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LLB LAW NOTES ON PUBLIC INTERNATIONAL LAW

The document discusses the definition and scope of international law, emphasizing that it consists of principles and rules observed by states in their interactions. It critiques Austin's view that international law is merely 'positive international morality' and affirms the existence of an international community, rules, and enforcement mechanisms that establish its legal status. Additionally, it outlines the sources of international law and contrasts it with municipal law, highlighting various schools of thought on their relationship.

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Subject: PUBLIC INTERNATIONAL LAW Class: LL.B. III-SEMESTER INTERNATIONAL LAW CHAPTER 1 Legal Basis of International Law Definition: International Law is defined as a body of principles & rules commonly observed by States in their mutual relationship with each other. It; includes the law relating to States & International organisations and also International Organisations inter se. It also includes the
rules of law relating to international institutions and individuals, and non-State entities and individuals. ii) Though there are theories on the legal basis of International Law, the Austinian theory has received wide attention. Austin opined that International Law was not law at all called it a 'Positive International Morality' and hence it had only moral force. He called it a set of opinions or sentiments current among nations generally and "laws improperly so called". Hobbes, Pufendrof, Bentham and Holland were of the same view. Holland said that it was at the vanishing point of jurisprudence. Austin defined law as a 'body of rules, set and enforced by a sovereign political authority. Hence when the rules depot comes from the sovereign, they would not be legal, but moral. Basing on this positive law concept Austin declared International Law as a code of morality. . Reply to Austin by Oppenheim: This definition is inadequate and incorrect because there is no reference to unwritten law (custom) as courts understand and apply them. Customary rules or rules of morality are founded on conscience. Hence, law must be defined to include the unwritten law. Neither the law making sovereign authority nor the court is essential for a law to exist. In the primitive community that was the position. In the modern State, the common consent of the people is expressed through the legislature (Parliament). But, there are unwritten laws as well. Wider Definition: Law may therefore, -be defined 'as a body of rules in a community framed by common consent, and enforced by an external power'. This definition answers the State-made law and the customary law. Hence, in a State, the Parliament (representatives of the Community) is the law making body and that law is enforced by the Community called the State. A custom is made by the community and is enforced by the community itself (Courts recognise them as a source 6f law). Hence, this definition is wider. Applying this definition if we are to justify that International Law is 'Law', we must prove the existence of: (a) An International community, (b) A body of International Rules and (c) A system of enforcement (sanction), a) International Community: The States together form an International Community. There are common interests in the field of science and technology. There is a 'world net-work of communications through telegraphic, telephonic connections and radios. There are Inter-State connections by railways, airways and ship navigation.
Further, there is cultural co-operation and common interests on education etc., Establishment of Organisations like the United Nations and the Specialised Agencies, Regional Agencies etc., speak volumes to the fact that there is a World Community. b) Body of International Rules: Treaties & International customs are the main sources of International law. Austin's views however right for his time are not true of present day International Law; International customs are being formulated into treaties & conventions. There is great volume of international legislation: - E.g. : Declaration of Paris 1856, Hague .Conventions of 1899 & 1907, Peace Treaty 1919, Treaty for Renunciation of War 1929, the U.N. Charter 1945, various conventions of the Law of the Sea Conference 1958, Vienna Conventions on Diplomatic Relations etc., There are also a large number of International Customary Rules, evolved from diplomatic relations and correspondence from the practice of international organizations & State Practices, etc: These are formulated into treaties & Conventions. The International Law Commission is playing its major role in this process. Thus, there is no legal vacuum, but a body of international law in operation. Enforcement: States resort to: 1; Self-help. 2. Intervention-pure & simple. 3. Pacific Settlement under the U.N. Charter-; Also to Collective Security Measures of the Security Council. 4. Punishment of Offenders: e.g. : War Criminals. There are also rules of 'International. Community' based on goodwill, courtesy & reciprocity & Austin is correct when his 'code of international morality' refers to them. But, those are different from International legislation noted above. 5. Political questions may be resolved through the General Assembly or the Security Council. Judicial questions may be decided by the International Court of Justice. There is a frequent resort to Arbitration as well. , Hence, for enforcement there is the sanction (or force) of the International Community. Conclusion: As all the three elements are present, International law is evidently law. Of course, the frequent violations of International Law, show the weakness of the sanction of International Law. But, as Oppenheim, rightly concludes, 'Compared to Municipal Law, it is a weak law, but a weak law is still a law.'
CHAPTER 2 SOURCES Sources of International Law. i) Meaning: 'Source', according to Oppenheim, means the ultimate origin from which the law originates. When we see a river and desire to know its source, we must go up the river until we reach a particular point where the water is oozing out naturally from the soil. That is the source of the river. Similarly, in order to find out the source of the principles of International Law we must track back to a particular point. That is the source. ii) The Statute of the I.C.J. in Art. 38, has enumerated the following sources of International Law on the basic of primacy before the court: a) International Conventions or treaties. b) International Customary Law. '. . c) General Principles of law recognised by' Civilised Nations. d) Judicial Precedents. e) Juristic Writings. f) Ex aequo et bono. (Equity & good conscience) These are to be applied in the same order by the I.C.J. a) International Treaties: There is primacy for this source at the International Court of Justice. Treaties are of two kinds: (i) Law-making and (ii) Treaty-contract. Eg.: Pact of Paris 1956; Hague conventions of 1899 & 1907, Peace Treaty 1919, Treaty for the Renunciation of War, 1929, Geneva Convention relating to Prisoners of War 1929. Conventions of the Law of the Sea Conference 1958 are examples. (ii) Treaty-contracts are non-law making in nature.
International Custom: This is the original source of International law. It manifests in (i) Diplomatic Correspondence of States, (ii) Practice of International Organisations (iii) State Court's decisions, (iv) State Practice & Administrative actions etc. Origin: Custom has its-origin in a usage. If the usage is continuous, uniform and followed for a number of years it becomes a custom. Usage is the twilight zone of custom. But two conditions must be satisfied: (i) Corpus test: A material fact of the actual observance of a line of conduct by the States. This must be shown as a fact. (ii) Animus test: There must be an intention to follow the custom. It reaches a stage of approval 'opinio juris sive necessitatis' (Jurists' opinion as of necessity). Then, the principle (usage) becomes an International Custom. This is the process of the consummation of a usage into an International custom. In the Lotus Case, the Court (P.C.I.J.) held that the opinion juris must be drawn from all the circumstances & not merely from the facts on hand. In the Right of Passage case (Portugal Vs. India), the I.C.J. held that a particular practice between two States only may give rise to binding customary law. It held that Portugal had a right of passage for civilians but not for military officials. In the Temple of Preah Vihear Case the I.C.J. held that Thailand was precluded by her conduct from questioning Cambodia's sovereignty over the Temple. (iv) In the Mavrommatis Palestine Concessions Case the P.C.I.J. applied the doctrine of Subrogation. Comments: It is stated that the recognition of 'General Principles' as a source of law would sound the deathknell of positivism. This statement is overdrawn, Positivits believe in the common consent of the States as the basis of International Law. Naturalists believe in the superiority of natural law only. Hence, these two are opposite schools. The; above comment is a reference to this and believes that the recognition of 'General Principles' based on Natural law ended the positivists theory. But, this is not so. The I.C.J. applies Treaties & Customs and only in their absence, resorts to the 'General Principles of Law recognised by Civilised Nations/ Hence, priority is given to positive law. d) Judicial Precedents: The decisions of the I.C.J., the P.C.I.J., the International Arbitration Tribunals and the National Supreme Courts form the fourth source of International Law. This is followed by the
Courts not only as a source, but also as the best evidence available to show the existence of rules of International Law referred to in those decisions, e.g.. ( i ) I.C.J.. Decisions. The Fisheries Case (drawing of straight base- line to determine the territorial waters), the Reparations case declaring the U.N. as successor to the League of Nations & that U,N. is an International Person have laid down new principles of International law. ii) P.C.I.J. : Palmas Island Case iii) International court of Arbitration: Savarkar's case, Pious Fund case, North Atlantic Coast Fisheries case etc. iv) State Courts: Franconia case, Scotia case, Paqueta Habana case etc. e) Juristic Writings: This is the source, next to the precedents. The I.C.J. may refer to the teachings of the most highly qualified; publicists of the various nations. In the 16th & 17th Centuries, writers on International law held a pre-eminent position as this system of law was in its slow ebb of development. Even today in areas where the law is uncertain the classics of the jurists are referred to by the State's before the I.C.J. and Arbitration Tribunals in support of their arguments. The judges pay regard to the juristic writings as they are persuasive in nature. The classical works of Gentili, Hugo Grotius, Zouche, Pufendorf, Bynkershoek, Moser, Van Martens, Vattel, etc., are relied upon. References are made to Oppenheim's treatises, and Lauterpacht's writings, and to the texts of the International Law Commission. f) Ex aequo et bono This is the final source. This means equity & good conscience. This saves the situation of helplessness of the Court. One of the fundamentals of the judiciary is to solve the .dispute on hand and not plead its helplessness or non- availability of any definite law. In such a case, as a last resort, the court relies on its own concept of equity and good conscience & decides the case on hand, if the parties agree e.g., The P.C.I.J in the Diversion of Water from the River Meuse case said 'He who seeks equity must do equity'. Hence, one party by non-performance cannot take advantage of a similar non performance by the other party. In the Rann of Kutch Arbitration (India V. Pakistan), both parties relied on equity as part of International law, in deciding the boundary dispute between the two parties the Tribunal found the two deep inlets of Nagar Parkar as part of Pakistan, on grounds of equity. In the
Continental Shelf Cases and in the Barcelona Traction Case, the I.C.J has applied equitable principles to solve the disputes. CHAPTER 3 International Law Vs. Municipal Law i) Introduction: Two aspects are to be noted in the relationship between Municipal Law & International Law. One is the theoretical question whether both laws are part of a Universal legal order, or, are two different systems. The other is the conflict between them in the Municipal courts as to the primacy of Municipal Law over International Law, or vice versa. ii) Two Schools: The two schools are the Dualistic & the Monistic schools: Monistic School: According to Anzilotti and Triepel, International Law & Municipal Law are two separate & distinct systems of law-one is the antipode of the other. The reasons are: Sources: Municipal law has Acts of Parliament arid local custom as sources of law, whereas International law has treaties and International customs as primary sources. Thus they are different. Secondly : Individuals are subjects in Municipal law, whereas the States are subjects in International law. Thirdly: Under Municipal law the State has its sway over the individuals, whereas International law is between or among Sovereign States. Dualistic School: Dualists school has been opposed by the Monistic school (also called Vienna School) which holds the following views : (founder Kelsen). Firstly : Ultimately it is the conduct of the individual that is regulated in both the systems of Municipal law. Secondly : Law is a command on the subjects (Individuals or States) independently of their will. Thirdly : Both the systems are the manifestations of a single, conception of law. Two branches of the same tree. From the above schools it is evident that International law and Municipal law are separate according to the Dualists but one and the same according to the Monists.
iii) Practice of States : In U.K.: Primary Rule : International Customs : According to Blackstone, Customary International Law is part of the law of the land. The British Courts follow this rule but subject to two conditions; 1. That such a rule should not be against any British Statute. 2. That once the Court decides, it is followed thereafter. The Blackstone's Theory was confirmed by judicial determinations (Dolder V. Hunting field, Nevello V. Toogood etc.). Leading cases : 1.. R.V. Keyn (Franconia Case) 1876 Franconia, a German ship, collided with a British vessel within the British Maritime Belt. The British Vessel sank and one person -died. The British Court convicted the master of the German ship for manslaughter. Question arose about the jurisdiction of the Court as the incident had happened within the British territorial waters. The House of Lords, held that the English Court was, bound by Municipal Law and Municipal Law had not provided for the Jurisdiction hence no jurisdiction. This was neutralized by the Parliament which passed the Territorial Jurisdiction Act 1878 by extending the jurisdiction. 2. West Rand Gold Mining Co .V. King 1905. This was a Company working a gold mine in South Africa. The Govt. officials seized gold belonging to the Company & according to laws they were to pay compensation or return the same. South Africa was defeated by the British, and, the gold was brought to England. Thereupon, the Company sued the English Govt. for return of the gold or for compensation. The Crown made a Declaration which stated that the British Govt. as a successor would not respect the commitments of the South African Govt. The Court held that the Company was not entitled to the gold or for compensation, as the Crown Declaration was Municipal Law. Binding on Municipal CourtsHence, municipal Law prevailed. 3) Chung Chi Cheung V. King (Privy Council). C was a cabin boy on board a Chinese vessel. 'When the Vessel was in Hongkong Territorial Waters, he shot & killed the Captain. & another person. C was duly committed. But the question was whether the Court of Hongkong (a British ' Colony then) had jurisdiction to try the case. The Privy Council held that the Court had jurisdiction. The conviction was affirmed. Rules of Interpretation. The rules emerge from British practice .A rule of construction that the Parliament did not intend-to deviate from international law. This is a presumption.
ii) A rule of evidence according to which courts take notice of International law. b) Treaties: Negotiation, signature ratification is matters, belonging to the prerogatives of the Crown. But legislation is necessary, if treaties are:- 1. Affecting the rights of subjects (citizens). 2. Modifying a statute. 3. Vesting additional powers on the Crown. 4. Imposing financial burden.Legislation is also necessary, if there is a provision for cession of the territory. Hence in case of treaties, incorporation is necessary; otherwise, Muncipal law will prevail. Practice of States: In U.S.A. i) International Custom : The procedure is the same as in U.K. ii) International Treaties : The practice Is different- a s the U.S. Constitution in Art. 6(2) provides that treaties are The Supreme – Law of the land'. There is a clear distinction between self executing and non-self executing treaties. Self executing treaties operate without legislation. In case of non- self- executing treaties. They will him operative only after legislation, INDIA : Art. 51, of Directive Principles of State policy, provides to respect for International Law'. This provision is a reference to the State Policy only. Broadly speaking the practice of U.K. is followed in India, (Beruberi Union Case). CHAPTER 4 CODIFICATION Codification To provide definite laws to the International Courts. National Courts and Tribunals and to stimulate the willingness of States to submit International disputes, codification gained momentum. The idea of codification first came from Bentharn. The declaration of rights of Nations--of 1792 of France was the first attempt. Abhe Gregorie drafted 21 articles for this purpose. However, the convention was not a success.
The first successful attempt was made at the First Hague Conference convened by Emperor Nicholas II of Russa in 1899, This showed the possibility of codification. The conference codified inter alia : , i) Pacific settlement of disputes: and ii) Law and custom of war on land. The second Hague Conference of 1907 passed 13 conventions. They relate to Maritime Navigation, rules of war. Neutrality and opening of Hostilities, etc., A parallel development in the ‘field was the peace Treaty of 1919. It provided for the League of Nations and the ILO and PCIJ. The League provided for an International Law Commission consisting of 15.Jurists. Subjects which were ripe for codification were selected by them. Codification relating to nationality, territorial waters, privileges and immunities of Ambassadors etc., were successfully made. The convention declared the renunciation of war as an instrument of National Policy (1929). The codification of International Law conference met in 1930 provided for conflict of Nationality laws; and Statelessness. etc. Under the United Nations, the International Law Commission is charged with the duty of codification and progressive development of International law. There are now 34, members. Since 1948, the International Law Commission has conducted its deliberations and submitted its drafts. Codification has been made on many main topics .e.g., Privileges and Immunities of Ambassadors. & of consuls and treaty law, etc., The Commission has endeavoured to give clear expression where there is a common measure of agreement or uniform practice. Codification has been viewed as systemization & codification of principles agreed upon and (ii) agreement on hitherto divergent issues and practices.. Codification exposed the States to dangers of unanimity Rule. It also showed that certain States did not like to commit in writing what they were actually practicing. Further, uniformity in opinion was not available and lengthy preparations and discussions were inevitable. The earlier Conferences could not, possibly achieve much: The International Law Commission under the U.N. is almost free from the dangers stated above. Its work is commendable and laudable Progressive development means the preparation of draft convention on subjects which are not yet regulated or developed- Much work is done by the International Law Commission, e.g. Geneva conventions on the-Law of
the Sea 1958. Vienna Convention on Diplomatic Relations 1961, Vienna Convention on the law of Treaties 1969 etc., The modern trend is, towards the speedier method of international law making process: i.e. Treaties bi and multilateral. This is called international legislation. The role of these law making treaties is considerable. The contributions of International court of Arbitration, P.Q.I.J. & I.C.J. are of great significance Apart from these, the part played by International Law. Commission in formulating treaty-drafts, in respect of volume & area covered, are phenomenal. The processes in codification & progressive development of International law are confirming .on and have become part of law making in the field' of International law. CHAPTER 5 STATES AS SUBJECTS Subjects of International Law. Primarily, International Law is concerned with the rights duties and interests of States. As ‘International law 'is between or among the States, some jurists hold the view. That 'only the States are the subjects of International law'. Subjects of International Law mean is : . 1. Incumbent of International rights and duties:- 2. Possessor of procedural privileges of suing in International Courts and Tribunals 3. Possessor of interests under International law. 4. Capacity to enter into treaties & International obligations.
