Pil Unit III Notes

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PIL UNIT-III Notes
Llb 3 years (Karnataka State Law University)
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STUDY MATERIAL FOR INTERNAL

CIRCULATION
COURSE & SEMESTER: 5 YEAR B.A., LL.B. VII SEMESTER
SUBJECT: PUBLIC INTERNATIONAL LAW
UNIT-III
Prepared By
Ms. Sahana Florence
Asst. Prof.
BMSCL
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Unit-III
State Jurisdiction: Law of the Sea; State Responsibility; Succession to rights and
obligations.
STATE JURISDICTION
Definition
State jurisdiction is the capacity of a State under International Law to prescribe the rules of
law, enforce the prescribed rules of law and to adjudicate. State Jurisdiction, also means that a
state court has the right to make a legally binding decision that affects the parties involved in
the case. It is derived from State sovereignty and constitutes its vital and central feature. It is
the authority of a State over persons, property and events which are primarily within its
territories.
Scope and Extent of State Jurisdiction
State jurisdiction may extend beyond its territory over persons and things which have a national
link. There are grounds or principles upon which the State can assert its jurisdiction within and
beyond its boundaries. Nevertheless, there are certain persons, property and events within a
State territory which are immune from its jurisdiction.
Types of State Jurisdiction
It is of three types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction.
1. Legislative jurisdiction
Legislative jurisdiction is the capacity of a State to prescribe rules of law. A State has
the supremacy to make binding laws within its territory. It has legislative exclusivity in
many areas. This supremacy is entrusted to constitutionally recognized organs.
Although legislation is primarily enforceable within a state territory, it may extend
beyond its territory in certain circumstances. International Law, for example, accepts
that a State may levy taxes against persons not within its territory as long as there is a
real link between the State and the proposed taxpayer, whether it is nationality or
domicile. The legislative supremacy of a State within its territory is well established in
International Law. However, this supremacy may be challenged in cases where a State
adopts laws that are contrary to the rules of International Law. In such cases, a State
will be liable for breach of International Law. A State may also be liable for breach of
International Law if it abuses its rights to legislate for its nationals abroad.
2. Executive Jurisdiction
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It is the capacity of a State to act and to enforce its laws within its territory. Generally,
since States are independent of each other and possess territorial sovereignty, they have
no authority to carry out their functions on foreign territory. No state has the authority
to infringe the territorial sovereignty of another State. In this sense, a State cannot
enforce its laws upon foreign territory without the consent of the host State; otherwise
it will be liable for breach of International Law.
3. Judicial Jurisdiction
It is the capacity of the courts of a State to try legal cases. A State has an exclusive
authority to create courts and assign their jurisdiction, and to lay down the procedures
to be followed. However, in doing so, it cannot by any means alter the way in which
foreign courts operate. There are a number of principles upon which the courts of a
State can claim jurisdiction. In civil matters, the principles range from the mere
presence of the defendant in the territory of a State to the nationality and domicile
principles. In criminal matters, they range from territorial principle to universality
principle.
Principles of Jurisdiction
Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far wider
grounds than has been the case in criminal matters. As far as criminal jurisdiction is concerned,
the grounds or principles of jurisdiction mostly invoked by States are as follows.
1. The Territorial Principle

This principle is derived from the concept of State sovereignty. It means that a State
has the primary jurisdiction over all events taking place in its territory regardless of the
nationality of the person responsible. It is the dominant ground of jurisdiction in
International Law. All other State must respect the supremacy of the State over its
territory, and consequently must not interfere in its internal affairs or in its territorial
jurisdiction. The territorial jurisdiction of State extends over its land, its national
airspace, its internal water, its territorial sea, its national aircrafts, and its national
vessels. It encompasses not only crimes committed on its territory but also crimes that
have effects within its territory. In such a case a concurrent jurisdiction occurs, a
subjective territorial jurisdiction may be exercised by the State in whose territory the
crime was committed, and an objective territorial jurisdiction may be exercised by the
State in whose territory the crime had its effect.
Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A
State is free to confer upon other States the right to exercise certain jurisdiction within
its national territory. States are free to arrange the right of each one to exercise certain
jurisdiction within each national territory. The most significant recent examples of such
arrangements are:
The 1991 France-United Kingdom Protocol Concerning Frontier Control and Policing,
under which the frontier control laws and regulations of each State are applicable and
may be enforced by its officers in the control zones of the other;
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The 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are
applicable to Israeli nationals and the activities involving only them in the specified
areas under Jordan’s sovereignty, and measures can be taken in the areas by Israel to
enforce such laws.
2. The Nationality Principle

The nationality principle implies that a State jurisdiction extends to its nationals and
actions they take beyond its territory. It is based upon the notion that the link between
the State and its nationals is a personal one independent of location. Criminal
jurisdiction based on the nationality principle is universally accepted. While civil law
countries make extensive use of it, the Common Law countries use it with respect to
major crimes such as murder and treason. The Common Law countries, however, do
not challenge the extensive use of this principle by other countries.
A State may prosecute its nationals for crimes committed anywhere in the world; the
ground of this jurisdiction is known as active nationality principle. Also, it may claim
jurisdiction for crimes committed by aliens against their nationals abroad; the ground
of this jurisdiction is known as passive national principle.
This last principle has been viewed as much weaker than the territorial or active
nationality principle as a basis for jurisdiction. It has been considered as a secondary
basis for jurisdiction, and a matter of considerable controversy among States. However,
in recent years this principle has come to be much acceptable by the international
community in the sphere of terrorist and other internationally condemned crimes.
3. The Protective Principle
The protective principle implies that a State may exercise jurisdiction over an alien who
commits an act outside its territory, which is deemed prejudicial to its security and
interests. It is universally accepted, although there are uncertainties as to its practical
extent, particularly as regard to the acts which may come within its domain. It is
justified on the basis of protection of State’s vital interests, particularly when the alien
commits an offence prejudicial to the State, which is not punishable under the law of
the country where he resides and extradition is refused. Although the protective
principle is used as a secondary basis for jurisdiction and in a narrower sense than the
territorial or the nationality principle, it can easily be abused, particularly in order to
undermine the jurisdiction of other States.
In practice however, this principle is applied in those cases where the acts of the person
which take place abroad constitute crimes against the sovereignty of the State, such as
plots to overthrow a government, treason, espionage, forging a currency, economic
crimes and breaking immigration laws and regulations.
This principle is often used in treaties providing for multiple jurisdictional grounds with
regard to specific crimes, such as the 1979 Hostage Convention and the 1970 Hague
Aircraft Hijacking Convention.
4. Passive personality principle
This is a situation where the accused will be prosecuted in the country of the nationality
of the victim.
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5. The Universality Principle

