve the carrier of liability or to fix a

lower limit than that which is laid down in this Convention shall be
null and void , but the nullity of any such provision does not involve
the nullity of the whole contract, which shall remain subject to the
provisions of this Convention.
KDR/RGSOIPL/2008
28 J URISDICTION
 The Convention's provision on jurisdiction, Article 33, reflects the U.S.

success in achieving a key U.S. objective with regard to the Convention--the
creation of a ``fifth jurisdiction'' to supplement the four bases of jurisdiction
provided under the Warsaw Convention. Article 33(1), like the Warsaw
Convention, allows a suit to be brought against a carrier in the country:
 (1) of its incorporation,
 (2) of its principal place of business;
 (3) where the ticket was purchased, and
 (4) of destination of the passenger.
KDR/RGSOIPL/2008
29 S AFETY C ONVENTION
 Montreal Convention for the Suppression of Unlawful Acts against

the Safety of Civil Aviation, 1971.
KDR/RGSOIPL/2008
30 D OWNING OF A IRLINES
 1955 - Shot down of Israel Airline in 1955 by Bulgarian warplanes.
 ICJ – held lack of jurisdiction.
 1973 – Israel shot down Libyan airliner intrude into Israel occupied
Sinai.
 But an ICAO investigation concluded that “such action constitute a

serious danger against the safety of international civil aviation and
criticized for flagrant violation of the principles of Chicago
Convention.
KDR/RGSOIPL/2008
31 S HOOTING
 1983 – Soviet jets shot down Korean Airlines.
 In 1984 ICAO suggested amendment to Article 3 of the Convention

dealing with general safety of navigation of civil aircraft.
 rules are formed in cases of interception.
 Annexure II of the rules provides that ‘intercepting aircraft should

refrain from the use of weapons in all cases of interception of civil
aircraft.’
KDR/RGSOIPL/2008
32 F LIGHT AT DISTRESS
 A.25 of Chicago Convention – necessary assistance should be given to the

aircraft at distress.
 Such situations use of force will be illegal.
 If an aircraft involved in an act of aggression or terrorism – right of self

defence.
 The force used must be proportionate.
 1988 – shooting of an Iranian civil airliner by US Warship Vincennes.
 Case came before the ICJ in 1989 – finally withdrawn and settled mutually.
KDR/RGSOIPL/2008
33 SHOT
 1996 – Cuban military aircraft shot down two civil aircrafts.
 ICAO reiterated the principles:
 1. non use of force against civil aircraft
 2. lives of persons and safety of the must not be endangered.
 State must prevent the use of civil aircraft inconsistent with the aims
of Convention.
KDR/RGSOIPL/2008
34 I NDIA
 The Indian aviation industry is one of the fastest growing aviation
industries in the world.
 India has 454 airports and airstrips; of these, 16 are designated
international airports.
 Private airlines account for around 75 per cent share of the domestic
aviation market.
 In 2007-08 India has jumped to 9th position in world's aviation
market from 12th in 2006.
 Between May 2007 and May 2008, airlines have carried 25.5 million
domestic and 22.4 million international passengers.
KDR/RGSOIPL/2008
35 H ISTORY
 Post war period – INA, Tata Airways, Bharat Airways, Kalinga Airways
 1953 – nationalization
 1972 – creation if International Airport Authority
 1986 – National Airport Authority
 1994 – Airports Authority of India
 Liberalization of the sector
KDR/RGSOIPL/2008
36
I NDIAN C IVIL AVIATION
P OLICY (D RAFT ) 2000
 Mission: To maintain a competitive civil aviation environment which

ensures safety and security in accordance with international
standards, promotes efficient, cost-effective and orderly growth of
air transport and contributes to social and economic development
of the country.
 Aircraft Act, 1934
 Aircraft Rules, 1937
 Carriage of Dangerous Goods, 2003
KDR/RGSOIPL/2008
S PACE LAW
KDR/RGSOIPL/2008 1
 USSR launched the first earth satellite Sputnik in October 1957.

 Roman Law Principle: “he who owns the land owns it up to the sky”.
 The Committee on the Peaceful Uses of Outer Space was set up by the UN
General Assembly in 1958 with 18 members.
 Now it has 69 Members
 Soviet jurists like Korovin and Zhukov declared that space was res comunis –
common property of mankind.
 Not res nullius – belonged to no one.
 Wilfred Jenks, ICLQ 1957, 99
KDR/RGSOIPL/2008
3 UN INITIATIVES
 Delimitation 50 to 100 miles – air space – space

 A.1 of UN Charter: responsibility for lawmaking to maintain international
peace and security.
 1959 – GA-R. 1472 – International Co-operation in Peaceful Uses of Outer
Space.
 ITU, WMO, ICAO, UNESCO
 The UN appointed an ad hoc Committee on the Peaceful Uses of Outer Space
(COPUOS) under GA Resolution 1348 and 1721 of 1961.
 It declared that outer space and celestial bodies were free for exploration
and use by all states in conformity with the international law.
KDR/RGSOIPL/2008
4 1962
 UN – GA Resolution – 1962- Xvii Adopted in 1963.

 Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space.
 It provided for: use of space for the benefit of al mankind
 Freedom of exploration in accordance with international law.
 Prohibition of national appropriation of space
 International responsibility of states in outer space
 International liability of states for damage and assistance to
astronauts.
KDR/RGSOIPL/2008
5 O UTER SPACE TREATY, 1967
 On June 16, 1966, both the United States and the Soviet Union
submitted draft treaties.
 1967 – Treaty on Principles Governing the Activities of States in

the Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies.
 98 ratifications
 India signed and ratified
 A.1 – freedom of outer space on the basis of equality.
KDR/RGSOIPL/2008
6 O UTER SPACE TREATY
 A.II - Outer space, including the moon and other celestial bodies,
is not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means.
 Prohibition of WMD – A.IV – prohibits the placing of nuclear

weapons in an orbit around the earth.
 The Moon and other celestial bodies shall be used by all States
Parties to the Treaty exclusively for peaceful purposes.
KDR/RGSOIPL/2008
 A.V – stipulates that astronauts as envoys of mankind in outer

space and shall render to them all possible assistance in the event
of accident, distress, or emergency landing on the territory of
another State Party or on the high seas.
 A.VI – liability
 States Parties to the Treaty shall bear international responsibility

for national activities in outer space, including the Moon and other
celestial bodies, whether such activities are carried on by
governmental agencies or by non-governmental entities
KDR/RGSOIPL/2008
 A.VII – liability of launching state
 Each State Party to the Treaty that launches or procures the

launching of an object into outer space, including the Moon and
other celestial bodies, and each State Party from whose territory
or facility an object is launched, is internationally liable for damage
to another State Party.
 A.IX – states shall seek cooperation and assistance from other

states and conduct activities with due regard to the interest of
other states.
KDR/RGSOIPL/2008
9 O UTER S PACE TREATY
 A.X – observation of space programmes on the basis of equality.
 A.XI – obliges states to keep the UN informed of the type of activity

they undertake in space.
 A.XII – Installation in space shall be open to inspection.
 A.XIII – space treaty to inter-governmental organizations and groups

of states.
KDR/RGSOIPL/2008
10 S HORT COMINGS
 The treaty does not provide an international agency like ICAO.
KDR/RGSOIPL/2008
11 R ETURN OF A STRONAUTS
 Agreement on the Rescue of Astronauts, the Return of Astronauts

and the Return of Objects Launched into Outer Space (the "Rescue
Agreement", adopted by the General Assembly in its resolution 2345
(XXII)), opened for signature on 22 April 1968, entered into force on
3 December 1968, 90 ratifications, 24 signatures, and 1 acceptance
of rights and obligations (as of 1 January 2008);
 A.1 – any state receives information about personnel of a spacecraft

have suffered accident or are experiencing conditions of distress or
have made an emergency or unintended landing in territory should
immediately report to the launching authority.
KDR/RGSOIPL/2008
12 R ETURN OF A STRONAUTS
 A.2 – states shall render all assistance to astronauts in distress.
 A.3 – enjoins states to cooperate and help astronauts in difficulty

over the high seas.
 A.4 – astronauts found in any state owing to an accident shall be

returned to the launching state.
 The state should notify the Secretary-General of the United Nations.
KDR/RGSOIPL/2008
13 L IABILITY C ONVENTION
 Convention on International Liability for Damage Caused by Space

Objects (the "Liability Convention", adopted by the General
Assembly in its resolution 2777 (XXVI)), opened for signature on 29
March 1972, entered into force on 1 September 1972, 86
ratifications, 24 signatures, and 3 acceptances of rights and
obligations (as of 1 January 2008);
 liability for damage caused by space objects and to ensure, in

particular, the prompt payment under the terms of this Convention
of a full and equitable measure of compensation to victims of such
damage.
KDR/RGSOIPL/2008
 States (countries) bear international responsibility for all space

objects that are launched within their territory.
 This means that regardless of who launches the space object, if it

was launched from State A’s territory, or from State A’s facility, or
if State A caused the launch to happen, then State A is fully liable
for damages that result from that space object.
 Full liability to the extent of damage.
KDR/RGSOIPL/2008
 Joint Launches:
 A.V - If two states work together to launch a space object, then

both of those states are jointly and severally liable for the damage
that object causes.
 This means that the injured party can sue either of the two states
for the full amount of damage.
KDR/RGSOIPL/2008
 A.XII - The compensation which the launching State shall be liable

to pay for damage under this Convention shall be determined in
accordance with international law and the principles of justice and
equity.
 A.XIV – if the parties are not settling the claims through diplomatic
negotiations, both parties may constitute a claim commission.
KDR/RGSOIPL/2008
17 C OSMOS 954
 However, in 1978, the crash of the nuclear-powered Soviet satellite

Cosmos 954 in Canadian territory nearly led to a claim under the
Convention.
 For these recovery efforts, the Canadian Government billed the

Soviet Union $6,041,174.70 for actual expenses and additional
compensation for future unpredicted expenses; the U.S.S.R.
eventually paid the sum of three million Canadian dollars.
KDR/RGSOIPL/2008
18 S KYLAB
 Launched in 1973
 Skylab crashed in Western Australia the following year, and while

there were no deaths, injuries, or significant damage, the shire of
Esperance, Western Australia did fine the Government of the
United States $400 for littering as a result of Skylab crashing to
earth over Australia.
KDR/RGSOIPL/2008
19 USA 193
 USA 193, also known as NRO launch 21 (NROL-21 or simply L-

21), was an American military spy satellite launched on
December 14, 2006.
 The satellite malfunctioned shortly after deployment, and was

intentionally destroyed 14 months later on February 21, 2008.
KDR/RGSOIPL/2008
20 R EGISTRATION CONVENTION
 Convention on Registration of Objects Launched into Outer Space

(the "Registration Convention", adopted by the General Assembly
in its resolution 3235 (XXIX)), opened for signature on 14 January
1975, entered into force on 15 September 1976, 51 ratifications,
4 signatures, and 2 acceptances of rights and obligations (as of 1
January 2008);
 mandatory system of registering objects launched into outer

space.
KDR/RGSOIPL/2008
21 REGISTRATION
 Each launching State shall maintain a registry for registration of all

space launches and inform the Secretary-General of the United
Nations of the establishment of such a registry.
 Mandatory reporting to the UN Secretary General
KDR/RGSOIPL/2008
22 M OON T REATY
 Agreement Governing the Activities of States on the Moon and Other

Celestial Bodies (the "Moon Agreement", adopted by the General
Assembly in its resolution 34/68), opened for signature on 18 December
1979, entered into force on 11 July 1984, 13 ratifications and 4
signatures (as of 1 January 2008).
 Australia, Austria, Belgium, Chile, Kazakhstan, Lebanon, Mexico,
Morocco, Netherlands, Pakistan, Peru, Philippines, and Uruguay, have
ratified it. France, Guatemala, India and Romania have signed but have
not ratified it.
 As it is non-ratified by any major space-faring powers and unsigned by
most of them, it is of no direct relevance to current space activities.
 India signed not ratified.
KDR/RGSOIPL/2008
23 M OON T REATY
 The treaty makes a declaration that the Moon

(which the treaty notes includes all celestial bodies
for the purposes of language) should be used for the
benefit of all states and all peoples of the
international community.
 It also expresses a desire to prevent the Moon from
becoming a source of international conflict. To those
ends the treaty:
KDR/RGSOIPL/2008
24 M OON T REATY
 Bans any military use of celestial bodies, including weapon testing or as

military bases.
 Bans all exploration and uses of celestial bodies without the approval or
benefit of other states.
 Requires that the Secretary-General must be notified of all celestial
activities.
 Declares all states have an equal right to conduct research on celestial
bodies.
 Declares that for any samples obtained during research activities, the
state that obtained them must consider making part of it available to all
countries/scientific communities for research.
KDR/RGSOIPL/2008
25 M OON T REATY
 Bans altering the environment of celestial bodies and requires that

states must take measures to prevent accidental contamination.
 Bans any state from claiming sovereignty over any territory of

celestial bodies.
 Requires all resource extraction and allocation be made by an

international regime for exploitation of natural resources.
 A.11 – the moon and its natural resources are the common heritage
of mankind.
KDR/RGSOIPL/2008
26 DTB
 Direct Television Broadcasting
 The UN drafted some principles according to GA Res. 2916 of

