SUBJECT: INTERNATIONAL LAW

PAPER CODE: LLB304

UNIT I

Q.1 Discuss the nature and development of international law? Is it law in true sense or not?

Q.2 Explain in detail the basis of International Law? How will you justify the essence of
International law?

Q.3 what are the subjects of International Law? Discuss the conditions of statehood?

Q.4 Discuss in detail concept, role, rights and duties of international Organizations?

Q.5 how will you justify the importance of codification of International law? How the status
of individuals has been developed under international law? Analyze through different
theories.

UNIT II

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 Q. 6 what do the sources of International Law? Discuss the traditional source of international
law .also explain how a usage could be converted into a International customary law?

Q.7 Treaties or International conventions are the highly accepted sources of International law
.justify.

Q.8 Discuss in detail different types of general principles of law recognized by the civilized
nations.

Q.9 what do we understand by International Resolutions? Discuss the importance of General

Assembly Resolutions and Security Council Resolutions as a source of International law.

Q.10 Explain how other sources of law like writings of jurists and ―principles of jus cogens‖ ,
Equity lay a strong base of International Law?

UNIT III

Q.11 what is De facto and De jure recognition? How the different theories have measured its
importance under International law? Also discuss the retroactive effect of recognition?

Q.12 Discuss in detail the concept of Extradition with respect to state Jurisdiction and treaty
law.

Q. 13 what is Asylum in International Law? Discuss the basis and purpose of asylum?

Q.14 Explain in detail the concept of the Territorial sea and the contiguous zone in respect of

a. measurement

b. rights of coastal states

c. rights of other states

Q.15 Explain how the jurisdiction of Exclusive economic zone has developed discussing
about the concept of continental shelf. Also discuss about the crimes committed in High Seas.

UNIT IV

Q.16 Discuss about the contemporary International issue of prohibition of use of Force.

Q.17 Explain the exceptions to the prohibition of use of force. Support with case laws

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 Q.18 what do you understand by individual and collective self defense .explain

Q.19 what do you understand by humanitarian intervention? How different states take this
justification for answering imminent attack by other states?

Q.20 Explain the doctrine of responsibility to protect under International law in detail.

ANSWERS

ANS.1

Law is that element which binds the members of the community together in their adherence
to recognised values and standards. It is both permissive in allowing individuals to establish
their own legal relations with rights and duties, as in the creation of contracts, and coercive,
as it punishes those who infringe its regulations. Law consists of a series of rules regulating
behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within
which it functions. And so it is with what is termed international law, with the important
difference that the principal subjects of international law are nation-states, not individual
citizens.

There are many contrasts between the law within a country (municipal law) and the law
Public international law covers relations between states in all their myriad forms, from war to
satellites, and regulates the operations of the many international institutions. It may be
universal or general, in which case the stipulated rules bind all the states (or practically all
depending upon the nature of the rule), or regional, whereby a group of states linked
geographically or ideologically may recognise special rules applying only to them, for
example, the practice of diplomatic asylum that has developed to its greatest extent in Latin
America.

The rules of international law must be distinguished from what is called international comity,
or practices such as saluting the flags of foreign warships at sea, which are implemented
solely through courtesy and are not regarded as legally binding. Similarly, the mistake of
confusing international law with international morality must be avoided. While they may
meet at certain points, the former discipline is a legal one both as regards its content and its

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 form, while the concept of international morality is a branch of ethics. This does not mean,
however, that international law can be divorced from its values that operate outside and
between states, international organizations and, in certain cases, individuals.

Definition of International Law:

According to Oppenheim, International Law is a ―Law of Nations or it is the name for the
body of customary law and conventional rules which are considered to be binding by
civilized States in their intercourse with each other.‖

Thus, International Law can be considered as treaties, set of rules and agreements between
countries that are binding between them. International Law governs how nations must
interact with other nations. It is extremely useful in regulating the issue of jurisdiction which
arises when people trade among different States. The main purpose of International Law is to
promote justice, peace and common interest.

Can International Law be termed as a true law?

There has been a lot of controversy regarding this question. Some answered the question in
negative while others in the affirmative. Some feel that International Law lacks the element
of certainty, stability and predictability.

Not a true law

John Austin, a leading English writer on Jurisprudence supports the view that International
Law is not a law. As per him, International Law is a code of moral force and rules of conduct
only. In his opinion, International Law does not have any sanction behind it and it doesn‘t
emanate from a law giving authority. He described International Law as the one consisting of
positive International morality and opinions or sentiments which are followed by the nations
as per their own wish.

Hobbes and Pufendorff are also of the view that International Law is not a true law as the law
is not truly invested with true legal force and it is not backed by the command of a superior.

Holland is of the view that International Law is extremely different from ordinary laws as it is
not supported by the State‘s authority. As per him, the private law is writ large. He describes

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 International Law as the vanishing point of Jurisprudence. He is of the view that as
International Law lacks sanction (which is the most important element of Municipal Law) it
can not be kept in the category of true law.

A true Law

Hall And Lawrence consider International Law as true law. According to them,
International Law is derived from custom and precedents which are a source of law and it is
habitually treated like a certain kind of positive law.

Sir Frederick Pollock observed that for International Law to be binding upon the
members, the only essential conditions are the existence of political community and the
recognition by its members of settled rules binding upon them in that capacity. International
Law wholly satisfies these conditions.

Austin in his definition of law has given more importance to sanction and fear in compliance
of law. In case of International law there is neither sanction nor fear for its compliance hence
it is not law in proper sense of the term. But now the concept has changed and International
Law is considered as law. There is no consideration of fear or sanction as essential part of
law. If fear and sanction are considered necessary then there are sufficient provisions in UNO
charter for compliance of the International Law as Law :-
According to Bentham‘s classic definition international law is a collection of rules governing
relations between states. Two of the most dynamic and vital elements of modern international
law.
1. In its broadest sense, International law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors i.e. primarily
sovereign states but also increasingly international organizations and some individuals.
2. Although international law is a legal order and not an ethical one it has been influenced
significantly by ethical principles and concerns, particularly in the sphere of human rights.
International is distinct from international comity, which comprises legally nonbinding
practices adopted by states for reasons of courtesy. e.g. the saluting of the flags of foreign
warships at sea.)

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· In some states like USA and UK international Law is treated as part of their own law. A
leading case on the point is the, Paqueta v/s Habanna-1900. Justice Gray observed that the
international law is a part of our law and must be administered by courts of justice.‖
· As per statutes of the International Court of Justice, the international court of Justice has to
decide disputes as are submitted to it in accordance with International Law.
· International conventions and conferences also treat international Law as Law in its true
sense.
· The United Nations is based on the true legality of International Law.
· That according to article 94 of UNO charter, the decisions of the International Court of
Justice are binding on all Parties (States).
· Customary rules of International Law are now being replaced by law making treaties and
conventions. The bulk of International Law comprises of rules laid down by various law-
making treaties such as, Geneva and Hague conventions.
On the basis of above mentioned facts and arguments, the International Law is law in true
sense of the term. United States and U.K., treat International Law as part of their law. In a
case of West Rand Central Gold Mining Company Ltd., v/s Kind- 1905, the court held the
International Law has considered it as a part of their law. From the above analysis it is
revealed that the International Law is law. The International Law is law but the question
arises as to what are the basis of International Law. There are two theories which support it
as real law:-
1. Naturalist Theory:- The Jurists who adhere to this theory are of the view that International
Law is a part of the Law of the Nature. Starke has written, ―States submitted to International
Law because their relations were regulated by higher law, the law of Nature of which
International Law was but a part.‖ Law of nature was connected with religion. It was
regarded as the divine Law. Natural Laws are original and fundamental. They incorporate the
will of the Governor and governed and advance their consent or will. That is why
international law is also based on natural law.
Vattel Furfendorf, Christain, Thamasius, Vitona are the main supporters of this theory.It was
viewed that natural law is uncertain and doubtful but it is accepted that Natural Law has
greatly influenced the growth and has given the birth to International Law and its
development. Most of its laws are framed from Natural Law.
2. Positivist Theory:- This theory is based on Positivism i.e. law which is in the fact as
contrasted with law which ought to be. The positivists base their views on the actual practice

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 of the states. In their view customs and treaties are the main sources of International
Law. According to German economist, Heagal, ―International Law is the natural consent of
states. Without the consent of states, no law can bind the states. This consent may be express
or implied.‖ As pointed out by Starke, ― International Law can in logic be reduced to a
system of rules depending for their validity only on the fact that state have consented to
them.‖ As also pointed by Brierly, ―The doctrine of positivism teaches that International
Law is the sum of rules by which states have consented to be bound.‖ As said by
Bynkeshock, ―The basis of International Law is the natural consent of the states. Without the
consent of states no law can bind the states.‖
The critics of the above views say that consent is not always necessary for all laws. There are
some laws which are binding on states irrespective of their consent e.g. Vienna Convention
on the Law of Treaties. Article 36 of the Treaty says that the provisions of the Treaty may be
binding on third parties even if they have not consented to it.
CONCLUSION: - Gossil Hurst says, ―That International Law is in fact binding on states,
because they are states.‖ This is very much correct because every state in the world wants
peace, Law and order and that is possible only through existence of International Law.
Therefore it is in natural interest of States to accept the existence of International Law.

International Law is the vanishing point of Jurisprudence.

Holland has remarked that International Law is the vanishing point of jurisprudence in his
view , rules of international law are followed by courtesy and hence they should not be kept
in the category of law. The international Law is not enacted by a sovereign King. It has also
no sanctions for its enforcement which is the essential element of municipal law. Holland
further say that International Law ass the vanishing point of Jurisprudence because in his
view there is no judge or arbiter to decide International disputes and that the rules of the I.
Law are followed by States by courtesy.
Austin also subscribes to this view, Justice V.R.Krishna Iyer formally member of Indian Law
Commission has also remarked, ―It is a sad truism that international law is still the vanishing
point of jurisprudence. This view is not correct. It is now generally agreed that Holland‘s
view that international law is the vanishing point of jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that International Law is not
enacted by sovereign and has no agency for its enforcement. But it is true that it is a weak
law. A majority of International lawyers not subscribe to this view is based on the
proposition that there are no sanctions behind international Law are much weaker than their

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 counterparts in the municipal law, yet it cannot be successfully contended that there are no
sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of jurisprudence say
that there is difference between state law and International Law. International Law cannot be
enacted by the state but still there is agency for its enforcement. According to Dias,
―International Law is obeyed and complied with by the states because it is in the interests of
states themselves.
For this object they give the following arguments:-
1. The judgements of International court of Justice are binding on States.
2. If any state does not honour the order/judgement of International court of justice, the Security
Council may give its recommendation against that state for action.
3. The judicial powers of International Court of justice (Voluntarily and compulsory) have been
accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security, under chapter VII of the
U.N. Charter, the security council can take necessary action to maintain or restore
international peace and security. Besides this the decisions of the International Court of
Justice are final and binding upon the parties to a dispute.
The gulf war 1991 Iraq trespassed and acquired the whole territory of Quait in her possession
by violation of International Law. The Security Council passed a resolution against Iraq and
asked her to liberate Quait. But Iraq did not honour the resolution of Security Council; hence
therefore may economic and political restrictions were composed against Iraq. But all in
vain. Then USA and her allies were permitted to compel Iraq to honour resolution of Security
Council. Consequently USA and her allies used force against Iraq and freed Quait.
The same action was taken against North Korea and Cango during the year l948 and 1961.
The Security Council imposed penalty against Libya for shooting down American Plane in
Lockerbie (Scotland) in 1992, consequently two citizens were also killed. The Security
Council forced Libyan Government to surrender two terrorists who were involved in this
mishap and Libya obeyed the order of S. Council.
The greatest proof of its utility and importance is the fact that its successor the International
Court of Justice established under the United Nations charter is based on the Statute of the
Permanent Court of International Justice, the United Nations & Security Council Charter

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 possess wide powers to declare sanctions against the states who are guilty of violence of the
provisions of the same under chapter-VII
Thus International Law is in fact a body of rules and principles which are considered to be
binding by the members of International Community in their intercourse with other. The
legal character of International Law has also been recognized in 1970 Declaration on the
Principle of International Law Concerning Friendly relation and Cooperation among states.
Conclusion:- On the basis of above discussion it may be concluded that the International
Law is in fact law and it is has developed in the evolving times .