The universality principle, in its broad sense, implies that a State can claim jurisdiction
over certain crimes committed by any person anywhere in the world, without any
required connection to territory, nationality or special State interest.
Before the Second World War, such universal jurisdiction has been considered as
contrary to International Law by the Common Law countries, except for acts regarded
as crimes in all countries, and crimes against international community as a whole such
as piracy and slave trade.
After the Second World War, universal jurisdiction has been universally recognized
over certain acts considered as international crimes. International crimes are those
committed against the international community as a whole or in violation of
International Law and punishable under it, such as war crimes, crimes against peace
and crimes against Humanity. In recent years, crimes such as Hijacking of aircraft,
violation of human rights and terrorism, have been added to the list of international
crimes currently, under the universality principle, each State and every State has
jurisdiction over any of the international crimes committed by anyone anywhere.
Limits in the Exercise of Jurisdiction. (Exemption from state jurisdiction)
Customary international law has provided that a state should not exercise its jurisdiction in
certain case where exercising jurisdiction would be unreasonable. Such reasonability is based
on certain factors, i.e. link of the activity to the regulating state, foreseeable effects in the state
and the extent to which the regulations is consistent with the practice of the international
system.
Immunity of the Sovereign
Immunity of the sovereign under international law is the immunity a foreign state enjoys from
the jurisdiction of the forum. The rationale for this immunity is the need not to degrade the
dignity of the foreign nation, its organs and representative and to leave them unconstrained in
pursuing their mission.
This immunity can operate in two ways:
i. As a bar to jurisdiction. The jurisdiction of the forum is barred; the state of the forum
would exercise jurisdiction but for the immunity.
ii. By making the subject matter non-justifiable or inadmissible.
The state of the forum has no jurisdiction; the jurisdiction never existed. In Buck V. A.-G the
Court of Appeal refused to declare whether or not the Constitution of Sierra Leone as created
by Order in Council of independence was valid. The reason given was the non-existent of
jurisdiction, a corollary of sovereign immunity.
Immunity is based on two principles:
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a. Par in parem non habet jurisdictionem: legal persons of equal standing cannot have disputes
settled in the courts of one of them. This principle brings out the element of pleading immunity
by reason of the status of the defendant, that is, immunity atione personae
b. Non-intervention in the internal affairs of other states. The nature of the subject matter will
lead a municipal court to hold that it has no jurisdiction. This immunity affects essential
competence of the local courts in relation to the subject matter, that is, immunity ratione
materiae.
The Extent of Sovereign Immunity
State activity in the commercial sector has led courts such as those in Belgium and Italy to
differentiate between acts of government (jure imperii) and acts of a commercial nature (jure
gestionis). Immunity is availed with respect to the former but not the latter. This is the doctrine
of restrictive immunity.
There are several ways in which this doctrine finds application. These are:
i. As has been stated by differentiating between jure imperii and jure gestionis.
The municipal court will make the distinction based on whether there is a key transaction
which has been accomplished by way of a private law relationship for example a contract. This
criterion without further input is unsatisfactory when applied to a contract of employment
where the employee has been recruited to perform particular functions in the exercise of
governmental authority. Applying this criterion it would mean that this contract of employment
is jure gestionis.
ii.By municipal legislation Under this method, immunity is provided as a general rule and
further provision is made for exceptions. This method has been adopted by United Kingdom.
iii. By treaty.
This has been done through the United Nations Convention on Jurisdictional Immunities of
States and their Property, 2004. This treaty has been ratified by 32 states as at 28/10/2013.
Kenya is not a signatory to this treaty. This convention generally denies a foreign state the right
to invoke immunity with respect to commercial transactions, contracts of employment,
pecuniary compensation for personal injuries and damage to property. It however provides for
exceptions, one of them being by agreement. Article 11 (1) provides that unless otherwise
agreed between the states concerned, a state cannot invoke immunity from the jurisdiction
before a court of another state which is otherwise competent in a proceeding which relates to a
contract of employment between the state and an individual for work performed or to be
performed, in whole or in part, in the territory of that other State. Paragraph 2 of this Article
details the exceptions to paragraph 1. For instance, Paragraph 1 does not apply where the
employee has been recruited to perform particular functions in the exercise of governmental
authority. iv. By waiver.
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Immunity can be waived expressly or by conduct. Examples of waivers include prior contract,
through a treaty, diplomatic communication, and actual submission to the proceedings of the
local court.
The fact that a state has waived its immunity from the jurisdiction of the forum does not
necessarily mean that that state has waived its immunity to execution. This position is reflected
in Article 19 of United Nations Convention on Jurisdictional Immunities of States and their
Property, 2004. Under this Article property used or intended to be used by the state for
government non-commercial purposes cannot be attached. Article 21 gives the categories of
properties that cannot be subject to execution. One of the categories is a bank account used or
intended to be used in the performance of the functions of the diplomatic mission of the state
or its consular posts.
LAW OF SEA
Introduction
The seas have historically performed two important functions: first, as a medium of
communication, and secondly as a vast reservoir of resources, both living and non-living. Both
of these functions have stimulated the development of legal rules. The fundamental principle
governing the law of the sea is that ‘the land dominates the sea’ so that the land territorial
situation constitutes the starting point for the determination of the maritime rights of a coastal
state.
A series of conferences have been held, which led to the four 1958 Conventions on the Law
of the Sea and then to the 1982 Convention on the Law of the Sea.5 The 1958 Convention on
the High Seas was stated in its preamble to be ‘generally declaratory of established principles
of international law’, while the other three 1958 instruments can be generally accepted as
containing both reiterations of existing rules and new rules. The pressures leading to the Law
of the Sea Conference, which lasted between 1974 and 1982 and involved a very wide range
of states and international organizations, included a variety of economic, political and strategic
factors. Many Third World states wished to develop the exclusive economic zone idea, by
which coastal states would have extensive rights over a 200-mile zone beyond the territorial
sea, and were keen to establish international control over the deep seabed, so as to prevent the
technologically advanced states from being able to extract minerals from this vital and vast
source freely and without political constraint.
Western states were desirous of protecting their navigation routes by opposing any weakening
of the freedom of passage through international straits particularly, and wished to protect their
economic interests through free exploitation of the resources of the high seas and the deep
seabed. Other states and groups of states sought protection of their particular interests.
Examples here would include the landlocked and geographically disadvantaged states,
archipelagic states and coastal states. The effect of this kaleidoscopic range of interests was
very marked and led to the ‘package deal’ concept of the final draft. According to this approach,
for example, the Third World accepted passage through straits and enhanced continental shelf
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rights beyond the 200-mile limit from the coasts in return for the internationalization of deep
sea mining.
The entire sea is divided into territorial sea, contiguous sea continental shelf, EEZ and high
sea.
1. TERRITORIAL SEA
The Territorial Sea is an area extending from internal waters to the seaward side. The coastal
state enjoys its sovereignty over the area subject to the right of the ships of other states to
engage in innocent passage. According to the 1958 Convention, the breath of territorial sea has
not been stated how far from the baseline it is measured, but it could be inferred from the
breadth of the contiguous zone which was established in article 24, paragraph 2 that the
territorial sea can not exceed 12 nautical miles from the baseline. It means that the territorial
sea and contiguous zone under this convention are the same area. However, article 3 of 1982
United Nations Convention clearly defined, every state has the rights to establish the breadth
of its territorial sea up to the limit not exceeding 12 nautical miles, measured from baseline
determined in accordance with the convention, and the outer limit of the territorial sea is the
line every point of which is at the distance from the nearest point of the baseline equal to the
breadth of the territorial sea.
Internal waters
Internal waters are deemed to be such parts of the seas as are not either the high seas or relevant
zones or the territorial sea, and are accordingly classed as appertaining to the land territory of
the coastal state. Internal waters, whether harbors, lakes or rivers, are such waters as are to be
found on the landward side of the baselines from which the width of the territorial and other
zones is measured,13 and are assimilated with the territory of the state. They differ from the
territorial sea primarily in that there does not exist any right of innocent passage from which
the shipping of other states may benefit. There is an exception to this rule where the straight
baselines enclose as internal waters what had been territorial waters. In general, a coastal state
may exercise its jurisdiction over foreign ships within its internal waters to enforce its laws,
although the judicial authorities of the flag state (i.e. the state whose flag the particular ship
flies) may also act where crimes have occurred on board ship. This concurrent jurisdiction may
be seen in two cases.
A merchant ship in a foreign port or in foreign internal waters is automatically subject to the
local jurisdiction (unless there is an express agreement to the contrary), although where purely
disciplinarian issues related to the ship’s crew are involved, which do not concern the
maintenance of peace within the territory of the coastal state, then such matters would by
courtesy be left to the authorities of the flag state to regulate. Although some writers have
pointed to theoretical differences between the common law and French approaches, in practice
the same fundamental proposition applies.
However, a completely different situation operates where the foreign vessel involved is a
warship. In such cases, the authorization of the captain or of the flag state is necessary before
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the coastal state may exercise its jurisdiction over the ship and its crew. This is due to the status
of the warship as a direct arm of the sovereign of the flag state.
Baselines
The width of the territorial sea is defined from the low-water mark around the coasts of the
state. This is the traditional principle under customary international law and was reiterated in
article 3 of the Geneva Convention on the Territorial Sea and the Contiguous Zone in 1958 and
article 5 of the 1982 Convention, and the low-water line along the coast is defined ‘as marked
on large-scale charts officially recognized by the coastal state’. In the majority of cases, it will
not be very difficult to locate the low water line which is to act as the baseline for measuring
the width of the territorial sea.
By virtue of the 1958 Convention on the Territorial Sea and the 1982 Law of the Sea
Convention, the low-water line of a low-tide elevation may now be used as a baseline for
measuring the breadth of the territorial sea if it is situated wholly or partly within the the
territorial sea measured from the mainland or an island. However, a low-tide elevation wholly
situated beyond the territorial sea will generate no territorial sea of its own. When a low-tide
elevation is situated in the overlapping area of the territorial sea of two states, both are in
principle entitled to use this as part of the relevant low-water line in measuring their respective
territorial sea. However, the International Court has taken the view that low-tide elevations
may not be regarded as part of the territory of the state concerned and thus cannot be fully
assimilated with islands. A low-tide elevation with a lighthouse or similar installation built
upon it may be used for the purpose of drawing a straight baseline. Sometimes, however, the
geography of the state’s coasts will be such as to cause certain problems: for instance, where
the coastline is deeply indented or there are numerous islands running parallel to the coasts, or
where there exist bays cutting into the coastlines. Special rules have evolved to deal with this
issue, which is of importance to coastal states, particularly where foreign vessels regularly fish
close to the limits of the territorial sea. A more rational method of drawing baselines might
have the effect of enclosing larger areas of the sea within the state’s internal waters, and thus
extend the boundaries of the territorial sea further than the traditional method might envisage.
The width of the territorial sea
There has historically been considerable disagreement as to how far the territorial sea may
extend from the baselines. Originally, the ‘cannon shot’ rule defined the width required in terms
of the range of shore-based artillery, but at the turn of the nineteenth century, this was
transmuted into the 3-mile rule. This was especially supported by the United States and the
United Kingdom, and any detraction had to be justified by virtue of historic rights and general
acquiescence as, for example, the Scandinavian claim to 4 miles. However, the issue was much
confused by the claims of many coastal states to exercise certain jurisdictional rights for
particular purposes: for example, fisheries, customs and immigration controls. It was not until
after the First World War that a clear distinction was made between claims to enlarge the width
of the territorial sea and claims over particular zones.
