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Cover page backsideAn Introduction to

Public International Law

The first book of its kind in India, providing a thorough survey and detailed treatment of the fundamentals of international law. The book outlines a comprehensive account of all aspects of international law including Law of Peace and Dispute Settlement, Human Rights and Humanitarian Law, Protection of International Environment, and modes of conduction of international transactions through treaties and diplomatic agents.Since the publication of the first edition of this book, significant developments have occurred in practically all aspects of international law. In this second edition, the book provides an up-to-date account of all aspects of international law. In addition, two new chapters have been introduced over the first edition: International Responsibility of States, and International Criminal Law. These chapters provide reference to major cases, and examine key areas such as The International Criminal Court and the Statute of Rome, International Terrorism, State Immunity and Human Rights, and Attribution of State Responsibility. The book also examines Indian practices on major aspects of international law within the context of decisions by Indian courts, and also provides brief accounts of practices of other nations.The book is aimed at undergraduate and graduate students, studying international law. It is also a useful reference book for students of political science, and law practitioners, researchers and counsels dealing with the issues of international law.

S.K. Verma, S.J.D. (Harvard), L.L.M. (Berkeley) is currently the Director of the Indian Society of International Law. She has also served as the Director of the Indian Law Institute and Dean and Head of the Faculty of Law, University of Delhi.

SATYAM LAW INTERNATIONALRs. 495.00 US$30ISBN 978-81-921204-1-6

An Introduction to Public International Law

An Introduction to Public International Law

S.K. VERMADirector

Indian Society of International Law

SATYAM LAW

INTERNATIONAL

This book is under copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of the Author.© S.K. VermaISBN: 978-81-921204-1-6Second Edition: 2012

Published by: Satish Upadhyay, Satyam Law International 2/13, Ansari Road, Daryaganj, New Delhi-110 002, IndiaPhones: 0091 -11 -23242686, 23245698Fax: 0091-11-23267131Email: [email protected]: www.satyambooks.net

Printed in India

To my late husband,Professor Pramod Kumar Verma

Preface to the Second Edition

Since the first edition of this book, many new developments and changes have occurred in international law. In this new edition, care has been taken to enhance the treatment of a number of topics, including jurisdictional immunities, the law of environment, human rights, extradition, law of the sea, judicial settlement of disputes, and the scope of the self-defense against terrorist attacks. Institutional changes that have taken place in the UN human rights system, with the replacement of the UN Commission on Human Rights by the Human Rights Council find a fair treatment in the text. Taking into account the pioneering work done by the International law Commission (ILC), including Draft Articles on State responsibility as also the Draft Articles on Diplomatic Protection, a new chapter on State responsibility has been added. Similarly, with the coming into force of the International Criminal Court, and further developments in the area of international criminal law, the establishment of the International Tribunals for Former Yugoslavia and Rwanda are seminal in their approach towards individual’s liability under international law. These developments have brought the individual to the centre of international relations. These issues, as well as the crime of torture are discussed in a new chapter on international criminal law.The new edition takes into account developments in the field as recent as July 2011. It discusses substantial case law of the International Court of Justice, decisions rendered by Tribunals, as well as the Indian State practice on international law as reflected by judicial decisions rendered by Indian courts. The judicial practices of other countries have also been relied upon to elaborate the law points. The recent work of the ILC has also being included in dealing with different topics. The book is confined mainly to the analysis of the principles of public international law, applied in the framework of normality. Because of this, detailed treatment of certain recent developments, like the invasion of Iraq, NATO action in Libya, its tacit support in Tunisia and Egypt, the legality of these actions under international law, has been restricted. These events, nevertheless, have highlighted the pitfalls of unilateralism, verging on the law-breaking rather than the development of law.In bringing out this new text, I have been greatly assisted by many; to whom I owe my gratitude. I thank the research staff of the Indian Society of International Law, particularly Vinai and Shridhar, for their active help, and the Library Staff of the Indian Society of International Law for rendering help. I also acknowledge the willing assistance of Dr. Raman Mittal, Law Faculty of Delhi University in going through the final draft of the text. I also thank Neena and

Page viii PREFACE

Rama for their meticulous help in typing significant parts of the text. I also thank the publishers, Satyam Books International, for their care in processing the manuscript.Finally, many thanks go to my children -Amit and Abhilasha, Tejal, and little Manan and Riya- whose love kept me motivated.

S.K. Verma

Contents

Preface viiTable of CasesxviiChapter 1 INTRODUCTION 1I. Nature of International Law 1A. Public International Law and Private International Law 4B. Is International Law “True Law”? 5II. Basis of International Law 11A. Naturalist School 11B. Positivist School and Consent Theory 13III. Evolution and Development of International Law 16IV. New States and International Law 19V. Codification of International Law 22Chapter 2 SOURCES OF MODERN INTERNATIONAL LAW 25I. General 25II. Custom 27A. State Practice 28B. Opinio Juris Sive Necessitatis 34III. Treaties 37A. General and Particular Treaties 38B. Treaty and Custom 39IV. The General Principles of Law 40V. Judicial Decisions 46A. Decisions of International Tribunals 46B. Decisions of Municipal Tribunals 48 VI. Juristic Work on International Law 49VII. General Assembly Resolutions and Declarations 51Chapter 3 INTERNATIONAL LAW AND MUNICIPAL LAW 54I. Introductory 54II. Theories on Relationship 54A. Monism 54B. Dualism 55C. Question of Primacy 56III. Theories on the Application of International Law within Municipal Law 57

Page x CONTENTS

A. Transformation or Specific Adoption Theory 58B. Delegation Theory 58IV. Municipal Law before International Tribunals 59V. International Law within Municipal Sphere 61A. The United Kingdom 61B. The United States 67C. European States - Germany and France 70D. Russia 71E. Indian Practice 72Chapter 4 SUBJECTS OF INTERNATIONAL LAW 81I. General 81II. State as a Subject of International Law 81A. Population and Territory 82B. Government 83C. Capable of Entering into Relations with Other States 83III. Non-Self-Governing Territories 87A. Protected Territories 91B. Mandates and Trust Territories 93IV. Public International Organisations 96V. Individual as Subject of International Law 99Chapter 5 RECOGNITION OF STATES AND GOVERNMENTS 105I. Recognition in General 105A. Manner of Recognition 108B. Theories of Recognition 110C. Absence of Duty to Recognise 112D. Collective Recognition 113E. Recognition of Governments 115F. Conditional Recognition 119G. Withdrawal of Recognition 119II. De jure and de facto Recognition 120III. Retroactive Effect of Recognition 124IV. Legal Consequences of Recognition 126A. The Position of Unrecognised Entity under Municipal Law 127V. Doctrine of Non-recognition 128VI. Recognition of Insurgency and Belligerency 130Chapter 6 STATE TERRITORY 133I. General 133II. Modes of Acquisition of State Territory 133A. Occupation 134B. Accretion 137C. Cession 138D. Annexation 139

Page xi CONTENTSE. Prescription 140

III. Polar Regions 143IV. External Territorial Rights of States 145

A. Servitudes 145B. Leases 148

V. Air Space 149A. Sovereignty in the Air Space 149B. Chicago Convention on Air Law 152C. Bilateral Agreements 153D. Aerial Intrusion 154

VI. Outer Space 157A. Outer Space Treaty 159B. The Liability Convention 162C. The Moon Agreement 163

VII. National Waters and Rivers 164A. Internal Waters 164B. International Rivers 167

Chapter 7 STATE JURISDICTION 172I. Jurisdiction in General 172

A. Civil Jurisdiction 172B. Criminal Jurisdiction 173

II. Basis of Jurisdiction 173A. Territorial Jurisdiction 173B. Jurisdiction according to Nationality Principle 177C. Jurisdiction according to Protective Principle 178D. Jurisdiction according to Universality Principle 180

III. Exemptions from Territorial Jurisdiction 182A. Foreign Sovereigns and Foreign States 182B. Diplomatic Representatives and Consuls 192C. Foreign Public Ships 192D. Foreign Armed Forces 194E. International Institutions 196

IV. Hijacking and Jurisdiction With Regard to Aircraft 196A. The Tokyo Convention 196B. The Hague Convention 197C. The Montreal Convention 199D. Protocol to Montreal Convention 201E. Aircraft Hijacking and India 202

Chapter 8 DIPLOMATIC AND CONSULAR RELATIONS 204I. Introductory 204II. Diplomatic relations 205

A. Legal Aspects of Diplomatic Relations 205

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B. Rights, Privileges and Immunities of Missions and DiplomaticAgents 207C. Waiver of Immunity 219D. Termination of the Mission 220

III. Consular Relations 221A. Immunities, Privileges and Rights of Consuls 222

IV. Special Missions 223V. Representatives Appointed to International Organisations 223VI. Prevention and Punishment of Crimes against Diplomats 224VII. Protection of United Nations and Associated Personnel 225Chapter 9 THE STATE AND THE INDIVIDUAL 227I. Introductory 227II. Nationality 227

A. Acquisition of Nationality 229B. Loss of Nationality 235C. Double Nationality 236D. Statelessness 237E. Refugees 238

III. Extradition 239A. Procedure and Law on Extradition 241B. Law on Extradition in India 246

IV. Asylum 247A. Kinds of Asylum 248B. Right of Asylum 252

Chapter 10 HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 254I. General 254II. Human Rights: The United Nations Approach 257

A. Enforcement of Human Rights: United Nations Machinery 259B. Procedure and Practice under the Covenants 262C. General Conventions on Human Rights 265D. Protection and Enforcement of Women’s Rights 266

III. Protection of Human Rights: Regional Approaches A. European Convention for the Protection of Human Rights and 268Fundamental Freedoms 268B. American Convention on Human Rights, 1969 274C. African Charter on Human Rights and Peoples’ Rights, 1981 276

IV. Enforcement of Human Rights in India 277Chapter 11 STATE RESPONSIBILITY 281I. Introductory 281II. Scope of International Responsibility 283III. Elements of State Responsibility 285

A. Conduct Attributable to the State 285

Page xiii CONTENTS

B. Breach of an International Obligation 289C. Legal Excuses or Defences for Breaches of International Law 293IV. Content of international Responsibility of a State 297A. Cessation and non-repetition 297B. Reparation 298V. Invocation and Issues of Admissibility of International Responsibilityof a State 302A. Invocation of State Responsibility 302B. Admissibility of claims 304VI. Bases of Diplomatic protection 305A. Nationality of Claims Rule 306B. Rule on Exhaustion of Local Remedies 310Chapter 12 INTERNATIONAL PROTECTION OF

ENVIRONMENT 312I. General 312II. General Principles of International Law and Environment 312III. International Efforts to Protect Environment 315A. Stockholm Conference on Human Environment 317B. UNEP during 1972-82 and Other Environmental

Developments 321C. Nairobi Declaration 1982 and Subsequent Developments 324D. Developments after 1990 327E. United Nations Commission on Sustainable Development 334F. Hazardous Substances and Activities 335IV. Environment and Nuclear Safety 337V. Implementation and Enforcement of Environmental Norms 338Chapter 13 LAW AND PRACTICE OF TREATIES 340I. General Introduction 340II. What is a “Treaty” 342A. A Written Instrument between the Parties 343B. Entities Endowed with International Personality 345C. Agreement Creates or Intends to Create Legal Relationship 347D. Agreement should be Governed by International Law 347III. The Making of Treaties 348A. Negotiation and Adoption of the Text 350B. Commencement of the Treaty 351C. Entry into Force of a Treaty 354IV. Reservations 355V. Treaties and Third Parties 360VI. Observance and Validity of Treaties 363A. Violation of Domestic Law on Treaty-Making 363B. Error 364C. Fraud and Corruption of the State Representative 365D. Coercion 365

Page xiv CONTENTS

E. Conflict with a Norm of Jus Cogens 366VII. Termination and Suspension of Treaties 368A. Termination and Suspension by the Will of Parties 368B. Termination and Suspension by Operation of Law 370VIII. Treaty interpretation 375A. The Plain Meaning or “Textual Approach” 375B. The Principle of Effectiveness 377C. Multilingual Treaties 380 IX. Amendment and Modification of Treaties 380A. Procedure for Amending Multilateral Treaties 381B. Modification of Multilateral Treaties 382Chapter 14 THE LAW OF THE SEA 383I. Introduction 383II. Maritime Belt or Territorial Sea 387A. Breadth of the Territorial Sea 387B. Delimitation of the Territorial Sea 391C. Rights of other States in Territorial Sea 392D. Rights and Duties of the Coastal State in Territorial Sea 395E. Criminal and Civil Jurisdiction of the Coastal State 395F. Indian Position on Territorial Waters 397III. Contiguous Zone 398IV. The Exclusive Economic zone 398A. Rights of the Coastal State in the Exclusive Economic Zone399B. Delimitation of the Exclusive Economic Zone 401C. Indian Position 401V. Continental Shelf 402A. Definition of the Continental Shelf 403B. Delineation of the Continental Shelf 404C. Rights of the Coastal State in the Continental Shelf 405D. Delimitation of Continental Shelf Boundaries between States 405E. Islands 410F. Indian Position 410G. Continental Shelf and Exclusive Economic Zone

Distinguished 410VI. High Seas 411A. Freedoms of the High Seas 411B. Jurisdiction in Collision Cases 412C. Rights and Duties of States on the High Seas 413D. Indian Position 417VII. Enclosed or Semi-Enclosed Sea 417VIII. Land Locked States 417IX. Seabed Area 419A. International Seabed Authority 420B. Preparatory Commission 421

Page xv CONTENTS

C. Developments after 1982 421X. Protection and Preservation of the Marine Environment 424Chapter 15 INTERNATIONAL CRIMINAL LAW 246I. General Introduction 246A. History 246B. Sources 428II. International Criminal Tribunals 429A. Establishment of ad hoc Tribunals for Former

Yugoslavia and Rwanda 429B. International Criminal Court 432III. Categories of International Crimes 441 A. Terrorism 441Chapter 16 SETTLEMENT OF INTERNATIONAL DISPUTES 447I. General 447II. Legal and Political Disputes 447III. Amicable Means of Settlement 448A. Diplomatic Means 449B. Arbitration 453C. Judicial Settlement (ICJ) 458D. Settlement of Disputes under the Auspices of United

Nations Organisation 477IV. Compulsive or Coercive Means of Settlement 479A. Retorsion 479B. Reprisals 480C. Embargo 482D. Pacific Blockade 483E. Intervention 484Chapter 17 WAR AND THE USE OF FORCE BY STATES 489I. General 489II. Attempts to Limit the Right to Wage War 491A. War and the Covenant of the League of Nations 492B. The Pact of Paris and State Practice on War 492C. United Nations Charter and the Use of Force 493III. State of War 502A. Commencement of War 502B. Effects of Outbreak of War 503IV. Laws of War (International Humanitarian Law) 507A. Laws of Land Warfare 508B. Laws of Maritime Warfare 515C. Laws of Aerial Warfare 517D. Legality of Atomic or Nuclear Warfare 518V. Treatment of Civilian Persons in Time of War 525

Page xvi CONTENTS

A. Belligerent Occupation of Enemy Territory 526B. Treatment of Civilians in Civil War 529

VI. War Crimes 530VII. Termination of War and Armed Hostilities 53418 LAW OF NEUTRALITY AND ECONOMIC WARFARE 537I. Neutrality in General 537II. Development of the Law of Neutrality 538

A. Neutrality and the Covenant of the League of Nations 540B. Neutrality and the United Nations Charter 540

III. Rights and Duties of Neutral and Belligerent States 542A. Duties of Neutrals 542B. Duties of Belligerents 544C. Un-neutral Service 544D. Rights of Belligerents 545

IV. Economic Warfare Contraband 545A. Contraband 546B. Doctrine of Continuous Voyage or Continuous Transportation 547C. Blockade 549

19 INTERNATIONAL ORGANISATIONS 554I. General Introduction 554

A. Status and Role of International Organisations 555B. Legal Capacity: Extent and Scope 557C. Privileges and Immunities

D. Law-Making and Regulatory Functions of International 559Organizations 562

II. League of Nations 563A. Principal Organs of the League of Nations 564B. Functioning of the League and Reasons of its Failure 564

III. The United Nations 566A. Origin 566B. Purposes and Principles 567C. Membership 571D. Organs of the United Nations 574

IV. Specialised Agencies and the ILO 603Index 607

Table of Cases

Aaland Islands case, 146, 147, 361, 362 Abu Dhabi Arbitration, 402 Adams v. Adams, 124, 128 ADM Jabalpur v. Shukla, 73, 278 Administrative Tribunal Case, 43 Administrative Tribunal of the ILO case, 273,377, 379, 475, 603 Admissibility of Hearings, 95 Aegean Sea Continental Shelf case (Greece v. Turkey), 343, 376, 467, 471, 477 Aegean Sea Continental Shelf case (Interim Protection Order), 471 Aerial Incident of 10 August 1999 (Pakistan v. India) case, 464, 467 Aerial Incidents cases (US v. Czechoslovakia), 465 Aerovias Interamericanas. de Panama v. Dade Commissioners, 69 Air Services Agreement (France v. US), 9, 295, 482Ajaib Singh v. State of Rajasthan, 80 Alabama Claims Arbitration, 57, 454, 539, 543Alcom v. Republic of Colombia, 188 Al-fin Corporation’s Patent, 128 Alfred Dunhill of London Inc. v. Republic of Cuba, 185Aloeboetoe case, 367 Ambatielos case, 378, 470 Anglo-French Continental Shelf case, 408, 410, 457Anglo-Iranian Oil Co. case (Interim Measures), 350Anglo-Iranian Oil Co. case, 346, 378, 463, 464, 471Anglo-Norwegian Fisheries case, 15, 29, 31,47, 135, 166, 387, 388, 390 Antarctica cases, 465Apparel Export Promotion Council v. A.K.Chopa 79, 279 Application of Art. VI, Sec. 22, of the Convention on the Privileges and Immunities of the UN, 560 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 303, 437, 464, 471 Arantzazu Mendi, The, 123 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) (Provisional Measures), 303, 359, 368Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), (Preliminary Objections and Merits), 470 Asakura v. City of Seattle, 68 Asylum case, 3, 15, 27, 28, 30, 34, 36, 48, 209, 248, 249, 250, 464 Attorney General for Canada v. Attorney General for Ontario, 65, 75, 349 Attorney General of the Government of Israel v. Eichmann, 180, 532 Aumeeruddy-Czifra v. Mauritus (The Mauritian Women case), 263 Austro-German Customs Union case, 83 Avena and Other Mexican Nationals case, 69, 302, 364

Page xviii TABLE OF CASES

Baby Boy case, 276Baccus v. S.R.L. Servicid Nacionel del Trigo, 184Bank of Ethiopia v. National Bank of Egypt and Ligouri, 123, 125 Berbacke v. Smith, 64 Barcelona Traction case (Preliminary Objection), 470, 472Barcelona Traction Power and Light Co.case, 45, 60, 303, 304, 306, 308, 309, 339 Barrios Altos case, 275 Beagle Channel Arbitration, 455 Bennett v. Horseferry Magistrate’s Court, 64 Berubari Union case, 77, 78, 138, 350 Birendra Bahadur Pandey v. Gramophone Company of India, 73, 74 Birma v. State of Rajasthan, 76 Brazilian Loans case, 44, 60, 296 Breard v. Pruett, 70 Brind case, 66 Buck v. A.G., 184 Burnt v. Barbuit, 62

Caire Case, 288, 291 Canevaro case (Italy v. Peru), 307 Carl Zeiss Stifung v. Rayner and Keeler Ltd., 124Caroline case, 486Case Concerning Avena and Other Mexican Nationals, 69, 70, 302 Case Concerning Questions of Interpretation and Application of the 1971 Convention Arising from the Aerial Incident at Lockerbie, Scotland (Libyan Arab Jamahirayat v. U.K.), (Preliminary Objections), 201 Case Concerning Questions of Interpretation and Application of the 1971 Convention Arising from the Aerial Incident at Lockerbie, Scotland (Libyan Arab Jamahirayat v. U.K.), (Provisional Measures), 200Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), 181, 284, 439 Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, 409 Case of Exchange of Greek and Turkish Populations, 60, 379 Central Bank of India v. Ram Narain, 172, 177Century Twenty-One (P) Ltd. v. Union of India, 190, 214 Certain Criminal Proceedings in France (Republic of Congo v. France), 181 Certain Expenses of UN, 32, 378, 475, 578, 579, 595Certain German Interests in Polish Upper Silesia (Merits), 286 Certain Phosphate Lands in Nauru (Preliminary Objections), 289, 292, 315, 470Charles Shobraj v. Supdt., Central Jail, 277 Charzow Factory case, 42, 284, 299, 300 Cheng v. Governor of Pentoville Prison, 243 Chung Chi Cheng v. The King, 62, 192, 193 Civil Air Transport Incorporation v. Central Air Transport Corporation, 125 Civil Rights Vigilance Committee v. Union of India, 79Claim Against the Empire of Iran, 185, 186, 188Clipperton Island Arbitration, 135 Compania Naviera Vascongado v. S.S.Christina, 183 Companies Merchantil Argentina v. U.S.Shipping Board, 184 Competence of International Labour Organisation, 33, 376 Competence of the General Assembly case, 376, 379, 572 Conditions of a State to Membership in the United Nations (Admissions case), 376, 379, 475, 571, 572

Page xix TABLE OF CASES

Continental Shelf (Tunisia v. Libya) case, 399, 407, 410 Continental Shelf between Libya v. Malta case, 386, 399, 408, 411 Cook v. US, 68Corfu Channel case (Preliminary Objection), 463, 464Corfu Channel case, 42, 257, 285, 289, 291, 301, 314, 394, 395, 476 Costa Rica v. Nicaragua, 100, 291 Cutting case, 178

D. P.P. v. Doot, 174Daimler Co. Ltd. v. Continental Tyre and Rubber Co. (GB) Ltd., 506 Damodhar Gordhan v. Deoram Kanji, 77 De Becker’s case (Commission), 273, 293 Democratic Republic of the Congo v. Uganda Case, 211Deutsche Continental Gas-Gesellschaft v. Polish State, 82 Dharam Teja Case, 245 Dickson Car Wheel Company, 285 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission of the Human Rights, 283, 286, 560, 561Diversion of Water from the Meuse, 44 Dogger Bank case, 452 Donnelly et al. v. The UK, 270 Duff Development Co. v. Kelantan Government, 127, 183, 184

East Timor Case, 91, 303 Eastern Carelia case, 42, 47, 361, 448, 474 Eastern Greenland case, 43, 134, 135, 137, 344, 364 Edye v. Robertson, 68 Effect of Awards by the UN Administrative Tribunal, 558 Effect of Reservations case, 358, 532 El Oro Mining and Railway Co. Case (Great Britain v. Mexico), 310Electricity Company of Sofia, 464, 469 Electtronica Sicula S.p.A., 290, 461 El-Salavador v. Nicaragua, 390 El-Slavador v. Honduras case, 473 Emin v. Yeldag, 128Emperor of Austria v. Day and Kissuth, 62 Employment of Women at Night, 376, 379 English Channel Arbitration, 455 Eritrea v. Yemen, 136European Commission of the Danube, 379 Exchange of Greek and Turkish Populations, 60, 379Ex Parte Pinochet Ugarte, 284 Ex v. Pinochet Ugarte (No. 3), 63

Factor v. Lubenheimer240, 244 Falkland Islands case, 91 Finnish Ships Arbitration, 59, 310 Fisheries Jurisdiction case (Jurisdiction), 346, 366, 464 Fisheries Jurisdiction cases (Interim Measures), 471 Fisheries Jurisdiction cases, 29, 45, 297, 340, 346, 366, 375, 399, 476, 477 Fisheries Jurisdiction cases, 29, 45, 297, 340, 346, 366, 375, 399, 476, All Flegenheimer Claim, 307 Francis Coralie Mullin v. The Adm. Union Territory of Delhi, 278 Franciska, The, 551, 552 Free City of Danzig and the ILO case, 377 Free Zones of Upper Savoy and the District of Gex, 360, 374, 376 Frontier between Turkey and Iraq case, 379, 474Frontier Disputes case (Burkino Faso v. Mali), 88, 461 Frontier Dispute case (Benin v. Niger), 461 Frontier Lands case (Belgium v. Netherlands), 140, 463G. B. Singh v. Government of India, 180

Page xx TABLE OF CASES

Gabcikovo-Nagymaros Project, 285, 290, 291, 294, 295, 297, 300, 315, 339, 371, 373, 374, 375, 464 Garcia-Mir v. Meese, 67 Geipel v. Smith, 557 German Settlers in Poland, 286 Glenroy, The, 506 Golder case, 257Gramophone Company of India v. Birendra Bahadur Pandey, 73, 74 Grisbidarna case, 387 Guinea-Guinea Bissau Arbitration, 45, 407 Gulf of Maine case, 44, 386, 408, 410, 461 Gur Corp. v. Trust Bank of Africa Ltd., 124 Gut Dam Arbitration, 313 Gydnia Ameryka Linie v. Boguslawski, 125

Haile Salassie v. Cable and Wireless Ltd., 124, 125Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Cat. and Others, 241, 247 Harbhajan Singh v. Union of India, 190, 214 Harris v. Secy. Gen. of the U.N., 603 Hatfield v. Guay, 175 Hawaii v. Ho, 70de la Torre case, 28, 249, 250, 473 Heaney v. Government of Spain, 185 Heathfield v. Chilton, 62 High Commission for India v. Ghosh, 219 Hilton v. Guyot, 4 Hostages case (US v. list), 292, 528 Hussainara Khatoon v. Home Secretary, State of Bihar, 277

I Congreso del Partido case, 186, 187, 188 I’m Alone case, 300, 395, 416 ICAO Jurisdiction case, 203, 371, 470 Indonesian case, 334 Institute Indo-Portuguese v. Broges, 191 Interhandel case (Preliminary objections), 310, 311, 467, 468, 469 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 556, 560Ireland v. U.K., 269, 270 Isbrandtsen Tankers Inc. v. President of India, 185Island of Palmes Arbitration, 92, 133, 134, 136, 137, 140, 292, 361

J.H. Rayner (Mining Lane) Ltd. v. Department of Trade and Industry, 63, 65 James Buchanan and Co. Ltd. v. Babco Forwarding and Shipping (UK) Ltd., 64 Janes Case (US v. Mexico), 288 Janson v. Driefontein Consolidated Mines, 506Jayantilal v. Rana, 76, 78, 251, 278 Jolly George Vergese v. Bank of Cochin, 76, 78, 257, 267, 278 Joyce v. D.P.P., 179

K.T.M.S. Abdul Coder v. Union of India, 179 Kahan v. Pak Federation, 183, 184 Kahane v. Parisi and the Austrian State, 229 Kardic v. Karardzic, 284 Kenneth P. Yeager v. The Islamic Republic of Iran, 289Keshavananda Bharti v. State of Kerala, 278 Kim, The, 548 Kolezynski case, 243 Krajina v. Toss Agency, 184 Krishna Sharma v. The State of West Bengal, 73

La Grand Case (Merits), 60, 70, 286, 298, 301, 364La Grand case (Provisional Measures), 60, 286, 298, 301 Lake Lanoux Arbitration, 168, 170, 291, 314 Land, Island and Maritime Boundary Dispute (El Salvador v. Honduras), 45, 461, 473 Lativan State Cargo Lines v. McGrath, 128 Land and Maritime Boundary

between Cameroon and Nigeria, 136, 409, 410, 466, 470, 473 Lawless case, 271, 272, 273

