UNIT 1

The nature and development of international law

Definition of International Law

International law, often referred to as public international law or the law of nations, is defined
as a set of rules, norms, and standards that states and other international actors feel obligated
to follow in their mutual relations. This body of law encompasses various legal subjects,
including treaties, diplomatic relations, and the conduct of war, and applies to both state and
non-state actors. The term was first coined by Jeremy Bentham in the late 18th century,
emphasizing the need for a legal framework to regulate interactions between sovereign states.
Nature of International Law
The nature of international law is characterized by several key features:
 Consent-Based: Unlike domestic law, international law primarily operates on the
principle of consent. States voluntarily adhere to treaties and customary laws, and
there is no overarching authority to enforce compliance. This lack of a central
enforcement mechanism means that adherence often relies on mutual respect and the
potential for diplomatic or economic repercussions for non-compliance.
 Sources: The primary sources of international law include treaties, customary
international law, and general principles recognized by civilized nations. Article 38 of
the Statute of the International Court of Justice outlines these sources, emphasizing
that case law and scholarly writings serve as subsidiary sources.
 Dynamic and Evolving: International law is not static; it evolves in response to
changing global circumstances, including geopolitical shifts, technological
advancements, and emerging global challenges such as climate change and
cybersecurity threats.

Basis of International Law

The basis of international law is founded on several principles:
 Treaties: Formal agreements between states that create binding obligations. Treaties
can cover a wide range of issues, from trade to human rights, and are essential for
international cooperation.
  Customary Law: Established practices that states follow out of a sense of legal
obligation (opinio juris). These customs develop over time and are recognized as binding,
even without formal treaties.
  General Principles of Law: Fundamental legal principles that are widely accepted
across different legal systems, serving as a foundation for international legal norms.
  International Organizations: Bodies such as the United Nations play a crucial role in
the development and enforcement of international law, facilitating cooperation and dialogue
among states.

UNIT 2
Evolution and Development of International Law
The evolution of international law has occurred over centuries, shaped by historical events,
philosophical developments, and the changing nature of state interactions. Key milestones
include:
 Ancient and Medieval Foundations: Early forms of international law can be traced
back to ancient civilizations, where treaties and agreements governed relations
between states. The Middle Ages saw the emergence of concepts like the just war and
natural law, influencing later legal frameworks.
 Renaissance and Early Modern Period: The Renaissance marked a significant shift
with thinkers like Hugo Grotius, who is often regarded as the father of modern
international law. His work emphasized the importance of natural law and the rights
of nations, laying the groundwork for contemporary legal principles.
 19th Century Developments: The 19th century witnessed the codification of
international law, particularly in areas such as humanitarian law and the laws of war,
spurred by the establishment of the International Committee of the Red Cross and
various treaties.
 20th Century and Globalization: The two World Wars catalyzed the development of
international law, leading to the establishment of the League of Nations and later the
United Nations. This period emphasized human rights, self-determination, and the
prohibition of the use of force, reflecting a global commitment to peace and
cooperation.
Codification of International Law
Codification refers to the systematic organization and formalization of international law into
written texts. Important aspects include:
 International Law Commission (ILC): Established by the United Nations in 1947,
the ILC plays a pivotal role in the codification and progressive development of
international law. It drafts treaties and conventions on various topics, such as the law
of treaties and state responsibility.
 Key Treaties and Conventions: Significant efforts have resulted in numerous treaties
that codify international legal norms, including the Vienna Convention on the Law of
Treaties (1969) and the Geneva Conventions, which outline humanitarian law.
  Customary International Law: While codification primarily focuses on treaties,
customary international law also plays a critical role. Efforts to document and
formalize established practices accepted as binding continue to evolve.
Subjects of International Law
The subjects of international law are entities that possess legal personality and can engage in
legal relations under international law. They include:
 States: The primary subjects of international law, states have rights and obligations
under international treaties and customary law. The criteria for statehood include a
defined territory, a permanent population, and a functioning government.
 International Organizations: Entities like the United Nations and the European
Union are recognized as subjects of international law, possessing rights and
responsibilities that enable them to act on the international stage.
 Individuals: With the rise of international human rights law, individuals are
increasingly recognized as subjects of international law, particularly in contexts like
international criminal law, where individuals can be held accountable for violations.
 Non-State Actors: Groups such as multinational corporations and non-governmental
organizations may also have certain rights and obligations under international law,
especially in areas like humanitarian law and human rights.
In summary, the evolution, codification, and recognition of various subjects within
international law reflect its dynamic nature and its critical role in regulating relations among
states and other international entities.

UNIT 3
Relationship between International Law and Municipal Law
The role of the state in governance has evolved significantly over time. Initially, states
primarily focused on local laws aimed at protecting citizens. However, as societies
developed, the need for international laws became apparent to foster positive relations
between states. Today, the state's responsibilities are more complex and extend beyond
internal administration. States must now work to mitigate rivalries and manage
interdependence in a globalized world. This shift reflects the necessity for collaboration and
cooperation among states to address shared challenges and promote stability in international
relations.
International law consists of rules, norms, and principles that govern the interactions between
states and other international actors, including individuals and organizations. It covers various
areas such as war, diplomacy, human rights, and trade. According to Black's Law Dictionary,
it is a system that regulates the relationships between nations, with examples including
maritime law, treaties, and international criminal law. International law is divided into two
main branches:
  Jus Gentium: This refers to universal laws applicable to all nations.
 Jus Inter Gentes: This pertains to agreements between specific countries, which do
not apply universally.

 What is Municipal Law?

 According to Black Law, it is the ordinance and laws applicable in the city, town, and
other local entity of the society. Therefore, a municipal law is considered a local or
national law applicable within a defined territory. It is for the domestic and internal
purposes of a sovereign state against the essence of international law

Relationship between International and Municipal Laws

It is always essential to study the relationship between international and municipal laws
because there are some instances where international law becomes a part of domestic law. So,
if such a situation arises, which rule must be followed? To explain such a situation, you must
understand the relationship between these two laws, and for this, there are some theories.

The Dualist Theory of International Law

The dualist theory holds that international law and domestic (municipal) law are distinct and
independent legal systems. The key tenets of dualism are:
 International law and domestic law have different sources, principles, and
subjects. They exist in separate spheres and do not override each other

 For an international law to have effect within a state, it must be transformed into
domestic law through incorporation or implementation. Until this occurs,
international law cannot directly confer rights or obligations on individuals

 Dualist states require a process, such as legislative action or court rulings, to

adopt international treaties and make them enforceable under domestic law. The
UK follows a dualist approach, requiring international treaties to be translated into
national law

 Dualism maintains a clear separation between international and domestic legal

domains, avoiding jurisdictional conflicts and upholding the independence of the
two systems

 However, dualism necessitates continuous screening of all subsequent domestic

laws for potential incompatibility with earlier international obligations

In summary, dualism treats international and municipal law as distinct spheres, requiring
deliberate steps to incorporate international norms into the domestic legal framework. This
contrasts with the monist view of a unified legal system where international law is
automatically part of domestic law.
Examples
 United Kingdom: The UK follows a dualist approach where international treaties
must be incorporated into domestic law through legislation before they can have any
effect.
 Australia: Similar to the UK, Australia requires international treaties to be enacted
into domestic law by the parliament.
Criticisms
 Delayed Implementation: The need for legislative action can delay the
implementation of international norms.
 Fragmentation: Dualism can lead to a fragmented legal system where international
obligations are not uniformly applied or enforced.