1972.
 India put up a working draft – 1981
 Application of international law to DTB
 Copyright and neighbouring rights.
KDR/RGSOIPL/2008
27 R EMOTE SENSING
 Argentina put up first proposal in 1970
 1975 – COPUOS formed principles – serious differences
 Principles adopted in 1986
 Declaration of Principles Regarding the Remote Sensing of Earth from

Space, 1986.
 Remote Sensing: the sensing of the Earth's surface from space by making
use of the properties of electromagnetic waves emitted, reflected or
diffracted by the sensed objects, for the purpose of improving natural
resources management, land use and the protection of the environment.
KDR/RGSOIPL/2008
28 R EMOTE SENSING
 The term "primary data" means the raw data that are
acquired by remote sensors borne by a space object and that
are transmitted or delivered to the ground.
 The term "processed data" means the products resulting from
the processing of the primary data.
 Principle II - Remote sensing activities shall be carried out for
the benefit and in the interests of all countries, irrespective of
their degree of economic, social or scientific and
technological development.
KDR/RGSOIPL/2008
29 R EMOTE SENSING
 P.III - Remote sensing activities shall be conducted in accordance

with international law,
 including the Charter of the United Nations, the Treaty on Principles

Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies etc.
 P.IV - These activities shall be conducted on the basis of respect for

the principle of full and permanent sovereignty of all States and
peoples over their own wealth and natural resources, with due
regard to the rights and interests, in accordance with international
law, of other States and entities under their jurisdiction.
KDR/RGSOIPL/2008
30 R EMOTE SENSING
 P.V – International Co-operation
 P.VII - States participating in remote sensing activities shall make

available technical assistance to other interested States on mutually
agreed terms.
 P.XI - Remote sensing shall promote the protection of mankind from

natural disasters.
 P. XII - As soon as the primary data and the processed data

concerning the territory under its jurisdiction are produced, the
sensed State shall have access to them on a non-discriminatory
basis and on reasonable cost terms.
KDR/RGSOIPL/2008
31 S HARING OF ORBIT
 Geostationary orbit - 22,400 miles (36,000 KM) above equator.
 Space debris issue?
KDR/RGSOIPL/2008
32 T HANK YOU
KDR/IIT KGP/RGSOIPL/-2008
H UMANITARIAN L AW
KDR/RGSOIPL/2008 1
2 H ISTORY
 First there were unwritten rules based on customs that regulated

armed conflicts.
 Then bilateral treaties (cartels) drafted in varying degrees of detail

gradually came into force.
 The belligerents sometimes ratified them after the fighting was

over.
 There were also regulations which States issued to their troops.
 The rules also varied depending on the period, place, morals and
civilization.
KDR/RGSOIPL/2008
3 H ISTORY
 Developed in the middle of the 19th century.
 1864 – Henry Dunant, work on the subject and adoption of the

Geneva Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field.
 1868 - Declaration of St.Petersburg – prohibited the use of small

explosive or incendiary projectiles.
 1899 – 1907 – Hague Conferences
KDR/RGSOIPL/2008
4 F IRST CONVENTION
 The Swiss government, at the prompting of the five founding members of the
ICRC, convened the 1864 Diplomatic Conference, which was attended by 16
States who adopted the Geneva Convention for the amelioration of the
condition of the wounded in armies in the field.
 The 1864 Geneva Convention laid the foundations for contemporary
humanitarian law. It was chiefly characterized by:
 standing written rules of universal scope to protect the victims of conflicts;
 its multilateral nature, open to all States;
 the obligation to extend care without discrimination to wounded and sick
military personnel;
 respect for and marking of medical personnel, transports and equipment
using an emblem (red cross on a white background).
KDR/RGSOIPL/2008
5 H UMANITARIAN LAW
 International humanitarian law is a set of rules which seek, for

humanitarian reasons, to limit the effects of armed conflict.
 It protects persons who are not or are no longer participating in the
hostilities and restricts the means and methods of warfare.
 International humanitarian law is also known as the law of war or the
law of armed conflict.
 the law of Geneva, which is designed to safeguard military personnel
who are no longer taking part in the fighting and people not actively
involved in hostilities, i.e. civilians;
 the law of The Hague (1907), which establishes the rights and
obligations of belligerents in the conduct of military operations, and
limits the means of harming the enemy.
KDR/RGSOIPL/2008
6 A RMED CONFLICT
 An international armed conflict means fighting between the armed

forces of at least two States (it should be noted that wars of national
liberation have been classified as international armed conflicts.
 A non-international armed conflict means fighting on the territory of
a State between the regular armed forces and identifiable armed
groups, or between armed groups fighting one another.
 To be considered a non-international armed conflict, fighting must
reach a certain level of intensity and extend over a certain period of
time.
KDR/RGSOIPL/2008
7
KDR/RGSOIPL/2008
8
G ENEVA C ONVENTIONS FROM
1948
 First Geneva Convention "for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field" (first adopted in 1864,
last revision in 1949).
 Second Geneva Convention "for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first
adopted in 1906).
 Third Geneva Convention "relative to the Treatment of Prisoners of War"
(first adopted in 1929, last revision in 1949).
 Fourth Geneva Convention "relative to the Protection of Civilian Persons
in Time of War" (first adopted in 1949, based on parts of the 1907 Hague
Convention IV).
KDR/RGSOIPL/2008
9 PROTOCOLS
 In addition, there are three additional amendment protocols to the Geneva

Conventions:
 Protocol I (1977): Protocol Additional to the Geneva Conventions of 12
August 1949, relating to the Protection of Victims of International Armed
Conflicts. As of 12 January 2007, it had been ratified by 167 countries.
 Protocol II (1977): Protocol Additional to the Geneva Conventions of 12
August 1949, relating to the Protection of Victims of Non-International Armed
Conflicts. As of 12 January 2007, it had been ratified by 163 countries.
 Protocol III (2005): Protocol Additional to the Geneva Conventions of 12
August 1949, relating to the Adoption of an Additional Distinctive Emblem. As
of June 2007, it had been ratified by 17 countries and signed but not yet
ratified by an additional 68 countries.
KDR/RGSOIPL/2008
10 G ENEVA CONVENTIONS
 Modern International Humanitarian Law is made up of two

historical streams: the law of The Hague referred to in the past as
the law of war proper and the law of Geneva or humanitarian law.
 The two streams take their names from a number of international
conferences which drew up treaties relating to war and conflict, in
particular the Hague Conventions of 1899 and 1907, and the
Geneva Conventions, the first which was drawn up in 1863.
 Both are branches of jus ad bellum (the law of use of force),
international law regarding acceptable practices while engaged in
war and armed conflict.
KDR/RGSOIPL/2008
11 CONVENTIONS
 The Geneva Conventions are the result of a process that

developed in a number of stages between 1864 and 1949 which
focused on the protection of civilians and those who can no
longer fight in an armed conflict.
 As a result of World War II, all four conventions were revised
based on previous revisions and partly on some of the 1907
Hague Conventions and readopted by the international
community in 1949.
 Later conferences have added provisions prohibiting certain
methods of warfare and addressing issues of civil wars.
KDR/RGSOIPL/2008
12 B ASIC RULES
 combatants and those not taking part in hostilities shall be

protected and treated humanely.
 It is forbidden to kill or injure an enemy who surrenders or who is
hors de combat.
 The wounded and sick shall be cared for and protected by the
party to the conflict which has them in its power.
 Captured combatants and civilians must be protected against acts
of violence and reprisals.
 They shall have the right to correspond with their families and to
receive relief.
KDR/RGSOIPL/2008
13 B ASIC RULES
 No one shall be subjected to torture, corporal punishment

or cruel or degrading treatment.
 Parties to a conflict and members of their armed forces do
not have an unlimited choice of methods and means of
warfare.
 Parties to a conflict shall at all times distinguish between the
civilian population and combatants.
 Attacks shall be directed solely against military objectives
KDR/RGSOIPL/2008
14 R ED C ROSS
 Well-known examples of such rules include the prohibition on

attacking doctors or ambulances displaying a Red Cross. It is also
prohibited to fire at a person or vehicle bearing a white flag, since
that indicates an intent to surrender or a desire to communicate.
 In either case, the persons protected by the Red Cross or white flag
are expected to maintain neutrality, and may not engage in warlike
acts; in fact, engaging in war activities under a white flag or red
cross is itself a violation of the laws of war.
KDR/RGSOIPL/2008
15 F UNDAMENTAL PRINCIPLES
 In 1899, Fyodor Martens laid down that civilians and combatants

remain under the protection and authority of the principles of
international law derived from established custom,
 Rousseau and Martens established principles of humanity, only

legitimate object which States should endeavour to accomplish
during war is to weaken the military forces of the enemy;
 The Additional Protocols of 1977 reaffirmed and elaborated on

these principles.
KDR/RGSOIPL/2008
16 I MPLEMENTATION
 Only States may become party to international treaties, and thus to the
Geneva Conventions and their Additional Protocols.
 However, all parties to an armed conflict whether States or non-State
actors are bound by international humanitarian law.
 At the end of 2003, almost all the world's States - 191, - were party to the
Geneva Conventions.
 The fact that the treaties are among those accepted by the greatest
number of countries testifies to their universality.
 In the case of the Additional Protocols, 161 States were party to Protocol I
and 156 to Protocol II by the same date.
KDR/RGSOIPL/2008
17 G ENEVA CONVENTIONS
 1949 – protection of war victims

 Cover the wounded and sick in land warfare;
 The wounded, sick and shipwrecked in warfare at sea;
 Prisoners of war and civilians.
 It applicable to all declared war or any other armed conflict.
 Use of violence against person is strictly prohibited.
 Torture or biological experimentation is prohibited.
 Not to left without medical assistance.
KDR/RGSOIPL/2008
18
S ECOND G ENEVA
CONVENTION
 Condition of Wounded Sick and Shipwrecked Members of Armed

Forces at Sea
 Same principles applied in sea also.
 1977 - Protocols
KDR/RGSOIPL/2008
19
T HIRD G ENEVA CONVENTION
1949
 Prisoners of war.
 Armed personnel of army
 Other militias
 Conditions:
 1. to be commanded by a person who is responsible for his subordinates
 2. to be a distinctive emblem recognizable from a distance.
 3. Arms carried openly
 4. operations in accordance with customs of war
KDR/RGSOIPL/2008
20 P RISONERS OF WAR
 Organised resistance groups or movements
 All organised armed units under an effective command structure.
 A person who takes part in hostilities and falls into the power of
an adverse party ‘ shall be presumed to be a prisoner of war and
therefore shall be protected by the Third Convention.
KDR/RGSOIPL/2008
21
T REATMENT OF PRISONERS
OF WAR
 Humanely treated and protected.

 Showing in TV or confessing to the crime or criticizing their own
government must be regarded as a breach of the Convention.
 Reprisals against prisoners of war are prohibited.
 A.17 – no physical or mental torture
 A.23 – to be shifted to safe area.
 Medical treatment, religious activities, contact with the exterior.
 Only applicable to international armed conflict.
KDR/RGSOIPL/2008
22 4 TH G ENEVA CONVENTION
 Protection of civilians in time of war.

