Course-XIV

Public International Law

Unit-I Definitions, Nature and Basis of International Law 01-09
Sources of International Law;
Relationship between International and Municipal Law
Subjects of International Law
Unit-II Nature of State, 10-30
State Territory and Modes of acquisition and
Loss of State Territory
Recognition; State Succession, Intervention
Unit-III Position of Individual in International Law 31-47
Nationality; Extradition
Asylum; Diplomatic Agents and Treaties
Unit-IV Settlement of international Disputes between States 48-61
War: Definition and Effect
Modes of Termination of War
Prisoners of War and War Crimes
Unit-V Law of the Sea 62-70
Law of the Outer space
Territory of moon, Antarctica
International Terrorism
Comprehensive Nuclear Test ban Treaty
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Unit-I
NATURE AND DEFINITION OF INTERNATIONAL LAW
Law is the element of the society which helps to develop a framework
within which rights and duties can be established. The world today requires
a method where interstate relations can be conducted, and International
Law fills this gap. The United Nations developed this body of International
Law for the purpose of promoting international peace and security.
Countries come together to make binding rules that they believe will
benefit their citizens. International Laws promote peace, justice, common
interests and trade. States work together to strengthen International Law
because it plays an important role in society. International Law is directly
and strongly influenced by the writings of jurists and publicists, instructions
to diplomatic agents, important conventions even when they are not
ratified, and arbitral awards.
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.
Relevance and Function of International Law - International Law
grew out of necessity. As International engagement increased,
International Law expanded. International Law is the most convenient form
of regulating world order in the present-day world. International Law aims
to maintain international peace and security, which provide for
fundamental rights, freedoms and human rights, to refrain the State from
the use of threat or force against the territorial integrity of any other State,
to provide for the right of self-determination to people, to solve
International problems by achieving International cooperation, to use
peaceful means for settlement of international disputes.
PRINCIPLES OF INTERNATIONAL LAW
International Law is based on the following two principles:
1. Jus Gentium: These set of rules do not form part of a legal statute
but mutually governs the relationship between two nations.
2. Jus Inter Gentes: These refer to those treaties and agreements
that are accepted by both countries mutually.
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International Law provides effective means through which peaceful

settlement of disputes can be done. It is mainly concerned with the rights,
duties and the interests of the State.
CLASSIFICATION OF INTERNATIONAL LAW
International Law can be classified into two groups:
Public International Law - Public International Law is regulated by the
treaties and globally accepted norms and customs which are included as
State practice and opinio Juris. It regulates the relationship between those
nations and peoples that are prone to be affected by a particular law as
they are bound by these legal codes and rules.
Private International Law - It regulates private conflicts between
individuals rather than the States. It seeks to resolve disputes in the
domestic municipal body which involves an issue revolving beyond its
domestic jurisdiction.
 What are the sources of International Law?
The sources of International Law are treaties, custom, general principles of
law recognized by civilized nations, judicial decisions and teachings of
publicists.
Treaties - The concept of treaty is based on pacta sunt servanda, which is
a customary law principle which means promises must be kept. In a treaty,
countries create their terms of rights and obligations out of their volition,
thus it is very similar to a contract. Therefore, a treaty is a written
agreement between two or more States which lays down the manner in
which every State would act while doing dealings with other participating
States. Sometimes, in place of treaties other terms such as charters,
declarations, conventions and statutes are often used. However, there is a
slight difference in meaning of these terminologies.
Custom - Custom is one of the primary sources of International Law. In
International Law, it is considered to be of particular importance because
of its decentralized nature. Two conditions are essential for an act of a
State to constitute as custom:
1. The first being the State practice itself, it is not necessary that
the act of a State necessarily needs to be positive in nature. State
practice should be extensive, uniform and consistent and prevail for
at least such a period of time as would establish it as a recognized act
of States.
2. The second essential is opinio juris, which means, the
psychological belief of a State that its act is creating a legally
obligatory position for itself. But it should be noticed that not every
activity of a State would necessarily create binding rules of customary
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law. For instance, if a particular pattern is used by the State on a

particular issue in the General Assembly, it is reflective of the maxim
opinio juris.
General Principles of Law
As in International Law there is no cohesive body for legislating laws or any
Court that has the power to set precedents, thus it is relatively
undeveloped as compared to the Municipal Law. Article 38 of the Statute of
the ICJ provides for ‗general principles of law recognized by civilized
nations‘ as a source of law.
In the Chorzow Factory Case, the general principle of International Law, it
is the duty of a State to make reparations upon the breach of an
international obligation, was recognized by the Permanent Court of
International Justice. In the Corfu Channel Case, while referring to
circumstantial evidence, the ICJ pointed out that ‗in all systems of law
indirect evidence is admitted and its use is recognized by International
decisions‘. The principle of res judicata is too recognised by International
Law.
Judicial Decisions
As per Article 38, judicial decisions are recognized as subsidiary means of
determination of law. Article 59 of the Statute of the ICJ states that the
decisions of the Court can only guide them but does not have any binding
value on the Court and the court is authorised to apply the previous
decisions of the court which are known as the evidence of International
Law. Thus, the doctrine of stare decisis is not followed in International
Law.
ICJ through its case laws, advisory opinions and judges role-play a major
role in the law-making process. One of the major examples of this was laid
down in the case of Nicaragua vs. USA where the principle of the
prohibition against the use of threat or use of force was recognised. This
principle is now considered to be a part of Customary International
Law. In another case, that is, Alabama Claims arbitration, ICJ gave
recognition to the peaceful settlement of international disputes. In this,
judicial and arbitration methods were used in resolving conflict.
Conclusion
International law has emerged through various sources which have been
codified in Article 38 of the ICJ statute which identifies customs, treaties
and general principles as formal sources of International Law. However,
the Judicial decision is given by the world court also acts as advisory
opinions in guiding the development of International law.
Various philosophers and juristic theorists have enlightened the philosophy
of International law through their theories and principles as well.
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International Law helps in Identifying states as an entity of the world

community through various modes so as to provide them with rights and
duties. To ensure peace and order amongst the nation-states, International
Organisation plays a major role in increasing cooperation and upholding
the international law which has emerged from various sources.
Relationship Between International Law And Municipal Law
The issue of the relationship between international and municipal law rules
is one of the most contentious issues in legal theory, and determining their
relationship has now taken on practical significance. While international law
is applicable to state relations and other international law topics, national
or state law, also known as municipal law, is applied within a state to the
persons and corporate bodies that bear rights and obligations under it.
International Law:
International law is also known as public international law and law of
nations. It is a collection of laws, norms, and principles that are widely
accepted in international relations, and it provides normative guidelines
and a common conceptual structure to direct states in a variety of areas,
including war, diplomacy, trade, and human rights. International law refers
to a collection of laws that are widely recognized and acknowledged as
binding in international relations. Many national legal systems accept
international tradition, treaties, and general principles of law as origins of
international law.
Municipal Law:
In contrast to international law, municipal law is a sovereign state‘s
national, domestic, or internal law. Municipal law encompasses not only
national law but also federal, provincial, tribal, municipal, and local law. It
refers to the laws that regulate a specific city or nation, as well as the
political bodies that govern certain cities or countries. As a result, municipal
law refers to legislation enacted by a state‘s legislature or law-making body
that is only applicable to that state.
Relationship:
International law, in theory, exists only at the international level, not within
domestic legal frameworks, which is consistent with positivism‘s recognition
of international and municipal law as separate and autonomous systems.
No municipal rule can be used as an excuse for violating international law,
according to a concept accepted both in International case laws[6] and
treaties. International law‘s position in municipal law is more complicated,
and it is determined by a country‘s domestic legislation.
It‘s critical to comprehend how international law concepts are incorporated
into domestic law, as well as what happens when the laws clash. The two
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key theories that describe the relationship between international and

municipal law are monism and dualism.
Theories:
1. Monistic Theory: According to this theory, the domestic civil order is
the only legal structure that exists. The proponents of this theory deny that
international law is a separate and self-contained body of law. Kelson, an
Austrian jurist, founded the monistic theory. Monists believe that both
municipal and international law are members of a single universal legal
framework that serves the interests of the human race in some way. As a
result, the law of nations is indistinguishable from state internal or
municipal law, and it is only relevant as part of the universal legal order. As
a result, they are both genus-law organisms. Monistic theorists refuted
Dualists‘ claims that the two structures differed in terms of origins,
substance, concepts, and subject matter.
2. Dualistic theory: The law of nations and the municipal laws of the
various states, according to Dualistic theory, are two different, distinct, and
self-contained legal structures. International Law does not form part of a
state‘s domestic law since it is a separate framework. Since they have no
common grounds or subjects of application, such a view eliminates any
debate over which form of law is superior to the other. Each is supreme in
its own domain. The dualists argue that since international law can only
address States and not persons, States are free to govern their internal
affairs as they see fit and that international law has little or no influence
over municipal law.
Triepel, a well-known German scholar, proposed this idea in 1899. Later
on, Italian jurists Anzilotti and Starke adopted the idea. The two systems of
law, according to the writers, differ in terms of sources, subjects, law
substance, principles, and subject-matter dynamicism.
3. Specific Adoption Theory: It is based on the dualist philosophy.
According to this principle, no laws of international law can claim to be
enforced by municipal courts on their own force unless they are
transformed and implemented directly by municipal courts and systems.
Only if they are expressly adopted, international law laws become part of
national law.
4. Transformation Theory: The laws of international law are
transformed, according to proponents of this theory, for the application of
international law in the field of municipal law. When international law
becomes more widely accepted, it undergoes changes. It cannot be
extended to local law until it is converted. States use a special
―transformational‖ device to integrate treaties and norms into their
municipal rules.
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5. Delegation Theory: This theory states that the rules of international

law known as ―Constitutional rules of international/treaties‖ delegate a
right to each state constitution, allowing each state to decide or determine
for itself how and when the provisions of an international treaty or
convention come into force, and how they are implemented or embodied in
statutes.
6. Consent Theory: John Locke defined the development of this principle
and coined the term ―everyone is equal‖ from it. There were some issues
with this, including the fact that treaties and customs were not the only
origins of international law. In this principle, any party to a contractual
arrangement will recognize all provisions of the international legal
framework. The basis of International Law, according to Article 38(1) of
the Tribunal Statutes, is ―General Principles of Law Accepted by Many
Civilized Countries.‖[8] It assists judges in developing international legal
material. This demonstrates that for International Law to work, agreement
is not always needed. When it comes to treaties, the consent principle isn‘t
entirely applicable. Although having an agreement with any other country
is relevant, having the consent of a third country is not. So no third party
will intervene in any of the States‘ affairs.
Differences between International Law and Municipal
Law:
The origins of law, its topics, and subject matter are thought to be the key
differences between foreign and municipal law.
- International law is primarily concerned with state relations, although
it is not exclusively so. Municipal legislation regulates the interactions
of individuals within the state as well as between individuals and the
state.
- International law governs relations between members of the States
family of nations. Municipal law, on the other hand, governs the
relationships between individuals who are subject to the jurisdiction
of a particular state, as well as the relationships that exist between
this state and the individuals who are subject to it.
- The law of the nation is a law that governs the relationship between
sovereign states rather than above them. Municipal law, on the other
hand, is the law of the sovereign over persons as subjects.
- International law is derived from states‘ common will, its objects are
the states themselves, and its subject matter is international affairs.
Domestic law is derived from the sovereign‘s or state‘s will, its
subjects are persons within the state, and its subject matter is the
relationships between individuals and government.
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Position in India:
The Rules of International Law are only referred to in the most general
terms in the Indian Constitution, implying that the drafters of the Indian
Constitution were highly ambiguous in describing the status of
International Law in the municipal sphere. The relationship between
foreign and municipal law is not well described in our Constitution.
India has not deviated from the common law status, according to a
composite reading of Articles 51(c) 253, and 372. As a result, India will
continue to treat customary international law as part of the law of the land,
as long as it does not conflict with current constitutional provisions or the
national charter.
In several cases, including Vishakha vs. State of Rajasthan, Randhir
vs. Union of India, and Unnikrishnan vs. State of Karnataka, the
Supreme Court has held that India‘s domestic rules, including the
constitution, are not to be read as violating international law. In the event
of any misunderstanding, an attempt should be made to read domestic law
as being in accordance with international law. Nonetheless, the constitution
remains the supreme rule of the nation, and in the event of a direct
dispute, the constitution will take precedence.
In the case of BehramKhurshid v. State of Bombay, it was determined
that Privy Council rulings were not entirely binding on Indian courts;
instead, the court would examine the case‘s rules and evidence to
determine whether or not they were valid. The Indian legal system would
recognize international laws as long as they did not supersede local laws
and respected and adhered to international rules and norms.
 SUBJECTS OF INTERNATIONAL LAW
In a country, the laws would govern the citizens of that country, thus
making them the subjects of those laws. But when we talk about
international laws, we are taking into account hundreds of countries and
even non-state actors. So, it may become a little difficult to ascertain the
subjects of international law.
The main function of international law is to secure peace around the world,
although it does achieve one too many goals like sustainable development,
maintaining humanitarian rights, settling disputes through cooperation etc.
However, jurists over the world are divided in opinion when it comes to
subjects of international law. Here, we need to examine the three main
theories regarding the subjects of international law, which are the Realist
theory, the Fictional theory, and the Functional theory;
- The Realist theory states that states alone are the subjects of
international law. It is a traditional positivist doctrine which asserts
that states, or countries, alone are the subjects of international law.
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Any and all rights and duties are conferred upon states and states
and only states perform the obligations under the treaties and
conventions.
- The Fictional theory considers only individuals as the subject of
international law. Since individuals are subject to domestic laws but
the state is only an abstract term, ultimately it is the individuals that
are the subjects of international law.
- The Functional theory suggests that states along with individuals
and non-state entities constitute the subjects of international law.
Moderate jurists who subscribe to this view state that the realist and
fictional theories are extreme standpoints and need rethinking.
Subjects of International Law
An understanding of the theories of the subjects of international law, it can
be said that broadly there are three main categories of the same –
individuals, states, and non-state entities.
1. Individuals - Individuals have always been a concern under
international law. Although the realist theory diminishes the position of
individuals as a subject, there have been instances under international law
wherein responsibility has been conferred upon individuals rather than their
state. The international criminal law holds individuals accountable for
certain crimes. In Respublica v. De Longchamps, the defendant was guilty
of assaulting the Consul General of France to the new United States. It was
held that the defendant was guilty of the same under the law of nations.
As a result, he was ordered to pay one hundred French crowns as a fine to
the Commonwealth of Pennsylvania and to be imprisoned for ‗a little more
than two years‘.
2. States - States are the primary subjects of international law. A state is
a term given to a country under international law. Every state has certain
rights and obligations to fulfil. These rights are conferred upon them
through treaties and agreements, to which the states are signatories.
States have various roles to perform at world level. It is incumbent upon
the states to maintain peace and security in the world and resolve disputes
through peaceful means.
3. Non-state entities - A large group of institutions which can fall under
different categories, like companies, international organisations, special
entities etc. According to the functional theory, these non-state actors are
also subject under international law and hence they can be regulated.
Non-state entities have a special personality under international law,
because although they take part in the international business, they are not
granted similar rights and duties as the states. In fact, their acts are much
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limited as compared to states. Since these entities are independent and