Monism theory
Monism is a legal theory that views international law and domestic (municipal) law as a
unified system, opposing the separation proposed by dualism. Rooted in Kantian philosophy,
monism asserts that all laws derive from a single source, meaning that any domestic law
conflicting with international law is considered invalid. Key aspects of monism include:
 No Need for Transformation: Unlike dualism, monism does not require international
law to be transformed into domestic law to be effective. Once a state ratifies an
international treaty, it is automatically incorporated into national law.
 Supremacy of International Law: In cases of conflict between international and
domestic laws, international law prevails. For instance, if a country ratifies a human
rights treaty, a citizen can challenge any national law that violates those rights, and the
national law would be deemed invalid.
 Direct Applicability: Monist states allow international law to be directly applied in
domestic courts, enabling individuals to invoke international legal norms without
waiting for domestic legislation.
Examples
 The Netherlands: In the Netherlands, international treaties are directly applicable.
For instance, if a Dutch citizen feels their human rights are violated, they can invoke
international human rights treaties directly in Dutch courts.
  Germany: Treaties have the same effect as legislation. However, the principle of
“Lex posterior derogat priori” (later law removes the earlier) applies, meaning newer
laws can override older ones, including international treaties.
Criticisms
 Sovereignty Concerns: Critics argue that monism undermines national sovereignty
by allowing international norms to override domestic laws.
 Practical Challenges: The automatic incorporation of international law can lead to
conflicts and inconsistencies within the domestic legal system.

The Specific Adoption Theory

The specific adoption theory is an approach that attempts to reconcile the relationship
between international law and domestic (municipal) law. Key aspects of this theory include:
 States can selectively adopt international law provisions based on their specific
needs and requirements, rather than being obligated to incorporate all international
law.
 The constitution of a state determines the extent to which international law is
applicable within its territory. The legislature is responsible for enacting laws to
implement the international rules deemed beneficial by the state.
 This theory allows states flexibility in deciding when and to what degree
international law should be applied domestically, depending on its incorporation
into municipal law.
 Specific adoption is seen as a reaction against the dualist theory, which requires a
formal transformation process for international law to have domestic effect.
However, the specific adoption theory has faced some criticism:
 The meaning of "constitutional rules of international law" is unclear and
inconsistent when defining the theory.
 It fails to adequately explain the relationship between international and domestic
laws or establish the supremacy of either.

Harmonisation theory
Harmonisation theory explains that if there is any conflict between municipal and
international laws, domestic laws will be applicable in the domestic sphere and separate the
state’s obligations to the international laws. It suggests that the courts must try to minimise
the differences between these two laws through the harmonisation process, ultimately leading
to equivalent positions for both these law.
Practice of International Law in India
1. International Customs
o India does not follow Blackstone's doctrine of incorporation; instead, Article
51(c) of the Constitution encourages respect for international law and treaty
obligations.
o The Supreme Court's Approach:

 Annakumaru Pillai v. Muthupayal (1907): Recognized international

customary norms.
 ADM Jabalpur v. Shivakant Shukla (1976): Denied municipal
application of the Universal Declaration of Human Rights, although
Justice Khanna's dissent emphasized that international law should
guide municipal law interpretation unless there is a conflict.
 Vellore Citizens Welfare Forum v. Union of India (1996): Accepted
principles like "polluter pays" and "precautionary principle" as part of
Indian law, recognizing their international customary status.
o Conclusion: International customs are part of Indian law unless they conflict
with domestic law.
2. International Treaties
o Constitutional Provisions:

 Article 246 grants Parliament authority over treaties (List I, Entry 14).
 Article 253 empowers Parliament to legislate for treaty
implementation.
o Treaty-Making Process:

 Treated as an executive act (Union of India v. Manmull Jain, 1954), but

legislation is required if treaties impact existing laws, impose financial
obligations, or need specific legislative authorization.
o Implementation:

 Reflects practices of both England and the U.S.

 Recognizes self-executing and non-self-executing treaties (Maganbhai
Ishwarbhai Patel v. Union of India, 1970).