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The 3-mile rule has been discarded as a rule of general application to be superseded by
contending assertions. The 1958 Geneva Convention on the Territorial Sea did not include an
article on the subject because of disagreements among the states, while the 1960 Geneva
Conference failed to accept a United States–Canadian proposal for a 6-mile territorial sea
coupled with an exclusive fisheries zone for a further 6 miles by only one vote. Article 3 of the
1982 Convention, however, notes that all states have the right to establish the breadth of the
territorial sea up to a limit not exceeding 12 nautical miles from the baselines. This clearly
accords with the evolving practice of states.78 The UK adopted a 12-mile limit in the Territorial
Sea Act 1987, for instance, as did the US by virtue of Proclamation No. 5928 in December
1988.
The Juridical Nature of the Territorial Sea
The territorial sea appertains to the territorial sovereignty of the coastal state and thus belongs
to it automatically. There have been a number of theories as to the precise legal character of
the territorial sea of the coastal state, ranging from treating the territorial sea as part of the res
communis, but subject to certain rights exercisable by the coastal state, to regarding the
territorial sea as part of the coastal state’s territorial domain subject to a right of innocent
passage by foreign vessels.82 Nevertheless, it cannot be disputed that the coastal state enjoys
sovereign rights over its maritime belt and extensive jurisdictional control, having regard to the
relevant rules of international law. The fundamental restriction upon the sovereignty of the
coastal state is the right of other nations to innocent passage through the territorial sea, and this
distinguishes the territorial sea from the internal waters of the state, which are fully within the
unrestricted jurisdiction of the coastal nation. Articles 1 and 2 of the Convention on the
Territorial Sea, 1958 provide that the coastal state’s sovereignty extends over its territorial sea
and to the airspace and seabed and subsoil thereof, subject to the provisions of the Convention
and of international law. The territorial sea forms an undeniable part of the land territory to
which it is bound, so that a cession of land will automatically include any band of territorial
waters.
The coastal state may, if it so desires, exclude foreign nationals and vessels from fishing within
its territorial sea and (subject to agreements to the contrary) from coastal trading (known as
sabotage), and reserve these activities for its own citizens. Similarly the coastal state has
extensive powers of control relating to, amongst others, security and customs matters. It should
be noted, however, that how far a state chooses to exercise the jurisdiction and sovereignty to
which it may lay claim under the principles of international law will depend upon the terms of
its own municipal legislation, and some states will not wish to take advantage of the full extent
of the powers permitted them within the international legal system.
The right of innocent passage
The right of foreign merchant ships (as distinct from warships) to pass unhindered through the
territorial sea of a coast has long been an accepted principle in customary international law, the
sovereignty of the coast state notwithstanding. However, the precise extent of the doctrine is
blurred and open to contrary interpretation, particularly with respect to the requirement that the
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passage must be ‘innocent’. Article 17 of the 1982 Convention lays down the following
principle: ‘ships of all states, whether coastal or land-locked, enjoy the right of innocent
passage through the territorial sea’. The doctrine was elaborated in article 14 of the Convention
on the Territorial Sea, 1958, which emphasized that the coastal state must not hamper innocent
passage and must publicise any dangers to navigation in the territorial sea of which it is aware.
Passage is defined as navigation through the territorial sea for the purpose of crossing that sea
without Entering internal waters or of proceeding to or from that sea without entering internal
waters or of proceeding to or from internal waters. It may include temporary stoppages, but
only if they are incidental to ordinary navigation or necessitated by distress or force majeure.
The coastal state may not impose charges for such passage unless they are in payment for
specific services,88 and ships engaged in passage are required to comply with the coastal state’s
regulations covering, for example, navigation in so far as they are consistent with international
law. Passage ceases to be innocent under article 14(4) of the 1958 Convention where it is
‘prejudicial to the peace, good order or security of the coastal state’ and in the case of foreign
fishing vessels when they do not observe such laws and regulations as the coastal state may
make and publish to prevent these ships from fishing in the territorial sea. In addition,
submarines must navigate on the surface and show their flag. Where passage is not innocent,
the coastal state may take steps to prevent it in its territorial sea and, where ships are proceeding
to internal waters, it may act to forestall any breach of the conditions to which admission of
such ships to internal waters is subject.
Coastal states have the power temporarily to suspend innocent passage of foreign vessels where
it is essential for security reasons, provided such suspension has been published and provided
it does not cover international straits. Article 19(2) of the 1982 Convention has developed the
notion of innocent passage contained in article 14(4) of the 1958 Convention by the provision
of examples of prejudicial passage such as the threat or use of force; weapons practice; spying;
propaganda; breach of customs, fiscal, immigration or sanitary regulations; willful and serious
pollution; fishing; researcher survey activities and interference with coastal communications
or other facilities.
Article 21(1) of the 1982 Convention, which expressly provided that the coastal state could
adopt laws and regulations concerning innocent passage with regard to:
(a) The safety of navigation and the regulation of maritime traffic;
(b) The protection of navigational aids and facilities and other facilities or installations;
(c) The protection of cables and pipelines;
(d) The conservation of the living resources of the sea;
(e) The prevention of infringement of the fisheries laws and regulations of the coastal state;
(f) The preservation of the environment of the coastal state and the prevention, reduction and
control of pollution thereof;
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(g) Marine scientific research and hydrographic surveys;
(h) The prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal state.
Jurisdiction over foreign ships
Where foreign ships are in passage through the territorial sea, the coastal state may only
exercise its criminal jurisdiction as regards the arrest of any person or the investigation of any
matter connected with a crime committed on board ship in defined situations. if the ship is
passing through the territorial sea having left the internal waters of the coastal state, then the
coastal state may act in any manner prescribed by its laws as regards arrest or investigation on
board ship and is not restricted by the terms of article 27(1).
Under article 28 of the 1982 Convention, the coastal state should not stop or divert a foreign
ship passing through its territorial sea for the purpose of exercising civil jurisdiction in relation
to a person on board ship, nor levy execution against or arrest the ship, unless obligations are
involved which were assumed by the ship itself in the course of, or for the purpose of, its
voyage through waters of the coastal state, or unless the ship is passing through the territorial
sea on its way from internal waters. The above rules do not, however, prejudice the right of a
state to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign
ship lying in the territorial sea or passing through the territorial sea after leaving internal waters.
Warships and other government ships operated for non-commercial purposes are immune from
the jurisdiction of the coastal state, although they may be required to leave the territorial sea
immediately for breach of rules governing passage and the flag state will bear international
responsibility in cases of loss or damage suffered as a result.
RIGHTS OF COSTAL STATE OVER TERRITORIAL SEA
The sovereignty of the coastal states extends to the territorial sea.
1. Absolute sovereignty over territorial sea. They have complete dominion over this part of the
sea except that of the right of innocent passage and of transit by vessels of all nations.
2. It follows from the regime of sovereignty that the coastal state has the exclusive right to
appropriate the natural products of the territorial sea, including the right of fisheries therein,
and to the resources of the sea-bed and its sub-soil namely, sedentary fisheries and non-living
resources such as hydrocarbons and minerals.
3. The coastal areas may enact laws and regulations. Especially in regard to transport and
navigation. It can also enact laws for conservation of living resources of the sea and
preservation of environment and control of pollution. Foreign ship exercising the right of
innocent passage should comply with such laws made by the coastal states.
4. Costal state has the right to take necessary steps to prevent passage which is not innocent.
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5. Costal state can suspend of rights of innocent passage temporarily in specified areas of its
sea if there is suspicion and such measure is essential for the protection.
6. If the ship/vessel causes damage due to non-compliance of law, than the costal state can
hold the flag country responsible to compensate for damages done.
RIGHTS OF OTHER STATES
It is the customary rule of International law that territorial sea is open to merchant vessels of
all the states for navigation. Such vessels have right to innocent passage through the territorial
sea of a state. Thus every State has the right to demand that in time of peace. This is a corollary
of the freedom of the open sea. This rule was incorporated in the Geneva Convention on the
Territorial Sea and Contiguous Zone of 1958 under Article 14. The same provision has been
laid down under Article 17 of the Convention of 1982.
2. CONTIGUOUS ZONE
Historically some states have claimed to exercise certain rights over particular zones of the
high seas. This has involved some diminution of the principle of the freedom of the high seas
as the jurisdiction of the coastal state has been extended into areas of the high seas contiguous
to the territorial sea, albeit for defined purposes only. Such restricted jurisdiction zones have
been established or asserted for a number of reasons: for instance, to prevent infringement of
customs, immigration or sanitary laws of the coastal state, or to conserve fishing stocks in a
particular area, or to enable the coastal state to have exclusive or principal rights to the
resources of the proclaimed zone.
In each case they enable the coastal state to protect what it regards as its vital or important
interests without having to extend the boundaries of its territorial sea further into the high seas.
It is thus a compromise between the interests of the coastal state and the interests of other
maritime nations seeking to maintain the status of the high seas, and it marks a balance of
competing claims. The extension of rights beyond the territorial sea has, however, been seen
not only in the context of preventing the infringement of particular domestic laws, but also
increasingly as a method of maintaining and developing the economic interests of the coastal
state regarding maritime resources.
Contiguous zones were clearly differentiated from claims to full sovereignty as parts of the
territorial sea, by being referred to as part of the high seas over which the coastal state may
exercise particular rights. Unlike the territorial sea, which is automatically attached to the land
territory of the state, contiguous zones have to be specifically claimed.
While sanitary and immigration laws are relatively recent additions to the rights enforceable
over zones of the high seas and may be regarded as stemming by analogy from customs
regulations, in practice they are really only justifiable since the 1958 Convention. On the other
hand, customs zones have a long history and are recognized in customary international law as
well. Many states, including the UK and the USA, have enacted legislation to enforce customs
regulations over many years, outside their territorial waters and within certain areas, in order
to suppress smuggling which appeared to thrive when faced only with territorial limits of 3 or
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4 miles.118 Contiguous zones, however, were limited to a maximum of 12 miles from the
baselines from which the territorial sea is measured. So if the coastal state already claimed a
territorial sea of 12 miles, the question of contiguous zones would not arise.
CONTINENTAL SHELF
The concept of continental shelf is mainly co-related with an exploitation of the natural
resources from the sea adjacent to the territorial sea. This was one of the important
developments after the Second World War in relation to the law of the sea was the evolution
and acceptance of the concept of the continental shelf. The President of the United States
proclaimed that the natural resources of the continental shelf were ‘beneath the high seas but
contiguous to the coasts of the United States as appertaining to the United States and subject
to its jurisdiction and control’. The continental shelf was regarded ‘as an extension of the land
mass of the coastal nation’. The main reason for this action of the United States was to reserve
for itself, the oil and mineral resources in the seabed which had become technologically
possible to drill.
Proclamation soon became the trendsetter and was immediately followed by similar unilateral
declarations by many maritime nations which laid claims of exclusive jurisdiction control or
sovereign rights over the resources of the continental shelf and associated offshore areas. These
declarations led to the formation of customary international law giving coastal States
jurisdictional rights over their shelves. These rights over the resources of the continental shelf
were universally accepted by the 1958 Geneva Convention on the Continental Shelf.
Geologically, the continental shelf may be defined as the zone around the continent extending
from the lowwater line to the depth, at which there is usually a marked increase of declivity to
a greater depth. What is commonly understood by the ‘continental shelf’ is a gently sloping
platform of submerged land surrounding the continents and islands. It is a submerged bed of
the sea, contiguous to a continental land mass, and found in such a manner as to be really an
extension of, or appurtenant to this land mass. Normally, it extends to a depth of approximately
200 meters, at which point the first substantial ‘fall off’ of the seabed occurs. At certain places,
it continues beyond a depth of 200 meters.
DEFINITION OF CONTINENTAL SHELF UNDER THE GENEVA CONVENTION