exist to serve a particular purpose, they are kept separate from states and
individuals.
Conclusion
Undoubtedly, enforcement of international law has its shortcomings. The
very idea that a set of frameworks be imposed on such a large scale seems
impractical. Although the UN and similar organisations exist to regulate
international laws, it is visible from existing evidence that the UN has not
been able to manage world affairs under some instances.
Nevertheless, in the era of globalisation, an international regime is
inevitable. International laws bind nation-states altogether and confirm
peace and security around the world. Still, a lot of work needs to be done
in order to implement international law so that it can serve its ultimate
purpose.
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Unit-II
NATURE OF STATE, STATE TERRITORY AND MODES OF
ACQUISITION AND LOSS OF STATE TERRITORY; RECOGNITION;
STATE SUCCESSION, INTERVENTION.
 NATURE OF STATE
As a community of persons, permanently occupying a definite territory,
legally independent of external control, and possessing a organized
government which create and administrates law over all persons and group
within its jurisdiction is ‗State‘.
According to Lasson, ―The state is a community of men which possesses
an organized authority as the highest source of all force.‖
John.W.Burgess defines the state as a ―particular portion of mankind
viewed as an organized unit.‖
 Theories of Origin of State
1. Theory of Divine Origin - The state was created by God and
people had no role in its creation. The King was considered as the
representation of God and they had the divine right over the people.
2. The Force Theory - It came as a result of forced subjection by
the strong over the weak. Two groups, one supported this theory as State
as a powerful entity and the other emphasised on individual‘s freedom
and limited state action. Theologians, individualists and socialists criticised
this theory.
3. Social Contract Theory - The state is the outcome of contract
among the people. There is a contract between the people and the ruler.
The people have surrendered their few freedoms to the authority in
exchange of the protection of their rights. Hobbes, Locke and Rousseau
are the major exponent of the Social Contract Theory.
4. Evolutionary Theory: State evolved slowly through; (1)
Kinship, (2) Religion, (3) Industry and (4) War.
 Elements of State
Population (Jansankhya): Population comprises of a considerable group
of people present in the definite territory.
Territory (chetra): Territory comprises of definite area on the surface of
the earth on which the population resides.
Government (Sarkar): It is an agency or political organisation that
carries out the administration of the state. It is the agency through which
people can express their collective will.
Sovereignty (Samprabhuta): It means the State is supreme over all
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individuals and associations internally and is free from any other external
control. It is free to take decisions both internally and externally.
It is important to note that the element of any of the four elements will
nullify the state.
 Distinction between the state and other associations
State and Society - Society is a wider concept as compared to the state.
The state covers only an aspect of the society whereas society includes all
social relationships and social institutions. The society is much older than
the state and it does not contain the four elements of the state. State is
highly organised and comprises sovereignty but society may be
unorganized and does not possess sovereignty.
State and Government - Government is one of the elements of the
state. Government is the only agency of state through which the will
of the people are formulated, expressed and executed.
State and Nation - Though there are lots of debates on the distinctions
between nation and state. It is important for the students of political
science to understand that the basis of nation is cultural and psychological
whereas that of state is political and physical.
 Nature of the State
1. Idealist Theory of State - Plato and Aristotle are considered as the
founders of the Idealist Theory of State. They opined that man by nature is
a political animal and it is through state that man can develop their
personalities and get best out of them by being part of the state. They did
not differentiate between the state and the society. Immanuel Kant is
regarded as the father of the Idealist theory and has expressed about it in
the book ‗metaphysical first principles of theory and law‘ in 1976. Hegal
considered it as an ethical institution. According to this theory,
- State is an ethical institution.
- State is the best friend of the people.
- State has its own personality and indent will.
- Man is the social animal.
- State creates and protects the rights of the state.
2. Marxist Theory of State - According to traditional Marxists, the
state is controlled by the dominant economic class and used as an
instrument of exploitation and as an agency of class coercion. The State
promotes and protects the interests of few rich sections at the cost of the
labour class. The State exploits the economic weaker section since its
origin to its various phases of development. Marxist State has certain
features:
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- State is an instrument of exploitation at the hands of economically

dominant class.
- State was formed to protect the private property of economically
dominant class.
- State was considered as the symbol of injustice.
However, there are neo-Marxists like Max Weber who rejected the class
theory of Marx and emhasised on the independence of State power. He
opined that State has its own resources and have full control over the
legitimate source of force and do not serve the private interests. He further
opined that the Bureaucracy is an organisation maintained by the State that
monitors, formulates and implements the state policies. The State cannot
be said to have served the class interests.
Similarly, according to Antonio Gramsci, institutions, beliefs and social
relations in the society like family, school, church and other groups in the
society play an important role in creating consent that encourages
capitalism. The use of force is required only when the consent does not
work.
3. Liberal Theory of State - The Liberal theory emphasises on the
privileges and rights of the individuals. The restrictions by the government
curb the personality and rights of the individuals and limit their growth.
So, it advocates limited state. The state is liberal if it acknowledges the
behaviours, attitudes and opinions of the individual. Some of the features
of the Liberal Theory of State:
- It advocates the rights and liberty of the individuals.
- The state should be accountable to the people and is a limited state.
- There are different groups and organisation and they coexist with
each other.
- The liberal state is accountable to all groups and rights and liberty
of the people.
Conclusion - Though, different definitions have been given regarding
state but there is no universally accepted definition of State. Different
scholars have given different ideas regarding state. The Idealist theory of
state has different views compared to Marxist and Liberal Theory of State.
Therefore, the definitions and nature of state have been changing in
response to the need of the time. At present, there is a welfare state that
has to work for the welfare of the people residing in their territory. The
welfare state has to protect the health and the well-being of the people
especially those in social and financial need. Subsequently, the functions of
the State have also been changing with the nature of the state. So, the
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definitions, nature and functions of the state have been changing and
never same.
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 STATE TERRITORY
The concept of state territory is one of the fundamental principles of
international law. It defines the physical area over which a state exercises
its sovereignty, including land, water, airspace, and territorial waters. State
territory plays a crucial role in determining a state's rights and
responsibilities under international law.
According to international law, a state is a territorial entity that has a
permanent population, a government, and the capacity to enter into
relations with other states. The state's territory is defined as the physical
area over which the state exercises its sovereignty, and it includes not only
the land within its boundaries but also its territorial sea, contiguous zone,
exclusive economic zone, and continental shelf.
The principle of territorial sovereignty is the foundation of state territory in
international law. It means that a state has exclusive authority and control
over its territory, and other states are not allowed to interfere with its
internal affairs. State territory is also an essential element of statehood,
which is recognized by other states through diplomatic recognition.
Criteria for State Territory: There are certain criteria that a territory
must meet to be considered a state under international law. These include
a stable population, a defined territory, a government, and the capacity to
enter into relations with other states. The state must also have the ability
to control its territory and ensure the safety and well-being of its citizens.
Stable Population: A stable population is a necessary criterion for
statehood under international law. It means that the population of the
territory must be permanent and not temporary. The population must have
a sense of identity and a shared history, culture, and language. The
stability of the population is also important for ensuring the security and
well-being of the citizens.
Defined Territory: A defined territory is another criterion for statehood.
The territory of the state must be clearly defined, and its borders must be
recognized by other states. The territory must also be contiguous, meaning
that it must be a continuous land area without any enclaves or exclaves.
Government: A government is a necessary criterion for statehood under
international law. The government must have the ability to control the
territory and maintain law and order within its borders. It must also be able
to represent the state in international relations and enter into treaties and
agreements with other states.
Capacity to Enter into Relations with Other States: The capacity to
enter into relations with other states is another criterion for statehood. The
state must have the ability to conduct foreign relations, including the ability
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to send and receive diplomats, sign treaties and agreements, and

participate in international organizations.
Territorial Integrity and Sovereignty: Territorial integrity and
sovereignty are protected by international law. Other states are not
allowed to use force or threat of force to acquire territory or to interfere
with the internal affairs of a state. Any attempt to do so is considered a
violation of international law and is subject to sanctions by the international
community.
The United Nations Charter, for example, recognizes the principle of the
sovereign equality of states, which means that all states are equal in rights
and duties, and their territorial integrity and political independence are
inviolable.
Conclusion: In conclusion, state territory is a fundamental principle of
international law. It defines the physical area over which a state exercises
its sovereignty, including land, water, airspace, and territorial waters. State
territory is a necessary criterion for statehood, and it is protected by
international law. Territorial integrity and sovereignty are essential
elements of statehood, and any attempt to violate them is considered a
violation of international law.
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 MODES OF ACQUISITION OF STATE TERRITORY

State territory is a fundamental aspect of statehood, and the modes of
acquiring state territory are regulated by international law. There are six
primary modes of acquiring state territory recognized under international
law, and each mode has its own principles and rules. In this article, we will
discuss each mode in detail.
Conquest: Conquest is the mode of acquiring state territory through the
use of force. Historically, conquest was a prevalent mode of acquiring
territory, but it is no longer recognized under modern international law.
The prohibition of conquest is enshrined in the Charter of the United
Nations, which prohibits the use of force in international relations, except
in cases of self-defense or with the authorization of the United Nations
Security Council.
The prohibition of conquest is based on the principles of territorial integrity
and sovereignty of states. The use of force to acquire territory is a violation
of these principles and is considered an unlawful act. Any attempt to use
force to acquire territory is subject to sanctions by the international
community, including economic sanctions and military intervention.
Cession: Cession is the mode of acquiring state territory through a treaty
or agreement between two states. Cession can take place through a
bilateral agreement or a multilateral agreement involving several states.
The transfer of territory must be made freely and with the consent of the
affected state.
Cession is a peaceful mode of acquiring territory, and it is recognized under
international law. The transfer of territory through cession must be made in
accordance with the principles of international law, such as the principle of
self-determination of peoples.
Prescription: Prescription is the mode of acquiring state territory through
the continuous and peaceful exercise of sovereignty over the territory for a
certain period of time. The exercise of sovereignty must be open,
continuous, peaceful, and uncontested by the affected state.
Prescription is recognized under international law, provided that it is
conducted in accordance with the principles of international law. However,
prescription cannot be used to acquire territory that is subject to the
sovereignty of another state. Prescription is often used to acquire territory
that is subject to a legal vacuum, such as uninhabited islands.
Occupation: Occupation is the mode of acquiring state territory that is not
subject to the sovereignty of any state. Occupation can occur through the
use of force or by peaceful means. The occupation must be conducted in
accordance with the principles of international law, such as the principle of
self-determination of peoples.
 17

Occupation can also be used to acquire territory that has been abandoned
by the previous occupant. The occupation must be open, continuous,
peaceful, and uncontested by the affected state. The occupying state must
also respect the human rights of the population of the occupied territory.
Accretion: Accretion is the mode of acquiring state territory through the
gradual and imperceptible increase of territory due to natural causes, such
as the deposition of sediment on a riverbank or the gradual movement of a
coastline. Accretion can occur on land or on the sea.
Accretion is recognized under international law, provided that the increase
in territory is gradual and natural, and does not involve the use of force.
The state that acquires territory through accretion must also respect the
rights of neighboring states.
Annexation: Annexation is the mode of acquiring state territory by the
incorporation of a territory into the sovereign territory of another state.
Annexation is generally not recognized under international law, except in
cases where the annexation is made with the consent of the affected state
and its population.
Annexation by force or coercion is prohibited under international law, and
any attempt to annex territory by force is subject to sanctions by the
international community. Annexation is considered a violation of the
principles of territorial integrity and sovereignty of states.
In conclusion, the modes of acquisition of state territory are regulated by
international law. States are expected to acquire and relinquish territory
peacefully, with respect for the territorial integrity and sovereignty of other
states. Any attempt to acquire territory by force or coercion is considered a
violation of international law and is subject to sanctions by the international
community.
 18