ENFORCEMENT OF INT LAW

Enforcement of international law presents significant challenges due to the absence of a
centralized authority or "international policeman" to ensure compliance among states. Unlike
domestic legal systems that have established mechanisms such as police forces and courts,
international law relies on various complex enforcement mechanisms to function effectively.
Key Aspects of Enforcement of International Law
 Lack of Central Authority: International law operates in a decentralized
environment where states are sovereign and often reluctant to cede authority to an
overarching body. This makes enforcement difficult, as there is no single entity with
the power to compel compliance.
 Mechanisms for Enforcement: Despite these challenges, several mechanisms have
been developed to promote adherence to international law:
o International Court of Justice (ICJ): As the principal judicial organ of the
United Nations, the ICJ resolves disputes between states and issues binding
judgments. However, its effectiveness can be limited by states' willingness to
comply with its rulings.
o United Nations Security Council: Under Chapter VII of the UN Charter, the
Security Council has the authority to take measures to maintain or restore
international peace and security, including imposing economic sanctions or
authorizing military action against states that violate international law.
 Formal vs. Informal Enforcement: Enforcement can be categorized into formal
mechanisms (e.g., judicial rulings, sanctions) and informal methods (e.g., diplomatic
pressure, public opinion). The interplay between these types of enforcement is crucial
for understanding how international law is upheld.
 Self-Enforcement: States often rely on self-enforcement, where compliance with
international law is motivated by national interests, reputational concerns, or the
desire to maintain good relations with other states. This dynamic can lead to varying
levels of adherence to international norms.
Customary international law is a fundamental source of international law that arises from
established practices and norms accepted as legally binding by states. It is defined by two
essential elements: state practice and opinio juris.
Key Elements of Customary International Law
1. State Practice: This refers to the consistent and general behavior of states in their
interactions. For a practice to be considered customary, it must be widespread and
representative, demonstrating a pattern of conduct that states follow over time.
2. Opinio Juris: This Latin term means "opinion of law" and signifies that states engage
in a particular practice out of a belief that they are legally obligated to do so. It
reflects the psychological element whereby states recognize the practice as a legal
obligation rather than merely a habit or courtesy.
Formation of Customary International Law
For a rule to be recognized as customary international law, it must satisfy both of the above
criteria. The International Court of Justice (ICJ) emphasizes that practices must be
sufficiently consistent and accepted as law by the international community. The ICJ has noted
that practices need to demonstrate a "sense of legal duty" to qualify as binding customs,
distinguishing them from actions taken for reasons of convenience or tradition.
Examples and Applications
Customary international law includes principles such as the prohibition of torture, the
doctrine of non-refoulement (which prevents states from returning refugees to places where
they face serious threats), and the immunity of state officials from prosecution while in
office. These customs develop over time through the actions and agreements of states, often
influenced by treaties and international organizations.
Importance and Recognition
Customary international law is recognized in Article 38(1)(b) of the ICJ Statute as a source of
international law, alongside treaties and general principles of law. It plays a crucial role in
filling gaps where treaties do not exist and provides a framework for international relations,
ensuring that states adhere to widely accepted norms and practices. In summary, customary
international law is a vital component of the international legal system, shaped by the
practices and beliefs of states, and serves as a binding source of legal obligations in the
absence of written agreements.
UNIT 4-6
SOURCES OF INT LAW
International Custom
Customary international law is a fundamental source of public international law that arises
from established practices and norms accepted as legally binding by states. It is defined by
two essential elements: state practice and opinio juris.
Key Elements of Customary International Law
1. State Practice: This refers to the consistent and general behavior of states in their
interactions. For a practice to be considered customary, it must be widespread and
representative, demonstrating a pattern of conduct that states follow over time.
2. Opinio Juris: This Latin term means "opinion of law" and signifies that states engage
in a particular practice out of a belief that they are legally obligated to do so. It
reflects the psychological element whereby states recognize the practice as a legal
obligation rather than merely a habit or courtesy.
Formation of Customary International Law
For a rule to be recognized as customary international law, it must satisfy both the criteria of
consistent state practice and opinio juris. The International Court of Justice (ICJ) emphasizes
that practices must be sufficiently consistent and accepted as law by the international
community. The ICJ has noted that practices need to demonstrate a "sense of legal duty" to
qualify as binding customs,

The North Sea Continental Shelf Case

FACTS:
Netherlands and Denmark had drawn partial boundary lines based on the equidistance
principle (mentioned in article 6 of Geneva convention) (A-B and C-D). An agreement on
further prolongation of the boundary proved difficult because Denmark and Netherlands
wanted this prolongation to take place based on the equidistance principle (B-E and D-E)
where as Germany was of the view that, together, these two boundaries would produce an
inequitable result for her. Germany stated that due to its concave coastline, such a line would
result in her loosing out on her share of the continental shelf based on proportionality to the
length of its North Sea coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation.
ISSUES:
Is Germany under a legal obligation to accept the equidistance-special circumstances
principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958,
either as a customary international law rule or on the basis of the Geneva Convention?
JUDGEMENT:
It was not a customary law as it was not used by sates for a long period of time. , the Court
found that the boundary lines in question were to be drawn by agreement between the Parties
and in accordance with equitable principles in such a way as to leave to each Party those
areas of the continental shelf which constituted the natural prolongation of its land territory
under the sea, and it indicated certain factors to be taken into consideration for that purpose.
The Court rejected the contention that the delimitations in question had to be carried out in
accordance with the principle of equidistance as defined in the 1958 Geneva Convention on
the Continental Shelf. The Court took account of the fact that the Federal Republic had not
ratified that Convention, and held that the equidistance principle was not inherent in the basic
concept of continental shelf rights, and that this principle was not a rule of customary
international law.

The Anglo-Norwegian Fisheries Case

FACTS:

British fishing ships had been fishing in waters that Norway claimed as her own. Norway
claimed all the waters within four nautical miles from its baseline. Britain agreed that this
was appropriate. Normally the baseline is the low-watermark which is the shoreline at low
tide. Norway, however, was a bit different just off the coast running up and down the coast
where a series of hundreds of rocky outcrops like little islands in a geographic sense though
these were really connected to the mainland. Norway for hundreds of years had counted these
rocky outcrops as part of its mainland territory.
So as far as Norway was concerned, the bass line was not the low tide mark on the beach
instead the bass line was the outer line of these rocky outcrops.
The customary rule was no British ship would enter 10 miles from the coastal line of Norway.
Britain respected this for 300 years. But in 1911, one British traveler ship entered this line
and Norway seized the ship. In 1948, another British fishing vessel entered that line and the
Norwegian Government again captured the ship and arrested everyone on that ship. After
that, the United Kingdom approached ICJ.
United Kingdom had 2 contentions in this case.
The first one was, Norway needs to delimit the maritime boundary in the low water grounds.
According to this, the maritime boundary would be 4 miles and not 10 miles.
The second one was, as Norway seized the fishing vessel and arrested the British people,
Norway needs to compensate for this action.
Norway argued on the history of 300 years of customary rule and the delimitation method
was consistent with general principles of international law.

The main issues in the fisheries case were

1. Whether the coastal line delimited by Norway which is 10 miles according to
customary rule is right or wrong?
2. Whether Norway is responsible for arresting the British people and whether Norway
should pay compensation or not?
JUDGEMENT: ICJ’s Decision

There are a number of ways that international law can be developed. The most obvious way is
by nations making treaties and conventions. Another way is customary law. Customary law
reflects the ways that nations dealt with one another before we had a more formal system of
international law. The court found that Norway had used the rocky outcrops as its baseline for
centuries and that other nations including Great Britain had allowed them to do so. The court
said, historical data produced by the Norwegian government lends some weight to the idea of
the survival of traditional rights over fishing grounds. Such rights founded on the vital need
of the population and attested by very ancient and peaceful usage may legitimately be taken
into account in drawing a line whichever appears to the court to have been kept within the
bounds of what is moderate and reasonable. Norway was therefore allowed in accordance
with customary international law to calculate its territorial waters from the edge of the rock
outcrops.
THE SS LOTUS CASE:

FACTS:

Facts of the Case:

A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel
– Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish
vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on
board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the
Turkish ship were charged with manslaughter. Demons, a French national, was sentenced to
80 days of imprisonment and a fine. The French government protested, demanding the release
of Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer
this dispute on the jurisdiction to the Permanent Court of International Justice
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime
committed by a French national, outside Turkey? If yes, should Turkey pay compensation to
France?
JUDGEMENT:
There exists no rule of international law, which restricts a sovereign state from exercising
criminal jurisdiction in its own territory over a foreign national who commits offences
outside of the state’s national jurisdiction. In this circumstance, Turkey (D) may prosecute
Demons because although he was aboard a French ship, the impacts of the alleged offence
occurred on a Turkish collier. Hence, both states here in respect of the whole incident may
practice ‘concurrent jurisdiction’.
The ‘flag state principle’ which was argued by France was rejected by majority in the court
since there was no rule to that effect in international law. The implication of this principle to
future events raising the issue of jurisdiction over people on the high seas was altered by
Article 11 of the Geneva Convention of High Seas, 1958. The convention put weight on the
fact that only the flag state or the state of which the alleged offender was a national had
jurisdiction over sailors regarding incidents occurring in high seas. This “flag state principle”
has since also been adopted in the United Nations Convention on the Law Of the Sea.

