PUBLIC

INTERNATIONAL
LAW
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Definition: There is no single universally accepted definition of international law, though some
good attempts have been made in that direction. Eminent British jurist, Jeremy Bentham in
1780, used the words ‘international law’ for the first time. Expressions “international law” and
“law of nations” are Synonymous and are equivalent terms. Prior to it, international law was
known as law of nations.

OPPENHEIM:
Law of nations or international law is the name for the body of customary and conventional
rules which are considered legally binding by civilized states in their intercourse with each
other.
The above definition contains three important elements
i. International Law consists of a body of rules governing the relations between States
ii. states regard these rules as being binding on them in their relations with one another
iii. such rules derive from custom and treaties

The definition, is not adequate, and is subjected to many criticisms which are as follows
i. The definition takes into account the relations of ‘states’ only. Presently, International
organizations and Institutions are also regarded as subjects of international law
ii. After the establishment of the United Nations organizations, International Law also
provides certain rights and duties to individuals too.
iii. The definition lays down that the rules of international law derive only from custom
and treaties, but it is not correct. A number of rules of international law derive from
‘the general principles of law recognized by civilized Nations’.
iv. The expression ‘body of rules’ denotes that international law is static. But it is not so,
in fact, international law is a dynamic and living law. Its rules have been changing with
the passage of time out of experiences and necessities of situations.

STARKE
International Law may be defined as that body of law which is composed for its greater part of
the principles and rules of conduct which states feel themselves bound to observe, and
therefore, do commonly observe in their relations with each other, and which also includes
a) The rules of law relating to the functioning of international institutions/organizations,
their relations with each other, and their relations with state and individuals.
b) Certain rules of law relating to individuals and non-state entities so far as the rules and
duties of such individuals and the non-state entities are the concern of the international
community

Nature of international law: Is international law true law

One view is that international law is not a true law. It is a code of rules of conduct of
moral force only. Another view is that international law is a true law, and it is to be regarded
as law in the same way as that of ordinary laws of a state which is binding upon the individuals.

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Austin's view
Austin said that international law could not be called proper law in the true sense, because it
has neither sovereign legislative authority to enact law nor there is an adequate sanction behind
it. Moreover, there is no enforcement agency which can enforce it as a body of rules. The rules
commonly called International Law in fact the rules of ‘positive morality’. Another noted
jurists holding smilar opinion are Bentham, Holland, hobbes etc.
Criticism of Austin's view
Austin's definition of law commonly known as command theory has been vehemently criticized
by the jurists belonging to sociological, legal realism and historical school on different grounds.
Austin has taken into consideration in his definition only that part of law which is enacted by
sovereign legislative authority. He completely ignored the customary or unwritten laws.
It is not correct to say that laws are observed because of the fear of sanctions behind it. They
are also observed because of inner morality.
Henry Maine says that laws are obeyed not because of the fear of punishment but because of
the habit of mind and practices of the community.

Oppenheim regards International Law as law because of the following two reasons :-
i. International law is constantly recognised as law in practice, the Government of
different states feel that they are legally as well as morally bound to follow it.
ii. While breaking it, states never deny its legal existence, rather they recognise its
existence and try to interpret International Law as justifying their conduct.

International law is the vanishing point of jurisprudence:

The analytical jurist, Holland’s remark that international law is the vanishing point of
jurisprudence is not tenable. By using the words ‘vanishing point’ in relation to international
law and jurisprudence, He meant that international law and jurisprudence are parallel to each
other, and therefore are distinct and separate, though it might be appearing that they are one
and the same at vanishing point – “a point at which parallel lines in the same plane appear to
meet”. Therefore, International Law cannot be kept in the category of law mainly because there
is neither any sovereign authority nor there exists sanctions if its rules are violated.

Basis of International law: theories

The present day International law owes its origin to the great jurist Grotius and his work De
jure Belli Paces 1625. His main idea is that there are certain eternal, unchangeable and
independent rules of law which have roots in human reason. He calls this law of reason as
natural law. In the Grotian theory, there are three basis of International law. Law of reasons,
customs and treaties.
Views of the jurists differ on the question as to what is the basis of International law. The
difference of opinion has led to the emergence of the following three theories

Naturalist theory- Most of the jurists of the 16th and 17th century were of the view that
International law is based on the law of nature. According to them there exists a system of law
which emanates from God or reason or morals. Prominent writers of this view are Grotius,

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Pufendorf and Vattel. Writings of these jurists were influenced greatly by the works of
religiously oriented Scholars such as Saint Augustine, Vitoria and Suarez.
All laws including International Law, according to them, are based on natural and in turn divine
law. The view has been greatly criticized by the writers of the 19th century on the ground that
it is too vague. The meaning of the law of nature is not precisely clear. Different jurists have
given different meaning to it such as reason, justice and moral.

Positivist theory- The view that International law is based on the law of nature has been
condemned by the followers of another School which is known by the name of positivist.
According to them only those principles may be deemed as law which have been adopted with
the consent of the states. The rules of law are binding upon the states therefore emanate from
their own free will. The consent may be given by States either expressly or impliedly. While
Express consent may be given by the conclusion of Treaties , consent may be implied in the
case of established usage such as customs. Therefore, custom and treaties by which consent of
a state is achieved are the basis of International law.

Eclectic theory- The views taken by the naturalist and positivist are extreme views. The Jurists
belonging to eclectic school have preferred to adopt a middle course in the positivist-naturalist
debate. According to them International Law derived from both natural law as well as voluntary
law ( law made with the consent of the states). This view appears to be appropriate than taken
by the jurists of naturalist and positivist schools, and therefore it may be concluded that
International law is based solely neither on the law of nature nor on the consent of the states.
While most of the rules are based on the basis of the consent of the states, a few of them have,
of course, derived from the law of nature.

Whether International law is a weak law

Starke has expressed the view that International law is a weak law. There is no effective
executive authority to enforce the rules of International law. As compared to rules of State Law,
the rules of International law suffer from Greater uncertainty. Due to lack of effective
sanctions, rules of International law frequently violated. International law has, in many cases,
failed to maintain order and peace in the world. Thus, International law is a weak law in
comparison to the Municipal Law.

Functions of International law

In the International legal system there is no sovereign political authority above the states. There
is neither legislative authority nor executive and judicial authorities in the form they exist in a
state. Rules of International law are therefore created by means of the consent of the states.
Accordingly, performance of the functions by it is dependent largely upon the will of the state.
Some general but important functions which International law presently performs are
i. to maintain International peace and security
ii. to develop friendly relations among Nations
iii. to achieve International cooperation in solving International problems of an economic,
social, cultural and humanitarian character
iv. to settle International disputes by peaceful means

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 v. to refrain from the threat or use of force by a state against the territorial integrity or
political independence of any state
vi. to provide the right of self-determination to the peoples
vii. to provide fundamental freedoms and human rights.

In some States such as USA and UK International law is treated as part of their own law
(Paquette vs. Habana) 1900.

Subjects of International law

Any entity which possesses International personality is called an International person or a
subject of International law. Possession of International personality is therefore the determining
factor in deciding as to which entities are the subjects of International law. An entity may be
Deemed to possess International personality if it is capable of possessing International rights
and duties and having the capacity to maintain its rights by bringing International claims.
The question as to what are the entities which possess the above three capacities (i.e., rights,
duties and capacity to maintain its rights by bringing International claims) is solely determined
by the rules of International law.

Theories of subjects of International law

Realist theory: according to one view ‘states only are subjects of International law’. This is
the traditional concept of International law wherein States alone, as sovereign political entities,
were regarded as the subjects of International law.
The above view has been criticized mainly by modern International Law jurists on the ground
that certain rights and obligations have been endowed to entities other than States by the rules
of International law, and therefore, they also possess International personality.

Fiction theory: this theory is opposite to realist theory. According to it, individuals only are
the subjects of International law like Municipal Law. Kelson is of the view that rules of
Municipal Law as well as those of International law are meant for human beings. While the
former is binding on them directly, the latter is binding indirectly, that is, through States. The
theory is based on a fiction that rights and duties of the states are only the duties and rights of
men who compose them, and therefore, it is ultimately individuals who are the subjects of
International law.
The theory is called fictional theory since according to it the state has been regarded as a fiction.

Functional theory: it is true that International Law addresses most of the rights and duties to
the states. However, in the last 50 years or so, substantial changes have taken place in it. There
is proliferation of new participants in International relations. International organisations
distinct from States, have been and rights and duties, in addition to state.
International organisations perform certain legal functions and they have distinct legal
personality in International law separate from that of the members states.
The theory of recognising an entity as subject of International law on the basis of the capacity
of rights and duties under it appears to be sound. A few jurists who had earlier taken the stand

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that state only and exclusively are the subjects of International law have shifted from their
earlier view and have begun to state that states are primarily, but not exclusively the subjects
of International law.

SOURCES OF INTERNATIONAL LAW

a) The term ‘source’ refers to method or procedures by which international law is created.
b) Oppenheim opined that there is only one source of international law that is common
consent. Lawrence said that there is only one source of law that is consent of nations.
c) Consent maybe either express or implied. Logically, therefore, there are two chief
sources of international law
i. Treaties (Express consent)
ii. Customs (implied consent)

CUSTOM
Custom is the original and the oldest source of international law and at a time it was the most
important amongst the sources. Custom is the foundation stone of the modern international
law. It was so because a large part of international law consisted of customary rules.
Custom is referred to those habits which are regarded as binding upon the states. Therefore,
when a habit or usage becomes obligatory on a state to practice, it is known as custom. The
obligation arises from the fear of enforcement before the courts.
Custom and usage: practice of States have two stages: usage and custom.
Usage is meant a practice of a certain uniformity and consistency, such that it is possible
to presume a duty to act accordingly, although this duty is not of a legal character, but a moral,
or of courtesy.
A usage therefore becomes custom when it has received legal recognition. In the
absence of legal recognition, a habit is regarded as usage, and it does not acquire the status of
custom. Starke, has very rightly stated that usage represents the initial stage of custom.

In order to establish the existence of an international custom, primarily three elements are
required to be present which are duration, continuity and generality
Duration: when a particular usage is practiced by the state for a long duration, it has a tendency
to become custom. How much time usage takes to transform into custom is a question which
is difficult to answer.
A usage may become custom even in a short time. All depends on the circumstances of the
case and the nature of the rule involved. Practice relating to Continental shelf, and rules relating
to air space have become custom in a short time.
The concept of Continental shelf was introduced in 1945, and by 1958 it had become a
customary rule of international law. Similarly the principle of sovereignty in the airspace arose
spontaneously at the outbreak of the first world war.
Uniformity or consistency : a practice is required to be followed consistently by the states. In
the words of the permanent Court of international justice in the Lotus case, ‘the practice
should be constant and uniform.

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Generality: it is essential that usage should be practiced by most of the states in order to
transform into a custom. The above implies that there is no rule with prescribes that the consent
of all state is a necessary condition to the formation of a customary rule. In west rand Central
Gold mining company limited versus R. 1905, it was held that it must be proved by
satisfactory evidence that the alleged rule is of such a nature, and has been so widely and
Generally Accepted, that it can hardly be supposed that any civilized state would repudiate it.
Although universality of practice is not necessary, the practice should have been generally
observed or repeated by numerous state.

TREATIES
At present, International treaties of the most important source of international law. Treaties
are agreement between two or more States or between other subjects of international law by
which they create or intend to create a relationship between themselves. Such agreements are
sometimes referred to convention, protocol, accord etc. The terminology varies but the
substance is the same.
treaties embody the express consent of the parties to the rule or rules laid there in. It has,
therefore, become a tendency to transform customary International Law into conventional law
because consent obtained in former is only implied.

International treaties are agreements of a contractual character between States or organisations

of states creating legal rights and duties. Oppenheim.
According to Article 2 of the Vienna Convention 1969, a Treaty is an agreement whereby two
or more States establish or seek to establish relationship between them governed by
international law.