 LOSS OF STATE TERRITORY

Loss of territory by subjugation, cession, and prescription is pretty
straightforward and requires no further explanation. It‘s simply the
corresponding loss of territory due to the gain of that territory by another
state.
The rules of International Law which are now regarded as practically
settled, respecting the different modes by which a sovereign power is
enabled to take possession of, and hold, any particular portion of territory,
as against all other powers, are of comparatively recent origin. Modes of
loss of state territory:
1. Cession: This means "a giving up; relinquishment or abandonment
of a right, or property. Through cession one party acquires the territory
through cession, the other state loses it"
2. Subjugation and prescription: A state may lose territory by its
own annexation by a victorious state within the intention of incorporating it
into its own territory. In the same way undisturbed possession of the
territory of one state by another during a certain period of tie causes it's
loss to the former. According to Kelson, these two modes of acquisition of
territory are in violation of International Law.
3. Prescription: When a state occupies a particular territory for a long
period then it is entitled to acquire it through prescription. On the contrary,
the state which had occupation over it earlier may lose it
4. Revolt: Followed by succession of a part of territory of the owner
state is a mode of losing territory. Revolt, on the other hand, has been
accepted as a mode of losing territory to which there is no corresponding
mode of acquisition. There is no hard and fast rule regarding the time
when a state which has broken off from another can be established
permanently as another state.
A revolt, however, seems to be more of a political issue than a legal mode
of loss of territorial sovereignty.
The example if succession territory by means of revolt is to be found in
Netherlands breaking off from Spain and US from UK, Brazil from Portugal.
Revolt, on the other hand, has been accepted as a mode of losing territory
to which there is no corresponding mode of acquisition. There is no hard
and fast rule regarding the time when a state which has broken off from
another can be established permanently as another state.
5. Dereliction (renunciation): The territory may be lost by
dereliction which means by renunciation of a territory. This means, a state
may slacken it's occupation over a territory and in the course of time may
lose not only the occupation over it but also sovereignty. Dereliction to be
 19

complete must comprise the actual abandonment of a territory and the

intention of giving up sovereignty.
Actual abandonment alone cannot amount to dereliction as it is assumed
that the owner will and can retake possession. Hence, just like occupation
there has to be an abandonment of territory (corpus) and an intention
(animus) to withdraw too.
6. Granting of independence: When independence is given to a
colony the newly emerged state acquires territorial sovereignty and the
state which grants independence loses that territory.
7. Operation of nature: A state may lose territory when its territory,
generally, islands, vanishes due to volcanic eruption, land subsistence, soil
erosion and other natural calamities. The earthquake may also result in the
vanishment of an island. A number of tiny little islands have disappeared in
last 200 years due to natural calamities.
8. Plebiscite: If the people of a territory are called upon to give their
verdict for either remaining in one country, or the other then the country in
which they favour to merge is gainer whereas the state from which they
wish to come is loser.
 20

 RECOGNITION OF STATE
- Recognition is a process whereby certain facts are accepted and
endowed with a certain legal status, such as statehood, sovereignty over
newly acquired territory, or the international effects of the grant of
nationality. The process of recognizing as a state a new entity that
conforms with the criteria of statehood is a political one, each country
deciding for itself whether to extend such acknowledgment.
Normal sovereign and diplomatic immunities are generally extended only
after a state‘s executive authority has formally recognized another state.
- International recognition is important evidence that the factual
criteria of statehood actually have been fulfilled. A large number of
recognitions may buttress a claim to statehood even in circumstances
where the conditions for statehood have been fulfilled imperfectly (e.g.,
Bosnia and Herzegovina in 1992). According to the ―declaratory‖ theory of
recognition, which is supported by international practice, the act of
recognition signifies no more than the acceptance of an already-existing
factual situation—i.e., conformity with the criteria of statehood. The
―constitutive‖ theory, in contrast, contends that the act of recognition itself
actually creates the state.
- Before granting recognition, states may require the fulfillment of
additional conditions. The European Community (ultimately succeeded by
the EU), for example, issued declarations in 1991 on the new states that
were then forming in eastern Europe, the former Soviet Union, and
Yugoslavia that required, inter alia, respect for minority rights, the
inviolability of frontiers, and commitments to disarmament and nuclear
nonproliferation.
- The timing of any recognition is crucial—particularly when a new
state has been formed partly from an existing one. Premature recognition
in a case of secession can amount to intervention in a state‘s internal
affairs, a violation of one of the fundamental principles of international law.
Recognition of governments is distinguished from the recognition of a
state.
- The contemporary trend is in fact no longer to recognize
governments formally but to focus instead upon the continuation (or
discontinuation) of diplomatic relations. By this change, states seek to
avoid the political difficulties involved in deciding whether or not to
―recognize‖ new regimes taking power by non-constitutional means.
- Although states are not obliged to recognize new claimants to
statehood, circumstances sometimes arise that make it a positive duty not
to recognize a state. During the 1930s, U.S. Secretary of State Henry
Stimson propounded the doctrine of the non-recognition of situations
 21

created as a result of aggression, an approach that has been reinforced

since the end of World War II.
- In the 1960s, the UN Security Council ―called upon‖ all states not to
recognize the Rhodesian white-minority regime‘s declaration of
independence and imposed economic sanctions. Similar international action
was taken in the 1970s and ‘80s in response to South Africa‘s creation
of Bantustans, or homelands, which were territories that the white-minority
government designated as ―independent states‖ as part of its policy
of apartheid.
- The Security Council also pronounced the purported independence of
Turkish-occupied northern Cyprus as ―legally invalid‖ (1983) and declared
―null and void‖ Iraq‘s annexation of Kuwait (1990). The UN also has
declared that Israel‘s purported annexation of the Golan
Heights (conquered from Syria in 1967) is invalid and has ruled similarly
with regard to Israel‘s extension of its jurisdiction to formerly Jordanian-
controlled East Jerusalem.
 22

 STATE SUCCESSION
State succession refers to the merging of two or more States. It is different
from government succession in the sense that in government succession
there‘s a change of government whereas in State succession the State
loses control over its partial or whole territory. Art 2(1)(b) of the Vienna
Convention on the succession of States in respect of treaties in 1978
defines the term State succession as ‗the replacement of one State by
another in the responsibility for the international relations of territory‘.
In essence, it deals with the succession of one state with another and the
transfer of rights and obligations. This concept has assumed greater
importance since World War II owing to its effects on the legal obligations
of the States.
Circumstances of State Succession - State succession can arise in a
number of defined circumstances, which mirror the ways in which political
sovereignty may be acquired. They are:
o Decolonization of all or part of an existing territorial unit:
This refers to situations where the nation partially or completely
overcomes itself from the holding of a superior nation.
o The dismemberment of an existing State: This refers to a
situation when the territory of the predecessor State becomes the
territory of two or more new States who take over it.
- Secession: This refers to a situation where a part of the State
decides to withdraw from the existing State.
- Annexation: This refers to a situation where a State takes
possession of another State.
- Merger: This refers to the fusion of two or more free States into a
single free State.
Types of State Succession - In each of these cases, a once-
recognized entity disappears in whole or in part to be succeeded by some
other authority, thus precipitating problems of transmission of rights and
obligations. There are two types of State succession and they are discussed
below:
o Universal Succession- This is also referred to as Total Succession.
When the entire identity of the parent State is destroyed and the old
territory takes up the identity of the successor State, it is known as
Universal Succession. This can happen in cases of:
- Merger
- Annexation
- Subjugation
 23

In certain cases of universal succession, the old State gets divided into
multiple States. The dissolution of Czechoslovakia is an example of
universal succession. The new States of the Czech Republic and Slovakia
are both successor States.
o Partial Succession - Partial Succession occurs when a part of the
territory of the State gets severed from the parent State. This severed part
now becomes an independent State. This can occur when there is a civil
war or a liberalization war. There are two important examples of partial
succession.
- One is the separation of Pakistan from India.
- The other is the separation of Bangladesh from Pakistan.
The existing States continued with their legal obligations and duties while
the new States got their own recognition and carried no rights or duties of
the parent States.
 24

 THEORIES OF STATE SUCCESSION

Universal Succession Theory - This is the oldest theory of succession
propounded by Grotius, using the Roman analogy of succession on the
death of any natural person. According to this theory, the rights and duties
of the old State i.e., the predecessor State pass on to the new State i.e.,
the successor State upon succession without any exceptions and
modifications. In fact, there are two justifications behind this theory.
- First that the State and the Sovereign gain all their power from God
and a mere change in Government shouldn‘t cause any change in the
powers.
- Second, it is permanent and nothing can cause it to secede.
The application of this theory can be seen in cases of fusion in the 20th
century. The fusion of Syria and Egypt, Somali Land and Somalia,
Tanganyika and Zanzibar are examples of this. However, this theory failed
to get any attention from the majority of States from the world and has
also been criticized by scholars from the world due to its Roman law
analogy, a poor distinction between succession and internal change in
governments, etc.
Popular Continuity Theory - The Popular Continuity Theory can be
described as another version of the Universal Succession theory that was
propounded by Fiore and Fradier following the unification of the German
and Italian nationals. According to this theory, the State has a
Political personality: It basically refers to the rights and obligations of
the State towards the government.
Social personality: lt basically refers to the territory and the population
of the State.
Hence, upon succession, the political personality gets changed whereas the
social personality remains intact. So, a State succession would not alter the
rights and duties of the populace.
However, this theory has not found its application in any country outside
Europe and also has been criticised on the grounds that it functioned
according to the municipal laws i.e, the local laws, which is why it was
difficult to understand the effect of State succession using this theory.
Organic Substitution Theory - According to this theory, the rights and
duties of the State continue even after succession by another State. Von
Gierke had published a paper in 1882 regarding The execution of rights
and obligations of a social body after its dissolution. It was from here that
Max Huber derived his organic substitution theory. Huber drew the analogy
that the problem of State succession was similar to that of dissolution of a
social institution.
 25

The factual element of the people and the territory have an organic bond
i.e., the bond between the people and elements of State and upon
succession by a new sovereign, the organic bond remains intact and only
the juridical element changes. It offers a new explanation to the continuity
of rights and duties i.e., the substitution of a successor State in the
personality of its predecessor State. But, just like the other theories, this
theory too has had no practical application and has been criticized for the
same.
Self-Abnegation Theory - This theory was propounded in 1900 by
Jellinek and is another version of the universal theory of continuity.
According to Jellinek, the successor State agrees to observe the rules of
international law and performs the obligations towards other States created
under them. Although, this theory considers that the performance of the
international obligation, is merely ‗moral duty‘ of the successor State, but
at the same time it gives the right to the other States, to insist upon the
successor State to perform the existing obligation. If the successor State
refuses to accept, the other States may even withhold its recognition or
make the recognition conditional upon the acceptance of the predecessor‘s
commitment towards them.
Negative Theory - This theory was developed during the mid-19th and
early 20th centuries. After World War II, the jurists of the Soviet Nations
started emphasizing on the right of self-determination and on giving
complete freedom to the States to maintain their international relations.
According to this theory, the successor State doesn‘t absorb the personality
of the predecessor State in its political and economic interests.
Upon succession, the new State is completely free of the obligations of the
predecessor State. The successor State does not exercise its jurisdiction
over the territory in virtue of a transfer of power from its predecessor but it
has acquired the possibility of expanding its own sovereignty.
Communist Theory - According to the Communist Theory of State
Succession, a successor State is burdened by the economic and political
commitments of the predecessor. Thus, this comes as something
completely contrary to the Negative Theory of State Succession and unlike
the Negative Theory, it doesn‘t free the successor State from the
obligations of the predecessor State.
The Successor State is bound to adhere to the commitments of the
predecessor State. Political commitments involve peace, war and territorial
treaties and agreements while economic commitments include any amount
of money borrowed or lent. All these have to be fulfilled by the new State.
 26

RIGHTS AND DUTIES ARISING OUT OF STATE SUCCESSION:

The laws regarding State succession are still in a very nascent stage and
keeps evolving with the changing times. As seen above, along with the
territorial and power transfers, there are transfers with regard to duties
too. This section gives a brief idea about the transfer and non-transfer of
political as well as non-political rights and duties.
Political Rights and Duties:
- No succession takes place with regard to political rights and duties of
the States.
- The peace treaties or the treaties of neutrality entered into by the
previous State aren‘t binding on the new State.
- But the only exception here is in case of human rights treaties since it
would be desirable for the new State to adhere to such terms.
- Other than this, the new State would have to enter into new political
treaties of its own.
Rights of Natives or Local Rights
- Unlike the political rights and duties, the local rights of the people do
not secede with the succession of the States.
- These rights refer to the rights such as property rights, land rights or
rights relating to railways, roads, water etc.
- In cases like these, the succeeding States are bound by the duties,
obligations and rights of the extinct State.
Fiscal Debts (State or Public Debts)
- These refer to the financial obligations or debts of the predecessor
State. The successor State is bound to pay back the debts of the
predecessor State.
- This is because if the new State is enjoying the benefits of the loans,
it becomes a moral obligation as well to pay back the money.
- Next, if there is a split in the State then the entire debt amount gets
divided between the predecessor and successor State in accordance
with the territory and population of each.
Effect of State Succession on Treaties - The law on State succession
with regard to treaties has for a long time been dominated by two
principles in general:
- One is the alleged principle of universal succession and
- The other is the tabula rasa approach i.e., clean State doctrine not
granting State succession to treaties.
While the former principal keeps in mind, the interests of third States
regarding upholding or not upholding treaties, the latter favours a rather
strict understanding of sovereignty i.e., functions only according to the
 27

interests of the successor and predecessor State. Neither of the two

principles can, however, offer a practical solution for various scenarios
where State succession takes place. Accordingly, under customary
international law more nuanced solutions have been developed in the past
or, at the least, are in the process of being formed.
The Vienna Convention on State Succession provides that:
- In case of the border treaties, no such significant changes would be
observed and the treaties would pass to the successor State.
- This is done keeping in mind the greater interests of the International
Community. Similarly, other forms of local treaties related to land,
territory, etc. would also pass on to the successor State upon
succession.
- Treaties relating to Human Rights are passed on to the successors
with all their rights, duties and obligations. In the case of treaties
relating to peace or neutrality, no succession takes place.
Effect of State Succession on UN Membership
When Pakistan was separated from India, it claimed itself to be a member
of the United States since India was a member of the UN. The then
Secretary-General of the UN had then brought up the following:
- From the perspective of International Law, the circumstance is one in
which part of the State breaks off from the original State.
- When Pakistan separated from India, there was no change in the
status of India. India continued with all its treaties, rights and
obligations.
- On the other hand, Pakistan didn‘t have any of those rights or
obligations and of course, had lost the UN Membership.
- In International Law, the situation is similar to the separation of the
Irish Free State from Britain, and Belgium from the Netherlands. In
these cases, the portion which separated was considered a new
State, and the remaining portion continued as an existing State with
all the rights and duties which it had before.
Thus, in the case of succession, the UN Membership doesn‘t get
transferred.
Conclusion - Given the current status of the law with regard to the idea
of State succession, it can be very well inferred that the law needs a lot
more evolution and clarity. Even though lately, it has been seen that there
has been some consensus on certain levels and that succession doesn‘t
necessarily lead to disruption in all legal practices and methods there is a
lot more work that needs to be done in this field.
 28