Lotus Principle
The Lotus case laid the foundation of the lotus principle. There are certain special rules that
have come out in relation to the lotus case regarding the collision, local claim, etc.

The first lotus principle was related to the jurisdiction of a country or state with its territory. A
state or country has no right to exercise its power outside its border without international
agreement or enacted laws giving it the right to do so. This is the first lotus principle. It is
stated in Paragraph 45 that one country cannot operate without its jurisdiction unless there is
a special law enacted by an international tribunal to be applied.

The second principle of the lotus case was that a country or state has the right to use its power
within its territory. The state may exercise its authority in matters of any nature that it deems
necessary to exercise. The state shall have the right to exercise its jurisdiction within its own
authority even if there is no specific international law that gives the state exclusive powers to
do so.
b. TREATIES
The term “treaty” is used as a generic term embracing all kinds of international agreements
which are known by a variety of different names such as, conventions, pacts, general acts,
charters, statutes, declarations, covenants, protocol, as well as, the name agreements itself. A
treaty may be defined as an international agreement concluded between States in written form
and governed by International Law. The Vienna Convention on the Law of Treaties defines a
treaty as an international agreement between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments.
Strictly speaking a treaty is not a source of law so much as a source of obligation under law.
Treaties are binding only on States which become parties to them and the choice of whether
or not to become party to a treaty is entirely one for the State – there is no requirement to sign
up to a treaty. Why is a treaty binding on those States which have become parties to it ? The
answer is that there is a rule of customary international law – pacta sunt servanda – which
requires all States to honour their treaties.
Judicial Decisions
Article 38(1)(d) of the Statute of the International Court of Justice (ICJ) lists "judicial
decisions" as a "subsidiary means for the determination of rules of law." This means that the
decisions of international courts and tribunals, particularly the ICJ, can help clarify and
interpret existing rules of international law. However, judicial decisions are not binding
precedents in international law, unlike in common law systems. The ICJ Statute explicitly
states in Article 59 that the Court's decisions are binding only on the parties to the case and in
respect of that particular dispute. Some key points about judicial decisions as a source of
international law:
 They are not a primary source but rather a subsidiary means to determine the content
of international law.
 They help interpret and clarify existing rules of international law.
 Decisions of the ICJ and other international courts are binding only on the parties to
the specific dispute.
 Domestic court decisions can also contribute to the development of international law.
Writings of Publicists
Article 38(1)(d) also mentions "the teachings of the most highly qualified publicists of the
various nations" as a subsidiary means for determining rules of international law. Publicists
refer to eminent scholars and jurists who have made significant contributions to the field of
international law through their writings and teachings. The role of publicists' writings in
international law:
 They provide authoritative interpretations and analysis of international law.
 They can influence the development of international law by proposing new ideas and
theories.
 Writings of highly respected scholars can be used as evidence of the existence of a
rule of international law.
 However, the weight given to a particular publicist's views depends on their reputation
and the persuasiveness of their arguments.
It is important to note that while judicial decisions and publicists' writings are considered
subsidiary sources, they can still significantly impact the interpretation and application of
international law. They are often cited by states, international organizations, and courts as
persuasive authority in legal arguments and decisions.
UNIT 7-8
Recognition in International Law
a) Concept
Recognition in international law refers to the formal acknowledgment by existing states of
the legal status of a new entity, such as a state or government. This acknowledgment is
crucial as it confers certain rights and obligations upon the recognized entity, enabling it to
participate in international relations and enjoy privileges such as entering into treaties, joining
international organizations, and receiving diplomatic recognition. Recognition is not merely a
procedural formality; it reflects the political and legal acceptance of an entity's existence and
status within the international community. The process of recognition can significantly
influence the legitimacy and functionality of new states or governments, shaping their
interactions on the global stage.
b) Modes of Recognition
De jure and de facto recognitions are the modes of recognition of the State. Recognition is the
declaration of existence in terms. De facto recognition is provisional. It is the primary step to
de jure recognition, which is fully recognised. When a regime changes, it is an existing State
letting know the political entity of another State. Simple announcements cannot do it. The
Montevideo Convention, 1933 implies four qualifications to be recognised, such as:

1. Permanent population
 2. Definite territory
3. Government
4. Capacity to enter into relations with other States.
Modes of State Recognition
There are two main modes of state recognition in international law:
1. De Facto Recognition
 Provisional and conditional form of recognition
 Acknowledges a state's actual control and functioning, even if its legitimacy is not
fully accepted
 Often a precursor to more formal de jure recognition
 Example: Recognizing a new government that has taken power by force before its
long-term viability is certain
2. De Jure Recognition
 Full, formal, and unconditional recognition of statehood
 Signifies the recognizing state accepts the new state's legal personality and
rights/duties under international law
 Implies the new state meets the criteria for statehood
 Example: Recognizing a newly independent state that has established a stable
government and control over its territory.
 UNIT 8

Legal Effects of Recognition

1. Recognised State becomes entitled to sue in the courts of the recognising State.
2. Recognized State is entitled to sovereign immunity for itself as well as its property in
the courts of recognising State.
3. Recognized State is entitled succession and possession of property situated in the
territory of the recognising State.
4. Recognised State may enter into diplomatic and treaty relationships with the
recognising State (de jure recognition).
5. Recognising State gives effect to past legislative and executive acts of recognised
State (retroactivity of recognition)
THEORIES OF RECOGNISITION
Consecutive theory of state recognition in International Law
The main exponents related to this theory are Oppenheim, Hegal and Anziloti.
According to the consecutive theory of state recognition in International Law, for a State to
be considered an international person, its recognition by the existing states as a sovereign is
required. Consecutive theory of state recognition in International Law is of the view that only
after recognition a State gets the status of an International Person and becomes a subject to
International Law. So, even if an entity possesses all the characteristics of a state, it does not
get the status of an international person unless recognised by the existing States.
Consecutive theory of state recognition in International Law does not mean that a State does
not exist unless recognised, but according to this theory, a state only gets the exclusive rights
and obligations and becomes a subject to International Law after its recognition by other
existing States.