 A.50(1) of Protocol – I – 1977 – a civilian is defined as any person not a
combatant.
 Protection from torture, inhuman treatment, hostage taking and reprisals.
 Applies to declared war or any other armed conflict.
 A.49 – prohibits mass forcible transfers
 A.52 – civil objects are not to be the object of attack or of reprisals.
 A.70 – protected persons shall not be arrested.
 All Geneva principles are ‘intransgressible principles of international law.’
 Legality of the Threat or use of Nuclear Weapons case, ICJ, 1996.
KDR/RGSOIPL/2008
23 I NTERNATIONAL CONFLICTS
 Humanitarian law is intended principally for the parties to the conflict and
protects every individual or category of individuals not or no longer actively
involved in the conflict, i.e.:
 wounded or sick military personnel in land warfare, and members of the
armed forces' medical services;
 wounded, sick or shipwrecked military personnel in naval warfare, and
members of the naval forces' medical services;
 prisoners of war;
 the civilian population, for example:
 foreign civilians on the territory of parties to the conflict, including refugees;
 civilians in occupied territories;
 civilian detainees and internees;
 medical and religious personnel or civil defence units.
KDR/RGSOIPL/2008
N ON - INTERNATIONAL ARMED CONFLICTS
24
 Humanitarian law is intended for the armed forces, whether regular or not,
taking part in the conflict, and protects every individual or category of
individuals not or no longer actively involved in the hostilities, for example:
wounded or sick fighters;
 people deprived of their freedom as a result of the conflict;
 the civilian population;
 medical and religious personnel.
 International humanitarian law does not apply to situations of violence not
amounting in intensity to an armed conflict.
 Cases of this type are governed by the provisions of human rights law and
such measures of domestic legislation as may be invoked.
KDR/RGSOIPL/2008
25 N ON INTERNATIONAL
 Tadic case – ICJ - individual responsibility on crime against

humanity.
 The Appeal Chamber of the International Tribunal on War Crimes
in Former Yugoslavia – refused to accept a narrow interpretation
of geographical and temporal definition of armed conflicts
whether international or internal.
 Armed force between governmental authorities and organised
armed groups.
 Nicaragua case – control over the activity is necessary for the
responsibility.
KDR/RGSOIPL/2008
26 U SE OF WEAPONS
 A.35 of Additional Protocol –I ‘it is prohibited to employ arms,

projectiles and material and methods of warfare of a nature to cause
superfluous injury or unnecessary sufferings.’
 Customary law – 1899 Hague declarations 2 (Asphyxiating Gases)
 Geneva Gas Protocol - 1925 prohibits use of poisonous or other gases.
 Hague declarations 3 – (Expanding bullets – dum-dum bullets)
 Protocol IV on Laser weapons 1995
 Landmines convention 1997.
 Reprisal must not target civilians or be disproportionate.
KDR/RGSOIPL/2008
27 N UCLEAR W EAPONS
 No treaty specifically prohibits the use of nuclear weapons – but

IHL equally applies to nuclear weapon use.
 Nuclear Weapons (advisory opinion) 1996.
 Biological Weapon convention 1972
 Chemical Weapons Convention 1993.
KDR/RGSOIPL/2008
H UMAN RIGHTS LAW
KDR/RGSOIPL/2008 28
29
H UMANITARIAN LAW
HUMAN RIGHTS LAW
 International humanitarian law and international human rights law (hereafter
referred to as human rights) are complementary.
 Both strive to protect the lives, health and dignity of individuals, albeit from a
different angle.
 Humanitarian law applies in situations of armed conflict whereas human
rights, or at least some of them, protect the individual at all times, in war and
peace alike.
 However, some human rights treaties permit governments to derogate from
certain rights in situations of public emergency.
 No derogations are permitted under IHL because it was conceived for
emergency situations, namely armed conflict.
KDR/RGSOIPL/2008
30
H UMAN RIGHTS
HUMANITARIAN LAWS
 Humanitarian law aims to protect people who do not or are no longer

taking part in hostilities.
 The rules embodied in IHL impose duties on all parties to a conflict.
 Human rights, being tailored primarily for peacetime, apply to everyone.
 Their principal goal is to protect individuals from arbitrary behaviour by

their own governments.
 Human rights law does not deal with the conduct of hostilities.
KDR/RGSOIPL/2008
31 H UMAN RIGHTS INSTRUMENTS
 Universal instruments
 the Universal Declaration of Human Rights, adopted by the UN General
Assembly in 1948
 the Convention on the Prevention and Punishment of the Crime of Genocide of

1948
 the International Covenant on Civil and Political Rights of 1966
 the Convention on the Elimination of All Forms of Discrimination against

Women of 1981
 the Convention against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment of 1984
 Convention on the Rights of the Child of 1989
KDR/RGSOIPL/2008
32 H UMAN RIGHTS INSTRUMENTS
 Regional instruments
 the European Convention on Human Rights of 1950
 the American Convention on Human Rights of 1969
 the African Charter of Human and Peoples Rights of 1981
KDR/RGSOIPL/2008
33 UDHR, 1948
 The United Nations Charter "reaffirmed faith in fundamental human

rights, and dignity and worth of the human person" and committed all
member states to promote "universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to
race, sex, language, or religion (A.56).
 The Declaration arose directly from the experience of the Second World
War and represents the first global expression of rights to which all
human beings are inherently entitled.
 It consists of 30 articles which have been elaborated in subsequent
international treaties, regional human rights instruments, national
constitutions and laws.
KDR/RGSOIPL/2008
34 PREAMBLE
 freedom of speech and belief,
 and freedom from fear and want have been "proclaimed as the highest
aspiration" of the people.
 The third paragraph states that so that people are not compelled to
rebellion against tyranny, human rights should be protected by rule of law.
 The fourth paragraph relates human rights to the development of friendly

relations between nations. The fifth paragraph links the Declaration back
to the United Nations Charter which reaffirms faith in fundamental human
rights and dignity and worth of the human person.
KDR/RGSOIPL/2008
35 PREAMBLE
 The sixth paragraph notes that all members of the United

Nations have pledged themselves to achieve, in cooperation
with the United Nations, the promotion of universal respect
for and observance of human rights and fundamental
freedoms.
 The seventh paragraph observes that "a common
understanding" of rights and freedoms is of "the greatest
importance" for the full realization of that pledge.
 10 December and is known as Human Rights Day or
International Human Rights Day.
KDR/RGSOIPL/2008
36 O RIGIN
 Magna Carta 1215.
 It explicitly protected certain rights of the King's subjects,

whether free or fettered — most notably the writ of habeas
corpus, allowing appeal against unlawful imprisonment.
 1689 - The Bill of Rights of the United Kingdom is largely a

statement of certain rights to which citizens and permanent
residents of a constitutional monarchy were thought to be
entitled in the late 17th century, asserting subjects' right to
petition the monarch, as well as to bear arms in defence.
KDR/RGSOIPL/2008
37 PRINCIPLES
 1948 United Nations Universal Declaration of Human Rights

(UDHR) identifies human rights as being held by all people
equally, universally, and forever.
 Those rights are interdependent, inalienable and indivisible.
 Interdependence, for example, means that an individual's right
to free expression and to participation in government is directly
affected by rights to the physical necessities of life, to education,
to free association and non-interference by police or other
agencies.
KDR/RGSOIPL/2008
38 P RINCIPLES
 Inalienability means that those rights are innate: a person cannot

lose those rights and cannot be denied a right because it is "less
important" or "non-essential."
Article 29: duties -
 In the exercise of his rights and freedoms, everyone shall be

subject only to such limitations as are determined by law solely for
the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic
society.
KDR/RGSOIPL/2008
CIVIL , POLITICAL AND
39 OTHER RIGHTS
 civil and political rights
 economic, social and cultural rights
 although distinctions are often unclear and particular rights might

appear in either class.
KDR/RGSOIPL/2008
EQUITY
40
 All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.
 with entitlement to rights and freedoms
 without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status
 and without distinction on the basis of the political, jurisdictional or
international status of the country or territory to which a person
belongs.
KDR/RGSOIPL/2008
41 E QUITY
 Articles 7 and 8 of the UDHR declare that
 All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this
Declaration and against any incitement to such discrimination.
Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights
granted by the constitution or by law.
KDR/RGSOIPL/2008
42 E QUITY
 The emphasis on equity means it is unsurprising that Article 16 of

the UDHR states that
 Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a
family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution.
KDR/RGSOIPL/2008
43 S OCIAL SECURITY
 The UDHR indicates that everyone, as a member of society, has the

right to social security and
 is entitled to realization, through national effort and international

co-operation and in accordance with the organization and resources
of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his
personality.
KDR/RGSOIPL/2008
LIBERTY
44
 The UDHR indicates that everyone has the right to "life, liberty
and security of person", with explicit prohibition of slavery. Article
5 indicates that no one shall "be subjected to torture or to cruel,
inhuman or degrading treatment or punishment",
KDR/RGSOIPL/2008
45 P RIVACY
 most traditionally in the form of non-interference - is a salient human right.

Article 12 of the UDHR for example states that:
 No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference
or attacks.
 UDHR Article 13 stating that everyone has a right to freedom of movement
and residence within the borders of each state, along with the right to leave
any country, including his own, and to return to his country.
 Article 15 should not be arbitrarily deprived of nationality nor denied the
right to change nationality. Everyone has the right to seek and, more
contentiously, to enjoy in other countries asylum from persecution.
KDR/RGSOIPL/2008
46 THOUGHT AND EXPRESSION
 Article 18 indicates that:

 Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief,
and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief in teaching,
practice, worship and observance.
 Article 19 of the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and
to seek, receive and impart information and ideas through any
media and regardless of frontiers.
KDR/RGSOIPL/2008
PARTICIPATION AND
47 ASSOCIATION
 The UDHR indicates that all have a right to freedom of peaceful assembly
and association; no one may be compelled to belong to an association.
Under Article 21 everyone has the right to
 take part in the government of his country, directly or through freely
chosen representatives
 equal access to public service in his country.
 The UDHR seeks expression of the will of the people as the basis of
government authority through "periodic and genuine elections" on the
basis of universal and equal suffrage. That aspiration has not, alas, been
met in roughly half the world.
KDR/RGSOIPL/2008
LIVELIHOOD
48
 Consistent with aspirations to realisation of "economic, social and

cultural rights" the UDHR indicates that everyone has the right to
 work, to free choice of employment, to just and favourable

conditions of work and to protection against unemployment.
 equal pay for equal work
 form and to join trade unions for the protection of his interests
 rest and leisure, including reasonable limitation of working hours

and periodic holidays with pay
KDR/RGSOIPL/2008
49 L IVELIHOOD
 everyone who works has the right to just and favourable

remuneration ensuring for that individual and family "an existence
worthy of human dignity". That remuneration should be
"supplemented, if necessary, by other means of social protection",
 everyone has the right to a standard of living adequate for the

health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services,
and the right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
KDR/RGSOIPL/2008
EDUCATION , CULTURE ,
50 CREATIVITY
 Article 26 of the UDHR identifies a salient right to education,

"directed to the full development of the human personality".
KDR/RGSOIPL/2008
I NTERNATIONAL C OVENANT
51 ON C IVIL AND P OLITICAL
R IGHTS , 1976
 The International Covenant on Civil and Political Rights (ICCPR
) is a United Nations treaty based on the Universal Declaration
of Human Rights, created in 1966 and entered into force on 23
March 1976. Nations that have signed this treaty are bound by
it.
 The International Covenant on Civil and Political Rights is

monitored by the Human Rights Committee , elected by
member states,
KDR/RGSOIPL/2008
52 C ONVENTION PROVISIONS
 Five categories
 Protection on individual's physical integrity (against things such as execution, torture, and arbitrary
arrest).
 Procedural fairness in law (rule of law, rights upon arrest, trial, basic conditions must be met when
imprisoned, rights to a lawyer, impartial process in trial).
 Protection based on gender, religious, racial or other forms of discrimination.
 Individual freedom of belief, speech, association, freedom of press, right to hold assembly.
 Right to political participation (organise a political party, vote, voice contempt for current political
authority).
 Two optional protocols
 Mechanism by which individuals can launch complaints against member states.
 Abolition of the death penalty.
KDR/RGSOIPL/2008
T ERRORISM
KDR/RGSOIPL/2008 53
54 TERRORISM
 Terrorist acts may occur during armed conflicts or in time of peace.

As international humanitarian law applies only in situations of
armed conflict, it does not regulate terrorist acts committed in
peacetime.
 In addition to an express prohibition of all acts aimed at spreading

terror among the civilian population (Art. 51, para. 2, Protocol I;
and Art. 13, para. 2, Protocol II).
KDR/RGSOIPL/2008
55 TERRORISM
 attacks on civilians and civilian objects (Arts. 51, para. 2, and 52, Protocol
I; and Art. 13, Protocol II);
 indiscriminate attacks (Art. 51, para. 4, Protocol I);
 attacks on places of worship (Art. 53, Protocol I; and Art. 16, Protocol II);
 attacks on works and installations containing dangerous forces (Art. 56,
Protocol I; and Art. 15, Protocol II);
 the taking of hostages (Art. 75, Protocol I; Art. 3 common to the four
Conventions; and Art. 4, para. 2b, Protocol II);
 murder of persons not or no longer taking part in hostilities (Art. 75,
Protocol I; Art. 3 common to the four Conventions; and Art. 4, para. 2a,
Protocol II).
KDR/RGSOIPL/2008
56 T ERRORISM
 Crimes Against Humanity It has been argued that the fact that the
typical terrorist attack is not generally a widespread or systematic
attack probably means that many acts of terrorism would not be
found to qualify as a crime against humanity, even though a
terrorist act often involves murder or other attack directed against
a civilian population.
 Even if it does , there is some difficulty pinpointing at which stage

it becomes widespread enough to constitute such a crime.
KDR/RGSOIPL/2008
57 WAR ON TERROR
 1937 – League of Nations – Convention on the Prevention and

Punishment of Terrorism.
 Never entered into force due to World War.
KDR/RGSOIPL/2008
58 G ENOCIDE
 Genocide Terrorist acts encompass many of the same elements

that the Rome Statute proscribes under its definition of
Genocide, such as killing or causing serious bodily or mental harm
to members of a specific group of people.
KDR/RGSOIPL/2008
59 WAR CRIMES
 War Crimes – War crimes can involve various different acts. However
there must an Armed Conflict of an International Character or non-
international Character –
 “armed conflicts not of an international character” does not include

situations of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a similar nature.
 “Intentionally directing attacks against the civilian population/individual

civilians/civilian objects/personnel installations etc involved in
humanitarian assistance. [See ICC statute Article 5].
KDR/RGSOIPL/2008
P ROSECUTOR V. G ALIC (C ASE NO . IT-
60
98-29-T) (D ECEMBER 5, 2003)
 where General Galic was convicted of Violations of the Laws or