General and particular treaties

International Court of Justice, in accordance with Article 38 of the statute applies ‘general’ as
well as ‘particular’ treaties when a dispute is brought before it.
General treaties are those wherein most of the states of the world community are parties
and which are open to accession by others. Examples of such Trities are Hague convention of
1899 and 1907, Geneva Protocol of 1925, the general treaty for the renunciation of War of
1928 and Geneva conventions of 1949.
Particular treaties are generally referred to bilateral treaties, or plurilateral treaties or
ordinary treaties wherein number of parties is two or more than two. They are also known as
contractual type of treaties or ‘Treaty contracts’. Such Treaties create law for two or more
States.

Pacta sunt servanda :

according to Starke “in nearly all the cases the object of the Treaty is to impose binding
obligations on the states who are parties to it.
Lauterpatch stresses, treaties are legally binding because there exists a customary rule of
international law that treaties are binding.

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Pacta sunt servanda means “the states are bound to fulfill in good faith the obligations assumed
by them under treaties” (sanctity of contracts)

Vienna Convention on the law of treaties 1969

the Vienna Convention codified the law of treaties. The convention consists of a Preamble and
85 articles and is divided into eight parts. The convention came into force on January 27 1980
when it was ratified or acceded to by 35 States.
Generally, only sovereign states are competent to make a treaty. The Vienna Convention,
however, Lays down that “every state possesses capacity to conclude treaties”. Therefore, all
the states including those which are not fully Sovereign has a capacity to conclude treaties.
Thus, a Colony, trust territory, protectorate or vassal state may also be a party to a treaty.

Jus cogens
there are certain principles in international law which all the states must observe, their non
observance may affect the very foundation of the legal system to which they belong. They,
therefore, cannot be altered by concluding treaties. These basic or fundamental rules posses the
character of jus cogens. The evolution of jus cogens may be traced to Roman law doctrine jus
publicum privatorium pactis mutari not potest which means that “a public law or right cannot
be altered by the agreements of private persons.”
Illustrations of jus cogens
In the genocide convention case the court acknowledges that the norm prohibiting genocide
may be binding on states even if they are not parties to the genocide convention.
In North sea Continental shelf case it was held that the principal of Continental shelf
institution must be recognised as Jus cogens.
In Barcelona traction case it was stated that principle of self determination is a norm of Jus
cogens.
Again in the Namibia case the imperative character of the right of people to self-determination
and the imperative character of Human rights were emphasized

Custom and treaties

custom and treaties are the two methods for the creation of the legally binding rules ever since
the beginning of the international community. In both the methods consent of the states is
reflected, and therefore, they do not impose obligations on those States which have not wished
to be bound by them. However, both differ from one to another.
Firstly, while in customary rules of international law, consent of the states is implied,
in the international conventions States consent is Express.
Secondly, normally, transformation from usage to custom takes fairly long time. Thus,
while the development of international law through the process of customary rules is very slow,
the Treaty making process is more Rapid.
Thirdly, on many occasions one finds that the customary rules are not precise and
adequate, but the rules formulated through treaties are clear and precise.

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 General principles of law
Article 38(1)(3) of the statute of ICJ lists ‘general principles of law recognised by civilized
States’ as the third source of international law independent of custom or treaty. The rationality
for the inclusion of general principles of law as one of the sources of international law lies in
the fact that a principle, which has been found to be Generally accepted by certain civilized
legal systems, may fairly presumed to be so reasonable as to be necessary to the maintenance
of justice under any system.
Examples are “the rules of pacta sunt servanda, that contracts must be kept, the principle that
no man may be a judge in his own cause, the right of self defence etc.”

By the term general principles of law recognised by civilized Nations is meant those principles
which have been recognised by most or all the states of the world community in their domestic
law.

Examples: some general principles of law common to Municipal legal system are:-
1. Res judicata (a thing or matter settled by judgement)-A matter once judicially decided
is finally decided, and there is an absolute bar to a subsequent action involving the same
claims, demand or cause of action. This principle was taken into account in the UN
Administrative Tribunal case
2. Prescription (a claim to a right founded upon enjoyment) Eastern Greenland case,
island of palmas case
3. Estoppel A state party to International obligation is bound by its previous acts or
attitude when they are in contradiction with its claims in the litigation. The principle
was also applied in temple of Preah Vihar case, Barcelona traction case
4. Equity (reasonableness, fairness)- the ICJ has been increasingly referring to equity in
its judgement in recent years. the gulf of Maine boundary case, North sea Continental
shelf case

Lauterpatch has rightly remarked that “the main function of the general principles of law has
been that of a safety valve to be kept in reserve.”

Judicial decisions
judicial decisions are the subsidiary means for the determination of rules of law and they
therefore are the subsidiary and indirect source of international law. It is so because the
decisions of the courts do not create any precedent. They have no binding force except to the
parties to a particular case.
International Court of Justice: International Court of Justice at present is the main
International judicial Tribunal. However, its decisions are binding only to the parties to a case.
It does not create a binding rule of international law. Article 59 of the statute of the court has
made it clear when it says that, “the decision of the court has no binding force except between
the parties and in respect of that particular case.”

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 Writings of Jurists
This source may be resorted to as final resort, that means, only when all the other sources listed
in Article 38 have failed to resolve the dispute before the court. Sometimes juristic opinion
does lead to the formation of international law. In paquete habana case, justice grey observed,
“where there is no Treaty and no controlling executive or legislative act or judicial decision,
Resort must be had to the customs and usages, and, as evidence of these, to the works and
commentators, who by years of labour, research and experience have made themselves
peculiarly well acquainted with the subjects which they treat”.
Although juristic works are not an “independent source” of law, sometimes, juristic opinion
does lead to the formation of international law. Juristic opinion , very often, throws light on the
rules of international law and their writings make it easier to frame a particular rule. The value
of the juristic writings carries more weight particularly in those fields of international law
where Treaty or customary rules do not exist.

It is to be noted that writings of the most highly qualified publicists have been included under
Article 38(1)(d) of the statute of the ICJ next in importance to the judicial decisions as the
subsidiary means for determining the rules of international law.

Equity
The term equity, as a source of international law, is used in the sense of consideration for
fairness, reasonableness and policy often necessary for the sensible application of the more
settled rules of law. It is to be noted that equity has not been mentioned by the statute of the
International Court of Justice even as a law determining agency, perhaps, because its inclusion
would have given too much discretion to the court.

Resolutions of the general assembly

After the establishment of UN, most of the development of international law and its
codification has taken place through the instrumentality of international organisations. General
Assembly, one of the principal organ of UN, has established International Law Commission.
The decisions and determinations of organs are now recognised as an important source of
international law (although they do not find mention in Article 38 of Institute of ICJ).

Examples of important lawmaking resolutions are the

i. universal declaration of human rights of 1948
ii. the declaration on the prohibition of the use of nuclear weapons for war purpose of
1961
iii. the declaration on permanent sovereignty over natural resources of 1962
iv. friendly relations declaration 1970
v. the resolution defining aggression in 1974.
vi. Etc.

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It is important to note that the general assembly performs the functions of law making in two
ways.
Firstly, it makes International agreements and commend them, for signature and ratification
through the normal Treaty making practices of the states.
The genocide convention 1949 , the international covenants on human rights 1966 , the
international convention on the rights of the child 1989 etc are the examples of such method.

Secondly, the Assembly makes treaty through its subsidiary law making bodies such as the
International Law Commission and United Nations Commission on international trade law.
These Treaty drafting bodies are given topics by the General Assembly for making laws and
they report to the Assembly yearly.
The laws made by the Assembly through the above two ways are of immense importance and
they have been well recognised by the states.

Relationship of International Law and Municipal Law

while international law is applied in the relations of the states and to other subjects of
international law, national or State Law which is called Municipal Law is applied within a state
to the individuals and corporate entities which are the bearers of rights and duties thereunder.
When there exists a conflict between the rules of International Law and Municipal Law, a court
is faced with the difficulty of arriving at a decision. Before an international Tribunal, the
question is one of primacy - whether International Law takes primacy over Municipal law, or
vice versa. If the conflict arises before a Municipal Court, the answer depends on how far the
constitutional law of the state allows International Law to be applied that directly by the courts.
International Law cannot work without the cooperation and support of national legal systems.
The views of the jurists on the question of relationship of International Law and Municipal
Law are divergent which have led to the emergence of different theories.

DUALIST THEORY
according to dualist theory, International Law and Municipal laws of the several states are two
distinct, separate and self contained legal systems.
Such a view avoids any question of the Supremacy of the one system of law over the other
since they share no common field of application: each is Supreme in its own sphere.
Dualist view was developed by a prominent German scholar Trieple in 1899. For him,
international law and domestic or Municipal Law existed on separate Planes, the former
governing International relations, the latter relations between individuals and between the
individual and the state. The theory was later on followed by Italian jurist Anzilloti.

The above authors are of the view that the two systems of Law differ from each other on the
following grounds:
Regarding sources: according to dualists, while the sources of international law are custom
grown up within the boundaries of the state concern and the statutes enacted by the sovereign,
the sources of international law are custom grown up among the states and law making treaties
concluded by them

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Regarding subjects: dualists are of the view that the subject of International Law and
Municipal Law are different from each other. While Municipal Law regulates the relations
between the individuals and corporate entities and also the relations between the state and the
individuals, International Law regulates primarily the relations between States.
Regarding substance of law : while Municipal Law is a law of sovereign over individuals,
international law is a law not above, but between sovereign States. Municipal Law addresses
itself to the subjects of the sovereigns, International Law to the sovereigns themselves.
Regarding principles : Anzilloti is of the view that while Municipal laws in a state are obeyed
because they are the principles of state legislatures, international law is obeyed because of the
principle of Pacta Sunt Servanda.
Regarding dynamism of the subject matter: transformation of international law into Municipal
Law may take place according to the constitutional provisions of the states, and therefore the
procedure may be different from state to state.

MONISTIC THEORY
Monistic theory was propounded in the 18th century. It was put forward by two Germans
scholars Moser (1701- 1785) and Martens (1756-01821).
According to monistic theory, Municipal Law as well as International Law are parts of one
Universal legal system serving the needs of the human community in one way or the other.
Exponents of monastic theory rejected the alleged differences between the two systems
regarding sources, substance and subjects as laid down by dualists. According to them, subjects
of both the system of law are ultimately individuals.
If one argues to the exponents of monastic theory that International Law regulates the relations
of states and not that of individuals, they ask what is a state? According to them since a state
consists of individuals, rules of international law are ultimately binding on them only like
Municipal Law.

It may be said that dualistic and monistic theories are traditional and most popular but no theory
alone can be said to be appropriate. It is required that International Law and Municipal Law
should be harmonized because it has been regarded that both have been made for human beings.

Indian constitution under Article 51 provides the general obligations of India to the world by
stating that:
“The State shall endeavour to
a) to promote International peace and security
b) maintain just and honourable relations between Nations
c) Foster respect for international law and Treaty obligations in the dealing of organised
peoples with one another
d) encourage settlement of international disputes by arbitration.

The above Article forms part IV of the constitution which Lays down the Directive Principles
of State Policy.

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Vishaka versus state of Rajasthan, the supreme court held that the international conventions
and norms are to be read into them in the absence of enacted domestic law occupying the field
when there is no inconsistency between them. In the above case, a writ petition was filed by
certain social activists and NGOs for the realisation of the true concept of gender equality and
to prevent sexual harassment of working women in all workplaces through judicial process to
fill the vacuum in existing legislation.
Reference was given to Article 11 of the convention on the elimination of all forms of
discrimination against women which prohibits discrimination against women in the field of
employment i.e., equality in employment. It was observed by the court that equality in
employment can be seriously impaired when women are subjected to gender specific violence,
such as sexual harassment at the workplace.
Since in India there is no law to formulate effective measures to check the evil of sexual
harassment of working women at workplace, the court held that the contents of international
conventions and norms are significant for the purpose of interpretation of the guarantee of
gender equality, right to work with human dignity in Articles 14 ,15, 19(1)(g) and 21 of the
constitution and the safeguards against sexual harassment implicit therein.