 INTERVENTION
Intervention in fact principally prohibited under the provisions of
International Law. According to International Law no state has the right to
intervene in the affairs of another state for the purpose of maintaining or
altering the actual condition of thing. All members shall retrain 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. So in this way when
any state interferes in the internal and external affairs of other state, then
as per International Law, it becomes a matter of intervention.
o DEFINITION: In simple words intervention means to interfere
directly or indirectly by one or more states in the internal or external affairs
of another state.
Prof. L. Oppenheim: ―Intervention is dictatorial interference by a state in
the affairs of another state or the purpose of maintaining or altering the
actual condition of things. Interference pure and simple is no intervention.‖
Hans Kelson pointed out that, ―International Law does not prohibit
intervention in all circumstances. He further says that when one state
intervenes in the affairs of another state through force, then as a reaction
against this violation International Law permits intervention.‖
o TYPES: It can be accessed from the above view of different Jurists
regarding types of intervention that there are so many types of
Interventions. However some of them are as under:-
1. Military interference: It is done with military force.
2. Political Interference: is done by giving threatening information.
3. Dictatorial Interference: Is done in threatening tone.
4. Interference without right: It is done without any purpose & right.
5. Internal Interference: is done in interfering in the internal affairs.
6. External Interference: It is also done in interfering in external affairs.
7. Penal Intervention;
8. Subversive Intervention: is done by another state through exciting
the people against the state.
9. Economic Intervention: is done by creating obstacles in the trade.
o BASES: It is very much pertinent to mention here that what is the
basis of doing of intervention and what type of interventions are valid
under UNO Charter. However the following have been considered as the
main basis of intervention:-
i. On the basis of self defence
ii. On the basis of humanity
 29

iii. for application of treaty rights

iv. to stop illegal intervention
v. to maintain balance of power
vi. to protect individuals and their property
vii. collective intervention
viii. to protect International Law
ix. at the time internal war.
 All above basis of intervention have been recognised by the UNO
except the followings :-
i) for application of treaty rights.
ii) to stop illegal intervention
iii) to maintain balance of power
iv) to protect individuals and their property.
v) to protect International Law.
 Despite all these the following types of intervention are in use and
recognised:-
1. Intervention for self-defence and self-protection: Self-defence
and self-protection is main traditional basis of intervention. The
intervention for self-defence is rather limited as compared to that self-
protection. Oppenhein says that the use of power of intervention should
have been made when it becomes necessary for self-protection.‖
A famous case, The Caroline-1841: In this case Mr. Webster declared that
the necessity of self-defence should be instant overwhelming and leaving
no choice of means and no moment for deliberation. Art. 51 of UN Charter
provide that the right of intervention is still available. Under this the state
has the right to individual and collectively protection. But this right is
available only when: -
i) There has been attack on any state.
ii) No step has been taken by the Security Council for international
peace and security.
2. Intervention on the basis of humanity: Every person on
this earth has a right to live with human dignity. The state cannot devoid
her of this right. It the state behaves her citizens with cruelty then it is
violation of International Law of human rights. The action for intervention
by UNO can be taken only in case when the degree of violation of human
rights is such that if created danger for maintenance of International peace
and security. The best example of such intervention is by UNO in 1991 in
Iraq for the protection of Kurds.
 30

3. Collective Intervention: In Chapter 7 of UNO Charter the Security

Council is empowered to take action of collective intervention. The
collective intervention means just and legal base of Modern times. UNO can
intervene for maintenance of world peace and security and to stop or avoid
attack on the following conditions:-
i) When there is actual danger or possibility of danger for
international peace and security.
ii) Actual attack has been made by the concerned state.
The use of such right was made by UNO in Korea in 1950, Kango in 1961
and Iraq in 1991.
4. Intervention in case of internal war: When in any state there is
possibilities of Internal war, the intervention is considered as legal and just
basis because there are strong apprehensions of breach of International
peace. Under this situation the Security Council can decision to take
collective action under Chapter 7 of UNO Charter. The action taken by UNO
in 1961 in Kango is the best example of intervention. This action was taken
to stop internal war.
CONCLUSION: It is absolutely fact that every state is entitled to manage
willingly its own internal and external affairs and does not like interfere of
another state. Similarly it is also the duty of the other state not to interfere
in the internal and external affairs of any state. International Law also like
this. The main motto of the Security Council is maintaining peace in all the
member states.
 31

Unit-III
 Position of Individual in International Law
The position of individuals in international law has been a topic of much
debate and evolution over time. Historically, international law was primarily
concerned with regulating the relations between sovereign states, and
individuals were largely excluded from its purview. However, with the
growth of human rights law, international criminal law, and international
organizations, individuals have gained a more prominent position in
international law.
One of the key developments in the position of individuals in international
law has been the recognition of their human rights. Human rights law has
established a framework for protecting individuals from abuse and
mistreatment by their own governments and other actors. The Universal
Declaration of Human Rights, adopted by the United Nations in 1948,
established a set of universal rights that apply to all individuals, regardless
of their nationality or status. Since then, a range of international human
rights treaties and instruments have been adopted, creating legal
obligations for states to respect, protect, and fulfill the rights of individuals.
International criminal law has also contributed to the position of individuals
in international law. The establishment of international criminal tribunals,
such as the International Criminal Court, has enabled individuals to be held
accountable for serious crimes under international law, such as genocide,
war crimes, and crimes against humanity. This has helped to establish the
principle of individual criminal responsibility under international law.
Finally, the participation of individuals in international organizations and
civil society has also played a role in shaping international law. Non-
governmental organizations and individuals have been able to contribute to
the development of international norms and standards through their
participation in international conferences, consultations, and advocacy
efforts.
Overall, while individuals are not recognized as legal entities in their own
right under international law, their position has been strengthened over
time through the growth of human rights law, international criminal law,
and international organizations.
 32

 Nationality
In law, nationality refers to the membership of a nation or a sovereign
state in addition to the political rights and other privileges accompanied
with it. E.g. American Indians were referred to as non-citizen nationals
before the Native American Citizenship of 1924 was passed. Often
confused with citizenship, nationality, is a different concept. Individual
persons, corporations, ships and aircrafts, all have a nationality, but for
legal purposes only.
The UNs Universal Declaration of Human Rights (1948) stated that
nationality is an inalienable right of every human being and no one shall be
deprived of his/her citizenship. It is nationality which brings all the
individuals under the purview of international laws.
Main theories related to Nationality
Active Nationality Theory - Generally deemed non-controversial, it
states that a state enjoys the right to exercise its jurisdiction over its
nationals, even when they are in a foreign territory. When obeying private
International laws (The obligations of a nation with respect to other
countries ), the national laws always tend to follow an individual beyond
the boundaries as far as his personal status is concerned. Hence, the court
must compulsorily follow International laws, at the same time make sure
that they are not violating domestic police laws or any public order.
When referring to criminal laws, the principle refers to jurisdiction to
adjudicate, whether a state can adjudicate a crime committed abroad? This
becomes even a bigger issue when the convict changes his/her nationality.
A criminal might escape charges by the change of their nationality after
they have committed the crime.
An act might be a crime in one state and somewhere else in the world it
could be just another everyday activity, thus making you immune from any
punishment. Eg. In Arkansas, an individual cannot play more than 25 free
games if he continues to win, whereas this might not be the case
somewhere else in the world.
It is a highly debated topic whether a state can follow its own criminal
jurisdiction on the basis of the nationality of the accused. The U.S Supreme
Court and some authors have raised their concerns. It is a concern of
international law about how the states treat their nationals. Critics to this
view say that it is the state‘s duty under international laws.
Passive Nationality theory: A state at times assumes extraterritorial
jurisdiction over foreign nationals if the person who has suffered damages
is it‘s national. The idea behind the exercise of passive nationality is to fulfil
the duty of a state to protect its nationals from the damage suffered by
them in case the alien state fails to punish the offender.
 33

It is still a matter of dispute whether the nationality of the victim and the
jurisdiction purview should befall under the ambit of international law. It is
viewed as the most aggressive basis of extraterritorial
jurisdiction. Donnendieu de Vabres– A famous French Jurist criticised the
passive theory saying it is just a means of the powerful states to satisfy
their power egotism over the weaker states.
The biggest drawback of this theory is that the defendant is unaware of
what laws will be befalling upon him and it might be a serious crime in
some other state, thus deeming this theory quite unjust for the defendant.
Acquisition of Nationality
All the State‘s and even the International Bodies have laid down certain
provisions on how someone can acquire the nationality of any country.
Nationality is acquired most commonly on these grounds:
Nationality by Birth - Being born in a country qualifies you to be a
national of the respective country. This is usually referred to as Jus Soli. It
is a Latin term, its literal translation is ―right of soil‖.
The states which follow the principle of jus soli, allow the individual to
acquire the citizenship of that particular state on the virtue of being born
on the state‘s territory. This is provided despite the citizenship or the
immigration status of the respective individual‘s parents.
By descent from a State’s National - This is known as the principle
of Jus Sanguinis. It is derived from a Latin term. It literally translates to
―Right of Blood‖. It means that the citizenship of the parent is the pre-
determinant of the child‘s citizenship.
The countries which follow this principle provide citizenship on the basis of
birth provided that the individual‘s parents were legally settled citizens of
the respective country. This ensures that the citizenship passes from the
parent to the child.
By Naturalization - The process by which a foreign citizen becomes
eligible to acquire the nationality or citizenship of any country. It usually
requires the individual seeking the same to fulfil certain requirements and
perform certain protocols to be eligible for the same.
The rules and protocols for naturalization vary from country to country.
The most common element can be the requirement of a promise to obey
and uphold the country‘s law and respect the constitution.
Nationality by Marriage - Individuals need not keep renewing their visa
and burning a hole into their pockets for the sake of love. Foreign
individuals have the opportunity to be a permanent citizen of the state
where your significant other might be. This is known as a citizenship
marriage.
 34

The Hague Convention on Conflict of Nationality Laws (1930) laid down

certain provisions regarding nationality by marriage. Chapter 3 of the same
talks about the Nationality of married women. The main articles of
these laws are:
 Article 8: On the occasion of marriage, if the wife‘s national laws cause
her to lose her nationality, the consequence of the responsibility
completely befalls upon the wife to acquire the nationality of the
husband.
 Article 9: If the national laws require her to lose her nationality when
she acquires the nationality of her husband through marriage. The
consequence of the act shall be on the condition of her acquiring her
husband‘s new nationality.
 Article 10: If the situation where a husband is naturalized, the change
in the wife‘s nationality is not possible until and unless without her full
consent.
 Article 11: In case of marriage dissolution, the wife shall be ineligible
to recover her previous nationality. She can only do so in accordance
with the respective country‘s laws. If the wife is successful in regaining
her previous nationality, then the nationality acquired by virtue of
marriage shall be deemed void.
Nationality by Adoption - This is also referred to as intercountry or
transnational adoption. This is very similar to any normal adoption
procedure, just in an international context. By the virtue of this measure,
an individual or a couple can be deemed legal parents of a child belonging
to a foreign nation.
There are certain protocols to be followed before this can be granted. The
individual or couple will have to be eligible. The eligibility criteria for the
child are:
 The parents (either Couple or individual) must be permanent citizens of
a state, either by birth or via naturalization.
 The child must be under 18 years of age.
 The child must be a permanent citizen of the state from where he is
being adopted.
 The child must be under the legal custody of some guardian in his/her
state.
Nationality by Cessation - The literal meaning of cessation is the
process of ending or bringing to an end. When we talk about nationality by
cessation, we refer to the cessation clauses which were expressed in
the conference of Plenipotentiaries held in 1951. This conference laid that
an individual must not be provided refugee status any longer than it is
 35

absolutely required. This had to come to a halt in accordance with the

terms and conditions of the statues.
The cessation of refugee status thus comes into play when the refugees
have successfully availed the protection of their country of origin or any
other country of which they are nationals of now. Article 1F of the
convention addresses these conditions in which an individual is no longer
eligible to enjoy the benefits of refugee protection.
 36

 Extradition and Asylum

 Extradition
Extradition is a process under which a state, under a treaty or ambiguous
practice, surrenders a person to another state (nation) on the other state
(nation) who, under the territory of the requesting state, or so a crime has
been committed or a crime has been punished according to the legal
process of that nation and the so-called nation is capable of prosecuting
that criminal.
Extradition in international system is mainly based on bilateral treaties. A
universal rule has not been formed on this. Since ancient times, states
(nations) have always considered it their right to give shelter to foreigners.
Therefore, extradition is governed by the interrelation of two states
(nations). Therefore, there is no universal rule relating to the practices of
international law by which the states are liable for extradition.
The necessary condition for extradition
Extradition should not be made on political offenders, military crimes,
religious crimes. But there is a difference of opinion among different states
in the definition of political crime.
In extradition, the "rule of specialty" applies. According to this rule, the
extradition of the offender is for a particular offense, so that country can
pursue the same case against the offender for which he is extradited.
The "Rule of Double Criminalization" in extradition also applies. According
to this rule, the offense for which extradition takes place must be declared
an offense in both the countries concerned (extraditor and extradition
seeker).
All the conditions and rules written in the extradition treaty are often
followed till the offender is extradited. And extradition requires formal
prayer.
When a person is accused of committing a crime in a foreign country and
the concerned foreign country seeks his extradition, the accused is not
necessarily present in that foreign country at the time of the crime.
Extradition law in India
Section 2 (d) of the Extradition Act 1962 defines an extradition treaty as a
treaty, agreement, or arrangement made by India with a foreign state
relating to the extradition of fugitive offenders and any treaty related to
any treaty, agreement, or arrangement, involves compromise or
arrangement.
Famous extradition cases of India
 37