Customs of War (acts of violence the primary purpose of which is
to spread terror among the civilian population, as set forth in
Article 51 of Additional Protocol I to the Geneva Conventions of
1949) under Article 3 of the Statute of the Tribunal.
 The conviction was connected with conducting a campaign of

sniping and shelling attacks on the civilian population of Sarajevo,
causing death and injury to civilians, with the primary purpose of
spreading terror among the civilian population between
September 1992 and August 1994.
KDR/RGSOIPL/2008
61 J URISDICTION
 (a) War Crimes – there must be an international or non-

international conflict
 (b) Crimes against Humanity/Genocide involve questions of scale

and
 magnitude, systemisation, and organisation which might not

catch manifestation of modern “international terrorism”
 (c) These crimes have not been designed to catch global

terrorism in the form in which it may more routinely manifest
itself.
KDR/RGSOIPL/2008
62 I NTERNATIONAL CRIME
 The behaviour must be universally recognised as/agreed to be

criminal;
 - The behaviour must be recognised as/agreed to be a
 (a) grave/serious matter/crime
 (b) be a crime of international concern;
KDR/RGSOIPL/2008
KDR/RGSOIPL/2008
64
KDR/RGSOIPL/2008
65
KDR/RGSOIPL/2008
66
N UCLEAR TERRORISM
CONVENTION , 2005
 Nuclear Terrorism..\ICC\financing concention - 1999.pdf Convention:

International Convention for the Suppression of Acts of Nuclear
Terrorism, 2005.
 The Nuclear Terrorism Convention calls for states to develop
appropriate legal frameworks criminalizing nuclear terrorism-related
offenses, investigate alleged offenses, and, as appropriate, arrest,
prosecute, or extradite offenders.
 It also calls for international cooperation with nuclear terrorism
investigations and prosecutions, through information-sharing,
extradition and the transfer of detainees to assist with foreign
investigations and prosecutions.
KDR/RGSOIPL/2008
67
N UCLEAR TERRORISM
CONVENTION , 2005
 While its initial Russian draft was proposed in 1997, the Nuclear
Terrorism Convention is the first anti-terrorism convention
adopted since the attacks of Sept. 11, 2001.
 The treaty opens for signature Sept. 14, 2005 and enters into
force thirty days after it is signed and ratified by at least 22
states.
KDR/RGSOIPL/2008
68 T HANK YOU
Non Proliferation of nuclear
weapons
Dr. Raju KD
IIT Kharagpur
West Bengal
NPT, 1968
 The NPT is a landmark international treaty whose objective
is to prevent
 the spread of nuclear weapons and weapons technology,
 to promote cooperation in the peaceful uses of nuclear
energy and to further the goal of
 achieving nuclear disarmament and general and complete
disarmament.
 The Treaty represents the only binding commitment in a
multilateral treaty to the goal of disarmament by the
nuclear-weapon States.
NPT
 Opened for signature in 1968, the Treaty entered into
force in 1970.
 On 11 May 1995, the Treaty was extended indefinitely.
 A total of 190 parties have joined the Treaty, including
the five nuclear-weapon States.
 More countries have ratified the NPT than any other
arms limitation and disarmament agreement, a
testament to the Treaty's significance.
Not signed
 Only four recognized sovereign states are not parties to
the treaty: India, Israel, Pakistan and North Korea.
 India and Pakistan both possess and have openly
tested nuclear bombs.
 Israel has have a nuclear policy.
 North Korea acceded to the treaty, violated it, and later
withdrew.
Provisions
 These five NWS agree not to transfer "nuclear weapons
or other nuclear explosive devices" and "not in any way
to assist, encourage, or induce" a non-nuclear weapon
state (NNWS) to acquire nuclear weapons (Article I).
 NNWS parties to the NPT agree not to "receive,"
"manufacture" or "acquire" nuclear weapons or to
"seek or receive any assistance in the manufacture of
nuclear weapons" (Article II).
Provisions
 NNWS parties also agree to accept safeguards by the
International Atomic Energy Agency (IAEA) to verify
that they are not diverting nuclear energy from
peaceful uses to nuclear weapons or other nuclear
explosive devices (Article III).
 This has been cited as a major issue in the Indo-US
civilian nuclear agreement as India has not offered
unrestricted access to its nuclear facilities.
Non use
 The five NWS parties have made undertakings not to
use their nuclear weapons against a non-NWS party
except in response to a nuclear attack, or a
conventional attack in alliance with a Nuclear
Weapons State.
 However, these undertakings have not been
incorporated formally into the treaty, and the exact
details have varied over time.
 The U.S. also had nuclear warheads targeted at North
Korea, a non-NWS state, from 1959 until 1991.
Disarmament
 The NPT's preamble contains language affirming the
desire of treaty signatories to ease
 international tension and
 strengthen international trust so as to create someday
the conditions for a halt to the production of nuclear
weapons,
 and treaty on general and complete disarmament that
liquidates, in particular, nuclear weapons and their
delivery vehicles from national arsenals.
Arms race
 On the one hand, the wording of Article VI arguably
imposes only a vague obligation on all NPT signatories
to move in the general direction of nuclear and total
disarmament,
 saying, "Each of the Parties to the Treaty undertakes to
pursue negotiations in good faith on effective
measures relating to cessation of the nuclear arms race
at an early date and to nuclear disarmament, and on a
treaty on general and complete disarmament
Peaceful use of nuclear energy
 The third pillar allows for and agrees upon the transfer
of nuclear technology and materials to NPT signatory
countries for the development of civilian nuclear
energy programs in those countries,
 as long as they can demonstrate that their nuclear
programs are not being used for the development of
nuclear weapons.
Peaceful use of nuclear energy
 The treaty recognizes the inalienable right of sovereign
states to use nuclear energy for peaceful purposes,
 but restricts this right for NPT parties to be exercised
"in conformity with Articles I and II" (the basic
nonproliferation obligations that constitute the "first
pillar" of the Treaty).
Important provisions
 Article I: Each nuclear-weapons state (NWS) undertakes
not to transfer, to any recipient, nuclear weapons, or other
nuclear explosive devices, and not to assist any non-nuclear
weapon state to manufacture or acquire such weapons or
devices.
 Article II: Each non-NWS party undertakes not to receive,
from any source, nuclear weapons, or other nuclear
explosive devices;
 not to manufacture or acquire such weapons or devices;
 and not to receive any assistance in their manufacture.
Safeguard agreements
 Article III: Each non-NWS party undertakes to conclude an
agreement with the IAEA for the application of its
safeguards to all nuclear material in all of the state's
peaceful nuclear activities and to prevent diversion of such
material to nuclear weapons or other nuclear explosive
devices.
 Article IV: 1. Nothing in this Treaty shall be interpreted as
affecting the inalienable right of all the Parties to the
Treaty to develop research, production and use of nuclear
energy for peaceful purposes without discrimination and in
conformity with Articles I and II of this Treaty.
Disarmament
 Article VI. The states undertake to pursue
"negotiations in good faith on effective measures
relating to cessation of the nuclear arms race at an
early date and to nuclear disarmament", and towards a
"Treaty on general and complete disarmament under
strict and effective international control".
 Article X. Establishes the right to withdraw from the
Treaty giving 3 months' notice. It also establishes the
duration of the Treaty (25 years before 1995 Extension
Initiative).
Non signatory nuclear powers
 Three states—India, Israel, and Pakistan-declined to sign
the treaty.
 India and Pakistan are confirmed nuclear powers, and
Israel has a long-standing policy of deliberate ambiguity.
 These countries argue that the NPT creates a club of
"nuclear haves" and a larger group of "nuclear have-nots"
by restricting the legal possession of nuclear weapons to
those states that tested them before 1967,
 but the treaty never explains on what ethical grounds such
a distinction is valid.
Nuclear tests
 India having first nuclear testing in 1974 and Pakistan
following suit in 1998 in response to another Indian test.
 India is estimated to have enough fissile material for more
than 150 warheads.
 Pakistan reportedly has between 80 and 120 warheads
according to the former head of its strategic arms division.
 In early March 2006, India and the United States finalized a
deal, having critics in both countries, to provide India with
US civilian nuclear technology.
Leaving NPT
 Article X allows a state to leave the treaty if
"extraordinary events, related to the subject matter of
this Treaty, have jeopardized the supreme interests of
its country", giving three months' (ninety days')
notice. The state is required to give reasons for leaving
the NPT in this notice.
North Korea
 In 1993, North Korea gave notice to withdraw from the
NPT. However, after 89 days.
 North Korea reached agreement with the United
States to freeze its nuclear program under the Agreed
Framework and "suspended" its withdrawal notice.
 In October 2002, the United States accused North
Korea of violating the Agreed Framework by pursuing
a secret uranium enrichment program, and suspended
shipments of heavy fuel oil under that agreement.
Comprehensive Nuclear Test Ban Treaty (CTBT)
 Opened for signature at New York: 24 September 1996.
 Not yet in force
 need for continued systematic and progressive efforts
to reduce nuclear weapons globally, with the ultimate
goal of eliminating those weapons, and of general and
complete disarmament under strict and effective
international control.
Nuclear explosions
 A.1 - Each State Party undertakes not to carry out any
nuclear weapon test explosion or any other nuclear
explosion, and to prohibit and prevent any such nuclear
explosion at any place under its jurisdiction or control.
 States Parties hereby establish the Comprehensive Nuclear
Test-Ban Treaty Organization (hereinafter referred to as
"the Organization") to achieve the object and purpose of
this Treaty, to ensure the implementation of its provisions,
including those for international verification of compliance
with it, and to provide a forum for consultation and
cooperation among States Parties.
CTBT
 seat of the Organization shall be Vienna, Republic of
Austria.
Indian Nuclear Programme
 In the 1950s, the United States helped India develop
nuclear energy under the Atoms for Peace program.
 The United States built a nuclear reactor for India,
provided nuclear fuel for a time, and allowed Indian
scientists study at U.S. nuclear laboratories.
 In 1968, India refused to sign the NPT, claiming it was
biased.
Indian nuclear programme
 In 1974, India tested its first nuclear bomb, showing it
could develop nuclear weapons with technology
transferred for peaceful purposes.
 As a result, the United States isolated India for twenty-
five years, refusing nuclear cooperation and trying to
convince other countries to do the same.
 But since 2000, the United States has moved to build a
"strategic partnership" with India, increasing
cooperation in fields including spaceflight, satellite
technology, and missile defense.
US – India relationship
 2005 - Joint statement between President Bush and
Indian Prime Minister Mr. Manmohan Singh.
 2006 - Hyde Act, 2006 - United States- India Peaceful
Atomic Energy Cooperation Act of 2006’.’
 2007 - Agreement for Cooperation Between the
Government of the United States of America and
the Government of India Concerning Peaceful uses of
Nuclear Energy (123 agreement).
 2008 August - IAEA's Board of Governors approved an
India-specific safeguards agreement.
US – India Nuclear deal
 2008 - September 6, the 45-nation NSG granted the waiver to India on
allowing it to access civilian nuclear technology and fuel from other
countries.
 28 September 2008 - The US House of Representatives passed the Bill.
 On October 1, 2008 the US Senate also approved the civilian nuclear
agreement allowing India to purchase nuclear fuel and technology
from the United States.
 on October 8, 2008 - U.S. President, George W. Bush, signed the
legislation on the Indo-US nuclear deal, approved by the U.S. Congress,
into law, now called the United States-India Nuclear Cooperation
Approval and Non-proliferation Enhancement Act, 2008
 10, October, the agreement was signed by Indian External Affairs
Minister Pranab Mukherjee and his counterpart Secretary of State
Condoleezza Rice.
Thank you
I NTERNATIONAL O RGANIZATION
UN Day – 24 October
KDR/RGSOIPL/2008 1
2 I NTERNATIONAL ORGANIZATIONS
 An international organization is an organization with an

international membership, scope, or presence.
 1. International nongovernmental organizations (INGOs)
 Non-profit organizations – Scout Movement, Red Cross
 2. Intergovernmental organizations – UN, WTO, EU
 international organizations – inter governmental Organizations
KDR/RGSOIPL/2008
 Treaty of Westphalia – 1648
 States voluntary making treaties
 19th Century – rapid development of international society.
 The International Telecommunication Union (ITU) and Universal Postal Union (UPU)
were founded in the 1860s.
 The Hague Conference - 1899
 UN
 UN specialised agencies
 Regional Organizations such as EU.
 Intergovernmental organizations
KDR/RGSOIPL/2008
4 FUNCTIONS
 Mostly promotional in nature and in some cases operational in nature.

 Each institution having its own limited field of activity.
 Their constitutions and rules explains the objectives, purposes and
powers.
 Recommendatory in nature
 Each organization should possesses the totality of international rights
and duties recognised by international law, the rights and duties of an
entity such as the organization must depend upon its purposes and
functions as specified or implied in its constituent documents and
developed practice. ICJ 1949, 180.
KDR/RGSOIPL/2008
5 CHARACTERISTICS
 International personality separate from its Members

 Financed by the Members
 Permanent secretariats
 1919 – Versailles Peace Conference
 The League of Nations was an international organization founded
as a result of the Treaty of Versailles in 1919–1920.
 At its greatest extent from 28 September 1934 to the 23 February
1935, it had 58 members.
KDR/RGSOIPL/2008
6 L EAGUE OF N ATIONS
 avoid a repeat of a devastating war, the League of Nations objective was

to maintain universal peace within the framework of the fundamental
principles of the Pact accepted by its Members : « to develop cooperation
among nations and to guarantee them peace and security.
 In spite of these early successes, the League of Nations did not manage to
prevent neither the invasion of Mandchuria by Japan, nor the annexation
of Ethiopia by Italy in 1936, nor that of Austria by Hitler in 1938.
 The powerlessness of the League of Nations to prevent further world
conflict, the alienation of part of its Member States and the generation of
the war itself, added to its demise from 1940.