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Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa), 33, 94, 103, 130, 284, 340,474, 475, 583, 585, 587 Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, 284, 303, 472, 500, 527 Legality of the Threat or Use of Nuclear Weapons, 27, 294, 525, 558 Legality of the Use of force cases between Yugoslavia and the NATO States, eg. Yugoslavia v. Belgium (Provisional Measures), 289, 487, 500 Lehigh Valley Rail Co. v. Russia, 126 Lehigh Valley Railroad Co. v. Germany, 457 Libyan Arab Jamahiraya v. U.K., 200, 208 Llandovery Castle case, 533 Loizido v. Turkey, 293 Lusitani case, 300

M.H. Hoskot v. State of Maharashtra, 277 M/V. SAIGA case, 412, 416 Maclaine Watson v. Department of Trade, 63, 65Maganbhai Ishwarbhai Patel v. Union of India, 77, 78 Maharaja Sahib Shiv Bhagwat Singh Bahadur of Udaipur v. State of Rajasthan, 191Maharaja Sikram Kishore of Tripura v. Province of Assam, 73 Mantoo Mazumdar v. State of Bihar, 277 Maria, The, 547 Maritime Delimitation (Eritrea v. Yemen), 457 Maritime Delimitation in the Black Sea case (Romania v. Ukraine), 389, 409 Maritime Dispute (Spain v. Chile), 409 Martini (Italy v. Venezuela) case, 300 Mavrommatis Palestine Concessions case, 43, 306, 365, 380, 447 Medelliene v. Texas, 69, 302 Mellenger v. New Brunswick Development Corp., 186Menaka Gandhi v. Union of India, 277 Meret, The, 128Mighell v. Sultan of Johore, 184 Military and Para-military Activities in and against Nicaragua (Interim Measures), 8, 31, 35, 40, 51, 471, 472 Military and Para-military Activities in and against Nicaragua (Jurisdiction and Admissibility), 346, 386, 466, 471, 473 Military and Para-military Activities in and against Nicaragua (Merits), 340, 347, 392, 449, 468, 470, 476, 477, 486, 487, 493, 497Minquiers and Ecrehos case, 134, 135, 463 Mirza Ali Akbar Kashani v. United Arab Republic, 74, 191 Missouri v. Holland, 68 Monetary Gold case, 464, 465 Mortensen v. Peters, 63 Motilal v. U.P. Government, 76, 80 Mubarak Ali Ahmad v. The State of Bombay, 174, 246Municipality of Saint John v. Fraser Brace Overseas Corp., 192

Nabob of Carnatic v. East India Co, 80 Nanka v. Government of Rajasthan, 76 Nationality Decrees in Tunis and Morocco case (Advisory Opinion), 92, 228, 569 Naulilaa case (Portugal v. Germany), 9, 293,295, 480, 481 Nawab Usmanali Khan v. Sagar Mal, 191 New Chile Gold Mining Co. v. Blanco, 218 Nirmal Bose v. Union of India, 76 North Atlantic Fisheries Arbitration, 48, 145, 166, 503North Sea Continental Shelf cases, 22, 30, 31, 35, 36, 39, 44, 137, 290, 352, 361, 368, 402, 403, 406, 407, 408 Northern Cameroons case, 43, 292, 464, 472 Norwegian Loans case, 467, 468 Nottebohm case (Second Phase), 61, 199, 227, 233, 234, 235

Page xxii TABLE OF CASES

Nottebohm case, 86, 228, 307, 471 Nuclear Tests Ban cases (Australia v. France) and (New Zealand v. France), 41, 315, 344, 345, 370, 464, 466, 471 Nuclear Tests cases (Interim Measures), 43, 290, 315, 344, 370, 464, 466, 471, 477, 520, 521Oil Platforms Case (Islamic Republic of Iran v. United States), 309, 497 Os timer v. Australian Mutual Provident Society, 66 Other Treaties case, 275 Over the Top, The, 67 Owners of the Ship Philippine Admiral v. Wallem Shipping (Hong Kong) Lid. and Others, 185

Pakistani prisoners of war case, 513 Paquette Habana, The, 49, 50, 67 Parlement Beige, 65, 184, 192 Peace Treaties case, 47, 377, 474 Peoples Union for Civil Liberties v. Union of India, 80, 279 Permanent Mission of India v. City of New York, 188Philipine Admiral, The, 185, 194 Phosphates in Morocco case, 284, 469 Pianka v. The Queen, 396 Planmount Ltd. v. Republic of Zaire, 185, 191 PLO Observer Mission case, 560 Polish Postal Service in Danzig, 376 Polites v. Commonwealth, 64 Pratap Singh v. State of Jharkhand & Ors., 74Prosecutor v. Dusko Tadic, 287 Province of West Bengal v. Midnapore Zamindary Co. Ltd., 74 PUCL v. Union of India, 74, 79, 279 Pueblo case, 110Pulp Mills Our River Uruguay, 168

R. v. Anderson, 396R. v. Bow Street Magistrates ex-parte Pinochet, 181, 439 R. v. Chief Immigration Officer, Heathrow Airport, 64 R. v. Corrigan, 245 R. v. Guildhall Magistrate Court, 218 R. v. Jones (Margaret), 63 R. v. Kent, 219R. v. Keyn (The Franconia’s case), 62 R. v. Madan, 219R. v. Pentonville Prison Governor, ex-parte Teja, 218R. v. Secretary of State for Home Department, ex-parte Brind, 66 Rahimtoola v. Nizam of Hyderabad, 183, 185, 186, 218Rainbow Warrior Case, 281, 285, 287, 292,296, 301Raja Harinder Singh v. Commissioner of Income Tax, 74, 191 Rakesh Kumar Vij. case, 278 Rambabu Saxena v. State, 242, 247 Ramjawaya Kapur v. State of Punjab, 76 Ramesh Kaushik v. B.L. Vig, Supdt., Central Jail, New Delhi, 277 Ram Kishore Sen and Others v. Union of India, 78 Rann of Kutch Arbitration, 142, 455 Re-Arton, 239 Re-Castioni, 242 Re-Extradition of Locatelli, 243 Re-Kutir, 243 Re-Lynch, 227 Re-Meunier, 242 Reel v. Holder, 128Reparation for Injuries Suffered in the Service of the United Nations, 32, 47, 81, 97, 98, 283, 361, 377, 462, 508, 556, 557, 558, 569Republic of China v. Merchant’s Fire Assn. Corp., 109

Page xxiii TABLE OF CASES

Republic of Somalia v. Woodhouse Drake Carey Suisse, S.A., 127 Reservations to the Genocide Convention, 33, 48,53, 357, 358, 474 Right of Passage over Indian Territory (Preliminary Objections), 466, 468, 471 Right of Passage over Indian Territory, 30, 146Rights of Minorities in Polish Upper Silesia, 464Rights of US Nationals in Morocco case, 92, 93River Older case, 361, 379 Robert E. Brown case, 310 Rosaline George v. Union of India, 77

Sagarmull Agarwala v. Union of India, 190 Saks hi v. Union of India, 80 Salem case, 273Salimoff and Co. v. Standard Oil Co. of New York, 107, 128 Salomon v. Commissioners of Custom and Excise, 67 Sanchez- Llamas v. Oregon, 302 Satwant Singh v. Assistant Passport Officer, 277Saudi Arabia v. Aramco, 392 Savarkar case, 180, 240, 294, 456 Schooner Exchange v. McFaddon, 49, 183, 184, 192, 195 Schtraks v. Government of Israel, 243 Scotia, The, 34, 49 Seery v. US, 70Sei Fujii v. State of California, 69 Sengupta v. Republic of India, 188 Serbian Loans case, 4, 44, 60, 296 Shimoda v. Japanese State, 518 Shiv Kumar Sharma and Others v. Union of India, 76Sierra Leone Telecommunications Co. Ltd. v.Barclays Bank PLC, 127 Soering v. UK, 244South West Africa cases (Preliminary Objections), 40, 346, 379, 470, 476 South West Africa cases (Merits), 45, 52, 53, 95, 304, 378, 471, 472, 476 Sovereignty over Pulau Ligitan and Pulau Sipadan, 135 Sovfracht V/o v. Van Udens Scheepvaart, 506 Spanish Zones of Morocco Claims, 364 State of Kerala v. K. Cheru Babu, 192 State of Madras v. G.G. Menon, 77, 247 State of Punjab cases of Disappearance and Mass Graves, 278 State of West Bengal v. Jugal, 80 Status of South West Africa, 40, 95, 361, 378 Stegeman v. U.S., 179 Steiner and Gross v. Polish State, 100 Sukh Das v. Union Territory of Arunachal Pradesh, 277 Sunday Times (Thalidomide) case, 274 Surinder Kaur Sandhu v. Harbax Singh Sandhu, 173

T.K. Varred v. State of Travancore Cochin, 73 Tacna-Arica Arbitration, 371 Tag v. Rogers, 68Tarashov Extradition case, 240, 245 Temple of Preah Vihear (Preliminary objections), 470 Temple of Preah Vihear, 43, 50, 142, 364, 382 Texaco v. Libya, 45Thai-Europe Tapioca Service v. Government of Pakistan, 186, 187 Thakrar v. Secretary of State for the Home Office, 63Tinoco Concessions Arbitration, 110, 116 Trail Smelter Arbitration, 313, 315 Transmission Corporation of Andhra Pradesh v. Ch. Prabhaker & Ors., 74 Treatment in Hungary of Aircraft of the USA,465Trendtex Trading Corporation v. Central Bank of Nigeria, 63, 185, 186 Triquet v. Bath, 62

Page xxiv TABLE OF CASES

Tunis-Morocco Nationality Decrees case, 228 Turkey-Iraq Frontier, 379Uganda Co. (Holdings) v. Government of Uganda, 187 UN Administrative Tribunal case, 581 UN Headquarters Agreement case, 68 Union of India v. Manmull Jain, 75 Union of India v. Sudhansu, 78 Union of India v. Sukumar Sengupta, 78, 138, 145, 147, 148, 370 United Arab Republic v. Mirza Ali Akbar Kashani, 74, 191 United Nations Membership case, 114 United States v. Malekh, 67 United States v. Rauscher, 245 Upright v. Mercury Business Machines Co. Inc., 122,U.S. Diplomatic and Consular Staff in Tehran, 204, 209, 211, 257, 285, 286, 288,378, 472, 476 U.S. Diplomatic and Consular Staff in Tehran (Provisional Measures), 471, 472 U.S. Nationals in Morocco case, 15 U.S. v. Alvarez - Machain, 70, 178 U.S. v. Belmont, 69, 126 U.S. v. Capps, 70 U.S. v. Dolfus Mieg, 183 U.S. v. Palestine Liberation Organisation, 68,U.S. v. Pink, 69, 126 U.S. v. Yunis, 178Uttam Singh Duggal v. United States of America, 191

Velasquez v. Honduras, 275 Vervaeke v. Smith, 64Victory Transport Inc. v. Comisaria General de Abasteciementos Transporte, 185, 186 Vienna Convention on Consular Relations (Paraguay v. United States of America) (Provisional Measures), 301 Visakha v. State of Rajasthan, 79, 279 Voting Procedures case, 95

West Rand Central Gold-Mining Co. Ltd. v.King, 1, 35, 50, 62 Western Sahara case, 51, 89, 90, 134, 135, 137, 462, 474 Wildenhaus case, 193, 396 Wimbeldon case, 39, 83, 146, 345, 473 Wright v. Cantrell, 184

Yamashita Trial case, 533 Youmens Case, 288 Young, James and Webster, 273 Yun Duyn v. Home Office, 100

Zamora case, 64, 549

Page 1

CHAPTER 1Introduction

I. NATURE OF INTERNATIONAL LAW

Law is a tool to regulate interactions amongst the members of a society. There can be no society without a system of law to regulate the mutual relations of its members. International law, so to speak, assumes a society of nations primarily and it governs the relationship of the members of this society.The majority of the earlier standard works on international law define it as a system composed solely of legal rules and principles binding upon civilised nations only in their mutual relations. For example, according to Oppenheim, “Law of Nations, or International Law is the name for the body of customary and conventional rules which are considered binding by civilised States in their intercourse with each other”.1 Brierly says, “Law of Nations or International Law may be defined as the body of rules and principles of action which are binding upon civilised States in their relations with one another”.2 According to Hall, “International Law consists of certain rules of conduct which modem civilised States regard as being binding on them in their relations with one another, with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country and which they also regard as being enforceable by appropriate means in case of infringement”.3 In Sir Cecil Hurst’s view, “International Law is the aggregate of rules which determines the rights which one State is entitled to claim on behalf of itself, or its nationals against another State”.4 Kelsen states, “International Law or the Law of Nations is the name of a body of rules which according to the usual definition regulate the conduct of States in their intercourse with one another”.5 Such an approach towards international law was adopted by the courts too.6But like all living laws, international law is also not static. It is constantly developing and restructured in the very process of its application to the new situations, sometimes undergoing__________________1 L. Oppenheim, International Law, Vol. I, 8th ed. (Lauterpacht (Ed.), Longman London), 1955, p.6.2 J.L. Brierly, The Law of Nations, 6th ed. (Humphrey Wadlock (Ed.), Oxford University Press, London), 1963, p.1.3 W.E. Hall, A Treatise on International Law, 8th ed. (A.P. Higgins (Ed.), Oxford University Press, Oxford), 1924, p.1.4 Cecil Hurst, International Law (Stevens and Sons Ltd., London), 1950, p.8.5 H. Kelsen, Principles of International Law, 2nd ed. (Tucker (Ed.) Holt, Reinhart and Winston Inc.), 1966, p.1.6 See, for example, West and Central Gold Mining Co. Ltd. v. King (1905) 2 KB 91, in which international law was defined as “the form of the rules accepted by civilised States as determining their conduct towards each other and towards each other’s

subjects”; and in the S.S. Lotus case, PCIJ Series A, No. 10 (1927), it was defined as “the principles which are in force between all independent nations”.

Page 2 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW

qualitative changes. Significant developments have taken place since the Second World War, which have made the traditional definition inadequate. Those developments relate to the establishment of a large number of international institutions or organisations, such as the United Nations Organisation (UNO), the World Health Organisation (WHO), International Bank for Reconstruction and Development (IBRD), etc. These international organisations and institutions are regarded as international legal entities and subjects of international law. This was confirmed by the International Court of Justice (ICJ) in its advisory opinion in Reparation for Injuries Suffered in the Service of the United Nations.7There has also been increase in the subject-matter of international law. Due to developments in science and technology, rules to regulate environment, outer space and deep sea have been adopted. The new developments are increasingly revolving around the individual. There is an active and continuous concern about such divergent and vital matters related to individuals, like human rights, which for the first time were conceptualised in the United Nations Charter, and subsequently found their content in the Universal Declaration of Human Rights of December 10, 1948,8 and health regulations and treatment of labour under various conventions of the International Labour Organisation. An individual has also been subjected to duties, and can be held liable for committing the crime of genocide,9 crimes against peace, crimes against humanity, and conspiracy to commit these crimes, as implicit in the judgment of the International Military Tribunal of Nuremberg, 1946.10 Thus, it is no longer possible to regard international law as governing relations solely among States.11It is now generally recognised that public international organisations, and in certain circumstances individuals, are also endowed with rights and duties. Modern international law is said to govern the relations between States and international organisations, between international organisations inter-se, and private persons. Schwarzenberger defines it as the “body of legal rules which apply between sovereign States and such other entities as have been granted____________________7 (1949) ICJ Rep., p. 174.8 Subsequent to this, numerous human rights instruments have been adopted by the United Nations and other regional groupings of States.9 The UN General Assembly adopted the Genocide Convention on Dec.9, 1948. The Convention came into force on Dec. 12, 1957.10 Principle I. The judgment of the Nuremberg Tribunal became the basis of the Draft Code of Principles Recognised in the Tribunal’s judgment formulated by the International Law Commission (ILC) in 1950. The United Nations General Assembly, by its Res. 177 (II) of Nov. 21, 1947, directed the ILC to (a) formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and (b) prepare a draft code of offences against the peace and security of mankind. On the basis of this mandate, the ILC, after 1954, restarted work on the draft code in 1988, and drafted a Code of Crimes Against the Peace and Security of Mankind, and a Draft Statute on the Establishment of an International Criminal Court to try the offenders. The General Assembly in 1995 accepted the Draft Statute on the Court

and formed a Preparatory Committee to adopt a Convention. This led to the adoption of the Rome Statute establishing the International Criminal Court, which is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The Court came into being on 1 July 2002. See also Dominie McGoldrick and Colin Warbick, International Criminal Law, 44 ICLQ 466 (April 1995).11 The scholars like Oppenheim, op. cit. 1 (1st ed., 1905) earlier opined that “States solely and exclusively are the subjects of International Law”, in his latest work reads, “States are the principal subjects of international law.” Vol. I, 9th ed. (Jennings & Watts (Ed.), Pearson Education), 1996, p. 16.

Page 3 INTRODUCTION

international personality”.12 Starke similarly defines it as that body of law “which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore, do commonly observe in their relations with each other and which also includes: (a) the rules of law relating to the functioning of international institutions or organisations, their relations with States and individuals and (b) certain rules of law relating to individuals and non-State entities so far as the rights and duties of such individuals and non- State entities are the concern of the international community”.13 In other words, international law is the body of legal rules to regulate the conduct of States and other international entities. Nevertheless, it is predominantly concerned with the regulation of rights and duties of States inter-se.However, the very concept that international law is a “body of legal rules” now stands challenged as static and inadequate.14 Law is a process, and this is equally true for international law. It is now well established that the principal component of international law is no more confined to binding customary and conventional rules but also consists of “general principles of law” which are constantly enriching the international jurisprudence. There is increasing evidence of international law in the form of declarations and guidelines adopted at international conferences, setting the standards in a non-binding form though the States generally feel compelled to observe them. Some examples are the 1972 Stockholm Declaration on the Human Environment; numerous United Nations General Assembly declarations and resolutions on human rights, new international economic order, economic charter, non-intervention, sovereignty over natural resources, rights and duties of States; recommendations of the International Labour Organisation on conditions of labour; international safety regulations set by the World Health Organisation (WHO); International Civil Aviation Organisation (ICAO) setting the international standards and recommending practices for international civil aviation.The emergence of a large number of new States after the Second World War has profoundly affected the nature and orientation of international law in a big way, and helped in the adoption of rules of universal character.15 Their contribution, based on their number in the international conferences, on the resolutions of the United Nations General Assembly has helped in the growth of international law. Further, this has underlined the significance of international political and economic order on the legal order. There are also discernible trends towards the growth of international law on a regional basis, developed between the nations located in a particular region, such as the regional law of Latin American States and the European Union (EU). These regional rules have been duly recognised by the international tribunals between States in a particular region.16 However, they do not negate the rules of universal international law but are rather correlated or complementary to, and surrender to the supremacy of the general international law.17____________________12 G. Schwarzenberger, International Law, Vol. I, 3rd ed. (Stevens and Sons Ltd., London), 1957, p.3.13 J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p.3.

14 Oliver J. Lissitzyn, International Law Today and Tomorrow (Oceana Publications Inc., New York), 1965, p.40.15 See infra, pp. 19-22.16 See Asylum case (Columbia v. Peru) (1950) ICJ Rep. p. 266.17 Starke, op.cit. 13, pp. 6-8; L. Oppenheim, International Law, Vol. I, 9th ed. (Jennings & Watts (Ed.), Pearson Education), 1996, p. 13.


Nevertheless, the main object of international law has been to evolve an ordered rather than a just system to regulate international relations, though it has been increasingly understood to ensure that justice is done between States objectively. In striving for justice, international law is akin to municipal law.

A. Public International Law and Private International LawPublic international law differs significantly in its nature from private international law. Public international law is uniform for all the States and regulates the conduct of States in their mutual intercourse; private international law, on the other hand, deals with the acts of individuals and not of States. It prescribes the conditions under which a case with foreign element can be entertained by the State courts and determines the system of law which will govern the rights of the parties to a case. Every State enacts its own laws to regulate these matters. Thus, this branch of law is essentially a part of municipal law and seeks to reconcile the conflict of laws in matters like domicile, marriage, divorce, inheritance, contracts, etc. Hence, it is more commonly known as “conflict of laws”.Broadly speaking, private international law is a collection of rules or principles which guide the municipal courts in determining the questions related to: (a) their jurisdiction and competence to entertain a suit; (b) the particular territorial system of law by reference to which the rights of the parties are to be ascertained; and (c) the circumstances in which a foreign judgment can be recognised and enforced.18Sir Robert Phillimore opines that rights arising under public international law are called absolute and their breach constitutes a casus belli and justifies recourse to war. The rules of private international law are founded upon convenience and intended to facilitate intercourse between the subjects of different States. They confer no absolute rights.19 Their basis is the comity of nations towards the individual subjects of a foreign State and not the extra-territorial validity of the law of the foreign State. However, comity is neither a matter of absolute obligation nor of mere courtesy or goodwill. But it is the recognition of legislative, executive or judicial acts of another State which a State allows within its territory, having due regard both to international obligation and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.20 If there is a want of comity shown towards the individual subjects of a foreign State, the reciprocity of treatment is the only legitimate remedy available to the State whose nationals have been injured.The Permanent Court of International Justice in the Serbian Loans case21 pointed out that the rules of private international law may be common to several States and may even be established by international conventions or customs. In the latter case, it may possess the character of____________________18 Robert Phillimore, Commentaries upon International Law (1879-89), Vol. IV, p.1. See also, P.E. Corbett, The Study of International Law (Princeton University Press), 1955; P.E. Corbett, Cases on International Law, 5th ed. (1931), pp. 224-225 and 239-240.19 Ibid.20 Hilton v. Guyot, 159 US 113 (1895).21 PCIJ Rep., Series A, No.20, p. 46 (1929).

Page 5 INTRODUCTION

true international law, governing relations between States. However, apart from that the rules of private international law form a part of municipal law.22

B. Is International Law “True Law”?There has always been a controversy regarding the nature of international law. Critics of international law always draw a parallel with municipal law and are wary about the absence of a legislative body, the hierarchy of courts, and enforcement machinery under the international law. They deny its legal character and do not consider it to be “true law”. The breaches of international law leading to wars or armed conflicts, non-observance of treaty obligations and other blatant violations of international law are quoted as examples of total absence of an international legal system. But the scholars of international law reject this narrow approach and are quick to point out its binding force among the nations. The law remains binding even during war time as some of the rules affecting the relations of belligerents inter-se and with neutrals are observed by the States strictly.Nevertheless, the answer to the question whether international law is “true law” or not depends entirely on how one defines law and what its object is. John Austin (1790-1859), was a strong critic of international law and the chief protagonist of the view that international law is not true law. Austin’s opposition to international law stems from his definition of law. According to him, law “properly so called” is the command of the sovereign, backed by a superior political authority, that is, it is the edict issued from a determinate sovereign legislative authority, which must be backed by the authority of the State. Austin called such commands as “positive law” which he regarded as the “appropriate matter of jurisprudence”.23 A sovereign was defined as a person who received the habitual obedience of the members of an independent political society and who did not owe such obedience to anybody. If the concerned rules were not issued by the sovereign authority, then they cannot be legal rules. According to this test, rules of international law do not qualify as rules of “positive law”. Austin categorised them as “laws improperly so called”. He tried to adjudge international law against the municipal law and did not find international law of the same order as municipal law. There is a total absence of sovereign political authority over and above the States to enforce the rules of international law. Further, in his opinion, there are three parties to a legal right: the person entitled, the person bound, and the arbiter. Due to the inability of international law to satisfy this test, Austin described international law as “positive international morality” which consists of “opinions or sentiments current among nations generally”. It is analogous to the rules binding the members of a club or a society. Other protagonists of this view were Bentham, Hobbes and Pufendorf who also questioned the legal character of international law and termed it as merely moral ethical rules.____________________22 The Hague Academy of International Law has been engaged in the codification of such laws in the areas of marriage and divorce, inter-country adoption, international sales and shipping, etc. They are sometime referred as “transnational laws”.23 See H.L.A. Hart (Ed.), The Province of Jurisprudence, Lectures 1, V and VI (Clarendon Press, Oxford), 1954.


Sir Thomas Holland, like Austin, also denies international law the legal character and calls it as the “vanishing point of jurisprudence”. He observes that rules of international law are followed by courtesy. In international matters, both parties are judges of their own cause, there is no arbiter above the parties. Without an arbiter, law is contradiction in terms. The rules of international law are, in reality, no more than the moral code for nations. It is law by analogy.24But these views have been severely criticised by a large number of jurists. The definition of Austin that law is the command of the sovereign backed by a coercive enforcement agency was not accepted fully even during his time. The historical school of jurisprudence has discounted his general theory of law by stating that Austin disregarded law in its various phases of development. For example, in primitive communities, without a formal legislative authority a system of law prevalent therein is no less binding than that of a State with a formal legislative authority. Most international lawyers have disputed Austin’s definition as the only test to adjudge international law as “law”. Oppenheim remarks that Austin’s definition does not cover that part of municipal law which is unwritten or is only customary.25 Hart views that Austin’s definition is true for penal laws only.26 According to Brierly, to classify international law as a branch of ethics is merely pedantic.27Sir Frederick Pollock writes that “the only essential conditions for the existence of law are the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity, international law seems on the whole to satisfy these conditions”.28 Pollock’s view reflects the generally held view of most jurists of today. Also, in the constitutions of certain countries, international law is placed at par with municipal law, binding their citizens, such as in the constitutions of the United States of America (Art. VI, Para 2), France (Art. 55 of the 1955 Constitution), and Germany (Art. 25 of the Basic Law).Austin’s views do not apply to the modern international law whose binding force cannot be doubted. Even in the absence of a centralised legislative authority, a substantial amount of international legislation in the form of treaties and conventions has come into existence since the beginning of this century. International law is no more exclusively consisting of customary rules. The procedure and technicalities for the adoption of this legislation through international conferences or international institutions are well defined. Further, the States consider themselves bound by it as members of international society, irrespective of their individual will.29 It is treated as law by the international community and by those who conduct international business in various capacities. Even the State which wishes to escape from an inconvenient rule of international law would not deny the existence of international law as such, but would justify its action either by challenging the existence of such a rule or____________________24 Sir Thomas E. Holland, Lectures on International Law (Clarendon Press, Oxford), 1933.25 Oppenheim, op.cit., 1, p.7.26 H.L.A. Hart, The Concept of Law (Oxford University Press, Oxford), 1961, p.24.

27 J.L. Brierly, op. cit. 2, pp. 69-70. Similar views have been expressed by Sir Frederick Pollock, Oxford Lectures and Other Discourses (Macmillan, London), 1890, p. 18.28 F. Pollock, The Outlook for International Law (1944), p.5.29 Gerald Fitzmaurice, The Foundations of the Authority of International Law and the Problem of Enforcement,19 Modern Law Review, pp. 8-9, 1956.