ANS .2
Introduction:
"Implementation, Compliance, and Effectiveness" was the main theme of the 91st Annual
Meeting of the American Society of International Law (ASIL) (1997).

Generally speaking, international law is treated and observed by States as law with binding
authority, and States generally comply with their international obligations. Yet, what makes
international law "work" has never been easily answered. Many international law scholars
and practitioners have been bewildered by questions such as: Why do States generally
comply with obligations imposed by rules of international law? Where does international law
derive its validity? Why does international law have its binding force?

The Naturalist Theories-

Various doctrines exist regarding the basis for the binding authority of international law.In
the 17th and 18th centuries and earlier times, under the influence of theology and the "law of
nature," the science and study of international law was dominated by the naturalist school.
This school maintained that the validity of international law was based upon the will of God
and that sovereigns were subject not only to divine law, but also to the laws of nature
established by God. From the 19th century and onwards, positivism gradually replaced the
dominant role of naturalism. The positivist school generally taught that the will of the State
was the ultimate source of all laws, international and domestic, and the basis of the binding
force of international law could only be sought from the fact that States consented to be
bound by it.5 Between the naturalist and the positivist schools, there was an "eclectic school,"
also known as the "Grotian" school, which attempted to harmonize naturalism and positivism.
However the proponents of eclecticism were either "more naturalist" or "more positivist,"

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 thereby making it difficult to regard the eclectic school as a separate discipline. For example,
the renowned "eclecticists," Baron Christian von Wolff (1679- 1754)6 and Emerich de Vattel
(1714-1767), essentially belonged to the naturalist school.
even more popular and dominant in the 17th and 18th centuries. Insofar as concerns the field
of international law, the German jurist, Sammuel Pufendorf (1632-1694) was the most
prominent pioneer and representative of the 17th century doctrines of natural law.

The Doctrine of "Social Contract" -

1. The Doctrine-The doctrine of social contract, otherwise known as the school of social bond
or the doctrine of social solidarity, is a theory derived from the naturalist school. The concept
of social contract can be traced to the teachings of ancient Greek Sophists (meaning teachers
of wisdom or specialists im wisdom). Some of the Sophists believed that "law and society are
based upon a contract between those concerned ('the social contract') and ... this fact has an
impact upon the contests of legal system.According to the doctrine of social contract, all laws
are the result of society and their validity is based on a kind of social bond, social contract or
social solidarity,4 " which is the case with domestic law as well as with international law."
For the proponents of this doctrine, the individual is born free and equal. He is only bound by
his own will and not by any external force.
.
The Doctrine of Fundamental Rights of the State -
The Doctrine-The doctrines of fundamental rights of the State and of social bond are closely
related theories based on the law of nature. As de Visscher pointed out, the doctrine of
fundamental rights of States and the doctrine of social contract, "far from being mutually
exclusive, were complementary. Both were essentially individualistic."56 These two theories
both prevailed in the 18th and 19th centuries, and still have their supporters in the 20th
century. Indeed, the doctrine of fundamental rights of the State, from a somewhat different
angle, expresses the same idea as the "social contract" theory. Under the "fundamental rights"
doctrine, principles of international law can be deduced from the essential nature of the State.
According to this doctrine, every State by virtue of its statehood and its capacity as a member
of the family of nations is.endowed with certain fundamental, inherent or natural rights.
These rights are not created by general customary or conventional international law, but
originate in the nature of the State. The norms underlying these fundamental rights of the
State are the ultimate basis and source of positive international law, and have a greater

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 obligatory force than the rules of positive international law which exist in the form of
customs and treaties.

Positivist Theories -

Positivism in General Indirect opposition to the naturalist theories are positivism and various
derivative positivist theories. Positivism generally teaches that the law of nations is the
aggregate of positive rules by which States have consented to be bound, exclusive of any
concepts of natural law such as "reason" and "justice." For the positivists, nothing can be
called "law" among States to which they have not consented. The proponents of the positivist
doctrines maintain that the will of the State is absolutely sovereign and that it is the source of
the validity of all law. The validity of all laws, whether domestic or international, depends
upon the supreme will of the State. The positivists believe, as Starke observes, that the rules
of international law are, in the end, similar to domestic law in the sense that they both derive
their binding force from the will of the State.

The Doctrine of the Will of the State-

While Gentilis was the first to maintain that the basis of international law was the will of
States. Law was also subject to the abstract concept of the "State" because the State itself was
sovereign and supreme, therefore nothing could be beyond the State, or there was no room to
subject the State to any other authority.

The Doctrine of Consent -

The Doctrine-The exponents of the doctrine of consent also maintain that the will of the State
is the controlling element of the binding force of international law, but their emphasis is on
the mechanism of State consent through which the will of the State is expressed. For them,
the rules of international law become positive law when the will of the State consents to
being bound by them whether expressly or impliedly. According to the consent doctrine, it is
the sovereign and supreme will of the State that commands obedience. This will of the State
is said to be expressed in the case of domestic law through State legislation and in the case of
international law through consent to international rules. Being a main theory of positivism,
the doctrine of consent generally teaches that the consent or common consent of States
voluntarily entering the international community constitutes the basis of validity of

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 international law. States are said to be bound by international law because they have given
their consent.

Doctrine of Automatic Limitation-

The Doctrine-The consent theory as originally propounded was later modified in certain
respects by followers of the positivist school. It later developed into the auto-limitation or
selflimitation doctrine (also known as "voluntarist positivism" or "voluntarism"), and the
doctrine of pacta sunt servanda. Some proponents of the auto-limitation doctrine attribute a
will to States, clothe that will with full sovereignty and authority, and maintain that
international law consists of those rules which the wills of the various States have accepted
by a process of voluntary self-restriction. The doctrine of States' auto-limitation or self-
limitation is thus another traditional theory of the positivist school. It teaches that
international law is the outcome of the exercise of self-limitation by States, and that the basis
of its validity is the wills and voluntarism of States. The self-limitation doctrine proclaims
that States are sovereigns, whose wills reject any type of external limitation, and if their
sovereignty is in any way limited, that limitation cannot be from any external force, but only
be imposed by the States themselves.

The Doctrine of Pacta Sunt Servanda -

The Doctrine-It was "the true [Italian] Maestro" Dionisio Anzilotti (1869-1950) that
formulated the theory of pacta sunt servanda to explain the basis of the validity of
international law.12 6 He regards the rules of international law to be either customary rules or
rules arising out of treaties or agreements among States and considers the doctrine of pacta
sunt servianda as "an absolute postulate of the international legal system.' ' 127 Anzilotti
considered States to be bound to obey such rules by reason of a pact both express and implied
and "stressed the openly or tacitly conventional character of international law, which in his
view relied on pacta sunt servanda.'

Kelsen observes that in accordance with the principle of pacta sunt servanda, the basic norm
of customary international law is identical with that of conventional international law.

Conclusion- all these theories were the essence and laid the basis of international law.

ANS.3

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 SUBJECTS OF INTERNATIONAL LAW:
By subjects of international law it is meant that those entities which possess international
personality. In other words subjects of international law are those entities that have rights
duties and obligations under international law and which have capacity to possess such right,
duties and obligations by bringing international claims. In past the matter was not much
debatable because according to the contemporary circumstances and scope of international
law only the states were qualified for international personality, but in near past along with the
increasing scope of international law many other entities have been given international
personality. Now, the question arises; whether they may be treated as subjects of international
law or not? And also if they were given the international personality then what shall be the
criteria for ascertaining the qualification of their being the subjects of international law. So,
there are different theories as regard to the above debate. The most prominent theories may
be discussed as under:

1. Realist Theory: – According to the followers of this theory the only subject of the
international law are the Nation States. They rely that Nation States are the only entities
for whose conduct the international law came into existence. The Nation States,
irrespective to the individuals composing them, are distinct and separate entity capable
to have rights, duties and obligations and can possess the capacity to maintain their right
under international law. So, the Nation States are the ultimate subjects of International
law.
2. Fictional Theory: – According to the supporters of this theory the only subjects of
international law are the individuals. For the reason, that both the legal orders are for
the conduct of human being and for their good well. And the Nation States are nothing
except the aggregate of the individuals. Though the rules of international law relate
expressly to the Nation States but actually the States are the fiction for the individuals
composing them. Due to this reason individuals are the ultimate subjects of
International law.
3. Functional Theory: – Both the Realist and Fictional theories adopted the extreme course
of opinions. But Functional theory tends to meet both the extremist theories at a road of
new approach. According this theory neither states nor individuals are the only subjects.
They both are the subjects of modern international law. Because for states being
primary and active subject of international law have recognized rights, duties and
obligations under international law and are capable to maintain the same by bringing

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 international claim. At the other hand in the modern international law individuals have
also granted certain rights, duties and obligation under international law and maintain
the same by bringing direct international claims. Even, not only states and individuals
are the subjects of international law but several other entities have been granted
international personality and became the subjects of the international law. This is
because of the increasing scope of international law.
Conclusion: – If all the above theories are to be analyzed philosophically then it may be
concluded that Functional Theory seems to be more accurate because due to modern scope of
the international law and world trend. It is obvious that there are many actors in international
law, which have been granted rights, duties and obligations, and also to secure their rights
and have been provided with capacity to bring international claims. So along with states and
individuals neither, certain other entities which have been given international personality
shall be treated as subjects of international law but also all those new entities which with due
course of time are going to be given international personality.

A ) State alone are the subject of international law /Realist Theory

Some Jurist have Expressed the view that only States are the subject of international law. In
their view International Law regulates the conduct of the state and only state alone are the
subject of international law. According to them as per the positivism view, individual is an
object and not a subject of International law. International Law gives more Emphasis and
stress upon the states, their sovereignty ,etc .

Criticism

This view has been criticized by various jurist because this theory fails to explain the case of
slaves and pirates. Under international law slaves have been conferred upon some rights by
the states. In the same way pirates are treated as Enemies of the mankind and they may be
punished for piracy by the state. The jurist who emphasis that States alone are the subjects of
international law, are of the view that slaves and pirates are exception and are objects of

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 international law. It is argued that the treaties which confer certain rights over the slave and
pirates impose certain obligations upon the states if there is no search obligation of the
states, the slaves cannot have any rights under international law. Professor Oppenheim is of
the view that since the law of nation is primarily a law between the States, state are to that
extent, the only subject of the law of nations. Professor Oppenheim subsequently has changed
the view and mentioned that," States are primarily ,but not exclusively, the subjects of
International law. To the extent that bodies other than States directly possesses some rights,
power and duties in international law they can be regarded as subjects of international law
possessing international personality. Many of the rules of international law are directly
concerned with regulating the position and activities of the individual and many more directly
affect them. Thus it is wrong to say that individuals or not the subjects of international law.
Some Jurist are of the view that individuals who are the basis of the society and are the
subject of international law and not the object of international law. Even the International
Court of Justice has rejected the proposition that states are the only subject of international
law. But held that the states are responsible for an act of his agent. As per the modern
international law, it is generally recognised that besides States public International
organisations, Individual and certain other non state and entities are also the subject of
international law."

B) Individuals alone are subject of international law/ fictional theory- Some Jurist
Express the view that in the ultimate analysis of International law , it will be evident that only
individuals are the subjects of international law. Professor Kelson is the chief exponent of the
theory . Even before kelson, Westlake had remarked," the duties and rights of the States are
only the duties and rights of man who composed them. Prof. Kelson has analysed the concept
of the state and Expressed the view that state is a technical legal concept and includes rules of
law applicable on the persons living in a definite territory. Hence under International Law
duties of the states are ultimately the duties of individual. and there is no difference between
International Law and State Law . as per Kelson both laws apply to the individual and they
are for the individual.