EXCEPTIONS : i) Though it. is the conduct of the state that is regulated by international law, in the ultimate analysis it is the conduct of the individuals that is regulated. As Westlake opines 'The rights & duties of the States are ultimately the rights and duties of-men that compose them. Hence, though the States are normal subjects, they may endow the individuals with the International rights & duties and to that extent make them subjects of International law. ii) Pirates who commit Piracy Jure Gentium on the high seas are liable to punishment under International law. To that extent they are the subjects of International law,, but some jurists call them as objects. iii) Slaves: International convention has provides for the abolition of slavery. The convention also provides for the rights of the, slaves. They enjoy these rights as subjects of International law. iv) Belligerents : are subject to International rights and duties in respect of war. Hence, they are subjects of International law. e.g. Geneva Conventions on the Prisoners of war apply to them.. v) Individuals : May be allowed to appear before the International tribunals, like ICJ. In Danzsig officials case, the ICJ. has opined that individuals may be conferred with certain rights by States. vi) War Criminals: The Nirenberg and Tokyo trials after II World War showed that individuals could be tried for International crimes like crimes against peace, crimes against humanity and crimes under the law of War. Eichmann’s Trial fortifies the above position. The Nuremberg- Trial rightly stated that crimes against International law are committed by men not by abstract entities (States) and only by punishing individuals who commit crimes, can the provisions of International, law be enforced. vii) Genocide Convention: This provides for punishment of those who commit genocide, the punishment may be awarded by National or International courts. viii) European Commission for Human Rights has been empowered to investigate and to report on violation of' human rights by the Member States. The Lawless case decided by the European Court of Human Rights is an example. ix) United Nations : The I. C. J. in the Reparations case held that the United Nations is an International person. It is also 'declared as the subject of International law, capable of International rights and obligations.
x) The Specialised Agencies like I.L.O., U.P.U., are International persons and hence the subjects of International law as per their Constitutions. xi) Regional Arrangements: Like the NATO., SEATO., etc. are also endowed with international personality. Hence they are also subjects of International law in a limited w iv. These factors evidently prove that apart from Sovereign States, there are others which are also the subjects though '.in a limited sense. It is no doubt true that States are mainly the subjects, as the capacity to follow International obligations, is on them primarily. CHAPTER 6 RECOGNITION Recognition. i) Definition : It is the free act by which one or more States acknowledge the existence of a politically organised independent sovereign community capable of observing International obligations. The recognition is for the membership of the 'Family of Nations'. Until 1857, there was an European family of Nations but in 1857, Turkey was admitted to it and since then, it is no longer an exclusive European family of Nations. Today -recognition is with reference to this family of Nations. (This is different from the membership to the United Nations).) Theories : There are two theories :i) The Constitutive? Theory and ii) The Declaratory theory According to the Constitutive theory, the act of recognition alone creates statehood, whereas according to the Declaratory theory, State exists prior to, and, independent of recognition. The act of recognition is merely a formal acknowledgment of an established situation. Hence, a new State becomes a member of the family of Nations ipso facto by raising into existence and recognition supplies only the necessary evidence of this fact. According to the Montevideo Convention 1933, the essentials of statehood are: a permanent population, definite territory, and established Government And full capacity to enter into International relations with other States. Sometimes a definite territory is not always essential as is evident from State practice during World War II. Hence, if these essentials are present, there is Statehood according to declaratory theory whereas according to Constitutive theory, such a community should be recognised by other States.
Constitutive theory has its own supporters: There are two aspects, (a) According to the traditional constitutive theory recognition is a political act pure & simple and therefore an act of policy, (b) Lauterpacht differs from this. He opines that each State has a duty towards the International community to recognise a new State which fulfils the legal requirements of Statehood or other necessary qualifications. This is a quasi- judicial authority. This duty is similar to the duty under the Charter of United Nations for admission to the U.N. under Art. 4 Extaneous political considerations should not be taken into consideration. But it is difficult to accept Lauterpacht's views. If according to him, it is a legal duty to recognise, what is the sanction behind this duty? Further, the actions of State in recognising is yet uncontrolled by Independent rules. Even the Declaration of Rights & Duties of' States 1949, does not prescribe such a duty. It is the traditional theory that is largely in vogue, as .a matter of vital policy. Oppenheim supports this theory. a) International State practice has recognised declaratory theory. However, recognition is with-held for political reasons, b) There is retro-active effect of recognition dating back to the actual rising into existence of the State, c) The courts, in respect of treaties, take into consideration not the date of operation but the date of coming into existence of the State. In Luthor V Sagor : P company had owned a quantity of wood in Russia, but it was nationalized by Russia which it took over in 1919, under a order. This wood when sold by the Govt was bought by D company from the new USSR Govt. P claimed that the decree was not applicable as U.K. had not recognised USSR Govt. in 1919. U.K. recognised in 192.1. The English Court held that the Crown's recognition of Soviet regime in 1921 was retroactive dating back to the time of Soviet regime seizing power in 1917 and hence, its seizure of timber was recognised as legal. Hence, ipso facto by raising into existence, the new community becomes a member of the family of Nations & recognition is only an acceptance of this fact. Podesta Costa's theory: His opinion that recognition is Facultative and not obligatory is more in accord with State practice. When recognition is granted by States, they make it certain that the new State to be recognised had the requisite legal qualifications. Only to this degree, the act of recognition is a duty. Consequences of recognition-: Recognition confers a 'status' under international law & municipal law. The recognised state gets certain rights, powers and privileges, as a consequence thereof. In the absence of recognition, there would be certain disabilities to the unrecognised state. For example, it
cannot sue in the municipal courts of the state which has not recognised it, similarly, its representatives cannot get privileges & immunities, etc. Recognition cures these & other disabilities. i) The new State acquires the capacity to enter into relations with recognised State and conclude treaties with them. The new State gets the? Right to send & to receive Ambassadors. (Active & Passive Legation), these ambassadors are entitled to privileges & immunities in these States, Past treaties revive" and come into force automatically. The new State gets the right to sue in the recognising States. iii) It acquires for itself and for its property immunity from the jurisdiction of the recognising States. iv) If it is a new successor State which, is recognised, it becomes entitled to demand and to receive possession of its predecessor's property situated in the recognising States. v) Recognition is retro-active and hence the courts of the recognising States are not to question the legality of the acts (past & future) of the New State. This means the recognising States, become subject to certain obligations; simlarly, the new state also becomes subjects to certain obligations. Thus, it gets the benefits & burdens according to International Law. De facto & De jure. De facto is purely provisional or temporary. But de jure is final and binding. De facto can be withdrawn if the existing circumstances show that the new community is no longer holding the power and status. But, de jure recognition is permanent and cannot be withdrawn. iii) De facto deals with factual status, whereas de jure deals with the juridical status. vi) De facto is generally granted looking to the developments as regards insurgent’s capacity and establishment. De jure is given if the granting State is fully satisfied about the International capacity of the insurgent state. The recognising State grants recognition de jure, when the recognised state has fulfilled the requirements for statehood and his capacity to follow International obligations ; However, it may grant de facto recognition when there is only actual fulfilment of these requirements and hence may be temporary & provisional This does not mean that de facto should be given first & then de jure. In the estimation of recognising state, the recognised state has the capacity to follow international obligations either de facto or de jure. This is the policy of the State. 1. U.K. granted de facto recognition to Soviet Govt. in 1921, but gave de jure in 1924.
2. U.K. granted de facto recognition to Italian conquest of Abyssinia in 1936, but gave de jure in 1938. 3. The -Franco Govt. in Spain was given de facto recognition in 1936, but de jure was granted in 1938. Leading Cases : (1) Luthor V Sagor (Refer Ch. 6.2) (2) Haile Selassie V Cable & Wireless Ltd. C & W Defendant company, owed monies to Emperor Haile Selassie of Ethiopia. In 1935, Italy invaded Ethiopia .& took it over. The United .Kingdom recognised de facto this Italian Govt. But, the Emperor Haile Selassie, Plaintiff, was the de jure sovereign of Ethiopia. Subsequently, de jure recognition was given to King of Italy; when the case was pending in the Court. Held, de. jure recognition of King of 'Italy dates back to date of taking over. Hence, plaintiff claim for recovery of money failed (3) Arantazazu rnendi's case: during Spanish Civil War (1936-38) insurgents had occupied a portion of territory 'and it was recognised de facto by U. K. Here, Arantzazu rnandi was a ship registered in insurgent territory. Held, the ship was entitled to immunity as U.K. had given de facto recognition. CHAPTER-7 INTERVENTION Intervention. It is of two kinds : i) Dictatorial Intervention & , ii) Intervention pure & simple. 'Intervention is dictatorial it it is done by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things. This is forbidden by International Law. But intervention pure and simple, like using Good offices. Negotiation, mediation, are not forbidden. In 1826 at the instance of Portugal, U.K sent British troops to Portugal to suppress the revolution engineered by Don Dugal, Intervention as a right can take place in the following circumstances: 1. A State holding a protectorate has a right intervene in all external affairs concerning the protected state. 2. When the external affairs of a State are also the affairs of another, the latter may intervene when the former acts unilaterally. Russia & co. defeated Turkey concluded the peace. U. K. protested as it was inconsistent with treaty of Paris of 1856 and in the convention of London 1871, Russia agreed to meet & the Congress of Berlin met and resolved.
A state restricted by treaty in the external independence or territorial supremacy, must comply with the provisions of the treaty. On failure, the other party may intervene as of right. In 1926, USA, intervened in Cuba, for the purpose of establishing order. This was in accordance with the treaty of Havana. 3. If a State violates universally recognised customary International law or a provision of law making treaty, other States may intervene by right, e.g. If any State does not act which affects the interests of merchant vessels on the High Seas, the concerned State may intervene, to protect them. 4. A State 'which has guaranteed another State particular form of Govt. or particular Dynasty may intervene in case of a change thereof. 5. A State may intervene to protect its citizens who are resident abroad intervention may be to protect the interests of the property, person or honour. U.S. intervened in Panama City to protect Americans. 6. Collective intervention under U.N. is a recognised intervention. The Security Council in the 'interest of maintaining International peace, has intervened in Korea and Congo, 7. There are other' interventions which are not interventions by right, but are nevertheless not prohibited. a) Intervention in the interests of self-preservation, and b) Intervention in the interests of balance of- power which is now being replaced by collective intervention of the Security Council of the U.N. c) Humanitarian intervention: When State resorts to cruelties, atrocities & persecutions of its own nationals, in such a way as to deny their fundamental freedoms and 'U shock the conscience of mankind in the interest of humanity at large, intervention is permissible. U.K., U.S.S.R, and France intervened in the struggle between Greece and Turkey, where many atrocities were committed. Self Preservation Meaning : States, as a rule are under a mutual duty to respect the personality of each other, and also not to violate each other’s territories. However, acts committed in self-preservation are not prohibited by the Law of Nations. Self-preservation is considered as the first Law of Nature and every State has a right to the integrity of its personality, and according to Vattel, it may do whatever was necessary to preserve it. In later years it became clear that acts done were legal 8& valid if they were for
'necessity'. Necessity must be 'instant, overwhelming leaving no choice of means and no moment for deliberation. When a body of armed invaders are making preparations to invade the territory of a State, the State cannot resort to self-defence measures, if there is time to resort to the authorities where the invaders are presently making preparations, But, if the appeal is fruitless or if there is danger in delaying, the State is justified in invading and disarming the invaders. In the 19th century, the concept of 'Balance of Power' had its influence. According to it , as Vattal said, no arrangement should be allowed which would allow an absolute mastery and domination over others. The Congress of Vienna re- arranged the map of Europe. This is now replaced by the Collective Security measures of the United Nations. ii) Self defence & Charter : Art. 51 of the Charter, has recognised self defence as a right of the States. It says that every State has an inherent right of individual (or collective) self-defence, if there is an armed attack against a Member and the measures taken must be reported to the U.N. This right may be continued until the Security Council resorts to the taking of Collective Security measures to maintain International Peace & Security. Instances of- Self-defence : a) The Danish Fleet Case : There was a secret clause in the Peace Treaty of Tilsit 1807. Under it, Denmark could be forced to wage war against U.K. and France could seize the Danish Fleet of Denmark. War broke out between U.K.. and France. There was danger to U.K. as, under the treaty if Danish Fleet was given to France, France would easily attack U.K. Hence, the U.K. Govt. requested the Denmark Govt. to deliver up the fleet to U-.K. & promised to return after the War. Denmark refused. U.K. shelled Copenhagen and seized the Danish Fleet on grounds to Sell defence. b) Amelia Island Case : .A band of Buccaneers had seized Amelia Island, under the command of the adventurer Me Gregor. The Commercial vessels between Spain and U.S.A. were preyed upon. Spain was incapable of and unwilling to drive out the Buccaneers. President Munro sent a war-vessel which destroyed the establishment of the pirates. This was on grounds of self defence. c) The Caroline Case: There was a rebellion in Canada in 1837. The rebels chartered the vessel'Caroline' to carry ammunition from the U.S. port (Schlossar) to Canadian Port '(Navy Island). U.K. considered
this as an imminent danger. It sent British forces, which seized Caroline set her on fire & sent her adrift down the Niagara Falls. The United States strongly protested against the violation of its territorial supremacy by U.K. apologised. d) The Mexico Expedition : The U.S. to protect the American citizens and their property in Mexico, despatched troops in 1916-1919 war. This was founded on necessity. e) Japanese Invasion of Manchuria : There was a dispute between Japan and China. Japan invaded Manchuria on grounds of self- defence. The League of Nations condemned Japanese aggression, as there was no necessity. f) French Fleet at bran in 1940 : U.K. wanted that French ships at Oran should not fall a prey to Germans. France refused to allow U.K. to have Oran fleet. U.K. attacked and sank the fleet, on grounds of necessity. CHAPTER 8 OPEN SEA Freedom of the Open Sea. i) History'& development :- A conviction had grown in the beginning of the 15th Century that States could extend the i.e. sovereignty over certain parts of the Open Sea. In 1493, the Pope Alexander VI, divided the New World into two halves one to the Portuguese & the other to Spaniards. Inspired by this, Spain claimed a major portion : in Pacific & the Gulf of Mexico and Portugal claimed sovereignty over the whole of the Indian Ocean. Great Britian had claimed the North Sea, the Narrow Seas,'& the Atlantic. These claims were not merely formal. Many ceremonials were in vogue. To fish in North Sea, the party was to take out Licenses from the U.K. & when in 1636 the Dutch attempted to fish, it was compelled to pay penalty. When Phillip II of Spain was coming to England to marry Queen Mary, the British Admiral fired at his ship in 'British Sea' as he did not lower his flag, in honour of the English Flag ! In 1580, the Spanish Ambassador in England, Mendoza, lodged a complaint with Queen Elizabeth, against Drake, who had made a successful journey to the Pacific. Elizabeth declared that vessels of all nations could navigate on the Pacific Ocean sinces the sea and the air was common to all. This was the germ, out of which grew the freedom of the Open Sea.
In 1609 Grotius wrote his 'Mare Liberum' (12th Chapter of De Jure Belli ac Pacis) commending the freedom of the Open Sea. John Selden attacked Grotius and wrote his 'Mare closum' commending the closed seas concept, but this failed. In later years the concept of the freedom of seas became a universally recognised rule in international law. ii) Open Sea: Open Sea is the coherent body of salt-water all over the Globe (with the exception of the maritime belt, the territorial Straits, gulfs and bays of the sea) but no part of it is an object of the law of Nations. Freedom of the Open Sea, means that the Open Sea is not and never can be, under the sovereignty of any State. It means that there is absolute freedom of navigation for all Nations whether merchantmen or war-ships. iii) Rationale: The Rationale for Open Sea according to Grotius are : a) It could not be occupied effectively by any State. b) It is Res extra Commercium like light & air and can be used by everybody & is inexhaustible: c) The modern reason is that the Open Sea is an International highway & hence should not be under the sway of any State (Oppenheim). iv) Law & Order : Freedom of the Open Sea does not mean anarchy and lawlessness. On the contrary, over the centuries, International customary law has grown providing for legal order on the High Seas. a) Vessels flying the Maritime flag are subject to protection and unauthorised use 'of flags is punishable. A ship without a flag may be seized by any State. b) Every State may punish as a matter of right, piracy jure Gentium, c) 'Floating Island' theory provided that each Vessel was subject to the exclusive jurisdiction of the flag State over persons and goods. d) Fisheries,in the Open Sea was free & open to all. e) Various provisions were made by States in their Municipal laws prescribing qualifications. Seaworthiness Certificate, Registration, Muster Roll, Log Book, Bill of lading, Charter party etc. P ' my rules developed relating to Signalling (Washington Conference 1889), collisions (Brussels Convention), Blockade and contraband, search & seizure 'hot pursuit', and abuse of flag.
f) The I.M.C.O., as a specialised agency was established in 1945 specially to establish standards & to gurantee Maritime safety & efficiency in navigation. This has done much commendable job through its Assembly, Council & the Maritime Safety Committee. v) Law of the Sea Conference 1958: (Geneva).Much of the law relating b) Certain duties have been imposed on States in respect of Pollution, e.g.: Prevention of Pollution from ships convention 1973, and Maritime Pollution Prevention 1972. f) Law of the Sea Treaty 1982 has made detailed provisions on the use of sea, the continental shelf, EEZ & contiguous zone. Territorial Waters. i) Origin : This is the traditional Canon-Shot or the Maritime Belt Rule. The Origin of this can be traced to Bynkershoeck (an ardent follower of Hugo Grotius). In 1702 the published his work 'Essay on Sovereignty over the Sea', in which he commended that the Maritime State could dominate only such width of the Maritime waters as lay within the range of a Canon-Shot from the shore batteries. He was the first jurist to enunciate this in terms of Canon Shot. In later years, the range was fixed at the instance of a military expert of those days called Galiani. He stated that the maximum range for the Canon Shot was 3 miles from the shore. ii) Width : The 3 miles-limit became commonly accepted by the States and the Courts in the 19th Century, the U.K. &. U.S.A. taking the lead. But, in the 20th Century a number of States claimed a wider width extending upto 12 miles ! a) The Hague Codification Conference 1930 opposed the traditional concept of 3 miles. It was a 'idol dethroned and not restored'. Hence, no agreement could be reached. b) In Geneva Conference on the Law of the Sea 1958, the U.S. & the U.K. did not agree on a 12 mile limit, though they were prepared to accept a 6 mile limit. The opposition for a 12 mile limit was based on Security: (i) Submarines may travel undetected through the territorial waters of Neutral States and create problems during war. (ii) There was also the view that with 12 miles the available area of the Sea for free navigation, free fisheries & free over flight by aircraft etc. would be diminished. The net result was, though 3 miles was accepted universally, the disagreement was with the range between 3 to 12 miles.