Page 7 INTRODUCTION

by invoking another rule applicable to its case or claiming that the rule should be modified to meet a new situation.30 When Indian forces took over Goa in 1961, India justified its action under Art. 1(2) of the United Nations Charter, i.e., the right of self-determination, though it arguably violated Art. 2(4), i.e., the prohibition of use of force.31 The United Kingdom justified its invasion of Suez Canal in 1956, under Art. 51 (the right of self-defence), i.e., to protect its nationals, shipping and canal installations.32 The Argentinean justification for its invasion of Falkland Islands in 1982 was its claim of sovereignty over these islands.33 Since the States look upon international law as governing their relations inter-se, and ipso facto binding upon them, it would be pedantic not to consider such a body of rules as “true law”.Although not blurring the legal force of international law, it has been termed as weak law. There are opinions that it differs remarkably from municipal law in many respects, viz., the absence of legislature to frame new laws, the absence of courts with compulsory jurisdiction over all disputes or of an independent third-party dispute-settlement, and the lack of effective sanction for the punishment of the law breakers, or forcing States to observe it or making recalcitrant States to act according to law.34 It has also been generally stated that rules of international law suffer from great uncertainty. It cannot intervene in the matters within the domestic jurisdiction of the States, and it has failed to maintain order and peace. It is observed more in violation than in adherence. The institutions which exist for the making and application of the law are of a rudimentary character. There is absence of executive power to enforce the law. Brierly remarks that there exists “convenient machinery for the arbitration of disputes and a standing court of justice, but the range of action of these is limited because resort to them is not compulsory”.35 However, these limitations of international law stems from the claims of sovereignty by States for their actions.There is no denial of the fact that the existing legislative machinery in the form of international conferences or international institutions for the adoption of law-making treaties or conventions is not comparable to the State legislature. Many of the rules of international law can be formulated with great difficulty and quite often they are merely the collection of inconsistent State practices. The procedure for the negotiation and adoption of these conventions is very tardy and even after that, States may refuse to be party to them. For example, the negotiations for the United Nations Convention on the Law of the Sea, started in 1973 and it was adopted on December 10, 1982, but was not signed by many countries, including the United States of America and the United Kingdom. The Convention could come into force____________________30 States may often violate international law like individuals violate municipal law; and similarly defend their actions under the law as individuals do, without claiming as being above the law.31 In this case, Portugal had retained Goa and other dependent territories on the Indian subcontinent long after other colonial powers had withdrawn. The use of force by India to liberate them had the tacit approval of many UN members, who were motivated by their anti-colonial ideas and partly there seemed little likelihood the dispute being

settled by peaceful means. The seizure of Goa by India was not branded as aggression either by the Security Council or the General Assembly.32 Quincy Wright, 51 AJIL 257 (1957).33 Thomas M. Franck, 77 AJIL 109 (1983).34 D.W. Greig, International Law, 2nd ed. (Butterworths, London), 1976, p. 1.35 J.L. Brierly, op.cit. 2, p. 73.


on November 16, 1994, after 60 States, mainly from Africa, Asia and Latin America had ratified it.36 Similar difficulties are quite often faced by the International Law Commission since it commenced functioning in 1949, as in the case of the 1969 Vienna Convention on the Law of Treaties, where the most contentious issues were the rules as to the grounds of invalidity of treaties and the doctrine of jus cogens.The International Court of Justice, the only international court to adjudicate inter-State disputes, lacks universal compulsory jurisdiction for settling disputes. The jurisdiction of the Court is consensual and it lacks real power to enforce its decisions. But the defenders of the system are quick to point that decisions of the Court are binding in nature and can be enforced under certain circumstances. According to Art. 59 of the Statute of the International Court of Justice, decisions of the Court are binding upon the parties to the dispute and only in respect of that particular dispute. Under Art. 94 of the Charter of the United Nations, each member of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party. If the party fails to comply with the decision, at the instance of the other party, the Security Council may give effect to the judgment against a recalcitrant State by making recommendations or deciding upon measures. However, it may be stated that the Security Council has not remained very effective in the past in discharging its obligations under the Charter. Also, apart from the Nicaragua case,37 there has been hardly any case when the aggrieved State has approached the Security Council under Art. 94.Further, the argument of lack of sanctions or ineffective sanctions and non-enforceability of international law has been countered by pointing out towards Chapter VII (Enforcement Action) of the United Nations Charter, which endorses sanctions for any violation of the rules of international law, enshrined in the Charter, and supported by Art. 94 of the Charter. However, these instances cannot really be treated as of general enforceability of international law. Kelsen, who gives primacy to State law (i.e., the municipal law), earlier held the view that international law cannot be equated with State law because behind the true law stands the State, i.e., it should be strong enough to enforce the law against opposition,38 subsequently came out clearly in favour of accepting the authority of international law. He points out that in decentralised societies (the international society is such a society), enforcement of law is accomplished through the application of the principles of self-help. On this basis, in his opinion, international law is true law because broadly speaking, it provides sanctions, such as reprisals, war and the use of force, and makes the employment of these sanctions lawful as a counter-measure against a legal wrong, but unlawful in all other cases.39____________________36 After the signing of the “Agreement relating to the Implementation of Part XI of the UN Convention on The Law of the Sea of December 10, 1982’,” adopted by the General Assembly in July 1994, GA Res. 48/263, July 28, 1994, the way was paved for industrialized countries, including the US and UK, to ratify the Law of the Sea Convention 1982. The US has not yet ratified the Convention though it has signed it.37 Military and Para-military activities in and against Nicaragua (Nicaragua v. USA) (Merits) ICJ Rep. 1986, p. 14.38 H. Kelsen, General Theory of Law and State, 1946, p. 328.

39 Kelsen, op. cit. 5, pp. 5-39.

Page 9 INTRODUCTION

War and use of force did constitute the legal means till recent times for enforcing international law or to settle disputes between States. But with the coming into existence of the United Nations Charter, use of force has been made illegal, with the exceptions to combat armed aggression, breach of the peace or self-defence under Chapter VII of the Charter. The process to outlaw war was initiated by the Kellog-Briand Pact of 1928, without, however, putting anything certain or definite in its place for the enforcement of international rights and obligations generally, or of international law as such. As regards the legal methods of enforcing international law, diplomatic protests by a victim or offended State against the illegal acts, are significant. These protests are generally accompanied with the demand that the wrong should be set right in an appropriate manner. If disagreement persists, the matter can be resolved through negotiation, mediation, conciliation, reference to commission of enquiry, judicial settlement through arbitration or by the International Court of Justice (Art. 33 of the Charter). If they fail to settle their dispute, sanctions can be resorted to so as to force the offending State to observe the relevant rules of international law. Sanction chosen, however, should be technically feasible and politically advisable. A State refusing to abide by its international commitments can be suspended from membership of an international organisation. For example, in 1962, Cuba was expelled from the Organisation of American States. Under the Charter of the United Nations, a member against whom preventive or enforcement action has been taken by the Security Council, may be suspended from the exercise of its rights and privileges of membership by the General Assembly upon the recommendation of the Security Council (Art. 5). Further, a member which has persistently violated the principles contained in the United Nations Charter may be expelled from the Organisation by the General Assembly upon the recommendation of the Security Council (Art. 6). After the disintegration of the Socialist Federal Republic of Yugoslavia, the new federation of Yugoslavia, consisting of Serbia and Montenegro was expelled in September 1992, for its continuing violation of the Charter principles.40 Sometimes, by the intervention of third State the rule of international law is enforced against the recalcitrant State.Another way to enforce international law is through “self-help”. The “counter-measure”, which has replaced reprisals (since they generally involve the use of force which is prohibited under the United Nations Charter), is increasingly becoming as a form of self-help. A countermeasure (bereft of use of force) is essentially an illegal act which becomes lawful as a response to a prior illegal act.41 In the arbitral award concerning Air Services Agreement between France and the United States (1978), it was observed that a counter-measure should be in proportion to a prior illegal act in terms of the damage it causes, and the act undertaken to counter the prior illegal act need not be of the same kind.42 This is now the accepted position on countermeasure.__________________40 In June 2006, Serbia and Montenegro became two separate independent States.41 See, for example, Air Services Agreement (France v. US) 18 RIAA 416 (1978 Arbitral Award); see also, Damrosch, 74 AJIL 795 (1980).42 The same requirements existed earlier for reprisals, see Naulilaa case (Portugal v. Germany) 2 RIAA 1012 (1928).


Apart from the above sanctions, the fear of admonition by adverse public opinion, the possibility of imposition of economic sanctions, fear of suspension and breaking of diplomatic ties, fear of punishment for war crimes or crimes against humanity also operate as sanctions.43 Adverse public opinion is the strongest fear, even though it is without any organised force behind it. For example, no State would like to be branded as the violator of human rights even by the non-governmental organisations such as Asia Watch, Amnesty International, Green Peace etc., which act in the field of human rights and environment. They make the States to adhere to international standards as laid down in the treaties.The world public opinion may be a factor not likely to be ignored but it is always hard to deal with a nation that is a law-breaker. Now, a pertinent question arises whether international law can exist without a strong coercive mechanism. It may be answered that international law has never, in practice, been more than partly dependent for its authority on the possibility of its physical enforcement and for that matter, no system of law depends, or can depend, for its authority solely on the chances of its enforcement. Under the municipal system, law does not have to be enforced mainly because it commands in practice the general assent or tolerance of the community. Similarly, the authority of international law is founded on the premise that States recognise it as binding upon them, and it binds all States as a system, irrespective of their individual wills. States observe international law because there is a “law habit”.44 Brierly, while accepting the rudimentary character of international institutions for the making and application of international law, and the narrow restrictions on its range, remarks that it is more honoured in the observance than in the breaches.45 However, it is this small number of breaches which get prominence and put under shadow the vitality of international law as a legal system, such as the unlawful intervention by USSR and the US in Afghanistan and Grenada in 1979 and 1983 respectively, for which they were not arraigned. At the same time, international law should not be measured to the standards of municipal law. It should not be forgotten that legal institutions can never guarantee lasting peace and security. Even within the nation, law is not able to dissolve all conflicts of interests. International law regulates the international relations of the States, which is invariably dictated by politics. International law cannot exist in isolation from the political factors operating in the sphere of international relations and get affected by them. Ubi societas ibi jus (as the society, so is the law), if international society itself is not coherent, one can only expect a fragmentary system of international law. States from different geo-political groupings have widely different interests in certain respects and thereby affect the enforcement of international law.__________________43 The Security Council had established an International Tribunal for the Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia, see SC Res. 827 of May 25, 1993, which was adopted pursuant to the Secretary General’s Report, UN Doc. SI 25704, May 3, 1993; see also J.C. O’Brien, The International tribunal for violations of international humanitarian law in the former Yugoslavia 87 AJIL 639 (1993); 87 AJIL 521 (1993). A similar Tribunal was also constituted for Rwanda to try persons responsible for massacres in that country,

see SC Res. 955 of Nov. 8, 1994. Political pressure may sometime prevent the Security Council to apply such sanctions, such as in the Certain Expenses case, ICJ Rep. 1962, p. 151.44 Fitzmaurice, op.cit. 29.45 Brierly, op. cit. 2, p. 72.

Page 11 INTRODUCTION

It is true that international law is not as effective as national law, nevertheless it is wrong to assert that the role of international law in most cases is negligible. It is also wrong to say that to maintain peace and order is the only purpose of international law. Even in the best of legal systems, crimes or other violations cannot be eradicated. One cannot speak of international law in its ideal form which the nations must obey absolutely; there are bound to be conflicting values and interests. What matters is that the law responds and corresponds to the changing needs of the society; it is observed by nations in their mutual behaviour, and disputes are resolved in an orderly and peaceful manner. International law has been measuring up to these needs. The frequent violations of its rules by the States do not affect the vitality or validity of the system as such. Although the ideal of international law must be a perfect legal system in which war is entirely eliminated, any deviation is quickly remedied, but one can strive for such ideals, and lapses for such ideals should not put under suspect the whole legal system.

II. BASIS OF INTERNATIONAL LAWThe jurists have struggled for a long time to identify the basis of obligation in international law, i.e., from where does it derive its binding authority. There are two main schools of thought about its foundation: the naturalist school and the positivist school. The adherents of each school are not in agreement on every point.A. Naturalist SchoolThe jurists belonging to this thought are of the view that the “law of nature” is the foundation of all law and international law is a part of it. Several theories of the nature of international law are founded upon it.In the beginning, the law of nature had the “semi-theological association”, i.e., it was considered to be divine law, ordained by God to the dictates of natural reason of human beings, and thus acquired its sanctity or binding force. The “law of nature” had inspired the Greeks, the Stoics, the Church and Grotius, and later the Grotians. In fact, the “law of nature” or jus naturale seeks its origin from Greeks and was developed further by Romans. In the Republican era of Rome, jus gentium, the law of universal application, was reinforced by jus naturale, by which they meant that those principles which ought to control human conduct, were founded in the very nature of man as a rational and social being. The jus gentium, having the contents of, or synonymous with, natural law was applicable to those persons coming to Rome from other territories for short visits,46 as against jus civile, which was applicable to residents of Rome. By the fifteenth and sixteenth centuries, when the modern international law started getting its form and content, the natural law had made heavy inroads and assumed strong ideological moorings as is amply reflected in the writings of Vittoria (1480-1546), Suarez (1548-1617) and Gentilis (1552-1608). International law was binding on the States because it was part of the law of nature. It was, however, Grotius (1583-1645) who secularised the concept of natural law while making a distinction between jus naturale and jus gentium. He based the law of nations__________________46 Brierly. ibid., 17, pp. 10-13.


on customs and treaties in addition to law of nature. Law of nature, according to him, was the dictate of right and reason instead of divine prescriptions.After Grotius, writers in international law came to be identified into one of three schools: the “naturalists”, like Pufendorf (1632-94), who based international law on natural law exclusively; the “positivists”, such as Bynkershoek (1673-1743), who based it on the consent of States evidenced in State practice, and the “Grotians” (followers of Grotius), including Wolff (1679- 1754) and Vattel (1714-67), who like Grotius relied on both and reiterated that international law was binding on the States. Vattel in his work stated:47We use the term “necessary Law of Nations” for that law which results from applying the natural law to nations. It is necessary, because nations are absolutely bound to observe it. It contains those precepts which the natural law dictates to States, and it is no less binding upon them than it is upon individuals.Since States are composed of men and their policies are laid down by men, these men are subject to natural law in whatever capacity they act. He held the view that to overview and control the conduct of another State by one or more States would be contrary to the law of nature. This viewpoint has the genesis of the theory of fundamental rights.

The Doctrine of Fundamental RightsAccording to this doctrine, the principles of international law can be deduced from the essential nature of the State. Every State, like man, is endowed with certain fundamental or natural rights, viz., self-preservation, independence, equality, respect and intercourse. Brierly states that the doctrine of fundamental rights is merely the old doctrine of natural rights of man transferred to the State as a part of the contract. This contractual nature of sovereignty played a great part in history. The Great English Revolution of 1686, which subsequently inspired the Declaration of Independence of America, justified by Locke that by breaking his duty to the subject, the sovereign could forfeit his right of obedience.48The doctrine has been severely criticised. It emphasises more on the individuality of man than on the State. It overlooks the fact that attribution of fundamental rights is merely a stage in a historical process. The doctrine assumes that the legal system is formed out of these inherent rights which an individual or State brings with it into society, but fails to see that a legal right has no meaning unless there exists a legal system from which these rights get their validity. Further, there is nothing like a fixed order of nature and the possibility of growth is always there, which is denied by the doctrine of fundamental rights.By analysing the work of proponents of naturalist school, one may arrive at the conclusion that there is no unanimity amongst them regarding the very basis of law. The law of nature has been used merely as a metaphor to identify it with some other more concrete concepts, such as religion, general interest of international community, justice, reason etc. Furthermore, it has kept itself aloof from the actual practice of States and does not take account of the historical process in the evolution of a State as such. It tended to remain a subjective doctrine. Because of this its significance declined in the later years.__________________47 Quoted by Starke, op.cit. 13, p. 22.

48 Brierly, op.cit. 2, pp. 49-50.


However, the concept of natural law, developed from time to time, greatly influenced the growth of international law. Natural law created respect for international law and gave it a humanistic approach. According to Sir Henry Maine “the greatest function of the ‘law of nature’ was discharged in giving birth to modern International Law”.49 The twentieth century saw the revival of the law of nature in a modified and profound manner. The tremendous growth of international law in the field of human rights, which started after the Second World War, is influenced by this. The development and the growth of the international criminal law, i.e., punishing the offenders of humanitarian law or war criminals, which started with the Nuremberg and Tokyo trials in 1946, is the outcome of this law. Reason and justice, associated with the “law of nature”, are considered to be fundamental to the growth and development of international law.

B. Positivist School and Consent TheoryThe theory known as “positivism” or “consent” theory has found wide support with jurists. It emphasises the consensual nature of international law. The chief exponent of this theory was Bynkershoek, which was later followed with more refinements by other jurists, such as Zorn, Triepel and Anzilotti. They attach primacy to customary and treaty rules. According to them, the rules of international law and municipal law are equally binding, since both are issued by the will of the State, which is the source of the validity of law. It is the will of the State that commands obedience both in municipal law and international law. Zorn goes to the extent of treating it as a branch of State law (i.e., municipal law). According to Triepel, the obligatory force of international law stems from the agreements between States.50 International law is binding on States because they have expressly or impliedly consented to be bound by it. The common consent is meant to express or tacit consent of States to the body of rules comprising international law as a whole at any particular time. The States’ will is manifested in the form of conventional and customary rules and since they have consented to them, the rules are binding upon them, and nothing can be law to which they have not consented. Consent theory, however, presupposes certain variables. It attributes the State with a value (sovereignty) and significance (authority), and endows it with a will of its own. The concept of the State will was first propounded by the German philosopher Hegel.Positivists start from the premise of the State’s sovereignty, which is paramount without any limitation. The rules of international law are adopted to the extent to which the States have voluntarily restricted their sovereignty. This is known as “auto limitation” or “self-limitation” theory, i.e., the sovereignty is absolute in so far as a State agrees to its limitation. Thus, a State has absolute freedom of action, except in so far as it has agreed to the rules restricting that freedom. The will of the State is supreme and it cannot be restricted by any external force. According to Jellinek, the rules of international law derive their binding force because the State consents to the limitations on its sovereignty. However, though consent can easily be discerned for conventional rules, it is difficult to do so with customary rules. To this, positivists attribute__________________49 H.O. Maine, International Law (1915) quoted in S.K. Kapoor, International Law, 8th ed. (Central Law Agency), 1990, p. 62.

50 Consent theory was also adopted and supported by Soviet jurists. Oppenheim is also of the view that common consent of the States is the basis of international law, see L. Oppenheim, op.cit. 17, p. 14.


“tacit” or “implied” consent, i.e., the State acquiescing to customary rules. They observe that the membership of the society of States involves an implied consent to the established rules of customary international law.According to Anzilotti, a prominent positivist, the principle of pacta sunt servanda (i.e., that agreements between States are to be respected) is the fundamental norm and an absolute postulate of international legal system from which the international law derives its binding force and authority. He holds that like treaties, consent is present in customary rules of international law which manifests itself by way of an implied pactum (agreement). This, to say, is no way different from the “tacit” consent argument advanced by other positivists.

CriticismThe positivism or consent theory even at its best is a descriptive generalisation, too broad to be applied to many of the problems concerning the binding nature of international law. Several objections have been raised against it, which can be formulated as follows:1. The concept of the State will is purely metaphorical. Brierly views that the idea of the State as a personality with a life and will of its own is false, both analytically and historically. Further, a self-imposed limitation is no limitation at all. The State functions through individuals and the only will that matters is that of the individuals who handle the affairs of the State.512. The consent as the basis of international law cannot be reconciled on all aspects. The fiction of implied consent to explain the acceptance of customary rules of international law is not supported by the facts. If consent is the basis of international law, there is always a possibility that a State may refuse to give its consent to be bound by the rules of international law or may withdraw the consent later on. However, withdrawal is not permissible except in treaties. Further, in practice, while invoking a particular rule, it is never ascertained whether a State has consented to that rule or not. It is enough to establish that the rule is generally recognised by States. Moreover, it is difficult to determine, how does a State “agree” to rules of international law. To this, the possible answer by positivists could be that it is not necessary for a State to agree to every principle. It is enough that consent is given to international law as a system rather than to each principle contained therein. However, the theory does not clarify in what circumstances, if at all, can a State dissent from an established or developing rule of international law. Further, pacta sunt servanda cannot be accepted as the basis of international law. At the most, it is a rule of customary international law. According to Brierly, “consent cannot of itself create an obligation. It can do so only within a system of law which declares that consent duly given as in a treaty or a contract, shall be binding on the party consenting. To say that the rule pacta sunt servanda is itself founded on consent is to argue in a circle. A consistently consensus theory would have to admit that if the consent is withdrawn the obligation created by it comes to an end”.52 Critics are also quick to point out that the theory fails in the case of recognition. Recognition is granted by the recognising States despite the consent of the State to be recognised.__________________51 Brierly, op.cit. 2, pp. 53-54.

52 Ibid.


3. The theory breaks down in the case of a new State admitted to the family of nations, which becomes bound by the body of rules without expressing its consent thereto. Also, the theory fails to explain the position of a new State which declares that it will not consider itself bound by certain rules of international law. The new State may not be bound by the conventional law already in force, without its express consent, but in the matter of customary law, the society of nations expects the new State to comply with the existing rules, thus leaving no choice for the State. Conversely, international custom constitutes general international law for the community of nations, which is binding on all States.4. The theory is also not fully applicable in the case of treaties. There are examples under international law when treaties or conventions are binding on States without their consent, such as dispositive treaties. The non-members of the United Nations are bound by the principles enshrined in the Charter, so far as may be necessary for the maintenance of international peace and security (Art. 2(6)).5. To consider treaties and customs as the only sources of international law is not in conformity with the contemporary trends. The Statute of the International Court of Justice (and earlier the Statute of the Permanent Court of International Justice) accepts the “General Principles of law recognised by civilised nations” as a source of international law (Art. 381 )(c)), which provides a wide freedom of choice to the Court to develop the content of international law. This, in a sense, is a severe blow to the positivism and highlights the fallacy of the premise that some consensual manifestation is necessary before international law becomes operative.Nevertheless, positivism has its merits. It is based on the actual practice of States and illustrates the practical limitations on the role of law in international relations. As a political reality, international law can only develop in so far as States acknowledge its existence and make use of its rules in the regulation of their affairs. Only those rules are the rules of international law, which States have accepted. It is because of its consensual basis, and the general acceptance of the community, that international law can be equated with State law, and that is the main reason that some of its rules are challenged. Without any community interest in, and general consent of, the application of its rules, international law would have no function. The theory has also found favour with the International Court of Justice as reflected in the Asylum case,53 the Anglo-Norwegian Fisheries case,54 and in the US Nationals in Morocco case.55Doctrinal considerations apart, the true basis of international law lies neither exclusively in natural law nor solely in the consent of States, but in variety of factors which impel States to obey the law. It is realised on the whole, that it is better to obey a rule of international law than to lose all the advantages by not doing so. A nation will hesitate to infringe the rules of international law where it has identical interests with other nations, such as the rule relating to the protection of foreign diplomats or the observance of a commercial treaty which is based on reciprocal benefits. Most rules of international law, formulated in legal terms, are based on__________________53 (1950), ICJ Rep., p. 266.54 (1951), ICJ Rep., p. 116.

55 (1952), ICJ Rep., p. 176.


identical and complementary interests of nations. The “self-interest” appears to be the basic reason for compliance, and voluntary compliance generally does not need specific enforcement. Compliance becomes a problem only in a few important and politically sensitive cases, where enforcement has a direct bearing upon the relative power of the nations concerned. In such a case, it is the power rather than the law that determines compliance and enforcement.56 In Lisstzyn’s view, there are three reasons for obeying the law: self-interest, sense of moral obligation and habit. Of these three, self-interest is probably the most basic reason for the observance of international law. Man as a reasonable being, has to believe that order and not chaos is the governing principle of the world in which he has to live.37

III. EVOLUTION AND DEVELOPMENT OF INTERNATIONAL LAWModern international law has its origin in the Europe of the fifteenth and sixteenth centuries, after the disintegration of the Holy Roman Empire. It grew out of the usages and customary practices of European States in their mutual intercourse, and was affected by the political theories prevalent in Europe during this time. In fact, international law was a by-product of the gradual increase in the power of nation States which emerged from European feudalism. Nevertheless, throughout its course of development, it remained predominantly European, and in the earlier stages was confined only to Christian States. Thus, it may safely be stated that modem international law is European, Christian, imperialist and capitalist in origin.Although modem international law is the outcome of the developments of the last over 500 years, it existed in all climes and ages to regulate the relations between independent nations existing since ancient times. The ancient civilisations of India, Egypt, Greece and Rome had advanced notions of what forms a major part of international law today. For example, laws and usages concerning conduct of war, treaties, privileges and immunities of ambassadors were very much in evidence in ancient India.58 There are historical evidence of recourse to arbitration and meditation in ancient China and in the early Islamic world. Greek city States also evolved rules to regulate their small but independent existence with each other, such as the need for a prior declaration of war, and the enslavement of prisoners of war. But these rules were deeply influenced by religion and morality. Similarly, early Rome, whose empire extended throughout Europe, devised rules to govern its relations with other sovereign nations on the basis of equality. These rules were legal in nature. But the influence of Rome on the growth of international law became profound in the era of renaissance, when these rules were redefined to regulate the relations between European nations. However, the conditions conducive to the growth of modern law of nations became pronounced only after the fifteenth century, with the emergence of number of independent States from feudalism. More frequent intercourse among nations and resulting conflicts of interest led to the mutual acceptance of rules applicable to variety of situations, such as diplomatic, commercial, military and other relations among these nations. It is during this time that the concept of the modern sovereign State and an independent sovereign__________________

56 Marganthen, Politics Among Nations (1956), pp. 15-16; Friedmann, The Changing Structure of International Law (1964), p. 88.57 V.D. Mahajan, International Law (Eastern Book Company, Lucknow), 1979, p.20.58 See H. Chatterjee, International Law and Inter-state Relations in Ancient India (K.L. Mukhopadhay, Calcutta), 1958.


found expression in the work of writers, such as Bodin (1530-96) in France and Hobbes (1588- 1697) in England.These jurists recorded this evolutionary process and started consolidating such customary practices, propounding their own views and doctrines by resorting to reason, analogy and law of nature where none existed before and in the process inventing new customs.59 The most profound impact on the growth of international law during this time was of the writings of the Dutch scholar, Hugo Grotius who was greatly influenced by his predecessor Gentilis. His most acclaimed work De Jure Belli ac Pacis (Law of War and Peace), published in 1625, was the first systematic comprehensive framework of the modern science of international law and for which he is described as the “father of the law of nations”. His work, though frequently criticised, had been continually relied upon and is considered authoritative. Certain doctrines propounded by him, such as just and unjust war, doctrine of qualified neutrality, freedom of the oceans, restitution of harm done by a State and the value of periodic conferences among the rulers, and promises to be respected by the States have remained as a part of modem international law.The development of international law was effected mainly through usages, practices and writings of jurists even after Grotius, and continued even into the nineteenth century.60 It is only in the nineteenth century that the law started looking beyond these sources and many international conferences took place, which led to the emergence of new rules of international law and put international law at a firm pedestal. In 1815, the Congress of Vienna, the first European Assembly, adopted rules for navigation of international rivers. A series of treaties were adopted during this period, related to the neutrality of Switzerland (1815) and Belgium (1831), specific regulations for the rivers Rhine (1831) and Danube (1856), codified law of maritime warfare (Paris Declaration, 1856), creating special regimes for the Suez Canal (1888) and Panama Canal (1901). However, the second half of the century saw the marked development of international law largely because of the emergence of powerful States both within and outside Europe, the expansion of European civilisation in other parts of the world mainly through colonisation, new and faster means of transport and increasingly destructive nature of warfare. War had become a part of national policy. These developments impelled States to devise new rules of international law, particularly relating to war. As a consequence, a number of treaties with humanitarian approach were adopted relating to war to mitigate the brutality and destruction brought in its wake. The Declaration of Paris (1856) on the regulation of maritime warfare, Geneva Convention (1864) of Red Cross aimed at the amelioration of the conditions of the sick and wounded in armies in land warfare, and the Declaration of St. Petersburg (1868) prohibiting the use of explosive bullets in war, were some of the significant achievements in this regard. Subsequently, two Hague Conventions of 1899 and 1907, on the regulation of land warfare and prohibition of bombardment of undefended towns were adopted. The Hague Conventions also emphasised on the pacific settlement of disputes with elaborate provisions on arbitration (Arts. 37-90 of the 1907 Convention). Arbitration, as a means of pacific settlement had come to stay with the 1872 Alabama__________________

59 The other writers of prominence were: Machiavelli (1469-1527), Vittoria (1480-1546), Belli (1502-75), Brunos (1491-1563), Ayala (1548-84), Suarez (1548-1617) and Gentilis (1552-1608).60 Prominent jurists of this time were: Zouche (1590-1660), Pufendorf (1632-94), Bynkershoek (1673- 1743), Wolff (1679-1754), Moser (1701-95), Vattel (1714-67) and von Martens (1756-1821).


claims award between the United States and the Great Britain.61 The Hague Conventions of 1899 and 1907, made provision for a Permanent Court of Arbitration which started functioning from the year 1900. Contributions of certain publicists, like De Martens, Kent, Wheaton, Phillimore, Calvo, Hall and Bluntschli, to name only few, during this period were also remarkable. Nevertheless, the law could still be described as European Public Law applicable among the Christian nations of that time.International law was first extended beyond Europe at the end of eighteenth century and at the beginning of nineteenth century, when new independent States emerged in North and South America out of rebellion from their European colonial masters. Turkey became the first non-European subject of international law in the mid-nineteenth century.62 But, it is only after the First World War that the modern international law was made applicable to the non-Europeans, mainly from Asia, Africa and Latin America. In fact, prior to this period, western nations even applied the “system of capitulation” by which their nationals were subject to their national consular courts rather than to the national law of the capitulating State, such as in China, Iran, Turkey, etc. However, creation of the League of Nations in 1920, pursuant to the 1919 Treaty of Versailles, marked the beginning of a new era, whereby international law was applied to all nations irrespective of their character or location. Membership of the League was open to “any” State (Art. 1 of the Covenant). This trend continued with the United Nations, which was created in 1945, after the demise of the League of Nations, whose membership is confined to all “peace- loving” States (Art. 4) and presently has 193 members.The twentieth century saw the tremendous growth of international law affected by the overall political scenario in the world. The creation of the League of Nations was the hallmark. In its form, the international community got its first international organisation designed to maintain international peace and promote cooperation among nations. Along with it came the Permanent Court of International Justice in 1921, which was later succeeded by the present International Court of Justice in 1946. In their wake came other institutions, such as the International Labour Organisation (originally created under Part XIII of the Treaty of Versailles 1919, which later became a specialised agency of the United Nations by a special relationship agreement),63 the International Telecommunication Union (originally established in 1865) adopted International Radio Telegraph Convention in 1927 on modern communication, and International Civil Aviation Organisation in 1944, to regulate the international civil aviation. They have a tremendous impact on the peaceful co-existence among States. The resort to war was made illegal, first through the adoption of the Kellog-Briand Pact, 1928, and later by the United Nations Charter (Art. 2 (4)), and in place of self-help a system of collective enforcement of peace and security had been propounded through the United Nations (Chapter VII of the Charter), though not displacing the self-help (Art. 51 of the Charter) totally. The trials of war criminals by International Military Tribunals at Nuremberg and Tokyo after the Second World War, creation of the International Criminal Court and increasing focus on the enforcement of human rights have made individual the focal point of international relations.__________________61 J.B. Moore, I International Arbitrations, p. 495.