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 Criticism

The view taken by the Kelson is more logical and practical. so far as the practice of the state
is a concerned, it is seen that the primary concern of international law, is with the rights and
duties of the states.

It can be seen, certain treaties have been entered into which have conferred certain rights
upon individuals. As per International Court of Justices, statute, though States can be parties
to the international processing, a member of other international instruments have recognised
ready procedural capacity of the individual. There are number of examples wherein
international law applies on individual not only mediately but also directly. It is wrong to say
that pirate, slave,etc are only object of International Law.

States, individual and certain non-state entities are subject of international law/
functional theory

This view not only combines the first and second view but Goes a step ahead to include
international organisations and certain other non state and entities as subjects of international
law. This view appears to be more practical and are better than the first two views.

The reason in support of this view are as under

1) In present times, several treaties have conferred upon individual certain rights and duties,
for example International Covenant on human rights .

2) permanent Court of Justice in Danzing Railways official case, 1928, held that if any
treaties the intention of the parties is to enforce certain rights upon some individuals, then
International Law will recognise such rights and enforce them.

3) Geneva convention on Prisoners of War 1949, has conferred certain rides upon the
Prisoners of law.

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 4) The Nuremberg and Tokyo tribunals laid down the principle that International Law may
impose obligations directly upon the individuals.

5) The Genocide convention, 1948 ,has imposed certain duties upon the individual and
persons guilty of the crime of genocide maybe punished .

6) A new trend has started in the international field under which some rights has conferred
upon individuals even against the States. for example European convention on human
rights,1950, International convention on human rights 1966, optional protocol, by which an
individual who is the victim of the violation of human rights, May send petition regarding
violation of human rights by his own state to the United Nations Commission on Human
rights.

7) it is now agreed that International organisations are also the subject of international law.
United Nation is an international person under international law and it is held by International
Court of Justice that United Nation is a subject of international law and capable of
possessing rights and duties and it has capacity to maintain its right by bringing International
things.

8) The law making treaties in respect of international criminal law, have imposed certain
obligations upon the individuals , for example narcotic drugs convention, 1961, Hague
conversation of suppression of unlawful Seizure of aircraft 1970.

Thus the states are not only the subjects of international law. There is no doubt that states are
still the main subject of international law and most of the part of international law concerns
with the conducts and relationship of state with each other, but in view of the developing and
changing character of the International Law , International organisations and some non-state
entities individuals are also the subject of international law. It is apparent from the above

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 discussion that the position of subjects of international law has greatly changed with the
passage of time. Originally, sovereign States were the only actors in the international
community, but in present century new non state entities such as International organisations
and Institutions and individuals have been given the status and rank of international legal
subjects.

CONDITIONS/ REQUIREMENTS OF STATEHOOD:

There is no exact definition of the term ―state‖ in international law. However in this law, the
essesntial critria for statehood in international law is well settled. Article 1 of the Montevedio
convention on the rights and duties of states of 1993 provides the following qualifications:

A. a permanent population

B. A defined territory

C. Government

D. Capacity to enter into relations with other states.

Other requirements:

Independence, sovereignity, self determination and recognition are other requirements of

statehood used either as separate criteria or in association with the above requirements.

ANS.4

INTRODUCTION

An Inter-governmental Organization (IGO) is defined as "association of States established

by and based upon a treaty, which pursues common aims and which has its own special
organs to fulfill particular functions within the organization."

A Non-governmental Organization (NGO) is defined as ―those organizations founded by

private individuals, which are independent of States, oriented towards the rule of law, pursue
public rather than private goals as an objective, and possess a minimal organizational
structure. -.

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 NGOs are not established by treaty. They do not have the same privileges and immunity
status as an IGO; however, like an IGO, they can be global (Human Rights Watch) or in
scope. Privileges and immunities include exemption from taxes, customs duties, inviolability
of premises and documents, and immunity from judicial process.

Presently the international organisation that is working at international level is united nationa
organisation.

The United Nations is the second attempt at a global peace initiative. In 1919, U.S. President
Woodrow Wilson pushed for the League of Nations after World War I. It had 58 members,
but the United States was not one of them. Congress refused to ratify membership, fearing
that would pull the United States into countless wars. Many felt the League failed because it
could not prevent the outbreak of World War II.

The main parts of the U.N. are the General Assembly, the Security Council, the Economic
and Social Council, the International Court of Justice, and the Secretariat.

The General Assembly is composed of representatives of all member states. It creates the
mandates that guide the day-to-day work of the boards and councils under it. The General
Assembly meeting lasts for several weeks in September of each year, and it gives world
leaders a chance to come together and form working relationships.
The Security Council is the most powerful U.N. unit. Its mandate is to keep the peace. The
five permanent members are China, France, Russia, the United Kingdom, and the United
States. The General Assembly also elects 10 non-permanent members that hold two-year
terms.
All U.N. members must comply with Security Council decisions, and the Council sends
peace-keeping forces to restore order when needed. The Council can impose economic
sanctions or an arms embargo to pressure countries that don't comply, and it authorizes the
U.N.'s members to take military action if needed.
The Economic and Social Council conducts analysis, agrees on global norms, and advocates
for progress in the areas of sustainable development, humanitarian work, and financial
development. It forms partnerships as needed and oversees joint U.N. action to address
related issues.

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 The International Court of Justice is located at the Hague in the Netherlands. It settles
legal disputes between countries.
The Secretariat carries out the day-to-day work of the organization. It has several
departments and offices that carry out distinct responsibilities. The Security Council
nominates its leader, the Secretary-General.

How the UN Works

The U.N. is not a government and has no right to make binding laws. Instead, it uses the
power of persuasion. The U.N. committees negotiate multilateral agreements that give more
teeth to its policies. Combined, they form a body of international law.
All nations contribute to the U.N. budget, so they each have a part in funding U.N.-specific
initiatives.
Every member votes in the General Assembly meeting, so the U.N.'s decisions reflect the
prevailing values and goals of the majority of its members. Thus, countries that don't comply
know they are in the minority.

Members
There are 193 members of the U.N. The United States recognizes 195 countries. The two that
aren't U.N. members are Kosovo and the Holy See. Russia won't allow Kosovo to become a
member because it still considers it a province of Serbia. The Holy See has not applied for
membership, although it has "permanent observer" status.
Notably, the U.N. granted Palestine "permanent observer" status, even though the United
States considers it to be part of Israel. China replaced Taiwan, which it now considers a
province.
All peace-loving countries that are willing and able to carry out their obligations under the
U.N. charter can join the UN. All members of the Security Council must approve. Then, two-
thirds of the General Assembly must also approve the membership.

Other UN Organizations and How They Influence the World

Within the U.N., there are some well-known agencies that carry on its work.
The International Atomic Energy Agency helps to prevent nuclear proliferation and possible

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 annihilation by a worldwide nuclear war. Below are several other UN organizations and their
functions:
 The United Nations Climate Change secretariat manages the global response to the
threat of climate change.
 The United Nations Educational, Scientific, and Cultural Organization addresses
world hunger.
 The United Nations International Children's Emergency Fund focuses on the
protection and care of the world's children.
 The World Bank provides financial and technical assistance to emerging
market countries.
 The World Health Organization monitors disease outbreaks and assesses the
performance of health systems.
 The North Atlantic Treaty Organization is an alliance of 26 countries created to
promote peace in Europe.
 The United Nations Office on Drugs and Crime supports countries' efforts to stop
human trafficking. It provides data and research on the global problem.

Specifically, the UN summarises its role in the following terms. Its purposes are:

 To maintain international peace and security

 To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples;

 To cooperate in solving international economic, social, cultural and humanitarian

problems and in promoting respect for human rights and fundamental freedoms;

 To be a centre for harmonising the actions of nations in attaining these common ends.

Its principles are:

A. It is based on the sovereign equality of all its members;

B. All members are to fulfil in good faith their Charter obligations;

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 C. They are to settle their international disputes by peaceful means, and without endangering
international peace and security, and justice;

D. They are to refrain from the threat or use of force against any other states;

E. They are to give the United Nations every assistance in any action it takes in accordance
with the Charter, and shall not assist states against which the United Nations is taking
preventive or enforcement action;

Nothing in the Charter is to authorise the United Nations to intervene in matters which are
essentially within the domestic jurisdiction of any state.

This idealistic expression of the aims and purposes of the UN needs to be set against what has
been possible, given the limits placed on the organisation by the most powerful states in it.
The principles of the organisation make it clear that, if the UN is to work, the individual
members must fulfil the obligations they undertake. Unlike the Concert of Europe, the UN is
a permanent structure, but 'it is [nevertheless] an extension to the states system, not an
alternative to it'.

It is an organisation of equal sovereign states and indeed all states in the General Assembly
have one vote regardless of size or wealth; however, in the Security Council, which is the
only organ with binding powers, some states are more equal than others. The UN is not an
autonomous agent making decisions separate from the power politics of the world. The
Permanent Five, the victorious powers and allies of World War II, have a veto power and
therefore their interests

are supreme when decisions are made on what actions the UN will take and how well
resourced such action will be.

From 1945 to 1990, the Cold War ensured that all conflicts around the world were translated
into tests of one or other of the superpowers and this precluded action in all but exceptional
cases, such as Korea. As a result of the power of the Permanent Five in the Security Council,
the UN has been prevented from acting on any matters that affect them or their interests - for

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 example in Tibet, Chechnya or Central America. Moreover, the organisation, on the decision
of the members, particularly the most powerful member the United States, has been deprived
of funds, for both peacekeeping and for its humanitarian functions. What has been the result
of this difference between ideal and reality? On the one hand, the hope that the UN might
provide a solution to the problems of war and injustice has been dashed for many people. On
the other hand, there is confusion over the UNs role and the place of the nation state within it.

This report accepts the argument that the UN is an essential element of international relations
in the post Cold War world and therefore it will examine the organisation and Australia's
response to it with a view to recommending how, in the committee's judgement, it might best
fulfil its

role.

ANS.5

What is Codification?

Code is a consolidation of the statute law or statute collecting all the law relating to a
particular subject. Codification is the process of translating into statutes or conventions,
customary law and their rules arising from the decisions of tribunals, with little or no
alteration of the law. Codification secures, by means of general conventions, agreements
among the states upon certain topics of international law and acts as a check whereby the
determination of particular law is not left to the caprices of judges. It also tends to reconcile
conflicting views and renders agreement possible among different States.

2) Different Meanings of Codification

The term codification of international law ( Codification of the Law of Nations) has been
employed 3 different senses -countries by the preparation and enactment of uniform statutes.

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 (2) A systematic re-statement of existing customary international law, for example as
retaining and declaring the existing rules of international law.

(3) developing, amending and improving the law as it is re-stated

The committee on the progressive development of international law and its codification, set
up by the United Nations General Assembly resolved the controversy between the second and
third meaning of codification. Article 15 of the statutes of the International Law Commission
distinguishes between the progressive development of international law and its
codification.

According to Professor Woosley, the Codification of Law of nations (International law) must
entail two processes -

(1) The scientific determination of the law, and

(2) the achievement of the universal acceptance of the law of so Defined by means of a
multilateral convention Generally Accepted. He admitted that in character the second process
was the legislative and political system.

Codification basically involves a process of legislation and consolidation.

3) Brief History of International Codification

The idea of codification of the law of nation (codification of international law) was
first mooted by Bentham at the end of the 18th century. He suggested Utopian International
Law which could be the basis of an everlasting peace between civilized States.