c) The Third U.N. Conference on the Law of the Sea gave a decent burial to the 3 mile limit. The weight of State practice is in favour of a 12 mile-limit, but this is to be made with multilateral treaties among States. iii) Measurement: Although this has not created much difficulty, the base- line method adopted by the Court (I.C.J.) 1951, has been widely accepted. Anglo Norwegian Fisheries Case: U.K. Vs Norway. The facts .were : Certain claims were made by the Nowegain Goyt. Creating an exclusive fisheries zone for itself.- It followed the straight, baseline method selecting some 48 points to measure the breadth of the territorial waters. This was upheld by the Court. This was accepted by the convention on Territorial Waters & Contiguous Zone, (1958). (However, where the baseline method is not possible the low waterline method may be followed). iv) Jurisdiction:- The 'Territorial Waters' is an area over which the maritime State has exclusive sovereign rights. Sometimes jurisdiction is extended. The leading case – .Lotus Case decided by P.C.I.J in 1927. French, Steamer, the LOTUS, collided with a Turkish Vessel on the high seas due to gross negligence of officer of Lotus. The Turkish vessel sank, and 8 Turkish nationals died. Turkey based its claim on the ground that the1 negligence on board Lotus, had its effect on Turkish vessel & hence, on a portion of Turkish territory. Held, Turkey was entitled to succeed. a) The Maritime State has exclusive fishery rights and also it may reserve its right of cabotage (to navigate between two ports of the Maritime State itself) b) The Maritime State has sovereignty over the surface, the subsoil, and" the superincumbent air space (1958 convention). c) There is a customary rule of International law of allowing ‘innocent passage' through the territorial waters. (Recognised & defined by the 1958 convention). d) The Maritime State has exclusive jurisdiction- Civil, Administrative, Sanitation, Custom and Criminal. However, in respect of foreign vessels passing through territorial water the jurisdiction is limited as per the convention of 1958. The leading case is the Corfu Channel case 1949. Facts were: Mines had been laid within the territorial belt of Albania during October 1946. British Vessel passing through the belt, struck the mine on 22nd
Oct. 46 & was damaged. Subsequently, the British Govt. on, 13th November conducted the mine sweeping operations. It sued Albania for damages, contending that Albania was responsible or had knowledge about the mines. The I.C.J. held (i) Albania was liable & (ii) U.K. has violated Albania's sovereignty, as she has' swept the mines without Albania's permission. e) Right t o 'hot pursuit', (to-chase and seize a vessel that has iolated the Maritime laws of a State) is recognised. But, this ends when the vessel enters the territorial waters of any other State. ' Leading Case 'The I am alone' (Canada V.U.S.). 'I am alone', a British vessel (Regd. in Canada) was suspected of smuggling liquor within 10 miles off U.S. coast (L'ouisiania) "Wolcot" & later another vessel Dexter set out to seize her & hence made a hot chase. Both were able to reach at a distance of 200- miles off the coast. They gave warning, but later fired at. The men on deck died & it was sunk. Commissioners were appointed to decide (i) the right of hot pursuit (ii) Whether sinking was justified. Held, U.S. had the right of hot pursuit & could use reasonable force to bring to port the suspected vessel. But sinking in this case was not reasonable force, and hence illegal. The 1924 Convention between U.K. & U.S. discussed and as International Law does not recognise use of unreasonable force .U.S. was guilty & 25,000 dollars were awarded as compensation to the families of persons who died. The Contiguous Zone. i) Traditional Concept: This is the area over the Sea, beyond the 3 mile limit but extending up to 12 miles from the Sea Shore. The measurement is to be made in the same manner as in Territorial Waters. (Fisheries Case). The littoral State may claim exclusive fishing rights within this zone and has no jurisdiction over the waters or the airspace above it ii) Recent Trends: The United Nations Conference on the Law of the Sea. (UNCLOS ) 1973-76 launched an ambitious programme to codify the entire law relating to Sea. A number of these UNCLOS. Sessions have been held so far. The latest is the 1982 Law of the Seas Treaty
The territorial waters, Contiguous Zone, Exclusive Economic Zone and the Continental Shelf are Shown here for reference Ch. 8-4. Exclusive Economic Zone: Refer Diagram though the concept of contiguous zone" is retained, the UNCLOS. .sessions has accepted the Exclusive Economic Zone (EEZ.). This has its roots in exclusive fishing zone concept & the doctrine of continental shelf. If combines & develops the two. Some States have laid claim up to a distance of 200 miles from the sea- shore. (There is much disagreement for this regime). The EEZ is the subject of the maritime State for the purpose of exploring & exploiting, conserving & managing the natural resources of the bed & the superjacent waters.
This includes fisheries. Some States have already proceeded on these lines to claim over EEZ. This has many problems yet to be resolved (a) The relation of EEZ to the high seas, (b) The precise rights & their extent in the zone, (c) The problem of land-locked areas who have no such natural resources & advantages. Fisheries Jurisdiction Case (U.K.V. Iceland) 1974 (I.C.J.). The court recognised the preferential rights of Iceland for fisheries in the fishery zone, in view of its economic resources depending on fisheries. Iceland had first extended to 50 miles. Later it extended to 200 miles. The latest position is that United Nations conference on the Law of the Sea UNCLOS 1985 has recognised up to 200 nautical miles, from the baseline. This 200-mile limit is not arbitrary. It is based on the fact that the most lucrative fishing grounds lie within 200 nautical miles from the coast. It has the richest fish food pastures. Within the EEZ, maritime State has no sovereignty, but has the right of exploring, exploiting & conserving the resources of the Sea UNCLOS 1985 has provided detailed provisions in this regard. The Continental Shelf. i) Origin and development: The Origin of this concept may be traced to the proclamation made by President Truman of the United States in 1945. By 1945 it had become technically possible to drill for oil & for other resources in the sea-bed, and, the Truman Declaration gave legal status to it. It stated that the littoral States had jurisdiction over the natural resources of the subsoil and the sea bed of the 'continental shelf and that the exploitation by that State was just & reasonable. Other Nations followed suit and made similar declarations. ii) Definition: Refer diagram The Geneva Convention on the Continental Shelf 1958, defined Continental Shelf as the area adjacent to the coast, outside territorial sea, to a depth of 200 metres (or-to beyond that to a depth where exploitation is possible). The Coastal State according to the convention exercises exclusive rights of exploring & exploiting the natural resources, including the living organism and the non-living mineral resources. The Coastal State has only limited rights and has no sovereignty over the continental shelf. Further, it has no rights over the waters or the airspace above the shelf. In the North Sea Continental Shelf Cases [Federal Republic of Germany Vs. Denmark & the Netherlands (1969)], the question of delimiting North Sea Shelf areas was discussed. The Court held that there was no general customary International Law, in existence. Regarding
the Division of a Common Continental Shelf, the court held that such a delimitation must be under a treaty & that the arrangements for division must be based on 'equitable principles.' The court also expressed the view that even a joint exploitation of the Shelf by the concerned States could be made. i i Developments: Since the Geneva 1958 settlement, there were fast developments in the field of Continental Shelf: , a) New Technology had developed to exploit oil & gas in Ocean depths. b) New States were financially and technologically at a disadvantage and became gravely concerned over the monopoly by some powerful States. c) 1967, the .Maltese Govt. initiated a plan to declare that the sea-bed resources beyond continental shelf 'was a common heritage of mankind', & must be developed in the interests of all States. The fear was the possible arms-race in the sea- bed beyond the Continental Shelf area. Such a declaration was made by the United Nations in 1970. It also appointed a 84 member committee on the peaceful uses of that sea bed-area beyond the Continental Shelf. The stretch of the continental shelf is as in diagram. d) The U.N. during 1973-76 held five sessions on the Law of the sea & made 5 conventions. iv) Developments : The Law of the Sea Treaty, 1982 is very comprehensive with 303 Articles and is the lengthiest treaty . U S has not ratified even in 2011. There is much controversy among the Nations, and the United Nations in its various conferences could not make any headway. On the contrary, the U.S. & other States, including India have defined in their municipal laws : Territorial waters upto 12 miles, contiguous zone upto 24 miles, & Continental .Shelf upto 200 miles, from the sea shore.
Piracy Jure Gentium. i) Definition: Piracy is defined as every unauthorised act 0f violence, against persons or goods committed on the Open Sea, by a ‘private vessels against another vessel, or by the mutinous crew or, passengers against their own vessel. Geneva Convention of 1958 on the Law of the sea, has codified the law relating to Piracy.- It has given , an extensive definition and Articles 100 to 107, deal with scope, jurisdiction & suppression of Piracy, A pirate is considered as an outlaw, a 'Hostis Humani Generis'. The pirate loses the protection of his home State. Piracy is an International crime. Generally, it is a private vessel that can commit piracy. (Art, 16 of the convention on the High Seas) 'Motive'- It is not necessary that the pirate should have the intent to plunder (Animus furandi). It was decided in the leading case; 'In re piracy jure getium' that actual robbery was not an essential element. Even frustrated attempt was declared as piratical in nature. Hence, 'the motive may be other than making profit e.g., Revenge. ii) If the crew or the passengers revolt on the open sea and convert the vessel and her goods to their own use, they are guilty of piracy. If the crew resort to murdering the master because of his cruelty, it is not piracy but only murder. If the purpose is to convert the ship and the goods to their own use, it would be piracy, iii) If a person stops a vessel for taking a rich passenger off the vessel with -a view to get high ransom, or if a person stops a vessel to kill certain persons on board the ship, the act is piratical. iv) The crew is guilty of piracy when they force the master through intimidation or force to steer the vessel to other place than its destination. v) Cases: (1) Case of .in re re piracy jure Gentium ; In 1931, two Chinese junks pursued & fired at a Chinese Vessel. During the chase the attackers were captured by the English ship which brought them to Hong Kong & tried for murder. There was no actual robbery. The Privy Council held that 'actual robbery1 was .not essential for piracy. They were held guilty of piracy. The court also referred to The Magellan “Pirates Case where it had been held that robbery was not essential. (2) In Ambrose Light Case, the U.S. Supreme Court held that an armed vessel without State authority was a pirate even though no act of robbery is committed. (3) Hauscar's Case : There was a rebellion in Peru. The insurgents put Huascar, an ironclad vessel, stopped British steamers, took coal from them without paying for it and forcibly took two officials. It was decided that the act was piracy.
(4) Santa Maria Incident (1961) : Political opponents on board a Portuguese vessel, seized it. It was taken to Brazil. Brazil gave Azylum to them. Vessel later returned to Portugal. Are they, pirates? Perhaps, not. vi) Jurisdiction: National courts have jurisdiction to punish pirates. As piracy is an International crime any maritime State has, by customary International Law, the right to punish. The vessels of any Nation may attack and seize them on the High Seas and. bring for trial and punishment. The punishment may be capital. The ship and the cargo may be returned to the real owner.Recent developments Since 1990. The number of pirate attacks has increased. The International Maritime Bureau (IMB), says in 2003 there were 445 reported attacks against ships. Somali pirates in December 2011 released an Italian-owned Aframax oil tanker after receiving an $11.5m payment. Recently, The Savina Caylyn was seized in February 2011. Pirates have hijacked a Greek- owned oil tanker carrying 135,000 tonnes of crude oil in the Arabian Sea, : l Britain and other EU countries are considering air strikes on logistical hubs The United Nations Convention on the Law of the Sea (UNCLOS). , is the key international legal instruments governing sovereign rights at sea and the use of the maritime environment. With few exceptions, all other littoral states have accepted UNCLOS. The U.S. has not ratified this even in2011. CHAPTER - 9 AMBASSADORS Institution of Legation: Ambassadors.. i) History -The institution of Legation started first and religious Ambassadors were sent to start with. Later for political purposes Ambassadors were the institution of Legation started first and religious Ambassadors were sent to start with. Later for political purposes Ambassadors were sent on a temporary basis. Eg.: to conclude peace; Permanent legation was initiated by Venice. It sent permanent Ambassadors to France, Switzerland, and Germany etc. in the 15th century. It then became an established institution. All sovereign States are having permanent offices called diplomatic enclaves. Legation is a sovereign attribute of the State. An ambassador position is not based on representation is Omni -modae which means representation with all powers like the Sovereign or Crown. His authority is limited. ii) Appointment:
Ambassadors are appointed by one Head of State, to another Head of State. Before appointment, States consult the receiving State, as to whether the individual is persona grata or non-grata, (Person acceptable or not). A letter of exequatur is given to Ambassadors which states his appointment, authority and powers. iii) Functions: a) Negotiation, (b) Observation, (c) Reporting (d) Miscellaneous. a) Negotiation: He is the mouth-piece and the representative of his State. He can negotiate on behalf of the State,. Collect the view-points, and enter into treaty conclude peace etc. b) Observation: He must come in contact with State Officials, V.I.P.s., business magnates etc. He should attend social and other gatherings. He must work with a 'serpent's ear and eagle's eye'. He must collect all relevant information relating to the State. c) Reporting: Reporting to his Country of all information gathered by him, is his essential duty. He must keep his country informed of all political and other developments taking place in the receiving State. d) Miscellaneous: He must keep in touch with his people who are residing in the receiving State. He must protect their interests. , He officiates in marriages, keeps records of births and deaths etc, Classes of Ambassadors: The classification was made at the .Congress of Vienna in 1815, in which the order of merit was placed as the criterion for classification. Special honours are due to each class. a) Ambassadors. b) Plenipotentiaries. c) Ministers Resident. d) Charge de affaires. The Ambassador is entitled to be addressed as 'Your Excellency'. The Plenipotentiary may, by courtesy, be called 'Your Excellency'. Minister resident is not addressed like that. Charge de affairs are sent by one foreign office to another foreign office. He is never addressed as your Excellency. v) Privileges and Immunities of Ambassadors: Privileges and immunities are special rights of Ambassadors built on reciprocal basis through International custom and treaties.
The very fact that Ambassadors are saddled with multifarious functions and responsibilities shows that in effect, they must have certain privileges and immunities, for the due discharge of their functions & responsibilities. The objective is to provide an independent & free atmosphere to discharge their functions effectively, with dignity & honour. Codfication : The Vienna Convention on Diplomatic Relations 1961 has codified the customary law relating to Ambassadors and of their privileges & immunities. a) Exterritoriality: Under the legal fiction even though physically an Ambassador and his diplomatic enclave are inside the receiving State, they are considered to be legally outside the territory of the receiving State. Ambassador is beyond the jurisdiction of local authority. The police have no jurisdiction over the diplomatic enclave. Similarly civil and criminal courts have no jurisdiction on the contrary the receiving state is under a duty to protect the person of the Ambassador and of his retinue. Further, the building, records, his equipment, should also be protected against any possible strike and invasion, civil disturbance etc. Further, the local administrative authorities have no jurisdiction over the enclave. Postal bags are to be protected. They are not to be tampered. Administrative authorities have no jurisdiction over the enclave. Postal bags are to be protected. They are not to be tampered. h) Immunity from Criminal Jurisdiction': An Ambassador is beyond the jurisdiction of the Criminal Courts in receiving State. The Portuguese Ambassador Mendoza, had attempted to dethrone Queen Elizabeth in 1584 in England. Gentili, a great jurist was consulted. He declared that Ambassadors were immune & that they should not be arrested, or tried or punished at all. Thereupon, the Queen requested Mandoza, 'His Excellency', to leave the country. De Boss, an Ambassador in England attempted against the life of Cromwell. He was asked to leave the Country within 24 hours. L'Auhespine attempted against the life of Queen Elizabath. He was warned. c) Immunity from Civil Jurisdiction: He is immune from the jurisdiction of the Civil Courts. He is not liable for tortuous and contractual liabilities. Immunity fro in Administrative Tribunals: He is outside the jurisdiction. Tribunals have no powers over them, e) Immunity from Taxes:
He is free from the income tax and all other local taxes of the receiving State. He may of course pay fee or charges for services done (current, water, sewage etc.). f) Rights of Subpoena: This means, he is' privileged and cannot be called to a court as a witness. Summonses should not be issued to him..., g) Right of Chapel [religious practices] within the enclave. : h) Right of Waiver Ambassador may waive his 'right and submit to the jurisdiction of the Court in cases he thinks fit. i) Right of self jurisdiction : He has jurisdiction over all the persons" inside the enclave, within certain limits. iv) Classes of Ambassadors: The classification was made at the .Congress of Vienna in 1815, in which the order of merit was placed as the criterion for classification. Special honours are due to each class. a) Ambassadors. b) Plenipotentiaries. c) Ministers Resident. d) Charge de affaires. The Ambassador is entitled to be addressed as 'Your Excellency'. The Plenipotentiary may, by courtesy, be called Your Excellency'. Minister resident is not addressed like that. Charge de affairs are sent by one foreign office to another foreign office. He is never addressed as your Excellency. v) Privileges and Immunities of Ambassadors: Privileges and immunities are special rights of Ambassadors built on reciprocal basis through International custom and treaties. The very fact that Ambassadors are saddled with multifarious functions and responsibilities shows that in effect, they must have certain privileges and immunities, for the due discharge of their functions & responsibilities. The objective is to provide an independent & free atmosphere to discharge their functions effectively, with dignity & honour. Codification: The Vienna Convention on Diplomatic Relations 1961 has codified the customary law relating to ambassadors and of their privileges & immunities. a) Exterritoriality: Under the legal fiction even though physically an Ambassador and his diplomatic enclave are inside the receiving State, they are considered to be legally outside the territory of the receiving State.