OF 1958
In 1958 Continental Shelf Convention used the term ‘continental shelf’ as referring ‘to the
seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the
territorial sea, to a depth of 200 meters or beyond that limit, to where the depth of the
superjacent waters admits of the exploitation of the natural resources of the said areas’. Thus,
the shelf has been defined in terms of ‘exploitability; and the depth of the sea. It means that if
the exploitation of the resources could be made beyond the limit of 200 meters depth, that area
could be claimed by the coastal State as its continental shelf. The requirement of the phrase
‘adjacent of the coast’ is not solely confined to the proximity, but provided the legal basis for
the coastal State to claim jurisdiction over the continental shelf.
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DEFINITION OF CONTINENTAL SHELF UNDER THE CONVENTION ON THE

LAW OF THE SEA, 1982
This Convention has defined the term continental shelf under Para I of Article 76 by stating
that the continental shelf of a coastal State comprises the seabed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from
the baselines from which the breadth of the territorial sea is measured where the outer edge of
the continental margin does not extend up to that distance.
RIGHTS OF COASTAL STATES OVER CONTINENTAL SHELF UNDER UN

CONVENTION ON THE LAW OF THE SEA, 1982
Article 77 of the Convention provides various provisions with regards to the rights of coastal
states. The coastal State enjoys limited sovereign rights over the continental shelf for the
purpose of exploring and exploiting its ‘natural resources’, and not sovereignty. These rights
are exclusive in the sense that no one can undertake these activities without the express consent
of the coastal State or make a claim to the continental shelf. They also do not depend on
occupation, effective or notional, or any express proclamation.
The ‘natural resources’ of the continental shelf consist of mineral and other non-living
resources of the seabed and sub-soil, together with living organisms which at the harvestable
stage, either are immobile on or under the seabed or are unable to move except in constant
physical contact with the seabed or subsoil.
The coastal State also has the exclusive right to authorize and regulate drilling of the sub-soil
for all purposes. [Article 81] Like the EEZ, the coastal State has the exclusive right to construct,
maintain or operate the artificial islands, installations, and structures on the shelf. [Article 80
RIGHTS OF OTHER STATES IN CONTINENTAL SHELF UNDER UN

CONVENTION ON THE LAW OF THE SEA, 1982
The Convention also gives various rights to the Other States. The rights of the coastal State
over the continental shelf do not affect the legal status of the superjacent waters or of the
airspace above those waters. The exercise of the rights of the coastal State over the continental
shelf must not infringe or result in any unjustifiable interference with navigation and other
rights and freedoms of other States as provided for in this Convention - Article 78. Also, all
States are entitled to lay submarine cables and pipeline on the continental shelf - Article 79.
The delimitation of the continental shelf between nations has generated a lot of litigation
because of its economic importance. Rules relating to delimitation are provided in Article 6 of
the 1958 Continental Shelf Convention and Article 83 of the 1982 Convention.
The delimitation of boundaries remained more contentious between the adjacent States as
opposed to the opposite States where the median line was to be followed. In the case of adjacent
States, ‘equidistance principle’ was found to be inadequate to demarcate the continental shelf,
nor did it represent the customary international law.
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CONTINENTAL SHELF AND NORTH SEA CONTINENTAL SHELF CASE
The International Court of Justice, for the first time, has the occasion to determine the adequacy
of the rule enshrined in Article 6 in the North Sea Continental Shelf case. In the two separate
cases against West Germany filed by the Netherlands and Denmark, the Court was asked to
decide about the ‘applicable’ principles and rules of international law ‘to the determination as
between the Parties of the areas of the continental shelfs in the North Sea which appertain to
each of them beyond the partial boundary.
The two cases were joined by the Court. Denmark and the Netherlands argued that the
‘equidistance/special circumstances rule’ in Art. 6 would be applied. Germany instead
proposed ‘the doctrine of the just and equitable share’. Germany’s opposition to the
‘equidistance rule’ was based on the fact that the rule, if applied on a concave coastline, such
as that of the North Sea, shared by all the three States concerned, would result into giving the
State in the middle, and in this case Germany, a smaller continental shelf than it might
otherwise obtain.
The Court rejected both these contentions and held that applying the equidistance principle will
lead to inequitable results because of the peculiar coastline of the States concerned and opined
that the notion of equidistance could not be logically be compulsorily applied in all situations.
It is not consonant with certain basic legal notions, ‘those principles being that delimitation
must be the object of agreement between the States concerned, and such agreement must be
arrived at in accordance with equitable principles.’
Thus, in following the ‘equitable principles’, the factors to be taken into account are:
 The relevant circumstances, i.e., the geographical situation of the parties and natural
configuration of the coast;
 Proportionally, i.e., the extent of the continental shelf areas appertaining to coastal State and
the length of the coast measured in the general direction of the coastline; and
 The concept of natural prolongation, i.e., the shelf is an appurtenant to the land territory.
The approach is taken by the International Court of Justice on the ‘equidistance principle’ has
been followed by the Court in Tunisia vs Libya case, the Court was asked to specify principles
and rules of international law which were applicable to the delimitation of the continental shelf
between Tunisia and Libya. They have a single continental shelf as the natural prolongation of
their land territory, and hence no principle of ‘natural prolongation’ as such could be applied.
The Court observed that since the two countries abutted on a common continental shelf, the
physical criterion was of no assistance for the purpose of delimitation. The application of the
equidistance method could not, in particular circumstances of the case, lead to an equitable
result, and in such a case, the delimitation can be effected on the basis of ‘equitable principles’,
taking into account all the relevant circumstances.
LIBYA VS MALTA CASE
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The Libya vs Malta was the first case decided by the Court a fatter signing of the 1982
Convention. Though both the States were signatories to the Convention, they agreed for the
dispute to be governed by customary international law. The Court, however, looked into the
provisions of the Convention as a rule of customary international law, and observed that ‘the
principles and rules, applicable to the delimitation of continental shelf areas are those which
are appropriate to bring about an equitable result.’ In deciding the dispute, the Court placed
great reliance on the ‘equidistance principle’. But to achieve an equitable result, it will be
necessary to first draw a line, every point of which should be equidistant from the coast of the
two opposite States concerned and then to make adjustments in the light of all the relevant
circumstances. The Court once again discounted the ‘natural prolongation’ factor propounded
in the North Sea Continental Shelf cases, which was subservient to the equitable principle.
Thus, the judicial practice has clearly established that the principle of equidistance is not an
applicable rule in all cases of delimitation between adjacent States. The ‘natural prolongation’
criterion has similarly given way to distance criterion (i.e. 200 nautical miles from the coast).
The emphasis on ‘equitable solution’ in the 1982 Convention, however, is without any
accompanying procedure to be followed to achieve it. The application of equitable principle
reduces the chances of settling boundary disputes without litigation.
3. EXCLUSIVE ECONOMIC ZONE (EEZ)
Exclusive Economic Zone (EEZ) is comparatively a concept of recent origin. The concept of
EEZ was initiated by Kenya in 1972 at the Geneva session of the UN Committee on Peaceful
uses of Sea-bed and Ocean Floor Beyond the limits of National Jurisdiction. The EEZ finally
found a place in the Convention on the Law of the Sea of 1982. Since then, it has become a
generally accepted institution of the law of the sea. In Tunisia vs Libya, it was stated that the
concept of EEZ can be regarded as a part of customary laws.
Article 55 of the United Nations Convention on the Law of the Sea – Specific legal regime of
the exclusive economic zone defined it as an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other States are governed by the
relevant provisions of this Convention.
BREADTH OF EEZ
It extends up to 200 nautical miles (equivalent to 370.4 km) from the baselines from which the
breadth of the territorial sea is measured. [Article 57] The zone is an intermediate area between
the high seas and the territorial sea with a distinct regime of its own which a State can
specifically claim. The zone comprises the area which was previously part of the high seas and
is not under the sovereignty of the coastal State.
RIGHTS OF THE COASTAL STATES OVER EEZ
In the EEZ, the Coastal States have ‘sovereign rights’ for the purpose of exploring and
exploiting, conserving and managing the natural resources, living and non-living resources of
the waters superjacent to the sea-bed and its subsoil.
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Article 56 of the United Nations Convention on the Law of the Sea – Rights, jurisdiction and
duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of
exploring and exploiting, conserving and managing the natural resources, whether living or
non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with
regard to other activities for the economic exploitation and exploration of the zone, such as the
production of energy from the water, currents and winds; (b) jurisdiction as provided for in the
relevant provisions of this Convention with regard to: (i) the establishment and use of artificial
islands, installations and structures;(ii) marine scientific research; (iii) the protection and
preservation of the marine environment; (c) other rights and duties provided for in this
Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other States
and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in
accordance with Part VI
RIGHTS OF OTHER STATES OVER EEZ
Article 56, Para 2 of the Convention of 1982 clearly lays down that the coastal states shall give
due regard to the rights and duties of other States while exercising their rights in the EEZ.
Any conflict on the unregulated uses of the EEZ between a coastal State and other States should
be resolved on the basis of equity and in the light of all the relevant circumstances. The
delimitation of the EEZ between States with opposite or adjacent coasts is to be effected ‘by
agreement on the basis of international law in order to achieve an equitable solution’. If no
agreement can be reached within a reasonable time, the States concerned may resort to the
procedures provided in the Convention.
Article 58 of the United Nations Convention on the Law of the Sea – Rights and duties of other
States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to
the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation
and overflight and of the laying of submarine cables and pipelines, and other internationally
lawful uses of the sea related to these freedoms, such as those associated with the operation of
ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of
this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive
economic zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive
economic zone, States shall have due regard to the rights and duties of the coastal State and
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shall comply with the laws and regulations adopted by the coastal State in accordance with the
provisions of this Convention and other rules of international law in so far as they are not
incompatible with this Part.
4. HIGH SEAS
The high seas denote all parts of the sea that are not included in the EEZ, territorial se or internal
waters of a State. The rule was formulated in 1609 by Grotius in his treatise mare liberium by
arguing that the sea cannot be owned. Hence, all states whether coastal or landlocked shall be
free to exercise therein the freedom of navigation, of overflight, of immersion, of fishing and
of constructing artificial islands etc.
However, the regime has been considerably changed under the Convention on the Law of the
Sea of 1982. Article 87(2) of the Convention lays down the limitation of the general nature on
the freedom of high seas by stating that the freedom of the high seas “shall be exercised with
due regard for the interests of other States in their exercise of the freedom of high seas.”
FREEDOM OF HIGH SEAS