4) Difficulties of Codification

The main difficulty, however, in the way of codification is as Sir Cecil Hurst aptly
remarks, "if it is left to government to meet in conference for the purpose of deciding what
are the rules of International Law, it is inevitable that their efforts will be directed to agreeing

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 or trying to agree on the rules of international law as they ought to be for example rules
which would be appropriate to the present day requirements; and delegates will find that the
requirement of government so diversified, so contrary that agreement is impossible.

United Nations Charter and Codification

United Nations Charter, Article 30 of the Charter gives ample scope for the
codification of International law. it reads -

"the general assembly shall initiate studies and make recommendations for the purpose of - a

(a) Promoting International co-operation in the political field and encouraging the progressive
development of international law and its codification......."

The first Hague conference met in 1899 and drafted three conventions. The first of these was
the famous Convention for the Pacific Settlement of International Disputes, which resulted in
the establishment of the Hague Tribunal. The second was a convention respecting the laws
and customs of war on land, which embodied many of the provisions of the Lieber code; the
third was a convention adapting the Geneva Red Cross convention of 1864 to maritime
warfare. Recourse to the Hague Tribunal was purely optional, but the two other conventions
have been absorbed into the national law of the ratifying countries, and have proved
important contributions to international law.

The work of the Hague conference of 1907 was of u much more exhaustive character than
that of 1899. It promulgated thirteen new conventions, three of which amended the
conventions of 1899, and eleven of which dealt with questions relating to the conduct of war.
The Final Act of the second Hague conference recommended to the powers that a third
conference be held in 1914, to consider among other things ―the preparation of regulations
relative to the laws and customs of naval war,‖ and that a preparatory committee should be
set up some two years in advance to ascertain ―what subjects are ripe for embodiment in an
international regulation.‖ It was believed at this time that through the institution of the Hague

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 conferences a means had been found of obtaining the consent of all nations, not only to the
existing rules of international law, but to reforms in the existing rules and to the introduction
of new rules. The chief source of international law in the future, it was said, would be the
Hague conferences.

Some steps were taken toward the establishment of a preparatory committee for the proposed
third Hague conference, but on June 22, 1914, the Government of the United States suggested
postponement of the conference until 1916, and soon thereafter the war so changed the
international situation that the project for a new conference was forgotten.

International Law and the World War

One of the conventions adopted at the second Hague conference called for the creation of an
international prize court to which appeals might be taken from the prize courts of belligerent,
nations. It soon became apparent, however, that in the absence of a clear understanding of the
rules of prize law none of the great powers would intrust final jurisdictional power to an
international court. This situation led Great Britain to call a conference on international
maritime law, which resulted in the signature on February 26, 1909, of the Declaration of
London by the delegates of Great Britain, France, Italy, Japan, Germany, Austria, the
Netherlands, and the United States.

The Declaration of London laid down a long series of rules which were asserted in its
preamble to ―correspond in substance with the generally recognized principles of
international law.‖ This statement was not strictly accurate and the declaration never was
ratified by any of the governments concerned, 9 although its provisions were observed by
both belligerents in the Italo-Turkish War. The Declaration of Paris had similarly been
observed by both belligerents in the Spanish-American War, although neither was a party to
that declaration.

Soon after the outbreak of the World War, President Wilson addressed a note to the
belligerents suggesting that they accept the Declaration of London in its entirety as a code of
international law. Such action, it was urged, would prevent the grave misunderstandings
between belligerents and neutrals that were certain to arise in the absence of a clear
understanding of their respective rights at sea. Germany and Austria announced their
readiness to accept the President's proposal, if their enemies would do likewise. The British

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 government replied that it could observe the provisions of the declaration only in so far as
they did not conflict with the ―efficient conduct‖ of naval operations. The United States
thereupon withdrew its suggestion, and this opportunity to establish the international law of
the sea in time of war on a firm basis was lost.

The principles of international law, as they had been understood prior to the World War, were
violated by both sets of belligerents during the conflict, leading finally to the entry of the
United States as a belligerent as a result of Germany's submarine campaign. At the end of the
war the law governing the use of the sea in time of war was left in a state of chaos. ―If a war
occurred today a belligerent could with Allied precedent justify almost any conceivable
practice.‖

Confusion in other branches of international law was created by the terms of the Versailles
treaty. Germany admitted at the peace conference that her violation of the neutrality of
Belgium at the outbreak of the war was a ―breach of international law‖ and recognized the
―principle of responsibility for violation of international law.‖ She pointed, however, to other
violations by the Allies during the war, and vigorously protested against many provisions of
the Versailles treaty on the ground that they constituted new violations of the established
principles of international law. These included certain provisions which deprived Germany of
her place of equality in trade, certain provisions in regard to German colonies and German
rights and interests outside Germany, and the provisions in regard to the trial of the Kaiser
and penalties in general. The Allies replied either that the Germans were mistaken or that
there was ―no universally recognized rule of international law‖ as to the matter in question,
and that they therefore were free to deal with it ―in the most convenient manner.‖

The League and the Law of Nations

The preamble of the covenant of the League of Nations—Part I of the Versailles treaty—
states it to be one of the objects of the League ―to achieve international peace and security….
by the firm establishment of the understandings of international law as the actual rule of
conduct among governments.‖ The covenant makes no further reference to international law
and no specific provision for realization of the purpose set out in its preamble. Attention was
directed to this omission by Elihu Root soon after the first draft of the covenant was made
public, February 14, 1919. In a letter to Senator Lodge, he said:

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 International law is not mentioned at all except in the preamble; no method is
provided and no purpose is expressed to insist upon obedience to law, to
develop law, to press forward agreement on its rules and recognition of its
obligations. All questions of right are relegated to the investigation and to the
recommendation of a political body to be determined as matters of
expediency.

Advantage of codification

 Certainty:-By codification law becomes certain and uncertain as it generally is in

precedent and custom.
 Simplicity- The codification makes law simple and accessible to everybody. By
codification law on any particular point is made accessible and known to everyone, so
that the citizen come in a position to know their rights and duties well.
 Logical Agreement:- By codification law is logically arranged in a coherent form and
there occurs no chance of conflicts arising among the different provisions of law.
 Stability:– The codification makes the law simple and stable. Stability is very
essential for law so that the people may have confidence in it and the legal transaction
may be made easily.
 Planned Development:- Codification bring uniformity, which in turn helps in the
planned development of the country.
 Unity:- Codified Law has a uniform and wider application. This helps in developing
affinity and unity among the people, who are governed by the same laws.

ANS.6

he International Court of Justice Statute defines customary international law in Article

38(1)(b) as "a general practice accepted as law".[4] This is generally determined through two
factors: the general practice of states and what states have accepted as law (opinio juris sive
necessitatis).

There are several kinds of customary international laws recognized by states. Some
customary international laws rise to the level of jus cogens through acceptance by the
international community as non-derogable rights, while other customary international law
may simply be followed by a small group of states. States are typically bound by customary

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 international law regardless of whether the states have codified these laws domestically or
through treaties.

Jus cogens

A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental
principle of international law which is accepted by the international community of states as a
norm from which no derogation is ever permitted (non-derogable). These norms are rooted
from Natural Law principles, and any laws conflicting with it should be considered null and
void. Examples include various international crimes; a state violates customary international
law if it permits or engages in slavery, torture, genocide, war of aggression, or crimes against
humanity.

Jus cogens and customary international law are not interchangeable. All jus cogens are
customary international law through their adoption by states, but not all customary
international laws rise to the level of peremptory norms. States can deviate from customary
international law by enacting treaties and conflicting laws, but jus cogens are non-derogable.

Codification of international customary law

Some international customary laws have been codified through treaties and domestic laws,
while others are recognized only as customary law.

The laws of war, also known as jus in bello, were long a matter of customary law before they
were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other
treaties. However, these conventions do not purport to govern all legal matters that may arise
during war. Instead, Article 1(2) of Additional Protocol I dictates that customary international
law governs legal matters concerning armed conflict not covered by other agreements.

Definition of custom:

―.. not only must the acts concerned amount to a settle practice, but they must also be such, or
be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it (...) The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation.‖

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 North Sea Continental Shelf case – ICJ, 1969

State practice

When examining state practice to determine relevant rules of international law, it is necessary
to take into account every activity of the organs and officials of states that relate to that
purpose. There has been continuing debate over where a distinction should be drawn as to the
weight that should be attributed to what states do, rather than what they say represents the
law. In its most extreme form, this would involve rejecting what states say as practice and
relegating it to the status of evidence of opinio juris. A more moderate version would
evaluate what a state says by reference to the occasion on which the statement was made. It is
only relatively powerful countries with extensive international contacts and interests that
have regular opportunities of contributing by deed to the practice of international law. The
principal means of contribution to state practice for the majority of states will be at meetings
of international organizations, particularly the UN General Assembly, by voting and
otherwise expressing their view on matters under consideration. Moreover, there are
circumstances in which what states say may be the only evidence of their view as to what
conduct is required in a particular situation.

The notion of practice establishing a customary rule implies that the practice is followed
regularly, or that such state practice must be "common, consistent and concordant".Given the
size of the international community, the practice does not have to encompass all states or be
completely uniform. There has to be a sufficient degree of participation, especially on the part
of states whose interests are likely to be most affected, and an absence of substantial dissent.
There have been a number of occasions on which the ICJ has rejected claims that a customary
rule existed because of a lack of consistency in the practice brought to its attention.

Within the context of a specific dispute, however, it is not necessary to establish the
generality of practice. A rule may apply if a state has accepted the rule as applicable to it
individually, or because the two states belong to a group of states between which the rule
applies.

A dissenting state is entitled to deny the opposability of a rule in question if it can

demonstrate its persistent objection to that rule, either as a member of a regional group or by

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 virtue of its membership of the international community. It is not easy for a single state to
maintain its dissent. Also, rules of the jus cogens have a universal character and apply to all
states, irrespective of their wishes.

Demand for rules that are responsive to increasingly rapid changes has led to the suggestion
that there can be, in appropriate circumstances, such a concept as "instant custom". Even
within traditional doctrine, the ICJ has recognized that passage of a short period of time is not
necessarily a bar to the formation of a new rule. Because of this, the question is sometimes
raised as to whether the word "custom" is suitable to a process that could occur with great
rapidity.

EXAMPLES OF CUSTOMARY RULES:

1. Diplomatic immunity

2. Freedom of outer space

3. Delimitation of continental shelf, principle of open sea

FORMATION OF INTERNATIONAL CUSTOMARY LAW:

A uasge is generally understood as a states practice.

Following elements tends to convert usage into custom:

1. Duration- generally it is long duration of time. But it is been seen that a usage could also
be converted into custom in short period od time

2. Uniformity of pactice

3. consistency

4. Reasonableness

5. Consent of individuals and states

ANS 7.

TREATIES:

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 Treaties and conventions are the persuasive source of international law and are considered
"hard law." Treaties can play the role of contracts between two or more parties, such as
an extradition treaty or a defense pact. Treaties can also be legislation to regulate a particular
aspect of international relations or form the constitutions of international organizations.
Whether or not all treaties can be regarded as sources of law, they are sources of obligation
for the parties to them. Article 38(1)(a) of the ICJ, which uses the term "international
conventions", concentrates upon treaties as a source of contractual obligation but also
acknowledges the possibility of a state expressly accepting the obligations of a treaty to
which it is not formally a party.

For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must
either be capable of affecting non-parties or have consequences for parties more extensive
than those specifically imposed by the treaty itself.

Thus, the procedures or methods by treaties become legally binding are formal source of law
which is a process by a legal rule comes into existence: it is law creating.

The term ―treaty‖ is used as a generic term embracing all kinds of international agreements
which are known by a variety of different names such as, conventions, pacts, general
acts, charters, statutes, declarations, covenants, protocols, as well as, the
name agreements itself. A treaty may be defined as an international agreement concluded
between States in written form and governed by International Law.