Ambassador is beyond the jurisdiction of local authority. The police have no jurisdiction over the diplomatic enclave. Similarly civil and criminal courts have no jurisdiction. On the contrary, the receiving state is under a duty to protect the person of the Ambassador and of his retinue. Further, the building, records, his equipment, should also be protected against any possible strike and invasion, civil Disturbance etc. Further, the local administrative authorities have no jurisdiction over the enclave. Postal bags are to be protected. They are not to be tampered. h) Immunity from Criminal Jurisdiction': An Ambassador is beyond the jurisdiction of the Criminal Courts in receiving State. The Portuguese Ambassador Mendoza had attempted to dethrone Queen Elizabeth in 1584 in England. Gentili, a great jurist was consulted. He declared that Ambassadors were immune & that they should not be arrested, or tried or punished at all. Thereupon, the Queen requested Mandoza, 'His Excellency', to leave the country. De Boss, an Ambassador in England attempted against the life of Cromwell. He was asked to leave the Country within 24 hours. L'Auhespine attempted against the life of Queen Elizabath. He was warned. c) Immunity from Civil Jurisdiction : He is immune from the jurisdiction of the Civil Courts. He is not liable for tortious and contractual liabilities. Immunity fro in Administrative Tribunals: He is outside the jurisdiction. Tribunals have no powers over them. e) Immunity from Taxes: He is free from the income tax and all other local taxes of the receiving State. He may of course pay fee or charges for services done (current, water, sewage etc.). f) Rights of Subpoena: This means, he is' privileged and cannot be called to a court as a witness. Summonses should not be issued to him.. , , g) Right of Chapel [religious practices] within the enclave. h) Right of Waiver Ambassador may waive his 'right and submit to the jurisdiction of the Court in cases he thinks fit. i) Right of self jurisdiction : He has jurisdiction over all the persons inside the enclave, within certain limits.
CHAPTER-10 STEPS IN TREATY MAKING: i) Treaty defined: The Vienna Convention on the Law of Treaties 1969 codified the law relating to the Treaties, which was hitherto mostly in the customary form.' This is the authoritative text on Treaty law. A treaty is defined (Art. 2), as an agreement whereby two or more States, establish or seek to establish a relationship between themselves governed by International Law. The object of the treaty is to impose obligations on the States parties to it. i i ) Steps in Treaty-making : a) Appointment of Representatives or delegates b) Negotiation c) Draft and final draft d) Signature & exchange of instrument e) Ratification f) Reservation to Treaties g) Registration. iii) Effect of Signature: The conclusion of a treaty or convention is marked by the State- parties subscribing their signatures. The effect of such signature depends on whether the treaty is subject to ratification or not. a) If subject to ratification, signature means that the parties have agreed to the text and are willing to refer it to their States for ratification. b) If not subject to ratification, the general opinion is that the treaty is binding from the date of signature. iv) Ratification: It is the approval by the Head of State or the Govt. of the signature appended to by their delegates. It is defined as an International act whereby a State establishes on the International plane its consent to be bound by a treaty. (Art. 2: Vienna Convention); whether ratification is necessary for a treaty or not depends on the intentions of the parties. v) Rationale: The rationale (or reason) for ratification are:
a) State as a Sovereign must have the opportunity of examining and reviewing the treaties signed by their delegates. b) State may withdraw from the treaty if it so desires. c) The duration between signature & ratification is an opportunity to the State to follow the constitutional processes for ratification. d) The democratic principle is that the Govt. should refer to its people in Parliament or elsewhere. e) The acts of omissions can be corrected by the State Excesses may be checked. Omission may be supplied. Reservation to Treaties': A reservation is defined by the Vienna convention as an unilateral statement made by a Stale when signing, ratifying, accepting approving or acceding to a treaty, the State thereby desires to modify legal effects of certain provisions of the treaty in their -application to that State. e.g. : Reservation stipulating exemption from certain sections or modification of certain provisions, or interpretation of certain provisions. The privilege of making reservation is considered as an incident of sovereignty. b) Reservations to the Genocide Convention; The United State made certain reservations to the Genocide convention. The question was whether in a multilateral treaty such a reservation could be made. The I.C.J. held: (advisory opinion). a) That if the reservation affects the very basis or vitals of the treaty the other States may treat the reserving State as not a party at all. b) If it does not so affect hut is compatible with the objectives & principles of the treaty, then the other States may consider the reserving State as a party to the treaty. In the Vienna convention, the test of compatibility was adopted. c) Consequences: The complications caused by the reservations can be avoided. a) By making a provision in the treaty that no reservations are allowed arid b) By providing for reservation of some clauses stated in the treaty itself. Termination of Treaties. Modes: International law recognises the termination of treaties by operation of law or by act of parties. a) By mutual agreement b) By efflux of time, [when the period is fixed by the parties.]
c) By achieving the objectives or the purposes of the treaty. d) Impossibility due to permanent destruction of the subject of treaty. e) By Novatio ; [ substituting a new treaty]. f) Another mode of termination is under clausula rebus sicstantibus Rebus Sic stantibus The sanctity and the binding force of International law is expressed by Anzilotti in the expression 'Pacta sunt servanda' (sanctity behind treaty). The clausula Rebus Sic Stantibus is more or less an antithesis[opposite] of the. Above concept. The clause provides that a State is freed from its treaty-obligations by reason of an essential change of circumstances under which the treaty was concluded. ii) Origin : The principle may be traced to the Canon Law (Church Law). The Roman Jurists applied it in their jus civile, for contracts. It was Gentili who introduced it into International Law, iii) Juristic Opinions: Grotius opined that a change of circumstances did not affect a promise unless it was the most patently clear that the original circumstances were part of the consideration of the Contract. Hence, a party could, repudiate. Bynkershoeck rejected the unilateral repudiation of a treaty. To Vattel, a change in those circumstances which were essential to the treaty, created to the State an opportunity to repudiate; HEFFTER" and BLUNTSCHLI, rocked in the cradle of Nationalism of the 19th century stated that if the treaty conflicted with the rights and Welfare of the people, the State might violate the treaty. Trieske went a step further and said that if the treaty is different from the actual political conditions, it may request the other party to cancel the treaty. On refusal, it may declare war to find out and prove the existence of change of circumstances. Hautefeille said that a treaty, which surrenders its land or national right was not obligatory. Bonfils said that -the very cause which gave birth to the treaty when comes to an end, the treaty gets dissolved. To Fiore, treaties which hamper the free development of the State activity were null and void. To Oppenheim self-preservation and development of the Nation were grounds to denounce treaty obligations. The International “Law Commission in Art. 62 of the Vienna Convention on the Law of Treaties stated that a fundamental change on grounds of equity & justice' would be a reason to repudiate a treaty. But it provides exception to boundary treaties, treaties imposing International obligations etc, and hence these cannot be repudiated. iv) State Practice :a) Russian Action, 1870: Treaty of Paris 1856 provided for the 'Neutralisation of Black Sea.' It restricted Russia from having troops there. Russia-repudiated
.this and claimed that it was no longer bound by it for the following reasons: ( 1 ) There was combination of Danubian Principalities. There was use of iron-clad vessels .in war. Russia was rebuked by the Conference of London, but it was condoned. b) Peace Treaty 1919:- This was repudiated by Germany. Germany was condemned by the States, but was condoned. i.e.) Straits Convention of 1923: The German violation of this was condoned-by States. v) Case Law There is not a single instance wherein the Clausula has been applied. In the Serbians and Brazilian's claims case, the International Court of Justice heard on the doctrine, but did not apply it. Hence, the Clausula is not in vogue but. a State may desperately resort to it to justify its action. CHAPTER 11 EQUALITY OF STATES Equality of States. a) Concept: The origin of the doctrine of equality of States may be traced to Jus 'Naturale (Natural Law). According to it; 'A dwarf is as much a man, as a giant is.' This concept is extended to the Relationship "between stresses, by the Naturalists who hold that all States are equal in the eye of law. In fact, equality is the quality that is derived from State's International Personality. According to this doctrine, all States are equal in law, irrespective of the size, population, economic or military power, and degree of civilisation wealth, social patterns & other qualities. b) Consequences: There are four important consequences, that flow from the concept i) Every State has a right to vote and to one vote only. ii) Legally, the vote of the weakest and the smallest State is as weighty as the vote of the largest & the powerful State; i) The third consequence is 'Par in parern, npn habet irnperium' (No State can claim jurisdiction over another). Hence, although the States can sue in Foreign Country they cannot be sued unless they submit. Eg. : A suit in rem against a vessel in possession of a Foreign State is entertained. However, there is the Sovereign immunity of States, and hence, a Foreign State cannot, be sued.
iv) The Courts of one State do not question the validity or legality of the official acts of another Sovereign State. Legal equality should not .be confused with political equality Politically, they are not equal. Great powers always enjoy a priority of actions. In the United Nations, there is equality in the General Assembly. Each member has only one Vote. In the Security Council, the permanent big five - U.S.A. U.K., U.S.S.R., France & China (enjoy the Veto Power. Art. 27 of the U.N. -Charter). All substantial questions require the consent of all the permanent members. A Permanent member may exercise 'Double Veto' and stampede the progress. The enforcement measure for breach of the peace and acts of aggression may be strained by the Veto Power. Subject to this, equality is a practical concept and a concomitant aspect of State personality.
CHAPTER 12 EXTRADITION Ch. 12 i) Definition & Scope : Extradition is a process by which an accused is reconducted back to the place Where he is alleged to have committed an offence. The person should be tried only for the offence for which he has been extradited. It is based on the principles that evidence is freely available in the State where the offence is committed, and that a criminal should not go unpunished. i i ) Conditions : a) Double criminality test : The act must be an offence in both the sending and the receiving States. (Jacob Factor's Case and Eislers Case). b) Principle of Specialty: The requesting State is under a duty not to punish the fugitive for any offence -other than for which he was extradited. c) Extraditable crime: The act must be one which is extraditable according to the treaty of extradition between the parties, e.g.: Murder, cheating etc. Exception : i) Political crimes, ii) Military crimes e.g. desertion. iii) Religious offences are non-extraditable. d) The persons must be extraditable. States refuse to surrender its nationals who have taken refuge in their own Countries. Ch. 12.2. Non-extradition of political criminals. One major exception to extradition is that there would be –no extradition for political criminals, religious & military offenders. These are called as non-extraditable offences. The concept of non-extradition can be traced to the French Revolution. Persons accused of political crimes could have been extradited prior to the French Revolution. Even Grotius had commended the extradition of political criminals. Many other writers had also- written on similar lines. In 1815 the Govt. of Gibralter surrendered political criminals to 'Spain. This gave rise to great indignation among the States. In 1833 Austria, "France and Russia concluded the treaty & defined certain offences. In the same year, Belgium enacted an extradition law incorporating the non-extradition, rule. In. 1867, other States followed suit….. Attempts were made to define 'political crimes'. High treason, 'lege Majeste' and relative political crimes were broadly classified as crimes which are not extraditable.
The Russian project, of 1881 attempted at "defining lege majeste Clauses. A Conference was convened, but if failed to reach any conclusion.. The Swiss law of 1892 related to extradition of persons who were accused of offence having more complexities in crimes. In 1934 an attempt was made under the League for a convention to extradite persons accused of acts of political terrorism. 23 State participated. This was not ratified. Cases : (i) In 1857 Jacqulin Brothers in France attempted at a-railway explosion, to murder Napolean III & escaped to Belgium. Belgium refused to extradite them. ii) Savarkar's. Case : Savarkar, an Indian and a British subject, was being transported from U.K. to India for the purpose of his trial on a charge of high treason and murder. -He escaped when the vessel was at Marseilles. France.- But he was caught by a French policeman who in mistaken execution of his duty, handed him over to the Captain of the ship without extradition proceedings. French Govt. demanded U.K. to send him back. U.K. did not comply with this demand. This matter went to the Permanent Court of Arbitration at the- Hague. It decided in favour of U.K. in holding, that there were no rules of International law imposing in such circumstances, any obligation on a State which has in its custody a prisoner, to restore him because of a mistake committed by the foreign agent who delivered him up to that power. France failed. Savarkar could not get the benefit. Asylum Cases : Hay a de la Tarre was given Asylum as a political refugee by the Columbian Embassy in Peru. There was no provision to surrender him to the Peruvian Govt. the I.C.'J. held. He was protected. iv) In re castioni, the court refused extradition to the political refugee who had in a revolution shot and killed a member of the Govt. in. Ticinio. v) Kolsynski's Case : K & others had political opinions against Poland for-which they could be punished. They forced the ship (English) to go to England but were arrested in England. It was held that they were political refugees & hence not to be extradited to Poland. vi) Recent cases : Re Nielsen (1984); U.S. v Mccaffery(1984) Belgium Govt. v Post Lethwaite (1987) (1984) Belgium Govt. v Post Lethwaite (1987)
CHAPTER 13 SCHOOLS Schools of International Law. It is said "Grotians stand midway between Positivists & Naturalists The three schools are : Positivist's School. Naturalist's School and Grotian's School. Positivists': England is the cradle of positivism. The most impressive & historically prominent among positivists is Bynkershoeck the founder of this school. The main line of approach of the positivists is that rules of International "Law are, in the final analysis, the same as positive municipal law, because' of the 'Will' or the common consent of the States to follow them. The State is a metaphysical entity and hence it has a 'Will'. The States have accepted International Law by auto limitation, without this consent rules of International law are not binding. In respect of International Custom, this school holds the, view, that there is tacit consent and hence are binding. Zouche : Opined that outside positive law there was no International Law Moser : He deliberately ignored the Law of Nature & declared the omnipotence of positive Law of Nations, Martens : The rules of International Law were, to him, positive rules & to ascertain these the special relationship between Nations must be noted. Zorn : To him International Law was a branch of Municipal law & on that ground binding. Treipel, holds the same view. Anzilotti : is the outstanding positivist of recent years. He traced the binding force of International law to 'Pacta Suut Servandar. Naturalists: This school is diametrically opposed to positivist’s school. Briefly stated it holds the view that Natural law is the basis of law arid so of International Law. It does not recognise treaties & customs as based on consent but says that they are part of Natural Law. Natural Law means the law of reason. Pufendorf : is the founder and the Champion of this school of thought. He opined that there was no law among Nations, except the Law of nature. He is not a denier of International Law. To him Natural law is a legal order superimposed on men & Nations by a higher power.
Equality among Nations is a concept derived from Law of Nature. 'A dwarf is as much a man as' a giant is' he argues. Vattel strongly supported the Law of Nature and claimed that as States are composed of men & as the policies are determined by men these men are subject to the Law of nature. Zouche, opined that customary Law of Nations was purely founded on Natural Law. Influence: The Law of Nature has had a tremendous beneficent influence on the development of International Law. Some of the covenants like (i) the covenant on Economic, Social & ultural rights and (ii) Covenant on Civil & Political rights (1966) Universal Declaration of Human Rights 1948 etc. have their origin in the Law of Nature. Grotians : It is said that Grotians stand -midway between Positivists and, Naturalists. Grotius started with the Law of Nature and selected such rules which were eternal and unchangeable having their origin in the Natural Law. Certain principles of conduct accepted by the States in the form of treaties & customs were voluntary Law of Nations. His'-'method of secularisation with his brilliant expositions mainly bused on jus naturale and coordinating that with voluntary law of Nations, placed him at the highest pedestal as the Father of the Law of Nations. His followers Zouche "and Vattel commended the writings of Grotius: besides contributing heavily to the Law of Nations. CHAPTER 14 NATIONALITY. Nationality. i) Definition: 'Nationality is the principal link between the Individual and the benefits of International Law' (Oppenheim). In practical terms it is a continuing legal relationship between the Sovereign State and its citizens. The basis of his Nationality is his allegiance and membership of the Sovereign State. It gives him the political status as a 'National' of his State. It is the Municipal Law of each State that determines who are its .Nationals. Hence Nationality Law is made by the States themselves. This is not the concern of International Law. ii) Importance: a) The right to diplomatic protection abroad is an essential attribute of Nationality of the individual. Every State has a right to protect its Nationals 85 property abroad. (Calvin's Case) b) Enemy status is determined during war, on the basis of Nationality.
c) A State may refuse to extradite its own Nationals. iii) Acquisition: a) Jus soli-place of birth. b) Jus Sanguinis (Parentage) c) By Naturalization or d) Registration. e) By acquisition of territory by a State and conferring Nationality on the inhabitants thereof. Each St at e ha s provided in it s Nationality Law the procedure into acquire Nationality. According to the I .C. J. t her e must be a 'genuine link' between the individual and the St at e. The leading case is Nottehohm's Case : decided by the I.C.J.The question was whether Nottebohm was a National of Liechtenstein ? If so he could get protection of his property in Gautemala. The I.C.J. held that there must be a 'genuine link', between the individual & the State. Nottebohm a German, was resident in Gautemala. He acquired the Nationality of Liechstenstein (without observing the requirements of residence etc.) and took oath of allegiance. In 1943, his property in Gautemala was taken over under War measures. Nattebohm was refused admission to Gautemala. Hence, he went to Liechstestein which instituted proceedings against Gautemala, to give protection to the property of Nottebohm in Gautemala. The I.C.J. held that there must be a 'genuine link' between Nottebohm & Liechstestein, but, there was no such link. Hence, it rejected Liechstestein's claim. Double Nationality: As the Nationality laws of different States are different, conflicts may arise. Hence, in a State where both Jus Soli and Jus Sangauinis are recognised, a child born there may acquire two nationalities. A child born of German Parents in India, acquires Indian Nationality by birth and German Nationality by parentage. Similarly, a woman marrying a person of another State may acquire Double Nationality. The Hague .Convention of 1930, on the conflict of Nationality Laws provided for treating a person who had double nationality as one who has only one Nationality. The U.N. has made provisions relating to the mitigation of the artificial link. Married woman may retain their pre- marriage nationality. Statelessness: This is a peculiar condition recognised by both the municipal law and International law. The Universal Declaration of Human Rights provided that everyone has a right to Nationality, and that no one should be arbitrarily deprived of his Nationality. Statelessness may arise by :-
1, Change of sovereignty over territory or 2. Denationalisation by States. The consequences are grave. There will be a great hardship and insecurity to the Stateless person as there will be no State to protect him and of his interests. International Law has provided for certain remedies:-Imposing duties on States to regard Nationality as acquired. a) Making States oblige in not passing denationalisation laws. b) Granting of Nationality by Liberal-minded States. c) Reliefs provided for in the Geneva Convention 1954. d) International Refugee Organisation has to a large extent solved this problem. THANK YOU……… THE END

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LLB LAW NOTES ON PUBLIC INTERNATIONAL LAW

  • 1.