Savarkar Case-1911- B.D. Savarkar was an Indian revolutionary who

was being brought to India by a vessel, a case was to be tried against him
for promoting treason and crime in the court of British India. Savarkar
escaped from the ship but was caught by the French police. The captain of
the French ship handed him over to the captain of the British ship. After
this, the French government asked the British government to return
Savarkar
Because extradition-related rules have not been properly followed in this
case. And the case went to the Hague Court where a verdict was given in
favor of Britain. The then law experts criticized it.
Dharma Teja Case 1972- Dharam Teja was the director of a shipping
company who took refuge in the Ivory Coast by embezzling crores of
rupees. Ivory Coast refused to return Dharma Teja due to a non-
extradition treaty between India and Ivory Coast.
Later Dharma Teja went to London and was brought to India in 1972
where he was sentenced.
India - UK Extradition Treaty
- Extradition treaty was signed between India and Britain in 1993.
- India gave a list of nearly 131 people for extradition.
- Britain has not sent a single criminal to India since 1993.
 38

 ASYLUM
Asylum means protection or active protection. This Asylum is given to
political refugees. In the international system, all states agree to give
Asylum and not to extradite the political refugee, but there is a wide
variation in the definitions of political crime. According to Article 14 of the
Universal Declaration of Human Rights, every aggrieved person has the
right to seek asylum in another country.
Type of Asylum- Generally, there are two types of Asylum.
Territorial Asylum - The refugee in the Territorial Shelter lies within the
geographical boundary of the asylum state such as the shelter given by
India to the Dalai Lama.
External Territorial Asylum - Refugees in external territorial asylum lie
within the political boundary of the asylum state, such as foreign envoys,
merchant ships, international institutions.
Rights of Asylum
- Article 14 of the Universal Declaration of Human Rights gives every aggrieved
person the right of Asylum in other countries (but it is not necessary that
when a person seeks shelter, he or she will be given shelter).
- A United Nations Declaration on Territorial or Territorial Asylum, 1967 was
unanimously accepted. According to this, states should keep a check on the
actions of such oppressed persons who seek shelter at the border, such as
rejection of shelter, etc. But this declaration cannot be called binding.
- But on 14 December 1967, the United Nations General Assembly said in the
resolution that states should take care of the following points in terms of
shelter -
- When a person asks for shelter, it should not be denied or when a person
enters the border of the state seeking asylum, it should not be removed (but
it can be removed based on national security and public safety).
- If a state is uncomfortable giving shelter, then appropriate measures should
be considered in the sense of international unity through individual states or
the United Nations.
- If a state gives shelter to a victim, then other states should respect it.
Conclusion - Giving asylum to a political criminal is the sovereign right of
a state and it is enforced through various treaties and practices. According
to international relations, it is necessary to give shelter to a political
refugee, but concerning economic fugitives, a universal extradition treaty
needs to be accepted so that economic sovereignty can be ensured. The
British court has made a positive start by taking the decision related to
sending Vijay Mallya to India, now it is necessary that by implementing this
decision soon, examples should be set for countries to protect other
economic sovereignty.
 39

 DIPLOMATIC AGENTS
The system of appointment of agent to act as representative of king or
ruler for the purpose of doing work in other countries or to perform some
function has been in vogue from time immemorial.
This is the system in international world, this type of person is known as
'DIPLOMATIC REPRESENTATIVE' or 'DIPLOMATIC AGENT'.
Special importance is given to such person in international law and such
types of person have many immunities and privileges. And having some
duties which are understand by brief explanation as following as under-
CLASSIFICATION OF DILOMATIC AGENT
The diplomatic agent have been classified according to their status and
functions, it was again dropped by 1961 convention on Diplomatic
relations. THUS, at present, the classification of diplomatic envoys is as
follows-
1) AMBASSADORE AND LEGATES- Ambassador and legates are the
diplomatic agents of first category. They are the representatives of the
completely sovereign states. They are either appointed as ambassador or
permanent representative appointed by pope are called legates.
2) MINISTERS PLENI-POTENTIARY AND ENVOYS EXTRA-
ORDINARY- Minister plenipotentiary and envoys extraordinary are the
diplomatic agents of secured category and as compared to the diplomatic-
agents of the first category, they enjoy less privilege and immunity.
3) CHARGE-D-AFFAIRES- Charge-d-affaires are the diplomatic agents
of the last category. The main reason for this is that they are not appointed
by the head of the state. they are appointed by the foreign ministers of
states in right and status they are considered below the minister resident.
It was made clear in Article-14(2) of the Vienna convention on diplomatic
relation that apart from precedent and etiquette, there is hardly any
difference between the diplomatic agents of above mentioned categories.
Obviously, there is no difference so for as their privilege and immunity are
concerned.
IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS
Several immunities and privileges have been given to diplomatic agent
under international law. S.S.DHAWAN has considered these immunities and
privileges a main base of international law. These immunities and privileges
are as follows-
1) INVIOLABILITY- In international law, diplomatic agents have been
given sufficient personal security. This immunity is recognised under
Vienna convention 1961. In Article 29 0f the said convention it has been
 40

said that "Diplomatic agents will enjoy physical inviolability. He will not be
liable to any form of arrest or detention. Honourable treatment will be
given to him by taking or keeping state and every efforts shall be made to
maintain his freedom and reputation as intact."
But if the behaviour and conduct of diplomatic agent is found to be
objectionable and if charge is imposed upon him of interference in internal
affairs of keeping state, then he may be declared as PERSONA NON GRATA
and may be asked to leave the country (Article- 9 and 43 of Vienna
convention 1961), Indian diplomatic agent in Pakistan RAJESH MITTAL was
tortured by officers of intelligence agency of Pakistan on 25th may 1992
and with the result, India declared two Pakistani diplomatic agents in India
as PERSONA NON GRATA and was asked to leave India is an good example
of this.
2) IMMUNITY FROM CIVIL ADMINISTRATIVE JURISDICTION- It is
well established principle of international law that the diplomatic agents
enjoy immune from civil and administrative jurisdiction. Under this
immunity:-
- no suit can be filed against diplomatic agent for recovery of debt;
- he cannot be arrested in action for debt recovery;
- his property cannot be ceased and sold.
3) IMMUNITY FROM CRIMINAL JURISDICTION - Diplomatic agents
have also been given immunity from criminal jurisdiction. Under Article 31
of Vienna convention 1961, it has been provided that "diplomatic agents
shall be immune from the criminal jurisdiction of the state". It means that
the keeping state shall not prosecute and penalise any diplomatic agent
under any circumstance. Even he cannot be arrested. But it does not mean
that he can behave as he likes in keeping state. It is his duty that he
should obey all rules and laws of keeping state and should not do such act
which is inconsistent with the internal system of keeping state. If any
misconduct is done by him, the keeping state may suspend him and ask
him to leave the country.
For example- in 1995 the first secretary sultan Mahmood DEHADER in
AFGAN embassy was suspended by government of India in Delhi in
consequence of criminal charge and misconduct and was sent back to
AFGANISTAN. This immunity is not available to children and relatives of
diplomatic agents who are not residing with them.
4) IMMUNITY REGARDING RESIDENCE- There is inviolability of
residence of diplomatic agent. Entry in house and even his house can not
be searched. if there is any person hidden in his house to whom the police
wants to arrest, normally the diplomatic agent surrenders such person to
the police.
 41

5) IMMUNITY FROM GIVING EVIDENCE IN THE COURT- Diplomatic

agent is immured from presenting himself for giving evidence in the courts.
He cannot be made bound for giving evidence in the court. In Article-31(2)
of Vienna convention, it has been said "NO DIPLOMATICE AGENT WILL BE
MADE BOUND FOR GIVING EVIDENCES IN A COURT AS WITNESS". But if
any diplomatic agent wants to give evidence at his own then he will be
allowed to present himself in a court for giving evidence.
6) IMMUNITY FROM PAYMENT OF TAXES- In international law,
diplomatic agent are immune from payment of taxes and customs duties.
According to Article 34 and 36 of Vienna convention "A DIPLOMATIC
AGENT SHALL BE IMMUNE FROM PAYMENT OF ALL TYPES OF TAXES AND
DUTIES". But if any diplomatic agent wants to pay taxes in exchange for
enjoyment of facilities of water and electricity he will be allowed to pay.
But if does not pay any tax , no legal action will be taken against him.
7) IMMUNITY FROM POLICE RULES AND REGULATIONS- Diplomatic
agent are immune from police rules and regulations. If he obeys these
rules: it will be treated as his good manners towards the state for
maintenance of good relations.
8) RIGHT OF WORSHIP AND DEVOTION TO GOD- Diplomatic agent
have right to worship according to his own consciousness is his embassy.
But he does not enjoy the right to preach his own religion and to make the
citizens of keeping states bound to participate in his worship and
devolution.
9) IMMUNITY FROM LOCAL AND MILITARY OBLIGATIONS-
According to Article-35 of Vienna convention 1961, the diplomatic agent
have been immune from local and military obligations.
10) RIGHT TO EXERCIESE CONTROL AND JURISDICTION OVER
THEIR OFFICERS AND FAMILIES.
11) FREEDOM OF COMMUNICATION FOR OFFICIAL PURPOSE- This
freedom has been conferred upon by Article-27 of Vienna convention on
the diplomatic relations, 1961. This Article provides that they have freedom
to communicate with their home-state in connection with their functions
and duties.
12) RIGHT TO TRAVEL FREELY IN TERRITORY OF THE RECEIVING
STATE- This new right has, for the time, been introduced in Article-26 of
the Vienna convention on Diplomatic relations,1961. Article 26 provides
that diplomatic agents can travel in the territory of the receiving state
subject, of course, to the condition that they cannot go to the prohibited
places or the places which are important from the point of view of the
security of the receiving state.
 42

13) IMMUNITY FROM SOCIAL SECURITY PROVISIONS- According

to Article 33, a diplomatic agent shall with respect to services rendered for
the sending state be exempt from social security provisions which may be
in force in the receiving state.
14) IMMUNITY FROM INSPECTION OF PERSONAL BAGGAGE-
Article 36(2) of Vienna convention 1961 provides that the personal
baggage of a diplomatic agent be exempt from inspection.
 43

 TREATIES
Article 38(1) of the International Court of Justice‘s statute identifies treaties
as a source of law, along with general principles and customs. Treaties
occupy a very eminent position in international law. They ensure friendly
and peaceful relations of states with one another and are a means by
which international organizations take form, regulate and monitor their
affairs. The concept of the treaty has undergone significant changes over
time. In earlier periods, treaties used to be oral and a ceremony would be
held where the parties would conclude it and swear an oath to God, which
used to act as the binding force of the treaty. Now, treaties must be
written and are legally binding between its parties.
Drafted by the International Law Commission of the UN and taking force
on 27 January 1980, the Vienna Convention on the Law of Treaties set out
some fundamental rules as to how treaties are to operate and take form.
More than half of the member states of the UN are a party to the
Convention.
Concept of treaty
Treaty in common parlance may be defined as written agreements
between parties, which may or may not be stated, to identify and follow a
set of rules. They may also be referred to as pacts, agreements, charters,
etc. Declarations and political statements are excluded from the scope of
the definition of a treaty.
Treaties have been classified on the basis of many principles. On the basis
of the object, they have been classified as political treaties (including
alliances and disarmament treaties), constitutional and administrative
treaties (e.g. WHO‘s constitution, which is responsible for setting up the
international body and to regulate it affairs), commercial treaties (trade
and fishery agreements), criminal treaties (which define certain
international crimes and may require the offender to be extradited),
treaties codifying international law, and treaties for ensuring civil justice.
A country that hasn‘t signed the treaty has no obligation to follow its
norms. However, like the ICJ had stated in the North Continental Shelf
Cases, that some treaties may give rise to international conduct, customs
and be of a ―fundamentally norm-creating character.‖ Article 26 of the
Vienna Convention on the Law of Treaties deals with the Latin maxim
―pacta sunt servanda‖, i.e. every signatory is to follow the treaty in good
faith and is binding upon them. This forms the basis of every international
agreement.
―Reservations‖ are the way in which a signatory may escape having to
follow all the provisions of the treaty and is a tactic used to become a
party by agreeing to the basic principles of a treaty. However, reservations
 44

can only be made in cases where such reservation is not contrary to the
object of the treaty.
Interpretation of a treaty should be bona fide and the object and purpose
of the treaty needs to be kept in mind while doing so. In case the text is
vague, ―travaux preparatories‖ and other supplementary means of
interpretation might be used. One such method of interpretation of a treaty
is adopting a broader-purpose approach. Contrastingly, a purpose-oriented
approach is adopted in cases where the treaty in question to be interpreted
is the constitutional document of an international organization.
Kinds of treaty
Law Making treaties
The term ―law-making‖ treaty seems to be confusing, as it raises the
question- Can treaties create law? This term actually refers to the content
and the subject matter of a treaty, which instead of being contractual shall
be statutory. The emergence of a subsisting need of international legal
order sparked a newfound interest in this type of treaty. The need of
bringing rules which had statutory force was felt rather than the existing
rules which governed voluntary legal relations between states. In cases of
law-making treaties, the obligations are independent; they don‘t require a
subsequent fulfilment of rules by other parties to it. These obligations have
binding force and the parties to these treaties must follow it. Unlike
contracts, treaties have the power to make new international tribunals,
international waterways, mandates, etc.
These are multilateral treaties which stand for a common cause. A
commentary by Fitzmaurice takes human rights treaties and maritime
regimes as law-making treaties. In the case of a multilateral treaty, this
type of treaty can be broken down and thought of as a number of bilateral
treaties, each of which are independent of one another and have to follow
the obligations inherently. As for bilateral treaties, they can simply be
viewed as dependent on each other as existence. Here, each party does
not join to provide another party something it might require, but rather to
stand for a mutual cause or support a rule binding on all.
Contractual treaties
They are usually applicable to treaties having a small number of parties
and are most commonly seen in bilateral treaties. These are treaties where
parties are mutually dependent on each other for specific treatment to gain
benefits, and have rights and obligations towards each other. In reality,
treaties need to take care of both the statutory as well as the contractual
function. The scope of treaties is mostly perceived in a contractual
framework. Unlike law-making treaties, which sets out rules for conduct,
rights, and duties between parties which have to take effect on the
 45