STATES
States are the primary subjects of international law. They possess the totality of rights and
duties under international law. For the purpose of international law, a state may, therefore, be
defined as a Society of men occupying a territory, the members of which are bound together
by the tie of common subjection to a government and which has the capacity to enter into
relations with other entities. Any entity which possesses even the smallest measure of these
attributes may be termed a state.
Montevideo convention on the rights and duties of states of 1933 laid down certain
qualifications of States under Article 1 that “the state as a person of international law should
possess the following qualifications:
a) Permanent population
b) defined territory
c) a government and
d) capacity to enter into relations with other states

Population: by the term population is meant people. A people is an aggregate of individuals

who live together as a community though they may belong to different races or creeds or
cultures, or be of different colours.
Territory: a state must have a territory. It is immaterial whether the territory where the people
have settled down is small or large. It is not essential that the territory should be defined as laid
down by the montevideo convention on the rights and duties of States. The term ‘defined’ does
not mean that there must be complete certainty over the extent of territory. Even at present a
number of states have border disputes over the precise line of the Frontier, but it does not mean
that they are not States.
Government :the people and the territory should be governed by a government. A state always
acts as a government. A state which does not have a government is not regarded as a state.

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Capacity to enter into relations with other states: A state must have the capacity to enter into
relations with other states, in order to call it a state in international law. For instance in India,
where federated States do not possess a capacitor to enter into relations with the states, are not
regarded as States when look from the view point of international law.

KINDS OF STATES
All those entities which possess the above attributes are called States. For convenience,
therefore, states may be divided into three categories. They are firstly, sovereign States,
secondly, non fully Sovereign state and thirdly, not typical States.

Sovereign States
By the term sovereignty is meant the supreme authority within the state which on the
international plane means not legal authority over all other states but rather legal authority
which is not in law dependent on any other earthly authority.
Thus, the Essential elements of sovereignty are firstly, that it is exercised within territorial
limits and, secondly, sovereignty is constituted by the independence of State Power from any
other power i.e., an authority over which there is no other authorities.

A sovereign state is not free to do even in its internal affairs which is detrimental to the freedom
and independence of other states. Further, a state cannot pretend absolute sovereignty without
demonstrating a duty to protect people's right. A state has a duty to protect human rights and
fundamental freedoms of its citizens. If a government fails to protect Human Rights, or to say,
in cases when they deliberately engage in policies leading to crime against humanity or where
there is a mass violation of human rights, the international community may intervene.

Independence in external affair means that a state is independent to exercise its external
functions, i.e., external affairs. Consequently, a state is free to frame its foreign policy; it can
establish relations with other states and it may decide itself on all foreign issues affecting it.
No other state can prescribed the rules of conduct which a Sovereign state should follow in
international affairs.

It is to be noted that at present the meaning of term sovereignty has undergone a drastic change.
Even a Sovereign state does not possess ‘Supreme and absolute powers’. In the context of
Municipal Law, a sovereign state may have a Supreme Power within the state, but in
international law where all states are equal and sovereign, the sovereignty no longer conveys
the idea of Supremacy.
In international law and international relations, Sovereign state does not possess ‘Supreme and
absolute’ power, and therefore, it has a restricted meaning than what it had in the earlier
centuries. This theory is referred to relative sovereignty. Thus, even a Sovereign state is bound
by rules framed by international law which have been created by the sovereign States
themselves in the process of their International intercourse. Thus, states themselves by giving
their consent have placed limitations on their supreme and absolute powers. A state in
maintaining its own sovereignty has to recognise the sovereignty of other states.

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Draft declaration on the rights and duties of States have regarded that it is one of the duties of
the state to conduct relations with other states. Article 14 of the declaration stipulates that every
state has the duty to conduct its relation with other states in accordance with international law
and with the principle that the sovereignty of each state is subject to the Supremacy of
international law. The limitation so place by giving consent on the sovereignty is termed as
“auto limitation”.

Sovereign equality of States: sovereign states are the subjects of international law in the fullest
sense. Oppenheim has stated them ‘real’ international person because they are the main legal
actors in international law.
It is to be noted that all the sovereign states are equal in status irrespective of their size,
population, resources and other distinctive features. The principle of equality of States has been
recognised under Article 2 para 1 of the charter of the United Nations which says that ‘the
organisation is based on the principle of the sovereign equality of all its members.’
All States have equal rights and duties and are equal members of the international community
irrespective of their economic, social, political and other differences.
The vote of all the sovereign States shall have equal weight. Within the general assembly of
the United Nations, the doctrine of equality of states is maintained by the rule of one state, one
vote, irrespective of realities of power.

NOT FULLY SOVEREIGN STATES

It is not necessary that a state should be sovereign in order to be an international person. If the
attributes of statehood are possessed by the states other than sovereign States, even of the
smallest degree, they may be deemed International person.

PROTECTORATE STATES
when one state surrenders itself, by an agreement embodied in a Treaty, the administration of
certain important international affairs, to the protection of another state, a kind of relationship
is established between the two States known as protectorate.
The permanent Court of international justice held that relationship between the protectorate
and protecting state as well as relations of these two States with rest of the world depends upon
the terms of treaty.
Protected states are not sovereign States. However, they are prima facie Independent and the
possessor of all rights which they have not surrendered. They are therefore International
persons and subjects of international law.
Bhutan: Bhutan became a protectorate of India through a Treaty of friendship concluded on
August 8 1949. The Government of Bhutan agreed to be guided by the advice of the
Government of India in regard to its external relations.
Sikkim : Sikkim became a protectorate of India through a Treaty concluded on December 5
1950 whereby India assumed the responsibility for the Sikkim’s external affairs,
Communications, defence and territorial integrity.

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VASSAL STATES
A state which remains under the suzerainty of another state is called vassal state. Although
vassal state do not have capacity to enter into relationship with other states, since the suzerain
absorbs these relations entirely, they may be listed in the category of not fully Sovereign state.
Thus, all International Treaties concluded by the suzerain state are ipso facto concluded for the
Vassal if exception is not expressly mentioned or as not self-evident. War of suzerain is ipso
facto a war of the Vassal.
The position of the Vassal state is different from the protectorate state. the two differ on many
grounds.
✓ Firstly, while in the case of protectorate state, the superior state protects the weak state
in accordance with the terms of Treaty concluded between themselves, in the case of
vassal state, Suzerain power absorbs foreign relations entirely.
✓ Secondly, if a war is declared by the protecting state, protected state does not ipso facto
becomes the party to that war. However, in the case of vassal state, War of the suzerain
is ipso facto War of the Vassal.
✓ Thirdly, while a Treaty concluded by the protectorate state, is not ipso facto binding on
the protected state, all International treaties concluded by the suzerain state are ipso
facto concluded for the Vassal.
✓ Fourthly, while a protectorate state may become a member of the International
Organisation including that of the United Nations Organisation, a vassal state does not
have capacity either to become a member of international organisations or to establish
relationship with other states.

NOT TYPICAL STATES

A few States have certain peculiarities of their own, and are therefore, different from the typical
sovereign States. They are as follows
Holy see : the term Holy see is used to refer to the supreme organ of the Catholic Church i.e.,
Bishop of Rome, commonly called the Pope, together with those offices of the Roman curia
through which he governs the universal Church. The holy see is a small Sovereign state having
land Territory of about half square kilometer, and very less population composed of persons
residing therein by virtue of their office. The head of the Catholic Christian Pope is the monarch
of the Holy see. The holy see possesses an international personality despite being a very small
state.

Neutralized state: when a state declares that it would never take up arms against any other state
except in the case of aggression, and it shall adopt the attitude of impartiality in all the wars
that may occur, the state is called neutralized state if the declaration is guaranteed by other
states in an international agreement.
Three elements are required to exist in order to call a state in neutralized state.
✓ Firstly, a state must abstain from offensive action. However, it may take up arms in
case of aggression.
✓ Secondly, a state must remain neutral in all the wars in future and

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 ✓ Thirdly, the above position of a state should be guaranteed collectively by other states
in an international convention.

Rights and duties of States

states are the primary subjects of international law. it is so because they have been endowed to
totality of rights and duties under international law. The basis of the rights and duties of the
states, according to the naturalist school, is the natural law. This theory was dominant
throughout the 17th and 18th centuries. The writers of the above period were of the view that
International Law derive from the natural law, and therefore, rights and duties of the states
which have been conferred to them by the rules of international law are also based on the law
of nature. However, the writers of the present century do not agree with the above view. They
are of the opinion that rights and duties have been conferred to the states through custom and
treaties. Any act may be regarded, by the conclusion of a Treaty as a right of state.

The draft declaration on the rights and duties of the state was prepared by the International Law
Commission. The Preamble of the declaration inter alia stated that “it is therefore desirable to
formulate certain basic rights and duties of states in the light of new development in
international law.”
Following rights and duties of the states are set forth in the draft declaration.
Rights of the states :
✓ Right to Independence Article 1
✓ right to territorial jurisdiction Article 2
✓ Right to Equality Article 5
✓ Right to self defence Article 12
Duties of States
✓ Article 3, Duty to refrain from intervention, every state has a duty to refrain from
intervention in the internal or external affairs of any other state
✓ Article 6 duty to respect for human rights and fundamental freedoms
✓ Article 7 duty to ensure international peace
✓ Article 8 duty to settle disputes by peaceful means
✓ Article 9 duty to refrain from resorting to war
✓ Article 13 duty to carry out obligations in good faith
✓ Article 14 duty to conduct relations with other states

An entity in order to be called a state should possess essential attributes of statehood

such as population, territory, A Government and the capacity to enter into relations with other
states. When possession of these attributes in a state is acknowledged by other existing states,
it is known as the recognition of state.
Recognition may therefore be defined as a formal acknowledgement by the existing members
of the international community of the international personality of a new state. The grant of the
recognition establishes that the new state, in the opinion of existing recognising States, fulfils
the conditions of statehood required by international law, so that the new state can be regarded
as an international person possessing the rights and duties which international law attributes to
States.

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On many occasions a new state is not recognised by other states even if the former fulfills the
essential conditions of statehood and on some occasions recognition is granted even if the new
state does not possess all the attributes of statehood. It is said, therefore, that the
acknowledgment of the possession of the attributes of statehood in a state depends upon the
discretion of the existing States.

Theories of recognition
constitutive theory: according to this theory personality of a state is created not by fact but
through recognition by other states. In other words, an entity does not become a state by
possessing essential attributes of statehood. It becomes so, when it is recognised by other states.
This theory has been advocated by Anzilloti and Holland. According to them a new entity
cannot become a state ipso facto. It has to be recognised by other states so as to become an
international person.
The constitutive theory suffers from a number of defects which are as follows:
➢ when a state comes into possession of all the attributes of statehood, it is not necessary
that its existence is recognised by other states simultaneously. Bangladesh was
recognised by Pakistan much after the recognition granted by India and some other
states. The acceptance of the constitutive theory would mean that a state exists for some
States (which have granted the recognition) and does not exist for others (which have
not granted recognition).
➢ Secondly, there is no legal duty on the part of the existing States to recognise any
community that has in fact acquired the characteristics of statehood.
➢ Thirdly, a state exists prior to its recognition.
➢ Lastly, a state does have some rights and obligations under International Law, even
without recognition.