    Subject: PUBLIC INTERNATIONALLAW Class: LL.B. III-SEMESTER INTERNATIONAL LAW CHAPTER 1 Legal Basis of International Law Definition: International Law is defined as a body of principles & rules commonly observed by States in their mutual relationship with each other. It; includes the law relating to States & International organisations and also International Organisations inter se. It also includes the
  • 2.
    rules of lawrelating to international institutions and individuals, and non-State entities and individuals. ii) Though there are theories on the legal basis of International Law, the Austinian theory has received wide attention. Austin opined that International Law was not law at all called it a 'Positive International Morality' and hence it had only moral force. He called it a set of opinions or sentiments current among nations generally and "laws improperly so called". Hobbes, Pufendrof, Bentham and Holland were of the same view. Holland said that it was at the vanishing point of jurisprudence. Austin defined law as a 'body of rules, set and enforced by a sovereign political authority. Hence when the rules depot comes from the sovereign, they would not be legal, but moral. Basing on this positive law concept Austin declared International Law as a code of morality. . Reply to Austin by Oppenheim: This definition is inadequate and incorrect because there is no reference to unwritten law (custom) as courts understand and apply them. Customary rules or rules of morality are founded on conscience. Hence, law must be defined to include the unwritten law. Neither the law making sovereign authority nor the court is essential for a law to exist. In the primitive community that was the position. In the modern State, the common consent of the people is expressed through the legislature (Parliament). But, there are unwritten laws as well. Wider Definition: Law may therefore, -be defined 'as a body of rules in a community framed by common consent, and enforced by an external power'. This definition answers the State-made law and the customary law. Hence, in a State, the Parliament (representatives of the Community) is the law making body and that law is enforced by the Community called the State. A custom is made by the community and is enforced by the community itself (Courts recognise them as a source 6f law). Hence, this definition is wider. Applying this definition if we are to justify that International Law is 'Law', we must prove the existence of: (a) An International community, (b) A body of International Rules and (c) A system of enforcement (sanction), a) International Community: The States together form an International Community. There are common interests in the field of science and technology. There is a 'world net-work of communications through telegraphic, telephonic connections and radios. There are Inter-State connections by railways, airways and ship navigation.
  • 3.
    Further, there iscultural co-operation and common interests on education etc., Establishment of Organisations like the United Nations and the Specialised Agencies, Regional Agencies etc., speak volumes to the fact that there is a World Community. b) Body of International Rules: Treaties & International customs are the main sources of International law. Austin's views however right for his time are not true of present day International Law; International customs are being formulated into treaties & conventions. There is great volume of international legislation: - E.g. : Declaration of Paris 1856, Hague .Conventions of 1899 & 1907, Peace Treaty 1919, Treaty for Renunciation of War 1929, the U.N. Charter 1945, various conventions of the Law of the Sea Conference 1958, Vienna Conventions on Diplomatic Relations etc., There are also a large number of International Customary Rules, evolved from diplomatic relations and correspondence from the practice of international organizations & State Practices, etc: These are formulated into treaties & Conventions. The International Law Commission is playing its major role in this process. Thus, there is no legal vacuum, but a body of international law in operation. Enforcement: States resort to: 1; Self-help. 2. Intervention-pure & simple. 3. Pacific Settlement under the U.N. Charter-; Also to Collective Security Measures of the Security Council. 4. Punishment of Offenders: e.g. : War Criminals. There are also rules of 'International. Community' based on goodwill, courtesy & reciprocity & Austin is correct when his 'code of international morality' refers to them. But, those are different from International legislation noted above. 5. Political questions may be resolved through the General Assembly or the Security Council. Judicial questions may be decided by the International Court of Justice. There is a frequent resort to Arbitration as well. , Hence, for enforcement there is the sanction (or force) of the International Community. Conclusion: As all the three elements are present, International law is evidently law. Of course, the frequent violations of International Law, show the weakness of the sanction of International Law. But, as Oppenheim, rightly concludes, 'Compared to Municipal Law, it is a weak law, but a weak law is still a law.'
  • 4.
    CHAPTER 2 SOURCES Sources ofInternational Law. i) Meaning: 'Source', according to Oppenheim, means the ultimate origin from which the law originates. When we see a river and desire to know its source, we must go up the river until we reach a particular point where the water is oozing out naturally from the soil. That is the source of the river. Similarly, in order to find out the source of the principles of International Law we must track back to a particular point. That is the source. ii) The Statute of the I.C.J. in Art. 38, has enumerated the following sources of International Law on the basic of primacy before the court: a) International Conventions or treaties. b) International Customary Law. '. . c) General Principles of law recognised by' Civilised Nations. d) Judicial Precedents. e) Juristic Writings. f) Ex aequo et bono. (Equity & good conscience) These are to be applied in the same order by the I.C.J. a) International Treaties: There is primacy for this source at the International Court of Justice. Treaties are of two kinds: (i) Law-making and (ii) Treaty-contract. Eg.: Pact of Paris 1956; Hague conventions of 1899 & 1907, Peace Treaty 1919, Treaty for the Renunciation of War, 1929, Geneva Convention relating to Prisoners of War 1929. Conventions of the Law of the Sea Conference 1958 are examples. (ii) Treaty-contracts are non-law making in nature.
  • 5.
    International Custom: This isthe original source of International law. It manifests in (i) Diplomatic Correspondence of States, (ii) Practice of International Organisations (iii) State Court's decisions, (iv) State Practice & Administrative actions etc. Origin: Custom has its-origin in a usage. If the usage is continuous, uniform and followed for a number of years it becomes a custom. Usage is the twilight zone of custom. But two conditions must be satisfied: (i) Corpus test: A material fact of the actual observance of a line of conduct by the States. This must be shown as a fact. (ii) Animus test: There must be an intention to follow the custom. It reaches a stage of approval 'opinio juris sive necessitatis' (Jurists' opinion as of necessity). Then, the principle (usage) becomes an International Custom. This is the process of the consummation of a usage into an International custom. In the Lotus Case, the Court (P.C.I.J.) held that the opinion juris must be drawn from all the circumstances & not merely from the facts on hand. In the Right of Passage case (Portugal Vs. India), the I.C.J. held that a particular practice between two States only may give rise to binding customary law. It held that Portugal had a right of passage for civilians but not for military officials. In the Temple of Preah Vihear Case the I.C.J. held that Thailand was precluded by her conduct from questioning Cambodia's sovereignty over the Temple. (iv) In the Mavrommatis Palestine Concessions Case the P.C.I.J. applied the doctrine of Subrogation. Comments: It is stated that the recognition of 'General Principles' as a source of law would sound the deathknell of positivism. This statement is overdrawn, Positivits believe in the common consent of the States as the basis of International Law. Naturalists believe in the superiority of natural law only. Hence, these two are opposite schools. The; above comment is a reference to this and believes that the recognition of 'General Principles' based on Natural law ended the positivists theory. But, this is not so. The I.C.J. applies Treaties & Customs and only in their absence, resorts to the 'General Principles of Law recognised by Civilised Nations/ Hence, priority is given to positive law. d) Judicial Precedents: The decisions of the I.C.J., the P.C.I.J., the International Arbitration Tribunals and the National Supreme Courts form the fourth source of International Law. This is followed by the
  • 6.
    Courts not onlyas a source, but also as the best evidence available to show the existence of rules of International Law referred to in those decisions, e.g.. ( i ) I.C.J.. Decisions. The Fisheries Case (drawing of straight base- line to determine the territorial waters), the Reparations case declaring the U.N. as successor to the League of Nations & that U,N. is an International Person have laid down new principles of International law. ii) P.C.I.J. : Palmas Island Case iii) International court of Arbitration: Savarkar's case, Pious Fund case, North Atlantic Coast Fisheries case etc. iv) State Courts: Franconia case, Scotia case, Paqueta Habana case etc. e) Juristic Writings: This is the source, next to the precedents. The I.C.J. may refer to the teachings of the most highly qualified; publicists of the various nations. In the 16th & 17th Centuries, writers on International law held a pre-eminent position as this system of law was in its slow ebb of development. Even today in areas where the law is uncertain the classics of the jurists are referred to by the State's before the I.C.J. and Arbitration Tribunals in support of their arguments. The judges pay regard to the juristic writings as they are persuasive in nature. The classical works of Gentili, Hugo Grotius, Zouche, Pufendorf, Bynkershoek, Moser, Van Martens, Vattel, etc., are relied upon. References are made to Oppenheim's treatises, and Lauterpacht's writings, and to the texts of the International Law Commission. f) Ex aequo et bono This is the final source. This means equity & good conscience. This saves the situation of helplessness of the Court. One of the fundamentals of the judiciary is to solve the .dispute on hand and not plead its helplessness or non- availability of any definite law. In such a case, as a last resort, the court relies on its own concept of equity and good conscience & decides the case on hand, if the parties agree e.g., The P.C.I.J in the Diversion of Water from the River Meuse case said 'He who seeks equity must do equity'. Hence, one party by non-performance cannot take advantage of a similar non performance by the other party. In the Rann of Kutch Arbitration (India V. Pakistan), both parties relied on equity as part of International law, in deciding the boundary dispute between the two parties the Tribunal found the two deep inlets of Nagar Parkar as part of Pakistan, on grounds of equity. In the
  • 7.
    Continental Shelf Casesand in the Barcelona Traction Case, the I.C.J has applied equitable principles to solve the disputes. CHAPTER 3 International Law Vs. Municipal Law i) Introduction: Two aspects are to be noted in the relationship between Municipal Law & International Law. One is the theoretical question whether both laws are part of a Universal legal order, or, are two different systems. The other is the conflict between them in the Municipal courts as to the primacy of Municipal Law over International Law, or vice versa. ii) Two Schools: The two schools are the Dualistic & the Monistic schools: Monistic School: According to Anzilotti and Triepel, International Law & Municipal Law are two separate & distinct systems of law-one is the antipode of the other. The reasons are: Sources: Municipal law has Acts of Parliament arid local custom as sources of law, whereas International law has treaties and International customs as primary sources. Thus they are different. Secondly : Individuals are subjects in Municipal law, whereas the States are subjects in International law. Thirdly: Under Municipal law the State has its sway over the individuals, whereas International law is between or among Sovereign States. Dualistic School: Dualists school has been opposed by the Monistic school (also called Vienna School) which holds the following views : (founder Kelsen). Firstly : Ultimately it is the conduct of the individual that is regulated in both the systems of Municipal law. Secondly : Law is a command on the subjects (Individuals or States) independently of their will. Thirdly : Both the systems are the manifestations of a single, conception of law. Two branches of the same tree. From the above schools it is evident that International law and Municipal law are separate according to the Dualists but one and the same according to the Monists.
  • 8.
    iii) Practice ofStates : In U.K.: Primary Rule : International Customs : According to Blackstone, Customary International Law is part of the law of the land. The British Courts follow this rule but subject to two conditions; 1. That such a rule should not be against any British Statute. 2. That once the Court decides, it is followed thereafter. The Blackstone's Theory was confirmed by judicial determinations (Dolder V. Hunting field, Nevello V. Toogood etc.). Leading cases : 1.. R.V. Keyn (Franconia Case) 1876 Franconia, a German ship, collided with a British vessel within the British Maritime Belt. The British Vessel sank and one person -died. The British Court convicted the master of the German ship for manslaughter. Question arose about the jurisdiction of the Court as the incident had happened within the British territorial waters. The House of Lords, held that the English Court was, bound by Municipal Law and Municipal Law had not provided for the Jurisdiction hence no jurisdiction. This was neutralized by the Parliament which passed the Territorial Jurisdiction Act 1878 by extending the jurisdiction. 2. West Rand Gold Mining Co .V. King 1905. This was a Company working a gold mine in South Africa. The Govt. officials seized gold belonging to the Company & according to laws they were to pay compensation or return the same. South Africa was defeated by the British, and, the gold was brought to England. Thereupon, the Company sued the English Govt. for return of the gold or for compensation. The Crown made a Declaration which stated that the British Govt. as a successor would not respect the commitments of the South African Govt. The Court held that the Company was not entitled to the gold or for compensation, as the Crown Declaration was Municipal Law. Binding on Municipal CourtsHence, municipal Law prevailed. 3) Chung Chi Cheung V. King (Privy Council). C was a cabin boy on board a Chinese vessel. 'When the Vessel was in Hongkong Territorial Waters, he shot & killed the Captain. & another person. C was duly committed. But the question was whether the Court of Hongkong (a British ' Colony then) had jurisdiction to try the case. The Privy Council held that the Court had jurisdiction. The conviction was affirmed. Rules of Interpretation. The rules emerge from British practice .A rule of construction that the Parliament did not intend-to deviate from international law. This is a presumption.
  • 9.
    ii) A ruleof evidence according to which courts take notice of International law. b) Treaties: Negotiation, signature ratification is matters, belonging to the prerogatives of the Crown. But legislation is necessary, if treaties are:- 1. Affecting the rights of subjects (citizens). 2. Modifying a statute. 3. Vesting additional powers on the Crown. 4. Imposing financial burden.Legislation is also necessary, if there is a provision for cession of the territory. Hence in case of treaties, incorporation is necessary; otherwise, Muncipal law will prevail. Practice of States: In U.S.A. i) International Custom : The procedure is the same as in U.K. ii) International Treaties : The practice Is different- a s the U.S. Constitution in Art. 6(2) provides that treaties are The Supreme – Law of the land'. There is a clear distinction between self executing and non-self executing treaties. Self executing treaties operate without legislation. In case of non- self- executing treaties. They will him operative only after legislation, INDIA : Art. 51, of Directive Principles of State policy, provides to respect for International Law'. This provision is a reference to the State Policy only. Broadly speaking the practice of U.K. is followed in India, (Beruberi Union Case). CHAPTER 4 CODIFICATION Codification To provide definite laws to the International Courts. National Courts and Tribunals and to stimulate the willingness of States to submit International disputes, codification gained momentum. The idea of codification first came from Bentharn. The declaration of rights of Nations--of 1792 of France was the first attempt. Abhe Gregorie drafted 21 articles for this purpose. However, the convention was not a success.
  • 10.
    The first successfulattempt was made at the First Hague Conference convened by Emperor Nicholas II of Russa in 1899, This showed the possibility of codification. The conference codified inter alia : , i) Pacific settlement of disputes: and ii) Law and custom of war on land. The second Hague Conference of 1907 passed 13 conventions. They relate to Maritime Navigation, rules of war. Neutrality and opening of Hostilities, etc., A parallel development in the ‘field was the peace Treaty of 1919. It provided for the League of Nations and the ILO and PCIJ. The League provided for an International Law Commission consisting of 15.Jurists. Subjects which were ripe for codification were selected by them. Codification relating to nationality, territorial waters, privileges and immunities of Ambassadors etc., were successfully made. The convention declared the renunciation of war as an instrument of National Policy (1929). The codification of International Law conference met in 1930 provided for conflict of Nationality laws; and Statelessness. etc. Under the United Nations, the International Law Commission is charged with the duty of codification and progressive development of International law. There are now 34, members. Since 1948, the International Law Commission has conducted its deliberations and submitted its drafts. Codification has been made on many main topics .e.g., Privileges and Immunities of Ambassadors. & of consuls and treaty law, etc., The Commission has endeavoured to give clear expression where there is a common measure of agreement or uniform practice. Codification has been viewed as systemization & codification of principles agreed upon and (ii) agreement on hitherto divergent issues and practices.. Codification exposed the States to dangers of unanimity Rule. It also showed that certain States did not like to commit in writing what they were actually practicing. Further, uniformity in opinion was not available and lengthy preparations and discussions were inevitable. The earlier Conferences could not, possibly achieve much: The International Law Commission under the U.N. is almost free from the dangers stated above. Its work is commendable and laudable Progressive development means the preparation of draft convention on subjects which are not yet regulated or developed- Much work is done by the International Law Commission, e.g. Geneva conventions on the-Law of
  • 11.
    the Sea 1958.Vienna Convention on Diplomatic Relations 1961, Vienna Convention on the law of Treaties 1969 etc., The modern trend is, towards the speedier method of international law making process: i.e. Treaties bi and multilateral. This is called international legislation. The role of these law making treaties is considerable. The contributions of International court of Arbitration, P.Q.I.J. & I.C.J. are of great significance Apart from these, the part played by International Law. Commission in formulating treaty-drafts, in respect of volume & area covered, are phenomenal. The processes in codification & progressive development of International law are confirming .on and have become part of law making in the field' of International law. CHAPTER 5 STATES AS SUBJECTS Subjects of International Law. Primarily, International Law is concerned with the rights duties and interests of States. As ‘International law 'is between or among the States, some jurists hold the view. That 'only the States are the subjects of International law'. Subjects of International Law mean is : . 1. Incumbent of International rights and duties:- 2. Possessor of procedural privileges of suing in International Courts and Tribunals 3. Possessor of interests under International law. 4. Capacity to enter into treaties & International obligations.
  • 12.
    EXCEPTIONS : i) Thoughit. is the conduct of the state that is regulated by international law, in the ultimate analysis it is the conduct of the individuals that is regulated. As Westlake opines 'The rights & duties of the States are ultimately the rights and duties of-men that compose them. Hence, though the States are normal subjects, they may endow the individuals with the International rights & duties and to that extent make them subjects of International law. ii) Pirates who commit Piracy Jure Gentium on the high seas are liable to punishment under International law. To that extent they are the subjects of International law,, but some jurists call them as objects. iii) Slaves: International convention has provides for the abolition of slavery. The convention also provides for the rights of the, slaves. They enjoy these rights as subjects of International law. iv) Belligerents : are subject to International rights and duties in respect of war. Hence, they are subjects of International law. e.g. Geneva Conventions on the Prisoners of war apply to them.. v) Individuals : May be allowed to appear before the International tribunals, like ICJ. In Danzsig officials case, the ICJ. has opined that individuals may be conferred with certain rights by States. vi) War Criminals: The Nirenberg and Tokyo trials after II World War showed that individuals could be tried for International crimes like crimes against peace, crimes against humanity and crimes under the law of War. Eichmann’s Trial fortifies the above position. The Nuremberg- Trial rightly stated that crimes against International law are committed by men not by abstract entities (States) and only by punishing individuals who commit crimes, can the provisions of International, law be enforced. vii) Genocide Convention: This provides for punishment of those who commit genocide, the punishment may be awarded by National or International courts. viii) European Commission for Human Rights has been empowered to investigate and to report on violation of' human rights by the Member States. The Lawless case decided by the European Court of Human Rights is an example. ix) United Nations : The I. C. J. in the Reparations case held that the United Nations is an International person. It is also 'declared as the subject of International law, capable of International rights and obligations.