62 D.J. Harris, Cases and Materials on International Law, 6th ed. (Sweet and Maxwell), 2004, p. 12.63 On the history of the ILO, see L. Henkin, et.al., International Law: Cases and Materials, 2nd ed. (West Publishing Co., Minnesota), 1987, p. 18.


These developments have brought the doctrinal changes among the jurists who always considered States as the sole subjects of international law.There is a lessening impact of jurists and an increasing regard for State practices on the shaping and framing of the rules of international law. The law is no more confined to usages and customs, but international conventions are concluded on every important area. The new scientific developments have also affected the growth of international law immensely, such as in outer space and sea-bed beyond the national boundaries. The environmental law has crossed the national frontiers and given a community based approach to international law. The growth and proliferation of nuclear weapons, increasing use of ballistic missiles have revised the thinking about the existing rules on warfare. The increased membership of the international society, demise of colonialism, the resurgence and subsequently, near extinction of communism have also brought changes in the balance of interests and values in the international community, and have had an impact on constructing new rules and modifying some existing rules of international law. These developments have profoundly impacted in shaping the modern international law, which has become universal in its application to all the nations in equal measure.

IV. NEW STATES AND INTERNATIONAL LAWThe decline of European dominance and the resurgence of new nations from Africa and Asia after the Second World War on the world scene had significant influence on international law.64 These nations which were freed from the shackles of colonialism after a long struggle raised serious doubts about the efficacy of the norms of international law set by western powers.65 They, however, did not reject the whole fabric of international law propounded by western powers for that would have implied a denial of their own right to participate as an independent equal State along with other States under international law, and provided respectability to their struggle for independence. In fact, at the nascent stage of their independence, they resolved their international disputes by applying the existing rules of international law. But their approach towards the rules of international law has always remained very selective. They were reluctant to observe those rules which did not serve their interests, such as the principle of “prompt, effective and adequate” compensation for the expropriation of alien’s property.While making appraisal of the established norms of international law in accordance with their views and practices, these nations contributed positively to the development of international__________________64 On this subject, see U. Baxi, Some remarks on eurocentrism and the law of nations, and J.J.G. Syatauw, “The relationship between the newness of States and their practice of international law, in Asian States and the Development of Universal International Law, R.P. Anand (Ed.) (Vikas Publishing House), 1972, pp. 3 and 10 respectively. See also R.P. Anand, New States and International Law (Hope India Publications), 2008; J.J. Syatauw, Some Newly Established Asian States and Development of International Law (Martinus Nijhoff, The Hague), 1961, p. 234.

65 The term “new States” is considered to be a misnomer; they have been termed as “dissatisfied States”, see R.L. Friedheim, The satisfied and dissatisfied States negotiate international law, World Politics (1965); J.J.G. Syatauw and U. Baxi, Asian States and the Development of Universal International Law, R.P. Anand (Ed.) (1972), op. cit. 64, pp. 12-18, and pp. 6-7 respectively; also, J.J. G Syatauw, Old and New States: A misleading distinction for future international law and international relationship, 15 IJIL, p. 153, (1975).


law. They are closely associated in the codification and formulation of new norms of international conduct for States by their participation in the deliberations of the International Law Commission (ILC).66 They have similarly helped in giving new directions to the law on State responsibility by not confining it only to the treatment of aliens,67 but also to other breaches of international law as well as affecting the rules concerning the use of force.68 Their support to the principle of self-determination saw the end of colonialism.69 Their solidarity on economic issues resulted in the General Assembly resolution declaring States’ inalienable right to dispose of their natural wealth and resources freely70 and in the adoption of a resolution on the New International Economic Order.71 They are also closely associated in the dispensation of justice. There is an equitable representation of principal civilisations of the world on the International Court of Justice.72In bringing out these changes in international law, the new nations often used their “number power” and were backed initially by the communist bloc led by the then Soviet Union. However, they never followed the Soviet approach fully towards international law, which challenged the whole fabric of existing international law.73 They have been successful in highlighting the need for reconstruction and reorientation of international law so that it can cater to the needs of the majority. These nations also challenged the Bretton Woods Agreement, which has the provision for weighted voting in the International Monetary Fund. They are also demanding an increase in the permanent membership of the Security Council, reflecting the present realities of international community, by appointing third world countries such as India, Brazil and Nigeria as new permanent members.74 They emphasise more on cooperation rather than on reciprocity and co-existence to fulfil their just aspirations in the new international legal order.__________________66 The Vienna Convention on the Law of Treaties, 1969, was the first of the “law making” treaties prepared by the ILC, in the drafting of which the “new nations” participated fully, and subsequently in the 1982 Convention on the Law of the Sea.67 See Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001).68 See R.B. Lillich (Ed.), Economic Coercion and the New International Economic Order (University Press of Virginia, VA) (1976).69 GA Res. 1514 (XV), Dec. 14, 1960, GAOR.70 GA Res. 1803 (XVII), 1962; GAOR, 17th Sess. Supp. 17, p. 15; see also, GA Res. 3171 (XXVIII) of 1973, on the Permanent Sovereignty over Natural Resources.71 See GA Res. 3201 (S-VI), May 14, 1974; and Charter on Economic Rights and Duties of States, GA Res. 3281 (XXIX), Dec. 1974.72 Out of the 15 judges on the Court, Africa has 3, Asia 3, Latin America 2, Eastern Europe 2, and Western Europe and others 5.73 G.I. Tunkin, The contemporary Soviet theory of international law, 31 CLP 177 (1978). After the disintegration of USSR and fall of communism in Europe, there has been a perceptible change in the Russian attitude (Russia has succeeded the USSR). It has

also accepted the compulsory jurisdiction of the ICJ for several human rights treaties. See R.A. Mullerson, 83 AJIL 494 (1989) for the later Soviet thinking on international law.74 The matter of expansion of the Security Council’s permanent membership has been under the active consideration of the United Nations for some time, and a Working Group was established in this regard, which prepared a draft package, see UN Newsletter, Vol. 51, No. 39 (27 Sept. 1997). But no progress has been registered since then.


These nations, however, never made any serious attempt to devise a common legal system of their own and are mainly motivated by the exigencies of the situation, while accepting the existing norms. India’s approach towards the existing fabric of international law is reflective of the attitude of new nations towards modern international law, which India’s representatives, L.K. Jha, took in the Security Council on its debate on Goa’s annexation to India:... we accept many tenets of international law .... But the tenet which says, and which is quoted in support of colonial Powers having sovereign rights over territories which they won by conquest in Asia and Africa is no longer acceptable.India justified its action in Goa on the basis of the General Assembly Resolution 1514(XV) of 1960 (granting independence to colonial people), “there can be no question of aggression against your own frontier, or against your own people, whom you want to keep liberate”.75 India’s contribution in the codification of international law through ILC on colonial issues, peaceful co-existence and non-alignment has been very significant.76Nevertheless, the explosion of new States and their unified stand on many issues at different foras of the United Nations and outside is making it increasingly difficult to adopt new rules. The western countries are wary of the “terror of majority” unleashed by new nations and they are very apprehensive about the new rules laid down with the majority support of the new nations, and many a time, western nations do not subscribe to such principles at all. For example, the Charter of Economic Rights and Duties was adopted by the General Assembly in 1974, with 120 nations voting in favour, six against and ten abstaining. The countries which voted against and abstained were mainly the west European nations, and the United States.77 The first major casualty of this new phenomenon is the principle of unanimity for the adoption of the rules of international law. It has long been established that law of universal applicability can be made only by universal agreement or acquiescence. With the increase in number of nations, the chance of such an agreement decreases. It not only makes difficult new customary rules to be evolved, but also the adoption and implementation of multilateral treaties. In this scenario, it may be possible only to have a general agreement on already accepted rules or to adopt some general, imprecise or ambiguous norms.78 Opinions have also been expressed that universality will be replaced by regional law and one should not desire or expect for universality.79 Regional law is better shaped in responding to the needs of States belonging to a particular region.However, it may be mentioned that as States engage in varied transnational activities, some commonality of interest, howsoever limited, will always remain and that can become the basis for framing and evolving international law with universal application. With increasing interdependence among nations and the global effects of new technological developments affecting__________________75 UN Doc. S/5030, SCOR (Dec. 18, 1961); see also, Wright, 56 AJIL 617 (1962).76 See Nagendra Singh, India and International Law (S. Chand & Co., New Delhi), 1969, pp. 73-86; M.K. Nawaz, International law in the contemporary practice of India: some perspectives”, Proc. of ASIL, p. 275 (1963).77 GA Res. 3281 (XXIX), Dec. 1974; 14 ILM 251 (1975).

78 Cf. the adoption of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, for which the work started by the ILC and final draft was adopted only in 2001.79 See L. Henkin, How Nations Behave, 2nd ed. (Pall Mall Press, London), 1979, p. 123. Such a trend is already present in Latin America and the EU.


outer space, sea-bed and the environment, there has been a growing awareness about the need for universal law or the “common law of mankind”, which should transcend the national borders and should have within its ambit individuals, corporations, international institutions, States and other groups. In such circumstances, the job of the creation of new rules of international law becomes very challenging.

V. CODIFICATION OF INTERNATIONAL LAWThe codification of international law aims at putting together the rules of law on a given subject in a systematic manner making its provisions clearer by removing all lacunas, and also modifying the rules in accordance with the changed conditions.The attempts to codify international law had been underway since the late nineteenth century at different levels, and the most notable achievement before the First World War was the Hague Conventions of 1899 and 1907, relating to the laws of war and neutrality. However, not much was done in this regard during the two world wars, although the League of Nations convened a Codification Conference at Hague in 1930. It had three subjects for codification before it: the law of nationality, territorial waters and State responsibility. The Conference was a big disappointment. Agreements were reached on only a few minor points of the law of nationality, and even those were ratified later only by very few States. On all other matters, the Conference brought out sharp disagreements amongst the States, even on those matters which, till then were generally regarded as established rules of international law.The attempts to codify international law got a fillip with the establishment of the United Nations. The United Nations Charter delegated this task to the General Assembly. Article 13, Para. 1 of the Charter states:The General Assembly shall initiate studies and make recommendations for the purpose of: (a)... encouraging the progressive development of international law and its codification.Acting under this provision, the General Assembly in November 1947, established the International Law Commission by a Statute for the “promotion of the progressive development of international law and its codification”.80 “Codification” means “the more precise formulation and systematisation of rules of international law in fields where there already has been extensive State practice, precedent and doctrine”.81 “Progressive development” is the “preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States”.82But in actual practice, the relationship between codification and progressive development is blurred and most of the time they overlap. Judge Sorensen, in his dissenting opinion in the North Sea Continental Shelf cases remarked: “Although theoretically clear and distinguishable, the two notions tend in practice to overlap or to leave between them an intermediate area in__________________80 GA Res. 174 (II) of Nov. 21, 1947. The Statute of the International Law Commission, the work of International Law Commission (1980), p. 103; see also, L.

Sohn, Basic Documents of the United Nations (Foundation Press Inc., Brooklyn), 1956, p. 31.81 Article 15 of the Statute of the ILC.82 Ibid.


which it is not possible to indicate precisely where codification ends and progressive development begins”.83The Commission follows a set procedure for the adoption of international rules through multilateral treaties or conventions, irrespective whether it is codification or progressive development. It first prepares a set of draft articles on the basis of reports prepared by its member appointed as special rapporteur. This draft is sent to the States for their comments. After receiving the comments, the final draft on the subject is prepared and sent to the General Assembly, which may decide to convene an international conference for the adoption of a convention, based on the draft. The Commission, which originally drew up a provisional list of 14 subjects for codification in 1949,84 by following this procedure, has been able to help in the adoption of a number of multilateral conventions, which are also in force, viz., the four Geneva Conventions of 1958 on the Law of the Sea, the 1961 Convention on the Reduction of Statelessness, the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Immunities, the 1969 Vienna Convention on the Law of Treaties, the 1978 Vienna Convention on Succession of States in Respect of Treaties,85 the 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (not in force yet), the 1997 Convention on the law of the Non-Navigational Uses of International Water Courses (adopted by the GA. on 21 May 1997) and the Rome Statute of the International Criminal Court, 1998, the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts, the 2004 United Nations Convention on Jurisdictional Immunities of States and their property.The Commission has also prepared the Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, Draft Articles on Prevention of Trans-boundary Harm from Hazardous Activities, 2001, and Draft Articles on Diplomatic Protection, 2006. It is currently working on the status of the diplomatic courier and the diplomatic, jurisdictional immunities of States; Shared natural resources (oil and gas); Responsibility of international organisations; and the Expulsion of aliens. In the past, the Commission has also dealt with a number of matters assigned to it by the General Assembly, which led to the formulation of (a) the 1949 Draft Declaration on Rights and Duties of States;86 (b) the 1950 Principles of International Law recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal;87 (c) the 1952 Reservations to Multilateral Convention;88 (d) the 1954 Draft Code of Offences against the Peace and Security of Mankind;89 (e) the 1958 Model Rules on Arbitral Procedure;90 and (f) the 1974 Definition of Aggression.91The Commission is composed of 34 members elected by the General Assembly, having competence in international law, and representing the main forms of civilisation and the principal__________________83 (1969) ICJ Rep., p. 3, at pp. 242-43.84 The ILC Rep., 1949, II, p. 281.85 The work of the International Law Commission (1980), pp. 77-99.86 The ILC Rep., 1949, II, p. 286.87 The ILC Rep., 1950, II, p. 195.

88 The ILC Rep., 1952, II, p. 69.89 GAOR, 9th Session, Supplementary, p. 11.90 The ILC Rep., 1958, II, p. 83.91 GA Res. 314 (XXIX), Dec. 14, 1974.


legal systems of the world.92 Members sit as individuals and not as representatives of their governments, but increasingly the professional diplomats from the respective States now are donning the Commission, which belies the apolitical character of the Commission.Apart from the International Law Commission, there are a number of other United Nations bodies, whose work has led to the adoption of multilateral conventions on varied subjects. For example, the numerous treaties on human rights are based on the work of the Untied Nations Commission of Human Rights (incorporated under the Charter and from 2006, has been replaced by the Human Rights Council), the Committee on Peaceful Uses of Outer Space is looking into the instruments on outer space; and the 1982 Law of the Sea Convention was based on the work of the III United Nations Conference on the Law of the Sea (UNCLOS). Since the task of codification is enormous and the Commission is already saddled with too many subjects and is confining itself mainly to traditional subjects where there exists considerable amount of non-controversial State practice, the trend for the future seems to be the codification through special bodies to be set up by the General Assembly to look into the new and specific subjects.__________________92 Articles 2, 3 and 8, Statute of the ILC. The ILC’s membership was raised from 25 to 34 in 1981. The membership is distributed as follows: Africa 8; Latin America 6; Asia 7; Eastern Europe 3; Western Europe and other States 8; also one national by rotation from Africa or Eastern Europe States and one national by rotation from Asian or Latin American States.

Page 25

CHAPTER 2

Sources of Modern International Law

I. GENERALThe identification of the sources of international law is riddled with many difficulties since there is a controversy among the jurists of international law about the very word “sources”. It is often coloured by their doctrinal predisposition regarding the basis of international legal obligation, i.e., law of nature or positivism, rather than the procedures for creating rules of international law. A distinction has also been drawn between formal and material sources of international law. According to Salmond:A formal source is that from which a rule of law derives its force and validity.... The material sources, on the other hand, are those from which is derived the matter, not the validity of the law.The material source supplies the substance of the rule to which the formal source gives the force and nature of law.1From formal sources, the law derives its authority or sanction; and from material sources, the law derives its content or subject matter. Thus, a rule will be legally binding if it fulfils the requirements of a custom, which is a formal source of international law, whose substance will be indicated by State practice, which is the material source of custom. The diplomatic correspondence, for example, is evidence of State practice.2The sources of international law are not as explicit and accessible as those of municipal law, nor the machinery for their identification comparable to municipal law. However, in a dispute before the International Court of Justice between the parties, Art. 38 of the Statute of the Court direct it to refer to:a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting States;b. international custom, as evidence of a general practice accepted as law;c. the general principles of law recognised by civilised nations; and__________________1 Salmond, Jurisprudence, 7th ed. (Sweet and Maxwell, London), 1924, para 44, cited in Harris, Cases and Materials on International Law, 6th ed. (Sweet and Maxwell, London), 2004, p. 19. G. Schwarzenberger makes a distinction between law-creating processes and law-determining agencies of international law, see, A Manual of International Law, 5th ed. (Stevens and Sons Ltd., London), 1967, p. 26.2 Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell, London), 2010, p. 19.


d. subject to the provisions of Art. 59,3 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.4Thus, Art. 38 is a direction to the Court as to where to look for law and offers a guide to anybody who is discovering the rules of international law. But the decisions or determinations of the international organs or institutions, particularly the resolutions of the United Nations General Assembly which have become an important source of modern international law, do not find a mention in Art. 38; it is probably for the reason that when the Statute was drafted, the importance of these organs in law-making was not contemplated. Nevertheless, Art. 38 classifies the sources into two categories: sub-paragraphs (a) to (c) incorporate the law-creating process, which means that in any asserted rule of international law, it must be shown that it is the product of one or more of the three law-creating processes treaties, customs, and general principles of law. In other words, they are concerned with the pedigree of the rules of international law. Sub-paragraph (d) enumerates some of the means for the determination of alleged rules of international law. In the case of the law creating process, the emphasis lies on the forms by which any particular rule of international law is created. This is being done through the law - determining agencies (those stated in sub-para (d)), which verify an alleged rule.5Article 38 lays down the hierarchy of the sources of international law for the court. In a particular dispute before the court, its search for relevant rules takes it to the treaties, which are expressly recognised by the parties, or to general practice accepted as law (by States), or to general principles of law (recognised by States). If the conventions, practices and principles are not found relevant or clear, the court may resort to “judicial decisions and the teachings of the most highly qualified publicists” as “subsidiary means for the determination of rules of law”, and also to the decisions of the international organs. In order to avoid a situation of non- liquet, i.e., no law exists or law is silent on the issue, Art. 38 para. (2) empowers the court “to decide a case ex aequo et bono if the parties agree thereto”.Thus, broadly speaking, the following are the sources of international law:1. Custom2. Treaties3. General principles of law recognised by civilised nations4. Judicial decisions5. Juristic work on international law6. General Assembly resolutions and declarations__________________3 Article 59 reads, “The decision of the Court has no binding force except between the parties and in respect of that particular case”.4 Article 38 follows the wording of the same Article in the Statute of the PCIJ except the words “whose function is to decide in accordance with international law such disputes as are submitted to it”, are inserted in Para. 1.5 G. Schwarzenberger, op. cit. 1.

Page 27 SOURCES OF MODERN INTERNATIONAL LAW

II. CUSTOM“Custom” has played a significant part in building the present fabric of the international legal system. Though its importance has lessened in the modern times due to the increasing use of treaties and conventions as a law-creating method, but it still remains a vital source of international law.Custom is a habitual course of conduct. Rules are evolved after a long historical process culminating in their recognition by the community. A customary rule of international law may be defined as a rule which the community of States has since long recognised as the right rule of conduct, and which has the force of law. In the Asylum case, the International Court of Justice described custom as a “constant and uniform usage, accepted as law”.6 By “usage” the court means a usage that is to be found in the practice of States.The terms “custom” and “usage” are often used as synonyms, but they are distinguished. Usages are habits, often repeated but conflicting and vary amongst States. On the other hand, custom is self-consistent and unified. Usage represents the twilight stage of custom. Custom begins where usage ends.7 Usage is an international habit of action that has not yet received full legal attestation. However, it is not always necessary that a usage should precede a custom or that a usage becomes a custom. Similarly, there is no international rule which determines when usage shall culminate into a custom.8There is a dual requirement for an international custom to be accepted as such: (a) “general practice accepted as law” (Art. 38, para. (1)(b) of the International Court of Justice), i.e., there should be sufficiently uniform practice, and (b) the belief that such a practice is obligatory. Consequently, for a practice or usage to become a customary rule of international law, the following two factors are essential.1. A material fact, i.e., in similar circumstances States act similarly, in other words, usage has been constantly and uniformally practised by States.2. A psychological element, i.e., the opinio juris sive necessitate - the feeling on the part of States that in acting as they act they are fulfilling a legal obligation.9The two are often referred to as the objective (material) and subjective elements of custom respectively.Generally speaking, it is the material factor that is significant in the establishment of a customary rule, but where the State practice establishing the contended rule is lacking or ambiguous, the psychological element assumes greater significance. However, it is by examining__________________6 Columbia v. Peru, (1950) ICJ Rep., p. 266, at p. 277; see also D’Amato, The Concept of Custom in International Law (Cornell University Press, Ithaca), 1971.7 J.G. Starke, An Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 36.8 Torsten Gihl, The Legal Character and Sources of International Law (Alonqvist & Wiksell, Stockholm) 1957, pp. 82-83. According to Oppenheim, a usage turns into custom, “whenever and as soon as a line of international conduct frequently adopted by States is considered legally obligatory or legally binding”. L. Oppenheim, International Law, 9th ed., vol. 1 (Jennings & Watts (Ed.), Pearson Education), 1996, p.30.

9 In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons case (1996) ICJ Rep. p. 226, Para. 64, the court observed that the substance of customary rules must be “looked for primarily in the actual practice and opinion juris of States.”


the actual practice of States that the comparative relevance of these elements can be established. In fact, opinio juris is not an essential element of custom, but its presence helps in distinguishing custom from a course of action followed as a matter of choice or for other reasons.10 Recurrence of the usage or practice tends to develop an expectation that in similar future situations, the same conduct or abstention there from, will be repeated. When this expectation evolves further into a general acknowledgement by States that the conduct or abstention therefrom is a matter both of right and obligation, the transition from usage to custom may be regarded as complete.In the Asylum case, Haya de la Torre, who had been declared a fugitive by the Peruvian authorities after an unsuccessful rebellion led by him in Peru, was granted asylum by the Columbian Embassy in Peru. Columbia sought from Peru a safe conduct to allow Haya de la Torre to leave the country, but Peru refused to grant this. Under the 1928 Havana Convention on Political Asylum, to which both the countries were parties, a political fugitive, if granted diplomatic asylum, was entitled to a safe conduct. However, Peru refused to accept the Columbian contention that it is for the State granting the asylum to determine the nature of the crime, which would be binding on the territorial State, and this rule is accepted as a customary rule among the Latin American countries. Peru considered Haya de la Torre merely a common criminal under its laws. The International Court of Justice, to whom the dispute was referred for adjudication, refused to accept the Columbian contention that such a custom exists among the Latin American States, since it failed to establish any clear evidence in support of its contention. The Court observed:The Columbian Government must prove that this rule invoked by it is in accordance with a constant anti uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum, and a duty incumbent on the territorial State.11 (emphasis added).

A. State PracticeState practice is fundamental to the formation of a custom, but what amounts to a State practice and what constitutes a State practice may cover every activity of the State organs or officials in an international context. It may include treaties, diplomatic correspondence and relations, opinions of national legal advisers, national legislation, policy statements, press releases, official manual on legal questions, executive decisions and practices, decisions of international and national courts, and the practices of international organisations.12 Broadly speaking, State practices can be categorised into three groups—as evidenced in the mutual relations among States, in the practice of international organisations, and the unilateral practices of States.1. Mutual relations among StatesPractices of States with other nations in the form of diplomatic correspondence, press releases, bilateral treaties, memorandum of understanding, acts or declarations by statesmen, etc. constitute evidence of practices of States followed in the sphere of international relations. Uniform practice__________________10 H. Kelsen, General Theory of Law and State (Russell & Russell, New York), 1961, p. 114.