Declaratory theory : According to this theory a state comes into existence in international law
as soon as it requires all the attributes of statehood. By having all the attributes, and entity exist
in fact. Recognition by other states supplies the evidence of this fact. The act of recognition is
therefore declaration of an existing fact that an entity possesses the essential attributes of
statehood. This theory has been advocated by hall, brierly and Fisher. This theory appears to
be better than the constitutive theory. However, it still has a defect in the sense that a state
although would come into existence by having all the essential attributes of statehood, it would
not have legal relationship with other states unless recognised.
According to Kelsen, the statehood may be distinguished into natural statehood and juridical
statehood. The former exists in a state from the moment it comes into possession of the
Essential elements of statehood. The latter can be acquired by a state only when other states
recognises it. The above view taken by kelsen may be termed as modified constitutive theory.
In general, today, admission into United Nations amounts to a certificate of statehood
(collective recognition). However, as the act of recognition is the free will of each state, even
in the case of resignation by United Nations, the states, which did not vote in favour, are not
deemed to have recognised a new state.

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 Forms of recogntion
a state may be recognised in two ways. Express recognition and implied recognition
Express recognition : when an existing state recognises the new state by a notification or
declaration, announcing the intention of recognition, the recognition is said to be Express.
Recognition of Bangladesh by India on December 6, 1971 is an example of express recognition.
Express recognition may be granted by a state either by the announcement of the government
or in a press release of the fact that it has decided to recognise a state. Express recognition may
also be granted by conclusion of a treaty.

Implied recognition: when the existing States do not make any formal declaration as to
resignation of a new state, but at the same time they indicate their intention to recognise the
new state by some acts, it amounts to recognition. Montevideo convention of 1933 under article
7 states that the tacit or implied recognition ‘results from any act which implies the intention
of recognising the new state’.

Mode of recognition
De facto recognition: when an existing state considers that the new state has not required
sufficient stability, it may grant recognition to the latter provisionally which is termed de-facto
recognition. De facto recognition is granted normally when the recognising state considers that
the new state although has a legitimate government, its effectiveness and continuance to govern
the territory is doubtful.
De facto recognition may be granted as a preliminary step towards De Jure recognition. The
Soviet Union was recognised by Great Britain de facto on March 16, 1921 and later De Jure
on fab. 1, 1924.
The de facto recognition once granted may be withdrawn by the recognising state when the
latter considers that the new state has ceased to possess the capability of administering the
territory.
If the existing States, after granting de facto recognition, later choose to recognize De facto,
the effect of the later is given from the retrospective date, that means, from the date when the
de facto recognition was granted.

De Jure recognition: when an existing state considers that the new state is capable of
possessing all the essential attributes of statehood with stability and permanency and it
commands the general support of the population, the recognition granted is known as De Jure
recognition. For instance, when Israel came into existence, full condition was expressly granted
by many states including the United States of America.
➢ De Jure recognition is final.
➢ De Jure recognition may be given, with or without prior to de facto recognition.
➢ When a new state comes into existence peacefully and constitutionally, De Jure the
recognition may be granted directly.
➢ However, when it is not so, to say when the new state is formed through revolt,
recognition may be granted after granting the de facto recognition

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Luther vs Sagor 1921, as soon as the de facto recognition is given, the government acquires
sovereign immunity from being sued in the courts of a foreign state which so recognises it. It
does not matter in such cases, whether a de facto or De Jure recognition is given, because a DE
Facto recognition dates back in the same manner as a De Jure Recognition. This rule has been
applied in a number of cases, Bank of Ethiopia vs National Bank of Egypt and ligouri 1937
Arantzazu mendi 1939, so far as conflict of authority takes place between a displaced De Jure
government and a newly recognised de facto government concerning matters in the territory
ruled by the de facto government, the rights and status of De facto government will prevail.

It may be pointed out that the De Jure and de facto recognition are out of fashion and the current
practices of states is to grant “full recognition” and there is no Halfway between the two.

Legal effects of recognition

Non recognition does not mean that the entity does not qualify for statehood. recognition should
however be granted because it has important legal consequences. The recognised state acquires
certain rights, privileges and immunities under International Law as well as Municipal Law
such as
✓ recognise state is entitled to sovereign immunity for itself as well as its property in the
courts of recognising state
✓ recognised state may enter into diplomatic and Treaty relationship with the recognising
state.
However, non condition of a state does not mean that the new entity will be devoid of legal
effects in relation to the non recognising States. General International rules or treaties on the
co-ordination of states such as the norms on the high Seas or respect for territorial or political
Sovereignty do apply to the relationship between the new state and all other members of the
international community.
✓ Non recognition has no effect before International courts or tribunals tinocco
concessions case.

Withdrawal of recognition
although the act of granting recognition is political, recognition De jure once granted is,
generally speaking, irrevocable. Article 6 of the montevideo convention 1933, also declared
that the recognition is unconditional and irrevocable. If a state does not have cordial relations
with other state it may take other steps, including the rupture of diplomatic relations, which
does not result in the withdrawal of recognition. such acts of states are likely to affect friendly
relations of states, which in turn may affect international peace and cooperation amongst the
states. It is desirable that recognition once given by a state is not withdrawn even on political
ground. Even the recognition de-facto cannot be withdrawn so easily in spite of the fact that
revocability is inherent in its concept.

Tobar Doctrine and Estrada doctrine

on many occasions States have refused to recognise a Revolutionary government on the ground
that such a government has come into existence after applying force. The five Central American
republics concluded treaties in 1907 and 1923 which embodied the ‘doctrine of legitimacy’,

19
the so-called ‘tobar doctrine’ propounded in 1907 by Tobar, the foreign minister of Equador
in which they bound themselves not to grant recognition to any government coming into
existence by Revolutionary means until such a government has been recognised by its own
people in a constitutional manner.
The view that non recognition because of the unconstitutional Origins of the
government was an interference in its domestic affairs led to the introduction of the so-called
Estrada Doctrine propounded by Estrada, the foreign minister of Mexico in 1930, according to
which it is a duty of states to continue diplomatic relations with the states without regard to
Revolutionary change in a country. Estrada doctrine is also sometimes called doctrine of
effectiveness.
Professor Richard baxter suggested that recognition is “an Institution of law that causes
more problems than it solves it and therefore must be rejected.”

Recognition of belligerency
when civil war takes place in a state in such a dimension that other states start treating it as a
real war between the Rival power, it is said that the state of belligerency exists. When the
Rebels are recognized, it is known as recognition of belligerency.
The recognition of belligerency shows that the recognising state considers that the Rebels are
in a position to exercise authority over the territory in their possession.
Starke says that before belligerency is recognised by other states, certain conditions must exist
✓ Hostilities should be of a General character. it should not be confined to only a part of
the state. It should not be of a purely local nature.
✓ The Rebels or insurgents must be in control of substantial part of national territory.
✓ Both parties must act in accordance with the laws of War
✓ The Rebels must have organised force under a proper command.

Recognition of insurgency
when in a civil war, Rebels or insurgent forces start operating in such a way that they occupy
a large part of the territory formerly governed by the parent Government, and they constitute
de facto authority over it, the Rebels or insurgents May claim some measure of international
subjectivity.
After the second world war a number of cases of internal conflicts occurred.
When the insurgents or Rebels are recognised by other existing states, it is known as a
recognition of insurgency.
Before insurgency is recognized, recognising state is required to satisfy the following
conditions Such as
insurgents have occupied control over a considerable part of the territory and insurgents have
a support from the majority of the people inhabiting the territory.

Distinction between recognition of insurgency and Belligerency

a question arises whether a state of insurgency where Rebels are fighting without an organised
force and without a commander and without following the rules of Warfare and where the
nature of hostility is almost localised can justifiably be recognised by other states. It has been
stated that such an affair should not be recognised.

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If the insurgents are having control over some territory, and they form and organised authority,
and are ready to observe rules of Warfare, is state of belligerency exists and could be recognised
by other states.

NATIONALITY
Individuals of a particular nation are supposed to owe allegiance to their states. Such
individuals who owe permanent allegiance to a state are known as nationals of a state. The term
nationality signifies the legal tie between individuals and the state.
Oppenheim has very rightly stated that nationality of an individual is his quality of being a
subject of certain state.
Nationality of a person is determined in accordance with the rules of Municipal Law.

The international Covenant on civil and political rights Lays down under article 12 para 4 that
“no one shall be arbitrarily deprived of the rights to enter his own country.
The universal declaration of human rights of 1948 provides under article 15 para 1 that
“everyone has the right to a nationality.”

Nationality and citizenship

Nationality creates a legal relationship between a state and the individual under international
law. Citizenship, on the other hand, denotes the relationship between the person and the
Municipal Law. The concept of citizenship is therefore, irrelevant to international law.
All the citizens may possess the nationality of a particular state, but it is not necessary that all
nationals may be the citizens of that particular state.

Modes of acquisition of nationality

a person may acquire the nationality of a state in accordance with the rules of Municipal Law.
It implies that Municipal Law determines as to who may be a national of a particular state.
Modes of acquisition of nationality are therefore not uniform. They differ from state to state.
1. By birth: Nationality is conferred to a person by many states on the basis of birth. All
those persons whose birth take place within territorial limits of a state acquire the
nationality of that state. The above principle is called jus Soli
2. By decent : nationality of a state may also be acquired by a person on the basis of the
nationality of either parents. Thus, a child may become a national of that state of which
his parents are national. This principle is known as jus sanguinis
3. By naturalization: when the nationality of a person changes subsequently, and he
acquires nationality of some other state, the process of acquisition is known as
naturalization . A state has a discretion to confer nationality by naturalization. It may
grant nationality upon the fulfilment of conditions it deems appropriate. A person who
wants to acquire nationality through naturalizatin is required to give an application and
to make request for acquisition of nationality through naturalization.
4. By subjugation: a person may acquire nationality through subjugation after conquest.
When a part of the territory of a state or a state itself is subjugated by another state, all
the inhabitants of the territory become the nationals of the latter state.

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 5. By registration: a person may acquire nationality of a state through registration. the
process of registration may be different from one state to another depending upon the
laws of that state.

EXTRADITION
It is quite possible for a person to escape to another state after committing a crime in his own
state.
A question arises as to whether Fugitive shall be tried in the country where he has fled away
or in the state where the crime has been committed.
Normally, a state finds itself in a difficult situation to punish a person who has committed a
crime elsewhere primarily because of the lack of Jurisdiction, and therefore, such persons are
sometimes surrendered to the state where the crime has been committed.
Surrender of an accused or of a Convict is referred to extradition.

The term extradition has derived from two Latin words ex and traditum .
Originally, it may mean “delivery of criminals”, “surrender of fugitives” or “handover of
fugitives”. Extradition may be defined as surrender of an accused or a convicted person by the
state on whose territory he is found to the state on whose territory he is alleged to have
committed or to have been convicted of a crime.
According to oppenheim “extradition is the delivery of an accused or a convicted individual
to the state where he is accused of, or has been convicted of, a crime, by the state on whose
territory he happens for the time to be.

The above definition makes it clear that in extradition 2 states are involved. They are:
➢ Firstly, the territorial state, i.e., a state where an accused or convicte is found
➢ Secondly, the requesting state, i.e., a state where the crime has been committed.

Purpose of extradition
1. Extradition is a process towards the suppression of crime
2. extradition acts as a warning to the criminals that they cannot escape punishment by
fleeing to another state.extradition therefore has deterrent effect.
3. Criminals are surrendered as it safeguards the interest of the territorial state. If a
particular state adopts a policy of non extradition of criminals, they would like to flee
to that state only. The state, therefore, would become a place for international criminals.
4. Extradition is based on reciprocity. a state which is requested to surrender the criminal
today may have to request for extradition of a criminal on some future date.
5. Extradition is done because it is a step towards the achievement of international
cooperation in solving International problems of a social character.
6. The state on whose territory the crime has been committed is in a better position to try
the offender because the evidence is more freely available in that state only.

Whether extradition a legal duty of a state

The supreme court of the United States of America in factor versus labubenheimer clearly
stated that “International Law recognises no right to extradition apart from a treaty. The legal

22
duty to demand his extradition and the corelative duty to surrender him to the demanding
country exist only when created by treaty.