  • 13.
    x) The SpecialisedAgencies like I.L.O., U.P.U., are International persons and hence the subjects of International law as per their Constitutions. xi) Regional Arrangements: Like the NATO., SEATO., etc. are also endowed with international personality. Hence they are also subjects of International law in a limited w iv. These factors evidently prove that apart from Sovereign States, there are others which are also the subjects though '.in a limited sense. It is no doubt true that States are mainly the subjects, as the capacity to follow International obligations, is on them primarily. CHAPTER 6 RECOGNITION Recognition. i) Definition : It is the free act by which one or more States acknowledge the existence of a politically organised independent sovereign community capable of observing International obligations. The recognition is for the membership of the 'Family of Nations'. Until 1857, there was an European family of Nations but in 1857, Turkey was admitted to it and since then, it is no longer an exclusive European family of Nations. Today -recognition is with reference to this family of Nations. (This is different from the membership to the United Nations).) Theories : There are two theories :i) The Constitutive? Theory and ii) The Declaratory theory According to the Constitutive theory, the act of recognition alone creates statehood, whereas according to the Declaratory theory, State exists prior to, and, independent of recognition. The act of recognition is merely a formal acknowledgment of an established situation. Hence, a new State becomes a member of the family of Nations ipso facto by raising into existence and recognition supplies only the necessary evidence of this fact. According to the Montevideo Convention 1933, the essentials of statehood are: a permanent population, definite territory, and established Government And full capacity to enter into International relations with other States. Sometimes a definite territory is not always essential as is evident from State practice during World War II. Hence, if these essentials are present, there is Statehood according to declaratory theory whereas according to Constitutive theory, such a community should be recognised by other States.
  • 14.
    Constitutive theory hasits own supporters: There are two aspects, (a) According to the traditional constitutive theory recognition is a political act pure & simple and therefore an act of policy, (b) Lauterpacht differs from this. He opines that each State has a duty towards the International community to recognise a new State which fulfils the legal requirements of Statehood or other necessary qualifications. This is a quasi- judicial authority. This duty is similar to the duty under the Charter of United Nations for admission to the U.N. under Art. 4 Extaneous political considerations should not be taken into consideration. But it is difficult to accept Lauterpacht's views. If according to him, it is a legal duty to recognise, what is the sanction behind this duty? Further, the actions of State in recognising is yet uncontrolled by Independent rules. Even the Declaration of Rights & Duties of' States 1949, does not prescribe such a duty. It is the traditional theory that is largely in vogue, as .a matter of vital policy. Oppenheim supports this theory. a) International State practice has recognised declaratory theory. However, recognition is with-held for political reasons, b) There is retro-active effect of recognition dating back to the actual rising into existence of the State, c) The courts, in respect of treaties, take into consideration not the date of operation but the date of coming into existence of the State. In Luthor V Sagor : P company had owned a quantity of wood in Russia, but it was nationalized by Russia which it took over in 1919, under a order. This wood when sold by the Govt was bought by D company from the new USSR Govt. P claimed that the decree was not applicable as U.K. had not recognised USSR Govt. in 1919. U.K. recognised in 192.1. The English Court held that the Crown's recognition of Soviet regime in 1921 was retroactive dating back to the time of Soviet regime seizing power in 1917 and hence, its seizure of timber was recognised as legal. Hence, ipso facto by raising into existence, the new community becomes a member of the family of Nations & recognition is only an acceptance of this fact. Podesta Costa's theory: His opinion that recognition is Facultative and not obligatory is more in accord with State practice. When recognition is granted by States, they make it certain that the new State to be recognised had the requisite legal qualifications. Only to this degree, the act of recognition is a duty. Consequences of recognition-: Recognition confers a 'status' under international law & municipal law. The recognised state gets certain rights, powers and privileges, as a consequence thereof. In the absence of recognition, there would be certain disabilities to the unrecognised state. For example, it
  • 15.
    cannot sue inthe municipal courts of the state which has not recognised it, similarly, its representatives cannot get privileges & immunities, etc. Recognition cures these & other disabilities. i) The new State acquires the capacity to enter into relations with recognised State and conclude treaties with them. The new State gets the? Right to send & to receive Ambassadors. (Active & Passive Legation), these ambassadors are entitled to privileges & immunities in these States, Past treaties revive" and come into force automatically. The new State gets the right to sue in the recognising States. iii) It acquires for itself and for its property immunity from the jurisdiction of the recognising States. iv) If it is a new successor State which, is recognised, it becomes entitled to demand and to receive possession of its predecessor's property situated in the recognising States. v) Recognition is retro-active and hence the courts of the recognising States are not to question the legality of the acts (past & future) of the New State. This means the recognising States, become subject to certain obligations; simlarly, the new state also becomes subjects to certain obligations. Thus, it gets the benefits & burdens according to International Law. De facto & De jure. De facto is purely provisional or temporary. But de jure is final and binding. De facto can be withdrawn if the existing circumstances show that the new community is no longer holding the power and status. But, de jure recognition is permanent and cannot be withdrawn. iii) De facto deals with factual status, whereas de jure deals with the juridical status. vi) De facto is generally granted looking to the developments as regards insurgent’s capacity and establishment. De jure is given if the granting State is fully satisfied about the International capacity of the insurgent state. The recognising State grants recognition de jure, when the recognised state has fulfilled the requirements for statehood and his capacity to follow International obligations ; However, it may grant de facto recognition when there is only actual fulfilment of these requirements and hence may be temporary & provisional This does not mean that de facto should be given first & then de jure. In the estimation of recognising state, the recognised state has the capacity to follow international obligations either de facto or de jure. This is the policy of the State. 1. U.K. granted de facto recognition to Soviet Govt. in 1921, but gave de jure in 1924.
  • 16.
    2. U.K. grantedde facto recognition to Italian conquest of Abyssinia in 1936, but gave de jure in 1938. 3. The -Franco Govt. in Spain was given de facto recognition in 1936, but de jure was granted in 1938. Leading Cases : (1) Luthor V Sagor (Refer Ch. 6.2) (2) Haile Selassie V Cable & Wireless Ltd. C & W Defendant company, owed monies to Emperor Haile Selassie of Ethiopia. In 1935, Italy invaded Ethiopia .& took it over. The United .Kingdom recognised de facto this Italian Govt. But, the Emperor Haile Selassie, Plaintiff, was the de jure sovereign of Ethiopia. Subsequently, de jure recognition was given to King of Italy; when the case was pending in the Court. Held, de. jure recognition of King of 'Italy dates back to date of taking over. Hence, plaintiff claim for recovery of money failed (3) Arantazazu rnendi's case: during Spanish Civil War (1936-38) insurgents had occupied a portion of territory 'and it was recognised de facto by U. K. Here, Arantzazu rnandi was a ship registered in insurgent territory. Held, the ship was entitled to immunity as U.K. had given de facto recognition. CHAPTER-7 INTERVENTION Intervention. It is of two kinds : i) Dictatorial Intervention & , ii) Intervention pure & simple. 'Intervention is dictatorial it it is done by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things. This is forbidden by International Law. But intervention pure and simple, like using Good offices. Negotiation, mediation, are not forbidden. In 1826 at the instance of Portugal, U.K sent British troops to Portugal to suppress the revolution engineered by Don Dugal, Intervention as a right can take place in the following circumstances: 1. A State holding a protectorate has a right intervene in all external affairs concerning the protected state. 2. When the external affairs of a State are also the affairs of another, the latter may intervene when the former acts unilaterally. Russia & co. defeated Turkey concluded the peace. U. K. protested as it was inconsistent with treaty of Paris of 1856 and in the convention of London 1871, Russia agreed to meet & the Congress of Berlin met and resolved.
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    A state restrictedby treaty in the external independence or territorial supremacy, must comply with the provisions of the treaty. On failure, the other party may intervene as of right. In 1926, USA, intervened in Cuba, for the purpose of establishing order. This was in accordance with the treaty of Havana. 3. If a State violates universally recognised customary International law or a provision of law making treaty, other States may intervene by right, e.g. If any State does not act which affects the interests of merchant vessels on the High Seas, the concerned State may intervene, to protect them. 4. A State 'which has guaranteed another State particular form of Govt. or particular Dynasty may intervene in case of a change thereof. 5. A State may intervene to protect its citizens who are resident abroad intervention may be to protect the interests of the property, person or honour. U.S. intervened in Panama City to protect Americans. 6. Collective intervention under U.N. is a recognised intervention. The Security Council in the 'interest of maintaining International peace, has intervened in Korea and Congo, 7. There are other' interventions which are not interventions by right, but are nevertheless not prohibited. a) Intervention in the interests of self-preservation, and b) Intervention in the interests of balance of- power which is now being replaced by collective intervention of the Security Council of the U.N. c) Humanitarian intervention: When State resorts to cruelties, atrocities & persecutions of its own nationals, in such a way as to deny their fundamental freedoms and 'U shock the conscience of mankind in the interest of humanity at large, intervention is permissible. U.K., U.S.S.R, and France intervened in the struggle between Greece and Turkey, where many atrocities were committed. Self Preservation Meaning : States, as a rule are under a mutual duty to respect the personality of each other, and also not to violate each other’s territories. However, acts committed in self-preservation are not prohibited by the Law of Nations. Self-preservation is considered as the first Law of Nature and every State has a right to the integrity of its personality, and according to Vattel, it may do whatever was necessary to preserve it. In later years it became clear that acts done were legal 8& valid if they were for
  • 18.
    'necessity'. Necessity mustbe 'instant, overwhelming leaving no choice of means and no moment for deliberation. When a body of armed invaders are making preparations to invade the territory of a State, the State cannot resort to self-defence measures, if there is time to resort to the authorities where the invaders are presently making preparations, But, if the appeal is fruitless or if there is danger in delaying, the State is justified in invading and disarming the invaders. In the 19th century, the concept of 'Balance of Power' had its influence. According to it , as Vattal said, no arrangement should be allowed which would allow an absolute mastery and domination over others. The Congress of Vienna re- arranged the map of Europe. This is now replaced by the Collective Security measures of the United Nations. ii) Self defence & Charter : Art. 51 of the Charter, has recognised self defence as a right of the States. It says that every State has an inherent right of individual (or collective) self-defence, if there is an armed attack against a Member and the measures taken must be reported to the U.N. This right may be continued until the Security Council resorts to the taking of Collective Security measures to maintain International Peace & Security. Instances of- Self-defence : a) The Danish Fleet Case : There was a secret clause in the Peace Treaty of Tilsit 1807. Under it, Denmark could be forced to wage war against U.K. and France could seize the Danish Fleet of Denmark. War broke out between U.K.. and France. There was danger to U.K. as, under the treaty if Danish Fleet was given to France, France would easily attack U.K. Hence, the U.K. Govt. requested the Denmark Govt. to deliver up the fleet to U-.K. & promised to return after the War. Denmark refused. U.K. shelled Copenhagen and seized the Danish Fleet on grounds to Sell defence. b) Amelia Island Case : .A band of Buccaneers had seized Amelia Island, under the command of the adventurer Me Gregor. The Commercial vessels between Spain and U.S.A. were preyed upon. Spain was incapable of and unwilling to drive out the Buccaneers. President Munro sent a war-vessel which destroyed the establishment of the pirates. This was on grounds of self defence. c) The Caroline Case: There was a rebellion in Canada in 1837. The rebels chartered the vessel'Caroline' to carry ammunition from the U.S. port (Schlossar) to Canadian Port '(Navy Island). U.K. considered
  • 19.
    this as animminent danger. It sent British forces, which seized Caroline set her on fire & sent her adrift down the Niagara Falls. The United States strongly protested against the violation of its territorial supremacy by U.K. apologised. d) The Mexico Expedition : The U.S. to protect the American citizens and their property in Mexico, despatched troops in 1916-1919 war. This was founded on necessity. e) Japanese Invasion of Manchuria : There was a dispute between Japan and China. Japan invaded Manchuria on grounds of self- defence. The League of Nations condemned Japanese aggression, as there was no necessity. f) French Fleet at bran in 1940 : U.K. wanted that French ships at Oran should not fall a prey to Germans. France refused to allow U.K. to have Oran fleet. U.K. attacked and sank the fleet, on grounds of necessity. CHAPTER 8 OPEN SEA Freedom of the Open Sea. i) History'& development :- A conviction had grown in the beginning of the 15th Century that States could extend the i.e. sovereignty over certain parts of the Open Sea. In 1493, the Pope Alexander VI, divided the New World into two halves one to the Portuguese & the other to Spaniards. Inspired by this, Spain claimed a major portion : in Pacific & the Gulf of Mexico and Portugal claimed sovereignty over the whole of the Indian Ocean. Great Britian had claimed the North Sea, the Narrow Seas,'& the Atlantic. These claims were not merely formal. Many ceremonials were in vogue. To fish in North Sea, the party was to take out Licenses from the U.K. & when in 1636 the Dutch attempted to fish, it was compelled to pay penalty. When Phillip II of Spain was coming to England to marry Queen Mary, the British Admiral fired at his ship in 'British Sea' as he did not lower his flag, in honour of the English Flag ! In 1580, the Spanish Ambassador in England, Mendoza, lodged a complaint with Queen Elizabeth, against Drake, who had made a successful journey to the Pacific. Elizabeth declared that vessels of all nations could navigate on the Pacific Ocean sinces the sea and the air was common to all. This was the germ, out of which grew the freedom of the Open Sea.
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    In 1609 Grotiuswrote his 'Mare Liberum' (12th Chapter of De Jure Belli ac Pacis) commending the freedom of the Open Sea. John Selden attacked Grotius and wrote his 'Mare closum' commending the closed seas concept, but this failed. In later years the concept of the freedom of seas became a universally recognised rule in international law. ii) Open Sea: Open Sea is the coherent body of salt-water all over the Globe (with the exception of the maritime belt, the territorial Straits, gulfs and bays of the sea) but no part of it is an object of the law of Nations. Freedom of the Open Sea, means that the Open Sea is not and never can be, under the sovereignty of any State. It means that there is absolute freedom of navigation for all Nations whether merchantmen or war-ships. iii) Rationale: The Rationale for Open Sea according to Grotius are : a) It could not be occupied effectively by any State. b) It is Res extra Commercium like light & air and can be used by everybody & is inexhaustible: c) The modern reason is that the Open Sea is an International highway & hence should not be under the sway of any State (Oppenheim). iv) Law & Order : Freedom of the Open Sea does not mean anarchy and lawlessness. On the contrary, over the centuries, International customary law has grown providing for legal order on the High Seas. a) Vessels flying the Maritime flag are subject to protection and unauthorised use 'of flags is punishable. A ship without a flag may be seized by any State. b) Every State may punish as a matter of right, piracy jure Gentium, c) 'Floating Island' theory provided that each Vessel was subject to the exclusive jurisdiction of the flag State over persons and goods. d) Fisheries,in the Open Sea was free & open to all. e) Various provisions were made by States in their Municipal laws prescribing qualifications. Seaworthiness Certificate, Registration, Muster Roll, Log Book, Bill of lading, Charter party etc. P ' my rules developed relating to Signalling (Washington Conference 1889), collisions (Brussels Convention), Blockade and contraband, search & seizure 'hot pursuit', and abuse of flag.
  • 21.
    f) The I.M.C.O.,as a specialised agency was established in 1945 specially to establish standards & to gurantee Maritime safety & efficiency in navigation. This has done much commendable job through its Assembly, Council & the Maritime Safety Committee. v) Law of the Sea Conference 1958: (Geneva).Much of the law relating b) Certain duties have been imposed on States in respect of Pollution, e.g.: Prevention of Pollution from ships convention 1973, and Maritime Pollution Prevention 1972. f) Law of the Sea Treaty 1982 has made detailed provisions on the use of sea, the continental shelf, EEZ & contiguous zone. Territorial Waters. i) Origin : This is the traditional Canon-Shot or the Maritime Belt Rule. The Origin of this can be traced to Bynkershoeck (an ardent follower of Hugo Grotius). In 1702 the published his work 'Essay on Sovereignty over the Sea', in which he commended that the Maritime State could dominate only such width of the Maritime waters as lay within the range of a Canon-Shot from the shore batteries. He was the first jurist to enunciate this in terms of Canon Shot. In later years, the range was fixed at the instance of a military expert of those days called Galiani. He stated that the maximum range for the Canon Shot was 3 miles from the shore. ii) Width : The 3 miles-limit became commonly accepted by the States and the Courts in the 19th Century, the U.K. &. U.S.A. taking the lead. But, in the 20th Century a number of States claimed a wider width extending upto 12 miles ! a) The Hague Codification Conference 1930 opposed the traditional concept of 3 miles. It was a 'idol dethroned and not restored'. Hence, no agreement could be reached. b) In Geneva Conference on the Law of the Sea 1958, the U.S. & the U.K. did not agree on a 12 mile limit, though they were prepared to accept a 6 mile limit. The opposition for a 12 mile limit was based on Security: (i) Submarines may travel undetected through the territorial waters of Neutral States and create problems during war. (ii) There was also the view that with 12 miles the available area of the Sea for free navigation, free fisheries & free over flight by aircraft etc. would be diminished. The net result was, though 3 miles was accepted universally, the disagreement was with the range between 3 to 12 miles.