11 See op. cit. 6, at p. 276.12 See YblLC, 1950, vol. II, pp. 368-372.


among nations on a particular aspect leads to the formation of a customary rule. Rules may also be evolved as a result of positive statements, interaction of the rival claims, or the acquiescence in or tolerance of the other’s claim. The development of the law of the sea is the case in point of the interaction of rival claims, and an example of compromises and mutual tolerances. In the Fisheries Jurisdiction case (UK v. Iceland),13 the United Kingdom protested against the legality of the extension by Iceland of its fishery limits from 12 to 50 miles, on the ground that customary international law did not recognise the right of a State to establish an exclusive fishery zone beyond 12 miles from the baselines of its territorial waters. The International Court of Justice recognised the validity of the 12 miles zone developed out of State practice but opined that it did not amount to crystallising any rule which will make invalid more extensive claims. For this, the Court referred to a number of proposals and claims for extensive economic zone at the Third Law of the Sea Conference made by large number of States. The five judges, in their joint opinion, observed:There is, at the moment, great uncertainty as to the existing customary law on account of the conflicting and discordant practice of States. Once the uncertainty of such a practice is admitted, the impact of the official pronouncements, declarations and proposals must undoubtedly have an unsettling effect on the crystallisation of a still evolving customary law on the subject. Furthermore, the law on fishery limits has always been and must by its very essence be a compromise between the claims and counter-claims of coastal and distant water fishing States.14Acquiescence and mutual tolerance became the basis of the decision in the Anglo-Norwegian Fisheries case (UK v. Norway) by the International Court of Justice. In this case, the Norwegian decree of 1935, delimited Norway’s “Fishery Zone” along almost 1000 miles of coastline north of latitude 66° 28.8' North, by following the straight baseline joining the foords, sunds (sounds) and skjaegaard (rocks), because its coastline was highly indented. This method of a straight baseline was adopted by Norway in its earlier decrees of 1869 and 1889, to delimit its territorial sea in the southern coastline, measuring only 89 miles, and no one protested against it including the United Kingdom. By using this straight baseline method, Norway enclosed waters within its territorial sea that would otherwise have been high seas. The length of the baselines extended as far as 30 to 44 nautical miles in the sea. The United Kingdom, which had the fishing interest in the region, challenged the legality of Norway’s straight baseline system. The Court after referring to the 1869 and 1889 decrees observed:The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than 60 years, the United Kingdom itself in no way contested it.... The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North sea, her own interest in the question, her prolonged absentation in any case warrant Norway’s enforcement of her system against the United Kingdom.15Acquiescence, however, cannot be established unless a State has actual or constructive knowledge of the claim being made.16 Further, it is not necessary that a new rule emerges only out of__________________

13 (1974) ICJ Rep., p. 3.14 See the joint opinion of five judges, ibid. at p. 48.15 (1951) ICJ Rep., p. 116, at pp. 138-139.16 For example, in the satellite launching, the acquiescence of all, but the satellite launching States, has resulted in the change of airspace law.


compromises or mutual tolerances; it may also be evolved by consensus, rather in a short span of period, such as in the case of law relating to outer space.17A custom can be general or local (regional). A local custom can come into existence between a group of States or even amongst two States, which can derogate or supplement the general custom. The Asylum case has clarified that a local custom which is observed amongst a group of States in their relations inter-se, is within the purview of Art. 38 (1) (b) of the Statute of the International Court of Justice.18 In the Right of Passage over Indian Territory (India v. Portugal)19 India suspended the right of passage to Portugal through the Indian territory, which was in between the enclaves of Dadra, Nagar Haveli and Daman after a revolt in Dadra in July 1954. Before the International Court of Justice, Portugal claimed this right based on the Treaty of 1779 concluded between Portugal and the then Maratha ruler. The right of passage granted in favour of Portugal was subsequently allowed by the British Government also as the sovereign of that part of the country which was earlier with the Marathas. This right was confined to private persons, civil officials and goods in general, to the extent necessary to exercise sovereignty by Portugal over these enclaves, but armed forces did not enjoy this right. For them special permission was sought and granted by British authorities. After independence, India also allowed this right. The Court ruled that India did not act contrary to its international obligations, and the right was suspended in July 1954, because of the repercussions and tension created by the events in Dadra in the border territory of India. The Court also decided that Portugal was not entitled to send its armed forces through the Indian territory.In rendering its judgment, the Court relied on the Treaty of 1779. The Court also accepted the validity of the claim of Portugal based on custom, because the right existed continuously for a long period of time. In reply to India’s objection that no local custom could be established only between two States, the Court observed:It is difficult to see why the number of States between which a local custom may be established on the basis of long practice must necessarily be larger than two. The Court sees no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States.20For a practice to crystallise as a custom, it is not practicable to show that every State has recognised or accepted a certain practice, and the test of general recognition is basically vague. It is enough to show that the majority of States have accepted a particular practice for a custom to evolve. In the North Sea Continental Shelf cases, Judge Lachs in his dissenting opinion stated that “to become binding, a rule or principle of international law need not pass the test of universal acceptance.... Not all States have ... an opportunity or possibility of applying a given rule. The evidence should be sought in the behaviour of a great number of States, possibly the majority of States, in any case the great majority of the interested States”.21 For example, in the matters related to maritime law, the practice of the United Kingdom and the United States is of special__________________

17 See UNGA Res. 1963 (XVII) of December 24, 1963, “Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space”. See Harris, op. cit. 2, p. 40.18 Supra note 6, at p. 266.19 (1960) ICJ Rep., p. 6.20 Ibid. at p. 37.21 (1969), ICJ Rep., p. 3, at p. 230.


importance, just like in the law relating to outer space, the practice of the United States and Russia is significant.Further, for a practice to get the force of law as a customary rule the precise length of time required for its existence is immaterial, it is enough that it must be followed long enough to show that the other requirements, i.e., uniformity and consistency, are also met. In the North Sea Continental Shelf cases, the International Court of Justice observed:Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law ... an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.22In the Nicaragua case (Merits), the Court, while referring to the occasional violations of the principle of non-intervention, stated: “The court does not consider that for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules ... the conduct of States should, in general, be consistent with such rules and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule and not as indication of the recognition of a new rule”.23Thus, the conduct creative of customary rule must be regular, repeated and also uniform. Material departure from a practice may negate the existence of a customary rule, but minor deviation may not necessarily negate the rule. Apart from recurrence, the antiquity of an act (usage) may be an important element in its acceptance as a customary rule. In the face of inconsistency, the length of time over which a particular practice has been followed will become a relevant, though not a determining factor. It has, however, been suggested that a rule will not be binding on a State which has maintained its dissent throughout the rule’s formative period. In the Anglo-Norwegian Fisheries case, the United Kingdom argued unsuccessfully that the 10 mile rule in the cases of bays was an established principle of customary international law. The Court, while rejecting this contention, stated that even if it had acquired the authority of general international law, it “would appear to be inapplicable as against Norway in as much as she has always opposed any attempt to apply it to the Norwegian coast”.24 The United States Restatement also similarly observes:In principle, a State that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures. Historically, such dissent and consequent exemption from a principle that became a general customary law has been rare.25__________________22 Ibid. at p. 44.23 (198 6) ICJ Rep., p. 14, at p. 98.24 Op. cit. 15, at p. 131.25 Restatement of the Foreign Relations Law of the US, Third, vol. 1, para. 102 (1987), p. 26, see Harris, supra note 2, p.39. Some scholars opine that a persistent

objector will be bound by a new rule of customary international law that has the character of jus cogens, see, e.g., Henkin, International Law: Politics and Values (1995), p. 39.


But once a custom has been established, the subsequent dissent by a State would not affect the sanctity of the rule unless, either by following the same process through which the earlier rule was created or through any other law-creating process, the new rule is laid down. This invariably is a slow process with an interim period of uncertainty.26

2. Practice of international organisationsInternational organisations also contribute to the development of customary international law by providing a clear and concentrated form of State practice. The statements made and the votes cast at these forums by State representatives on legal matters provide strong evidence of existing or emerging rules of customary international law. The actions and decisions of the international organisations help in achieving general standard of behaviour by individual States in the development of rules concerning the internal law of these organisations, their powers, responsibilities and status affecting their relations inter-se and with States, and also developing new rules of international law.The practice and attitude of permanent members of the Security Council towards the application of Art. 27, paragraph (3)27 of the Charter has led to the acceptance of practice, whereby the abstention from voting by one of the permanent members does not amount to negative voting.28 Similarly, the Charter entrusts the “primary responsibility” to maintain international peace and security to the Security Council, but by its becoming ineffective due to the “veto power” of the permanent members, over a period of time, the General Assembly has assumed a vital role in this matter, particularly in the creation and control of the United Nations peace-keeping operations. This has become possible under Arts. 11 and 24 of the Charter, which assign the secondary or residual responsibility of maintaining international peace and security to the General Assembly. In pursuance of this power, the General Assembly adopted the Uniting for Peace Resolution29 and also set up the United Nations Emergency Force in 1956, to supervise the withdrawal of forces from Egypt. In furtherance of this role, it has acted in many crisis situations, for example, in Korea (1950), Hungary (1956), Congo (1960), the Middle-East (1967), Afghanistan (1980), the Palestine situation (1980, 1982), Namibia (1981), and on the question of occupied Arab Territories (1982).The International Court of Justice in its advisory opinion in the Reparations case30 affirmed the legal personality of the United Nations and consequently created the international personality__________________26 The same may be stated about certain norms of customary international law challenged by the new nations, see Ch. I, supra, pp. 19-22.27 Article 27(3) requires that on non-procedural matters, the decision can only be adopted by a qualified majority of nine members “including the concurring votes of the permanent members”.28 This practice was initiated at the time of the Korean crisis in 1950, when the USSR abstained from voting. Since then it has been followed quite often, viz., in the Gulf Crisis (1990) China abstained from voting many times, and Russia in the case of Bosnia-Herzegovina in 1995.

29 GA Res. 37(V), Nov. 3, 1950. On the role of the General Assembly under Arts. 11 and 24 of the Charter, see also the Advisory Opinion of the ICJ in the Certain Expenses of the United Nations case (1962) ICJ Rep., p. 151.30 Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ Rep. p. 174.


for these organisations as such. In discharging their responsibilities and obligations, these organisations can sue and be sued. The United Nations and its specialised agencies’ treaty relationship with member nations provide an evidence of customary international law with reference to States’ relations with the international organisations.31The actions of international organisations may also lead to the alteration of the existing rules or situations and in the creation of new rules of international law. In the Competence of International Labour Organisation case32 in 1922, the Permanent Court of International Justice was asked to advise on whether the International Labour Organisation (ILO) had the competence to draft regulations dealing with agricultural workers or whether its competence was restricted only to the manufacturing industry. Basing its opinion primarily on the practice of the organisation, the Court concluded that the competence of the ILO extends to agricultural workers as well. Similarly, in the Namibia case33 the International Court of Justice, while rendering its opinion concerning the legal consequences of the Security Council Resolution 276 for non-members, stated that, “the termination of the mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring ergo omnes (valid against “all the world”), the legality of a situation which is maintained in violation of international law”, and non-member States are to act in accordance with this situation. In the Reservations case,34 the International Court of Justice preferred the rule of “compatibility with the object and purpose of the treaty” for making a reservation and acceptance of reserving State as a party to a multilateral treaty over the existing rule of consensus, which means that a reserving State will be accepted as a party to the treaty if the reservation had been accepted by all other signatories to the treaty. This rule on reservations to multilateral treaties subsequently became part of the 1969 Vienna Convention on the Law of Treaties (Arts. 19-24).The proceedings of the international organisations have their solitary effect in the creation of new rules of customary international law. The paper positions or resolutions moved by the member nations in the international conferences along with their statements, and their participation in the debates may lead to the emergence of such rules. The decisions and declaration of these organisations may also have a law-making effect, as it has happened in the case of Outer Space Law, people’s right over natural resources, and decolonisation.35

3. Unilateral acts of StatesThe legislative acts, decisions of State courts, opinions of law officers (especially when they are published), military and administrative practices of various States are of great evidentiary value in the development of international custom. A comparison of these indicates the existence__________________31 The 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations embodies the treaty rules as applicable to the International Organisations, which have developed out of this practice.32 PCIJ Rep., Series B., No. 2, pp. 40-41 (1922).

33 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), (1971) ICJ Rep., p. 16, at p. 56.34 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case, (1951) ICJ Rep., p. 15.35 For more details on the decisions and declarations of the General Assembly, sec infra, pp. 51-53.


of a practice uniformally followed by all States, which may be of some evidence that a custom does or does not exist. Nevertheless, what is required for the existence of a custom is the concurrence and not mere parallelism of such practices which may be indicative of the general recognition of a broad principle of law. The Scotia s case is in point. The Scotia (British steamer) collided in mid-ocean with Berkshire (US sailing ship), which sank. As the collision took place on the high sea, the law applicable to the case before the United States Supreme Court was the international maritime law. In 1863, some changes were made by the Great Britain with the adoption of new regulations to avoid collision on the high seas. The United States adopted practically the similar regulations in 1864, and other major maritime powers, including France, also did the same shortly thereafter. The Berkshire was carrying wrong navigational lights at the time of the collision, according to these regulations. The crew of Scotia mistook it for a steamer and Berkshire sank. The Court accepted the applicability of the new regulations, the particular system of warning lights to determine the rights and duties of the parties to the dispute, as the new regulations were accepted by nearly all the maritime nations of the world making them “in part at least... the law of the sea”.36 The Court did not hold Scotia liable for the sinking of Berkshire.Apart from concurrence, there should be a sufficient degree of consistency in the practice of States in favour of the rule alleged to exist. In the Asylum case, the International Court of Justice refused to accept the Columbian contention that a customary rule exists among the Latin American countries that a political fugitive if granted diplomatic asylum was entitled to safe conduct, because Columbia failed to establish any clear evidence in support of this contention. The Court observed:The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions ... and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.37For evidence of State practice, it is required to refer to official books or documents (such as Digests of International Law of different States), parliamentary papers, law reports, newspapers, internal regulations of each State’s diplomatic and consular services. Diplomatic correspondence is also an evidence of State practice, but it is not readily available since such correspondence belongs to classified documents. On the other hand, decisions of domestic courts, referring to habitual practices, are generally indicative of the existence of a customary rule.

B. Opinio Juris Sive NecessitatisThe State practice, even though general and consistent, is not customary law unless an opinio juris or “psychological element” is present, i.e., the practice is recognised as obligatory and there is the conviction that its repetition is the result of a compulsory rule. In the North Sea Continental Shelf cases, the Court observed:__________________36 (1871) 14 Wallace 170; 81 US 170 at p. 188 (1872).

37 Op. cit. 6, at p. 277.


Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency or even habitual character of the acts is not in itself enough.38In the S.S. Lotus case,39 a stricter requirement was laid down by the Court for a customary rule to evolve. In that case, the French ship S.S. Lotus had collided on the high sea with the Turkish vessel Boz Kourt, killing thereby eight Turkish nationals. When the Lotus arrived in Turkish waters, criminal proceedings were instituted in the Turkish courts against the captain of Lotus alongwith the captain of Boz Kourt for manslaughter, and sentenced. The French Government protested against the Turkish action, and by an agreement between the parties, the dispute was submitted to the Permanent Court of International Justice. The French Government argued that under the customary international law, criminal jurisdiction pertains to the flag State of the vessel in which the crime is committed. Evidence for this alleged rule existed in the State practice where the courts had generally abstained from exercising criminal jurisdiction in deference to the flag State, thereby giving rise to the assumption that there had been a tacit acceptance by States of the rule that in criminal matters, the flag State was entitled to exclusive jurisdiction. The Court rejected the French contention and observed that:the circumstances alleged by ... the French Government... merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognised themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty....40This line of reasoning of the Lotus case was adopted by the International Court of Justice in the North Sea Continental Shelf cases, where Denmark and the Netherlands in their case against the Federal Republic of Germany for the delimitation of the continental shelf between them, attempted to show that the 1958 Geneva Convention on Continental Shelf in general, and Art. 6(2) of that Convention, dealing with the “equidistance-special-circumstances” rule of delimitation of continental shelf among the adjoining States, in particular, had become a part of customary international law. The Court found the absence of the psychological element required for the creation of such a new rule, and observed that in certain cases where the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance, “there is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so - especially considering that they might have been motivated by other obvious factors....”41In the West Rand Central Gold Mining Co. Ltd. v. R,42 the test laid down for the opinio juris was that the alleged rule must be proved by satisfactory evidence “of such a nature, and__________________

38 Op. cit. 21, at p. 44, Para. 77; see also, Nicaragua case, op. cit. 23, at pp. 108-109.39 PCIJ Rep., Series A, No. 10 (1927).40 Ibid. at p. 28.41 Op. cit. 21, at pp. 44-45, Para. 78.42 (1905) 2 KB 391 at p. 407.


has been so widely and generally accepted that it can hardly be supposed that any civilised State would repudiate it”. Thus, the rule should be one of “general recognition”.However, in practice, it is a delicate and difficult matter to decide whether or not these two factors—usage and opinio juris—actually exist in the formation of custom. The recurrence, the number of examples of State practice, and the duration of time required for the generation of customary rule cannot be decided uniformally or with mathematical precision in the case of usage. Similarly, for opinio juris, it is extremely difficult to get evidence of its existence in concrete cases. Being one of motivation and of psychological nature, this subjective factor cannot be easily established, particularly when many organs of the state - legislative and executive, participate in the decision-making. In such a situation, the only way to ascertain the existence of opinio juris can be from the external existence of a certain custom and its necessity felt in the international community.43 It may also be inferred from the conduct of a group of States that a certain conduct has been regarded by them as a matter of duty, which may become a general rule of international law, if a sufficient number of States start considering it as binding on them and there is no effective protest by others.44There has been a marked decline in the importance of custom in present times. It is because of certain drawbacks in the evolution of the rules of customary international law.1. The growth of a new custom is always a slow process and the character of international society presently makes it particularly slow, where States from different political, economic and legal systems from all continents participate in the law-creating process and not merely confined to few, as it was earlier when they were evolved by the consensus of the European States with Western values only. It is unable to keep pace with the changes in international relations amongst almost 200 countries.2. The question of whether a particular usage has or has not crytallised into a custom and has become obligatory has many difficulties, particularly when there is no agreement about its existence. It is for the courts to extract and ascertain the rule from the mass of heterogeneous documents, State practices, State judicial decisions, etc. and accord it legal authenticity.3. It is an unsuitable vehicle for international “welfare” or “cooperative” law as also to meet the new scientific challenges, such as Outer Space Law, law to regulate deep seabed exploitation and the law related to environment’.45For these reasons, the law-creating process is now more often done through treaties. But even in this scenario, it is possible for new customs to develop and become a general rule when the need is sufficiently perceptible and urgent, as it has happened in the case of satellite launching__________________43 See the dissenting opinion of Judge Tanaka in North Sea Continental Shelf cases, op. cit. 21, p. 176.44 Cf. Asylum case, op. cit. 6.45 W. Friedmann, Changing Structure of International Law (Columbia University Press, New York),1964, p. 123; A. Cassese w (Oxford University Press, New York), 2001, pp. 124-125.


without the specific permission of the States whose air space is transgressed. Custom reflects a deeply-felt community need of law and it is always spontaneous.46

III. TREATIESThe growing interdependence of nations and the quick changes in international relations make it imperative to develop international law to keep pace with the needs of modem international society. This can be done only through treaties and not by the slow process of custom. In international society, where there is no equivalent to State legislation, the treaties are the closest to it, though not as perfect. The first constructive step in developing the law through treaties was the Declaration of Congress of Paris in 1814, in favour of freedom of navigation on international rivers, followed by the Declaration of Paris 1856 on the laws of maritime warfare. The frequency of adopting treaties increased steadily thereafter. The importance of treaties is self-evident, as under Art. 38(1) (a) of the Statute of the International Court of Justice, treaties have been put as the first recourse which the Court is directed to resort in the settlement of a dispute between the parties. In the Soviet theory also, the main sources of international law were international treaties and international custom, of which the former is the most important.47Nonetheless, treaty as such is akin to a private law contract, creating rights and obligations for the parties who have adopted the treaty. Since treaty is contractual in nature, its being a source of law is debatable, as it primarily creates obligations for the parties thereto. It does not ipso facto bind the non-signatories except the treaties which are “constitutive” or “dispositive” in nature, i.e., treaties establishing a special regime, international boundaries, or an international institution, and do create rights and obligation for third parties. In the past, great powers had legislated for other States, such as the Final Act of the Congress of Vienna of 1815 made Switzerland a neutral country and declared certain rivers as international waterways; the Declaration of London established the Belgium’s independence in 1831 and of Luxembourg in 1867. But these instances are mere exceptions to the general rule that the treaties, irrespective of the number of parties, are basically a source of obligation between the parties. It is inaccurate to treat international convention as a source of international law akin to a statute as a source of municipal law, because treaties, being contractual in nature, do not normally have any legal effect on the non-parties. In fact, Art. 38(1) (a) of the Statute of the International Court of Justice does not refer international conventions as a source of law, but as sources of “rules expressly recognised by the contesting States”. Consequently,__________________46 The importance of custom in international law is self-evident and in 1949, the International Law Commission was asked under its Statute (Art. 24) “to consider ways and means for making the evidence of customary international law more readily available”. The Commission subsequently reported on the matter to the General Assembly and one of the recommendations was that the General Assembly should call the attention of governments to the desirability of publishing Digests of their diplomatic correspondence. For the Commission’s recommendation, see. Report on the work of its Second Session (1950).

47 F.I. Kozhevikov (Ed.) International Law (Gosiurizdat, Moscow), 1961. The Soviet Union always regarded custom as an inadequate means for the development of international law, and rules of customary law are binding only on those States who have given their consent, see G.I. Tunkin, “Remarks on the juridical nature of customary norms of international law”, Cal.L.R. vol. 49 (1969), p. 421; ibid. Contemporary Soviet Theory of International Law, 31 CLP (1978).


treaties are formally a source of obligation rather than a source of law. Treaty may lead to or reflect law, but is not a law in itself, particularly in its inception.48 According to Brierly, the only classes of treaties which can be treated as a source of general law are those concluded by a large number of States for declaring their understanding of what the law is on a particular subject, or of laying down a new general rule for future conduct, or of creating some international institution. Such treaties are “the substitute in the international system for legislation, and they are conveniently referred to as ‘law making’”.49But a “law-making” treaty is also subject to the limitation that the treaty binds only the parties. There is no treaty which binds all the States or their people, i.e., one of a universal character. Some jurists, however, have tried to categorise these treaties into two types: those which lay down rules of universal international law such as the United Nations Charter, and treaties creating general rules of international law, such as Genocide Convention, 1949; Single Narcotic Drugs Convention, 1961; ILO conventions which lay down the international norms for the States. Such treaties have also been termed as “normative” treaties.

A. General and Particular TreatiesTreaties have been classified into “general” and “particular”, as is done in Art. 38(1) (a) of the Statute of the International Court of Justice.50 A convention may be “general” either because of the number of parties (as being accepted by a large number of States) or because of the nature of its contents (which is of universal importance); it may be “particular” because of the limited number of parties or because of the limited character of its subject-matter. On this basis, some jurists have further classified the treaties into “law-making” treaties and “treaty contracts.” Whereas the “law-making” treaties are a source of law, the “treaty contracts” merely purport to lay down special obligations between the parties and are not directly a source of law. They are the agreements between two (or only limited number of) States on a special matter concerning those States exclusively. Such treaties create obligations which would not have existed under the general international law or modify the existing rules as applicable to their mutual relations. Though such treaties are not directly a source of law, they may crystallise into a general rule through the operation of the principles governing the development of customary rules, particularly when there is a recurrence of treaties embodying the similar law. In the past, such treaties have led to the development of the rules of international law on varied subjects, such as the law on extradition, accentuated through extradition treaties between nation States; the rules relating to the diplomatic and consular privileges and immunities as embodied in 1961 and 1963 Vienna Conventions, based on great number of treaties on the diplomatic and consular privileges and immunities between States. Such treaties may also be of evidentiary value for an emerging rule of__________________48 Gerald Fitzmaurice, Some Problems regarding the formal sources of International law, (1958) Symbolae Verzijl, p. 153, see in Harris, op. cit.2, pp. 42-43.49 J.L. Brierly, The Law of Nations, 6th ed., Waldock (Ed.), 1963, p. 50.

50 Fitzmaurice rejects this classification and views that ascribing treaties as creating ‘particular’ and ‘general’ international law is of extremely dubious validity, see op.cit.48.


international law. In cases before any international tribunal, if such a rule is quoted, the treaty may be invoked in support of the rule.51The treaty, even if of universal or normative nature, will not bind the non-parties unless expressly or by their conduct, they manifest their intention to be bound by the provisions of the treaty as general rules of international law. In the North Sea Continental Shelf cases, one of the arguments advanced by Denmark and the Netherlands was that the “equidistance rule” incorporated in Art. 6(2) of the 1958 Geneva Convention on Continental Shelf for the delimitation of the continental shelf has been recognised by the Federal Republic of Germany by its conduct generally, and for the delimitation of the continental shelf areas in particular (Germany was not a party to the Continental Shelf Convention). The Court, in rejecting this contention, observed that only “a very definite, very consistent course of conduct” on the part of a State could be the basis of finding that it was bound by the provisions in a treaty to which it was not a party. Furthermore, by not ratifying the treaty, though being a signatory, Germany manifested its intention not to be bound by the provisions of the Convention.52 However, where a treaty reflects existing law, non-parties may conform to the same rules as their being a part of general law and not by virtue of the treaty itself, thereby accepting the treaty as of evidentiary value. On the other hand, where a treaty matures into the general law and becomes a material source of law, the non-parties will adhere to the treaty rule because it has become part of general law. But the parties to the treaty have to apply the treaty even though they would also be bound by those rules irrespective of treaty also.53

B. Treaty and CustomTreaty is an express manifestation of the States’ intention to be bound by a particular rule, and it can modify or reject the existing customary rules. Hence, the treaty law takes priority over international customary law. Thus, in those situations, where there is a conflict between a treaty rule and a customary rule, the judicial bodies have to give effect to treaty provision; though there are always attempts to give a harmonious construction, unless the language of the relevant provision of the treaty is unambiguous and the intention is clear.In the S.S. Wimbeldon case,54 Art. 380 of the Treaty of Versailles, by which Kiel Canal was made “free and open” to vessels of all nations at peace with Germany, was in issue before the Permanent Court of International Justice. In a war between Poland and Russia, German officials stopped S.S. Wimbeldon, a British ship carrying munition through the canal to Poland, on the ground that by allowing the passage of munition through its territory to a belligerent State, Germany would be compromising its neutrality under the customary international law. The Court, while accepting the obligatory force of such a rule, nevertheless held that Art. 380 of the Treaty must take precedence over such a rule. The stopping of a vessel of a State,__________________51 The value of the treaty would be lessened if, instead of containing absolute rule, the treaty is subject to reservation or revision, see Starke, op. cit 7, pp. 45-46.52 Op. cit 21, at pp. 25-26.53 Fitzmaurice op. cit. 48.