Only in exceptional cases, state may extradite a person on the basis of reciprocity. however,
this is done not because of any legal duty on their part, but because of reciprocity or curtsey.
For example, India does not have any extradition treaty with Portugal. However, when Abu
Salem, an accused in 1993 Mumbai blast and an underworld don fled to Portugal along with
his wife Monica Bedi, Portugal, in the absence of a Treaty, extradited Abu Salem to India after
latter gave an assurance that he would not be given death sentence. Later, High Court of
Portugal passed an order on July 14 2004 along with reason for his extradition to India. His
wife has also been ordered to be extradited to India.

Extradition and deportation : extradition and deportation both are the methods by which an
alien is required to leave the territory.
Firstly, while extradition is primarily performed in the interest of the requesting state,
deportation is performed in the Exclusive interest of the expelling state.
Secondly, extradition needs the consensual cooperation of at least two States whereas
Deportation is a unilateral action apart from the duty of the receiving state to accept its own
national.
Thirdly, extradition applies to criminal prosecution and therefore suppresses criminality,
expulsion order may be issued to any foreign national on a number of grounds.
When an offender is returned to another state in the absence of an extradition Treaty, normally
the act is called deportation. In practice, a person is deported to the state from which he has
arrived in the deporting state.

Extradition of political offenders

It is a customary rule of international law that political offenders are not extradited. In
other words, they are granted Asylum by the territorial state. For the first time, the French
constitution of 1793 under article 120 made a provision for granting Asylum to those foreigners
who exiled from their home country for the cause of Liberty. Later on, other states followed
the principle of non extradition of the political offenders gradually.
Indian extradition act of 1962 also lays down a similar provision under section 31(a).
At present, non extradition of the political offenders has become a general rule of international
law and therefore it is one of the exceptions of extradition.

Basis for the non extradition of the political offenders

1. The rule is based on the elementary consideration of humanity. No state would like to
extradite a person if he is not a criminal. If it does, it will not be in compliance with the
law of natural justice.
2. If political offenders are extradited, it is feared that they would not be treated fairly.
3. The rule also protects the political offender from any measure of extralegal character
which the requesting state might attempt to take against them
4. Political offenders are not dangerous for the territorial state as may be in the case of
ordinary criminals.

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Attentat clause (Belgian close 1856) : No political leader be extradited, although, criminal law
is not included here.

Extradition treaty between India and Canada concluded on February 6 1987 provided under
article 5(1)(a) that extradition may be refused if the offence in respect of which it is requested
is considered by the requested state to be a political offence or an offence of a political
character.
Indian extradition act of 1962 had also laid down a comprehensive list of offences which shall
not be regarded as political offence.

Doctrine of double criminality:

The doctrine of double criminality denotes that a crime must be an offence recognised
in the territorial as well as in the requesting state. No person is extradited unless this condition
is fulfilled. The Doctrine appears to be based on the consideration that it would offend the
conscience of the territorial state if it has to extradite a person when his own law does not
regard him a criminal.
Crimes punishable by death in the requesting state: In those cases where a crime is
recognised in both the states i.e., in the territorial as well as in the requesting state, but the
crime for which the extradition is demanded is punishable by death in the requesting state and
not in the territorial state, a further difficulty may arise in extraditing a person. Territorial state
may hesitate to extradit such a person as it would offend its conscience if it has to extradite a
person to whom death sentence would be provided while its own law does not provide for the
death sentence for that offence. In order to overcome this difficulty extradition treaties
generally provide that extradition shall be granted only when the requesting state gives an
assurance that the death penalty shall if imposed, not be executed.

Rule of speciality:
According to this principle, a Fugitive may be tried by the requesting state only for that offence
for which he has been extradited. In other words, the requesting state is under a duty not to try
or punish The Fugitive criminal for any other offence than that for which he has been
extradited. The rule has been made to provide safeguard to the fugitives against fraudulent
extradition.

Indian extradition act of 1962 has incorporated this principle under Section 21.
An important case on this rule is United States versus rauscher 1886

The case of Daya Singh lahoria vs Union of India 2001 is similar to that of rauscher case
wherein justice Pattanaik held that a Fugitive brought in this country under an extradition
decree can be tried only for the offences mentioned in the extradition degree and for no other
offences and the criminal courts of this country will have no jurisdiction to try such fugitive
for any other offence.

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Principle of relative seriousness
Extradition treaty between India and US permits extradition of only offences which are
punishable with more than one year of imprisonment

Prima facie evidence

There should be a prima facie evidence of the guilt of the accused. Before a person is extradited,
the territorial state must satisfy itself that there is a prima facie evidence against the accused
for which extradition is demanded.
The purpose for laying down the rule of Prima facie evidence is to check the fraudulent
extradition. The territorial state has to see that the demand is not motivated by any political
reasons.
Indian extradition act provides this requirement under section 7(4).

Extradition laws in India

The expression extradition treaty has been defined under section 2 (d) of the Indian
extradition act of 1962, to mean that a Treaty made by India with a foreign state relating to the
extradition of Fugitive criminals and includes any Treaty relating to the extradition of Fugitive
criminal made before the 15th day of August 1947, which extends to, and is binding on India.
All those extradition treaties which were concluded by the British India before 1947 were also
continued by India.
In 1956, India prepared a list of 45 pre Independence extradition treaties which was
stated to be in force. a question arises whether other contracting states have also considered
themselves to remain bound by such treaties. On enquiry, it was revealed that only few
countries considered themselves to be bound by pre-independent extradition treaties.
In accordance with the provision of section 3(1) of the act of 1962, the Government of
India is required to make notification to all those States with which it had extradition treaties
before independence. In the absence of such notification, continuance of the pre-independence
treaties would not be of any practical utility.

ASYLUM
The term is referred to those cases where the territorial state declines to surrender a person to
the requesting state, and provides shelter and protection in its own territory. Therefore Asylum
involves two elements.
✓ First, shelter, which is more than a temporary refuge and
✓ Secondly, a degree of active protection on the part of the authorities in control of the
territory of asylum.
A person enjoying Asylum may be referred to as an Asylee.

Basis of asylum
A state has a right to grant Asylum to a person on the principle that it has a sovereign right to
control over the individuals found on its territory. Therefore, the right of territorial Asylum has
been conferred to a state on the basis of its sovereignty over the territory.
Self imposed limitations : States have complete freedom to put restrictions on their territorial
jurisdiction right by concluding treaties. Therefore, if a state concludes treaties for extradition

25
of a Fugitive criminal, there arises a legal obligation on its part to surrender them. In such cases,
the sovereign right to grant Asylum to such persons cannot be exercised.
Similarly, restrictions can also be imposed by the states on their sovereign right to grant
Asylum in respect of other inhuman and heinous crimes.
Although states have a right to grant Asylum to a person found on its territory, the right
presently is not absolute. The present trend is that states are under a duty not to grant Asylum
to those who have planned, facilitated or committed terrorist acts.

Reasons for Asylum

A state grants Asylum to a person because of many reasons:
✓ Firstly, it is granted to save a person from the jurisdiction of the local authorities. It is
feared that he would not get fair trial, if extradited, because of the differences in views
as to his political or religious activities.
✓ Secondly, a person may be granted Asylum on extra legal grounds or to say on
humanitarian grounds. The International Court of Justice in Corfu channel case,
1949 stated that Asylum may be granted on humanitarian Grounds in order to protect
political offenders.
✓ Thirdly, Asylum is granted for preventing other human rights violations.

Whether Asylum a right of a person ?

Universal Declaration of Human Rights under article 14 lays down that, “everyone has a right
to seek and enjoy in other countries Asylum from persecution”.
But a person can seek and enjoy Asylum only when it is granted by a state. Right to enjoy
Asylum therefore means no more than the right to enjoy it if it is granted.
States have no such duty to grant Asylum to a person

FORMS OF ASYLUM
Territorial Asylum : when Asylum is granted by a state on its territory it is called territorial
Asylum. The right to grant Asylum by a state to a person on its own territory flows from the
fact that every state exercises territorial sovereignty over all persons, on its territory, whether
they are its subjects or aliens. A state has a right to admit or expel any person found in its
territory. The grant of territorial Asylum therefore depends upon the discretion of a state which
is not under a legal obligation to grant Asylum to a Fugitive.
The general assembly adopted a resolution on December 14 1967, which is known as
declaration on territorial Asylum. The declaration consists of a Preamble and four articles,
dealing with the principles relating to the grant or refusal of asylum.
The right to seek and enjoy Asylum may not be invoked by any person with respect to whom
there are serious reasons for considering that he has committed a crime against peace, a war
crimes for crime against humanity.

Extraterritorial Asylum: when Asylum is granted by a state at places outside its own territory
it is called extra territorial Asylum.
1. Asylum in legation- when Asylum is granted by a state within its Embassy premises
situated in foreign countries, it is known as Asylum in legation or diplomatic Asylum.

26
 Diplomatic Asylum is based on the the consideration that Ambassy premises are
regarded to be outside the jurisdiction of the territorial state. However, Asylum may be
granted to individuals in legation premises as a temporary measure, to individuals
physically in danger from mob or from the fear of the government. It implies that
Asylum is given to a person whose life has become unsecured.

2. Asylum in warships - as far as Asylum in warship is concerned, it may be granted on

the ground of humanity, in cases of extreme danger to the individual seeking it.
Therefore, right to grant Asylum on a warship may be granted in the same way as in
the case of legation and also subject to the operation of the same conditions.

3. Asylum in Merchant vessels- merchant vessels are not exempted from the local
jurisdiction, and therefore, Asylum cannot be granted to an offender.

4. Asylum in the premises of international institutions- whether a person taking refuge

in the premises of an international institution or organisation would be granted Asylum
is a question which cannot be given with certainty in the absence of any rule in this
regard and also because of the lack of practices.

Asylum and India

India in the year 1955 gave territorial Asylum to Dalai Lama and his followers who were
oppressed from the repressive policies of China. Although their Asylum was criticized by
China on the ground that India by granting Asylum has interfered in its internal affairs, India
was competent enough to do so because of the principles of territorial Sovereignty.
India does not recognise the grant of extra territorial Asylum.

UNITED NATIONS ORGANISATIONS

The failure of the league of nations on the one hand and the horror and ruthless destructions
caused by the Second World War on the second hand disturbed many mind. They expressed
the desire to establish peace even when the war was in progress. The termination of the war,
resulted in the creation of the United Nations organisations on October 24 1945. The United
Nations was therefore founded in the Ashes of War that brought untold sorrow to mankind.

San Francisco conference 1945

San Francisco conference, officially known as the United Nations Conference on international
organisation consisting of delegates of 50 Nations met on April 25 1945 to discuss the
proposals made by the states.
The last session of the conference was held on June 25 1945, where the Charter was passed
unanimously and was signed by all the 50 representatives on June 26 1945. Poland a signatory
of United Nations signed the Charter on October 15 1945. The Charter was finally signed by
51 States.

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The United Nations did not come into existence at the time of signing of the charter. In many
countries the Charter was required to be approved by their Congress or parliaments. It was
therefore provided that the Charter would come into force when the governments of China,
France, Great Britain, the Soviet Union and the United States and the majority of the other
signatory states shall ratify it.
The United Nations came into existence on 24th October 1945 upon ratification of the Charter
by 29 of the signatories including the five permanent members of the security council. It is to
be noted that the name of the organisation “United Nations” was taken from the declaration of
the United Nations and adopted in Tribute to the memory of Roosevelt who suggested it.

Preamble of the United Nations

The Preamble of the United Nations charter has set forth the basic aims of the United Nations
which are
1. To save succeeding generations from the scourage of War
2. To reaffirm faith in fundamental human rights
3. To establish justice and respect for international obligations
4. To promote social progress and better standard of life.
The Preamble also affirms that in order to achieve these ends, the People of the United Nations
are determined
1. To practice tolerance,
2. To live in peace as good neighbours,
3. To unite to maintain peace and security,
4. To ensure that armed forces shall not be used except in the common interest and
5. To employ International machinery for the social and economic betterment of all
peoples.