The law-making treaties constitute a primary source of International Law. Since the middle of
the nineteenth century, there has been an astonishing development of law-making treaties.
The rapid expansion of this kind of treaties has been due to the inadequacy of customs in
meeting the urgent demands arose from the changes which have been transforming the whole
structure of international life. Law-making treaties have been concluded to regulate almost
every aspect concerning the international community. Examples of important treaties are:
the Charter of the United Nations, the four Geneva Conventions of 1949, the Vienna
Convention on Diplomatic Relations of 1961, the International Covenant on Civil and
Political Rights of 1966, the Convention on the Law of the Sea of 1982, and the Outer Space
Treaty of 1967.

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 In contrast with the process of creating law through custom, treaties are a more modern, more
deliberate and speedy method. They are of growing importance in International Law. Their
role in the formation of new rules of International Law increases day after day. Today, the
law-making treaties are considered the most important primary source of Public International
Law.

Treaties as custom

Some treaties are the result of codifying existing customary law, such as laws governing the
global commons, and jus ad bellum. While the purpose is to establish a code of general
application, its effectiveness depends upon the number of states that ratify or accede to the
particular convention. Relatively few such instruments have a sufficient number of parties to
be regarded as international law in their own right. The most obvious example is the
1949 Geneva Conventions for the Protection of War Victims.

Most multi-lateral treaties fall short of achieving such a near-universal degree of formal
acceptance and are dependent upon their provisions being regarded as representing customary
international law and, by this indirect route, as binding upon non-parties. This outcome is
possible in a number of ways:

 When the treaty rule reproduces an existing rule of customary law, the rule will be
clarified in terms of the treaty provision. A notable example is the Vienna Convention on
the Law of Treaties 1969, which was considered by the ICJ to be law even before it had
been brought into force.
 When a customary rule is in the process of development, its incorporation in a multilateral
treaty may have the effect of consolidating or crystallizing the law in the form of that rule.
It is not always easy to identify when this occurs. Where the practice is less developed,
the treaty provision may not be enough to crystallize the rule as part of customary
international law.
 Even if the rule is new, the drafting of the treaty provision may be the impetus for its
adoption in the practice of states, and it is the subsequent acceptance of the rule by states
that renders it effective as part of customary law. If a broad definition is adopted of state
practice, the making of a treaty would fall within the definition. Alternatively, it is

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 possible to regard the treaty as the final act of state practice required to establish the rule
in question, or as the necessary articulation of the rule to give it the opinion juries of
customary international law.
 Convention-based "instant custom" has been identified by the ICJ on several occasions as
representing customary law without explanation of whether the provision in question was
supported by state practice. This has happened with respect to a number of provisions of
the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it
could deny to third parties the normal consequences of non-accession to the

The United Nations Charter

Pursuant to Chapter XVI, Article 103 of the United Nations Charter, the obligations under the
United Nations Charter overrides the terms of any other treaty. Meanwhile,
its Preamble affirms establishment of the obligations out of treaties and source of
international law.

Treaties are the principal source of Public International Law.

The Vienna Convention on the Law of Treaties defines a ‗treaty‘ as ‗an international
agreement concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever
its particular designation‘ (Article 2(1)(a)).

A treaty is an agreement between sovereign States (countries) and in some cases international
organisations, which is binding at international law. An agreement between an Australian
State or Territory and a foreign Government will not, therefore, be a treaty. An agreement
between two or more States will not be a treaty unless those countries intend the document to
be binding at international law.

Treaties can be bilateral (between two States) or multilateral (between three or more
States). Treaties can also include the creation of rights for individuals.

Treaties are commonly called 'agreements', 'conventions', `protocols' or `covenants' , and less
commonly `exchanges of letters'. Frequently, `declarations' are adopted by the UN General
Assembly. Declarations are not treaties, as they are not intended to be binding, but they may
be part of a process that leads ultimately to the negotiation of a UN treaty. Declarations may
also be used to assist in the interpretation of treaties.

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 TYPES OF TREATIES

:1. UNILATERAL

2. BILATERAL/MULTILATERAL

ANS 8.

GENERAL PRINCIPLES OF LAW

Article 38 of the Statute of the ICJ refers to ―the general principles of law recognized by
civilized nations‖ (all nations are now considered as civilised) as a primary source of
International Law. This source is listed the third after international conventions and
international customs. The Court shall apply the general principles of law in cases where
treaties and customs provide no rules to be applied.

There is no agreement on what the term ―general principles of law‖ means. Some say it
means general principles of international law; others say it means general principles of
national law. Actually, there is no reason why it should not mean both; the greater expansion
in the meaning of this term, the greater chance of finding rules to fill the gaps in Treaty Law
and Customary Law.

There are various opinions as to the origin of the general principles of law. Some regard them
as being originated from the Natural Law which underlies the system of International Law
and constitutes the criteria for testing the validity of the positive rules. Others regard them as
stemmed from the national legal systems (Positive Law) and have been transplanted to the
international level by recognition.

As is true of other aspect of international law, the question of general principles of law is a subject of
disagreement. Even the drafting materials, the travaux préparatoires of the drafting committee reveals
different views. The American member of the drafting committee, Elihu Root appeared to have in
mind principles recognised in national legal systems. Article 38(1)(c) of the Statute of the ICJ (UN
1945) refers to the general principles of law recognised by civilised nations, not general principles of

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 international law. However, there is reserve about inferring international law from municipal law
especially if 'Civilised Nations' was intended to mean western nations. A reason for the inclusion of
this source of international law is to assist in making decisions where there are gaps in the law. This
may allow an international court to avoid declaring the matter is legally unclear, non liquet, and thus
decline to resolve the dispute in question. Some basic principles of law commonly cited include: The
principle of good faith, which is being faithful to a sense of obligation; the bar against a party raising a
claim again after it has been settled by judicial decision (res judicata); and the bar that precludes
taking a position which is contrary to a position already established either by previous admission or
action and legally determined as being true (estoppel).

he scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is
unclear and controversial but may include such legal principles that are common to a large
number of systems of municipal law. Given the limits of treaties or custom as sources of
international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap
in the law and prevent a nonliquet by reference to the general principles.

In earlier stages of the development of international law, rules were frequently drawn from
municipal law. In the 19th century, legal positivists rejected the idea that international law
could come from any source that did not involve state will or consent but were prepared to
allow for the application of general principles of law, provided that they had in some way
been accepted by states as part of the legal order. Thus Article 38(1)(c), for example, speaks
of general principles "recognized" by states. An area that demonstrates the adoption of
municipal approaches is the law applied to the relationship between international officials and
their employing organizations, although today the principles are regarded as established
international law.

The significance of general principles has undoubtedly been lessened by the increased
intensity of treaty and institutional relations between states. Nevertheless, the concepts
of estoppel and equity have been employed in the adjudication of international disputes. For
example, a state that has, by its conduct, encouraged another state to believe in the existence
of a certain legal or factual situation, and to rely on that belief, may be estopped from
asserting a contrary situation in its dealings. The principle of good faith was said by the ICJ
to be "one of the basic principles governing the creation and performance of legal
obligations". Similarly, there have been frequent references to equity. It is generally agreed
that equity cannot be employed to subvert legal rules (that is, operate contra legem). This

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 "equity as law" perception is reinforced by references to equitable principles in the text of
the United Nations Convention on the Law of the Sea 1982, though this may be little more
than an admission as to the existence, and legitimation, of the discretion of the adjudicator.

However, the principles of estoppel and equity in the international context do not retain all
the connotations they do under common law. The reference to the principles as "general"
signify that, if rules were to be adapted from municipal law, they should be at a sufficient
level of generality to encompass similar rules existing in many municipal systems. Principles
of municipal law should be regarded as sources of inspiration rather than as sources of rules
of direct application.

The statutory recognition of res judicata is—according to most—found in Article 38(1)(c) of

the ICJ Statute, as a general principle of law recognized by civilized nations In fact, when
Lord Phillimore was entrusted in 1920, by the Advisory Committee of Jurists, with the task
of drafting the PCIJ‘s Statute, he stated that ‗the general principles […] were these which
were accepted by all nations in foro domestico, such as certain principles of procedure, the
principle of good faith, and the principle of res judicata‘. From that point onwards, the idea
of res judicata, deeply embedded in domestic systems, Brought into public international law
by virtue of Article 38 (1)(c) of the ICJ Statute, became popular .

Reciprocity in IL can be best described as a creator of balance between the interests and
actions of States. In effect, it creates a balance between the rights, duties and obligations of
States where States can have a sense of balance and fairness in their respective duties and
obligations but also with respect to their rights. Reciprocity plays a pivotal role in balancing
interests of States, since inter-State negotiations include a degree of equalising gains and
advantages in the light of the various interests of each State

ANS 9

A United Nations General Assembly Resolution is a decision or declaration voted on by all

member states of the United Nations in the General Assembly.

General Assembly resolutions usually require a simple majority (50 percent of all votes plus
one) to pass. However, if the General Assembly determines that the issue is an "important
question" by a simple majority vote, then a two-thirds majority is required; "important
questions" are those that deal significantly with maintenance of international peace and
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 security, admission of new members to the United Nations, suspension of the rights and
privileges of membership, expulsion of members, operation of the trusteeship system, or
budgetary questions.

the legal effects of resolutions of the United Nations Security Council (SC) and General
Assembly (GA), as established in the judgments and opinions of the International Court of
Justice (ICJ), have focused on binding effect, with only passing references to other
substantive effects such as authorizing effect and (dis)empowering effect or to the modal
effects that shape them and the factual and legal determinations that trigger them.1 This
article aims to correct that imbalance.

The effects differ according to the type of resolution.2 The term ‗resolution‘ as used in UN
practice has a generic sense, including recommendations and decisions, both of which have a
vague and variable meaning in the Charter.3 The Court, on the other hand, reserves the
expression ‗decision‘ for binding resolutions and ‗recommendation‘ for non-binding ones.4 A
resolution is ‗binding‘ when it is capable of creating obligations on its addressee(s).5 There is
some disagreement over whether declarations, which in theory only interpret the Charter or
assert the content of general international law,6 constitute a sub-category of
recommendations or a separate category. Our analysis will show that there is a point in
treating these as a separate category. Note that a resolution, as a formal instrument, may
combine different provisions that, substantively, respectively recommend, decide or declare.
These three expressions will here be used in their substantive meaning, whereas ‗resolution‘
will, depending on the context, either be a generic substantive term or designate the formal
instrument.

Other factors relevant for the effects are the conventional7 or customary8 legal basis of the
resolutions, their compatibility with the Charter (intra vires or ultra vires),9 their addressees
(one member, some members, all members, other UN organs ...), their subject matter (to
which the Charter may attach different legal consequences), their terminology (shall as
opposed to should, recommend as opposed to demand, etc.), and, for the possible effects on
international customary law, the ways they are adopted, who and how many vote for and
against them, and perhaps even why they do so.10 But the title of the resolutions (declaration,
code, charter...) is irrelevant, as is the express or implied nature of the powers upon which
their adoption is based.11

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 The most fundamental factor is whether the effects are intrinsic or extrinsic. Intrinsic effects
stem directly and immediately from the adoption of the resolution, on the basis of powers
supplied by a treaty or the customary law internal to it (usually the UN Charter, but possibly
another treaty making use of the existing UN institutional structure12). Extrinsic effects
spring from the resolution but are, due to the adopting body‘s lack of the necessary powers,
directly based on international customary law.13 The difference between the two hypotheses
is the absence or presence, between the resolution and general international law, of an
intermediate legal basis providing the adopting body with the relevant special powers.