54 PCIJ Rep., Series A, No. 1 (1923).


at peace with Germany, amounted to a breach of Germany’s obligation under the Treaty of Versailles.Where a treaty has identical rules to those of customary international law, the treaty does not override the customary law, but, on the contrary, together they would strengthen a particular rule of international law. In the Nicaragua case (Merit),55 the United States argued that by virtue of reservation in its declaration that excluded “disputes arising under a multilateral treaty” from the Court’s jurisdiction under the “optional clause” (Art. 36(2) of the Statute of the Court), the Court is precluded from considering whether the United States had infringed Art. 2(4) of the United Nations Charter, and by virtue of this treaty (Charter Provision), the equivalent customary rule prohibiting the use of force is superseded. The Court rejected the United States contention and observed that “there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter ‘supervenes’ the former so that the customary international law has no further existence of its own”. The Court ruled that the United States “optional clause” reservation to multilateral conventions, does not affect the Court’s jurisdiction in deciding whether the United States stands in violation of the equivalent customary rule prohibiting the use of force.56

IV. THE GENERAL PRINCIPLES OF LAW57The term “general principles of law recognised by civilised nations” in Art. 38(1) (c) of the Statute of the International Court of Justice is very wide and vague. It includes, though not confined to, the principles of private law administered by municipal courts, as applicable to international relations. The private law principles, however, are not imported “lock, stock and barrel” in the international law but, as Judge McNair has observed, “the true view of the duty of international tribunals in this matter is to regard any features or terminology which are reminiscent of the rules and institutions of private law as an indication of policy and principles rather than as directly importing these rules and institutions”.58 The phrase applies to fundamental principles of justice which have been accepted and adopted by civilised nations generally. The Court can have recourse to this source if there is no convention or any clear rule of customary law in a case before it. This is also considered necessary to avoid any situation of non-liquet, i.e., the possibility that a court or tribunal would be unable__________________55 Op. cit. 23.56 Ibid. at p. 95.57 On the subject, see B. Cheng, General principles of law as a subject of international codification, IV CLP. p. 35; 1951; B. Cheng, General Principles of Law Applied by International Courts and Tribunals (Stevens & Sons Ltd., London), 1953; W. Friedman, The Changing Structure of International Law (Columbia University Press, New York), 1964, Ch. 12; C.W. Jenks. The Prospects of International Adjudication (Stevens & Sons Ltd., London), 1964, Ch. 6; C.H. Alexandrowicz, The Law-making Functions of the Specialized Agencies of the United Kingdom (1973), p. 38; H. Waldock, General course on public international law 106 Hague Recueil 54 (1962 II); R.B. Schlesinger, 51 AJIL 734-753 (1957).

58 See the Status of South West Africa case (1950) ICJ Rep., p. 148.


to decide a case because of a “gap” in the law.59 An international judicial body is under a duty to adjudicate and should not refrain from giving judgment on the ground that the law is silent or obscure.However, there is a difficulty in identifying and evaluating the role of these principles, since Art. 38(1 )(c) of the Statute does not specify whether the term refers to general principles of international law which are recognised by civilised nations as a part of customary law, or to general principles of law in the most general sense, including principles of private international law found in most of the legal systems. According to Mr. Root (USA) and Lord Phillimore (Great Britain), who drafted this provision, “the general principles referred to ... were those which were accepted by all nations in foro demestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata, etc”.60The very rationale of it is that a principle which has been accepted by civilised legal systems generally would be so reasonable as to be considered nccessary for the maintenance of justice under any legal system. Certain principles which qualify this criterion and have become part and parcel of the modern internat ional law, such as prescription, res judicata, estoppel, substitution etc., are drawn from Roman private law. However, the practice of international tribunals, particularly that of Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ), has not thrown any light on the processes for reaching to the conclusion that a particular rule is a rule of international law “recognised by civilised nations”. Does it mean then that before a principle is accepted as a “general principle”, it should be accepted in each of the legal systems, bordering at around 200 presently? The answer seems to be that certain legal principles are common to all the systems, which can be introduced in international law. The retention of the phrase “civilised” has, however, become controversial, particularly in the context that present corpus of international law is predominantly European and the new nations’ sensitivities towards it. But the practice of the Court indicates that the phrase relates to the general principles in the legal systems of independent nations, leaving out the tribal law which may not be sufficiently developed in the modern sense of the term.There has also been a controversy about the basis as well as acceptance of these principles as a source of international law. Some jurists, like Verdross, opine that Art. 38(1 )(c) has the effect of incorporating natural law in international law and any rule of international law if in conflict with natural law, is invalid. Fitzmaurice also states that this provision involves necessary principles of natural law, “at any rate in that aspect of it that relates to these principles, to be a formal, not merely a material source of law”, and cites many examples including the__________________59 Such a situation could have arisen in the Nuclear Tests Ban cases (1974) ICJ Rep., pp. 253 and 457, where the Court avoided giving judgment by accepting France’s unilateral declaration against testing in the South Pacific and that in future it would conduct nuclear tests underground only. France also declared that there were no sufficiently developed principles of general international law that could have prevented it from carrying out a further series of atmospheric nuclear tests. Subsequently, in 1983, France indulged in

such tests in its “national interest”. Again it started these tests (underground) in the South Pacific in Sept. 1995, against stiff opposition world-wide. It declared to stop these tests on Jan. 30, 1996, which, otherwise, were to be conducted unto May 1996. See The Times of India, Jan. 31, 1996, p.1.60 PCIJ. Advisory Committee of Jurists, Proces Verbaux of the Proceedings of the Committee (1920), p. 335. Lord Phillimore later said that by “general principles” he meant “Maxims of law”. Ibid, Harris, op. cit.2, p. 50.


one that a State cannot put the deficiencies of its internal law to be excused from performing its international obligations or impossibility of performance arising out of a situation brought about by the State itself.61 On the other hand, positivists contest the validity of this source since, according to them, consent is the basis of international law. Jurists like Tunkin maintain that para, (c) of Art. 38(1) adds nothing new to the existing sources of international law, i.e., custom and treaties. The main apprehension of positivists seems to be development of international law through judicial action instead of exclusively by States. Others hold that these principles are already there as a part of international law. The correct position, however, has been stated by Waldock, who basing his observations on the practice of the World Court (PCIJ and ICJ) opines:It [court] treats the ‘common law’ which it is authorised to apply under Art. 38, paras, (b) and (c). very much as a single corpus of law. In this corpus customary law enormously predominates and most of the law applied by the court falls within it. But para, (c) adds to this corpus a flexible element which enables the court to give greater completeness to customary law and in some degree to extend it.62But despite these controversies, the preponderant opinion is that general principles recognised in national tribunals constitute an inexhaustible reservoir of principles, which an international tribunal is authorised by Art. 38 to apply in an international dispute.The International Court (PCIJ and ICJ), while relying on this source, have frequently either referred to the customary law or left it ambiguous as to whether they were speaking of general principles of national or international law.In the Charzow Factory case,63 Germany brought a claim against Poland for the seizure of two companies in Upper Silesia, contrary to Poland’s international obligation. The Court laid down that a party cannot take advantage of its own wrong, as a principle “generally accepted in the jurisprudence of international arbitration, as well as by municipal courts”. At a later stage of the same case, the Court observed that “it is a general conception of law that every violation of an engagement involves an obligation to make reparation”64 and spoke of restitution and damages (municipal law concepts). In the Eastern Carelia case,65 the Court was asked for an advisory opinion on the competence of the Council of the League of Nations to adjudicate in a dispute involving a non-member of the League (USSR), which refused to accept the competency of the Council in the matter. The Court accepted the “independence of States” as a “fundamental principle of international law” and ruled that no State, without its consent, could be compelled to submit its dispute for pacific settlement. In the Corfu Channel case, Britain claimed against Albania for the substantial damage suffered by two of its warships while passing through the Corfu Channel which, at the time, was heavily mined. The Court took into account the circumstantial evidence to arrive at a conclusion. It stated that “this indirect evidence is admitted in all systems of law, and its use is recognised by international decisions”.66 It held Albania__________________61 G. Fitzmaurice, Symbolae Veizijl (1958), p. 153, at pp. 154-165; Harris, op. cit. 2, p. 50.62 H. Waldock, General course on public international law, 106, Hague Recueil 54 at p. 68 (1962-11).

63 PCIJ Rep., Series A, No. 9 (1927).64 PCIJ Rep., Series A, No. 17. p. 29 (1928).65 PCIJ Rep., Series B, No. 5, p. 27 (1923).66 (1949) ICJ Rep., p. 4, at p. 18.


liable towards the United Kingdom, for the loss suffered by its warships by Albania’s violation of its international obligations to inform all shipping of the presence of mines in the Corfu Channel “on certain general and well recognised principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used by acts contrary to the rights of other States”.67In spite of the differences existing amongst the municipal systems, certain principles have been transported under the rubric of “general principles” and became the basis of judgments rendered by the Court. The International Court of Justice, while rendering the advisory opinion in the Administrative Tribunal case referred to the “well-established and generally recognised principle of law” that “a judgment rendered by a judicial body is res judicata and has binding force between the parties to the dispute”.68 In the Nuclear Tests cases,69 where Australia and New Zealand sought injunction against French nuclear testing in the South Pacific, the Court declined to adjudicate “without object”, particularly where the object of the claim is achieved by other means. Similarly, in the Northern Cameroons case, the Court was clearly applying a general principle inherent in the judicial function, in refusing to adjudicate over a dispute, the substance of which had disappeared with Cameroon’s independence by the termination of Trusteeship Agreement. Cameroon, after attaining independence, sought a declaration from the Court that Britain failed to carry out its obligations under the Trusteeship Agreement under which it had administered the territory of Cameroon. The Court observed that the “Court’s judgment must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations. No judgment on the merits in this case could satisfy these essentials of judicial function”.70 In the Mavrommatis Palestine Concessions case,71 the Court referred to the “general principle of subrogation” and held that the concessions made by the Ottoman Empire in favour of Mavrommatis were enforceable against the United Kingdom, as being the successor State to Ottoman Empire in Palestine.Likewise, the rule of estoppel of private law became the basis of the Court’s judgments in the Eastern Greenland case,72 and Temple of Preah Vihear case.73 In the former case, the acceptance of numerous treaties by Norway, containing reference of Danish sovereignty over Eastern Greenland debarred Norway contesting Danish sovereignty. In the latter case, the conduct of Thailand (erstwhile Siam) amounted to its acquiescence by accepting the map prepared by French authorities in 1908 (the map was not approved by the Joint Commission), showing the Temple area as part of Indo-China, and ordering for 15 more copies. Further, the subsequent visit by the Siamese Prince in 1930, to the temple site, where he was accorded welcome of a foreign dignitary at which the French flag was flown, precluded Thailand to contest the__________________67 Ibid. at p. 22.68 (1954) ICJ Rep., p. 47, at p. 53.69 (19 74) ICJ Rep., p. 253 (Australia v. France); (1974) ICJ Rep., p. 457 (New Zealand v. France).70 (1963) ICJ Rep., p. 15, at pp. 33-34.

71 PCIJ Rep., Series A, No. 2, p. 28 (1924).72 PCIJ Rep., Series A/B, No. 53, p. 69 (1933).73 (1962) ICJ Rep., p. 6.


sovereignty of Cambodia over the Temple area. However, the doctrine of estoppel was held to be inapplicable in Serbian and Brazilian Loans case,74 as there was no denial of obligation by the parties to pay the French bond holders, only the payment offered by them was less than what was due to the bond holders.The doctrine of estoppel, though widely used by the Court, has not been defined with any degree of precision. Whereas in the above mentioned eases, it was applied when a State has “slept over its rights”, estoppel may also arise out of some positive activity by a State which suggests that it accepts or acknowledges certain situation, and in consequence of that, it has detrimentally changed its position.75 The doctrine has become a part of the general requirement that States should act in goodfaith.The concept of “equity” similarly finds a place of pride in the jurisprudence of international law as developed by the Court. The duty of States to act in good faith is a part of the wider concept of equity. In the Diversion of Water from the Meuse case,76 Judge Hudson in his separate opinion stated that “what are widely known as principles of equity have long been considered to constitute a part of international law, and as such they have often been applied by international tribunals”. In this case, the Netherlands claimed that Belgium had violated its treaty obligation by building canals that altered the flow of water in the River Meuse. Judge Hudson opined that the Netherlands had lost its right to object to Belgium action because it acted similarly earlier. It is an important principle of equity that where two parties have assumed similar obligation, the continuing non-performance by one precludes it to contest the other’s non-performance. Further, he observed that the rule of “equity” as part of Art. 38(1) (c) is part of law, i.e., a legal principle, whose scope is in no way restricted by Art. 38(2), conferring special power upon the court “to decide a case ex aequo et bono, if the parties agree thereto”, which may not be confined to the strict rules of international law.77 Accordingly, a distinction is possible between a decision based on rule of equity and the one decided on the basis of ex aequo et bono.78 Equity can auger, but does not alter the application of a rule of international law.In recent years, the International Court of Justice has increasingly referred to “equity” in its pronouncements. In the Gulf of Maine case, it stated that the concepts of acquiescence and estoppel in international law “follow from the fundamental principles of goodfaith and equity”.79 In the North Sea Continental Shelf cases, the Court rejected the Netherlands and Denmark’s contention for the application of the “equidistance” rule as the only appropriate principle for the delimitation of their continental shelf with the Federal Republic of Germany. In the Court’s view that would lead to unreasonable consequences because of the peculiar coastline of Germany which is concave in nature. It emphasised on the rule of equity to achieve an “equitable result”, which the court followed with great conviction in subsequent maritime boundary cases, such__________________74 PCIJ Rep., Scries A. Nos. 20-21, pp. 38-39 (1929).75 Cf. North Sea Continental Shelf cases, op. cit. 21.76 PCIJ Rep., Series A/B, No. 70 (1937).77 Ibid. at pp. 76-77.78 Cf. North Sea Continental Shelf cases, op. cit. 21, at p. 48.

79 (1984) ICJ Rep., p. 246, at p. 305.


as in Tunisia v. Libya80 and Libya v. Malta.81 It was also followed in Guinea-Guinea Bissau Arbitration.82 In the Fisheries Jurisdiction case, to reach a decision, the Court relied on an “equitable solution derived from the applicable law”.83 The concept of ‘equity’ has also found its place in the United Nations documents and General Assembly resolutions, such as the resolution on the New International Economic Order,84 law-making treaties, for example, 1982 Law of the Sea Convention, particularly Arts. 59, 74 and 140 bring in this concept.85But the application of the principle of ‘equity’ is generally tinted with an element of subjectivity, which brings in uncertainty in its emergence or crystallisation as a new rule of international law. Its claim to the title of “general principle”, thus, is not always accepted. In South-West Africa cases (II Phase),86 the maxim of actio popularis was not accepted as a general principle. Similarly, in Texaco case87 the French law of administrative contracts was not found of wider acceptance.The Court is not always confined to the drawing of analogies from municipal law under the rubric of “general principles”, but sometime resorts to the rules and institutions, which are entirely the creation of municipal law. In the Barcelona Traction Power and Light Co. case,88 the Court had to decide whether Belgium could exercise its right of diplomatic protection in respect of its nationals, who were shareholders in the company, registered in Canada and operating in Spain, against Spain who declared it bankrupt and took certain other measures injurious to the company. The Court, applying the municipal law doctrine of “corporate personally”, held that the alleged wrongful acts were committed against the company and though shareholders suffered indirectly, Belgium had no cause of action. The corporate personality is distinct from shareholders under municipal law and separation of property rights was an important manifestation of this corporate personality. The court observed:In this Held international law is called upon to recognise institutions of municipal law that have an important and extensive role in the international field ... All it means is that international law has had to recognise the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction. This, in turn, requires that, whenever legal issues arise concerning the right of States with regard to the treatment of companies and shareholders, as to which international law has not established its own rules, it has to refer to the relevant rules of municipal law ... If the Court were to decide the case in disregard of the relevant institutions of municipal law it would ... invite serious legal difficulties ... for there are no corresponding institutions of__________________80 (1982) ICJ Rep., p. 18, at p. 59.81 (1985) ICJ Rep., p. 13, at p. 57. See also the Land, Island and Maritime Boundary Dispute case (El Salvador v. Honduras) (1992) ICJ Rep., p. 37682 77 ILR 635 (1985), Guinea Bissau and Sierra Leone were on cither sides of Guinea.83 See, op. cit. 12, at p. 33.84 1974 Charter on the Economic Rights and Duties in its Preamble states, “mindful of the need to establish a just and equitable economic and social order”, GA Res. 3281 (XXIX) of Dec. 12, 1974.

85 “Equity” has been invoked here as a part of “distributive justice”, consonant to the needs of developing countries.86 (1966) ICJ Rep., p. 6.87 Texaco v. Libya, 17 ILR, p. 389 (1977); 17 ILM 1 (1979).88 (1970) ICJ Rep., p. 3.


international law to which the Court could resort ... the Court has ... not only to take cognizance of municipal law but also to refer to it.89Broadly speaking, the general principles, which have been recognised in the jurisprudence of the Court as reflected in its judgments are: goodfaith, international responsibility of State, prescription, right of the Court to determine its own jurisdiction, res judicata, estoppel, substitution, and the rule of natural justice, i.e., both parties must be heard before the judgment is rendered. The main areas where these principles have pertained are the general principles of legal liability, administration of international justice, procedure, evidence or other aspects of judicial systems, and the Court is reluctant to import substantive doctrines or institutions of national law into international law. The resort to “general principles” is, thus, not new. On the other hand, frequent resort by the Court to this source indicates the long established practice of international tribunals, which has prompted a suggestion that they should be codified.90 But the opinion has also been expressed that Art. 38(1) (c) of the Statute relating to “general principles” has sounded “death- knell” to positivism,91 which, however, may not be absolutely true in close analysis because by being common principles in the national legal systems, they reflect a consensus of nations. However, there is no denial of the fact that this provision has introduced dynamic element in international jurisprudence and ensured the creative function of the international tribunal.

V. JUDICIAL DECISIONSArticle 38(1) (d) of the Statute of the Court puts “judicial decisions ... as subsidiary means for the determination of rules of law”, which invariably refers to international judicial decisions, State judicial decisions and decisions of international arbitral tribunals. They are called “subsidiary means” because in the normal conduct of international relations, it is the State practice which creates the rules and which is the primary means of determination of those rules. Although in theory, the decisions do not constitute the formal source of law, but in practice, they play a larger part in the development of international law, particularly when the State practice is either ambiguous, non-existent, sparse or contradictory, the Court gets involved in determining the rules of law to decide a legal issue and in the process creates new rules. In such a situation, the Court applies existing rules either directly or by analogy. More extensive is the analogy drawn, the more creative the Court’s role becomes, and in spite of the view that Judges do not make law but only apply the existing principles, the decisions reached by the Court are of immense value and in those cases where there is no pre-existing rule, they will be a direct source of law.

A. Decisions of International TribunalsThe only international judicial tribunal existing at present is the International Court of Justice (ICJ) which succeeded, in 1946, the Permanent Court of International Justice (PCIJ), created in 1921. The Statute of the PCIJ was adopted by the ICJ. The PCIJ and ICJ together have rendered__________________89 Ibid. pp. 33-34 (paras. 38 and 50).

90 B. Cheng, op. cit. 57 in IV CLP 53 (1951).91 J.G. Starke, op.cit. 7, p. 35.


many valuable decisions and advisory opinions which have enriched the international jurisprudence.Article 38(1) (d) of the Statute is subject to the provision of Art. 59 of the Statute which provides that the “decision of the Court has no binding force except between the parties and in respect of that particular case”. This means that the judgments of the Court have no precedential value. It also relegates the judicial decisions to the status of a “subsidiary means” by imposing a limitation in the adoption of judgments, but in practice, the decisions of the Court have attained the highest authority, even though they are only persuasive in nature. They play a formidable part in the development of international law. This is quite evident from the pleadings presented before the Court by State parties to a case where the decisions of the Court are frequently referred. In the Aerial Incidents case92 which arose out of the shooting down of an Israeli civil aircraft by a Bulgarian fighter aircraft when the aircraft strayed into the Bulgarian air space, Israel relied heavily, in support of its claim, on the authority mainly drawn from previous decisions of the PCIJ and ICJ in its written pleadings submitted before the Court. The Court, however, did not decide the case for want of its jurisdiction.The Court has equally been making use of its prior decisions while deciding a case notwithstanding Art. 59. It has quite often made use of those decisions either by following them or “distinguishing” them. In Peace Treaties case,93 the Court was asked to give advisory opinion in a dispute over the issue of the constitution of arbitral tribunals to look into the alleged violations of human rights under the Peace Treaties with Bulgaria, Hungary and Rumania within the terms of those treaties. The three States did not cooperate in constituting the arbitral tribunals, nor did they participate in the proceedings of the Court, by arguing that the Court should adhere to the ruling of the PCIJ in Eastern Carelia case94 as they have not consented to the Court’s jurisdiction. The Court, while upholding the principle laid down in Eastern Carelia case that a State could not be forced to submit its disputes to arbitration or judicial settlement without its consent, rejected the objection of these States, by distinguishing the two cases. Whereas the Eastern Carelia case was related to the investigation of the merits of a dispute, the case before the Court was solely concerned with the procedure for settlement, i.e., the formation of the tribunals, and not with the substance of the dispute.In spite of its protestations that it is not a legislative organ, and its duty is “to apply the law as it finds it, not to make it”,95 the Court’s judgments have sometimes resulted in the formulation of altogether the new rules of international law. In the Anglo-Norwegian Fisheries case,96 the Court created a new rule (the straight baseline method) for the delimitation of maritime boundaries in those parts of the world where unusual economic and geographical factors are present. In the Reparation case91 the Court created the legal personality for international organisations by inferring from the provisions of the United Nations Charter that to carry out its functions effectively assigned to the United Nations under its Charter, it must be endowed__________________92 (1959) CJ Rep., p. 127.93 (1950) ICJ Rep., p. 65.94 Op. cit. 65.

95 South-West Africa case (II Phase), op.cit. 86, at p. 48.96 See op.cit. 15.97 See op.cit. 30.


with a personality to sue and be sued under the international law. Similarly, in the Reservations cave,98 the Court, in derogation of the rule of consensus came out clearly with the right of a State to make reservations to a multilateral treaty, if it is in consonance with the object and purpose of the treaty. About the law-creating role of the Court, Judge Azevedo aptly remarked in the Asylum case99 that “the decision in a particular case has deep repercussions .. because views which have been confirmed by that decision acquire quasi-legislative value”, in spite of the legal principle that the decision is binding only between the parties to a particular ease.It is not only the decisions of the Court which have great evidentiary and persuasive value, but the opinions of the dissenting judges also provide direction to the future growth of international law, which manifest in State practice, and indicate the stage of development of an emerging rule of international law.100 Further, the International Court’s decisions and opinions have generally great persuasive value for other international tribunals and courts, but it mainly depends upon the “intrinsic merits” of these judgments.101The role of the decisions of the arbitral tribunals is generally not considered very important in judicial law-making. It is mainly due to the fundamental difference existing between arbitral and judicial decisions, as arbitrators mostly act as mediators or conciliators rather than as judges. They act more as amiable compositeurs and are not strictly bound by the legal rules or established procedure. However, this is not true in every case. By and large, they are guided by legal principles and rules rather than the exigencies of compromise. Further, acting in this manner, they do not act differently than the judges of the Court when they are authorised to decide according to ex aequo et bono under Art. 38(2). The main difference between an arbitral award and the judicial decision, however, lies in the freedom the parties enjoy in the composition of the tribunal and the choice of law in the ease of arbitration.In spite of the doubts expressed about the significance of the judgments of the arbitral tribunals, the important awards have been rendered by the Permanent Court of Arbitration and many other Mixed Claims Tribunals which together added to or clarified the law on territorial sovereignty, State jurisdiction, State responsibility, neutrality and State servitudes. Some of the important awards are Alabama Claims Arbitration (1872), Behring Sea Fisheries Arbitration (1893), North Atlantic Fisheries case (1910), Savarkar case (1911), etc.

B. Decisions of Municipal TribunalsThe decisions of municipal courts are relevant to international law in two ways. In the first place, the decisions manifest an insight into the attitude of various countries towards a particular rule of international law, and how it is applied and interpreted by municipal courts. These decisions may have the strong evidentiary value before an international tribunal, relating to the existence and scope of a particular rule, which helps in the development of a new rule. Further, when__________________98 See op.cit. 34.99 Sec op.cit. 6.

100 Cf. S.S. Lotus case, op.cit. 39, the dissenting opinion expressed in that case on the State’s jurisdiction in criminal matters was upheld in the 1982 Law of the Sea Convention, Art. 97; also Art. 11 of the 1958 Geneva Convention on the Territorial Sea.101 See Schwarzenberger, op. cit. 1, pp. 30 et seq.


the existing authorities are few, or evidence in favour of a particular rule is uncertain or ambiguous, the role of municipal decisions becomes more significant. But in the performance of this function, the court’s “standing” and the “intrinsic merits” of the case are very vital. Generally, decisions rendered by the United States Supreme Court and of British courts on matters of international law have considerable weight. In Paquette Habana102 where two small fishing boats were captured by the blocking forces of the United States during the American-Spanish war, the United States Supreme Court laid down the rule relating to the exemption of fishing boats from the application of the laws of war, i.e., they are absolved from being treated as prize of the war. In the Scotia,13 the Court’s pronouncement helped in clarifying the nature of customary rules relating to the prevention of collisions at sea. Similarly, the judgments of the British Prize courts, particularly those rendered by Lord Stowell, helped in the formulation of the laws of war, specifically relating to blockade.In the second place, these decisions of municipal courts become relevant in the emergence of a new customary rule. The concurrence of judicial decisions in fairly a large number of countries is indicative of the uniformity in practice, which may lead to the formulation of a new customary rule. In the S.S. Lotus case, the Court, while rejecting the French contention that on the question of criminal jurisdiction in cases of collision on the high seas, only the flag State is competent to exercise jurisdiction, referred to a number of municipal decisions and found no uniformity on the matter. It observed that it was “hardly possible to see in it an indication of the existence of the restrictive rule of international law which alone could serve as a basis for the contention of the French Government”.104 Thus, the judicial decisions are important in influencing the State practice and in the determination of new rules. Their role thus cannot be described merely as subsidiary but of great significance in the absence of any centralised legislative body under international law.