1. Freedom of navigation
2. Freedom of fishing
3. Freedom of laying submarine cables & pipelines
4. Freedom to fly over high seas
5. Freedom of scientific research
6. Freedom of construction of Artificial Islands
General rule is that the state whose flag is flying on a vessel has complete jurisdiction over the
ship and its crew. But there are two exceptions to this:
1. Right to visit.
2. Right of hot pursuit
RIGHT TO VISIT
Generally, if a warship on high seas, encounters a foreign ship other than a ship entitled to
complete immunity, it’s not justified on boarding it except for the following grounds:
1. A ship engaged in piracy
2. A ship engaged in slave trade
3. A ship engaged in unauthorised broadcasting of flag of a state
4. A ship without nationality
5. A ship though flying on foreign flag or refusing to show its flag, in reality it is same
nationality as war ship.
RIGHT OF HOT PURSUIT

Article 111 of the convention on the law of sea 1982 provides that hot pursuit of a foreign ship
may be under taken by competent authority of the state if they have good reason to believe that
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the ship has violated laws of that state. This right ceases as soon as the ship pursued enters
territorial sea of its own state or of a third state. Pursuit will not commence until visual or
auditory signal to stop has been given at a distance which enables it to heard or seen.
STATE RESPONSIBILITY
Introduction
The law of State responsibility is the chapter of international law that concerns the breach by a
State of one or more of its international obligations. In international law, responsibility is the
corollary of obligation; every breach by a subject of international law of its international
obligations entails its international responsibility. The law of State responsibility defines when
an international obligation is to be held to have been breached, as well as the consequences of
that breach, including which States are entitled to react, and the permissible means of that
reaction.
Unlike national laws, wherein different rules often apply according to the source of the
obligation breached (e.g., contract law, tort law, criminal law), international law does not
concern itself with the source of the obligation that is breached; in principle (and unless
otherwise specifically provided) the same rules apply to the breach of an obligation whether
the source of the obligation is a treaty, customary international law, a unilateral declaration, or
the judgment of an international court.
When a duty is established by any rule of international law and such duty is breached by an act
or omission of a state, that state is held responsible for such act. Art 1on the draft articles states
that every internationally wrongful act of a state entails the international responsibility of that
state and thus applies to all states irrespective of the fact whether it was long established or
newly established.
The PCIJ in Chorzow factory case stated that, “it is a principle of international law and even a
general conception of a law that breach of an engagement involves an obligation to make
reparation”. State responsibility may be incurred during the time of war as well as during the
time of peace. As regards state responsibility during time of war it is well recognised U/A 3 of
the Hague Convention 1907, it states that a belligerent party which violates the provisions of
the regulation shall if the case demands, be liable to pay compensation.
It shall be responsible for all acts committed by persons forming pact of its armed forces. But
state responsibility during the time of peace has not been previously laid down under customary
law.
The Elements of State Responsibility

The starting point of the articles is that “every internationally wrongful act of a State entails
the international responsibility of that State” . The act or omission of a State will qualify as an
“internationally wrongful act” if two conditions are met. First, the act or omission must
constitute a breach of an international obligation, or, as the articles put it, must be “not in
conformity with what is required” by the international obligation. This implies that the
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obligation in question must be binding on the State at the time of the conduct, which is said to
constitute a breach. Second, the act or omission must be “attributable” to the State.
The general rule is that a State is not responsible for the acts of private individuals. The State
is of course an abstract entity, unable to accomplish any physical act itself. Just as in domestic
law corporations act through their officers and agents, so in international law the State normally
acts through its organs and officials.
The first, and clearest, case of attribution is that of the organs of the State (e.g., police officers,
the army) whose acts are attributable to the State even in instances where they contravene their
instructions, or exceed their authority as a matter of national law. No distinction is made based
on the level of the particular organ in the organizational hierarchy of the State; State
responsibility can arise from the actions of a local policeman, just as it can from the actions of
the highest officials, for instance a head of state or a foreign minister. Nor is any distinction
made upon the basis of the separation of powers; State responsibility may arise from acts or
omissions of the legislature and the judiciary, although by the nature of things it is more
common that an internationally wrongful act is the consequence of an act or acts of the
executive.
Second, the rules of attribution cover situations in which individuals, not otherwise State
organs, are exercising “elements of governmental authority” at the time that they act.
Third, acts of private individuals are attributable to the State if those individuals are acting on
the instructions of the State, or under its effective direction or control.
Fourth, in exceptional circumstances in which there is an absence or default of governmental
authority, the acts of private individuals may be attributable to the State if those individuals, in
effect, step into the breach and perform necessary governmental functions.
With regard to certain obligations, a State may incur responsibility even though actions have
been carried out by private individuals, because the essence of the obligation was to ensure that
a given result occurred. For instance, if a foreign embassy is overrun by a mob, or harm is done
to diplomatic staff by private individuals, as occurred with the U.S. embassy in Tehran during
the Iranian revolution of 1979 to 1980, a State may incur responsibility, even if those
individuals act on their own initiative. Equally, under Article V of the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide, the obligation of a State to punish those
responsible for genocide earlier on related to genocide may be breached in instances in which
a State fails to punish any person responsible for the genocide, “whether they are
constitutionally responsible rulers, public officials, or private individuals.” There is probably a
similar rule in general international law in relation to crimes against humanity. In both cases,
the basis of responsibility here is not the attribution to the State of the acts of the individuals;
it is the failure by the State as an entity to comply with the obligations of prevention and
prosecution incumbent on it.
KINDS OF STATE RESPONSIBILITY