Criticism of the consecutive theory of state recognition in International Law

This theory has been criticised by several jurists. Few of the criticisms of this theory are:
 This theory is criticised because unless a state is recognised by other existing states,
rights, duties and obligations of statehood community under International Law is not
applicable to it.
  This theory also leads to confusion when a new state is acknowledged and recognised
by some of the existing states and not recognised by other states.
Declaratory theory of state recognition in International Law

The main exponents of the Declaratory Theory of Statehood are Wigner, Hall, Fisher and
Brierly. According to this theory, any new state is independent of the consent by existing
states. This theory has been laid down under Article 3 of the Montevideo Conference of
1933. This theory states that the existence of a new state does not depend on being recognised
by the existing state. Even before recognition by other states, the new state has the right to
defend its integrity and independence under International law.

The followers of theory consider the process of recognition as merely a formal

acknowledgement of statehood by other states.

Criticism of the declaratory theory of state recognition in International Law

The declaratory theory of statehood has also been criticised. This declaratory theory of state
recognition in International Law has been criticised on the ground that this theory alone
cannot be applicable for recognition of a state. When a state having essential characteristics
comes into existence as a state, it can exercise international rights and obligations and here
comes the application of declaratory theory, but when other states acknowledge its existence
and the state gets the legal rights of recognition, the consecutive theory comes into play.

Indian Practice of Recognition

India's approach to the recognition of states and governments is shaped by its foreign policy
principles, historical context, and international law. Recognition is a crucial aspect of India's
diplomatic relations and international standing.

Key Aspects of Indian Practice of Recognition

1. Historical Context: India has a history of supporting decolonization and the right to
self-determination, which influences its recognition practices. Following its
independence in 1947, India recognized several newly independent states, particularly
in Africa and Asia.
2. Adherence to International Law: India follows the principles outlined in
international law regarding state recognition, including the criteria established by the
Montevideo Convention, which requires a permanent population, defined territory,
effective government, and the capacity to enter into relations with other states.
3. Political Considerations: India’s recognition policy is often influenced by political
considerations, including bilateral relations, regional stability, and strategic interests.
For instance, India has been cautious in recognizing governments that come to power
through unconstitutional means, reflecting its commitment to democratic principles.
4. De Facto and De Jure Recognition: India has employed both de facto and de jure
recognition in its foreign policy. De facto recognition may be granted to governments
that have effective control over a territory, while de jure recognition is reserved for
governments that meet the criteria of legitimacy and stability.
5. Examples of Recognition:
 o Recognition of Bangladesh: India was one of the first countries to recognize
Bangladesh after its independence in 1971, reflecting its support for the
liberation movement against Pakistan.
o Recognition of Palestine: India has consistently supported the Palestinian
cause and recognized the State of Palestine, reflecting its commitment to self-
determination and international solidarity.
o Cautious Approach to New Governments: India has been cautious in
recognizing governments that come to power through military coups or
undemocratic means, as seen in its approach to Myanmar after the 2021 coup.
6. Diplomatic Relations: Recognition by India often leads to the establishment of
diplomatic relations, enabling the new state to engage with India on various issues,
including trade, security, and cultural exchanges.
7. Non-Interference Principle: India adheres to the principle of non-interference in the
internal affairs of other states, which influences its recognition policy. This principle
is rooted in India's broader foreign policy framework, promoting peaceful coexistence
and mutual respect among nations.

CASE LAWS:

Luther v Sagor

Brief Facts of Luther vs. Sagor:

This is the case of Luther vs. Sagor. British citizen Luther used to run the timber business in
Soviet Russia. On June 20, 1918, the Russian Soviet Government allegedly issued a decree
stating, among other things. That the Russian Federative Republic was the owner of all
mechanical sawmills operated by limited or private companies with a capital of more than
1,000,000 roubles. And all woodworking facilities outfitted with such machinery.

After that, Mr. Luther left for the UK from Russia. The mill or factory, as well as the veneer
or plywood-created stock, belonged to the plaintiff company until 1919. Then agents of the
Russian Soviet Government seized and confiscated them. The Russian
nationalization business and Mr. Sagor from England came to an agreement for the
acquisition of certain wood. The plaintiff (Mr. Luther) filed a lawsuit seeking a determination
that they had a right to the wood after the defendants carried it into England.

Accordingly, the company dispatched the wood. But when the timer got to the UK, Mr.
Luther insisted that it was his wood. He emphasized that the British Civilization Court could
not validate Russian legislation because the UK had never acknowledged that the government
and Russia had unintentionally taken over his factory. Luther won his case at the lower court,
but he lost his appeal to the King’s Bench Division.

Issue:

The issue was raised before the King’s Bench Division to decide whether Russia is
recognized by Britain? And whether the nationalization was legal or valid?

Judgment:
The Chamber of the King’s Court declared that they could not interfere in the internal affairs
of another country because, at the same time, Russia acquired de facto recognition, and the
court also proclaimed the retroactive entry into force of the 1917 recognition form. The
nationalization of Russia is legitimate and successful as a result. Therefore, recognition
confers rights, privileges, and obligations; it might be de jure or de facto.

The Arantzazu Mendi Case: involved a Spanish ship registered in Bilbao during the
Spanish Civil War (1936-1939). The conflict was between the Republican government and
the Nationalists led by General Franco. The UK recognized the Republican government de
jure but also acknowledged the Nationalists de facto. As the Nationalists gained control over
regions, including Bilbao, the Republican government nationalized all ships registered in that
area. At the time, the Arantzazu Mendi was docked in the UK. The Nationalist government,
recognized by the UK, claimed that the ship belonged to them and requested its seizure and
transfer from the UK.

Court Decision:

The court ruled that a de facto government has control over state assets within its territory,
while a de jure government retains control over assets abroad. Thus, the Nationalist
government was entitled to the ship, as they had effective control over the territory.

UNIT 9

Recognition a) Recognition of belligerency b) Recognition of insurgency

two theories as to the nature of recognition

The constitutive theory says that a new state only becomes a real state in the eyes of
international law when other existing states recognize it. It’s not enough for the state to
declare itself independent; it gains full legal status because other states accept and
acknowledge it as a state.
The downside of this is that if a new "state" isn't recognized by others, it might not have to
follow international rules and responsibilities, such as the ban on using force against other
countries. Another tricky situation can happen when some states recognize it as a state while
others do not, leading to confusion and different legal standings in the international
community.
The declaratory theory takes a different view from the constitutive theory. It argues that a
state becomes a legitimate state based on its own existence and reality, not because other
states recognize it. In this view, a new state gains international legal status simply by meeting
certain criteria, such as having a defined territory, a government, and a population.
Recognition from other states is just a way for them to acknowledge an existing situation, not
what makes the state "real" or legal.
This theory fits better with the practical reality that states can exist and function even without
widespread recognition. Unlike the constitutive approach, which says an unrecognized "state"
has no legal rights or obligations, the declaratory view focuses on the facts on the ground and
reduces the power of other states to decide if a new state is legally valid.
INSURGENCY AND BELLIGERANCY: RECOGNITION
Insurgency refers to a rebellion or an armed struggle by a group of people within a country
who are fighting against their government. It's typically seen as an internal conflict that the
government needs to manage, like a riot or a mutiny.
On the other hand, "belligerent" status is a step beyond insurgency, where the conflict
resembles a civil war. Here, the opposing sides are treated almost like rival states, and the
situation is considered more than just a domestic issue—it can be viewed as a state of war.
In international law, insurgencies and civil wars are usually treated as internal matters for the
country to handle. However, if the rebels are recognized as "belligerents," they gain a formal
status that comes with rights and responsibilities under international law. This means they can
be held accountable for their actions just like any state would be. So, while not all
insurgencies reach this level, if they do, they become a recognized part of the international
legal system.