Purpose of the United Nations

Article 1 of the Charter enunciates the purposes of the United Nations.
1. To maintain International peace and security
2. Develop friendly relations among Nations
3. Foster International cooperation in social, Economic, cultural and humanitarian matters
4. Develop respect for human rights and freedom
5. Take necessary steps to achieve these objectives
Principles of United Nations
Article 2 lays down the following basic principles to be observed both by UN and it members:
1. Basis of United Nations shall be sovereign equality of its members
2. The member states shall fulfill in good faith their obligations under the Charter. Ex,
pacta sunt servanda
3. The member states shall settle their disputes by peaceful means
4. Member states shall not threaten or use force against territorial integrity or political
independence of another member state
5. All member states are to assist the UN when it takes preventive for enforcement actions
against a state

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 6. United Nations to ensure that ‘non-member states’ act in accordance with these
principles so far as may be necessary for the maintenance of international peace and
security. this right of the United Nations to lawfully affect non member states is
supported by the decision of ICJ in reparation for injuries suffered in the service of
the United Nations case
7. UN shall not interfere in the matters, which are within the domestic jurisdiction of
member states

Membership of the United Nations

The United Nations is an inter-governmental organisation in which sovereign independent
States can only be members. According to Article 4, membership of the United Nations is open
to all peace loving States which accept the obligations contained in the charter, and are able
and willing to carry out them. However, no state has a right to be admitted as a member of the
United Nations.

There are two types of members

1. original members: those States who participated in the San Francisco conference on
25th of April 1945 and signed and ratified the charter
2. members subsequently admitted: a state can be admitted when it is first recommended
by a majority of members including all five permanent members of Security Council
and later approved by two third majority of general assembly.

The ICJ in its advisory opinion on condition of membership in the United Nations 1948 said
that in the absence of a favorable recommendation by the security council, the general assembly
has no power to admit a new member on its own decision. On the other hand, the general
assembly has the power to reject the recommendations of the security council for membership
of a state.

Suspension and expulsion

Article 5 provides that a member state, against which preventive or enforcement action has
been taken by the security council may be suspended by the General Assembly upon the
Recommendation of the security council.
Article 6 lays down that the general assembly may expel upon the Recommendation of the
security council and member state which is persistently violating the
principles contained in the charter.

GENERAL ASSEMBLY
General Assembly is one of the principal organs of the United Nations. Provisions relating to
General Assembly are contained in chapter IV of the charter comprising of Article s 9 to 22.

Composition:
Article 9 of the Charter Lays down regarding the composition of the General Assembly by
stating that the General Assembly shall consist of all the members of the United Nations. Each

29
of them possess an equal status irrespective of its size, power or importance. Each member
shall have not more than 5 representatives in the general assembly.

Voting system:
Each member of the General Assembly has only one vote. Therefore, in the Assembly the
principle of equality of the members is strictly observed. Decisions on important questions as
laid down specifically under Article 18, para 2 of the Charter such as recommendation with
respect of maintenance of international peace and security, election of non permanent members
of the security council, election of members of the Trusteeship Council and economic and
social Council, admission, Suspension and expulsion of members, Trusteeship questions and
budgetary matters are taken by a two third majority of members present and voting.
Other questions are decided by simple majority of the members present and voting.

Article 19 of the charter Lays down that a member shall have no vote in the General Assembly
which is in arrears in the payment of its financial contribution to the organisation provided the
amount of its arrears equals or exceeds the amount of the contributions due from it for the
preceeding two full years. The General Assembly May, nevertheless permit such a member to
vote if it is satisfied that the failure to pay is due to conditions beyond the control of the
members.

Functions and powers

functions and powers of the Assembly are laid down under Article 10 to 17 of the charter.

General functions : Article 10 confers upon the Assembly a very wide powers by providing
that the Assembly May discuss any questions or any matters within the scope of the Charter or
relating to the powers and functions of any organs provided for in the charter.

Promotion of international cooperation: Article 13 of the Charter has conferred to the

Assembly specifically to initiate studies and make recommendations for the purpose of the
promotion of international cooperation in two different fields.
Firstly, the promotion of international cooperation in political fields and encouraging the
progressive development of international law and its codification
Secondly, the promotion of international cooperation in the economic, social, cultural,
educational and health fields, and assisting in the realisation of human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion.

Elective functions: the Assembly is commonly known as the central body of the United
Nations because it collects some or all the members of all the other organs of the United
Nations.
1. The Assembly elects all the ten non permanent members of the security council. Out of
them 5 members are elected every year in accordance with Article 23 para 2 when
equal number of members retire after completing the term of two years.
2. The Assembly Elections all the 54 members of the economic and social Council. Out
of them 18 members are elected every year as per Article 61 para 3.

30
 3. The assembly elects some members of the Trusteeship Council Article 86
4. the Assembly elects 15 judges of the International Court of Justice. Judges are elected
by a complicated system of parallel voting by the security council and the General
Assembly independently of each other.
5. The secretary general of the United Nations is also appointed by the General Assembly
on the Recommendation of the security council. Article 97
6. the Assembly Elects members for subsidiary organs which may be created by it under
Article 22

It is to be noted that election to any of the three councils (Security Council, economic and social
Council and Trusteeship Council) being important questions, requires two-thirds majority in
accordance with Article 18 clause 2 of the charter

supervisory functions: the Assembly supervises the activities of the Other organs of the
specialised agencies of the organisation. Therefore, it considers annual and special reports of
the security council. Article 15 para 1.
it also considers the reports of the Other organs such as economic and social Council,
Trusteeship Council, International Court of Justice and the secretariat. Article 15 para 2

SECURITY COUNCIL
Chapter V of the Charter consisting of Article 23 to 27 lays down the provisions relating to the
security council.

COMPOSITION:
The council originally consisted of 11 members, but it was enlarged to 15 members in 1965
in accordance with an amendment to the Charter. out of 15 members, 5 are permanent
members
The Other 10 members of the security council are called non permanent members. they are
elected by the General Assembly for a term of 2 years, but each year selection of 5 members
take place when the equal number of members retire after completing the term of two years.
the above system was adopted so that there may not be complete renewal of all the non
permanent member.
According to the last sentence of Article 23 Para 2, a retiring member is not eligible for
immediate re election. considerations which are given for election of non permanent members
are,
1. Firstly, the contribution of members of the United Nations to the maintenance of
international peace and security and to other purposes of the organisation and
2. Secondly, the equitable geographical distribution. In order to have equitable
geographical distribution, 5 members from Afro Asian nations, one from Eastern
Europe, two from Latin America and two from Western countries are elected

The Charter also provides for the adhoc membership of the council under Article 31 which
Lays down the possibility of the participation of any member of the United Nations in the
Council which is not a member. such members may participate in the Council, without having

31
a right to vote, in the discussion of any question brought before the security council provided
that in the view of the latter, the interest of that members are especially affected.
Article 32 stipulates that any member of the United Nations which is not a member of the
security council, or any state which is not a member of the United Nations, shall be invited to
participate without vote in the discussion before the Council, relating to the dispute to which it
is a party.

voting procedure :
Each member state of the Security Council has one vote. decisions of the security council on
procedural matters (time and place of meetings, adoption of procedural rules) are to be made
by an affirmative vote of 9 members and decisions on all other substantive matters are to be
made by an affirmative vote of nine members including the concurring vote of five permanent
members. if a permanent member casts a negative vote on a substantive matter, the decision is
blocked or vetoed i.e., does not come into existence.

Further, the question whether a particular matter Falls within the category of procedural matter
or not, also requires concurring vote of permanent members. Therefore, a Veto could be
exercised here also. this constitutes the double Veto (first, by Casting a negative vote against
calling the matter as procedural after which the matter becomes substantive and second, by
Casting other negative vote against this substantive matter) .
It may be noted that 5 permanent members do not enjoy any veto power in the general
assembly

Veto power
In the San Francisco conference, the right of each of the big five to exercise a Veto on an action
by the powerful Security Council provoked long and heated debate. at one stage the conflict of
opinion on this question had threatened to break up the conference. the smaller powers feared
that the big five could act arbitrarily but the great powers unanimously insisted on this provision
as vital and emphasized that the main responsibility for maintaining the world peace would fall
most heavily on them. Eventually the smaller power is conceded the point in the interest of the
setting up of the word organisation.

The veto power was conferred to Big Five in a good faith because the framers of the Charter
had realised that the co-operation of all the big powers is necessary for the maintenance of
international peace and security.
The veto power of five permanent members is against the principle of sovereign equality
enunciated in the charter - kelsen

Criticism of the veto power

The veto power vested in the hands of the permanent members has been criticized on many
Grounds
a) Firstly, it has created a difference between the permanent and non permanent member
of the security council
b) Secondly, it is an antithesis of the principle of sovereign equality of member states

32
 c) Thirdly, the fate of the world should not be left just in the hands of five permanent
members of the security council
d) Fourthly, it has ruled out the possibility of taking an action against the permanent
members

FUNCTIONS OF THE SECURITY COUNCIL

A. MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY

The maintenance of international peace and security is the primary responsibility of the security
council. The council performs the functions relating to the maintenance of international peace
and security in two ways
1. by peaceful means
2. by taking enforcement action

1. By peaceful means: Chapter VI of the Charter provides the various modes by which
the Council settles the disputes which are likely to endanger international peace and
security. but a question arises how the Council would come to know about the existence
of a dispute.
a) When any member of the United Nations, whether a party to a dispute or not, bring any
dispute before it under Article 35 para 1
b) when a non member of the United Nations brings any such dispute under Article 35
para 2
c) when all the disputant parties refer a dispute under Article 38
d) when one of the disputant states refers dispute under Article 37 para 1
e) when the general assembly calls the attention of the security council under Article 11
para 3 to situations which are likely to endangered international peace and security
f) when the secretary general of the United Nations under Article 99 of the Charter brings
to the attention of the council any matter which in his opinion may threaten the
maintenance of international peace and security.

2. By taking enforcement action: once the Council has determined that there is a threat
to peace or breach of the peace or an act of aggression has been committed, it is
empowered to take enforcement action under chapter VII of the Charter which was
recognised by the delegates to the San Francisco conference as the teeth of the United
Nations.
Measures involving non use of force: Article 41 Lays down that the
security council may call upon the members of the United Nations to take
measures not involving the use of armed forces, i.e., measures where the
armed forces are not employed. these measures include complete or partial
interruption of economic relations and of rail, sea,air, postal, telegraphic,
radio and other means of communication and the severance of diplomatic
relations measures under Article 41 have been applied in many cases in

33
 different names such as economic sanctions, trade sanction, trade embargo,
arms embargo, arial embargo and diplomatic sanctions.

Measures involving use of armed force: if the security council considers

that measures provided for in Article 41 are not adequate or they have
proved to be inadequate it may take such action by air or land forces as may
be necessary to maintain or restore international peace and security as
provided under Article 42. these may include demonstrations, blockade and
other operations by air, sea or land forces of members of United Nations.