State responsibility may incur in two ways either act of a state or by the act of its individual.
When an act which constitutes a breach of an international obligation is committed by the
government of a state or by a person at the governments command the act is called the act of
state and it’s responsible for such wrongful acts. A state can also be vicariously responsible for
the acts of others like acts of agents, subjects etc.
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1. DIRECT RESPONSIBILITY
A state is responsible for the breach of international obligation caused by it to the other
state. A state performs its function through different organs and agencies (executive,
diplomats, judiciary, and armed forces) and if any wrongful act is done by them, state
becomes responsible directly on their behalf. Such organs and agencies include:
i. Executive and administrative organs: when an act causing injury to another state is
committed by the head of the government or officer commanded or authorised by
the head of the state do the acts, it is called international delinquency. States are
held responsible for international delinquency.
ii. Acts of diplomatic envoys: generally diplomats enjoy complete immunity in the
receiving state; they are excluded from their jurisdiction. But if they do any
injurious acts at the command of his home state, then the state will be responsible
and not the diplomat personally.
iii. Acts of members of armed forces: acts if committed by members of armed force in
the exercise of their official function without the states command or authorisation
then it is not state act. But for reckless act of the armed force, the state will be
responsible even if it has not authorised.
iv. Acts of judiciary: judiciary is independent but this is irrelevant in the international
law point of view. If it gave any judgement contrary to the international obligation
of a state then state is responsible. Example: judgement denying an ambassador the
immunities ensured by customary international law.
v. Constituent unit of federal states: a state cannot evade its responsibility alleging that
its constitutional powers of control over them are insufficient.
2. INDIRECT STATE RESPONSIBILITY

It is duty of the state to prevent its own subjects as well as foreign subjects living within
its territory from committing such acts which may cause injury to other states. If any
wrongful act is done then state is responsible.
i. Mob violence: state responsibility for mob violence may arise in two ways:
 If the foreign public/private property is damaged by mob violence due to neglect
to take precaution/preventive action. State should have foreseen the danger and
taken steps to prevent it. Burden of proof is on the state to show that all reasonable
steps were taken to prevent outbreak of violence.
 State is responsible where mob violence takes place due to indifferent attitude of
its organs, i.e., if the wrongful act is done with the connivance of its organs.
ii. Violence in insurrections and civil war: state is responsible for the injuries caused
to an alien the consequence of civil war.
CALVO CLAUSE
Argentine publicist Calvo announced the doctrine in 1868. According to this state is not
responsible for the loss suffered by the foreigners as a result of civil war since that would cause
unjustified inequality in the rights of its own citizens and aliens. It would also give an excuse
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for other states to interfere in small states independence. In Mexico the Calvo Clause was
included U/A 27 of the constitution.
THEORIES THAT DETERMINE STATE RESPONSIBI LITY

1. The risk theory: if a person brings any dangerous thing within his premises for his own
use/profit, he is liable for any accidents arising from it even if he has taken care and there is no
negligence. This principle is also applied in international law if it has been clearly mentioned
by international agreement. Example: Damage resulting from peaceful use of nuclear energy.
2. Fault theory: state obligation will only arise when an act or omission which amounts to a
breach of legal obligation is attributable to the state.
DOCTRINE OF ABUSE OF RIGHTS

No state has the right to use the territory in such a manner which may cause damage to the
territory of another state. When there is no right there is no abuse of rights, instead it maybe
called as interference of rights of another, because it is the integrity of the state that is infringed.
DOCTRINE OF NECESSITY
When a state faces danger, and such danger was not caused by itself and it has no way of
escaping from it but can only escape by taking an action which would violate the rights of
another state, such action does not incur state responsibility.
DEFENCE TO STATE LIABILITY (EXCUSE FOR STATE RESPONSIBILITY)

Article 29 to Article 30 of the 1980 draft articles drafted by the International Law Commission
states the defence available to the state to avoid state responsibility.
1. CONSENT (ARTICLE 29) When a state gives consent to an act of another state which
would otherwise be inconsistent with international obligation. After granting consent,
the consenting state cannot claim that the Act is wrongful later. The consent given has
to be a valid consent without any fraud, coercion, etc.
2. COUNTER MEASURE IN RESPECT OF INTERNATIONALLY WRONGFUL ACT
(ARTICLE 30) The wrongfulness of an act of a state, not in conformity with an
obligation of that state towards another state is precluded, if the act constitutes as a
legitimate measure under International Law against the other state in consequences of
internationally wrongful act of that state.
3. FORCE MAJEURE (ARTICLE 31) The wrongfulness of an act of a state, not in
conformity with an obligation of that state towards another state is precluded, if the act
was due to unforeseen external event beyond its control which made it impossible for
the state to perform its international obligation.
4. SELF DEFENCE (ARTICLE 34) State does not incur liability if it takes lawful
measures of self-defence, inconformity with charter of UN.
5. DISTRESS (ARTICLE 32) When a person does a wrongful act, to save his life or
others’ lifes entrusted to that person, and there is no other way but the wrongful act,
then no liability will be incurred. This applies only when human life is in danger.
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6. STATE OF NECESSITY (ARTICLE 33) An act done to safeguard the interest of the
state from grave danger and such act was the only way. The said act did not seriously
impair the interest of state towards which the state had obligation.
STATE RESPONSIBILITY FOR BREACH OF TREATY

This is a case about violation of international agreement known as “The Chorzow Factory
Case”. The question before the court was whether Poland can be made liable for such violation
of an international agreement.
Fact: After the First World War due to a bipartite agreement between Germany and Poland;
Germany agreed to transfer the control of Upper Silesia area to Poland. On an agreement that
Poland would not forfeit any property of Germany, but thereafter Poland forfeited two of
German Companies situated at that area.
Issue:
 Whether the court has its jurisdiction over the matter or not?
 Whether there was any violation of the agreement between Germany and Poland or not?
 Whether there was any international obligation on Poland due to the breach of bipartite
agreement between Germany and Poland?
Decision: The Permanent Court of International Justice has its jurisdiction to try the case.
Poland had violated the international agreement between Germany and Poland. Poland would
be liable to repair any loss suffered by the Germany due to the forfeit of that two company as
they violated that international agreement.
Analysis: The rule of Permanent Court of International Justice was very appropriate, which
was given in favour of Germany as the attitude of Polish Government towards two German
companies was not in conformity with the articles of Convention concerning Upper Silesia[1],
concluded at Geneva on May 15th, 1922 (hereinafter referred as Geneva Convention), thus
violating the international agreement by unlawful expropriation of the said companies and that
infers the state responsibility on Poland for reparation for such violation.
STATE RESPONSIBILITY OF EXPORPRIATION OF FOREIGN PROPERTY

Before this was considered violation of International Law, but now state exercises complete
control over their economic system and has nationalised everything and this makes it difficult
to recognize such expropriation as violation of International Law.
In Anglo Iranian Oil Company Case, it was held that such an act is valid only where there has
been no discrimination with the foreigners. In 1958, a commission on permanent sovereignty
over natural resources was established. On the basis of its report, the economic and social
commission passed a resolution which declared that in case of expropriation, the owner shall
pay “appropriate compensation” in accordance with the rules in force in the state taking such
measures. In 1974, the UN General Assembly adopted by an overwhelming majority a charter
on economic right and duties of the state. The resolution proclaims that each state has the right
to freely exercise full permanent sovereignty over its wealth and natural resources to regulate
and exercise authority over foreign investments within its national jurisdiction and to
nationalize, expropriate or transfer the ownership of foreign policy. It also provides for
appropriate compensation to be paid in cases of expropriation or nationalization. In case of
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dispute regarding compensation it should be settled under the domestic laws of the
nationalising state.
STATE RESPONSIBILITY FOR CONTRACTS WITH FOREIGNERS

The State will sign contract with foreigners for certain commercial purposes. If the state fails
to comply with the terms of contract there’s breach of the contract. And the foreigner can claim
compensation according to the municipal law of the state. If that’s not enough then he may
approach his home state to take political actions against the other state.
LIABILITY FOR THE ACTS OF MULTINATIONAL CORPORATION

Charter of economic rights and duties of the state 1974 recognises the right of each state to
regulate and supervise the activities of transnational corporations within its jurisdiction and to
take measures to ensure that such activities comply with laws, rules and regulations and
confirm with its economic and social policies.
STATE RESPONSIBILITY FOR ENVIRONMENT

Every state has the duty to protect the natural environment to conserve and sustainably use the
natural resources, keep them free from any kind of pollution and take effective measure to
prevent any damage to private individual and their property. Compensation will be awarded to
such victims, this has been laid down in Principle 22 of Stockholm declaration.
FAILURE TO RESPECT THE TERRITORIAL RIGHT OF OTHER STATES