INSURGENCY
Insurgency is considered more serious than a regular rebellion, but there isn’t a clear
definition for it in traditional international law, which leads to confusion. There are two main
views about the status of insurgents under international law:
1. Some experts believe that recognizing a group as "insurgents" takes them out of local
(municipal) law and brings them under international law.
2. Others argue that insurgent status doesn’t change much—they still have no special
rights and remain subject to local criminal law.
Overall, having insurgent status may put such groups somewhere between national and
international law. Insurgency generally involves civil disturbances in a specific part of a
country, with some level of support from the local population. For a rebel group to be
recognized as insurgents, they need to have certain characteristics, though what exactly
qualifies can be unclear.
The Conditions for recognition of insurgents:
To be recognized as insurgents, a group needs to meet some key conditions:
 1. They must have control over a significant portion of the territory.
2. Most people living in that territory should willingly support the rebels, not because
they are forced to do so.
3. The insurgents must be capable of and willing to follow international rules and
obligations.
Here are examples of insurgency situations and how they were handled:
1. Chilean Revolution (1981): The British and other governments did not officially
recognize the insurgents as "belligerents" but allowed them to act with certain rights
typically given to belligerents.
2. Brazilian Revolution (1893): The United States and other countries explicitly refused
to recognize the rebels as belligerents. Foreign representatives, including those from
Britain and the U.S., warned the rebel commander that any attacks on Rio de Janeiro
or interference with commercial activities in the port would be met with military
resistance.

BELLIGERENCY
Belligerency represents the most serious type of conflict against an established government
recognized by customary international law. It is more clearly defined than rebellion or
insurgency and involves a formal acknowledgment of a state of war between two opposing
groups vying for power.
When belligerency is recognized, it gives both sides legal rights and responsibilities under
international law. This recognition essentially acknowledges that a war is occurring between
the groups. However, specific conditions must be met for a conflict to be recognized as
belligerency, ensuring that the situation is treated with the seriousness of an official war.
For a conflict to be recognized as belligerency, the following conditions must be met:
1. There must be an ongoing state of armed conflict within the country.
2. The insurgents need to control and administer a significant portion of the national
territory.
3. The conflict should follow the rules of war, with the insurgents acting as an organized
armed force under a clear authority.
4. Certain circumstances should compel other countries to formally define their stance
by recognizing the conflict as belligerency.
The concept of recognizing belligerency, as it is understood today, emerged in the early 19th
century when British and U.S. governments granted certain status to Spanish colonies in
conflict. While belligerency is more clearly defined than rebellion or insurgency, there is still
some ambiguity around it. However, the rights and responsibilities of belligerents are clearer,
as recognition gives insurgent groups rights and duties under international law, similar to
states.
Once recognized, belligerents become subject to international law, gaining some but not all of
the rights and obligations of states. This includes responsibilities under international
humanitarian law. Recognition of belligerency can be granted by either the country where the
conflict is happening (the "parent state") or by another country ("third state"). Traditionally,
the recognition of belligerency offers limited benefits to third states.

UNIT 10 State Succession

the legal implications of the transfer of territory from one state to another, a process referred
to as "state succession." This phenomenon arises from events like violent annexation,
peaceful cession, revolution, or territorial resettlements, leading to one state's sovereignty
replacing another's over a particular region. These transitions have significant economic,
social, and legal consequences, impacting international relations and territorial governance.
The body of law addressing these issues is known as the "law of state succession." Its
purpose is to minimize the effects of such changes. The term "state succession" has been
critiqued for implying that the succeeding state automatically inherits the legal rights
and obligations of its predecessor. However, the concept focuses on the transition of
sovereignty and the accompanying legal adjustments, emphasizing practical outcomes rather
than automatic legal continuity.
Theories of state sucession
doctrine of universal succession: The Universal Succession Theory, developed
by Grotius, is based on the Roman analogy of inheritance. It states that
when one state (the predecessor) is succeeded by another (the
successor), all rights and duties transfer entirely and without change. This
theory is justified by two principles:

1. The state's authority is divinely derived, and changes in government shouldn't affect
its powers.
2. Sovereignty is permanent and cannot be divided or ended.
While examples like the fusion of Syria and Egypt or Tanganyika and Zanzibar illustrate its
application, the theory has faced criticism. Scholars argue it oversimplifies distinctions
between succession and internal government changes and lacks broad acceptance due to its
reliance on outdated analogies.
Popular continuity theory: The continuity theory states that the successor state steps into
the place of the predecessor state and continues its rights and obligations, including any
treaties in place at the time of succession. This theory is based on the idea that the legal
personality of a state continues despite changes in territory, population, political and legal
regime, and name.
Organic substitution theory: The theory states that when a state is succeeded by another,
the people and territory remain integrated in an organic bond, but the juridical element of the
organization changes. The successor state absorbs the surviving factual elements of the
predecessor state and takes on its personality.
Self-abnegation theory: The Self-Abnegation Theory, introduced by Jellinek in 1900, is
another approach to understanding state succession. According to this theory, the new state
(successor state) agrees to honor the international obligations of the previous state
(predecessor state). However, this obligation is seen as a "moral duty" rather than a strict
legal requirement. Other states have the right to pressure the successor state to fulfill these
obligations, potentially withholding recognition or making it conditional on acceptance of the
predecessor's commitments.
The negative theory: The Negative Theory, developed in the mid-19th and early 20th
centuries, gained prominence after World War II with the Soviet emphasis on self-
determination. This theory posits that a successor state is not bound by the obligations of the
predecessor state. It asserts that the new state gains its sovereignty independently, not through
a transfer of power from the previous state.
Communist theory: The Communist Theory of State Succession argues that a successor state
is responsible for the economic and political debts of the predecessor state. Unlike the
Negative Theory, which frees the successor state from these obligations, the Communist
Theory holds the new state accountable for fulfilling all commitments, including treaties,
agreements, and financial debts.
TYPES OF SUCESSION
Universal succession occurs when the entire identity of a state is destroyed and its territory
takes on the identity of a new state. This can happen through merger, annexation, or
subjugation. In some cases, the old state may split into multiple successor states, as seen in
the dissolution of Czechoslovakia.
Partial succession happens when a part of a country breaks away and forms its own
independent country. This usually happens after a civil war or a war for independence.
Two famous examples of partial succession are:
 Pakistan from India: In 1947, India was partitioned into two countries, India and
Pakistan.
 Bangladesh from Pakistan: In 1971, Bangladesh broke away from Pakistan and
became an independent country.
When this happens, the new country starts with a clean slate. It doesn't inherit any of the
debts or obligations of the old country. The old country continues as before, with its own
responsibilities.
 UNIT 11-13