B. MISCELLANEOUS FUNCTIONS
Besides performing its main responsibility for maintaining international peace and security,
The council performs a number of other functions.
a) The council may recommend the Assembly for admission of a state in the United
Nations Article 4 para 2. the Assembly may admit a member only when the Council
gives a favourable recommendation
b) The Council has been empowered to recommend the Assembly to suspend (Article 5)
or expel (Article 6) a member of the United Nations.
c) The council recommends the Assembly for the appointment of the secretary general of
the United Nations Article 97
d) Amendment in the Charter comes into force for all members of the United Nations
when they have been adopted by a vote of two third of members of the general assembly
including all the permanent members of the security council Article 108

Economic and social Council the Preamble of the Charter proclaims that the people of
the United Nations are determined to promote social progress and better standards of
life in larger freedom further para 3 of article 1 today's down that it is a primary purpose
of the United Nations to achieve International cooperation in solving International
problems of an economic social cultural or humanitarian character and to promote and
encourage respect for human rights and fundamental freedoms without distinction to
race sex language or religion to achieve these ends the Charter established the
economic and social Council which is one of the principal organs of the United Nations

Composition provisions regarding the composition of the economic and social Council
are laid down in article 61 of the charter The council consists of 54 members which
are elected by the General Assembly before August 31 1965 The council had 18
members one third of the total members 18 members of the Council are elected each
year for a term of three years retiring members are eligible for immediate re election
elections to the Council are held in accordance with the principle of equitable
geographical distribution the permanent members of the security council have no
privileged position in the economic and social Council however they have served
continuously as its member it is submitted that the composition of the ecosoc should
be reformed

34
Voting system voting in the Council is simple and direct each member has one vote
all decisions are taken by a simple majority of those present and voting

Powers and function regular sessions of the Council are held twice in a year the first
session is usually devoted to social and human rights and the second session to
economic and developmental matter the Council performs the following functions
The council may make or initiate studies and reports with respect to international
economic social cultural Educational Health and related matters article 62 para 1 The
council may make recommendations for the purpose of promoting respect for and
observance of human rights and fundamental freedoms for Pol article 62 para 2 to the
Council may prepare draught conventions for submission to the general assembly on
any subject falling within its competence article 62 para 3 The council make all
International conferences on matters falling within its competence article 62 para 4
The council may make arrangements with the members of the United Nations to obtain
reports on the steps taken to give effects to its recommendations and to the
recommendations of the general assembly on matters calling within its competence
article 64 The council may also furnish information to the security council and assist
the security council upon its request article 65 The council also performs various
functions under article 66 para 1 2 and 3

Trusteeship Council in International Relation for the first time and date system was
introduced under the League of Nations to improve the well-being of The Peoples of
the colonies and dependent territories however the system came to an end with The
dissolution of the league when the united nations was established the mandate system
was introduced in the name of the Trusteeship system article 76 of the UN charter list
down the following objectives of the Trusteeship system
The furtherance of international peace and security the promotion of the political
economic social and educational advancement of the inhabitants of the trust territories
and their progressive development towards self government or Independence the
encouragement of respect for human rights and fundamental freedoms for all without
distinctions as to raise sex language or religion and the recognition of the
interdependence of the people of the world and the ensuring of equal treatment in
social economic and commercial matters for all members of the United Nations and
their nationals and the equal treatment for the letter in the administration of Justice

Trusteeship Council chapter 13 of the Charter deals with the composition voting
system procedure and functions and powers of the Trusteeship Council which is the
principal organ of the United Nations

Achievements of the Trusteeship Council the Trusteeship Council has done A

Remarkable work of the 11 territories placed under the Trusteeship system all have
attained the objectives of the system either by becoming independent States or by

35
associating themselves with the neighbouring States palau an entity of the trust
Territory of Pacific Island was the last such territory whose Trusteeship agreement
was terminated by the security council on November 10 1994 in the light of the entry
into force on October 1 1994 of a compact of free Association between palau and
administering athority the United States

Suspension of the operation of the Trusteeship Council with the termination of the
Trusteeship agreement for pulao the objectives of the Trusteeship Council has been
fully attained the secretary general of the United Nations had recommended to the
assembly in 1995 to proceed with steps to eliminate the Council by making
amendments in the Charter but no step was taken the 2005 World Summit outcome
reiterated that the Trusteeship Council no longer meets and has no remaining
functions we should delete chapter 13 of the charter

International Court of Justice

The need for the establishment of a permanent Court to solve International dispute was felt in
the first Hague conference. it was in the second Hague Peace Conference, the USA proposed
for the establishment of such a court. the permanent Court of international justice was
established in 1921 under the Covenant of the league of nations. after its dissolution, the new
International Court of Justice started functioning on 18th April 1946 with the headquarters at
the Hague.
The International Court of Justice may be looked upon as the successor to the permanent Court
of international justice.

According to Article 92 of the charter, of the International Court of Justice is the principal
judicial organ of the United Nations. the court carry out its functions according to the statute
which is an integral part of the Charter. it may be noted that the statute of the court does not
lay down expressly the objectives or the functions for which it has been established. However,
its main objective are
✓ Firstly, to settle International disputes or situations which are submitted to it by the
states in accordance with the principles of justice and international law
✓ Secondly, to render advisory opinion on legal questions to any body which has been
authorised in accordance with the charter of the United Nations

Composition of the court

✓ The court consists of 15 judges (called as members of the court) according to Article 3
para 1 of the statute. However, two of them may not be nationals of the same state.
✓ The judges of the court are to be elected by the general assembly and by the security
council independently Article 8.
✓ Those candidates who obtain an absolute majority of votes in the assembly and in the
Council are considered as elected. judges are elected by these two organs of the United
Nations from a list of persons nominated by the national groups in the permanent Court
of arbitration Article 4 para 1

36
 ✓ A list of all the persons so nominated is prepared by the secretary general under Article
7 para 1 which is submitted by him to the general assembly and the security council
Article 7 para 2

Article 20 of the statute Lays down that the judges before taking up their duties are required to
make a solemn declaration in an open court that they will exercise their powers impartially and
conscientiously. they should be the persons of high moral character. they are required to
possess the qualifications required in their respective countries for the appointment in the
highest judicial officers Article 2.

Judges are appointed from different regions of the world i.e., 3 from Africa, 2 from Latin
America, 3 from Asia, 5 from Eastern Europe and other states including States from Northern
America and oceanic and 2 from Eastern Europe.
The judges are elected for a period of nine years Article 13 para 1
5 judges retire in every three years. The retiring judges are eligible for re election Article 13
para 1

Members of the court cannot be dismissed unless in the unanimous opinion of the other
members, he has ceased to fulfill the required conditions under Article 18 para 1. the conditions
which a member is required to fulfill are laid down under Article 16 and 17 of the statute. they
are
✓ Firstly, no member May exercise any political or administrative function, or engage in
any other occupation of a professional nature Article 16 para 1
✓ Secondly, no member of the court may act as agent, Council or advocate in any case
Article 17 para 1
✓ thirdly, no member may participate in the decision of any case in which he has
previously taken part as agent, Council or advocate for one of the parties Article 17
para 2
No member of the court has yet been dismissed

JURISDICTION
States: Article 34 of the statute lays down that “only States may be parties in cases before the
court”. it implies that it is not necessary that the states should be sovereign and independent in
order to become parties to the court. India was a party to the statute before it became
independent.
1. Members of the United Nations: the charter of the United Nations under Article 93
para 1 provides that all members of the United Nations are ipso facto parties to the
statute of the court which means that they all have automatic access to the court.
2. Non members of the United Nations- Article 93 para 2 of the Charter provides that non
members of the United Nations may also become parties to the statute. they could do
so only on conditions to be determined in each case by the General Assembly on the
Recommendation of the security council.

37
Individual- individuals have no access to the court. neither the statute nor the rules of the court
permit the individual to file petitions in the court. it has therefore always refused to entertain
the petitions and request which have often been addressed to it by the individuals. individuals
by himself has no locus standi before the court

Though the judgement of the court is final and without appeal, yet a state party may appeal for
revision of judgement under certain circumstances. The court’s decision has no binding force
except between parties and in respect of that particular case only. Article 38 clause 1 of the
statute of ICJ directs the court to apply International Law to disputes derived from International
conventions, International customs, and general principles of law.

The court enjoys two types of Jurisdiction

✓ Contentious and advisory

Contentious jurisdiction: it comprises the following kinds of cases

✓ all cases which the parties refer to it
✓ all matters specially provided for in the charter of the United Nations
✓ all matters specially provided for in the treaties and conventions in force
In all contentious cases, the court can exercise its jurisdiction only with the consent of the state
parties to the dispute.

Advisory opinion: the ICJ may give an advisory opinion on any legal question, at the request
of anybody thrice by, or in accordance with the charter of the United Nations to make such a
request.
Acc to Article 96 of the Charter, the general assembly and the security council may request the
advisory opinion of the court on any legal question.
an advisory opinion lacks the binding force of a judgement as in contentious case.

Judgement of the court

✓ The judgement of the court is final and without appeal Article 16
✓ the judgement shall state the reason on which it is based Article 56 para 1
✓ it shall contain the names of the judges who have taken part in the decision Article 56
para 2
✓ the judgement is signed by the president and by the registrar. it is read in open court
after having been given due notice to the agent Article 58
✓ judgement once rendered by the court may be revised on an application for revision
Article 61

Enforcement of the judgement

all the members of the United Nations are required to comply with the decisions of the court in
accordance with Article 94 para 1 of the Charter.
a state party to the statute but not a member of the United Nations is also required to do so as
it is one of the conditions for becoming a party to the statue.

38
if any party to a case before the court failed to perform its obligations under the judgement of
the court; the other party may bring the matter before the security council in accordance with
Article 94 para 2 of the charter
in case the security council decide upon measures to be taken to give effect to the judgement
of the court, it has again a choice between two kinds of action, measures which may be taken
either under Article 41 and 42 of the Charter. but again, decision to this effect may be made by
a vote of 9 members including the concurring votes of the permanent members. it means the
decision of the Council has to cross the barrier of the Veto. Hence, the judgement of the court
cannot be enforced against permanent members of the Council or their client States.

SETTLEMENT OF DISPUTES
A disagreement between the parties may arise either on legal or political Grounds. legal
differences according to oppenheim “are those in which the parties to the dispute base their
respective claims and contentions on Grounds recognised by international law”. all other
differences are usually referred to as political dispute.
whether a dispute is legal or political, depends more or less upon the attitude of States. if the
states desire that a dispute is to be settled on the basis of law, the dispute is regarded as legal.
if they fear that the decision might go against them, the dispute becomes political. it is therefore
difficult to distinguish the dispute from legal to political.
The distinction between legal and political dispute is important because in international law,
the procedure for the settlement of dispute has been laid down for only legal disputes. In the
case concerning border and Trance border armed action (Nicaragua vs Honduras) the court
stated that the court is only concerned with cases involving a legal dispute.
Legal dispute may be settled in two ways. they are: amicable means or Pacific means of
settlement and compulsive means or coercive means of settlement.

Amicable means/ Pacific means

The charter of the United Nations has recognised the Peaceful settlement of disputes as one of
the principles of the United Nations. para 3 of Article 2 Lays down that ‘all members shall
settle their International disputes by peaceful means’. the charter under Article 33 para 1
enumerates a number of peaceful means for the settlement of disputes.
Presently, the duty of a state to settle the dispute peacefully has become the customary rule of
international law.
The various peaceful means for the settlement of disputes may be divided broadly into two
categories. they are: extra judicial modes of settlement and judicial settlement.
In the extra judicial settlement, a dispute is settled by means of an agreement between the
disputant states. such means of settlement are also sometimes known as political means or
diplomatic procedures. the judicial settlement is a legal process which consists of settlement
according to international law by an impartial third party, the outcome of which is largely
binding on the disputant states.