There are three basic types of legal effects.14 A legal rule, when triggered by a determination
that the conditions for its application are fulfilled, states the obligations, rights and powers
that result.15 A resolution may therefore have the legal effect of (i) creating obligations,
rights and/or powers (which we shall call ‗substantive effects‘)16, and/or (ii) making
determinations17 of facts (e.g. that an alleged fact is true) or legal situations (e.g. that an
obligation was violated), which trigger the substantive effects (‗causative effect‘). To this
should be added (iii) how and when the substantive effects operate (‗modal effects‘). Each of
these categories has a dual nature according to whether the effects are intrinsic or extrinsic.
By showing this, the present article aims to contribute to the basic theory of the legal effects
of unilateral instruments in public international law.18

Several issues are closely related to the present topic, yet fall outside of it. Sometimes there is
only an illusion of legal effects. This is the case when a resolution simply restates an
obligation, a right or a power that already exists. Declarations in principle only interpret or
restate the law, in which case they have no legal effect. Likewise, a resolution which merely
interprets the Charter does not, in theory, have any legal effect of its own. To the extent that it
details and substantially adds to the Charter, any ensuing legal effect does not come from the
resolution of a given organ, but from the fact that it may be considered generally acceptable
by UN Members.19 Here we find legal effects, but they do not originate in the resolution.
Legal effects deriving from someone‘s (anticipatory or subsequent) acceptance of a
resolution, or the particular way in which it was adopted, or obligations protracted on its
basis,20 do not stem from the resolution itself.

The ICJ has not recognized any intrinsic legal effects based on customary norms internal to
the UN legal order or operating on general international law.21 Hence, this section is limited
to effects based on treaty law and operating on the UN legal order. Most of the Court‘s
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 discussions of the legal effects of GA and SC resolutions have concerned the existence, force
and scope of binding effect. But it has also dealt with authorizing effect, which is not
necessarily the mirror image of binding effect, and (dis)empowering effect. Finally, the Court
has begun to outline its approach to the causative and modal effects respectively triggering
and shaping the substantive ones.

A Binding Effect

Discussions of binding effect abound in ICJ jurisprudence and legal literature. Consequently,
this section will only provide a concise overview. Only decisions have binding effects;
recommendations do not.22 Crudely put, the decisional powers of the GA are restricted to
‗organizational‘ matters internal to the UN legal order (including semi-external matters such
as the budget, or admission, suspension and expulsion of members), while the SC also
possesses decisional powers in the ‗operational‘ realm of international peace and security.23

1 The Binding Effect of GA Decisions

The binding effect of GA decisions is limited, ratione materiae, to organizational matters, but
may cover, ratione personae, the entire UN sphere.

Although GA resolutions are recommendatory as a rule,24 especially regarding external

relations with Member States,25 the Court has recognized the binding legal effect of GA
decisions pertaining to the admission of new Member States,26 voting procedure,27 or
apportionment of the budget,28 and in general has confirmed that the Court possesses certain
powers of decision.29 The Court has never clarified whether the GA has any decisional
powers in mandate/trusteeship matters.30 Resolutions of the GA have no binding effect in the
operational realm of international peace and security. Neither the GA‘s budgetary powers in
this area, nor its enforcement powers to suspend or expel UN Members, fall outside of the
organizational sphere.31

Ratione personae, GA decisions obviously bind their (valid) addressees. They may also bind
the UN at large, and consequently all Member States, e.g. through their regular contributions
to the budget.32 This generalized effect includes those that voted against the decision, such as
the trustee state in questions pertaining to its trusteeship.33 So the binding scope of GA
decisions covers the entire internal UN sphere.

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 2 The Binding Effect of SC Decisions

The ICJ has not definitively decided whether SC decisions possess an overriding binding
effect, but it has specified that the binding effect includes, ratione materiae, operational
matters and covers, ratione personae, all Member States.

Unlike the recommendations of the SC,34 its decisions have binding force,35 but the Court
has made only a provisional finding that SC decisions have an overriding normative power
capable of pre-empting obligations flowing from traditional sources of international
law.36 Recognizing such overriding binding force would give a secondary source of UN law
(decisions) a greater normative value than many primary sources of international law
(treaties) – thereby giving the SC a potentially very disruptive power – and would ultimately
place great faith in the SC truly acting on behalf of all Member States.37

Ratione materiae, the binding effect of SC resolutions belongs to the realm of international
peace and security38 and includes enforcement under Chapter VII of the UN Charter,39 but
is not limited to that.40 Since just about any significant international event or situation can be
characterized as a threat to peace and security,41 the scope of the SC‘s binding powers, if
combined with an overriding binding force, would make the SC a dauntingly powerful organ.
Whether a specific SC resolution is binding is determined by the language used in it, the
discussions leading to it, the Charter provisions invoked, etc.,42 all with the purpose of
establishing the intent of the SC.43 The precise content of the binding effect is left to the SC
itself,44 but the Court has found certain ‗implicit‘ legal effects and, inversely, put some limits
on the effects45 when these conflict with the principles and purposes in Chapter I of the UN
Charter.46 This limitation is too vague to have much practical value in the absence of any
organ competent to review the validity of SC resolutions.47

Ratione personae, an SC decision may bind all UN Member States, including ‗those
members of the Security Council which voted against it and those Members of the United
Nations who are not members of the Council‘.48 As for non-Member States, the most
coherent interpretation of a difficult passage in the Namibia opinion rejects any direct binding
effect.49 This interpretation respects the basic principle that treaties only bind parties, and
avoids the difficult question of whether the UN Charter is subject to special rules within the
law of treaties. It also leads to the same practical outcome since just about every state is now
a member of the UN.

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 Impact on International Customary Law?

If a UN resolution merely interprets pre-existing substantive international norms, it may be

helpful for understanding and applying them. If it restates existing international norms, it may
have an evidentiary value for establishing these. But in neither case does the resolution have
any impact on the state of the law. Granted, in practice it can be hard to draw the line
between what, on the one hand, is merely interpretative or declaratory and what, on the other
hand, is truly creative. The Court has often been vague in separating the impact of UN
resolutions on customary law from their interpretative or evidentiary value. After having been
entirely unclear in the 1970s, the Court gained in clarity in the 1980s and then retreated again
in the 1990s.

In the 1970s, the Court identified GA declarations as a ‗further important stage‘ in the
development of international law,96 or inferred the ‗existing rules of international law‘ from
them,97 but made no mention of how or why this could be done.98

The 1986 Nicaragua judgment achieved greater clarity. For instance, it found that the
description of acts constituting armed attacks annexed to GA Resolution 3314 (XXIX) ‗may
be taken to reflect customary international law‘.99 The word ‗reflect‘ indicates that GA
resolutions are here used as evidence of customary law100 and are therefore not given any
legal effect.

But the Nicaragua opinion also took a different approach, this time confirming that UN
resolutions may have an impact on customary law. Searching for an opinio juris concerning
the rule of abstention from the threat or use of force against the territorial integrity or political
independence of other states, the Court found that:

This opinio juris may, though with all due caution, be deduced from, inter alia,
the attitude of the Parties and the attitude of States towards certain General
Assembly resolutions, and particularly resolution 2625 (XXV) entitled
‗Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United
Nations‘. The effect of consent to the text of such resolutions cannot be
understood as merely that of a ‗reiteration or elucidation‘ of the treaty
commitment undertaken in the Charter. On the contrary, it may be understood

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 as an acceptance of the validity of the rule or set of rules declared by the
resolution by themselves.101

SECURITY COUNCIL RESOLUTIONS:

The Security Council has primary responsibility for the maintenance of international peace
and security.

Some of its actions have international law implications, such as those that relate
to peacekeeping missions, ad hoc tribunals, and sanctions. In accordance with Article
13(b) of the Rome Statute, the Security Council can refer certain situations to the Prosecutor
of the International Criminal Court (ICC), if it appears international crimes (genocide, crimes
against humanity, war crimes, the crime of aggression) have been committed.

ANS10

EQUITY:

According to Montesquieu, human reason is the heart of law, and for that reason it is not
difficult to find similarities in the fundamental principles of all legal systems. Human reason
should be supported by morality and a sense of justice. Thus, law comes closer to equity. The
relationship between law and equity found expression in ancient laws. It found expression not
only in the Biblical' law but also in other scriptures. The canon law of Rome gave a definite
recognition to equity, and in fact, the term "equity" is derived from the Roman aequitas. Early
societies used to interpret the sanctity and function of law in relation to morality.

the importance of equity in the administration of justice can hardly be over-emphasised. The
recognition of this aspect of justice has been explicit in some legal systems and implicit in
others, but nowhere can a clear definition of equity be found. Consequently, this has given
rise to much speculative work on the nature, content, and uses of equity not only in municipal
legal systems, but also in the sphere of international law.

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 According to Jowitt's Dictionary of English Law,3 "equity" means "fairness or that rule of
conduct which in the opinion of a person or class ought to be followed by all other persons."
The term "fairness" is the crucial word in this context. Despite the jurisprudential complexity
attached to the word, it may be safer to assume that the meaning of the term should be traced
in its benignant spirit and in the complex of circumstances. Jowitt further elaborated that
moral equity "should be the genius of every kind of human jurisprudence; since it expounds
and limits the language of the positive laws, and construes them not according to their strict
letter, but rather in their responsible and benignant spirit." However, in all fairness it may be
stated that in his attempt to "define" equity, Jowitt "described" equity. Because the
connotation of the term covers a wide area, it is difficult to define it. Therefore, equity has
been descriptive rather than definitive.

Therefore, the meaning of equity can always be found in its attributes, which are traceable
both in the municipal and international legal systems. It is in this sense that equity has been
applied by international tribunals, arbitral or otherwise, in the administratin the North Sea
Continental Shelf Cases,"' the International Court has been quite specific as to the meaning of
equity. The Court said: On a foundation of very general precepts of justice and good faith,
actual rules of law are here involved which govern the delimitation of adjacent continental
shelves-that is to say, rules binding upon States for all delimitations;-in short, it is not a
question of applying equity simply as a matter of abstract justice, but of applying a rule of
law which itself requires the application of equitable principles, in accordance with the ideas
which have always underlain the development of the legal regime of the continental shelf in
this field, namely:

(a) the parties are under an obligation to enter into negotiations with a view to arriving at an
agreement, and not merely to go through a formal process of negotiation as a sort of prior
condition for the automatic application of a certain method of delimitation in the absence of
agreement; they are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position
without contemplating any modification of it;

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 (b) (b) the parties are under an obligation to act in such a way that, in the particular case, and
taking all the circumstances into account, equitable principles are applied,-for this purpose
the equidistance method can be used, but other methods exist and may be employed, alone or
in combination, according to the areas involved. The Court found that the Continental Shelf
of any state must be the natural prolongation of its land territory and must not encroach upon
what is the natural prolongation of the territory of another state. What was noticeable in the
judgment was that as "no one single method of delimitation was likely to prove satisfactory in
all circumstances, ... [a] delimitation should, therefore, be carried out by agreement (or by
reference to arbitration); and. . . that it should be effected on equitable

Therefore, on a further interpretation of the Court's statement, it may be stated that even
where "practice" is not uniform and consequently law is not uniform either, decisions should
be effected on equitable principles not only to uphold justice but also to avoid inconsistency
with certain basic legal notions. This is not true, of course, if the parties themselves agree to
settle the dispute by agreement or to refer such a dispute to arbitration. The Court also found
that in order to attribute appropriate meaning to equity, various relevant factors should be
considered, as were geological and geographical factors in the present case,' and a reasonable
degree of proportionality among factors should be maintained. However, the meaning of
equity should not be extended too far. At this point caution should be exercised as to the
elements which should be included in explaining the meaning of equity. First, in examining
the growth of equity in international law, no attempt should be made to emphasise the
contribution of any particular municipal legal system. Secondly, "equity" does not necessarily
imply "equality," because in order to maintain equality in the theoretical sense, an inequity
may be created.

ANS11.