KDR/RGSOIPL/2008
7 UN
 The onset of the Second World War suggested that the League had
failed in its primary purpose, which was to avoid any future world
war.
 The United Nations replaced it after the end of the war and
inherited a number of agencies and organizations founded by the
League1919-1946
KDR/RGSOIPL/2008
8 UN
 The United Nations (UN) is an international organization whose

stated aims are to facilitate cooperation in international law,
international security, economic development, social progress,
human rights, and achieving world peace.
 The UN was founded in 1945 after World War II to replace the

League of Nations, to stop wars between countries and to provide a
platform for dialogue.
KDR/RGSOIPL/2008
9 P ERSONALITY
 The primary test is functional.
 Reparation case – injury to UN Employees and consequent

claims – no explicit provision dealing with personality – ICJ draw
personality from the whole Charter.
 Criteria: a permanent association of states with lawful objects

equipped with organs;
 Distinction of legal personalities between organization and its

members.
 Existence of legal powers in the international plane.
KDR/RGSOIPL/2008
10 UN M EMBERS
Presently 192 Members
KDR/RGSOIPL/2008
11 UN
 Present Secretary General – Banki-moon

 The organization is divided into administrative bodies, primarily:
 The General Assembly (the main deliberative assembly);
 The Security Council (decides certain resolutions for peace and security);
 The Economic and Social Council (assists in promoting international
economic and social cooperation and development);
 The Secretariat (provides studies, information, and facilities needed by
the UN);
 The International Court of Justice (the primary judicial organ).
KDR/RGSOIPL/2008
12 UN C HARTER
 9 - INTERNATIONAL ECONOMIC AND
SOCIAL CO-OPERATION.
 The charter
 10 - THE ECONOMIC AND SOCIAL
 1 - PURPOSES AND PRINCIPLES
COUNCIL
 2 – MEMBERSHIP
 11 - NON-SELF-GOVERNING
TERRITORIES
 3 – ORGANS
 12 - INTERNATIONAL TRUSTEESHIP
 4 - THE GENERAL ASSEMBLY
SYSTEM
 5 - THE SECURITY COUNCIL
 13 - THE TRUSTEESHIP COUNCIL
 6 - PACIFIC SETTLEMENT OF DISPUTES
 14 - ICJ
 7 – Enforcement
 8 – Regional Arrangements
KDR/RGSOIPL/2008
13 PURPOSES
 To maintain international peace and security
 To develop friendly relations among nations based on respect for the

principle of equal rights and self-determination of peoples.
 To co-operate in solving international economic, social, cultural and

humanitarian problems and in promoting respect for human rights
and fundamental freedoms.
 To be a centre for harmonizing the actions of nations in attaining

these common ends.
KDR/RGSOIPL/2008
14 PRINCIPLES
 It is based on the sovereign equality of all its Members

 All members are to fulfill in good faith their Charter obligations
 They are to settle their international disputes by peaceful means
and without endangering international peace and security and
justice.
 they are to refrain from the threat or use of force against any other
state;
 They are to give the UN every assistance in any action it takes in
accordance with the Charter;
KDR/RGSOIPL/2008
15 PRINCIPLES
 States shall not assist States against which the UN is taking

preventive or enforcement action;
 Nothing in the Charter is to authorize the UN to intervene in matters

which are essentially within the domestic jurisdiction of any state.
KDR/RGSOIPL/2008
16 M EMBERSHIP
 A.2
 Membership in the United Nations is open to all other peace-

loving states which accept the obligations contained in the
present Charter and, in the judgment of the Organization, are
able and willing to carry out these obligations.
 The admission of any such state to membership in the United

Nations will be effected by a decision of the General Assembly
upon the recommendation of the Security Council.
KDR/RGSOIPL/2008
17 GA
 Composed of all United Nations member states, the assembly meets in

regular yearly sessions under a president elected from among the
member states.
 When the General Assembly votes on important questions, a two-thirds

majority of those present and voting is required.
 The Security Council is charged with maintaining peace and security

among countries. While other organs of the United Nations can only make
'recommendations' to member governments, the Security Council has the
power to make binding decisions that member governments have agreed
to carry out, under the terms of Charter Article 25.
KDR/RGSOIPL/2008
18 GA
 Established in 1945 under the Charter of the United Nations, the

General Assembly occupies a central position as the chief
deliberative, policymaking and representative organ of the United
Nations.
 Comprising all 192 Members of the United Nations, it provides a

unique forum for multilateral discussion of the full spectrum of
international issues covered by the Charter.
 It also plays a significant role in the process of standard-setting

and the codification of international law.
KDR/RGSOIPL/2008
19 F UNCTIONS AND P OWERS
 Consider and make recommendations on the general principles of

cooperation for maintaining international peace and security,
including disarmament;
 Discuss any question relating to international peace and security

and, except where a dispute or situation is currently being
discussed by the Security Council, make recommendations on it;
 Discuss, with the same exception, and make recommendations on

any questions within the scope of the Charter or affecting the
powers and functions of any organ of the United Nations;
KDR/RGSOIPL/2008
 Initiate studies and make recommendations to promote

international political cooperation, the development and
codification of international law, the realization of human rights and
fundamental freedoms, and international collaboration in the
economic, social, humanitarian, cultural, educational and health
fields;
 Make recommendations for the peaceful settlement of any
situation that might impair friendly relations among nations;
 Receive and consider reports from the Security Council and other
United Nations organs;
KDR/RGSOIPL/2008
 Consider and approve the United Nations budget and establish the
financial assessments of Member States;
 Elect the non-permanent members of the Security Council and the

members of other United Nations councils and organs and, on the
recommendation of the Security Council, appoint the Secretary-
General.
KDR/RGSOIPL/2008
 Pursuant to its “Uniting for Peace” resolution of November 1950

(resolution 377 (V)) [PDF], the Assembly may also take action if the
Security Council fails to act, owing to the negative vote of a
permanent member, in a case where there appears to be a threat
to the peace, breach of the peace or act of aggression.
 The Assembly can consider the matter immediately with a view to

making recommendations to Members for collective measures to
maintain or restore international peace and security (see "Special
sessions and emergency special sessions”).
KDR/RGSOIPL/2008
23 FUNCTIONS
 While the Assembly is empowered to make only non-binding

recommendations to States on international issues within its
competence.
 To make recommendations for the peaceful settlement of any

situation, regardless of origin, which might impair friendly relations
among nations;
KDR/RGSOIPL/2008
24 SC
 The Council is composed of five permanent members — China, France,

Russian Federation, the United Kingdom and the United States — and ten
non-permanent members (with year of term's end):
 Belgium (2008) Indonesia (2008) South Africa (2008) Burkina Faso (2009)
Italy (2008) Viet Nam (2009) Costa Rica (2009) Libyan Arab Jamahiriya
(2009) Croatia (2009) Panama (2008)
 The General Assembly elected Austria, Japan, Mexico, Turkey and Uganda
to serve as non-permanent members of the Security Council for two-year
terms starting on 1 January 2009. The newly elected countries will
replace Belgium, Indonesia, Italy, Panama and South Africa.
KDR/RGSOIPL/2008
25 SC
 The Security Council has primary responsibility, under the Charter

for the maintenance of international peace and security.
 When a complaint concerning a threat to peace is brought before

it, the Council's first action is usually to recommend to the parties
to try to reach agreement by peaceful means.
 On many occasions, the Council has issued cease-fire directives

which have been instrumental in preventing wider hostilities.
 It also sends United Nations peace-keeping forces to help reduce

tensions in troubled areas.
KDR/RGSOIPL/2008
26 SC
 A Member State against which preventive or enforcement action

has been taken by the Security Council may be suspended from the
exercise of the rights and privileges of membership by the General
Assembly on the recommendation of the Security Council.
KDR/RGSOIPL/2008
27 F UNCTIONS
 Under the Charter, the functions and powers of the Security Council
are:
 to maintain international peace and security in accordance with the
principles and purposes of the United Nations;
 to investigate any dispute or situation which might lead to international
friction;
 to recommend methods of adjusting such disputes or the terms of
settlement;
 to formulate plans for the establishment of a system to regulate
armaments;
 to determine the existence of a threat to the peace or act of aggression
and to recommend what action should be taken;
KDR/RGSOIPL/2008
28 FUNCTIONS
 to call on Members to apply economic sanctions and other measures not

involving the use of force to prevent or stop aggression;
 to take military action against an aggressor;
 to recommend the admission of new Members;
 to exercise the trusteeship functions of the United Nations in "strategic

areas";
 to recommend to the GeneralAssembly the appointment of the Secretary-

General and, together with the Assembly, to elect the Judges of the
International Court of Justice.
KDR/RGSOIPL/2008
29 S ECRETARIAT
 The United Nations Secretariat is headed by the

Secretary-General, assisted by a staff of
international civil servants worldwide.
KDR/RGSOIPL/2008
30
S ECRETARY G ENERALS OF
THE UN
No. Name Country of origin Took office Left office Note

1 Trygve Lie Norway 2 February 1946 10 November 1952 Resigned
2 Dag Hammarskjöld Sweden 10 April 1953 18 September 1961 Died while in office
First Secretary-
3 U Thant Burma 30 November 1961 1 January 1972
General from Asia
4 Kurt Waldheim Austria 1 January 1972 1 January 1982
First Secretary-
Javier Pérez de
5 Peru 1 January 1982 1 January 1992 General from South
Cuéllar
America
Boutros Boutros- First Secretary-

6 Egypt 1 January 1992 1 January 1997
Ghali General from Africa
7 Kofi Annan Ghana 1 January 1997 1 January 2007
8 Ban Ki-moon South Korea 1 January 2007
KDR/RGSOIPL/2008
31 ECOSOC
 Charter established ECOSOC as the principal organ to coordinate

the economic and social work of the UN and the specialized
agencies and institutions.
 54 Members selected among Members
 Functions:
 To serve as the central forum for discussing international
economic and social issues, and for formulating policy
recommendations.
 To make studies and reccomendatons.
KDR/RGSOIPL/2008
32 ECOSOC
 To promote respect for, and observance of, human rights and

fundamental freedoms.
 To call international conferences ad prepare draft conventions for

submission to the GA.
 To co-ordinate the activities of the specialized agencies
 To consult with non-governmental organizations concerned with

subjects deal with the council.
KDR/RGSOIPL/2008
33 T RUSTEESHIP COUNCIL
 Supervise the trust territories
 5 permanent members
 Redundant after 1994 –
 Last country to become independent is Palau.
KDR/RGSOIPL/2008
34 ICJ
 The International Court of Justice (ICJ), located in The Hague,

Netherlands, is the primary judicial organ of the United Nations.
 Established in 1945 by the United Nations Charter, the Court

began work in 1946 as the successor to the Permanent Court of
International Justice.
 The Statute of the International Court of Justice, similar to that of

its predecessor, is the main constitutional document constituting
and regulating the Court
KDR/RGSOIPL/2008
35 ICJ
 The ICJ is composed of fifteen judges elected to nine year terms by

the UN General Assembly and the UN Security Council from a list of
persons nominated by the national groups .
 A Judge can be appointed for 9 years and can be re-elected.
KDR/RGSOIPL/2008
36 C URRENT COMPOSITION
Name Country Position Elected Term End
Dame Rosalyn Higgins United Kingdom President 1995, 2000 2009
Awn Shawkat Al-

Jordan Vice-President 2000 2009
Khasawneh
Raymond Ranjeva Madagascar Member 1991, 2000 2009

Shi Jiuyong China Member 1994, 2003 2012
Abdul G. Koroma Sierra Leone Member 1994, 2003 2012
Gonzalo Parra Aranguren Venezuela Member 1996, 2000 2009
Thomas Buergenthal United States Member 2000, 2006 2015