Humanitarian intervention is not the same as promoting human rights, but they are related.
Humanitarian intervention involves using diplomatic, economic, or military means to protect
civilians in danger due to natural disasters or political violence.
the complex relationship between humanitarian intervention and human rights. It argues that
human rights violations can lead to civil wars, which, in turn, cause further suffering and
rights abuses. Humanitarian intervention, by addressing both the immediate humanitarian
crisis and the underlying causes of the conflict, can potentially alleviate both problems and
promote human rights.
Here's a breakdown of the points:
Human Rights Violations as a Cause of Conflict:
The text suggests that persistent human rights violations can lead to feelings of frustration
and injustice among a population, potentially triggering a civil war.
Humanitarian Crisis During War: Civil wars often result in widespread suffering, including
inadequate food, water, shelter, and medical care, as well as blatant human rights violations
like arbitrary detention, forced displacement, and summary executions.
Humanitarian Intervention as a Solution: International action, such as humanitarian
intervention, can help address both the immediate humanitarian crisis and the underlying
political issues that led to the conflict. By providing aid and support to civilians and working
towards a peaceful resolution, humanitarian intervention can alleviate suffering and promote
human rights.
The ICRC was founded in 1863 and is known for its neutral stance in conflicts. This
neutrality means that the ICRC does not take sides in wars or criticize governments for their
actions, even if they involve human rights violations. The ICRC believes that this neutrality
allows them to access conflict zones and provide humanitarian aid to those in need,
regardless of their political affiliation.
However, this neutral stance has been criticized on several occasions, particularly during the
Holocaust. Critics argue that the ICRC's failure to condemn Nazi atrocities allowed the
genocide to continue. They believe that humanitarian organizations should not only provide
aid but also speak out against human rights abuses.
During the Biafran War in Nigeria, some ICRC employees disagreed with the organization's
policy of political neutrality. They felt that the Nigerian government's actions were causing
the suffering and that simply providing aid wasn't enough.
So, they left the ICRC and formed their own organization, Médecins Sans Frontières
(MSF). MSF believed in speaking out against human rights abuses, even if it meant risking
their ability to provide aid. They thought that in the long run, addressing the root causes of
suffering would be more effective than just providing immediate relief.
This marked a shift in the understanding of humanitarian intervention. It went from just
providing aid to actively addressing the underlying political and social factors that contribute
to humanitarian crises

Historical Example - Bosnia: o Bosnia’s civil war (1992-1995) T Background: The Bosnian
Civil War (1992-1995) erupted after Bosnia and Herzegovina declared independence from
Yugoslavia, triggering conflict among Bosniaks, Croats, and Serbs. Bosnian Serbs, supported
by the Yugoslav army, sought to unify parts of Bosnia with Serbia. This led to intense ethnic
violence, including genocide and ethnic cleansing, primarily targeting Bosniak Muslims.
Humanitarian Crisis: The conflict led to massive human rights violations, including the
infamous Srebrenica massacre, where over 8,000 Bosniak men and boys were killed.
Civilians faced forced displacement, starvation, and brutal violence, leading to a significant
humanitarian crisis.
Intervention under the League of Nations
The League of Nations was an international organization founded in 1920 to promote
international cooperation and peace. However, its effectiveness in preventing conflicts was
limited. The League's intervention mechanisms were primarily focused on diplomacy and
negotiation, rather than the use of force.
Here are some key aspects of intervention under the League of Nations:

1. Collective Security: The League's main approach to maintaining peace was through
collective security. This involved member states pledging to take action against any aggressor
state that violated international law. However, the League lacked the necessary enforcement
mechanisms to effectively implement this principle.

2. Peaceful Settlement of Disputes: The League encouraged member states to settle disputes
peacefully through negotiation, mediation, arbitration, or judicial settlement. The League
Council could also investigate disputes and recommend solutions.

3. Sanctions: In cases where peaceful settlement failed, the League could impose economic
sanctions on aggressor states. These sanctions could include trade embargoes and financial
restrictions. However, the effectiveness of these sanctions was often limited, as many states
were reluctant to participate fully.

4. Military Intervention: The League of Nations Covenant did not explicitly authorize
military intervention. However, in some cases, the League Council could recommend military
action against aggressor states. This was often done in conjunction with sanctions.

Examples of League Interventions:

 Corfu Incident (1923): The League intervened to resolve a dispute between Greece
and Italy over an incident in Corfu.
 Abyssinian Crisis (1935): The League condemned Italy's invasion of Abyssinia but
failed to take effective action to stop the aggression.
 Spanish Civil War (1936-1939): The League was unable to prevent the outbreak of the
Spanish Civil War or to intervene effectively to end the conflict.
Limitations of League Interventions:
 Lack of Enforcement Mechanisms: The League lacked the military force to
effectively enforce its decisions.
 Reluctance of Member States: Many member states were reluctant to participate in
collective action, especially if it involved potential military intervention.
 Political Divisions: The League was often divided along ideological lines, which
hindered its ability to take decisive action.

INTERVENTION UNDER UN
The UN Charter emphasizes sovereignty and non-interference, balancing these with
customary international law protecting individuals' safety and rights. However, military
interventions are only authorized under Chapter VII when threats to international peace are
formally determined. This balance often clashes with ethical and strategic considerations,
raising questions about the criteria and legitimacy of interventions, which are sometimes
influenced by powerful nations' interests.
Key Criteria for Justifying Intervention:
1. Gross human rights abuses, including genocide.
2. Overthrow of a democratically elected government.
3. Failed states with collapsed central authority.
4. Severe abuses of power during civil conflicts, including ethnic/religious strife.
Interventions often reveal contradictions and double standards, with decisions driven by
geopolitical interests. For example:
 The UN intervened in Cambodia and Rwanda but failed to act in Afghanistan under
the Taliban.
 Overthrows in Haiti triggered responses, but Pakistan’s military coup in 1999 did not.
The uneven application of intervention also depends on a state's strategic importance, as seen
in East Timor versus Serbia. Moreover, efforts like imposing democracy on countries
unprepared for it can cause instability, highlighted by cases in West Asia. Interventions
labeled "humanitarian" often obscure the complexities of motives, outcomes, and geopolitical
influences, reflecting a tension between justice and realpolitik.
The UN Charter upholds state sovereignty (Articles 2.1 and 2.7) and prohibits force against
territorial integrity or political independence. However, Chapter VII allows intervention in
crises threatening international peace, forming a legal basis for humanitarian intervention.
Early Peacekeeping Missions
In the 1950s, UN peacekeeping focused on inter-state conflicts, such as the Suez Crisis
(1956). The Congo Crisis (1960–1964) marked a shift to internal conflicts, though the
operation faced controversy, revealing the limits of UN involvement in domestic issues.
Shift in the 1990s: Civil Wars and Mass Atrocities
Post-Cold War, greater UNSC unity enabled interventions in internal conflicts, prioritizing
civilian protection:
 Somalia (1992): Military intervention addressed famine and civil war, marking a new
precedent for protecting civilians.
 Rwanda (1994): The UN's failure to prevent the genocide exposed its limitations and
called for stronger mandates in mass atrocity cases.
 Bosnia (1992–1995): Despite deploying peacekeepers, the UN failed to prevent
atrocities like the Srebrenica massacre. NATO's airstrikes later adopted a more
forceful approach to civilian protection.
This era underscored the growing role and challenges of humanitarian intervention in
addressing internal crises.