conclusion of the treaty, contractual treaties are usually limited to, say,
exchange of goods which one state might not possess and require, or
conveyances. Here, one party agrees to provide the other party something
it needs for something else in return, thereby forming a system like barter.
Types of treaty
Bilateral treaties - Treaties involving two entities are bilateral treaties. It
is not necessary that the treaty can only have 2 parties; there may be
more than two parties, however, there should be only two states involved.
For example, the bilateral treaties between Switzerland and the European
Union(EU) have 17 parties, which are divided into two parts, the Swiss and
the EU and its member states. It is important to note that by virtue of this
treaty, obligations, and rights arise between the two entities to it, i.e. the
EU and the Swiss. This treaty does not give rise to obligations between the
EU and its member states.
Multilateral treaties - Treaties between three countries or more are
multilateral treaties. They might be international or domestic. They give
rise to rights and obligations among all the parties, i.e. each signatory has
obligations towards all the other signatories.
Treaties with a higher number of participating states gain more
international significance since it reflects the importance of the treaty.
However, there have been many crucial bilateral treaties too, such as those
emerging from Strategic Arms Limitation Talks. All treaties have different
purposes. Some set up international organizations through the UN Charter
of 1945, whereas others deal with issues such as visa regulations.
The binding force of Treaties
Vienna Convention on the Law of Treaties, 1969
The International Law Commission of the United Nations drafted the
Vienna Convention on the Law of Treaties, which was adopted on May 23,
1969. Entering into force on January 27, 1980, it is an international
agreement between the states to govern and regulate treaties.
The treaty is limited to and encompasses written treaties only. Divided into
many parts, the first part sets out the object, terms, and scope of the
agreement, and the second part lays down rules for adoption, ratification,
the conclusion of the treaties. The third part deals with the interpretation
of treaties. The fourth part talks about the modification of treaties, and
lastly, the fifth part delves into withdrawal, suspension, termination, and
invalidation of a treaty. It also includes a necessary clause which gives the
International Court of Justice jurisdiction over any possible disputes. The
final parts discuss rules for ratification and effects on treaties due to
change in government.
 46

The document has not been ratified by the US, however, it follows its
provisions usually. Till 1979, all the 35 member states of the UN had
ratified the treaty.
As per the Latin maxim ―pacta sunt servanda‖, or as mentioned under
Article 26 of the Convention, all treaties are binding on its signatories and
shall be followed bona fide. The binding nature which this treaty serves to
all other treaties is a reason why the US isn‘t a part of it. There exists a
tussle between Congress and the Executive branch, over who has the
authority to validate a withdrawal from treaties on behalf of the country.
Since treaties are binding, there is too much at stake between the two
organs of the US government.
GENERAL PRINCIPLES
Article 1 of the said Convention says that it is applicable to treaties
between the states. It is also applicable to treaties entered into by
international organizations. The Convention defines ―treaty‖ as a written
agreement between states which may be embodied in one or more than
one instrument and is governed by International law. Article 2 further
defines ―ratification‖, ―approval‖, ―reservation‖, etc. in the context of the
treaty. It is important to note that none of the provisions of the said
Convention are applicable to written agreements between an international
body and a state, or between 2 subjects of international law. Article 3
thereby reiterates the scope of the Convention and states that if such an
agreement has been entered, its legality would not be affected. The parties
to such agreements do not have to follow the rules of the Convention
either, however, they should ensure that the rules they follow to govern
the treaty are acceptable in the eyes of international law. Such agreements
shall also not have any effect on the relations between the States.
Role of treaties in International Law
Treaties form the basis of international law. They maintain stability and
diplomatic relations between the States. They are thus the most important
elements to guarantee international cooperation, peace, and security. This
is one of the reasons why treaties are regarded as the fundamental source
of international law. The preamble of the Vienna Convention on the Law of
Treaties accords to treaties with the eminent position they hold in ensuring
international order and emphasizes their existence as a continuum.
Treaties go as back into the past as one can remember. Perhaps, one of
the first treaties ever known was the one created by rulers of Hittite with
Ramesses II, who was the King of Egypt. The treaty between Kings of Elba
and Ashur is the oldest treaty preserved in full text. It is said to be
concluded in the third century BC. In earlier times, there was no concept of
 47

State and there was the existence of many sovereigns. At that time,
treaties weren‘t only between different states but also between officials of
different ranks, or between other authorities. Swearing to God was what
acted as the binding force at that time. As time passed by, the way in
which treaties were concluded gradually became more streamlined and
sophisticated. Treaties started taking the written form rather than being
oral as in the earlier times. Treaties that dealt with subjects of peace and
alliance began dominating and could now be given the force of a statute,
for example, the Statum in favorum principum. As the world started
settling as states, treaties began gaining prominence. The creation of the
international organizations gave treaties new-found importance. Then
came the Law of Treaties which set into permanence and recorded treaties
as being a source of international law.
 48

Unit-IV
SETTLEMENT OF INTERNATIONAL DISPUTES BETWEEN
STATES
For Settlement of International dispute the Article 2, paragraph 3 of
the UN Charter requires that - All Members shall settle their international
disputes by peaceful means in such a manner that international peace and
security and justice are not endangered. The UN General Assembly, in
adopting its 1982 Manila Declaration on the Peaceful Settlement of
Disputes, emphasized the need to exert utmost efforts to settle any
conflicts and disputes between States exclusively by peaceful means'' and
that'' the question of the peaceful settlement of disputes should represent
one of the concerns for States and the United Nations''. In the age of
nuclear weapons, the importance of the principle of peaceful settlement of
international disputes is apparent.
International Dispute: In the Mavromattes case, the PCIJ defined a
dispute as 'a disagreement on a point of law or fact, a conflict of legal
views or interests between two persons'' (Greece v U.K), J.G. Merrills
suggests that:
A dispute may be defined as a specific disagreement concerning a matter
of fact, law, or policy in which a claim or assertion of one party is met with
refusal, counterclaim, or denial by another. In the broadest sense, an
international dispute can be said to exist whenever such a disagreement
involves governments, institutions, juristic persons (corporations), or
private individuals in different parts of the World. However, the disputes
with which the present work is primarily concerned are those in which the
parties are two or more of the hundred and sixty or so sovereign states
into which the world is currently divided.
Article 2(3) of the UN Charter provides: All Members shall settle their
international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
Article 33 of the UN Charter provides: The parties to any dispute, the
continuance of which is likely to endanger their maintenance of
international peace and security, shall, first of all, seek a solution by
negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement,
resort to regional agencies or arrangements, or other peaceful means of
their own choice. The Security Council shall, when it deems necessary, call
upon the parties to settle their disputes by such means.
Pacific settlement of the dispute: Chapter VI (Articles 33-37) of the UN
Charter, entitled Pacific Settlement of Disputes establishes further
obligations of the parties and various dispute settlement powers of the
 49

Security Council. Under Article 35, any state may bring any dispute to the
attention of the Security Council or the General Assembly.
Under Article 36, the SC may, at any stage of a dispute the continuance of
which is likely to endanger the maintenance of international peace or
security, recommend appropriate procedures or methods of adjustments;
in doing so, the SC should take into consideration that legal disputes
should be as a general rule be referred by the parties to the International
Court of Justice.
Article 37 provides that, should the parties to a dispute of nature referred
to in Article 33 fail to settle it by the means indicated in Article 33, they
shall refer it to SC which, if it deems that the continuance of the dispute is,
in fact, likely to endanger the maintenance of international peace and
security, shall decide whether to take action under Article 36 or to
recommend such terms of settlement as it may consider appropriate.
Article 38 provides that:
Without prejudice to the provisions of Article 33 to 37, the Security Council
may, if all the parties to any dispute so request, make recommendations to
the parties with a view to a pacific settlement of the dispute.
The links between the principle of the peaceful settlement of disputes and
other specific principles of international law are highlighted both in the
friendly relations declaration and in the Manila Declaration, as follows:
- The principle of non-use of force in international relations.
- The principles of non-intervention in the internal affairs or external
affairs of states.
- Principles of equal rights and self-determination of people.
- Principles of the sovereign equality of states.
- Principles of international law concerning the sovereignty,
independence, and territorial integrity of states.
- Good faith in international relations.
- Principles of justice and international law.
 50

The means of Settlement (as per Article 33) of the

charter are:
Negotiation: – The settlement of the international disputes by the
disputant states themselves by negotiation is said to be the settlement of
the disputes by negotiation. In other words, when there a dispute arises
between two or more states then to avoid the chances of war or violence
they tend to negotiate for the matters to be settled. The negotiation is to
be taken by the political representatives of the disputant countries, without
involving any third or non-concerned country.
Good-offices: – The act or arrangements taken by a third party to bring
disputant parties for negotiation or to settle a dispute between them by
any peaceful means is said to be Good-offices. In the case of Good-offices,
the third merely renders services to bring the disputant parties to peace full
means of settlement of disputes. Here the third party does not give any
suggestions or take part in the meetings as to be held between the
disputant parties. Shortly speaking, in case of good offices whenever the
parties to dispute come to peace full of the settlement of dispute the duty
of the third party finishes.
Mediation: – The act of participating and in the discussions and giving
suggestions to settle a dispute between two parties by a third party is said
to Mediation. In other words, mediation is the method to settle a dispute
where any third party actively takes part in the sessions of dialogues or
negotiations held between the disputant party to resolve the dispute. In
the case of mediation, the mediator should consider the matter of
compromise between the parties rather than encourage the strict letter of
the law.
Inquiry: – The process to ascertain the facts of disputes by a commission
of imperial investigators is said to the inquiry. This mean is intended to find
out the questions of law and mixed questions of law and fact involved in a
dispute. The only function of the commission is to bring in light those facts,
which are the root cause for the alleged dispute, and to investigate the
question of law and mixed questions of law and fact.
Conciliation: – The process of referring a dispute to a commission; to
find out facts and prepare a report containing proposals for the settlement
of that dispute, is called conciliation. In case of conciliation, the
commission is to take two tasks, at first, it shall ascertain the facts of the
dispute and secondly, it shall prepare a report which shall reveal that the
possible measures to settle the dispute. But the proposals prepared by the
commission have no binding force upon the parties. The parties can
disagree with the proposals.
 51

Arbitration: – The process of referring the dispute; by the mutual

consent of the parties to a body of persons or a tribunal for a legal decision
is called arbitration. The essential ingredient of arbitration is the consent of
disputant parties to the dispute. In other words, the referring of the
dispute to a Court of Arbitration is dependent on the sweet-well of the
parties. International law recognizes a court for arbitration known as the
Permanent Court of Arbitration. But in fact, it is neither permanent nor a
court.
Judicial Settlement: – The process of settling a dispute; by the
International Tribunal in the light of the provisions of International Law, is
said to be Judicial Settlement. For Judicial Settlement there is a judicial
organ in international law, known as the International Court of Justice.
Both the award given by the arbitration tribunal and decision given by the
International Court of Justice comes in the ambit of Judicial Settlement.
Like in arbitration, in case of referring the dispute to the International
Court of Justice the consent of both the parties are necessary to be given.
International Court of Justice shall take its proceeding in the light of the
rules of International law, and its procedure is governed by the statute
known as the Statute of the International Court of Justice. International
Court of Justice plays a very important rule in the settlement of
international disputes.
Security Council: – A dispute may be settled by a principal organ of the
United Nations, known as the Security Council. The Council consists of
fifteen members. Five members are permanent while the remaining ten
members are non-permanent members. Wide powers have been entrusted
to the Council for the settlement of the disputes, which tend to endanger
world peace and security. There are several measures to be taken by the
Council for the settlement of the disputes.
General Assembly: – General Assembly is another principal organ of the
United Nations. The Assembly has no specific means to settle the dispute,
rather it has general powers to settle the international dispute. It has the
power to discuss and to suggest better means for the peaceful settlement
of the disputes.
Compulsive or Coercive Means: - Compulsive or coercive means for the
settlement of disputes are non-peaceful methods. Such measures involve
pressure or force on a State to settle the dispute. However, the use of
compulsive measures does not mean the use of armed forces in all cases.
Normally, they include the measures which are just predecessor to war, or
short of war.
Retorsion: - Retorsion is the technical term for retaliation. It is based, to
some extent, on the principle of tit for tat. When an act is done by a State
similar to that done earlier by another state, it is called Retorsion.
 52