MEANING AND DEFINITION:

Recognition of state - ―the formal acknowledgement or acceptance of a new state

international personality by the existing States of the International community‖.
It the acknowledgement by the existing state that a political entity has the characteristics of
statehood

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 ESSENTIALS FOR RECOGNITION AS A STATE;

Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state
as a person and lays down following essentials that an entity should possess in order to
acquire recognition as a state:

1. It should have a permanent population.

2. A definite territory should be controlled by it.

3. There should be a government of that particular territory.

4. That entity should have the capacity to enter into relations with other states.

THEORIES OF RECOGNITION:

CONSTITUTIVE THEORY:

The main exponents related to this theory are Oppenheim, Hegal and Anziloti. According to
this theory, for a State to be considered as an international person, its recognition by the
existing states as a sovereign is required. This theory is of the view that only after recognition
a State gets the status of an International Person and becomes a subject to International
Law. So, even if an entity possesses all the characteristics of a state, it does not get the status
of an international person unless recognized by the existing States. This theory does not mean
that a State does not exist unless recognized, but according to this theory, a state only gets the
exclusive rights and obligations and becomes a subject to International Law after its
recognition by other existing States.

DECLARATORY THEORY:

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

MODES OF RECOGNITION:

There are two modes of recognition of State:

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 1. DE FACTO RECOGNITION

It is extended where a govt. has not acquired sufficient stability.

It is provisional (temporary or conditional0 recognition. It is not legal recognition.

However, it is recognition in principle.

Three conditions for giving de-facto recognition.

(i) permanence

(ii) the govt. commands popular support

(iii) the govt. fulfills international obligations.

2. DE JURE RECOGNITION:

It is legal recognition.

It means that the govt. recognized formally fulfills the requirement laid down by
International law.
De-jure recognition is complete and full and normal relations can be maintained.

EXAMPLES OF DE FACTO RECOGNITION:

One of the examples of de facto and de jure recognition is the recognition of the Soviet Union
was established in 1917. It was de facto recognized by the government of UK in 1921 but it
was not given de jure recognition until 1924.

Bangladesh was established in March 1971. India and Bhutan recognized it just after 9
months of establishment but the United States gave it legal recognition after nearly 1 year in
April 1972.

One of the examples of de facto and de jure recognition is the recognition of the Soviet Union
was established in 1917. It was de facto recognized by the government of UK in 1921 but it
was not given de jure recognition until 1924.

Bangladesh was established in March 1971. India and Bhutan recognized it just after 9
months of establishment but the United States gave it legal recognition after nearly 1 year in
April 1972.

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 IMPLIED RECOGNITION:

When the existing state recognizes a newly formed state through any implied act, then it is
considered as an implied recognition.

Implied recognition can be granted through any implied means by which a current state
treats the newly formed state as an international person. The implied credit not granted
through any official notification or declaration. The recognition through implied means varies
from case to case.
WITHDRAWAL OF DE JURE RECOGNITION:

Withdrawal of de jure recognition is a very debatable issue under the International

Law. Withdrawal of a de jure recognition is a very exceptional event. If strictly interpreted,
the de jure recognition can be withdrawn.

Even though the process of recognition is a political act, de jure recognition is of legal nature.
Jurists who consider de jure recognition as a political act considers it revocable.

Such revocation of de jure recognized states can be withdrawn only when a state loses the
essential characteristics of statehood or any other exceptional circumstances. This type of
revocation can be done expressly by the recognizing state by issuing a public statement.

RETROACTIVE EFFECTS OF RECOGNITION:

The recognition of a state or government is "retroactive" to the date when it first became
established as a state or government. Although this may be true, under the existing doctrine
of the English and American courts, for municipal purposes. When a state acquires
recognition, it gains certain rights, obligations and immunities. It acquires the capacity to
enter into diplomatic relations with other states. It acquires the capacity to enter into treaties
with other states.

The state is able to enjoy the rights and privileges of international statehood. The state can
undergo state succession. With the recognition of state comes the right to sue and to be sued.
The state can become a member of the United Nations organization.

ANS 12

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 EXTRADITION:

In Black’s Law Dictionary, extradition has been defined as ―The surrender by one state or
Country to another of an individual accused or convicted of an offense outside its own
territory and within the territorial jurisdiction of the other, which, being competent to
try and punish him, demands the surrender.‖

Hence, Extradition is the act of sending a person from one jurisdiction to another where
he/she is accused of committing a crime and is being demanded to get them tried as per the
legal procedure in the sovereign demanding such person.
PURPOSE OF EXTRADITION:

Extradition is a process towards the suppression of crime. Criminals are therefore extradited
so that their crimes may not go unpunished. Extradition acts as a warning to the criminals
that they cannot escape punishment by fleeing to another state.Criminals are surrendered as it
safeguards the interest of the territorial state. Extradition is based on reciprocity. A state
which is requested to surrender the criminal today may have to request for extradition of a
criminal on some future date. Extradition is done because it is a step towards achievement of
international cooperation in solving international problems of a social character. The state on
those territory the crime has been committed is in a better position to try the offender because
the evidence is more freely available in that state only.

LEGAL STATUS OF EXTRADITION:

As per the Indian Law, the extradition of an escapee or fugitive from India to another nation
or vice versa is dealt by the rules laid down in the Extradition Act, 1962. This law forms the
legislative basis for extradition in India. The Extradition act deals with two schedules and
five chapters. The Government of India till date has entered into Bilateral Extradition treaties
with 42 countries to make the extradition process efficient and hassle-free. Apart from this,
our country has entered into extradition arrangement with 9 countries as well. Extradition
request can be made by India to any country. The countries with which India has a treaty have
the obligation to consider the request due to the treaty between the two countries.

DOCTRINE OF DOUBLE CRIMINALITY:

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 Also known as the Principle of Dual Criminality, it is one of the most significant principles
governing the law of extradition. It states that extradition process can only happen when the
criminal act under scrutiny is an offense in both the jurisdiction of the sovereign states. In
order to ensure that a crime is recognized in both the states ,a list of offences is attached in
the extradition laws of some states. But generally, a list of crimes is embodied in the treaties
for which extradition is done.

OPPORTUNITY OF FAIR TRAIL:

Before the Extradition process is initiated by the requested state it is ensured that the fugitive
will be given a chance to represent himself under a procedure of fair trial in the requesting
state. This principle is read with the principle of non-inquiry, where the requesting state is
under no obligation to subject its judicial procedures as per the punctilious evaluation criteria
of the requested state. This principle isn‘t absolute and rigid in nature but the requested state
can question the judicial procedure in the requesting state if the same is on the face of it is
against the principle of law and justice. Also, political offenses (crimes directed against the
security or government of a nation, such as treason, sedition, espionage, murder during a
revolution, etc.) are generally excepted from extradition. As with any treaty, dramatic change
to a nation's government can threaten the integrity of an extradition treaty. Extradition or
non-extradition of its own nationals depends upon the wordings of the extradition treaties.
Nationals may therefore be extradited if there is no bar in the national extradition law or in
the treaty. But if the restriction is imposed therein regarding the extradition of its own
nationals, it becomes a duty

ANS 13

ASYLUM:

Asylum is a Latin word and it derives its origin from a Greek word ―Asylia‖ meaning
inviolable place. The term asylum in common parlance means giving protection and
immunity by a state to an individual from their native country. In day to day conversation, the

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 term asylum is used interchangeably with the term refugee, there is difference between the
two procedurally where a person who is still overseas seeks protection from a nation when
given patronage after reaching there is given the title of a refugee whereas in asylum the
person seeks the protection from a nation after reaching there and hence is known as asylee or
asylum seeker.

BASIS OF ASYLUM:

A state has a right to grant asylum to a person on the principle that it has a sovereign right to
control over the individuals found on its territory. Thus, the right of territorial asylum has
been conferred to a state on the basis of its sovereignty over the territory.

PURPOSE OF ASYLUM:

The main purpose of asylum is to give shelter to those who have well-rounded fear in their
home countries of persecution. The Universal Declaration of Human Rights under article 14
(1), provides that ―Everyone has the right to seek and to enjoy in other countries asylum from
persecution‖.

FORMS OF ASYLUM:

TERRITORIAL ASYLUM:

It is granted in the territorial boundary of a state providing asylum. Every sovereign state has
the right to control and maintain jurisdiction on its territory, hence the decision to extradite
someone or give them asylum is totally under its discretion. Thus a state has territorial
sovereignty over all its subjects and aliens. Territorial asylum is based mainly on the national
law of the sovereign.

EXTRA-TERRITORIAL ASYLUM:

This form of asylum is usually granted by a state beyond its state territory and usually at
places which are not a part of its physical territory. In such case, a state providing asylum in

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 its embassy established in a foreign state is called Diplomatic Asylum. Asylum may also be
granted to asylee in Warships because they are exempted from the jurisdiction of the foreign
state in whose water it is operating. Such warships are under the patronage of the Flag state.
The same is not the case with merchant‘s vessels as they are not immune to the provisions of
international law. Hence, Extra-territorial Asylum is based on the framework of International
Law Conventions.

LEGAL STATUS OF ASYLUM:

National and International law are the only two forms which support and govern the practice
of Asylum.

India which is home to one of the largest refugee population in South Asia has no specific
law dealing with the issue of asylum and is yet to enact one. Refugee and asylum seekers in
India are subject to various non-specific laws like The Registration of Foreigners Act, 1939,
The Foreigners Act, 1946, Foreigners Order, 1948, and Passport Act, 1920These laws are
used by the Indian government officials in order to deal with the intricacies arising out of the
entry of refugees and asylum seekers in our country. Since there is no specific asylum policy
in India, the government grants asylum on a case-to-case basis.

ANS 14.

TERRITORIAL SEA:

The law of the sea is a body of customs, treaties, and international agreements by which
governments maintain order, productivity, and peaceful relations on the sea. The entire sea
was divided into 3 parts, viz. territorial sea, contiguous zone and the high seas.

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 UNCLOS:—

Law of the Sea is a body of international law governing the rights and duties
of states in maritime environments. It concerns matters such as navigational rights, sea
mineral claims, and coastal waters jurisdiction. While drawn from a number of international
customs, treaties, and agreements, modern law of the sea derives largely from the United
Nations Convention on the Law of the Sea (UNCLOS), effective since 1994, which is
generally accepted as a codification of customary international law of the sea, and is
sometimes regarded as the "constitution of the oceans". Law of the sea is the public
law counterpart to admiralty law (also known as maritime law), which applies to private
maritime issues, such as the carriage of goods by sea, rights of salvage, ship collisions,
and marine insurance.

INNOCENT PASSAGE- RIGHT OF COASTAL STATES:

All States have the right of innocent passage through the territorial sea of another state,
although there is no right of innocent air space passage. Innocent passage is considered
moving through the territorial sea in a way that is not prejudicial to the security of the coastal
State, including any stopping and anchoring necessary to ordinary navigation. Innocent
passage implies two important limits to the power of coastal State jurisdiction in the
territorial sea:

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 (1) the obligation not to hamper, deny, or impair the right of innocent passage; and

(2) the recognition of innocent passage even in the case of vessel-source pollution as long as
the pollution is not willful and serious.

With notice, innocent passage may be suspended in specified areas of the territorial sea for
security reasons.

CONTIGUOUS ZONE:

The contiguous zone is a band of water extending farther from the outer edge of the
territorial sea to up to 24 nautical miles (44.4 km; 27.6 mi) from the baseline, within which a
state can exert limited control for the purpose of preventing or punishing "infringement of its
customs, fiscal, immigration or sanitary laws and regulations within its territory.

The same provision is being provided under article 24 of the Geneva convention and article
33 of united nations conventions on laws of the sea ,1982.

ANS 15

EEZ:

It is referred to as an area beyond and adjacent to the territorial waters and the limit of such
zone is two hundred nautical miles from the baseline. Continental shelf was an older concept
in international law to define maritime jurisdiction of the coastal state which has now largely
been replaced worldwide by concept of EEZ which prescribes a uniform limit of 200 nauticle
miles irrespective of the natural prolongation of the continental shelf. In this zone a coastal
state has the exclusive right to exploit or conserve any resources found within the water ,on
the sea floor or under the sea floors subsoil. These resources encompass both living and non-
living resources.