  • 22.
    c) The ThirdU.N. Conference on the Law of the Sea gave a decent burial to the 3 mile limit. The weight of State practice is in favour of a 12 mile-limit, but this is to be made with multilateral treaties among States. iii) Measurement: Although this has not created much difficulty, the base- line method adopted by the Court (I.C.J.) 1951, has been widely accepted. Anglo Norwegian Fisheries Case: U.K. Vs Norway. The facts .were : Certain claims were made by the Nowegain Goyt. Creating an exclusive fisheries zone for itself.- It followed the straight, baseline method selecting some 48 points to measure the breadth of the territorial waters. This was upheld by the Court. This was accepted by the convention on Territorial Waters & Contiguous Zone, (1958). (However, where the baseline method is not possible the low waterline method may be followed). iv) Jurisdiction:- The 'Territorial Waters' is an area over which the maritime State has exclusive sovereign rights. Sometimes jurisdiction is extended. The leading case – .Lotus Case decided by P.C.I.J in 1927. French, Steamer, the LOTUS, collided with a Turkish Vessel on the high seas due to gross negligence of officer of Lotus. The Turkish vessel sank, and 8 Turkish nationals died. Turkey based its claim on the ground that the1 negligence on board Lotus, had its effect on Turkish vessel & hence, on a portion of Turkish territory. Held, Turkey was entitled to succeed. a) The Maritime State has exclusive fishery rights and also it may reserve its right of cabotage (to navigate between two ports of the Maritime State itself) b) The Maritime State has sovereignty over the surface, the subsoil, and" the superincumbent air space (1958 convention). c) There is a customary rule of International law of allowing ‘innocent passage' through the territorial waters. (Recognised & defined by the 1958 convention). d) The Maritime State has exclusive jurisdiction- Civil, Administrative, Sanitation, Custom and Criminal. However, in respect of foreign vessels passing through territorial water the jurisdiction is limited as per the convention of 1958. The leading case is the Corfu Channel case 1949. Facts were: Mines had been laid within the territorial belt of Albania during October 1946. British Vessel passing through the belt, struck the mine on 22nd
  • 23.
    Oct. 46 &was damaged. Subsequently, the British Govt. on, 13th November conducted the mine sweeping operations. It sued Albania for damages, contending that Albania was responsible or had knowledge about the mines. The I.C.J. held (i) Albania was liable & (ii) U.K. has violated Albania's sovereignty, as she has' swept the mines without Albania's permission. e) Right t o 'hot pursuit', (to-chase and seize a vessel that has iolated the Maritime laws of a State) is recognised. But, this ends when the vessel enters the territorial waters of any other State. ' Leading Case 'The I am alone' (Canada V.U.S.). 'I am alone', a British vessel (Regd. in Canada) was suspected of smuggling liquor within 10 miles off U.S. coast (L'ouisiania) "Wolcot" & later another vessel Dexter set out to seize her & hence made a hot chase. Both were able to reach at a distance of 200- miles off the coast. They gave warning, but later fired at. The men on deck died & it was sunk. Commissioners were appointed to decide (i) the right of hot pursuit (ii) Whether sinking was justified. Held, U.S. had the right of hot pursuit & could use reasonable force to bring to port the suspected vessel. But sinking in this case was not reasonable force, and hence illegal. The 1924 Convention between U.K. & U.S. discussed and as International Law does not recognise use of unreasonable force .U.S. was guilty & 25,000 dollars were awarded as compensation to the families of persons who died. The Contiguous Zone. i) Traditional Concept: This is the area over the Sea, beyond the 3 mile limit but extending up to 12 miles from the Sea Shore. The measurement is to be made in the same manner as in Territorial Waters. (Fisheries Case). The littoral State may claim exclusive fishing rights within this zone and has no jurisdiction over the waters or the airspace above it ii) Recent Trends: The United Nations Conference on the Law of the Sea. (UNCLOS ) 1973-76 launched an ambitious programme to codify the entire law relating to Sea. A number of these UNCLOS. Sessions have been held so far. The latest is the 1982 Law of the Seas Treaty
  • 24.
    The territorial waters, ContiguousZone, Exclusive Economic Zone and the Continental Shelf are Shown here for reference Ch. 8-4. Exclusive Economic Zone: Refer Diagram though the concept of contiguous zone" is retained, the UNCLOS. .sessions has accepted the Exclusive Economic Zone (EEZ.). This has its roots in exclusive fishing zone concept & the doctrine of continental shelf. If combines & develops the two. Some States have laid claim up to a distance of 200 miles from the sea- shore. (There is much disagreement for this regime). The EEZ is the subject of the maritime State for the purpose of exploring & exploiting, conserving & managing the natural resources of the bed & the superjacent waters.
  • 25.
    This includes fisheries.Some States have already proceeded on these lines to claim over EEZ. This has many problems yet to be resolved (a) The relation of EEZ to the high seas, (b) The precise rights & their extent in the zone, (c) The problem of land-locked areas who have no such natural resources & advantages. Fisheries Jurisdiction Case (U.K.V. Iceland) 1974 (I.C.J.). The court recognised the preferential rights of Iceland for fisheries in the fishery zone, in view of its economic resources depending on fisheries. Iceland had first extended to 50 miles. Later it extended to 200 miles. The latest position is that United Nations conference on the Law of the Sea UNCLOS 1985 has recognised up to 200 nautical miles, from the baseline. This 200-mile limit is not arbitrary. It is based on the fact that the most lucrative fishing grounds lie within 200 nautical miles from the coast. It has the richest fish food pastures. Within the EEZ, maritime State has no sovereignty, but has the right of exploring, exploiting & conserving the resources of the Sea UNCLOS 1985 has provided detailed provisions in this regard. The Continental Shelf. i) Origin and development: The Origin of this concept may be traced to the proclamation made by President Truman of the United States in 1945. By 1945 it had become technically possible to drill for oil & for other resources in the sea-bed, and, the Truman Declaration gave legal status to it. It stated that the littoral States had jurisdiction over the natural resources of the subsoil and the sea bed of the 'continental shelf and that the exploitation by that State was just & reasonable. Other Nations followed suit and made similar declarations. ii) Definition: Refer diagram The Geneva Convention on the Continental Shelf 1958, defined Continental Shelf as the area adjacent to the coast, outside territorial sea, to a depth of 200 metres (or-to beyond that to a depth where exploitation is possible). The Coastal State according to the convention exercises exclusive rights of exploring & exploiting the natural resources, including the living organism and the non-living mineral resources. The Coastal State has only limited rights and has no sovereignty over the continental shelf. Further, it has no rights over the waters or the airspace above the shelf. In the North Sea Continental Shelf Cases [Federal Republic of Germany Vs. Denmark & the Netherlands (1969)], the question of delimiting North Sea Shelf areas was discussed. The Court held that there was no general customary International Law, in existence. Regarding
  • 26.
    the Division ofa Common Continental Shelf, the court held that such a delimitation must be under a treaty & that the arrangements for division must be based on 'equitable principles.' The court also expressed the view that even a joint exploitation of the Shelf by the concerned States could be made. i i Developments: Since the Geneva 1958 settlement, there were fast developments in the field of Continental Shelf: , a) New Technology had developed to exploit oil & gas in Ocean depths. b) New States were financially and technologically at a disadvantage and became gravely concerned over the monopoly by some powerful States. c) 1967, the .Maltese Govt. initiated a plan to declare that the sea-bed resources beyond continental shelf 'was a common heritage of mankind', & must be developed in the interests of all States. The fear was the possible arms-race in the sea- bed beyond the Continental Shelf area. Such a declaration was made by the United Nations in 1970. It also appointed a 84 member committee on the peaceful uses of that sea bed-area beyond the Continental Shelf. The stretch of the continental shelf is as in diagram. d) The U.N. during 1973-76 held five sessions on the Law of the sea & made 5 conventions. iv) Developments : The Law of the Sea Treaty, 1982 is very comprehensive with 303 Articles and is the lengthiest treaty . U S has not ratified even in 2011. There is much controversy among the Nations, and the United Nations in its various conferences could not make any headway. On the contrary, the U.S. & other States, including India have defined in their municipal laws : Territorial waters upto 12 miles, contiguous zone upto 24 miles, & Continental .Shelf upto 200 miles, from the sea shore.
  • 27.
    Piracy Jure Gentium. i)Definition: Piracy is defined as every unauthorised act 0f violence, against persons or goods committed on the Open Sea, by a ‘private vessels against another vessel, or by the mutinous crew or, passengers against their own vessel. Geneva Convention of 1958 on the Law of the sea, has codified the law relating to Piracy.- It has given , an extensive definition and Articles 100 to 107, deal with scope, jurisdiction & suppression of Piracy, A pirate is considered as an outlaw, a 'Hostis Humani Generis'. The pirate loses the protection of his home State. Piracy is an International crime. Generally, it is a private vessel that can commit piracy. (Art, 16 of the convention on the High Seas) 'Motive'- It is not necessary that the pirate should have the intent to plunder (Animus furandi). It was decided in the leading case; 'In re piracy jure getium' that actual robbery was not an essential element. Even frustrated attempt was declared as piratical in nature. Hence, 'the motive may be other than making profit e.g., Revenge. ii) If the crew or the passengers revolt on the open sea and convert the vessel and her goods to their own use, they are guilty of piracy. If the crew resort to murdering the master because of his cruelty, it is not piracy but only murder. If the purpose is to convert the ship and the goods to their own use, it would be piracy, iii) If a person stops a vessel for taking a rich passenger off the vessel with -a view to get high ransom, or if a person stops a vessel to kill certain persons on board the ship, the act is piratical. iv) The crew is guilty of piracy when they force the master through intimidation or force to steer the vessel to other place than its destination. v) Cases: (1) Case of .in re re piracy jure Gentium ; In 1931, two Chinese junks pursued & fired at a Chinese Vessel. During the chase the attackers were captured by the English ship which brought them to Hong Kong & tried for murder. There was no actual robbery. The Privy Council held that 'actual robbery1 was .not essential for piracy. They were held guilty of piracy. The court also referred to The Magellan “Pirates Case where it had been held that robbery was not essential. (2) In Ambrose Light Case, the U.S. Supreme Court held that an armed vessel without State authority was a pirate even though no act of robbery is committed. (3) Hauscar's Case : There was a rebellion in Peru. The insurgents put Huascar, an ironclad vessel, stopped British steamers, took coal from them without paying for it and forcibly took two officials. It was decided that the act was piracy.
  • 28.
    (4) Santa MariaIncident (1961) : Political opponents on board a Portuguese vessel, seized it. It was taken to Brazil. Brazil gave Azylum to them. Vessel later returned to Portugal. Are they, pirates? Perhaps, not. vi) Jurisdiction: National courts have jurisdiction to punish pirates. As piracy is an International crime any maritime State has, by customary International Law, the right to punish. The vessels of any Nation may attack and seize them on the High Seas and. bring for trial and punishment. The punishment may be capital. The ship and the cargo may be returned to the real owner.Recent developments Since 1990. The number of pirate attacks has increased. The International Maritime Bureau (IMB), says in 2003 there were 445 reported attacks against ships. Somali pirates in December 2011 released an Italian-owned Aframax oil tanker after receiving an $11.5m payment. Recently, The Savina Caylyn was seized in February 2011. Pirates have hijacked a Greek- owned oil tanker carrying 135,000 tonnes of crude oil in the Arabian Sea, : l Britain and other EU countries are considering air strikes on logistical hubs The United Nations Convention on the Law of the Sea (UNCLOS). , is the key international legal instruments governing sovereign rights at sea and the use of the maritime environment. With few exceptions, all other littoral states have accepted UNCLOS. The U.S. has not ratified this even in2011. CHAPTER - 9 AMBASSADORS Institution of Legation: Ambassadors.. i) History -The institution of Legation started first and religious Ambassadors were sent to start with. Later for political purposes Ambassadors were the institution of Legation started first and religious Ambassadors were sent to start with. Later for political purposes Ambassadors were sent on a temporary basis. Eg.: to conclude peace; Permanent legation was initiated by Venice. It sent permanent Ambassadors to France, Switzerland, and Germany etc. in the 15th century. It then became an established institution. All sovereign States are having permanent offices called diplomatic enclaves. Legation is a sovereign attribute of the State. An ambassador position is not based on representation is Omni -modae which means representation with all powers like the Sovereign or Crown. His authority is limited. ii) Appointment:
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    Ambassadors are appointedby one Head of State, to another Head of State. Before appointment, States consult the receiving State, as to whether the individual is persona grata or non-grata, (Person acceptable or not). A letter of exequatur is given to Ambassadors which states his appointment, authority and powers. iii) Functions: a) Negotiation, (b) Observation, (c) Reporting (d) Miscellaneous. a) Negotiation: He is the mouth-piece and the representative of his State. He can negotiate on behalf of the State,. Collect the view-points, and enter into treaty conclude peace etc. b) Observation: He must come in contact with State Officials, V.I.P.s., business magnates etc. He should attend social and other gatherings. He must work with a 'serpent's ear and eagle's eye'. He must collect all relevant information relating to the State. c) Reporting: Reporting to his Country of all information gathered by him, is his essential duty. He must keep his country informed of all political and other developments taking place in the receiving State. d) Miscellaneous: He must keep in touch with his people who are residing in the receiving State. He must protect their interests. , He officiates in marriages, keeps records of births and deaths etc, Classes of Ambassadors: The classification was made at the .Congress of Vienna in 1815, in which the order of merit was placed as the criterion for classification. Special honours are due to each class. a) Ambassadors. b) Plenipotentiaries. c) Ministers Resident. d) Charge de affaires. The Ambassador is entitled to be addressed as 'Your Excellency'. The Plenipotentiary may, by courtesy, be called 'Your Excellency'. Minister resident is not addressed like that. Charge de affairs are sent by one foreign office to another foreign office. He is never addressed as your Excellency. v) Privileges and Immunities of Ambassadors: Privileges and immunities are special rights of Ambassadors built on reciprocal basis through International custom and treaties.
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    The very factthat Ambassadors are saddled with multifarious functions and responsibilities shows that in effect, they must have certain privileges and immunities, for the due discharge of their functions & responsibilities. The objective is to provide an independent & free atmosphere to discharge their functions effectively, with dignity & honour. Codfication : The Vienna Convention on Diplomatic Relations 1961 has codified the customary law relating to Ambassadors and of their privileges & immunities. a) Exterritoriality: Under the legal fiction even though physically an Ambassador and his diplomatic enclave are inside the receiving State, they are considered to be legally outside the territory of the receiving State. Ambassador is beyond the jurisdiction of local authority. The police have no jurisdiction over the diplomatic enclave. Similarly civil and criminal courts have no jurisdiction on the contrary the receiving state is under a duty to protect the person of the Ambassador and of his retinue. Further, the building, records, his equipment, should also be protected against any possible strike and invasion, civil disturbance etc. Further, the local administrative authorities have no jurisdiction over the enclave. Postal bags are to be protected. They are not to be tampered. Administrative authorities have no jurisdiction over the enclave. Postal bags are to be protected. They are not to be tampered. h) Immunity from Criminal Jurisdiction': An Ambassador is beyond the jurisdiction of the Criminal Courts in receiving State. The Portuguese Ambassador Mendoza, had attempted to dethrone Queen Elizabeth in 1584 in England. Gentili, a great jurist was consulted. He declared that Ambassadors were immune & that they should not be arrested, or tried or punished at all. Thereupon, the Queen requested Mandoza, 'His Excellency', to leave the country. De Boss, an Ambassador in England attempted against the life of Cromwell. He was asked to leave the Country within 24 hours. L'Auhespine attempted against the life of Queen Elizabath. He was warned. c) Immunity from Civil Jurisdiction: He is immune from the jurisdiction of the Civil Courts. He is not liable for tortuous and contractual liabilities. Immunity fro in Administrative Tribunals: He is outside the jurisdiction. Tribunals have no powers over them, e) Immunity from Taxes:
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    He is freefrom the income tax and all other local taxes of the receiving State. He may of course pay fee or charges for services done (current, water, sewage etc.). f) Rights of Subpoena: This means, he is' privileged and cannot be called to a court as a witness. Summonses should not be issued to him..., g) Right of Chapel [religious practices] within the enclave. : h) Right of Waiver Ambassador may waive his 'right and submit to the jurisdiction of the Court in cases he thinks fit. i) Right of self jurisdiction : He has jurisdiction over all the persons" inside the enclave, within certain limits. iv) Classes of Ambassadors: The classification was made at the .Congress of Vienna in 1815, in which the order of merit was placed as the criterion for classification. Special honours are due to each class. a) Ambassadors. b) Plenipotentiaries. c) Ministers Resident. d) Charge de affaires. The Ambassador is entitled to be addressed as 'Your Excellency'. The Plenipotentiary may, by courtesy, be called Your Excellency'. Minister resident is not addressed like that. Charge de affairs are sent by one foreign office to another foreign office. He is never addressed as your Excellency. v) Privileges and Immunities of Ambassadors: Privileges and immunities are special rights of Ambassadors built on reciprocal basis through International custom and treaties. The very fact that Ambassadors are saddled with multifarious functions and responsibilities shows that in effect, they must have certain privileges and immunities, for the due discharge of their functions & responsibilities. The objective is to provide an independent & free atmosphere to discharge their functions effectively, with dignity & honour. Codification: The Vienna Convention on Diplomatic Relations 1961 has codified the customary law relating to ambassadors and of their privileges & immunities. a) Exterritoriality: Under the legal fiction even though physically an Ambassador and his diplomatic enclave are inside the receiving State, they are considered to be legally outside the territory of the receiving State.