UNIT 14-16
EXTRADITION

Extradition is a legal procedure where one state hands over suspected or convicted
criminals to another state, fostering international cooperation to combat crime. Rooted
in treaty law, extradition frameworks exhibit substantial uniformity in bilateral treaties
and municipal laws, despite differences in civil and common law systems. Common
principles of extradition include:

 An official extradition request by the requesting state.

 The crime must qualify as an "extraditable offense."
 Adherence to the principle of double criminality (PODC).
 Evidence of guilt is required.
The rule of speciality ensures prosecution is limited to the offenses cited in the
extradition request. Extradition laws have evolved to protect individual rights by
incorporating exceptions in treaties and national acts. These exceptions consider
personal circumstances, peculiarities of criminal proceedings in the requesting state,
and certain offense categories. Situations where extradition may be denied include:

 Non-extradition of nationals: States may refuse to extradite their own citizens.

 Fundamental justice and fairness: Ensures extradition does not violate basic legal
principles.
 Risk of death penalty: If the offender faces the death penalty in the requesting state.
 Humanitarian exceptions: Considers the individual's health or personal hardships.
 Military offenses: Exempts military-specific offenses.
 Political offenses: Protects individuals accused of political crimes.
Principles of Extradition:
➢ Double Criminality Double criminality refers to the characterization of the relator's
criminal conduct in so far as it constitutes an offence under the laws of the two respective
states. The general rule is that the offence in respect of which extradition is requested must be
an extraditable offence not only under the law of the requesting state but also under the law of
the requested state. Hence, if any act is considered a crime is the state requesting extradition
both if it is not a crime in the country of refuge extradition is not granted. Example, in Eisler
case 1939 the fugitive Eisler was convicted for being member of CPUSA hut managed to flee
and reach UK. He was arrested and produced For trail at the English magistrate, held to be
released on the ground that the offence for which he was convicted in USA was not
recognized as a crime in UK.
➢ Extraditable Offense The very first requirement for a successful extradition is that the
offence committed must be an extraditable offence. Extradition is a procedure appropriate
only for the More serious offences and accordingly the national extradition law of most States
limits the number of extraditable offences either to certain specific offences or to offences
subject to a specified level of punishment
➢ Double Jeopardy The most basic understanding of double jeopardy is that it refers to
prosecuting a person more than once for the same offense. Once you are acquitted or
convicted of a specific instance of violating the law however, you cannot be prosecuted (or
punished again, if convicted) on that same charge by the same government for that same
instance of violating that law. A notable example is Guy Paul Morin, who was wrongfully
convicted in his second trial after the acquittal in his first trial was vacated by the Supreme
Court of Canada.
➢ Rule of Specialty This doctrine is premised on the assumption that whenever a state uses
its formal processes to surrender a person to another state for a specific charge, the requesting
state shall carry out its intended purpose of prosecuting or punishing the offender only for the
offence for which the requested state conceded extradition. The doctrine of specialty
developed to protect the requested country From abuse of its discretionary act of extradition.
A fugitive criminal can not be tried for a crime other than the crime for which he was
extradited, however, if he escapes and in rearrested, he can be tried to other offences too (US
versus Rouscher, where the US supreme court held that the person extradited could only be
tried for the crime extradited for not for another, the other leading case is R versus Corrigan,
1931)
➢ Rule of Reciprocity Reciprocity is one of the legal basis for extradition in the absence of a
treaty which is a part of international principles of friendly cooperation amongst nations.
Reciprocity, as a substantive requirement of extradition (whether based on a treaty or not)
arises with respect to various specific aspects of the process.

 Extradition faces numerous challenges, stemming from a lack of political will among
states to honor treaty obligations requiring them to extradite or prosecute offenders.
Some states employ legal measures to shield their nationals from foreign prosecution,
undermining treaty objectives.
 In the context of global terrorism, extradition becomes even more critical due to the
transnational nature of such crimes. However, challenges arise from the absence of a
universally accepted definition of terrorism, forcing judicial forums to reinterpret
existing treaties to include terrorism, even in armed conflict scenarios. These
complexities underscore the need for clearer frameworks and stronger international
cooperation.

SAVARKAR CASE

FACT OF THE CASE:

Mr. Vinayak Donador Savarkar was a rebellious leader of British India was accused of
Sedition and murder. While the British government was sending him to India he managed to
step out from the ship at manse tiles throughout the porthole of a water closet. But he was
captured by a French Policeman who did not recognize him, they thought that he is a criminal
and thus handed him over to the captain.

Later the french government discovered the was the renowned political person Savarkar and
than they requested to the British government to return him back (extradite) to the french
authority being recognized as their asylum holder but the British government refused to do
so.

Franch went to the International Court of Justice against this refusal.

ISSUE:

 Whether France was entitled to extradite Saverkar?

 What are the relevant international law and customs in this regard?

DECISION:

The International Court of Justice (ICJ) provided the decision in favour of Britain and held
that there is no such provision of any international law where Britain is bound to extradite
Saverkar where once they returned him to the British authority.

REASONING:

There is no rule or Act about extradition in International Law which ground the U.K is bound
to extradite Savarkar.

Asylum Case (Columbia v. Peru, 1950)

Principle: For Custom to be definitively proven, it must be continuously and uniformly

executed.

Fact: Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the
crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months after the
rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador
confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the
Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee
in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 Peru
refused to accept the unilateral qualification and refused to grant safe passage.

Issue: Whether there is a custom so established that it is binding to allow Columbia to grant
political asylum

Decision: The international Court of Justice decided that a State granting

diplomatic asylum do not have the unilateral right to qualify an offense for The purpose
of asylum, nor was Colombia entitled to claim guarantees for the safe departure of the man to
whom he had given asylum.