Hisashi Owada Japan Member 2003 2012
Bruno Simma Germany Member 2003 2012
Peter Tomka Slovakia Member 2003 2012
Ronny Abraham France Member 2005 2009
Sir Kenneth Keith New Zealand Member 2006 2015
Bernardo Sepúlveda Amor Mexico Member 2006 2015
Mohamed Bennouna Morocco Member 2006 2015
Leonid Skotnikov Russia Member 2006 2015
KDR/RGSOIPL/2008
37 JURISDICTION
 As stated in Article 93 of the UN Charter, all 192 UN members are

automatically parties to the Court's statute.
 Non-UN members may also become parties to the Court's statute

under the Article 93(2) procedure.
 Disputes
 Advisory opinion
KDR/RGSOIPL/2008
38 DISPUTES
 In contentious cases (adversial proceedings seeking to settle a dispute),

the ICJ produces a binding ruling between states that agree to submit to
the ruling of the court.
 The key principle is that the ICJ has jurisdiction only on the basis of
consent.
 Article 36 outlines four bases on which the Court's jurisdiction may be

founded.
 First, 36(1) provides that parties may refer cases to the Court (jurisdiction
founded on "special agreement" or "compromis"). This method is based
on explicit consent rather than true compulsory jurisdiction.
KDR/RGSOIPL/2008
39 JURISDICTION
 Second, 36(1) also gives the Court jurisdiction over "matters

specifically provided for ... in treaties and conventions in force".
Most modern treaties will contain a compromissory clause,
providing for dispute resolution by the ICJ.
 during the Iran hostage crisis, Iran refused to participate in a case
brought by the US based on a compromissory clause contained in
the Vienna Convention on Diplomatic Relations, nor did it comply
with the judgment.
 Third, Article 36(2) allows states to make optional clause
declarations accepting the Court's jurisdiction.
KDR/RGSOIPL/2008
40 J URISDICTION
 the Court may have jurisdiction on the basis of tacit consent (forum
prorogatum).
 In the absence of clear jurisdiction under Article 36, jurisdiction will

be established if the respondent accepts ICJ jurisdiction explicitly or
simply pleads on the merits.
 The notion arose in the Corfu Channel Case (UK v Albania) (1949) in
which the Court held that a letter from Albania stating that it
submitted to the jurisdiction of the ICJ was sufficient to grant the
court jurisdiction.
KDR/RGSOIPL/2008
41 LAW
 International conventions establishing rules expressly recognized

by the contesting states.
 International custom as evidence of a general practice accepted as

law
 The general principle of law recognized by nations and;
 Judicial decisions and the teachings of the most qualified scholars

of the various nations.
KDR/RGSOIPL/2008
42 A DVISORY OPINION
 An advisory opinion is a function of the Court open only to specified

United Nations bodies and agencies.
 In principle, the Court's advisory opinions are only consultative in

character, though they are influential and widely respected.
 Whilst certain instruments or regulations can provide in advance that the

advisory opinion shall be specifically binding on particular agencies or
states, they are inherently non-binding under the Statute of the Court.
 An advisory opinion derives its status and authority from the fact that it
is the official pronouncement of the principal judicial organ of the United
Nations.
KDR/RGSOIPL/2008
43 ICC
 A related court, the International Criminal Court (ICC), began operating in

2002 through international discussions initiated by the General Assembly.
 The International Criminal Court (ICC) is an independent, permanent court

that tries persons accused of the most serious crimes of international
concern, namely genocide, crimes against humanity and war crimes. The
ICC is based on a treaty, joined by 108 countries.
 It is the first permanent international court charged with trying those who
commit the most serious crimes under international law, including war
crimes and genocide.
KDR/RGSOIPL/2008
44 ICC
 The ICC is functionally independent of the UN in terms of personnel and

financing, but some meetings of the ICC governing body, the Assembly of
States Parties to the Rome Statute, are held at the UN.
 There is a "relationship agreement" between the ICC and the UN that

governs how the two institutions regard each other legally.
 The ICC is a court of last resort. It will not act if a case is investigated or
prosecuted by a national judicial system unless the national proceedings
are not genuine, for example if formal proceedings were undertaken
solely to shield a person from criminal responsibility.
 addition, the ICC only tries those accused of the gravest crimes.
KDR/RGSOIPL/2008
45 T HANK YOU
P EACEFUL SETTLEMENT OF
DISPUTES
KDR/RGSOIPL/2008 1
2
P EACEFUL SETTLEMENT OF
DISPUTES
 A.2(3) - All Members shall settle their international disputes by

peaceful means in such a manner that international peace and security,
and justice, are not endangered.
 A.33 of the UN Charter - The parties to any dispute, the continuance of
which is likely to endanger the maintenance of international peace and
security, shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their
own choice.
 A.33.2 - The Security Council shall, when it deems necessary, call upon
the parties to settle their dispute by such means.
KDR/RGSOIPL/2008
3 P EACEFUL SETTLEMENT
 A.34 - The Security Council may investigate any dispute, or any

situation which might lead to international friction or give rise to
a dispute, in order to determine whether the continuance of the
dispute or situation is likely to endanger the maintenance of
international peace and security.
 A.35 - Any Member of the United Nations may bring any dispute,
or any situation of the nature referred to in Article 34, to the
attention of the Security Council or of the General Assembly.
 A.36 - The Security Council may, at any stage of a dispute of the
nature referred to in Article 33 or of a situation of like nature,
recommend appropriate procedures or methods of adjustment.
KDR/RGSOIPL/2008
4 PACIFIC SETTLEMENT
 A.37 - Should the parties to a dispute of the nature referred to in Article

33 fail to settle it by the means indicated in that Article, they shall refer it
to the Security Council.
 A.37.2 - If the Security Council deems that the continuance of the dispute
is in fact likely to endanger the maintenance of international peace and
security, it shall decide whether to take action under Article 36 or to
recommend such terms of settlement as it may consider appropriate.
 A.38 - Without prejudice to the provisions of Articles 33 to 37, the
Security Council may, if all the parties to any dispute so request, make
recommendations to the parties with a view to a pacific settlement of the
dispute.
KDR/RGSOIPL/2008
5 UN
 1970 – declaration on Principles of International Law Concerning

Friendly Relations and Co-operation among States.
 States shall accordingly seek early and just settlement of their

international disputes by negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements or other peaceful means of their choice.
KDR/RGSOIPL/2008
6 UN
 Recalling its resolutions 34/102 of 14 December 1979, 35/160 of

15 December 1980 and 36/110 of 10 December 1981,
 GA. Res.37/10 of 1982 - …They shall live together in peace with

one another as good neighbours and strive for the adoption of
meaningful measures for strengthening international peace and
security.
KDR/RGSOIPL/2008
7 D IPLOMATIC MEANS
 Settlement of disputes through discussions and negotiations.
 North Sea Continental shelf Case – ICJ Reports 1969
 ‘the parties are under an obligation to enter into negotiation with a

view to arriving at an agreement, and not merely to go through a
formal process of negotiation as a sort of prior condition ….they
are under an obligation so to conduct themselves that the
negotiations are meaningful, which will not be the case when
either of them insists upon its own positions without
contemplating any modification of it.’
KDR/RGSOIPL/2008
8 N EGOTIATIONS
 Lac Lanoux Arbitration – ‘consultations and negotiations

between the two states must be genuine, must comply with the
rules of food faith and must not be mere formalities.
 A.vi of NPT - Each of the Parties to the Treaty undertakes to

pursue negotiations in good faith on effective measures relating
to cessation of the nuclear arms race at an early date and to
nuclear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control.
KDR/RGSOIPL/2008
9 M EDIATION
 Good offices and mediation.
 Mediation is an activity in which a neutral third party, the mediator, assists two or
more parties in order to help them achieve an agreement on a matter of common
interest.
 The common aspects of mediation are:
 a difference of positions between the respective parties
 a genuine desire on the part of the parties to find a positive solution to the dispute
and to accept a discussion about respective interests and objectives
 the intention of achieving a positive result through the help of an independent, neutral
third-party not connected with any of the involved parties
 the intention of achieving a steady result, preferably a long-lasting agreement between

the parties
KDR/RGSOIPL/2008
10 A RBITRATION
 Informal procedure
 Negotiation, informal procedure, good offices, mediation as

informal methods of settling disputes.
 The Hague Conventions for the Pacific Settlement of International

Disputes 1899 and 1907.
 Modern arbitration starts by Jay Treaty of 1794 between US and

GB.
 Principles of justice and equity.
KDR/RGSOIPL/2008
11 PC OF A RBITRATION
 1900-1932 Permanent Court of Arbitration was the popular

Institution of Arbitration dealt with 20 cases.
 1953 – International Law Commission adopted draft Convention on

Arbitral Procedure.
 In Sharjah/Dubai Boundary Case the Tribunal found that these

Model Rules as a part of customary international law.
KDR/RGSOIPL/2008
12 J UDICIAL SETTLEMENTS
 More Institutionalized.
 ICJ and a number of Tribunals set up on adhoc basis
 permanent systems like WTO dispute settlement system.
 International Tribunal for the Law of the Sea.
 PCICJ & ICJ
KDR/RGSOIPL/2008
U SE OF FORCE BY STATES
KDR/RGSOIPL/2008 13
14 19 TH CENTURY
 War was considered as a last resort to dispute settlement in Europe.
 The General Treaty for the Renunciation of War, 1928.
 Popularly known as Kellogg-Briand Pact
 A.1 condemns the war for resolution of disputes.
 A.II – non use of force rather peaceful means of dispute settlement.
 Reservation of the obligations of the League Covenant.
 Ratified by 63 countries and still in force.
KDR/RGSOIPL/2008
15 I NTERNATIONAL T RIBUNALS
 Nuremberg and Tokyo Tribunals
 China - Soviet Union hostilities in 1929
 Conflict between china and Japan – 1931
 Soviet Action against Finland – 1939
 1945 – UN Charter
KDR/RGSOIPL/2008
16 P REEMPTIVE ACTIONS
 A.55 -Nothing in the present Charter shall impair the inherent

right of individual or collective self-defence if an armed
attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain
international peace and security.
 Measures taken by Members in the exercise of this right of self-
defence shall be immediately reported to the Security Council
and shall not in any way affect the authority and responsibility of
the Security Council under the present Charter to take at any
time such action as it deems necessary in order to maintain or
restore international peace and security.
KDR/RGSOIPL/2008
17 S ELF DEFENCE
 Right to self defence in customary law
 Caroline case
 Self preservation
 Iraqi attack in Kuwait in 2001
 SC Res. 661(1990)
 US attack on Iraq in 2003
 US placed justification under the UN SC Res. UN Doc.S/2003/251.
KDR/RGSOIPL/2008
18 R EGIONAL ARRANGEMENTS
 A.52 - Nothing in the present Charter precludes the existence of

regional arrangements or agencies for dealing with such matters
relating to the maintenance of international peace and security as
are appropriate for regional action
 provided that such arrangements or agencies and their activities
are consistent with the Purposes and Principles of the United
Nations.
 2. The Members of the United Nations entering into such
arrangements or constituting such agencies shall make every
effort to achieve pacific settlement of local disputes through such
regional arrangements or by such regional agencies before
referring them to the Security Council.
KDR/RGSOIPL/2008
19 R EGIONAL ARRANGEMENTS
 The Security Council shall encourage the development of pacific

settlement of local disputes through such regional arrangements
or by such regional agencies either on the initiative of the states
concerned or by reference from the Security Council.
 4. This Article in no way impairs the application of Articles 34 and
35.
 A.54 - The Security Council shall at all times be kept fully
informed of activities undertaken or in contemplation under
regional arrangements or by regional agencies for the
maintenance of international peace and security.
KDR/RGSOIPL/2008
20 C ONDITIONS
 Nicaragua Case – 1. the victim state should declare it status as

victim and request for assistance.
 2. the wrongful act complained of must constitute an ‘armed

attack.’
KDR/RGSOIPL/2008
21 A GGRESSION
 1974 – GA Resolution –
 A.1 – Aggression is the use of armed force by a state against the

sovereignty, territorial integrity or political independence of
another state or in any other manner inconsistent with the
Charter of the UN.
 A.2 - the first use of force in contravention of the Charter shall be

prima facie evidence of an act of aggression.
 A.3 – military occupation
KDR/RGSOIPL/2008
22
 Blockade of ports or coasts of a state by the armed forces.
 Attack in land, air or marine fleets of another state.
KDR/RGSOIPL/2008
R EFUGEE LAW
KDR/RGSOIPL/2008 23
24 D EFINITION
 1951 – Convention on Status of Refugees

 ‘As a result of events occurring before 1 January 1951 and owing to well
founded fear of being persecuted for reason of race, religion,
nationality, membership of a particular social group or political opinion,
 is outside the country of his nationality and is unable or,
 owing to such fear, is unwilling to avail himself of the protection of that
country;
 or who, not having a nationality and being outside the country of his
former habitual residence a s a result of such events, is unable or, owing
to such fear, is unwilling to return to it.
KDR/RGSOIPL/2008
25 C ONDITIONS
 1. Left their country of nationality or the place of habitual residence.
 2. he must be genuinely at risk
 3. the claimant must be fled due to the prospect of persecution, risk

of serious harm.
 4. the risk faced by the claimant must have some nexus to her race,
religion, nationality, membership in a particular social group or
political opinion.
 5. there must be a genuine need for and legitimate claim to

protection.
KDR/RGSOIPL/2008
26 1967 PROTOCOL
 Status of refugees
 OAU Convention and the Cartagena Declaration.
 1992 – Arab Convention used ‘refugee’ as well as ‘displaced’

persons.
 Convention on Stateless Persons, 1954 – stateless person as a

‘person who is not considered a s a national by any state under the
operation of its law.
 Convention on Reduction of Statelessness 1961 came into force in