A breach arises when there is failure to respect the territorial rights of another state due to the
prohibition of the use of force contained in Article 2 of UN Charter. It gives rise to
responsibility of the offending state.
DAMAGE TO STATE PROPERTY

If a state through its acts or omission is the direct cause of damage to the property of a foreign
state, then it is liable to make reparation for damage caused.
CORFU CHANNEL CASE – UK VS ALBANIA

Albania failed to notify all ships of the existence of a minefield in its territorial waters. Here it
breached certain general and well recognised principle which is elementary in consideration of
humanity, principle of the freedom of maritime communication, etc
UNLAWFUL ARREST OF A WANTED CRIMINAL ON THE TERRITORY OF

ANOTHER STATE
Attorney General of the Government of Israel vs Eichmann (1961)
Adolf Eichmann, head of the Jewish office of the Gestapo during World War II, was convicted
of war crimes, crimes against the Jewish people, and crimes against humanity. Although the
crimes were not committed on the territory of Israel (which at the time did not exist as a state),
the court held that such acts could be tried by any state that had custody of the defendant.
Eichmann had, in fact, been abducted from Argentina by Israeli agents.
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Argentina complained to the Security Council of the abduction of Eichmann by Israeli agents
without the knowledge of Argentinean Government and also stated that acts such as these effect
the sovereignty of member state and endangers international peace and security. It requested
that the Government of Israel to make appropriate reparations to the Government of Argentina.
BY ALLOWING TOXIS FUMES TO ESCAPE INTO THE TERRITORY OF

ANOTHER STATE
Trail Smelter Case
Facts: The Tail Smelter located in British Columbia since 1906, was owned and operated by a
Canadian corporation. The resultant effect of from the sulphur dioxide from Trail Smelter
resulted in the damage of the state of Washington between 1925 and 1937. This led to the
United States (P) suit against the Canada (D) with an injunction against further air pollution by
Trail Smelter.
Issue: Is it the responsibility of the State to protect to protect other states against harmful acts
by individuals from within its jurisdiction at all times?
Held: Yes. It is the responsibility of the State to protect other states against harmful act by
individuals from within its jurisdiction at all times. No state has the right to use or permit the
use of the territory in a manner as to cause injury by fumes in or to the territory of another or
the properties or persons therein as stipulated under the United States (P) laws and the
principles of international law. By looking at the facts contained in this case, the arbitration
held that Canada (D) is responsible in international law for the conduct of the Trail Smelter
Company. Hence, the onus lies on the Canadian government (D) to see to it that Trail Smelter’s
conduct should be in line with the obligations of Canada (D) as it has been confirmed by
International law. The Trail Smelter Company will therefore be required from causing any
damage through fumes as long as the present conditions of air pollution exist in Washington.
So, in pursuant of the Article III of the convention existing between the two nations, the
indemnity for damages should be determined by both governments. Finally, a regime or
measure of control shall be applied to the operations of the smelter since it is probable in the
opinion of the tribunal that damage may occur in the future from the operations of the smelter
unless they are curtailed.
Discussion: Responsibility for pollution of the sea or the existence of a duty to desist from
polluting the sea has never been laid at the feet of any country by any international tribunal.
Although regulation of pollution is just commencing, it must ensure that there is equilibrium
against freedom of the seas guaranteed under general and long established rules of international
law.
CONSEQUENCES OF STATE RESPONSIBILITY

1. Restitution It means re-establishing the situation which would have existed if the wrongful
act or omission has not taken place. It maybe done by performing the obligation which the state
has failed to discharge or by revocation of the unlawful act or abstaining from further wrongful
conduct.
2. Indemnity It takes place only when restitution is not possible.
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3. Satisfaction It maybe defined as a measure which the author of breach of duty is bound to
take under customary law or under an agreement by the parties to a dispute, apart from
restitution or compensation.
Introduction
Political entities are not immutable. They are subject to change. New states appear and old
states disappear.1 Federations, mergers, dissolutions and secessions take place. International
law has to incorporate such events into its general framework with the minimum of disruption
and instability. Such changes have come to the fore since the end of the Second World War
and the establishment of over 100 new, independent countries. Art 2(1) (b) of the Vienna
Convention on the succession of States in respect of treaties in 1978 defines the term State
succession as ‘the replacement of one State by another in the responsibility for the international
relations of territory.
State Succession means substitution of one state by another over a territory. It signifies the
transfer of rights and duties from one international person to another. The term State Succession
is a misnomer it should not be understand in the common term as used in private law i.e.,
succession after death. In International Law context, it means change of sovereignty over
territory either by acquisition or loss of sovereignty.
State Succession involves:

1. Passing of rights and obligation upon external change of sovereignty over territory.
2. Passing of internal changes of sovereignty.
The Vienna Convention on Succession of States in respect of treaties of 1978 defines State
Succession U/A 2(1)(a) as the replacement of one state by another in the responsibility for the
international relations of territory.
A state which has replaced another state is called the Successor State or in some cases New
State. Edward Collins says: “A succession of Government occurs when the government of a
state is replaced with a new one. State succession occurs when a state ceases to exist or a new
state is formed within the territory of an existing state or territory is transferred from one state
to another state.
Circumstances of State Succession

State succession can arise in a number of defined circumstances, which mirror the ways in
which political sovereignty may be acquired.
They are:
Decolonization of all or part of an existing territorial unit: This refers to situations where
the nation partially or completely overcomes itself from the holding of a superior nation.
The dismemberment of an existing State: This refers to a situation when the territory of the
Predecessor State becomes the territory of two or more new States who take over it.
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Secession: This refers to a situation where a part of the State decides to withdraw from the
existing State.
Annexation: This refers to a situation where a State takes possession of another State.
Merger: This refers to the fusion of two or more free States into a single free State.
KINDS OF STATE SUCCESSION

1. Universal Succession
Where the personality of the predecessor state is completely destroyed and is observed by
another international personality is completely destroyed. This may happen through voluntary
merger, annexation or subjugation. Example: Prussia annexed Hanover in 1866; Unification of
West Germany and East Germany.
2. Partial Succession
When a part of the state is severed from the parent state and personality is effected only to the
severed extent. Example: Secession, cession, conquest, annexation of a part, dismemberment
i.e., when a state is replaced by two or more states. Secession of Estonia, Latvia and Lithuania
in 1991 from USSR. Replacement of Soviet Union by 12 sovereign states in December 1991.
Replacement of Czechoslovakia by Czech Republic and Slovak Republic in 1993. In Cases
where the loss of territory is considerable or where a state losses certain essential portion of the
territory it may mean the dissolution or end of the state. Example: Republic of Yugoslavia.
Theories of State Succession
1. Universal Succession Theory

This is the oldest theory of succession propounded by Grotius, using the Roman analogy of
succession on the death of any natural person. According to this theory, the rights and duties
of the old State i.e., the predecessor State pass on to the new State i.e., the successor State upon
succession without any exceptions and modifications.
In fact, there are two justifications behind this theory.
1. First that the State and the Sovereign gain all their power from God and a mere change in
Government shouldn’t cause any change in the powers.
2. Second, it is permanent and nothing can cause it to secede.
The application of this theory can be seen in cases of fusion in the 20th century. The fusion of
Syria and Egypt, Somali Land and Somalia, Tanganyika and Zanzibar are examples of this.
However, this theory failed to get any attention from the majority of States from the world and
has also been criticized by scholars from the world due to its Roman law analogy, a poor
distinction between succession and internal change in governments, etc.
2. Popular Continuity Theory

The Popular Continuity Theory can be described as another version of the Universal
Succession theory that was propounded by Fiore and Fradier following the unification of the
German and Italian nationals. According to this theory, the State has a
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 Political personality: It basically refers to the rights and obligations of the State towards the
government.
 Social personality: lt basically refers to the territory and the population of the State.
Hence, upon succession, the political personality gets changed whereas the social personality
remains intact. So, a State succession would not alter the rights and duties of the populace.
However, this theory has not found its application in any country outside Europe and also has
been criticized on the grounds that it functioned according to the municipal laws i.e, the local
laws, which is why it was difficult to understand the effect of State succession using this
theory.
3. Organic Substitution
Theory According to this theory, the rights and duties of the State continue even after
succession by another State. Von Gierke had published a paper in 1882 regarding The
execution of rights and obligations of a social body after its dissolution. It was from here that
Max Huber derived his organic substitution theory. Huber drew the analogy that the problem
of State succession was similar to that of dissolution of a social institution.
The factual element of the people and the territory have an organic bond i.e., the bond between
the people and elements of State and upon succession by a new sovereign, the organic bond
remains intact and only the juridical element changes. It offers a new explanation to the
continuity of rights and duties i.e., the substitution of a successor State in the personality of its
predecessor State. But, just like the other theories, this theory too has had no practical
application and has been criticized for the same.
4. Self Abnegation
Theory This theory was propounded in 1900 by Jellinek and is another version of the universal
theory of continuity. According to Jellinek, the successor State agrees to observe the rules of
international law and performs the obligations towards other States created under them.
Although, this theory considers that the performance of the international obligation, is merely
‘moral duty’ of the successor State, but at the same time it gives the right to the other States,
to insist upon the successor State to perform the existing obligation. If the successor State
refuses to accept, the other States may even withhold its recognition or make the recognition
conditional upon the acceptance of the predecessor’s commitment towards them.
5. Clean Slate Theory