The purpose of Retorsion is to take retaliation. The acts which are done by
a State in Retorsion are not illegal. In other words, they are permitted
under International Law. However, it is an unfriendly act and in given
circumstances, it may be an effective tool of law enforcement.
The cases where Retorsion are employed as a means to settle the disputes
may be numerous. For instance, if the citizens of a State are given unfair
treatment in another State through rigorous passport regulations, the
former may also make similar rigorous rules in respect of the citizens of the
latter State.
One of the cases of the Retorsion took place in December 1992, when two
Pakistani High Commission officials were declared persona non grata by
India, Pakistan also expelled three Indian officials and declared them
persona non grata. The action of Pakistan can be termed as Retorsion.
Reprisals: The term reprisals includes the employment of any coercive
measures by a State to secure redress. Thus, the main purpose of the
reprisals is to compel the delinquent State to discontinue the wrongdoing,
or to pursue it, or both. If a dispute has arisen due to an unjustified or
illegal act of a State, the other state may take any coercive measure
against that State to settle the dispute. Formerly, Reprisals were restricted
only to the seizure of the property or persons, but later, it included other
methods as well such as bombardments, the occupation of territories of a
State, seizure of ships, freezing of assets of its citizens and taking any kind
of property belonging to it.
Thus, it may be applied not only to the state but against the citizens of that
State as well. While a state is at liberty to take action of reprisal, but it has
to meet some lawful conditions laid down in the Naulilaa Incident case.
After the creation of the United Nations, the principles of non-use of force
and peaceful settlement of disputes have generally become a part of jus
cogens, and therefore the use of force in reprisals has been prohibited
(Article 2 para 4 of the Charter). Also, article 33 of the Geneva Convention
forbids reprisals against persons protected therein.
Actions taken in reprisals are illegal and are taken exceptionally, by a State
to obtain justice. In reprisals, a State takes law into its own hands.
Embargo: - The term Embargo is of Spanish origin. Ordinarily, it means
detention, but in International Law, it has the technical meaning of
detention of ships in port. Hyde defines embargo as the detention within
the national domain of ships or other property otherwise likely to find their
way to foreign territory. The embargo may be applied by a State in respect
of its vessels or to the vessels of other States. When a state confines the
operation of the embargo to its vessels, it is known as a civil or pacific
embargo. Such an operation is initiated by an order issued by State
 53

authorities to limit or interrupt or terminate its trade and economic

relations with another state. The purpose is to exert financial or economic
pressure on the other state.
When ships of other states are detained which as committed a breach of
an Internal Law, the embargo is said to be hostile. The purpose of such an
embargo is to compel another state to settle the dispute. Such an embargo
is a form of reprisals.
Embargo at present may be applied by a State, individually, or collectively,
under the Authority of the United Nations. If an embargo is applied by a
state, it should not endanger international peace and security. The
collective embargo may be applied under the authority of the Security
Council against a delinquent State.
Pacific Blockade: - When the coast of a state is blocked by another state
to prevent ingress or egress of vessels of all nations by the use of warships
and other means to exercise economic and political pressure on that State,
the act is called blockade. When applied during peacetime, it is known as
the pacific blockade. The essential requirements are that the blockade
should be declared and notified; the blockade must be effective.
As to the validity of the pacific blockade, in international law, there was a
difference of opinion among jurists, but after the creation of the United
Nations, application of the pacific blockade has become illegal because it
threatens peace and security.
Collective blockades, when applied under the authority of the Security
Council are not illegal. It was applied against Iraq in 1990.
Intervention: It is another compulsive means of settling disputes
between states, short of war. According to Professor Oppenheim, it is the
dictatorial interference by a State in the affairs of another State to maintain
or alter the actual condition of things. Professor Winfield has classified
intervention in three categories, i.e. Internal, External and Punitive
Intervention.
Conclusion: Peace cannot be established in the world unless states as
separate entities from their citizens are not inclined to solve the disputes.
As the magnitude of a dispute between the states is multiple times larger
than that of the dispute between individuals, the result of its resolution is
also multiple times larger than that of the resolution of a dispute between
individuals. Hence, individual states must resolve to solve all the disputes,
by using amicable means. This is inevitable for the peace of the world,
when several complexities, both legal and factual, increase the number of
disputes too.
 54

WAR: DEFINITION AND EFFECT

What is War?
War is a state of organized, armed, and often prolonged conflict carried
on between states, nations, or other parties typified by extreme
aggression, social disruption, and usually high mortality. The set of
techniques used by a group to carry out war is known as warfare. An
absence of war is usually called peace.
In 2003, Nobel Laureate Richard E. Smalley identified war as the sixth (of
ten) biggest problems facing the society of mankind for the next fifty years.
In the 1832 treatise ―On War‖, Prussian military general and theoretician
Carl Von Clausewitz defined war as follows: ―War is thus an act of force to
compel our enemy to do our will‖.
Definitions of War by Scholars
1. According to Hall ―When differences between states reach a point at
which both parties resort to force, or one of them does acts of
violence, which by the other is considered as a breach of peace and
the relation of war is set up, in which the combatants may use
regulated violence against each other, until one of the two has been
brought to accept such terms as his enemy is willing to grant.‖
2. Starke: ―A contest between two or more states primarily through
their armed forces, the ultimate purpose of each contestant being the
vanquish the other or others and impose its own conditions of peace.‖
3. Oppenheim: ―In fact, war is an armed conflict between the two or
more states, which have aims of imposing conditions, favourable for
one, on the other.‖
4. Haffman Nickerson: ―War is the use of organized force between
two human groups pursuing contradictory policies, each group seeking
to impose its policy upon the other.‖
5. Lawrance: “A contest carried on by public forces between states
with the intention of ending peaceful relations and substituting
hostilities for them.‖
Types of Warfare
War, to become known as one, must entail some degree, of confrontation
using weapons and other military technology and equipment by armed
forces employing military tactics and operational part within the broad
military strategy subject to military logistics. War Studies by military
theorists throughout military history have sought to identify the philosophy
of war, and to reduce it to a military science.
In general, modern military science considers several factors before a
National defence policy is created to allow a war to commence the
environment in the area(s) of combat operations, the posture national
 55

forces will adopt on the commencement of a war, and the type of warfare
troops will be engaged in.
Conventional warfare is an attempt to reduce an opponent‘s military
capability through open battle. It is a declared war between existing states
in which nuclear, biological, or chemical weapons are not used or only see
limited deployment in support of conventional military goals and
maneuvers.
Unconventional warfare: The opposite of conventional
warfare, unconventional warfare, is an attempt to achieve military
victory through acquiescence, capitulation, or clandestine support for one
side of an existing conflict.
Nuclear Warfare is warfare in which nuclear weapons are the primary, or
a major, method of coercing the capitulation of the other side, as opposed
to a supporting tactical or strategic role in conventional conflict.
Civil War is a war where the forces in conflict belong to the same nation
or political entity and are vying for control of or independence from that
nation or political entity.
Asymmetric warfare is a conflict between two populations of drastically
different levels of military capability or size. Asymmetric conflicts often
result in guerrilla tactics being used to overcome the sometimes-vast gaps
in technology and force size.
Intentional air pollution in combat is one of a collection of techniques
collectively called chemical warfare. Poison gas as a chemical weapon
was principally used during World War I, and resulted in an estimated
91,198 deaths and 1,205,655 injuries. Various treaties have sought to ban
its further use. Non-lethal chemical weapons, such as tear gas and pepper
spray, are widely used, sometimes with deadly effect.
Effects Outbreak of War and of Armed Conflicts
The outbreak of war has severe and serious consequences.
Enemy Character of Persons or Things
After the outbreak of war, relations deteriorate and change the belligerents
have some rights under International Law. They can act ill any way to
protect their interests. There is no any standard and recognized scale to
assess or determine the enemy character of persons of– things. The
following rules can be formulated as:
Individuals: Hostile combatants and the citizens of the enemy‘s state are
enemy persons.
A Territory: A territory under the effective military, control or occupation
of the enemy will be considered as an enemy territory.
 56

Businessmen Abroad: According to Anglo-American legal system even

neutral residing for business in enemy‘s territory are treated as enemy
persons while such persons in neutral states are not enemy persons.
Ships: A ship having an enemy flag will be considered of enemy character
and an enemy ship having a neutral flag will be considered non-enemy but
not in the following cases when;
- If these ships participate in war and hostilities by the orders of
enemy or if they are enemy employee for war.
- If the resist legal and legitimate right of visit or inspection.
Diplomatic Relations
After the outbreak of war, diplomatic relations abolish and the diplomatic
representatives proceed to home states from the belligerents. They are not
treated as enemy persons and their residences are handed over to neutral
states or any foreign state and their documents are sealed and protected.
Treaties -
There are different views regarding the position of treaties during the
outbreak of war. Some believes that all sorts of treaties

MODES OF TERMINATION OF WAR

Under international law, wars can be terminated in various ways. Some of
the common modes of termination of war include:
Ceasefire: A ceasefire is a temporary cessation of hostilities between the
warring parties. It is usually agreed upon through negotiations or
mediation and can be unilateral or bilateral. Ceasefires can be used as a
prelude to further negotiations or as a means of establishing a durable
peace.
Armistice: An armistice is similar to a ceasefire, but it is usually a more
formal agreement between the warring parties that includes the conditions
for a permanent cessation of hostilities. It is often used to end a particular
conflict, and can also serve as a precursor to a peace treaty.
Surrender: Surrender occurs when one of the warring parties submits to
the other, usually after a protracted conflict. The terms of surrender are
usually negotiated between the parties, and they often include the
conditions for the occupation, disarmament, and demobilization of the
defeated party.

Peace treaty: A peace treaty is a formal agreement between the warring

parties that brings an end to the hostilities. It outlines the terms of peace,
including the conditions for the cessation of hostilities, the withdrawal of
 57

troops, the exchange of prisoners of war, and the establishment of post-

war relations between the parties.
Intervention by a third party: A third party, such as a mediator or
arbitrator, can facilitate the termination of a war by negotiating a
settlement between the warring parties. In some cases, a third party may
use force to bring an end to the hostilities, such as in the case of a United
Nations peacekeeping operation.
It is important to note that the termination of a war does not necessarily
mean the establishment of lasting peace. The aftermath of a war can be
just as important as its termination, and the warring parties must work
together to rebuild trust and establish a stable, peaceful future.
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Prisoners of War
―Prisoners of war‖ are combatants who have fallen into the hands of the
enemy, or specific non-combatants to whom the status of prisoner of war
is granted by international humanitarian law.
Combatant who falls into the hands of an adverse party to a conflict in the
course of an international armed conflict is a prisoner of war. Individuals
who fall into the hands of the enemy during an armed conflict are
protected under humanitarian law. If the individual is a combatant, he or
she is accorded protection as a prisoner of war. If the individual is a
civilian, he or she is protected as such. As explained in the ICRC
Commentary on the Geneva Conventions: ―nobody in enemy hands can be
outside the law.‖
The following categories of persons are prisoners of war:
a. members of the armed forces of a party to the conflict, including
members of militias or volunteer corps forming part of such armed
forces (this includes members of regular armed forces who profess
allegiance to a government or authority not recognized by the
Detaining Power);
b. members of other militias or other volunteer corps that belong to a
party to the conflict, provided that such groups:
 are under responsible command;
 have a fixed distinctive sign recognizable at a distance;
 carry arms openly; and
 conduct operations according to the law of armed conflict;
c. civilians who accompany the armed forces provided they are
authorized by the armed force they accompany;
d. members of crews of merchant marine and civilian aircraft of a party
to the conflict who do not benefit from more favourable treatment
under international law;
e. participants in a levée en masse; and
f. the military wounded, sick and shipwrecked who fall into the hands
of an enemy.
Combatants are required to distinguish themselves from the civilian
population while they are engaged in an attack or in a military operation
preparatory to an attack.
A combatant who fails to distinguish himself while he is engaged in an
attack or in a military operation preparatory to an attack loses his
combatant status if he is captured, which means he does not have prisoner
of war status and can be tried for an act of war.
 59

However, he is to be given protections equivalent in all respects to those

provided to prisoners of war under the third Geneva Convention.
Notably, in international armed conflicts governed by Additional Protocol-I,
a combatant distinguishes himself sufficiently if he carries his arms openly:
a. during each military engagement; and
b. during such time as he is visible to the adversary while engaged in a
military deployment preceding the launching of an attack in which he
is to participate.
Persons excluded from prisoner of war status:
The following persons are explicitly excluded from prisoner of war status in
the law of armed conflict:
a. members of the armed forces of a party who fall into the power of
the adverse party while engaging in espionage; and
b. mercenaries.
 60

WAR CRIMES
What are War Crimes?
 War crimes are defined as serious violations of humanitarian laws
during a conflict.
 The definition, established by the Rome Statute of the ICC, is
derived from the 1949 Geneva Conventions.
 It is based on the idea that individuals can be held liable for
the actions of a state or its military.
 The taking of hostages, willful killings, torture or inhuman
treatment of prisoners of war, and forcing children to
fight are some of the more obvious examples.
What are the Geneva Conventions (1949)?
 The Geneva Conventions (1949) and their Additional
Protocols are international treaties that contain the most important
rules limiting the barbarity of war.
 They protect people who do not take part in the fighting
(civilians, medics, aid workers) and those who can no longer
fight (wounded, sick and shipwrecked troops, prisoners of war).
o The first Geneva Convention protects wounded and sick
soldiers on land during war.
o The second Geneva Convention protects wounded, sick and
shipwrecked military personnel at sea during war.
o The third Geneva Convention applies to prisoners of war.
o The fourth Geneva Convention affords protection to civilians,
including in occupied territory.
 India is a party to the Geneva Convention.
What is Criteria for War Crimes?
 Criteria: To decide whether an individual or a military has
committed a war crime, international humanitarian law lays
down three principles:
o Distinction: It is illegal to target objectives that are
―expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objectives, which would be
excessive in relation to the concrete and direct military
advantage anticipated.
 61

o Proportionality: Proportionality prohibits armies from

responding to an attack with excessive violence.
 For example: If a soldier is killed, for example, you cannot
bomb an entire city in retaliation.
o Precaution: It requires parties to a conflict to avoid or
minimise the harm done to the civilian population.
 Gray Area in Definition: Raids on a cities or villages, bombing
residential buildings or schools, and even the killing of groups of
civilians do not necessarily amount to war crimes — not if their
military necessity is justified.
o The same act can become a war crime if it results in
unnecessary destruction, suffering and casualties that
exceed the military gain from the attack.
o Further, Civilian and military populations have become
increasingly hard to distinguish
What is the difference between War Crimes & Crimes
Against Humanity?
 The United Nations Office on Genocide Prevention and the
Responsibility to Protect (or Genocide convention) separates
war crimes from genocide and crimes against humanity.
 War crimes are defined as occurring in a domestic conflict or a war
between two states.
 While genocide and crimes against humanity can happen in
peacetime or during the unilateral aggression of a military towards a
group of unarmed people.
 62