1975.
KDR/RGSOIPL/2008
27 C ASES
 R. V. Secretary of State for the Home Department, [1987] 1 All

E.R. 940 (H.L.).
 Sri Lankan Tamil people seeking asylum in Britain.
 The HL considered the sole question was the proper basis for the
determination of a ‘well founded fear of persecution.’
 CA – conditions – actual fear – good reason for fear – fear could

be judged objectively.
 HL – held that the genuine fear of persecution could not suffice.
KDR/RGSOIPL/2008
28 A SYLUM
 3500 years old practice
 Mahabharata also speaks of the sacred duty of refusing to

surrender a fugitive or a refugee to the enemy. (Nagendra singh,
1973).
 A.14 of UDHR provides that ‘everyone has the right to seek’ but
not granted asylum.’
 Temporary protection
KDR/RGSOIPL/2008
29 T HANK YOU
I NTERNATIONAL C RIMINAL L AW
KDR/RGSOIPL/2008 1
2 I NTERNATIONAL CRIMES
 INTERPOL
 Extradition – return of criminals wanted for trail.
 In the absence of a treaty no obligation to extradite
 The crime alleged must be a crime in both states – double

criminality principle.
 Request for extraditing to be done through diplomatic channels

accompanied by arrest warrant.
KDR/RGSOIPL/2008
3 E XTRADITION
 European laws prohibits extradition of its own nationals.
 Political offenders are not extraditable.
 Europe judiciary determines the question on extradition.
 1946 – UN GA Res. 96(1) - genocide to be a crime.
 1948 – Convention on the Prevention and Punishment of the

Crime of Genocide.
KDR/RGSOIPL/2008
4 ICC
 Rome Statute, 1998
 Entered into force in 2002
 106 parties
 Ceat of ICC is Hague
 It established the first international criminal court
 India, China, Indonesia, Iran, Japan, Pakistan, Russia and US are not
members.
KDR/RGSOIPL/2008
5 ICC
 18 judges elected for a tem of 9 years.
 Appeal
 Trail
 Pre-trail
 Office of prosecutor
 Working language is English and French
KDR/RGSOIPL/2008
6 J URISDICTION
 (a) The crime of genocide;
 (b) Crimes against humanity;
 (c) War crimes;
 (d) The crime of aggression.
KDR/RGSOIPL/2008
7 G ENOCIDE
 A.6 - For the purpose of this Statute, ‘genocide’ means any of the
following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
 (a) Killing members of the group;
 (b) Causing serious bodily or mental harm to members of the group;
 (c) Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;
 (d) Imposing measures intended to prevent births within the group;
 (e) Forcibly transferring children of the group to another group.
KDR/RGSOIPL/2008
8 G ENOCIDE DEFINITION
 Convention on the Prevention and Punishment of the Crime of Genocide1948 – 140

parties
 A.2 - In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,
as such:
 (a) Killing members of the group;
 (b) Causing serious bodily or mental harm to members of the group;
 (c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
 (d) Imposing measures intended to prevent births within the group;
 (e) Forcibly transferring children of the group to another group.
KDR/RGSOIPL/2008
9 C RIMES AGAINST HUMANITY
 A.7 - For the purpose of this Statute, ‘crime against humanity’

means any of the
 following acts when committed as part of a widespread or

systematic attack
 directed against any civilian population, with knowledge of the

attack:
 (a) Murder;
 (b) Extermination;
KDR/RGSOIPL/2008
 Enslavement;
 (d) Deportation or forcible transfer of population;
 (e) Imprisonment or other severe deprivation of physical liberty in violation

of
 fundamental rules of international law;
 (f) Torture;
 (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
 sterilization, or any other form of sexual violence of comparable gravity;
KDR/RGSOIPL/2008
 (h) Persecution against any identifiable group or collectivity on

political,racial, national, ethnic, cultural, religious, gender as defined
in paragraph 3, or other grounds that are universally recognized as
impermissible under international law,
 Enforced disappearance of persons;
 (j) The crime of apartheid;
 (k) Other inhumane acts of a similar character intentionally causing

great
 suffering, or serious injury to body or to mental or physical health.
KDR/RGSOIPL/2008
12 WAR CRIMES
 Grave breaches of the Geneva Conventions of 12 August 1949, namely,
 any of the following acts against persons or property protected under the
 provisions of the relevant Geneva Convention:
 (i) Wilful killing;
 (ii) Torture or inhuman treatment, including biological experiments;
 (iii) Wilfully causing great suffering, or serious injury to body or health;
KDR/RGSOIPL/2008
13 WAR CRIMES
 Extensive destruction and appropriation of property, not justified

by military necessity and carried out unlawfully and wantonly;
 (v) Compelling a prisoner of war or other protected person to serve

in the forces of a hostile Power;
 Willfully depriving a prisoner of war or other protected person of

the rights of fair and regular trial;
 (vii) Unlawful deportation or transfer or unlawful confinement;
 (viii) Taking of hostages.
KDR/RGSOIPL/2008
14
P RINCIPLE OF
COMPLEMENTARITY
 The Preamble of the Rome Statute recognizes that the Court itself
is but a last resort for bringing justice to the victims of genocide,
war crimes, and crimes against humanity.
 It therefore calls upon all States to take measures at the national

level and enhance international co-operation to put an end to
impunity, and reminds States of their duty to exercise criminal
jurisdiction over those responsible for such crimes.
 Thus, the Rome Statute assigns the Court a role that is

complementary to national systems.
KDR/RGSOIPL/2008
15 ICC
 No jurisdiction over general criminal jurisdiction

 Terrorism or drug trafficking
 Jurisdiction - It can exercise jurisdiction only with respect to
genocide, crimes against humanity, and war crimes.
 Jurisdiction of ICC can be invoked by A.13 – a party referring an
alleged crime to the Prosecution
 UN SC – acting under chapter VII
 The prosecutor initiating an investigation into the alleged crime.
KDR/RGSOIPL/2008
16 ICC
 ICC can exercise jurisdiction only if:
 1. the state on whose territory the conduct occurred
 2. the state of nationality of the accused person is a party to the

statute.
 ICC does not have jurisdiction:
 If the case is being investigated or prosecuted by the state that

has jurisdiction over the crime unless the state is unwilling or
unable genuinely to carryout the investigation and prosecution.
KDR/RGSOIPL/2008
17 ICC
 The state has been jurisdiction conducted the investigation and decided not
to prosecute;
 The accused has already been properly tried;
 The case has not of sufficient gravity to justify the action.
 Unwillingness to prosecute shows - shielding of accused
 The crime must have been committed after entry into force of the statute –
A.11.
 No person can be tried by ICC and the national court for the same offence –
A.20)
 The accused must have been 18 at the time of alleged crime.
KDR/RGSOIPL/2008
18 J URISDICTION
 There must be an arrest warrant from the Pre-Trail chamber of the

Court.
 A party cannot refuse to surrender its own nationals where there is

a prohibition in national law.
 A.25 – individual responsibility.
 Politicians and government officers are within the jurisdiction of the

ICC, A.27.
KDR/RGSOIPL/2008
19 S OVEREIGNTY PROBLEMS
 The main allegation against ICC is that it replaces the national

courts.
KDR/RGSOIPL/2008
20 L AW
 ICC statute, elements of crimes and Rules of

Procedure and Evidence
 Treaties and principles of international law.
 Law of armed conflict
 General principles of law derived form national
laws.
 Accordance with human right laws
 Mix of civil and common law systems
KDR/RGSOIPL/2008
21 I NVESTIGATION
 According to the order of the Pre-trail Court
 State has to co-operate in investigations.
 If the prosecutor wants to arrest a person he has

to apply to the Pre-trail Court.
 The party whose territory the accused is, it is the

obligation to surrender the accused to the ICC-
A.89.
KDR/RGSOIPL/2008
22 A PPEAL
 Appeal against the conviction to Appeal Court –

A.81-85.
 The ICC can sentence an accused up to 30 years

of imprisonment.
 ICC don’t have a prison, so the person has to

serve the term in the territory of a member,
need not be the party.
 If no state is willing to accept the prisoner, he will

be sent to Dutch prison.
KDR/RGSOIPL/2008
23 I NTERNATIONAL TRIBUNALS
 First – Nuremberg Tribunal
 Second - Tokyo Tribunal
 Nuremberg Tribunal fix individual responsibility for

international crimes.
 Head of the state and officials can be liable for crimes even
though they are not carried out the crime.
 These principles are now part of customary international law
KDR/RGSOIPL/2008
24 ICTY
 International Criminal Tribunal for the Former Yugoslavia

 UN under Article VII – SC Res. 808(1993) established the tribunal.
 Located in Hague
 Jurisdiction over individuals accused of committing in former
Yugoslavia.
 Gross violation of Geneva Conventions
 Genocide
 Crimes against humanity
KDR/RGSOIPL/2008
25 J URISDICTION
 A.7 of statute – who planned, instigated, ordered, or otherwise

aided and abetted in the planning, preparation or execution of a
crime, is individually responsible for it.
 Superiors order does not relieve the accused of responsibility.
 It supposed to complete its trails by 2010
KDR/RGSOIPL/2008
26 ICTR
 International criminal tribunal for Rwanda, 1994
 SC Res. 955(1994) –
 Located in Arusha, Tanzania
 Jurisdiction over genocide, crimes against humanity and serious

violations of Geneva Conventions.
 20 persons have been convicted so far.
KDR/RGSOIPL/2008
27
S IERRA L EONE S PECIAL
C OURT
 Established by treaty between Sierra Leone and the UN in 2002.
 Located in Freetown, Sierra Leone.
 Jurisdiction over serious violations of international humanitarian

law
KDR/RGSOIPL/2008
T ERRORISM
KDR/RGSOIPL/2008 28
29 TERRORISM
 1937 – League of Nations concluded a Convention on the

Prevention and Punishment of Terrorism.
 World war comes and never entered into force.
 State terrorism: terrorist acts committed by states against another
 E.g. holding hostage of US diplomats in Iran.
 Cruelty committed by state against its own people by Hitler, Stalin,

etc.
 there is no international definition of terrorism.
KDR/RGSOIPL/2008
30 T ERRORISM
 Any elements of the use or threat of force and seeking to create a

climate of fear seem to be the agreed definition.
 One person’s terrorist is another’s freedom fighter.
 Resistance to occupation is not prohibited by international law.
 Organised resistance is recognized by Geneva conventions.
 UN declaration on terrorism (UNGA Res. 49/60.
 It condemned terrorism as ‘criminal and unjustifiable, wherever

and by whomever committed.’
KDR/RGSOIPL/2008
31 UN INITIATIONS
 ‘criminal acts intended or calculated to provoke a state of terror in

the general public.’
 States must refrain from all terrorist activities.
 It declared that terrorist activity cannot be justified whatever the

motive is.
 UNSC Res. 1566(2004)
KDR/RGSOIPL/2008
32 T ERRORISM
 1999 – International Convention for the Suppression of the

Financing of Terrorism.
 A.2 defines terrorism: “any other act intended to cause death or

serious bodily injury to a civilian, or to any other person not taking
an active part in the hostilities in a situation of an armed conflict,
when the purpose of such act, by its nature or context, is to
intimidate a population, or to compel a government or an
international organization to do or to abstain from doing any act.”
KDR/RGSOIPL/2008
33 T ERRORISM
 This convention does not apply to internal offences.
 9/11 – changed the definition of terrorism.
 Resolution 1373, adopted unanimously on September 28, 2001
 First International Legislation by the Security Council
 “such acts [referring to the 9/11 terrorist attacks], like any act of
international terrorism, constitute a threat to international peace
and security.”
KDR/RGSOIPL/2008
34
U NIVERSAL CONVENTIONS
 1. Convention for the Suppression of Unlawful seizure of Aircraft

1970. (Hijacking Convention).
 2. Convention for the suppression of unlawful acts against safety

of civil aviation 1971 (Montreal Convention).
 3. Convention on the Prevention and Punishment of crimes

against Internationally Protected Persons, including Diplomatic
Agents 1973.
KDR/RGSOIPL/2008
35 I NT. N . CONVENTIONS
 4. Convention on the Physical Protection of Nuclear Material 1979.
 5. International Convention against the taking of Hostages 1979

(Hostages Convention).
 6. Montreal Protocol on violence against airports.
 7. Rome Convention on Maritime Navigation 1988.
 8. Bombing Convention 1997
 Financing Convention 1999
KDR/RGSOIPL/2008
36 ACTIVITIES
 “Weapons of Mass Destruction and Their Delivery Systems

(Prohibition of Unlawful Activities) Act 2005”
 “Export Control on Goods, Technologies, Material and Equipment

related to Nuclear and Biological Weapons and their Delivery
Systems Act, 2004,”
KDR/RGSOIPL/2008
37 TERRORISM
 Terrorist acts may occur during armed conflicts or in time of peace.