VI. JURISTIC WORK ON INTERNATIONAL LAWIn Art. 38 of the Court's Statute, “the teachings of the most highly qualified publicists” are assigned the same “subsidiary” status as judicial decisions. However, the juristic work is an important source of international law. Juristic writings had contributed significantly in the formative period of international law. They were largely responsible for establishing the basic idea about international law when it was little known. Their work was based on deduction drawn mainly from natural law principles, analogies from Roman law, and generalisation of State practice that they could find. The writings of Gentilis, Pufendorf, Grotius, Bynkershoek, Van Martens and Vattel, among the few, had solitary influence in the development of international law, and their works are occasionally referred before the international tribunals even today. But the creative role and influence exerted by publicists in the formative years of international law has declined in the present time, with the judicial bodies, like the ICJ. taking over an active role in pronouncing the law. Their main task is to unveil the law from State practice. The International Court, apart__________________

102 (1900) 17-5 US 677; the rule of immunity of foreign public ships from the jurisdiction of the territorial State was laid down in Schooner Exchange (1812).103 See op. cit. 36.104 See op. cit. 39, at p. 29.


from paying lip-service to “the writing of publicists” or “all or nearly all writers” has otherwise refrained from making specific mention of these writings. The Court normally refrains from disclosing in its judgments the secondary means of determining the relevant rules of international law, though in the pleadings and the separate opinions of the judges, sometimes their work is regarded.105 However, these writings suffer from subjective element, which affect their value as a source of international law. The writers, while drawing analogies from existing rules and by deducing from the generality of State practice are guided by what according to them is the rule of international law in a particular field. Quite often their views are influenced by their political considerations and displays national bias.106Even though they are not the law, the juristic writings, nevertheless, are of immense value. They are useful evidence of the existing rules of international law. Since international law is largely unwritten, being primarily dependent upon the uncertainties and vicissitudes of State practice, the existence of a particular rule is more important than its source. The jurists, after sifting through the usages and practices, deduce the customary rules and provide evidence of law. In this process, they also assist the transition from usage to custom and thus influence its further development. On the evidentiary function of the juristic writings. Justice Gray of the United States Supreme Court remarked:107... where there is no treaty, no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilised nations, and as evidence of these, to the works of jurists and commentators ... Such works are resorted to by judicial tribunals, not for the speculation of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.In West Rand Central Gold Mining Co. v. R,108 it was stated that the “mere opinions of jurists, however, eminent or learned, are not in themselves sufficient... They [rules] must have received the express sanction of international agreement by their practical and frequent recognition in dealings between various nations....”However, in exceptional cases, the juristic work may become an independent “source” of law, when there is no customary or conventional law or a “general principle”, and there is no decided case or State practice. For example, in the Re Piracy Jure Gentium, the Privy Council relied upon the juristic work to decide the question whether actual robbery was an essential element to constitute the crime of piracy at international law, and ruled that robbery is not an essential element but frustrated attempt is equally piracy jure gentium.109 Further, if generally relied upon and no contrary opinion is propagated against it, the juristic work may emerge as a strong evidence of a rule over a period of time, by acquiring a prescriptive authority.__________________105 See separate opinions of Judge Alfaro and Fitzmaurice in the Temple of Preah Vihear case (1962), ICJ Rep., p. 6, at pp. 39 and 52 respectively; see also Manfred Lachs (Judge), Teachings and teaching of international law, 3 Recueil des Cours 163-252 (1976).106 C. Parry, The Sources and Evidences of International Law (Manchester University Press), 1965, p. 105.

107 See Paquette Hahana, op. cit. 102, at p. 700.108 See op. cit. 42.109 (1934) AC 586 at pp. 588-589; see J.G. Starke, op. cit. 7, p. 51.


VII. GENERAL ASSEMBLY RESOLUTIONS AND DECLARATIONSArticle 38 of the Court’s Statute does not list the determinations or decisions of the international organisations among its sources, though they are increasingly becoming important in the development of international law. The General Assembly has adopted numerous resolutions since its inception on areas as wide as from human rights to consumer’s rights,110 Though they are not legally binding per se, but can spell out, and to some extent, elaborate existing customary rules or contribute to the rapid formation of new ones. In this sense, they have great evidentiary value and proved to be very valuable when it comes to the interpretation of the provisions of the Charter or developing a new law for areas made accessible by modern science and technology, such as outer space or deep sea-bed.111 The resolutions dealing with the internal functioning of an organisation are generally binding on the States and the organisation with full legal effect. The resolution concerning the limits of the jurisdiction of the organisation has the law creating effect for member States.The international judicial tribunals have accorded considerable weight to these resolutions as evidence of State practice underlying a customary rule, in the Nicaragua case,112 the International Court of Justice relied heavily on Resolution 2625 (XXV) of October 24, 1970, on Friendly Relations and Cooperation among States for the law on the use of force and intervention under international law. In the Western Sahara case,113 and the Namibia case,114 the Court took the help of General Assembly Resolutions 1514 (XV) and 1541 (XV) of I960, on self-determination and rights of people of non-self-governing territories, and Resolution 2625 (XXV). A significant number of General Assembly resolutions have matured into conventions on the same subject-matter, such as the 1963 Declaration on the Elimination of All Forms of Racial Discrimination led to the adoption of the 1965 Convention on the Elimination of All Forms of Racial Discrimination; the 1963 Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space paved the way for 1967 Outer Space Treaty. Some of these resolutions in the form of Declarations are relevant in the authentic interpretation of the United Nations Charter or of existing customary rules, such as the 1970 Declaration on Friendly Relations among States (Resolution 2625 (XXV)).__________________110 On UNGA resolutions, see, O. Y. Asamoah, The Legal Significance of Declarations of the General Assembly of the United Nations (Martinus Nijhoff, the Hague) 1966; J. Castaneda, Legal Effects of United Nations Resolutions (Columbia University Press, New York) 1969; L MacGibbon. International Law: Teachings and Practice (B. Cheng (Ed.), Stevens & Sons Ltd., London, 1982), Ch. 2; B. Sloan, United Nations General Assembly Resolutions in Our Changing World (Transnational Publishers, New York) 1991; id.. General Assembly resolutions revisited, 58 BYbiL 39 (1987); G.I. Tunkin, Theory' of International Law (Harvard University Press, Cambridge), 1974, p. 165.111 Louis B. Sohn in The Present Status of International Law and Other Essays (in M. Bos (Ed.) Kluwer, Netherlands), 1973, p. 39, at pp. 52-53.112 Case Concerning Military and Paramilitary Activities in and Against Nicaragua, op. cit. 23, 188.

113 (1975) ICJ Rep., p. 12.114 See op. cit. 33.


These resolutions, which expressly or impliedly state rules of international law in abstract terms,115 or apply such rules to particular cases,116 have now become an important feature of international relations, though their legal status is very controversial. According to some jurists they have no legal importance, others are of the view that under certain special circumstances they may have legal implications and some of them may even have binding effects. This uncertainty or controversy stems mainly from their non-inclusion in Art. 38 of the Statute of the Court.Nonetheless, these resolutions which are collective pronouncements of States, manifest the strong evidence of State practice and help in the formulation of new rules of international law. But the evidentiary or precedential value of these resolutions depends to a great extent on the language and the pattern of voting in their adoption and the statements made by the member nations at the time of their adoption and subsequently. If the resolution is framed in precise legal language, it will carry a considerable weight. Resolutions adopted unanimously or near unanimously or by consensus (not accompanied by reservations) would lead to the emergence of new customary rules. They may be in the nature of quasi-judicial determination. But, in this process, the affirmative votes of the States whose support for the effective implementation may be necessary, are vital; their negative vote would tantamount the rejection of the rule. However, abstention from voting, in the United Nations practice, does not amount to negative vote, but as acquiescence.117 But abstention by important nations may affect its enforceability.Repetition or recitation of a resolution in subsequent resolution adds further weight and helps in the formation of the new rule. Repetition demonstrates the continuity, consistency and uniformity of the States’ conduct and practice in conformity with the rules stated therein. This may lead to formulation of the “'instant customary international law”.118 In the South West Africa cases, Judge Jessup found the resolutions of the General Assembly devoid of true legislative character, but if on a particular subject there is recurrence and repetition of similar resolutions (as on apartheid), then they indicate the contemporary international standard and the Court is bound to take them into account in delivering its judgment.119 The subsequent conduct of States, after the adoption of the resolution, is similarly important in the formulation of a new' rule. Subsequent conduct provides it with the requisite evidentiary value to mould it into a customary rule, by giving it the requisite opinio juris for the creation of the rule. This opinio juris will be evidenced in the statements made by States prior or after the adoption of the resolution or later as an explanation. The State practice is particularly relevant where__________________115 For example, the 1960 Declaration on the Granting of Independence to Colonial Territories and Peoples; the 1962 Resolution on Permanent Sovereignty over Natural Resources; the 1963 Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space; 1970 Declaration of Principles Governing the Sea-Bed; 1970 Declaration on the Principles of Friendly Relations and Cooperation among States; and 1974 Declarations on the Establishment of the New International Economic Order, and the Charter on the Economic Rights and Duties of States.116 Viz., General Assembly resolution on the USSR intervention in Afghanistan, or non-recognition of South African homelands.

117 D.W. Bowett, United Nations Forces (Fredrick A. Praeger. New York), 1964, pp. 31-32; W.M. Reisman, The legal effect of vetoed resolutions, 74 AJIL 904-907 (1980).118 The term is coined by B. Cheng, 5 1 JIL 23 (1965).119 (1966) ICJ Rep., p. 34, at p. 292.


the resolutions are in the nature of de lege ferenda. For a resolution in the nature of lex lata, the State practice enhances its normative effect. The gestation period for the emergence of a customary rule is less in case of resolution than in case of traditional process of custom formation.The International Court of Justice has also accepted their importance in the generation of international law rules. In the South West Africa cases,120 Judge Tanaka, in his dissenting opinion, remarked:Of course, we cannot admit that individual resolutions, declarations, judgments, decisions, etc. have binding force upon the members of the organisation. What is required for customary international law is the repetition of the same practice; accordingly, in this case resolutions, declarations, etc....This collective, cumulative and organic process of custom generation can be characterised as the middle way between legislation by convention and the traditional process of custom making, and can be seen to have an important role from the viewpoint of the development of international law.121In the Reservations case, Judge Alvarez remarked that the resolutions of the General Assembly do not have a binding character, which they may acquire if they receive the support of public opinion.122Prima facie such resolutions are mere recommendations to the members of the United Nations. Sometimes, they are declaratory of international law, and if adopted by all members, they are evidence of customary international law on a particular subject-matter. Some resolutions are of law-making character and serve as a conduit in the development of new principles of international law. They are sometimes termed as “soft law” since they cannot be classified as full-fledged rules of international law like custom, treaties or general principles of law, but they fulfil to a great extent the criteria to be termed as law.123Strictly speaking, resolutions of the General Assembly are not binding as such. In 1974, when the Sixth Committee of the General Assembly reviewed the work of the International Court of Justice, the role of General Assembly resolutions was considered. There was a general agreement against their being seen as a new source of international law, in addition to those listed in Art. 38 of the Statute of the Court, but they were generally accepted as evidence of custom.124 However, with tremendous horizontal and vertical expansion of international law, and keeping in view the present-day status of international law, it is difficult to deny the effective legislative force behind these resolutions, which manifest the consensus of nations on particular rules.__________________120 Ibid.121 Also cited by R. Higgins, International Law: Teachings and Practice, B. Cheng (Ed.) 1982, p.27, at pp. 28-29.122 See op.cit. 34, at p. 59.123 Van Hoof, Rethinking the Sources of International Law: (Kluwer Publishing, Deventer) 1983, pp. 187- 189.124 Harris, op. cit. 2, pp. 42-43.

Page 54

CHAPTER 3

International Law and Municipal Law

I. INTRODUCTORYVery often, municipal courts have to face situations calling for the application of the rules of international law, both where such rules are and where they are not at variance with municipal law. Similarly, international tribunals may be called upon to determine the precise status and effect of a rule of municipal law, if the party to the case has relied upon the rule, or the case has some connotations of municipal law. There may also be situations which require theoretical analysis and determination of the limits between international law and municipal law. In those cases in which there is a conflict between municipal law and international law, the question of primacy, whether international law takes precedence over municipal law or vice-versa, becomes important for the decision. Beside this, the question of primacy before municipal courts is determined mainly by the constitutional law of the State. But the pertinent questions in this regard are: Is the international rule directly applicable and effective under domestic law? Does a treaty prevail over conflicting domestic law? International law does not prescribe any rule on how it should be applied or enforced at the national level. National constitutions can choose how to give effect to rules of international law or treaties. Nevertheless, this makes it imperative for an international lawyer to know the jural relationship between municipal law and international law.

II. THEORIES ON RELATIONSHIPThere are two principal theories put forward by scholars on the relationship between international law and municipal law: monism and dualism. According to monism, international law and municipal law are the components of one system of law in general. On the other hand, according to dualism, they represent two entirely distinct and self-contained legal systems to the extent to which the rules of one are not expressly received in the other. These two theories also explain how the international law will be received or made applicable under a municipal legal system of a State.

A. MonismThe theory of monism regards that both international law and municipal law have a common underlying legal basis and it derives its origin from the law of nature which binds equally the States and individuals. Thus, they are intrinsically the same and form part of that science of law which binds all human beings alike. Accordingly, both State law and international law

Page 55 INTERNATIONAL LAW AND MUNICIPAL LAW

ultimately regulate the conduct of individuals, one immediately and the other mediately, though in the sphere of international law, the consequences of such conduct are attributed to the State. They regard law as a single unified field of knowledge, consisting of rules, whether binding on States, individuals, or on entities other than States and the decisive point is whether or not international law is true law. Once it is accepted as true law, then there is no intrinsic difference between the two.The chief protagonist of this theory is Kelsen. Other supporters of this theory are Lauterpacht, Fitzmaurice and Starke.1 According to them, since the behaviour of States is reducible to the behaviour of individuals representing the State, the alleged difference in subject matter between the two systems cannot be considered a difference. Consequently, there is no dichotomy between international law and municipal law and they operate without any conflict in their assigned spheres of action. Therefore, the question of superiority or primacy of one system over the other does not arise. The fact that national organs do not act according to the rules of international law is a manifestation of its weakness, but does not invalidate the theory, since the State will incur international responsibility for the breach of international legal rules.

B. DualismThe theory of dualism grew out of nineteenth century positivist philosophy which emphasised on the “will” of the State as the sole criterion for the creation of rules of international law. Under the dualist theory, international law and municipal law operate on different levels. While international law regulates mainly the relations and obligations between sovereign and independent States, the municipal law operates and regulates the relations and obligations of individuals within a State. The chief exponents of this theory are Tripel and Anzilotti.2According to the supporters of this theory, difference between international law and municipal law lies in their subject-matter, sources and the juridical origin. Whereas subjects of international law are States exclusively, those of municipal law are individuals; the formal sources of international law are mainly customary and treaty rules, and the municipal law consists for the most part legislative enactments and judge-made law. The juridical basis of international law is the common will (Gemein wille) of States, operating between States solely and that of municipal law, “State will”, i.e., will of the State itself, binds the individuals within its jurisdiction. The non-positivists support this theory primarily because of the empirical differences in the formal sources of the two systems. However, doubts have been expressed against this approach. The subjects of modem international law are not only States but international organisations, individuals and other non-State entities are also bound by it. Further, to attribute “will” to State and to say that the “common will” is the source of international law is totally misleading and fails to provide the answer as to under what circumstances an expression of the “common will” can become decisive. “Common will” of States is nothing but the w ill of the people who compose it. Also, there can be certain fundamental principles of international law and considerations__________________1 J.G. Starke, 17 BybIL, 66 (1936).

2 Fitzmaurice considers that Anzilotti has been wrongly labelled as a dualist. See G. Fitzmaurice, The general principles of international law considered from the standpoint of the rule of law, 92 Hague Recueil, 70-80 (1957-II).


which make the international law binding on States against their will. It also fails to explain the existence of general international law which is binding upon States; to attribute it with “tacit agreement” would be at variance with reality.Anzilotti tried to explain the differences between the two systems in terms of fundamental principles by which each system is conditioned. According to him, the fundamental principle of State law (i.e., municipal law) is that it should be obeyed, whereas the fundamental principle of international law is pacta sunt servanda, i.e., agreements between States are to be observed in good faith. Thus, both are entirely distinct systems though there may be certain cross references of each other. Although it cannot be denied that pacta sunt servanda is an important postulate of international law, but it is only a partial illustration of a much wider principle lying at the root of international law. It also does not explain the binding force of customary rules of international law to which the States have not given their consent.

C. Question of PrimacyBut where does the primacy lies - in international law or municipal law, in case the conflict arises between the two? Jurists have laboured themselves in trying to find out as to which of the two-international law or municipal law - should have primacy. Since dualists attach significance to the sovereignty of the ‘State will’, they ascribe primacy to municipal law over international law. The basis of their view is that the State is independent; it enjoys the widest liberties and exercises almost complete sovereignty. On the other hand, monists are divided on this issue. Some of them ascribe primacy to international law. But Kelsen, the chief exponent of the theory, maintains that, in accordance with his “hierarchical” or Grundnorm doctrine, each rule is conditioned by a superior rule for its validity and thus, in turn, it derives validity from the fundamental postulate, i.e., the Grundnorm which might belong either to international law or State law. But without taking his thesis to its logical conclusion, he has ascribed primacy to State law because, in his opinion, the choice between them could not be made in a strictly scientific way.Kelsen’s views on the relationship between international law and municipal law were coloured by his philosophical approach towards the law in general and his theory of law (theory of pure law) in particular. But ascribing primacy to State law has its own set of problems. It would tantamount to according primacy to legal systems of almost all the independent nations of the world with its attendant confusion and anarchy. This proposition also fails in the final analysis on other grounds as well. First, if it is accepted that international law derives its validity from State law, it would necessarily mean that with the disappearance of State law (constitution), the rules of international law should also disappear. But State practice has invariably established that international law operates independent of internal changes or revolution in a State, or repeal or abolition of its constitution. On the contrary, international law exerts a definite check upon municipal law and holds the State responsible internationally for its delinquent behaviour towards other States.3 Second, when a new State is admitted to the family of nations, the international law binds it without its consent. Furthermore, State practice has established the duty of each

__________________3 Edwin Borchard, “The relation between international law and municipal law”, Virginia Law Review, Vol. 27, p. 137 (1940).


State to adopt not only its laws, but also its constitution, in accordance with international law, and most of the States have reiterated this position in their constitutions by accepting the supremacy of international law.According to Starke, a monist, primacy lies with international law. In his view, the State sovereignty, the basic logic for according primacy to State law, represents no more than the competence, however wide, which States enjoy within the limits of international law. He has drawn the analogy with a federal State. The individual member States of a federation may enjoy a wide measure of independence, but legal primacy nonetheless resides in the federal constitution. There is thus an international constitutional law which conditions both State law and international law just like the constitutional instrument in a federal State conditions both provincial law and federal statutes.4 But this view also begs certain questions: Has the international law attained the maturity of a federal constitution? What are the contents of this constitution? What is the authority and procedure to determine the contents of such a constitution and resolve the disputes?In fact, the controversy between monism and dualism is more academic than real, as there is no indication that cither theory has had a significant impact in the development at the national levels on questions of international law. They merely indicate general approach towards the implementation of international law at the national level. In fact, international law and municipal law are not comparable since both have their own sphere of operation and neither can be termed as subordinate to the other. The supremacy of international law in the international sphere is unchallenged in the same way as of municipal law in the State matters. They are mutually independent and normally do not come into conflict with each other. But, at times, a conflict of obligation may occur, or the State is not able to act on the domestic plane in the manner required by international law. In such a situation, whether the municipal court would apply the international law by overriding the municipal law depends on the provisions of the municipal law itself The supremacy of international law in municipal sphere simply requires that if a State is in breach of its international obligations for which it is internationally responsible, it cannot shelter itself behind domestic law by way of absolution.5 International law simply does not purport to govern the contents of national law in the national sphere.

III. THEORIES ON THE APPLICATION OF INTERNATIONAL LAW WITHIN MUNICIPAL LAWGerminating from the above two theories on the jural relationship between international law and municipal law and on the question whether international law may be applied ex proprio vigore within the municipal sphere, two theories have been propounded: (I) “Transformation” or “Specific Adoption” Theory, and (2) Delegation Theory. These theories are, in fact, the manifestation of the theories of dualism and monism.__________________4 J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, pp. 75-76.5 See Arts. 27 and 46 of the Vienna Convention on the Law of Treaties, 1969; Fitzmaurice, op. cit.2, at p. 71; see also Art. 13 of the 1949 Draft Declaration on Rights

and Duties of States; the Alabama Claims Arbitration, J.B. Moore, International Arbitrations, Vol. 1 (Govt. Printing Press, USA), p. 653 (1872).


A. Transformation or Specific Adoption TheoryAccording to positivists, the municipal law is logically a complete system. The rules of international law cannot impinge upon State law unless they undergo the process of transformation and be specifically adopted by, or incorporated into the State law, there being no automatic application. To make a rule effective at the national level, each State will determine its own mechanism. The national legislature may ‘'transform’ it into a rule of national law, which will be applied by the courts as a rule of national or municipal law. It is argued that unless there is a ‘transformation’ of the treaty into municipal law (i.e., legislation for implementing the treaty), it cannot be enforced in the municipal field. Positivists perceive treaties as promises and municipal statutes as commands. To make treaties binding municipally, their transformation into statute is formally and substantively necessary.But the theory has been criticized by monists on the ground that it presupposes the consensual character of international law in contrast to the non-consensual nature of municipal law. The distinction between treaties and statutes is merely of form and procedure, but the real object of both is the same, i.e., to stipulate certain determinate legal consequences for certain situations and in this sense treaties are commands in the same way as are statutes. Hence, it is not correct to say that every treaty needs transformation to be binding internally.

B. Delegation TheoryThe critics of the transformation theory, who favour monism, maintain that there is no need for international obligations to be transformed into rules of national law, and in case of any apparent conflict between the two, the international rule prevails. The application of rules of international law to the municipal sphere is a continuation of one single process which starts with the creation and acceptance of international law rule by the State. The constitutional rules of international law delegate to each State constitution the right to determine the procedure and manner to make treaties effective at the municipal level. The constitutional requirements of the State law are merely a part of the unitary process of creating rules of law. In this respect, State enjoys complete sovereignty and widest liberty of action and this process docs not impinge upon the sovereignty of the State. The fact that national organs do not behave according to such rules indicates the weakness of international law, but docs not invalidate the theory, since the State will incur international responsibility where it permits violations of international legal rules to occur.However, there is no indication that either theory is perfect to encompass all the aspects of doctrinal controversy surrounding the relationship between international law and municipal law or has had a significant input on the national laws. Except as a shorthand indication of the general approach of a particular State on the implementation or application of international rules, these theories do not throw any light on the relationship between international law and the municipal law. Practice of international tribunals and municipal courts suggests that it is a mixture of international law supremacy, municipal law supremacy and coordination of legal systems that exist.6 It is not correct to compartmentalise States into ‘monist’ or ‘dualist’ groups,

__________________6 Edward Collins (Ed.), International Law in a Changing World (Random House, New York), 1970, p. 45; see also, S.K. Kapoor, International Law, 8th ed. (Central Book Agency. Allahabad), 1990, p. 112.


since there are as many ways of giving effect to international law as there are national legal systems. The constitution of a nation is the starting point that how the rules of international law will be applied at the domestic level. Hence, the practice varies among nations. Nevertheless, to get an exact view, each situation must be analysed by itself to determine whether there will be primacy of international law or that of municipal law and for that purpose, a consideration of the practice of the international tribunals and of State courts becomes vital.

IV. MUNICIPAL LAW BEFORE INTERNATIONAL TRIBUNALSWhenever a dispute comes before an international tribunal concerning the issue whether a State is in breach of international law, it is normally expected that preference would be given to the rules of international law over the municipal laws of the States involved in the litigation. A State cannot give the municipal law as an excuse for its failure to observe its international obligations. Article 13 of the Draft Declaration on Rights and Duties of States lays down: ‘"Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution, or its laws as an excuse for failure to perform this duty”.7 Arts. 27 and 46 of the 1969 Vienna Convention on Law of Treaties reaffirm this rule that a State cannot invoke its municipal law for non-observance of treaty obligations.8There is ample judicial and arbitral authority for the rule that a State cannot shelter behind its municipal law to avoid its international obligations. The Alabama Claims Arbitration (United State v. Great Britain)9 of 1872 is a well-known authority on this matter. During the American civil war, a number of ships were built in England for private buyers and it was well known that they were to be used as warships to attack the federal maritime trade of the United States. These raiders, of which Alabama was the most famous, did considerable damage to American shipping for which the United States brought a claim for compensation before the Arbitral Tribunal alleging that Great Britain had violated its obligations as a neutral State by allowing the construction and sailing to occur within its jurisdiction for which it is liable under the so called “Three Rules of Washington” that set out the duties for neutrals and were accepted by both the parties. In its defence, Britain contended that it was constrained by its constitutional law to interfere with the private construction concerned. The Tribunal rejected the British plea and upheld the supremacy of international law. It observed that “the Government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which it possessed”. In order to escape liability, “a neutral government must take care ... that its municipal law shall prohibit acts contravening neutrality”.10__________________7 II YhILC, 286 (1949).8 Art. 27 of the Vienna Convention: “Internal law and observance of treaties - A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.” Art. 46 states that a State cannot invoke the “violation of a provision of its internal law” as a ground to invalidate

its consent to a treaty, unless “that violation was manifest and concerned a rule of its internal law of fundamental importance.”9 J.B. Moore, op. cit. 5.10 Ibid., at p. 656; see also the Finnish Ships Arbitration, UN RIAA, Vol. 3, p. 1484.


It is only to be expected that a State which has contracted valid international obligations would make such modification in its legislation or enact a new legislation as may be necessary to carry out those obligations.11 A State quite often invokes municipal law provisions as an excuse not so much to avoid international obligations but to counteract its breach of duty complained by other States. International tribunals generally do not declare national laws invalid merely because these laws or the way in which they have been applied are inconsistent with international law. In the LaGrand case,12 the issue before the International Court of Justice was the violation of Art. 36 of the Vienna Convention on Consular Relations by the United States, which failed to give timely notification to two German nationals of their right to consular protection.13 Despite the Court’s provisional order asking the United States to “take all measures at its disposal” to stay LaGrand’s execution until the case had been decided,14 he was executed as scheduled. Later, arguing on the merits, Germany, inter alia, stated that the United States constitutional rule of ‘procedural default’ (under which a procedural failing which had not been raised in trial at the State level cannot be argued at the federal level) pleaded by the United States, violated its international obligation under Art. 36 of the Vienna Convention, which required the United States to give effect to the purposes for which the rights of notification and consular access are intended. The Court, in rejecting the United States contention that by pronouncing on the application of Art. 36, the Court was acting as a ‘court of appeal of national criminal proceedings’, observed that the rule of ‘procedural default’ in itself does not violate Art. 36 of the Vienna Convention.Occasionally, the tribunals come across cases which are either related to the interpretation of municipal law15 or based totally on the municipal law concept.16 The international tribunal in such cases may also take into account the rules of municipal law to decide a dispute between States on the basis of international law. In the Serbian Loans case17 and the Brazilian Loans case,18 the Permanent Court of International Justice observed that while its main function was__________________11 See the Case of Exchange of Greek and Turkish Populations, PCIJ Rep., Series B, No. 10, p. 20 (1925).12 Germany y. United States of America, (Merits) (2001) ICJ Rep., p. 466.13 Art. 36(1) provides that consular officers of the sending State shall be free to communicate with its nationals and to have access to them; the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner; and consular officers shall have the right to visit its national who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.14 LaGrand, (Provisional Measures), Order of 3 March 1999, (1999) ICJ Rep., p. 9.15 For example, Brazilian Loans case (France v. Brazil) PCIJ Rep., Series A, No. 21, pp. 124-125 (1929).16 For example, in Barcelona Traction Power and Light Co. case (Belgium v. Spain), (1970) ICJ Rep., p.3, reliance was placed on the municipal law concept of a company, i.e., that a company has a distinct personality from its shareholders, and in case of the

claim for loss suffered due to the international wrong done to the company, only the company can bring an action and not the State of nationality of the shareholders.17 Judgement No. 14, PCIJ Rep., Ser. A, No. 20 (1929).18 Op. cit. 15. The question in this case was one of interpretation of certain Brazilian Government loans, some bonds of which were held by French nationals. The loans were governed by Brazilian law. The Court ruled that it had jurisdiction under Art. 38 to decide such cases, related to the interpretation of municipal law rather than based on international law.


to decide disputes between States on the basis of international law, it also has the jurisdiction to determine the existence of any fact which, if established, would constitute a breach of an international obligation. This jurisdiction includes questions of municipal law. In such cases, the tribunal is obliged to obtain knowledge of the municipal law, including the constitutional provisions or other State legislation and the decisions of the State municipal courts, which will enable the tribunal to decide about the applicable rules and their precise limits in the given case. The Court, however, made clear that it was not entitled to undertake its own construction of national laws, with the danger of contradicting rulings of national tribunals.19 The international tribunals also quite often resort to municipal laws to ascertain whether a customary rule of international law has evolved by concurrent and cumulative State practice.20According primacy to international law in case of conflict between a State’s municipal law and its international obligations, does not necessarily amount to invalidation of municipal law rule, whose internal validity nevertheless remains intact though it may be in breach of international obligation. But the municipal rule, in breach of a State’s international obligations, does not impose a duty on other States to recognise the external effects of an act under that rule, which is not in conformity with international law.21

V. NTERNATIONAL LAW WITHIN MUNICIPAL SPHEREState practice regarding the implementation or application of the rules of international law in the context of monism and dualism, i.e., whether they are automatically operative or specific adoption is necessary, as well as the resolution of conflicts between international law and municipal law by State courts, i.e., to what extent the rules of international law are applied by them, would give an insight into the relationship between the two systems. However, to have a vivid account of the State practice, distinction has been made between customary and treaty rules of international law. For this, the State practice of six states, i.e., the United Kingdom, the United States, France, Germany, Russia and India, is discussed.