39
Extrajudicial peaceful means
Negotiation:
a) when the disputant states settle their disputes themselves by discussion or by adjusting
their differences, the procedure is called negotiation.
b) negotiation may be carried on either by the heads of the states or by their accredited
representatives or by diplomatic agents.
c) negotiation is the simplest form of settling the disputes.
d) It helps the disputsnt parties to bring about the needed change by mutual consent.
negotiation has certain weaknesses
a) on many occasions it becomes difficult for the disputant parties to ascertain the precise
and correct facts which have given rise to a dispute
b) the possibility of imposing influence by the big powers over its counterpart is Greater
in negotiation.
➢ In 1976, India and Pakistan settled their outstanding differences in the Simla
conference.
➢ Similarly, India and Sri Lanka settled there boundary disputes in 1974 by negotiation
➢ the Farakka barrage issue was also settled through negotiations by India and
Bangladesh in 1977
In all the above cases negotiations resulted in the conclusion of agreements
➢ Negotiations in the aerial incident case between Iran and USA

Good offices and mediation

when the parties are not inclined to settle their dispute by negotiation, or when they fail to settle
their dispute by negotiation, they may take the assistance of a third-party in resolving their
differences. the third party may be appointed by the parties themselves or by the security
council. the third party may be a state or an individual - usually an eminent citizen of a third
state.
the third party settles the dispute in two different ways which are - mediation and good offices.
a) Mediation - when the third-party participates in the discussion along with the
disputants, and also gives its own suggestions in resolving the dispute, the process is
known as mediation. the mediator is required to be neutral and impartial. he must
necessarily meet with them and enter into discussions.
b) Good offices - when the third party arranges a meeting of the disputant parties so that
they may settle the dispute by negotiation, or wherein he acts in such a way so that a
peaceful solution may be reached, the act is called good offices. it is to be noted that in
the case of good offices, the third party neither participates in the meeting nor gives its
suggestions to the parties as in the case of mediation. The main function of the third
party, offering its good offices, is to bring the parties together when they have failed to
negotiate or where negotiations have earlier failed. once the parties have been brought
together for the purpose of working out a solution of their controversies, the state or
person rendering good offices has no further duties to perform.

40
Enquiry - when a commission is appointed, consisting of impartial investigators, for
ascertaining the facts of the disputes, the process is called enquiry. the function of the
commission is confined only to the ascertainment of the fact. Inquiry is constituted by special
agreement between parties in the dispute.

Conciliation- when a dispute is referred to a Commission or a committee to investigate the

basis of the dispute and to make a report containing proposals for settlement after finding out
the facts, the process is known as conciliation. therefore conciliation is the process of settling
a dispute where endeavours are made to bring the disputant parties to an agreement and to make
a report containing the proposals for settlement. it is to be noted that the proposals of the
commission are not binding on the states because of its not being a judgement of any Court or
Tribunal.
conciliation differs from arbitration in the sense that the parties are free to disregard the
proposals of the Commission, but the award of the arbitration is binding on the parties. it differs
from commission of enquiry where the main object is to ascertain the facts. suggestions or
proposals are not given in commission of enquiry as in the case of conciliation.
The general assembly under Article 10 and 14, and the security council under Article 34 may
appoint a Commission to conciliate a dispute.

BY THE UNITED NATIONS

Settlement of disputes by peaceful means is one of the principles of the United Nations as
provided under Article 2 para 3 of the Charter. the two organs of the United Nations - general
assembly and the security council - have been empowered to discharge certain functions in this
regard.
General assembly- although, the Assembly has not been empowered to settle the disputes by
any specific means. it may discuss a dispute under Article 11 para 2 and may make
recommendations to the disputant parties under Article 14 of the Charter for the measures
which they may take for the Peaceful adjustment of any situation, which it deems would likely
to impair the general Welfare of friendly relations among Nations. recommendations may be
made by the Assembly after discussion which may take place when the matter is brought before
it by any member of the United Nations, or by the security council, or by a non member of the
United Nations.
Security Council - various modes by which the security council settles the disputes peacefully
are discussed in the previous lectures.

JUDICIAL SETTLEMENT

When a dispute is settled by the international Tribunal in accordance with the rules of
international law, the process is called judicial settlement. at present the International Court of
Justice is the most important International Tribunal. an international Tribunal is different from
the municipal Tribunal. while the former applies rules of International Law, Municipal Law is
applied by the municipal tribunals. Municipal Tribunal may also apply International Law, but
to what extent, is a question which depends upon the relationship of Municipal Law and

41
international law. at present, arbitration and the settlement of disputes by the International
Court of Justice are the important judicial modes of settlement of disputes.

ARBITRATION:
The charter of the United Nations under Article 33 para 1 has recognised arbitration as a mode
for the settlement of disputes.
arbitration has been defined by the International Law Commission as “a procedure for the
settlement of disputes between two States by a binding award on the basis of law and as a result
of an undertaking voluntarily accepted”.
In the case concerning Maritime delimitation and territorial questions between Qatar and
Bahrain Qatar vs Bahrain 2001, the International Court of Justice stated that the word
arbitration, for the purpose of public International Law, usually refers to the settlement of
differences between the states by judges of their own choice, and on the basis of respect for
law.
It is important to note that before a dispute is referred to the arbitration the consent of parties
is necessarily required to be obtained for doing so. the consent may be obtained either before
or after a dispute has arisen between the parties.

Composition of arbitration:
Individuals constituting the arbitration Commission or Tribunal are called arbitrators.
1. They are appointed by the disputant parties themselves.
2. The composition of arbitral Tribunal is based on the principle that the arbitrators are
chosen by the parties to the dispute, either by agreement between them or by a
procedure laid down in the arbitration agreement.
3. The Tribunal may consist of a single arbitrator or of several arbitrators. As a rule,
tribunals have 3 or 5 members.
4. If the disputant and parties fail to appoint the arbitrators, the appointment may be made
by the president of the International Court of Justice or by the secretary general of the
United Nations. the Kutch dispute between India and Pakistan was to be decided by
three arbitrators. one appointed by India and one by Pakistan. the third arbitrator was
to be appointed by the two arbitrators, so appointed by the parties. the two arbitrators,
so appointed could not agree on the nomination of a third arbitrator and therefore it was
agreed that the secretary general of the United Nations shall nominate the third
arbitrator.
5. The decision of the arbitration, commonly known as award, is binding to the parties.
6. However, if the arbitrators have exceeded their power or if they have been bribed or if
they have given the award under the influence of coersion of any kind or if the award
contains an error which is material as well as essential in the case, and has been caused
through the malicious act of a party, the award may be disregarded.

INTERNATIONAL COURT OF JUSTICE

Before the creation of the International Court of Justice, disputes of the states could be decided
by the permanent Court of international justice. at present, the International Court of Justice
and the arbitration are the judicial modes for the settlement of disputes.

42
Both of them have certain common elements
1. Consent of the parties is essential before a case is heard by the court or by a Tribunal.
2. The judgement of the court and the award of the Tribunal is binding to the parties
However, the court differs from arbitration on many counts
1. While the court is a permanent court and is governed by a statute, the permanent Court
of arbitration is neither a court nor is permanent. the arbitrator is appointed for the
settlement of a particular dispute by the parties themselves.
2. While the judges in the court are elected by the general assembly and the security
council of the United Nations, arbitrators are appointed by the disputant parties
themselves.
3. While the judges in the court represent the main forms of Civilization and of the legal
systems of the world, the constitution of the arbitration depends upon the consent of the
parties.
4. The court being a permanent Court performs a number of functions which arbitrations
do not perform.
5. The court is open to all the states. while all the members of the United Nations ipso
facto are parties to the court, non members of the United Nations may also become a
party to it after fulfillment of the conditions determined by the General Assembly on
the Recommendation of the security council. it is not so with the case of arbitration.
6. The court applies rules in deciding cases as provided under Article 38 of the statute,
whereas in arbitration rules are applied as decided by the parties themselves. cases
could be decided by the general rules of international law as well as in accordance with
the rules of equity or ex-acquo et Bono.
7. While the proceedings of the court are open to public, and records of the hearing and
judgement are published, proceedings of the arbitration are not always open for public
and the award of the Tribunal may not be published if the parties so desire.
8. while the court is an integral part of the United Nations charter, arbitration is established
independently.

COMPULSIVE OR COERSIVE MEANS

Compulsive or coersive means for the settlement of disputes are non peaceful methods. such
measures involve a pressure or force on a state to settle the dispute.

RETORTION-
Retortion is the technical term for retaliation. it is based, to some extent, on the principle of tit
for tat. when an act is done by a state similar to that done earlier by another state, it is called
retortion. the purpose of retortion is to take retaliation.
for instance, if the citizens of a state are given unfair treatment in another state through rigorous
passport regulations the former may also make similar rigorous rules in respect of the citizens
of the latter state. if a state imposes restrictions of the entry of nationals of another state, the
latter may also impose similar restrictions.

43
REPRISALS –
The term reprisals includes the employment of any coercive methods by a state for the
purpose of securing redress. Therefore, the main purpose of the reprisals is to compel the
delinquent state to discontinue the wrong doing, or to pursue it, or both. if a dispute has arisen
due to an unjustified or illegal act of a state, the other state may take any coercive measure
against that state to settle the dispute.

Formally, reprisals were restricted only to the seizure of the property or persons. but
later, it included other methods as well such as bombardment, occupation of territories of a
state, seizure of ships, freezing of Assets of its citizens and taking any kind of property
belonging to it. Therefore, it may be applied not only against the state but against the citizens
of that state as well.

Prohibition on reprisals: after the creation of the United Nations, the principles of non
use of force and of peaceful settlement of disputes have generally become a part of jus cogens,
and therefore the use of force in reprisals has been prohibited. it is clear from Article 2 para 4
of the charter of the United Nations which prohibits the use of force by a state against the
territorial integrity or political independence of another state or in any other manner
inconsistent with the purposes of the United Nations.
Reprisals have also been Forbidden expressly by some Human Rights conventions. for
instance, Article 33 of the Geneva Convention relating to the protection of civilian persons in
time of war of August 12 1949 forbids reprisals against persons protected therein.
Therefore, a state has been prohibited to use forces in reprises. other actions may be taken by
a state in reprisals. However, they shall be lawful as long as they do not affect international
peace and security.

Reprisals and war: it is to be noted that reprisal is different from war because in the
former there is an absence of intention of War. it is the intention which primarily distinguishes
reprisal from war. the acts taken in reprisals are illegal and are taken exceptionally, by a state
for the purpose of obtaining justice. in reprisals, a state takes law into its own hands.

EMBARGO
The term embargo is of Spanish origin. Originally, it means detention, but in international law
it has the technical meaning of detention of ships in port. such an operation is initiated in
accordance to an order issued by State authorities in order to Limit or interrupt or terminate its
trade and economic relations with another state.
The purpose of such an embargo is to exert financial or economic pressure on the other state.
embargo at present may be applied by a state, individually or collectively, under the authority
of the United Nations. if embargo is applied by a state, it should not endanger international
peace and security. if it does so, it would become illegal. collective embargo may be applied
under the authority of the security council against a delinquent state.

44
PACIFIC BLOCKADE
When the coast of a state is blocked by another state for the purpose of preventing
Ingress or egress of vessels of all Nations by the use of warships and other means in order to
exercise economic and political pressure on that state, the act is called blockade. when blockade
it is applied during peace time, it is called as Pacific blockade.
The essential requirements for Pacific blockade are similar to those of blockade which
is applied during the time of War.
Blockade has been regarded as one of the coersive means for the settlement of disputes
because it consists in temporary suspension of Commerce of the offending state by closing of
access to its coasts. blockade is a measure for the settlement of dispute which is taken normally
by the powerful States.

After the creation of the United Nations, application of Pacific blockade has become
illegal in view of the fact that it threatens peace and security. the blockade of the ports or coasts
of a state by the forces of another state qualify as an act of aggression in accordance with para
c of Article 3 of the resolution adopted by the General Assembly which laid down the definition
of aggression. therefore blockade is not permissible recourse to settlement of disputes.
It is to be noted that at present while blockade is illegal when it is supplied by a state
individually, collective blockade applied under the authority of the security council to settle
the dispute is lawful.

It is also to be noted that after the establishment of the United Nations a state has been
substantially prevented from taking compulsive measures to settle the disputes. any measure
which is likely to threaten international peace and security has become unlawful. therefore
reprisals, embargo and blockade are lawful as long as they do not affect international peace
and security. the only permissible coercive action which a state may take is the retortion,
wherein normally international peace and security is not affected. However, if it does so, it
would also become unlawful.

45
DREAM.
BELIEVE.
DO.
REPEAT.

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