This theory was developed during the mid-19th and early 20th centuries. After World War II,
the jurists of the Soviet Nations started emphasizing on the right of self-determination and on
giving complete freedom to the States to maintain their international relations. According to
this theory, the Successor State doesn’t absorb the personality of the Predecessor State in its
political and economic interests. Upon succession, the new State is completely free of the
obligations of the Predecessor State. The Successor State does not exercise its jurisdiction over
the territory by virtue of a transfer of power from its predecessor but it has acquired the
possibility of expanding its own sovereignty.
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6. Communist Theory
According to the Communist Theory of State Succession, a successor State is burdened by the
economic and political commitments of the predecessor. Thus, this comes as something
completely contrary to the Negative Theory of State Succession and unlike the Negative
Theory, it doesn’t free the successor State from the obligations of the predecessor State. The
Successor State is bound to adhere to the commitments of the predecessor State. Political
commitments involve peace, war and territorial treaties and agreements while economic
commitments include any amount of money borrowed or lent. All these have to be fulfilled by
the new State.
CONSEQUENCES OF STATE SUCCESSION

1. Treaties
The effect of state sovereignty in relation to treaties has always been a matter of controversy.
The effect of State Succession on different kinds of treaties:
i. Personal Treaties (Political Treaty) – These treaties are concluded due to the personal
influence of the contracting parties, such as those relating to peace, alliance, friendship,
etc. Such treaties are not binding on the State Succession. Before it was regarded as
ending with the extension of personality of a state but now State Succession generally
continues all those treaties which conform to its interest and suits according to its
circumstances.
ii. Commercial Treaties – These are also not binding on State Succession. Only those
which are consistent with the new state of affairs are continued.
iii. Administrative Treaties – Example: Extradition treaty, avoidance of double taxation.
The continuation of such treaties depends upon the discretion of the State Succession.
But is desirable in order to have effective international judicial administrative system
and peace and order that these are continued.
iv. Dispositive Treaties – Real or Localized Treaties – These create right in rem and these
rights are permanent and independent of the states personality. Example: Servitudes
and Frontier Agreements.
v. Multilateral Treaties – This is generally continued as it is for the benefit of all the
states. However successor state is not bound to continue such treaties if it is not
consistent with the interest of new state.
2. Membership of International Organization

Constitutions of most of the International Organization exclude the possibility of succession
and therefore the question of succession of membership does not arise. Each and every state is
required to apply a fresh in order to become a member of such organization irrespective of the
fact that its predecessor was a member of that particular organization.
3. Property
i. Public Property: Vienna Convention on State Succession in respect of state property
archives and debts 1983 U/A 8 defines state property as property rights and interest
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which at the date of the succession of states were according to the internal law of the
predecessor state owned by that state. It is an established principle of International
Law that the successor state takes over all the public and propriety rights of its
predecessor state. State Immovable Property such as fixed military installations,
prisons, airports, government offices, state hospital etc. passes to successor state.
Movable State Property of the predecessor state connected with the activity of the
predecessor state in respect to the territory to which the succession of state applies
shall pass to the successor state.
ii. Public Property: In case of Cession, private property remains with the parent state.
iii. Property lying in Foreign State: The successor may claim any state property in the
territory in which it acquires sovereignty.
4. State Achieves
Achieves has been defined in the present context under Article 20 of 1983 Vienna Convention
as all documents whatever date and time produced or received by the predecessor state in the
exercise of its functions which at the date of succession belong to the predecessor state
according to its internal laws.
5. Public Debt
Defined as any financial obligation of the predecessor state arising in conformity with
International Law towards another state or an international organization or any other subject
of International Law. The above definition excludes the predecessor’s states debts towards
private person. Normally no state considers itself to remain bound by the debts and liabilities
of the predecessor state. If the successor states accepts the benefits of the predecessor state, it
becomes by moral obligation to accept its burdens as well.
6. Contract
Law relating to contract on succession of a state is not well established and state practice is
also not uniform. State practice suggests that succession of contracts depend upon the
discretion of the successor state. But concessionary contracts which are of the local nature and
which creates permanent rights such as digging of mines, laying and running of railways, etc,
are normally accepted by the successor state. In such cases it is not the contract which passes
on to the successor state, but what is continued are the rights acquired under it and obligations
incurred.
7. Torts
State Succession is not bound to assume the unliquidated damages for the torts of the
predecessor state. If however the amount of the claim has become liquidated by agreement of
the parties or through judgement or award of a tribunal, successor state may be bound to settle
the claim of this liquidated claim.
8. Laws
It is a recognised principle of International Law that law once enforced are not changed merely
by the change of sovereignty over a territory. They are continued by the successor state event
if it is inconsistent with the interest until and unless new laws are made.
Rights and Duties arising out of State Succession
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The laws regarding State succession are still in a very nascent stage and keep evolving with
the changing times. As seen above, along with the territorial and power transfers, there are
transfers with regard to duties too. This section gives a brief idea about the transfer and
nontransfer of political as well as non-political rights and duties.
Political Rights and Duties

No succession takes place with regard to political rights and duties of the States. The peace
treaties or the treaties of neutrality entered into by the previous State aren’t binding on the new
State. But the only exception here is in case of human rights treaties since it would be desirable
for the new State to adhere to such terms. Other than this, the new State would have to enter
into new political treaties of its own.
Rights of Natives or Local Rights

Unlike the political rights and duties, the local rights of the people do not secede with the
succession of the States. These rights refer to the rights such as property rights, land rights or
rights relating to railways, roads, water etc. In cases like these, the succeeding States are bound
by the duties, obligations and rights of the extinct State.
Fiscal Debts (State or Public Debts)

These refer to the financial obligations or debts of the Predecessor State. The Successor State
is bound to pay back the debts of the Predecessor State. This is because if the new State is
enjoying the benefits of the loans, it becomes a moral obligation as well to pay back the money.
Next, if there is a split in the State then the entire debt amount gets divided between the
predecessor and Successor State in accordance with the territory and population of each. Effect
of State Succession on Treaties The law on State succession with regard to treaties has for a
long time been dominated by two principles in general: One is the alleged principle of
universal succession and the other is the tabula rasa approach i.e., clean State doctrine not
granting State succession to treaties.
While the former principal keeps in mind, the interests of third States regarding upholding or
not upholding treaties, the latter favours a rather strict understanding of sovereignty i.e.,
functions only according to the interests of the successor and predecessor State. Neither of the
two principles can, however, offer a practical solution for various scenarios where State
succession takes place. Accordingly, under customary international law more nuanced
solutions have been developed in the past or, at the least, are in the process of being formed.
The Vienna Convention on State Succession provides that

In case of the border treaties, no such significant changes would be observed and the treaties
would pass to the successor State. This is done keeping in mind the greater interests of the
International Community. Similarly, other forms of local treaties related to land, territory, etc.
would also pass on to the Successor State upon succession. Treaties relating to Human Rights
are passed on to the successors with all their rights, duties and obligations. In the case of
treaties relating to peace or neutrality, no succession takes place.
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PIL UNIT-III Notes

Llb 3 years (Karnataka State Law University)

Studocu is not sponsored or endorsed by any college or university

STUDY MATERIAL FOR INTERNAL

SUBJECT: PUBLIC INTERNATIONAL LAW

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Scope and Extent of State Jurisdiction

Types of State Jurisdiction

It is of three types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction.

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1. The Territorial Principle

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2. The Nationality Principle

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5. The Universality Principle

Limits in the Exercise of Jurisdiction. (Exemption from state jurisdiction)

Immunity of the Sovereign

This immunity can operate in two ways:

Immunity is based on two principles:

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The Extent of Sovereign Immunity

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The width of the territorial sea

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The Juridical Nature of the Territorial Sea

The right of innocent passage

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(a) The safety of navigation and the regulation of maritime traffic;

(c) The protection of cables and pipelines;

(d) The conservation of the living resources of the sea;

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(g) Marine scientific research and hydrographic surveys;

Jurisdiction over foreign ships

RIGHTS OF COSTAL STATE OVER TERRITORIAL SEA

The sovereignty of the coastal states extends to the territorial sea.

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RIGHTS OF OTHER STATES

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DEFINITION OF CONTINENTAL SHELF UNDER THE GENEVA CONVENTION

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DEFINITION OF CONTINENTAL SHELF UNDER THE CONVENTION ON THE

RIGHTS OF COASTAL STATES OVER CONTINENTAL SHELF UNDER UN

RIGHTS OF OTHER STATES IN CONTINENTAL SHELF UNDER UN

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CONTINENTAL SHELF AND NORTH SEA CONTINENTAL SHELF CASE

LIBYA VS MALTA CASE

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3. EXCLUSIVE ECONOMIC ZONE (EEZ)

RIGHTS OF THE COASTAL STATES OVER EEZ

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RIGHTS OF OTHER STATES OVER EEZ

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FREEDOM OF HIGH SEAS

RIGHT OF HOT PURSUIT

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