Offshore energy generation from waves, currents, wind. Art 56 of UNCLOS provides for the
same provision.

CONTINENTAL SHELF:

The area of seabed around a large land mass where the sea is relatively shallow compared
with the open sea . A continental shelf is a portion of a continent that is submerged under an

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 area of relatively shallow water known as a shelf sea. Under the united nations conventions
on the law of the sea, the name continental shelf was given a legal definition as the stretch of
the seabed adjacent to the shores of a particular country to which it belongs. THE
COMMISSION ON THE LIMITS OF CONTINENTAL SHELF:

The definition of the continental shelf and criteria for the establishment of its outer units are
set out in Article 76 of the convention. Continental shelf is that part of the continental margin
which is between the shoreline and the shelf break, or where there is no noticeable slope,
between the shoreline and point where the depth of the superjacent water is approx. between
100 and 200 mtrs.

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.

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 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.‖

CRIMES:

Piracy

Slavery

Unlawful trade etc

ANS 16

PROHIBITION OF USE F ORCE:

The use of force by states is controlled by both customary international law and by treaty law.
The UN Charter reads in article 2(4):

All members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations.

This principle is now considered to be a part of customary international law, and has the
effect of banning the use of armed force except for two situations authorized by the UN
Charter.

Article 51 also states that: "Nothing in the present Charter shall impair the inherent right to
individual or collective self-defence if an armed attack occurs against a state.―

There are also more controversial claims by some states of a right of humanitarian
intervention, reprisals and the protection of nationals abroad.

Typically measures short of armed force are taken before armed force, such as the imposition
of sanctions.

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 The first time the Security Council authorized the use of force was in 1950 to secure a North
Korean withdrawal from South Korea. Although it was originally envisaged by the framers of
the UN Charter that the UN would have its own designated forces to use for enforcement, the
intervention was effectively controlled by forces under United States command.

The major developments in international law is the prohibition of use of threat together with
the use of force itself.

A system of collective sanctions against any offending state that uses force protects this
prohibition

These sanctions are found in article 39- 51 of the UN charter-

To maintain international peace and security and to that end: to take effective collective
measures for the prevention and removal of

1. threats to the peace

2. suppression of acts of aggression

3. other breaches of the peace and to bring about by peaceful means

4. settlement of international disputes

As according to article 1(1) of the UN charter is to maintain international peace, security and
stability.

One way of achieving this goal is to prohibit the use of force amongst states.

In order to achieve this aim ,art 2(4) contains a prohibition on this use of force

The question whether a right of anticipatory self-defence has survived the UN Charter
remains controversial, among States and among authors.

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 During the Cold War, one side seemed to take the position that action in self-defence was
only lawful if an armed attack had actually been launched.

IMMINENT ATTACK -CASE LAW:

It is […] the Government‘s view that international law permits the use of force in self-
defence against an imminent attack but does not authorize the use of force to mount a pre-
emptive attack against a threat that is more remote‖.

The application of the imminence criterion can be difficult in practice. A classic example is
the Israeli attack on a nuclear plant in Iraq in 1981. On 7 June 1981, Israel bombed a research
centre near Baghdad, destroying the Osirak nuclear reactor which, it said, was developing
nuclear bombs that would have been ready for use against Israel in 1985.

The Security Council, after extended debate, unanimously and strongly condemned ‗the
military attack by Israel in clear violation of the Charter of the United Nations and the norms
of international conduct.‘

The debate focused on the necessity of Israel‘s actions. It was agreed that Israel had failed to
exhaust all peaceful means for resolution of the matter. Israel had also failed to produce
evidence that it was threatened with an imminent attack.

Such a legal basis is available, under the doctrine of humanitarian intervention,

conditions are (i) there is convincing evidence, generally accepted by the international
community as a whole, of extreme humanitarian distress on a large scale, requiring
immediate and urgent relief;

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 (ii) it must be objectively clear that there is no practicable alternative to the use of force if
lives are to be saved; and

(iii)the proposed use of force must be necessary and proportionate to the aim of relief of
humanitarian need and must be strictly limited in time and scope to this aim (i.e. the
minimum necessary to achieve that end and for no other purpose).‖

The provision of self defense is allowed until the un security council has intervened.

It could be both individual and collective self defence.

The best example is of Nicargua case,ICJ

Article 51, preserves the right to self defense and outlines the procedures to be followed in
case of an armed attack.

The right of ―collective self-defense‖ was enshrined in Article 51 of the 1945 United Nations
Charter. It refers to the right of all UN countries to use military force to defend other member
nations from attack. It has provided the basis for all UN-authorized military operations, from
the Korean War onwards.

PERMISSIBLE USE OF FORCE:

It is observed that, an irregular forceful attack can prompt the use of force in case of armed
attack

Eg- as in case of 9/11 attacks, where the security council allowed the US to use force against
the terrorists.

The use of self defense is limited in customary international law

There is no right to pre-emptive self defense when an armed attack has occurred , a state does
not have to wait for an armed attack to actually occur to use force.

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 LEADING CASE :NICARGUA VS. USA

Overview:

The case involved military and paramilitary activities carried out by the United States
against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities
violated international law.

Facts of the Case:

In July 1979, the Government of President Somoza was replaced by a government installed
by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former Somoza
Government and former members of the National Guard opposed the new government. The
US – initially supportive of the new government – changed its attitude when, according to the
United States, it found that Nicaragua was providing logistical support and weapons to
guerrillas in El Salvador. In April 1981 the United States stopped its aid to Nicaragua and in
September 1981, according to Nicaragua, the United States ―decided to plan and undertake
activities directed against Nicaragua‖.

The armed activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with
Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the
border with Costa Rica. Initial US support to these groups fighting against the Nicaraguan
Government (called ―contras‖) was covert. Later, the United States officially acknowledged
its support (for example: In 1983 budgetary legislation enacted by the United States Congress
made specific provision for funds to be used by United States intelligence agencies for
supporting ―directly or indirectly military or paramilitary operations in Nicaragua‖).

Nicaragua also alleged that the United States is effectively in control of the contras, the
United States devised their strategy and directed their tactics, and that the contras were
paid for and directly controlled by the United States. Nicaragua also alleged that some attacks
against Nicaragua were carried out, directly, by the United States military – with the aim to
overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of
Nicaraguan ports, and other attacks on ports, oil installations, and a naval base. Nicaragua

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 alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather
intelligence, supply to the contras in the field, and to intimidate the population.

The United States did not appear before the ICJ at the merit stages, after refusing to accept
the ICJ‘s jurisdiction to decide the case. The United States at the jurisdictional phase of the
hearing, however, stated that it relied on an inherent right of collective self-defence
guaranteed in A. 51 of the UN Charter when it provided ―upon request proportionate and
appropriate assistance…‖ to Costa Rica, Honduras, and El Salvador in response to
Nicaragua‘s acts of aggression against those countries (paras 126, 128).

NOTE:THIS UNIT IS SMALL ,SO THE CONTENTS ARE OVERLAPPING

ANS 20

RESPONSIBLITY TO PROTECT:

The Responsibility to Protect (R2P or RtoP) is a global political commitment which was
endorsed by all member states of the United Nations at the 2005 World Summit in order to
address its four key concerns to prevent genocide, war crimes, ethnic cleansing and crimes
against humanity.

Sometimes use of force can be linked with other political reasons when it comes to protection
of nationals.

It is used as a veil to cover political agendas.

International non govt. organizations have also played a functional role to promote
responsibility to protect

They are focused in perspective of human rights violations.

Importance of use of military force to avert cases of terrorism and associated activities.

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 E.g.- Kosovo's crisis in 1999

In cases of violation of human rights violations, humanitarian intervention could be justified.

Debating the right to ―humanitarian intervention‖ (1990s) Following the tragedies in Rwanda
and the Balkans in the 1990s, the international community began to seriously debate how to
react effectively when citizens‘ human rights are grossly and systematically violated. The
question at the heart of the matter was whether States have unconditional sovereignty over
their affairs or whether the international community has the right to intervene in a country for
humanitarian purposes. In his Millennium Report of 2000, then Secretary-General Kofi
Annan, recalling the failures of the Security Council to act in a decisive manner in Rwanda
and the former Yugoslavia, put forward a challenge to Member States: ―If humanitarian
intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a
Rwanda, to a Srebrenica, to gross and systematic violation of human rights that offend every
precept of our common humanity?‖ From humanitarian intervention to the responsibility to
protect (2001) The expression ―responsibility to protect‖ was first presented in the report of
the International Commission on Intervention and State Sovereignty (ICISS), set up by the
Canadian Government in December 2001. The Commission had been formed in response to
Kofi Annan's question of when the international community must intervene for humanitarian
purposes. Its report, ―The Responsibility to Protect,‖ found that sovereignty not only gave a
State the right to ―control‖ its affairs, it also conferred on the State primary ―responsibility‖
for protecting the people within its borders. It proposed that when a State fails to protect its
people – either through lack of ability or a lack of willingness – the responsibility shifts to the
broader international community

United Nations World Summit (2005) In September 2005, at the United Nations World
Summit, all Member States formally accepted the responsibility of each State to protect its
population from genocide, war crimes, ethnic cleansing and crimes against humanity. At
the Summit, world leaders also agreed that when any State fails to meet that responsibility, all
States (the ―international community‖) are responsible for helping to protect people
threatened with such crimes. Should peaceful means – including diplomatic, humanitarian
and others - be inadequate and national authorities ―manifestly fail‖ to protect their
populations, the international community should act collectively in a ―timely and decisive

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 manner‖ – through the UN Security Council and in accordance with the UN Charter – on a
case-by-case basis and in cooperation with regional organizations as appropriate.

Implementing the responsibility to protect (2009) Based on the outcome document of the
2005 World Summit, a 2009 report by the SecretaryGeneral outlined a strategy around three
pillars of the responsibility to protect: 1. The State carries the primary responsibility for
protecting populations from genocide, war crimes, crimes against humanity and ethnic
cleansing, and their incitement; 2. The international community has a responsibility to
encourage and assist States in fulfilling this responsibility; 3. The international community
has a responsibility to use appropriate diplomatic, humanitarian and other means to protect
populations from these crimes. If a State is manifestly failing to protect its populations, the
international community must be prepared to take collective action to protect populations, in
accordance with the UN Charter.

Why do we need the responsibility to protect?

The responsibility to protect is a principle which seeks to ensure that the international
community never again fails to act in the face of genocide and other gross forms of human
rights abuse. ―R2P,‖ as it is commonly abbreviated, was adopted by heads of state and
government at the World Summit in 2005 sitting as the United Nations General Assembly.
The principle stipulates, first, that states have an obligation to protect their citizens from mass
atrocities; second, that the international community should assist them in doing so; and, third,
that, if the state in question fails to act appropriately, the responsibility to do so falls to that
larger community of states. R2P should be understood as a solemn promise made by leaders
of every country to all men and women endangered by mass atrocities.

How does R2P affect the idea of sovereignty?

States have long accepted limits on their conduct, whether towards their own citizens or
others. The UN Universal Declaration of Human Rights requires that states protect individual
and social rights; the Geneva Conventions and various treaties and covenants prohibiting
torture, trafficking in persons, or nuclear proliferation similarly restrict the right of states to
behave as they wish. At the same time, there has been a shift in the understanding of

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 sovereignty, spurred both by a growing sensitivity to human rights and by a reaction to
atrocities perpetrated upon citizens by their own leaders. Sovereignty is increasingly defined,
not as a license to control those within one‘s borders, but rather as a set of obligations
towards citizens. Kofi Annan spoke of the sovereignty of the individual as well as of the
state. Francis Deng, the Special Adviser on the Prevention of Genocide and the former
representative of the Secretary-General on internally displaced persons, developed the
concept of ―sovereignty as responsibility.‖ And chief among those responsibilities, he and
others argued, is the responsibility to protect citizens from the most atrocious forms of abuse.
Simply put, people come first.

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