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    Ambassador is beyondthe jurisdiction of local authority. The police have no jurisdiction over the diplomatic enclave. Similarly civil and criminal courts have no jurisdiction. On the contrary, the receiving state is under a duty to protect the person of the Ambassador and of his retinue. Further, the building, records, his equipment, should also be protected against any possible strike and invasion, civil Disturbance etc. Further, the local administrative authorities have no jurisdiction over the enclave. Postal bags are to be protected. They are not to be tampered. h) Immunity from Criminal Jurisdiction': An Ambassador is beyond the jurisdiction of the Criminal Courts in receiving State. The Portuguese Ambassador Mendoza had attempted to dethrone Queen Elizabeth in 1584 in England. Gentili, a great jurist was consulted. He declared that Ambassadors were immune & that they should not be arrested, or tried or punished at all. Thereupon, the Queen requested Mandoza, 'His Excellency', to leave the country. De Boss, an Ambassador in England attempted against the life of Cromwell. He was asked to leave the Country within 24 hours. L'Auhespine attempted against the life of Queen Elizabath. He was warned. c) Immunity from Civil Jurisdiction : He is immune from the jurisdiction of the Civil Courts. He is not liable for tortious and contractual liabilities. Immunity fro in Administrative Tribunals: He is outside the jurisdiction. Tribunals have no powers over them. e) Immunity from Taxes: He is free from the income tax and all other local taxes of the receiving State. He may of course pay fee or charges for services done (current, water, sewage etc.). f) Rights of Subpoena: This means, he is' privileged and cannot be called to a court as a witness. Summonses should not be issued to him.. , , g) Right of Chapel [religious practices] within the enclave. h) Right of Waiver Ambassador may waive his 'right and submit to the jurisdiction of the Court in cases he thinks fit. i) Right of self jurisdiction : He has jurisdiction over all the persons inside the enclave, within certain limits.
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    CHAPTER-10 STEPS IN TREATYMAKING: i) Treaty defined: The Vienna Convention on the Law of Treaties 1969 codified the law relating to the Treaties, which was hitherto mostly in the customary form.' This is the authoritative text on Treaty law. A treaty is defined (Art. 2), as an agreement whereby two or more States, establish or seek to establish a relationship between themselves governed by International Law. The object of the treaty is to impose obligations on the States parties to it. i i ) Steps in Treaty-making : a) Appointment of Representatives or delegates b) Negotiation c) Draft and final draft d) Signature & exchange of instrument e) Ratification f) Reservation to Treaties g) Registration. iii) Effect of Signature: The conclusion of a treaty or convention is marked by the State- parties subscribing their signatures. The effect of such signature depends on whether the treaty is subject to ratification or not. a) If subject to ratification, signature means that the parties have agreed to the text and are willing to refer it to their States for ratification. b) If not subject to ratification, the general opinion is that the treaty is binding from the date of signature. iv) Ratification: It is the approval by the Head of State or the Govt. of the signature appended to by their delegates. It is defined as an International act whereby a State establishes on the International plane its consent to be bound by a treaty. (Art. 2: Vienna Convention); whether ratification is necessary for a treaty or not depends on the intentions of the parties. v) Rationale: The rationale (or reason) for ratification are:
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    a) State asa Sovereign must have the opportunity of examining and reviewing the treaties signed by their delegates. b) State may withdraw from the treaty if it so desires. c) The duration between signature & ratification is an opportunity to the State to follow the constitutional processes for ratification. d) The democratic principle is that the Govt. should refer to its people in Parliament or elsewhere. e) The acts of omissions can be corrected by the State Excesses may be checked. Omission may be supplied. Reservation to Treaties': A reservation is defined by the Vienna convention as an unilateral statement made by a Stale when signing, ratifying, accepting approving or acceding to a treaty, the State thereby desires to modify legal effects of certain provisions of the treaty in their -application to that State. e.g. : Reservation stipulating exemption from certain sections or modification of certain provisions, or interpretation of certain provisions. The privilege of making reservation is considered as an incident of sovereignty. b) Reservations to the Genocide Convention; The United State made certain reservations to the Genocide convention. The question was whether in a multilateral treaty such a reservation could be made. The I.C.J. held: (advisory opinion). a) That if the reservation affects the very basis or vitals of the treaty the other States may treat the reserving State as not a party at all. b) If it does not so affect hut is compatible with the objectives & principles of the treaty, then the other States may consider the reserving State as a party to the treaty. In the Vienna convention, the test of compatibility was adopted. c) Consequences: The complications caused by the reservations can be avoided. a) By making a provision in the treaty that no reservations are allowed arid b) By providing for reservation of some clauses stated in the treaty itself. Termination of Treaties. Modes: International law recognises the termination of treaties by operation of law or by act of parties. a) By mutual agreement b) By efflux of time, [when the period is fixed by the parties.]
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    c) By achievingthe objectives or the purposes of the treaty. d) Impossibility due to permanent destruction of the subject of treaty. e) By Novatio ; [ substituting a new treaty]. f) Another mode of termination is under clausula rebus sicstantibus Rebus Sic stantibus The sanctity and the binding force of International law is expressed by Anzilotti in the expression 'Pacta sunt servanda' (sanctity behind treaty). The clausula Rebus Sic Stantibus is more or less an antithesis[opposite] of the. Above concept. The clause provides that a State is freed from its treaty-obligations by reason of an essential change of circumstances under which the treaty was concluded. ii) Origin : The principle may be traced to the Canon Law (Church Law). The Roman Jurists applied it in their jus civile, for contracts. It was Gentili who introduced it into International Law, iii) Juristic Opinions: Grotius opined that a change of circumstances did not affect a promise unless it was the most patently clear that the original circumstances were part of the consideration of the Contract. Hence, a party could, repudiate. Bynkershoeck rejected the unilateral repudiation of a treaty. To Vattel, a change in those circumstances which were essential to the treaty, created to the State an opportunity to repudiate; HEFFTER" and BLUNTSCHLI, rocked in the cradle of Nationalism of the 19th century stated that if the treaty conflicted with the rights and Welfare of the people, the State might violate the treaty. Trieske went a step further and said that if the treaty is different from the actual political conditions, it may request the other party to cancel the treaty. On refusal, it may declare war to find out and prove the existence of change of circumstances. Hautefeille said that a treaty, which surrenders its land or national right was not obligatory. Bonfils said that -the very cause which gave birth to the treaty when comes to an end, the treaty gets dissolved. To Fiore, treaties which hamper the free development of the State activity were null and void. To Oppenheim self-preservation and development of the Nation were grounds to denounce treaty obligations. The International “Law Commission in Art. 62 of the Vienna Convention on the Law of Treaties stated that a fundamental change on grounds of equity & justice' would be a reason to repudiate a treaty. But it provides exception to boundary treaties, treaties imposing International obligations etc, and hence these cannot be repudiated. iv) State Practice :a) Russian Action, 1870: Treaty of Paris 1856 provided for the 'Neutralisation of Black Sea.' It restricted Russia from having troops there. Russia-repudiated
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    .this and claimedthat it was no longer bound by it for the following reasons: ( 1 ) There was combination of Danubian Principalities. There was use of iron-clad vessels .in war. Russia was rebuked by the Conference of London, but it was condoned. b) Peace Treaty 1919:- This was repudiated by Germany. Germany was condemned by the States, but was condoned. i.e.) Straits Convention of 1923: The German violation of this was condoned-by States. v) Case Law There is not a single instance wherein the Clausula has been applied. In the Serbians and Brazilian's claims case, the International Court of Justice heard on the doctrine, but did not apply it. Hence, the Clausula is not in vogue but. a State may desperately resort to it to justify its action. CHAPTER 11 EQUALITY OF STATES Equality of States. a) Concept: The origin of the doctrine of equality of States may be traced to Jus 'Naturale (Natural Law). According to it; 'A dwarf is as much a man, as a giant is.' This concept is extended to the Relationship "between stresses, by the Naturalists who hold that all States are equal in the eye of law. In fact, equality is the quality that is derived from State's International Personality. According to this doctrine, all States are equal in law, irrespective of the size, population, economic or military power, and degree of civilisation wealth, social patterns & other qualities. b) Consequences: There are four important consequences, that flow from the concept i) Every State has a right to vote and to one vote only. ii) Legally, the vote of the weakest and the smallest State is as weighty as the vote of the largest & the powerful State; i) The third consequence is 'Par in parern, npn habet irnperium' (No State can claim jurisdiction over another). Hence, although the States can sue in Foreign Country they cannot be sued unless they submit. Eg. : A suit in rem against a vessel in possession of a Foreign State is entertained. However, there is the Sovereign immunity of States, and hence, a Foreign State cannot, be sued.
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    iv) The Courtsof one State do not question the validity or legality of the official acts of another Sovereign State. Legal equality should not .be confused with political equality Politically, they are not equal. Great powers always enjoy a priority of actions. In the United Nations, there is equality in the General Assembly. Each member has only one Vote. In the Security Council, the permanent big five - U.S.A. U.K., U.S.S.R., France & China (enjoy the Veto Power. Art. 27 of the U.N. -Charter). All substantial questions require the consent of all the permanent members. A Permanent member may exercise 'Double Veto' and stampede the progress. The enforcement measure for breach of the peace and acts of aggression may be strained by the Veto Power. Subject to this, equality is a practical concept and a concomitant aspect of State personality.
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    CHAPTER 12 EXTRADITION Ch. 12i) Definition & Scope : Extradition is a process by which an accused is reconducted back to the place Where he is alleged to have committed an offence. The person should be tried only for the offence for which he has been extradited. It is based on the principles that evidence is freely available in the State where the offence is committed, and that a criminal should not go unpunished. i i ) Conditions : a) Double criminality test : The act must be an offence in both the sending and the receiving States. (Jacob Factor's Case and Eislers Case). b) Principle of Specialty: The requesting State is under a duty not to punish the fugitive for any offence -other than for which he was extradited. c) Extraditable crime: The act must be one which is extraditable according to the treaty of extradition between the parties, e.g.: Murder, cheating etc. Exception : i) Political crimes, ii) Military crimes e.g. desertion. iii) Religious offences are non-extraditable. d) The persons must be extraditable. States refuse to surrender its nationals who have taken refuge in their own Countries. Ch. 12.2. Non-extradition of political criminals. One major exception to extradition is that there would be –no extradition for political criminals, religious & military offenders. These are called as non-extraditable offences. The concept of non-extradition can be traced to the French Revolution. Persons accused of political crimes could have been extradited prior to the French Revolution. Even Grotius had commended the extradition of political criminals. Many other writers had also- written on similar lines. In 1815 the Govt. of Gibralter surrendered political criminals to 'Spain. This gave rise to great indignation among the States. In 1833 Austria, "France and Russia concluded the treaty & defined certain offences. In the same year, Belgium enacted an extradition law incorporating the non-extradition, rule. In. 1867, other States followed suit….. Attempts were made to define 'political crimes'. High treason, 'lege Majeste' and relative political crimes were broadly classified as crimes which are not extraditable.
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    The Russian project,of 1881 attempted at "defining lege majeste Clauses. A Conference was convened, but if failed to reach any conclusion.. The Swiss law of 1892 related to extradition of persons who were accused of offence having more complexities in crimes. In 1934 an attempt was made under the League for a convention to extradite persons accused of acts of political terrorism. 23 State participated. This was not ratified. Cases : (i) In 1857 Jacqulin Brothers in France attempted at a-railway explosion, to murder Napolean III & escaped to Belgium. Belgium refused to extradite them. ii) Savarkar's. Case : Savarkar, an Indian and a British subject, was being transported from U.K. to India for the purpose of his trial on a charge of high treason and murder. -He escaped when the vessel was at Marseilles. France.- But he was caught by a French policeman who in mistaken execution of his duty, handed him over to the Captain of the ship without extradition proceedings. French Govt. demanded U.K. to send him back. U.K. did not comply with this demand. This matter went to the Permanent Court of Arbitration at the- Hague. It decided in favour of U.K. in holding, that there were no rules of International law imposing in such circumstances, any obligation on a State which has in its custody a prisoner, to restore him because of a mistake committed by the foreign agent who delivered him up to that power. France failed. Savarkar could not get the benefit. Asylum Cases : Hay a de la Tarre was given Asylum as a political refugee by the Columbian Embassy in Peru. There was no provision to surrender him to the Peruvian Govt. the I.C.'J. held. He was protected. iv) In re castioni, the court refused extradition to the political refugee who had in a revolution shot and killed a member of the Govt. in. Ticinio. v) Kolsynski's Case : K & others had political opinions against Poland for-which they could be punished. They forced the ship (English) to go to England but were arrested in England. It was held that they were political refugees & hence not to be extradited to Poland. vi) Recent cases : Re Nielsen (1984); U.S. v Mccaffery(1984) Belgium Govt. v Post Lethwaite (1987) (1984) Belgium Govt. v Post Lethwaite (1987)
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    CHAPTER 13 SCHOOLS Schools ofInternational Law. It is said "Grotians stand midway between Positivists & Naturalists The three schools are : Positivist's School. Naturalist's School and Grotian's School. Positivists': England is the cradle of positivism. The most impressive & historically prominent among positivists is Bynkershoeck the founder of this school. The main line of approach of the positivists is that rules of International "Law are, in the final analysis, the same as positive municipal law, because' of the 'Will' or the common consent of the States to follow them. The State is a metaphysical entity and hence it has a 'Will'. The States have accepted International Law by auto limitation, without this consent rules of International law are not binding. In respect of International Custom, this school holds the, view, that there is tacit consent and hence are binding. Zouche : Opined that outside positive law there was no International Law Moser : He deliberately ignored the Law of Nature & declared the omnipotence of positive Law of Nations, Martens : The rules of International Law were, to him, positive rules & to ascertain these the special relationship between Nations must be noted. Zorn : To him International Law was a branch of Municipal law & on that ground binding. Treipel, holds the same view. Anzilotti : is the outstanding positivist of recent years. He traced the binding force of International law to 'Pacta Suut Servandar. Naturalists: This school is diametrically opposed to positivist’s school. Briefly stated it holds the view that Natural law is the basis of law arid so of International Law. It does not recognise treaties & customs as based on consent but says that they are part of Natural Law. Natural Law means the law of reason. Pufendorf : is the founder and the Champion of this school of thought. He opined that there was no law among Nations, except the Law of nature. He is not a denier of International Law. To him Natural law is a legal order superimposed on men & Nations by a higher power.
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    Equality among Nationsis a concept derived from Law of Nature. 'A dwarf is as much a man as' a giant is' he argues. Vattel strongly supported the Law of Nature and claimed that as States are composed of men & as the policies are determined by men these men are subject to the Law of nature. Zouche, opined that customary Law of Nations was purely founded on Natural Law. Influence: The Law of Nature has had a tremendous beneficent influence on the development of International Law. Some of the covenants like (i) the covenant on Economic, Social & ultural rights and (ii) Covenant on Civil & Political rights (1966) Universal Declaration of Human Rights 1948 etc. have their origin in the Law of Nature. Grotians : It is said that Grotians stand -midway between Positivists and, Naturalists. Grotius started with the Law of Nature and selected such rules which were eternal and unchangeable having their origin in the Natural Law. Certain principles of conduct accepted by the States in the form of treaties & customs were voluntary Law of Nations. His'-'method of secularisation with his brilliant expositions mainly bused on jus naturale and coordinating that with voluntary law of Nations, placed him at the highest pedestal as the Father of the Law of Nations. His followers Zouche "and Vattel commended the writings of Grotius: besides contributing heavily to the Law of Nations. CHAPTER 14 NATIONALITY. Nationality. i) Definition: 'Nationality is the principal link between the Individual and the benefits of International Law' (Oppenheim). In practical terms it is a continuing legal relationship between the Sovereign State and its citizens. The basis of his Nationality is his allegiance and membership of the Sovereign State. It gives him the political status as a 'National' of his State. It is the Municipal Law of each State that determines who are its .Nationals. Hence Nationality Law is made by the States themselves. This is not the concern of International Law. ii) Importance: a) The right to diplomatic protection abroad is an essential attribute of Nationality of the individual. Every State has a right to protect its Nationals 85 property abroad. (Calvin's Case) b) Enemy status is determined during war, on the basis of Nationality.
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    c) A Statemay refuse to extradite its own Nationals. iii) Acquisition: a) Jus soli-place of birth. b) Jus Sanguinis (Parentage) c) By Naturalization or d) Registration. e) By acquisition of territory by a State and conferring Nationality on the inhabitants thereof. Each St at e ha s provided in it s Nationality Law the procedure into acquire Nationality. According to the I .C. J. t her e must be a 'genuine link' between the individual and the St at e. The leading case is Nottehohm's Case : decided by the I.C.J.The question was whether Nottebohm was a National of Liechtenstein ? If so he could get protection of his property in Gautemala. The I.C.J. held that there must be a 'genuine link', between the individual & the State. Nottebohm a German, was resident in Gautemala. He acquired the Nationality of Liechstenstein (without observing the requirements of residence etc.) and took oath of allegiance. In 1943, his property in Gautemala was taken over under War measures. Nattebohm was refused admission to Gautemala. Hence, he went to Liechstestein which instituted proceedings against Gautemala, to give protection to the property of Nottebohm in Gautemala. The I.C.J. held that there must be a 'genuine link' between Nottebohm & Liechstestein, but, there was no such link. Hence, it rejected Liechstestein's claim. Double Nationality: As the Nationality laws of different States are different, conflicts may arise. Hence, in a State where both Jus Soli and Jus Sangauinis are recognised, a child born there may acquire two nationalities. A child born of German Parents in India, acquires Indian Nationality by birth and German Nationality by parentage. Similarly, a woman marrying a person of another State may acquire Double Nationality. The Hague .Convention of 1930, on the conflict of Nationality Laws provided for treating a person who had double nationality as one who has only one Nationality. The U.N. has made provisions relating to the mitigation of the artificial link. Married woman may retain their pre- marriage nationality. Statelessness: This is a peculiar condition recognised by both the municipal law and International law. The Universal Declaration of Human Rights provided that everyone has a right to Nationality, and that no one should be arbitrarily deprived of his Nationality. Statelessness may arise by :-
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    1, Change ofsovereignty over territory or 2. Denationalisation by States. The consequences are grave. There will be a great hardship and insecurity to the Stateless person as there will be no State to protect him and of his interests. International Law has provided for certain remedies:-Imposing duties on States to regard Nationality as acquired. a) Making States oblige in not passing denationalisation laws. b) Granting of Nationality by Liberal-minded States. c) Reliefs provided for in the Geneva Convention 1954. d) International Refugee Organisation has to a large extent solved this problem. THANK YOU……… THE END