As international humanitarian law applies only in situations of
armed conflict, it does not regulate terrorist acts committed in
peacetime.
 In addition to an express prohibition of all acts aimed at spreading

terror among the civilian population (Art. 51, para. 2, Protocol I;
and Art. 13, para. 2, Protocol II).
KDR/RGSOIPL/2008
38 TERRORISM
 attacks on civilians and civilian objects (Arts. 51, para. 2, and 52, Protocol
I; and Art. 13, Protocol II);
 indiscriminate attacks (Art. 51, para. 4, Protocol I);
 attacks on places of worship (Art. 53, Protocol I; and Art. 16, Protocol II);
 attacks on works and installations containing dangerous forces (Art. 56,
Protocol I; and Art. 15, Protocol II);
 the taking of hostages (Art. 75, Protocol I; Art. 3 common to the four
Conventions; and Art. 4, para. 2b, Protocol II);
 murder of persons not or no longer taking part in hostilities (Art. 75,
Protocol I; Art. 3 common to the four Conventions; and Art. 4, para. 2a,
Protocol II).
KDR/RGSOIPL/2008
39 WAR ON TERROR
 1937 – League of Nations – Convention on the Prevention and

Punishment of Terrorism.
 Never entered into force due to World War.
KDR/RGSOIPL/2008
40 J URISDICTION
 (a) War Crimes – there must be an international or non-

international conflict
 (b) Crimes against Humanity/Genocide involve questions of scale

and
 magnitude, systemisation, and organisation which might not

catch manifestation of modern “international terrorism”
 (c) These crimes have not been designed to catch global

terrorism in the form in which it may more routinely manifest
itself.
KDR/RGSOIPL/2008
 The behaviour must be universally recognised as/agreed to be

criminal;
 - The behaviour must be recognised as/agreed to be a
 (a) grave/serious matter/crime
 (b) be a crime of international concern;
KDR/RGSOIPL/2008
KDR/RGSOIPL/2008
43
KDR/RGSOIPL/2008
44
KDR/RGSOIPL/2008
45
N UCLEAR TERRORISM
CONVENTION , 2005
 Nuclear Terrorism..\ICC\financing concention - 1999.pdf Convention:

International Convention for the Suppression of Acts of Nuclear
Terrorism, 2005.
 The Nuclear Terrorism Convention calls for states to develop
appropriate legal frameworks criminalizing nuclear terrorism-related
offenses, investigate alleged offenses, and, as appropriate, arrest,
prosecute, or extradite offenders.
 It also calls for international cooperation with nuclear terrorism
investigations and prosecutions, through information-sharing,
extradition and the transfer of detainees to assist with foreign
investigations and prosecutions.
KDR/RGSOIPL/2008
46
N UCLEAR TERRORISM
CONVENTION , 2005
 While its initial Russian draft was proposed in 1997, the Nuclear
Terrorism Convention is the first anti-terrorism convention
adopted since the attacks of Sept. 11, 2001.
 The treaty opens for signature Sept. 14, 2005 and enters into
force thirty days after it is signed and ratified by at least 22
states.
KDR/RGSOIPL/2008
47 T HANK YOU
I NTERNATIONAL ENVIRONMENTAL
L AW
KDR/RGSOIPL/2008 1
2 S TATE RESPONSIBILITY
 States are accountable for breaches of international law.
 The basic duty upon states is not so to act as to injure the rights of
other states.
 International Commission on the River Order case, PCIJ, 1929
 Navigable river becomes the basis of a common legal right.
 Perfect equality of all riparian states.
KDR/RGSOIPL/2008
3 T RAIL S MELTER C ASE
 In 1896, a smelter located in Trail, British Columbia – US ownership.
 1906, the Consolidated Mining and Smelting Company of Canada, Ltd.

bought the smelter plant in Trail.
 In the period between 1925 and 1935, the U.S. Government objected to
the Canadian Government that sulfur dioxide emissions from the
operation were causing damage to the Columbia River valley.
 $350000 paid by Canada.
 Again between 1935 to 1941 – second arbitration
KDR/RGSOIPL/2008
4 G UT D AM
 1969 - US – Canada – Arbitration – dam to facilitate navigation in

the St Lawrence River.
 Heavy flooding in the shores of the river and Ontario lake.
 US claimed damages.
 Lumpsum amount was granted.
 Strict liability applied.
KDR/RGSOIPL/2008
5 O THER CASES
 Corfu channel case

 Nuclear Test Case, ICJ, 1996 – the existence of the general obligation of
states to ensure that activities within their jurisdiction and control respect
the environment of other states or of areas beyond national control is now
part of the corpus of international law relating to the environment.
 A.192 – UNCLOS – states have the obligation to protect and preserve the
marine environment.
 A.194 – not to pollute other states and environment.
 A.1 – Convention on Long-Range Transboundary Air Pollution, 1979 –
pollution concerned must result deleterious effects of such a nature as to
endanger human health, harm living resources and ecosystems and material
property and impair with legitimate use of environment.
KDR/RGSOIPL/2008
6 NIEO
 Degradation of environment.
 The New International Economic Order (NIEO)
 The NIEO is essentially a 18 clause document that seeks certain changes

in the international system that would allow less-developed countries
opportunity to build their way out of the never-ending cycle of poverty.
 The New International Economic Order (NIEO) was a set of proposals

put forward during the 1970s by developing countries through the
United Nations Conference on Trade and Development to promote their
interests by improving their terms of trade, increasing development
assistance, developed-country tariff reductions, and other means.
KDR/RGSOIPL/2008
7 R IGHT TO DEVELOPMENT
 Right to development was recognized in the 1980 Report of the

Independent Commission on International Developments Issues
(the Brandt Commission) dealt with the matter under the heading
“what does the development mean.”
 Self fulfillment and creative partnership in the use of nation’s

productive forces.
 1970- UN General Assembly adopted a policy statement under the

title “International Development Strategy.”
KDR/RGSOIPL/2008
8
P ROTECTION OF
E NVIRONMENT
 Pollution of environment
 Depletion of world natural resources
 1969 – 1972 - series of reports and meeting under the leadership of

the Secretary General of the UN.
 UNCLOS – 1982 – protection and preservation of marine

environment.
 ILO – protection of workers against pollution of the working

atmospheric environment.
KDR/RGSOIPL/2008
9 PROBLEMS
 Pollution and contamination of the oceans and atmosphere
 Wild species and nature are the common heritage of mankind.
 The depletion of marine resources
 Changes in the atmosphere
 International standards and environmental quality
KDR/RGSOIPL/2008
10
1972 S TOCKHOLM
CONFERENCE
 The United Nations Conference on the Human Environment, having

met at Stockholm from 5 to 16 June 1972,having considered the
need for a common outlook and for common principles to inspire
and guide the peoples of the world in the preservation and
enhancement of the human environment,.
 The Conference calls upon Governments and peoples to exert
common efforts for the preservation and improvement of the
human environment, for the benefit of all the people and for their
posterity.
 A.21 – ‘the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of
other states or of areas beyond the limits of national jurisdiction.
KDR/RGSOIPL/2008
11 S TOCKHOLM PRINCIPLES
 World Environment Day – 5 June.

 International environmental law principles:
 1. states have the sovereign right to exploit their own resources
pursuant to their own environmental policies.
 2. states must ensure that the activities within their jurisdiction do
not cause damage to the environment of other states.
 3. states are under a duty to co-operate to develop further the
international law as to liability and compensation for victims of
pollution and other environmental damages caused beyond national
boundaries.
KDR/RGSOIPL/2008
12 P ERCEPTIONS
 An aspirational document
 A platform for future action
 A moral code
 The first step towards the development of international

environmental day.
 The recognition and acceptance of an environmental ethic.
KDR/RGSOIPL/2008
13 S ECRETARIAT
 The United Nations Environmental Programme (UNEP)
 Agency to encourage and co-ordinate national and regional environmental

protection activities.
 3 funds were managed by UNEP
 1. protection of the Mediterranean against pollution
 2. protection and development of the marine environment and costal

areas of Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi and UAE.
 3. 1973 Convention on International Trade in Endangered Species of Wild

Fauna and Flora.
KDR/RGSOIPL/2008
14 F UNCTIONS
 Better development of human settlements
 Human and environmental health
 Integration of the management of ecosystems.
 Continued protection of marine environment.
 Prevention and mitigation of natural disasters.
 Use of sound environmentally sound energy
 Plans to combat desertification.
KDR/RGSOIPL/2008
15 I NTERIM DEVELOPMENTS
 1974 – OECD – adopted recommendation on transboundary movement of pollution.
 1974 – Nuclear Test Cases – ICJ ordered environmental impact assessment Tests.
 1979 - Long Range Transboundary Air Pollution Convention 1979.
 1982 – Law of the Sea Convention
 1985 – Vienna Convention for the Protection of the Ozone Layer.
 1986 – Protocol to the Paris Convention for the Prevention of Marine Pollution from
Land-based Sources.
 1987 – Montreal Protocol on Substances that Deplete the Ozone Layer.
 1991 – Convention on Environmental Impact Assessment in a Transboundary Context,

1991.
KDR/RGSOIPL/2008
16 N AIROBI DECLARATION
 1982 – 105 countries adopted the declaration to carry forward the

Stockholm Declaration.
 It also adopted the resolution on creation of a special commission

to propose long term environmental strategies for achieving
sustainable development.
KDR/RGSOIPL/2008
17
EARTH SUMMIT 1992
 Agenda 21 was prepared in the conference
 Results: Framework Convention on Climate Change – text
adopted.
 Convention deal with reduction of greenhouse gases.
 Adopted the Convention on Biological Diversity
 Adopted Statement of Principles for a Global Consensus on the
Management, Conservation and sustainable Development of all
types of Forests.
 Commission on Sustainable Development was established.
KDR/RGSOIPL/2008
18 R IO D ECLARATION
 2. sovereign right to exploit their own resources pursuant to their
own environmental and developmental policies.
 3. right to development – equitable distribution of developmental

and environmental needs.
 5&6 – sustainable development
 11 – effective national laws for protection of environment.
 13 – liability fixation at domestic level.
 15 – precautionary approach shall be widely applied according to

the capabilities of states.
KDR/RGSOIPL/2008
19
J OHANNESBURG
D ECLARATION
 Johannesburg Declaration on sustainable development - 2002
 Development of sustainable protection of environment.
 GEF – Global Environmental Facility became a permanent financial

facility to loan developing countries on environmental programme.
KDR/RGSOIPL/2008
20 P OLLUTER PAYS
 Widely accepted principle –
 "If anyone intentionally spoils the water of another ... let him not
only pay damages, but purify the stream or cistern which
contains the water..." – Plato
 1989 – OECD principles
KDR/RGSOIPL/2008
21 T HANK YOU

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History and nature of

 Customary law may be a source of international law in

 Doubt about the long term  Recognizing fully the effective

 1) Treaties: the Vienna Convention on Succession

 2) State property, State debt and State archives:

 Germany reunified, while the Soviet Union, Yugoslavia

 the transfer of one State to another is usually described

 Vienna I and II - state that succession is "the replacement

 Singapore – Malaysia – 1965

 Bangladesh – Pakistan – 1971

 Eritrea - Ethiopia – 1993

 East Timor – Indonesia – 2002

 14 states from the former USSR

 First Word War – Yugoslavia and Czechoslovakia

 Second World War – Socialist Republic of

 Yugoslavia – successor to Serbia.

 End of cold war – Bosnia, Herzegovina, Croatia,

 1958 – Egypt and Syria – United Arab Republic – dissolved in 1961.

 1976 – North Vietnam and South Viet Nam – Socialist Republic of

 1990 – North Yemen and South Yemen – Republic of Yemen.

 Absorption – 1990 - unification of Germany – no new state is

 The option of simply denying State succession to treaties, known as

 The continuation theory of state succession is an anti-thesis to the

 How far the new state is bound by the treaties

 Continuity of legal personality

 Session, annexation or merger

 Recognition and responsibility

 All international rights and duties will devolve

 Succession of states was defined as ‘the

 international obligations passes to the successor

 Sovereignty of a lessee state over particular

 1997 China resumes sovereignty over Hong Kong.

 International Convention on Succession of States in

 Passing of territory to another state.

 One state divided into many states.

 New states from colonial states

 Vienna convention on Succession of States in respect

 A new state does not succeed automatically to a treaty if the

 In case of absorption – all treaties entered into by the absorbed

 A.31 of the 1978 Convention

 A successor state will be bound on human right treaties.

 The relevant treaties will continue in force.

 ‘Free choice’ doctrine

 Damages for unliquidated damages won’t exist

 If there is any unjust enrichment to the predecessor

 West Rand Central Gold Mining Co v. R, [1905] 2 KB

 Extinction of rights by conquest or annexation, the

 If any concessionary agreement will extinct with the

 Unless the successor state renews it.

 Taking the burden with the benefits

 Vienna Convention on Succession of States in Respect of

 Usually all disputes has to be settled by agreements.

 the successor State acquires the whole property of the

 Equitable proportion is to pass to the successor state.

 A.37 – if the successor state is a newly independent state,

 Similar solutions were applied in cases of secession and dismemberment of

 the successor state has a right to take up fiscal claims belonging to

 In practice municipal courts will enforce obligations of the

 Local debts clearly pass under customary international law to the

 Similarly, localized debts, being closely attached to the territory to

 The successor state is not bound to respect an

 Hawalian claims, AJIL 20, 1926.

 Brown Claim, 19 AJIL 1925.

 A new state will not succeed to membership of