Unit-V
Law of the Sea
The Law of the Sea is a body of international law that governs the rights
and responsibilities of states in the world's oceans, seas, and other bodies
of water. The United Nations Convention on the Law of the Sea
(UNCLOS), which entered into force in 1994, is the primary instrument
governing the law of the sea. The following are some of the key elements
of the law of the sea:
Territorial Sea: The territorial sea is the area extending 12 nautical miles
(22.2 kilometers) from a coastal state's baseline. Within this zone, the
coastal state has sovereignty over the waters, airspace, and seabed.
Exclusive Economic Zone (EEZ): The EEZ extends 200 nautical miles
(370.4 kilometers) from a coastal state's baseline. Within this zone, the
coastal state has the right to explore, exploit, and manage the natural
resources, including fish stocks, oil, and gas reserves, and other minerals in
the waters and on the seabed.
Continental Shelf: The continental shelf is the underwater extension of a
coastal state's land territory. It extends up to 350 nautical miles (648.2
kilometers) from the coastal baseline. Coastal states have the right to
explore and exploit the natural resources on and beneath the continental
shelf.
High Seas: The high seas are the areas of the oceans that lie beyond the
territorial sea, EEZ, and continental shelf. These areas are governed by the
principles of freedom of navigation, overflight, fishing, and scientific
research.
Navigation: UNCLOS provides for the right of innocent passage for ships
through the territorial sea and the right of transit passage through
international straits. It also regulates the passage of ships through the EEZ.
Marine Environment: UNCLOS provides for the protection and
preservation of the marine environment, including the prevention of
pollution from ships and other sources, and the conservation of marine
species and ecosystems.
Dispute Settlement: UNCLOS provides for the settlement of disputes
between states over the interpretation or application of the convention
through a variety of mechanisms, including the International Tribunal for
the Law of the Sea (ITLOS), arbitration, and conciliation.
Overall, the law of the sea provides a framework for the peaceful use and
management of the world's oceans, seas, and other bodies of water, while
also recognizing the rights of coastal states to exploit the natural resources
in their jurisdictional waters.
 63

Law of the Outer space

The Law of Outer Space is a body of international law that governs the
activities of states and other actors in outer space. The following are some
of the key elements of the law of outer space:
Outer Space Treaty: The Outer Space Treaty, adopted in 1967, is the
primary international instrument governing the exploration and use of
outer space. It prohibits the placement of nuclear weapons and other
weapons of mass destruction in space, and it requires states to use outer
space for peaceful purposes only.
Liability Convention: The Liability Convention, adopted in 1972,
establishes the liability of states for damage caused by their space objects
and requires them to provide compensation for such damage.
Registration Convention: The Registration Convention, adopted in
1975, requires states to register their space objects with the United
Nations.
Moon Agreement: The Moon Agreement, adopted in 1979, provides for
the regulation of the exploration and use of the Moon and other celestial
bodies in the solar system. It requires states to ensure that their activities
on the Moon and other celestial bodies are carried out for the benefit of all
countries and for the well-being of humanity.
Space Debris: Space debris, such as discarded satellites and rocket
stages, pose a hazard to space activities. The Inter-Agency Space Debris
Coordination Committee (IADC) was established to coordinate international
efforts to mitigate the generation of space debris and to protect space
activities from its effects.
Space Tourism: The development of space tourism has raised new legal
issues, such as the regulation of commercial space activities, liability for
accidents and injuries, and the protection of the safety and health of space
tourists.
Dispute Settlement: Disputes arising from space activities can be
resolved through various mechanisms, including arbitration, negotiation,
and consultation. The International Court of Justice (ICJ) has jurisdiction
over disputes concerning the interpretation and application of the Outer
Space Treaty and other international agreements relating to outer space.
Overall, the law of outer space provides a framework for the exploration
and use of outer space in a peaceful, cooperative, and sustainable manner,
while also ensuring the protection of the safety and interests of all
countries and of humanity as a whole.
 64

Territory of moon,
The Moon, like other celestial bodies, is governed by international law,
including the Outer Space Treaty of 1967 and the Moon Agreement of
1979.
The Outer Space Treaty prohibits any nation from claiming sovereignty
over the Moon or any other celestial body. This means that no country can
declare the Moon as its territory, and the Moon remains the common
heritage of humanity.
The Moon Agreement goes further and provides a legal framework for the
exploration and use of the Moon and other celestial bodies. It requires
states to ensure that their activities on the Moon and other celestial bodies
are carried out for the benefit of all countries and for the well-being of
humanity. It also requires states to take measures to protect the natural
environment and to avoid harmful interference with the environment or
with other activities on the Moon.
The Moon Agreement also establishes a regime for the sharing of the
benefits arising from the exploration and use of the Moon and other
celestial bodies. It requires states to share the benefits of such activities
with all countries, particularly developing countries, and to promote
international cooperation in the exploration and use of the Moon.
However, it is important to note that not all countries have ratified the
Moon Agreement, and some countries have expressed reservations about
its provisions. As a result, the legal status of the Moon remains somewhat
ambiguous, and there are ongoing debates about how to regulate the
exploration and use of its resources.
Overall, under international law, the Moon cannot be claimed as the
territory of any country, and its resources should be used for the benefit of
all humanity.
Territory of Antarctica
Antarctica is a unique continent governed by a complex legal framework
that is based on a series of international agreements and conventions.
According to international law, Antarctica is designated as a "natural
reserve, devoted to peace and science."
The legal framework governing Antarctica is primarily based on the
Antarctic Treaty, which was signed in 1959 by 12 countries, including the
United States, the United Kingdom, and the Soviet Union. The treaty
established Antarctica as a scientific preserve and banned all military
activity on the continent.
 65

The treaty has been updated over the years with additional agreements,
such as the Convention for the Conservation of Antarctic Marine Living
Resources (CCAMLR) and the Madrid Protocol, which designates Antarctica
as a "natural reserve, devoted to peace and science" and prohibits all
mining activities on the continent.
Under the Antarctic Treaty, no country can claim sovereignty over any part
of Antarctica, and all territorial claims on the continent have been
suspended. This means that while several countries, including the UK,
Chile, and Argentina, have made claims to parts of Antarctica, these claims
are not recognized by other countries under international law.
Instead, the continent is governed by a system of international cooperation
and collaboration, with countries working together to manage and protect
the unique environment and resources of Antarctica. The primary
governing body for Antarctica is the Antarctic Treaty System, which is
made up of all the countries that have signed the Antarctic Treaty.
 66

International Terrorism
International terrorism refers to terrorism that goes beyond national
boundaries in terms of the methods used, the people that are targeted or
the places from which the terrorists operate.
International terrorism is a serious threat to international peace and
security, and it is subject to regulation under international law. However,
there is no universally accepted definition of terrorism, and different
countries and international organizations have different approaches to
defining and addressing terrorism.
One of the most widely recognized definitions of terrorism is provided by
the United Nations General Assembly in its Global Counter-Terrorism
Strategy, which defines terrorism as "criminal acts, including against
civilians, committed with the intent to cause death or serious bodily injury,
or taking of hostages, with the purpose to provoke a state of terror in the
general public or in a group of persons or particular persons, intimidate a
population or compel a government or an international organization to do
or to abstain from doing any act."
Under international law, acts of terrorism are prohibited, and states have
an obligation to prevent and punish terrorism. The most important
international legal framework for combating terrorism is the United Nations
Security Council Resolution 1373, which was adopted in the aftermath of
the 9/11 attacks in the United States. Resolution 1373 imposes a range of
obligations on states to prevent and suppress terrorism, including
criminalizing the financing of terrorism, freezing the assets of terrorist
organizations, and strengthening border controls to prevent the movement
of terrorists.
In addition to Resolution 1373, there are several other international
conventions and agreements that address terrorism, including the
International Convention for the Suppression of the Financing of Terrorism,
the Convention on the Physical Protection of Nuclear Material, and the
Convention on the Suppression of Terrorist Bombings.
The international community has also established specialized institutions
and mechanisms to address terrorism, such as the Counter-Terrorism
Committee of the United Nations Security Council, which monitors the
implementation of Resolution 1373, and the Global Counterterrorism
Forum, which provides a platform for international cooperation and
capacity-building in the fight against terrorism.
CAUSES –
The causes of international terrorism are complex and multifaceted, and
can vary depending on the context and specific groups involved. Some of
the main factors that are often cited as contributing to the emergence and
persistence of international terrorism include:
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Political grievances: Many terrorist groups have political grievances

against governments or other actors that they believe are responsible for
their oppression, marginalization, or other forms of injustice. This can
include perceived injustices related to national liberation, self-
determination, ethnic or religious identity, or socio-economic conditions.
Religious extremism: Some terrorist groups are motivated by extreme
interpretations of religious doctrines and believe that their actions are
justified by divine mandate. This can include groups that subscribe to
radical interpretations of Islam, Christianity, Judaism, or other religions.
Economic factors: In some cases, economic factors such as poverty,
unemployment, and inequality can contribute to the emergence of terrorist
groups by creating conditions of social dislocation and desperation that
make individuals more vulnerable to recruitment by extremist groups.
Ideology and radicalization: Many terrorist groups are driven by
ideological beliefs and seek to impose their vision of society through violent
means. This can involve the radicalization of individuals or groups through
exposure to extremist propaganda, socialization in extremist communities,
or other factors.
State sponsorship: In some cases, states may provide support or
resources to terrorist groups as a means of pursuing their strategic
objectives or furthering their interests. This can include providing weapons,
training, or safe havens to terrorist groups.
It is important to note that the causes of international terrorism are
complex and interconnected, and that there is no single factor that can
fully explain the emergence and persistence of terrorist groups. A
comprehensive approach to addressing terrorism requires a combination of
measures that address the root causes of terrorism, as well as efforts to
disrupt and dismantle terrorist networks through law enforcement and
military action.
REMEDIES –
The remedies for international terrorism require a comprehensive approach
that addresses the underlying causes of terrorism, as well as efforts to
disrupt and dismantle terrorist networks through law enforcement and
military action. Some of the key remedies include:
Addressing political grievances: Governments and international
organizations should work to address the political grievances of
marginalized groups and communities that are vulnerable to radicalization.
This can involve promoting greater political and economic inclusion,
protecting human rights, and addressing systemic inequalities.
Countering extremist propaganda: Efforts should be made to counter
the spread of extremist propaganda through education, media campaigns,
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and outreach to vulnerable communities. This can involve working with

local communities and religious leaders to promote moderate and tolerant
interpretations of religion, and to provide alternative narratives to extremist
ideologies.
Enhancing law enforcement and intelligence efforts: Governments
should work to enhance their law enforcement and intelligence capabilities
to prevent terrorist attacks, disrupt terrorist networks, and prosecute
individuals who are involved in terrorist activities.
Strengthening international cooperation: International cooperation is
critical for combating terrorism, including sharing intelligence, coordinating
law enforcement efforts, and providing support to countries that are most
vulnerable to terrorist attacks.
Addressing the root causes of terrorism: Finally, it is important to
address the underlying social, economic, and political factors that
contribute to the emergence of terrorist groups. This can involve promoting
economic development, reducing poverty and inequality, and addressing
political grievances and conflicts.
Ultimately, the remedies for international terrorism require a multifaceted
approach that addresses the root causes of terrorism, as well as efforts to
disrupt and dismantle terrorist networks through law enforcement and
military action. By working together and taking a comprehensive approach,
it is possible to reduce the threat of international terrorism and promote
global peace and security.
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Comprehensive Nuclear Test Ban Treaty

The Comprehensive Nuclear Test Ban Treaty (CTBT) is a multilateral treaty
that aims to ban all nuclear explosions, whether for military or civilian
purposes, worldwide. The treaty was adopted by the United Nations
General Assembly in 1996 and has been signed by 185 countries and
ratified by 170 countries (as of 2021).
The CTBT prohibits nuclear explosions in all environments, including
underground, underwater, and in the atmosphere. It also provides for a
global monitoring system to detect and verify compliance with the treaty.
The International Monitoring System (IMS) consists of a network of 321
monitoring stations around the world, which use a range of technologies
such as seismometers, hydrophones, and infrasound sensors to detect
nuclear explosions.
The CTBT also establishes the Comprehensive Nuclear-Test-Ban Treaty
Organization (CTBTO), which is responsible for operating and maintaining
the IMS and verifying compliance with the treaty. The organization is
headquartered in Vienna, Austria, and has a staff of over 300 people from
more than 70 countries.
Although the CTBT has not yet entered into force, it has been an important
normative framework for promoting nuclear disarmament and non-
proliferation. Many of the countries that have signed but not ratified the
treaty, including the United States and China, have observed a moratorium
on nuclear testing since the 1990s.
The CTBT faces challenges in achieving universal ratification, particularly
from countries that possess nuclear weapons. India, Pakistan, and North
Korea have not signed the treaty, and the United States and China have
signed but not ratified it. Despite these challenges, the CTBT remains an
important international legal instrument for preventing the testing and
development of nuclear weapons and promoting global peace and security.
The Comprehensive Nuclear Test Ban Treaty (CTBT) is an important
international legal instrument that aims to prevent the testing and
development of nuclear weapons. It is subject to international law and is
considered one of the most important disarmament treaties of the modern
era.
Under international law, the CTBT is a legally binding treaty that prohibits
all nuclear explosions, whether for military or civilian purposes, and
establishes a comprehensive verification regime to monitor compliance with
the treaty. The treaty is supported by a range of international institutions,
including the International Atomic Energy Agency (IAEA) and the United
Nations.
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The CTBT is based on the principles of the Nuclear Non-Proliferation Treaty

(NPT), which obliges states that possess nuclear weapons to pursue
disarmament and prohibits the transfer of nuclear weapons technology to
non-nuclear weapon states. The CTBT complements the NPT by providing
a specific ban on nuclear testing, which is a critical step towards achieving
the goal of nuclear disarmament.
The CTBT has been ratified by 170 countries and signed by 185 countries
(as of 2021), but it has not yet entered into force. To enter into force, the
treaty requires ratification by all 44 countries designated in the treaty as
having nuclear technology and research capabilities, known as the Annex 2
states. While the majority of these countries have ratified the treaty, some
key Annex 2 states, such as the United States and China, have signed but
not ratified the treaty.
Despite these challenges, the CTBT remains an important international
legal instrument for promoting nuclear disarmament and non-proliferation.
It has played a key role in strengthening the global norm against nuclear
testing and encouraging countries to pursue alternative approaches to
ensuring their national security. The CTBT has also established an
important framework for international cooperation and verification in the
field of nuclear disarmament, which will be critical for achieving the goal of
a world free of nuclear weapons.