A. The United KingdomThe United Kingdom docs not have a written constitution, but the Parliament enjoys the supremacy in making or changing the law of the United Kingdom. The conclusion and termination of treaties, and the conduct of foreign affairs is the prerogative of the Crown, i.e., it is carried out by the government, which is accountable to the Parliament for the conduct of foreign affairs.__________________19 Ibid.20 Cf. S.S. Lotus case, PCIJ Rep., Series A, No. 10 (1927).21 Cf. the Nottebohm case (Liechtenstein v. Guatemala) (1955) ICJ Rep., p. 4. The Court upheld the right of Liechtenstein to grant nationality to Nottebohm, but this act of Liechtenstein, which was not according to the general requirements of international law. was not binding on Guatemala where Nottebohm had spent most of his li fe as opposed to Liechtenstein with whom he had most tenuous connections. Liechtenstein action was in contravention of the international requirement of “individual’s genuine connection with

the State”. The Court emphasized that the issue in the case was not dependent on the legal system of Liechtenstein or on the domestic validity of Nottebohm’s naturalization. The question was whether the grant of nationality by Liechtenstein produced international legal effects which must be recognized by Guatemala. Ibid., p. 23.


1. Customary international lawThe practice of British courts regarding the customary international law has undergone an evolution since the eighteenth century when Sir William Blackstone propounded the “Blackstonian” doctrine, generally known as the incorporation doctrine. According to him, the law of nations ... is here adopted in its full extent by the common law, and is held to be part of the law of the land”.22 The doctrine was applied by British courts in the eighteenth century23 and the subsequent decisions clarified the position that the courts would give effect to settled rules of international law as part of English law.24However, the latter part of the nineteenth century saw a departure from the doctrine of incorporation to the doctrine of transformation. In R v. Keyn (The Franconia's case),25 a German ship collided with a British vessel less than three miles from the English coast, thereby sinking the British vessel with the loss of one life. The German master of the Franconia was charged for manslaughter. The question before the court was whether the English Court had jurisdiction over such an incident occurring within the British territorial waters. In its judgement, the court did not follow the incorporation doctrine and held that English courts had no jurisdiction over crimes committed by foreigners within the maritime belt extending to three miles from the British coast, although such a right existed under customary international law. The rule was not applicable ex proprio vigore, but it was for the Parliament to legislate. This decision of the court was subsequently reversed by the Territorial Waters Jurisdiction Act, passed by the Parliament in 1878.There was a partial return of the incorporation doctrine in the West Rand Gold Mining Co. v. R,26 in which the court observed:It is quite true that whatever has received the common consent of civilised nations must have received the assent of our country ... and as such will be acknowledged and applied by our municipal tribunals. But the expression ... that the law of nations forms part of the law of England, ought not to be construed so as to include ... as to which there is no evidence that Great Britain has ever assented, and a fortiori if they are contrary to the principles of her laws as declared by her courts.27 (Italics added)In the Chung Chi Cheng v. The King28 the Privy Council carved important qualifications in incorporation doctrine. Lord Atkin observed:[s]o far ... the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our domestic law...__________________22 Commentaries, Book IV, Ch. 5, quoted in D.W. Greig, International Law, 2nd ed. (Butterworths, London), 1976, p. 55.23 Burnt v. Barbuit (1737) cases temp. Talbot 281; Triquet v. Bath (1764) 3 Burr. 1478, Lord Mensfield remarked that the “law of nations, in its full extent, was part of the law of England”; Heathfield v. Chilton (1767) 4 Burr. 2015.24 Emperor of Austria v. Day and Kissuth (1861) 2 Giff. 628.25 (1876) 2 Ex. D. 63.26 (1905 ) 2 KB 391.27 Ibid., at p. 407.28 (1939) AC 160.


On any judicial issue they seek to ascertain what the relevant rule is and having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.29 (Italics added)Under the current judicial practice on customary international law, the incorporation doctrine does not find a blanket application.30 In a more recent case of R. v. Jones (Margaret), once again the House of Lords reiterated that even if a crime is recognised in customary international law and will be assimilated into the domestic law, but that will not be automatically binding on the courts.31Once a rule has been generally accepted by the international community, it will be deemed to be part of the British law subject to the qualifications that:1. Such a rule is not inconsistent with any British statute whether the statute was earlier or later than the customary rule.322. If the highest court once determines the scope of such a rule, then it will be binding on all the courts in Britain even though a new rule has emerged in its place (doctrine of precedent or stare-decisis).However, the scope of the latter qualification, i.e., the doctrine of stare decisis, has been restricted by the later judicial decisions. In Trendtex Trading Corporations case, Shaw L.J., in the majority view observed: “What is immutable is the principle of English law that the law of nations (not what was the law of nations) must be applied in the courts of England. The rule of stare decisis operates to preclude a court from overriding a decision which binds it in regard to a particular rule of [international] law, it does not prevent a court from applying a rule which did not exist when the earlier decision was made if the new rule has had the effect in international law of extinguishing the old rule”.33 Lord Denning found the ‘incorporation’ doctrine as correct and stated that when the rules of customary international law change, English law also change and courts are justified in applying the modern rules of international law.34__________________29 Ibid., at pp. 167-168.30 In Thakrar v. Secretary of State for the Home Office (1974) QB 684 (C.A.), Lord Denning clearly followed the transformation approach, but adopted the incorporation approach in Trendtex Trading Corporation v. Central Bank of Nigeria (1977) QB 529 (C.A.). The doctrine of incorporation was also followed in J.H. Rayner (Mining Lane) Ltd. v. Department of Trade and Industry, (1990) 2 AC 418, at p. 500.31 [2007] lac 136 [HL], In Ex. v. Pinochet Ugarte (No. 3) [2003] 1 AC 147, the court held that although State torture had long been an international crime in the highest sense and therefore a crime universally in whatever territory it occurred, it was only with the passing of Sec. 134 of the Criminal Justice Act 1988 that the English criminal courts acquired jurisdiction over ‘international, that is to say, extra territorial torture.’32 In Mortensen v. Peters (1906) 8 E (J) 93, the Court of Judiciary of Scotland gave effect to Sea Fisheries Regulation (Scotland) Act, 1895, in contravention of the 10-mile limit of the territorial waters in bays and estuaries under the customary international law, where the Statute covered the distance of more than 70 miles in Moray Firth, and held the appellant, a Danish subject, liable for contravening the Statute by otter trawling in the area.

33 Trendtex Trading Corporation case, op. cit 30 at p. 578.34 This approach was reaffirmed in Maclaine Watson v. Department of Trade and Industry (1988) 3 WLR 1033.


In the application of these qualifications, if a rule of international law is violated, that would be the concern of the executive in the domain of its international relations.Apart from these two qualifications to the automatic adoption of customary international law by British courts, the courts also deny the direct application of international law in the matters pertaining to the following:1. Acts of State, such as declaration of war or cessation of territory, irrespective of the violation of international law.2. The Crown’s prerogative, such as granting of recognition to States or governments, or diplomatic status or immunity to certain persons, cannot be questioned in courts, which are bound by a certificate or authoritative statement on behalf of the executive, even if they are in contravention of the rules of international law.35Notwithstanding the above exceptions, the British courts are generally inclined towards giving effect to international law. This is evident in the practice of the courts through:Harmonious Construction of the Statute: Where there is a conflict between the British statute and the rule of international law, the courts construe the statute in such a way so as not to go against the international law.36 But if the statute is otherwise clear and unambiguous, it will be given effect, although the court may rule that the statute is in breach of international law.37Rule of Evidence: The courts take judicial notice of the rules of international law and they need not to be proved through expert evidence.The position of Prize courts, in the matter of application of international law is somewhat different. Though they are municipal courts, they are not bound to give effect to executive order if it conflicts with international law. These courts administer the international law of prize. In the Zomora case,38 the Swedish vessel carrying a cargo of copper from New York to Stockholm was stopped on April 8, 1915, by the British cruiser and referred to the Prize Court as the Prize catch. Before the case was decided by the Prize Court, interlocutory order was sought for the delivery of the copper (designated as contraband) under Order XXIX, rule 1 of the Prize Court Rules 1914. The appellants alleged that these rules are in violation of the law of nations. The Judicial Committee of the Privy Council held that British Prize Court had to apply the international law (customary and conventional) of prize even though it conflicted with an executive order in Council. The Prize Court would, however, be bound by a British Statute.39Whether a rule of international law is directly effective [in contrast with direct applicability], so that an individual may rely on it as a source of rights at national level, has been a moot question. In Bennett v. Horseferry Magistrates' Court, the accused was abducted from South__________________35 On request from the court or from a party to litigation, on these matters, the Foreign and Commonwealth Office issues certificates.36 R v. Chief Immigration Officer, Heathrow Airport (1976) 3 All E.R. 843 at p. 847; James Buchanan and Co. Ltd. v. Babco Forwarding and Shipping (UK) Ltd. (1978) AC 141; Vervaeke v. Smith (1981) 1 All E.R. 55.37 Cf. Polites v. Commonwealth (1945) 70 CL 1 60 (decision of the High Court of Australia).

38 (1916) 2 AC 77.39 Ibid., at p. 93.


Africa with the collusion of its police. The House of Lords declined to exercise criminal jurisdiction and stated that, “where the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state to secure the presence of the accused within the territorial jurisdiction of the court”, the court should take cognizance of that.40

2. Treaty practiceWhile it is possible to regard customary international law as part of English law, subject to certain limitations, the position of treaty rules is quite different. The making of a treaty (negotiation, signature and ratification) is the prerogative of the Crown and a treaty duly ratified by the Crown is binding on Britain internationally; but to have internal effect, in the sense of changing the existing law or to be a source of rights or obligations in domestic law, the treaty requires enabling legislation by Parliament. This position on treaties has been clarified by the House of Lords in Maclaine Watson v. Department of Trade:Treaties... are not self-executing. [A] treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter aliosacta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations....”41Earlier in The Parlement Beige41 it was clearly established that a treaty cannot affect private rights unless it has been made a part of British law by an Act of Parliament. In this case, the steamship Parlement Beige, a Belgian ship carrying mail and commerce, collided with steam-tug Daring, a British vessel, off Dover. It sought immunity against its prosecution under the Anglo-Belgian Convention Regulating Communications by Post, 1876 between the two countries, claiming the Parlement Beige as a public ship of war. The treaty was not legislated by Britain. The court at the first instance, did not grant immunity, as the treaty on its own could not affect the private rights, and to do so, it required to be legislated. The decision, though was reversed by the Court of Appeal on the ground that the immunity sought was available at customary international law and hence at common law, the decision of the court at the first instance, is still significant for the proposition that the Crown, by entering into a treaty, cannot alter the law of England.43The point was further clarified in Attorney General for Canada v. Attorney General for Ontario44 “that making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action... Once the [obligations] are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default”. In JH Rayner v. Department of Trade and Industry,45 Lord Templeman stated:__________________40 (1993 ) 3 All ER 138 at 155.41 (1989) 3 All E.R. 523 at pp. 544-545 (H.L.).42 (187 8-79) UPD 129.43 Ibid, at p. 154.44 (193 7) AC 326.

45 J.H. Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry (1990) 2 AC 418.


A treaty may be incorporated into or alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual.On the basis of judicial precedents as to treaty practice, the position can be summed up as follows:I . Treaties do not bind the British courts ipso facto. Legislation is required for creating internal effects.2. Treaties which (i) affect the private rights of the British subject, or (ii) involve any modification of common law or statute law of England, or (iii) create additional financial burden on the government exchequer for their implementation, or (iv) invest the Crown with additional powers,46 should receive parliamentary approval through an Act of Parliament and, if necessary, to bring legislative changes in the existing law.3. Treaties, made subject to the approval of Parliament, for their application are usually so approved in the form of a statute.4. Treaties involving the cession of British territory must be approved by Parliament through a statute.5. Treaties relating to the belligerent rights of the Crown or informal, administrative agreements, not involving the alteration of municipal law, do not require any legislation.Where a treaty has been legislated, it will prevail over an earlier conflicting statute.47 But where the treaty has not been legislated, it may be referred for the purposes of interpretation of a conflicting statute. According to the decision in R v. Secretary of State for Home Department, Ex-Parte Brind,48 it is an established law in England that a treaty to which Britain is a party should be referred to and followed in the interpretation of an ambiguous statute. However, in accordance with the dualist approach, it cannot prevail over a clearly worded statute that contradicts it. The Brind case was concerned with the conflict between Sec. 29(3), (British) Broadcasting Act, 1981, and Art. 10 of the 1950 European Convention on Human Rights that was not embodied in a British statute. The appeal was dismissed and the court observed that the Convention does not have the effect of law in England, but it has persuasive force in resolving ambiguities in the Act.49 This position thus does not differ substantially from the British practice on customary international law.Where an Act is enacted by the Parliament in its own language to give effect to a treaty, but the legislation is ambiguous, the treaty may be referred for construing the Act in a manner which, in so far as possible, should comply with the terms of the treaty because the prima facie__________________46 Cf. The Parlement Beige, op. cit. 42.47 Ostimer v. Australian Mutual Provident Society (1959) 3 All E.R. 245 at p. 248.4S (1991) 2 WLR 588 (H.L).49 Before the enactment of the Human Rights Act 1998, a number of cases were related to the United Kingdom’s obligations under the European Convention on Human Rights (ECHR), which is still not incorporated by the Human Rights Act; hence

inconsistent legislation (whether earlier or later than the Act) remain valid. The courts nevertheless tiy to interpret the Act to make it compatible with the Convention rights.


assumption is that Parliament does not intend to act in breach of its treaty obligations and of international law.50

B. The United States1. Customary international lawIn the matter of customary international law, the United States practice is similar to the British practice, and no specific incorporation is required by the Congress. The statement made by Gray J. in the Paquett Habana case51 reflects the United States position on the matter:International law is part of our law, and must be ascertained and administered by the Courts of Justice of appropriate jurisdiction.... For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilised nations....In this case, the Supreme Court of the United States exempted the two small fishing boats, Lola and Paquette Habana, from capture as prize of war by applying the customary rule of international law. The boats were seized for violating the blockade off the coast of Havana during the American-Spanish war. The Court stated:This rule of international law is one which Prize Courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.52The customary international law is applicable in the United States53 in the absence of (a) executive or legislative act, or (b) judicial decision. Determination of international law by the Supreme Court, including review of State laws on grounds of inconsistency with international law, are binding on states and state courts. The courts would also be bound by the Executive certificates in certain matters, such as recognition of governments or States, or granting immunity from jurisdiction to governments or individuals.54 Where a conflict arises between customary- rule of international law and a statute, in case of clear and unambiguous language, the statute prevails, otherwise harmonious construction is accorded.55 Under US judicial practice, courts give great weight to the views expressed by the US government on questions of international law.The modern view, however, is that customary international law in the United States is federal law and its determination by the federal courts is binding on the state courts.56 International____________________50 See Salomon v. Commissioners of Customs and Excise (1967) 2 QB 116 (C.A.); the court, in this case, was required to interpret an ambiguous provision in the Customs and Excise Act. 1952, enacted by the Parliament in its own language, which intended to implement the 1950 Convention on the Valuation of Goods for Customs Purposes.51 175 US 677 at p. 700 (1900).52 Ibid., at p. 708.53 See United States v. Malekh, 190 F. Supp. 67 (1960).54 In the Garcia-Miry. Meese (1986) 788 F. 2d 1446, because of the Attorney-General’s decision (“controlling executive act”), the lengthy detention of illegal

immigrants was held not contrary to the US law although contrary to customary international law.55 See The Over the Top (1925) 5 F (2d) 842.56 See Restatement of the Foreign Relations Law of the United States, Third (1987), Vol. I, p. 91.


law is regarded as subject to the Constitution and the courts will not give effect to a rule of international law which conflicts with the United States Constitution.57

2. Treaty practiceThe United States treaty practice differs significantly from the British practice. According to the American Constitution, the President has the power to make treaties with the advice and consent of the Senate, provided two-thirds of the Senators present concur (Art. II, Sec. 2). The Constitution also lays down (Art. VI, para. 2) that “all Treaties made or which shall be made, under the Authority of the United States, shall be the Supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding''. Thus, the Constitution places treaties on an equal footing with federal statutes. In situations where an Act of Congress and a treaty are in conflict, the later instrument will repeal the earlier so far as the two are inconsistent.58 However, in Cook v. US,59 the United States Supreme Court noted that “a treaty will not abrogate or modified by a later [federal] statute unless such purpose on the part of the Congress has been clearly expressed”. If there is a conflict between the Constitution and an international treaty, the former will prevail. But a treaty will take precedence over state laws.60In the case of US v. Palestine Liberation Organisation,61 the federal district court held that statutes and treaties are the supreme law of the land and conflict between them must be reconciled whenever possible. Where it cannot be resolved, the statute takes precedence (which is later to the treaty) if the court can discern “the clearest of expressions on the part of Congress to override the treaty obligation”. In this case, the United States Government, on the basis of the Anti-Terrorism Act, 1987, closed down the Observer Mission of the PLO in New York (The PLO was granted this status by the United Nations General Assembly in 1974). This was found to be contrary to the United States obligations under the United Nations Headquarters Agreement, 1947. The General Assembly also termed the 1987 Act as inconsistent with the Headquarters Agreement.62 The United Nations Secretary General held that Headquarters Agreement takes precedence over the United States domestic law on the basis that international law prevails over municipal law. The International Court of Justice, in its advisory opinion of April 26, 1988, ruled against the United States’ unilateral act to close down the Mission.63 The district court Judge conceded that under the Anti-Terrorism Act, the Congress had found the PLO to be a terrorist organisation and had prohibited its activities within the United States. However, he also opined that the Congress had not meant to supersede the United States’ international obligations under the Headquarters Agreement, as there is always a presumption that Congress does not intend to override its treaty obligations. However, in March 2008, in the matter related to Avena case, the Supreme Court ruled that the decision__________________57 Tag v. Rogers (1959) 267 F (2d) 664.58 Edye v. Robertson (1884) 112 US 580.59 (193 3 ) 288 US 102 at pp. 119-120.

60 Missouri v. Holland (1920) 252 US 416; Asakura v. City of Seattle (1924) 265 US 332.61 (1988) 695 F. Supp. 1456. at p. 1468.62 UN G.A. Res. 42/230 of March 23, 1988.63 The UN Headquarters Agreement case (1988) ICJ Rep., p. 12.


of the International Court of Justice64 directing the United States to give “review and reconsideration” to the cases of 51 Mexican convicts on death row, while deserving ‘respectful consideration’, was not a binding domestic law and therefore could not be used to overcome state procedural default rules that barred further post-conviction challenges.65In the United States practice, not all international agreements are the law of the land. A distinction has been drawn by the courts between “self-executing” and “non-self-executing” treaties. A self-executing treaty is one which, in the view of the court, does not expressly or by its nature requires legislation to make it operative within the municipal field. The non-self-executing treaties become applicable only after the consent of the Congress through its adoption by a specific statute. Where an agreement is given effect by a statute, such implementing legislation is regarded as US law rather than the agreement. But it is not always easy to make a distinction between a self-executing treaty and one which is not. In Sei Fujii v. State of California,66 the Supreme Court of California laid down the intention of the parties as the judicial test to determine the nature of the treaty. According to the Court:A treaty ... does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing.... In determining whether a treaty is self-executing, courts look to the intent of the signatory parties as manifested by the language of the instrument, and if the instrument is uncertain, recourse may be had to the circumstances surrounding its execution....The issue is this case was whether the United Nations Charter provisions on human rights and fundamental freedoms are self-executing. The Court observed that provisions relied upon by the plaintiff, i.e., the Preamble and Arts. 1, 55 and 56 of the Charter, are non-self-executing, and legislation would be necessary to give them the declared effect.To avoid the problem of distinguishing between self-executing and non-self-executing treaties, in 1952, the Bricker Amendment was proposed to prevent treaties having internal effects in the absence of enabling legislation (i.e., making all treaties non-self-executing). The Amendment, however, did not succeed, but there is a well-entrenched judicial practice that a treaty requiring the appropriation of money for its enforcement would not be internally effective without enabling legislation.67In addition to treaties, there are “executive agreements”, made by the President under his constitutional power to regulate foreign affairs or with the approval of the Congress as expressed in the Statute (e.g., under the Trade Act). These agreements are endowed with all the attributes of formal treaties and bind the United States internationally. Constitutionally also, they have been treated at par with treaties by the courts, i.e., they are the law of the land.68 Nevertheless,__________________64 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), (2004) ICJ Rep., p. 12. The Court noted that the ‘procedural default’ rule has not been revised to prevent its application in cases involving the breaches of the Vienna Convention on Consular Relations, 1963.65 Medellin v. Texas, 552 US (2008). After Arenas case, in March 2005, the United States pulled out of the Optional Protocol to the Convention, which allows the ICJ to

have compulsory jurisdiction over disputes arising under the Convention. The withdrawal from the Protocol is at variance with the long-established practices followed by nations.66 242 P. 2d 617 at p. 620 (1952).67 Aerovias Interamericanas de Panama v. Dade Commissioners, 197 F. Supp. 230 (1961).68 US v. Pink, 315 US 203 (1942); US v. Belmont, 301 US 324 (1937).


whereas subsequent federal legislation will override an executive agreement, it is doubtful whether an executive agreement will supersede the prior federal legislation.69 The US v. Capps70 and Seery v. US71 support the proposition that an executive agreement cannot alter a prior inconsistent statutory provision. But in Hawaii v. Hop,72 the Hawaiian court applied a subsequent executive agreement in preference to a previous inconsistent law of the territory.With a view to restricting the President’s power to enter into “executive agreements”, without resorting to the constitutional treaty-making procedure (Art. II, Sec. 2), and thereby bypassing the hostile Senate, the Congress passed a legislation in 1972, requiring the transmission of all international agreements other than treaties to Congress within 60 days of their execution.73It has, however, remains doubtful that whether an individual rely on a rule of international law as a source of right before national courts. In Breard v. Pruett, which was identical to LaGrand and Avena cases above, involving a national of Paraguay convicted of murder by a Virgina court in the United States, the Paraguay brought the case before the ICJ for the violation of Article 36 of the Vienna Convention on the Consular Relations. To the Interim order of the ICJ to stay the execution of Breard, the Supreme Court of the US held on the petition of the convict that, “neither the text nor the history of the Vienna convention clearly provides a foreign nation a private right of action in the United States courts to set aside a criminal conviction and sentence for violations of consular notification provisions”.74 In US v. Alvarez-Machain, the Mexican national Alvarez-Machain was forcibly abducted from Mexico by the US Drugs Enforcement Agency, which he challenged as in violation of customary international law. The US Supreme Court held that the abduction was in violation of general international law but this does not give the defendant a free-standing right to contest the jurisdiction.75

C. European States - Germany and FranceLike the United Kingdom and the United States practice, customary rules of international law are part of internal law in many European countries and judicially applied provided they do not conflict with the existing municipal law.76 Only in a few States, the municipal courts apply customary rules of international law to the extent of overriding the municipal statute or judge- made law in case of conflict. An increasing number of States have incorporated provisions about the implementation of international law in their constitutions. Article 25 of the German Basic Law lays down that general rules of public international law shall form part of the federal law__________________69 Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell, London), 2010. p. 8670 2 04 F. 2d 655 (1953).71 127 F. Supp. 60 i (1955).72 41 Hawaii 565 (1957).73 AJIL pp. 125-126 (1973).4 134 F.3d 615; 1 i8 ILR 23. The petition was rejected by a majority of six to three and Breard was executed despite the ICJ's order.

75 (1992) 112 S C 2188.76 I. Brownlie, Principles of Public International Law, 4th ed. (Oxford University Press, The Oxford), 1990, p. 50. The countries are France, Belgium, Switzerland and Germany.


and shall take precedence over the municipal laws and directly create rights and duties for inhabitants. However, Art. 25 does not enable international law to prevail over fundamental provisions of the Basic Law.So far as treaties are concerned, many constitutions have clearly laid down that treaties made in accordance with the constitutional provisions are binding internally without any specific act of incorporation. Under the French Constitution, 1958, the international law is treated as part of the law of France. Article 52 enables the President to negotiate and ratify treaties. Article 53 names treaties which require ratification by law; and a treaty of cession can validly be concluded with the consent of the population affected.77 Treaties have been accorded authority superior to that of laws both in judicial and administrative tribunals (Art. 55) and they will be applied even if in conflict with municipal law prior or later in time.78 But if a treaty is in conflict with the Constitution, the Constitution will prevail. Authorisation to ratify such a treaty may be accorded only after the revision of the Constitution (Art. 54).Art. 25 of the German Basic Law, on the other hand, does not confer supremacy to treaties over municipal law. Germany also maintains the difference between self-executing and non-self-executing treaties. Treaties which regulate the political relations of Germany or refer to German law shall require the consent in the form of federal law (Art. 59). In the Netherlands, Article 66 of the Constitution provides for the supremacy of treaties to which the Netherlands is a party over prior or subsequent national law, if the treaty has been approved by the States —general and the Council of State. The treaties and resolutions of international organisations become binding only after they are published (Art. 93). Under the Greek Constitution (of June 11, 1975), however, customary rules of international law as well as conventions are the integral part of the Greek Law and prevail over any contrary provisions of law (Art. 28(1)). But treaties relating to commerce, taxation, economic cooperation, and participation in international organisations shall have no force without a sanction by a law of Parliament.79Thus, it can generally be stated that the European nations accord supremacy to international law through constitutional provisions. Nevertheless, they support the positivist approach that to be binding municipally the international law need to be specifically adopted by the municipal law as laid down in their constitutions.

D. RussiaUnder Art. 15.4 of the 1993 Constitution of Russia, the generally recognised principles and norms of international law and treaties of the Russian Federation constitute part of Russian__________________77 Article 53 provides: “(1) Peace treaties, commercial treaties, treaties or agreements relating to international organisation, those that imply a commitment for the finances of the State, those that modify provisions of a legal nature, those relating to the status of persons, those that call for the cession, exchange or addition of territory may be ratified or approved only by a law..., (3) No cession, no exchange and no addition of territory shall be valid without the consent of the population concerned

78 Art. 55 provides that treaties duly ratified have, after publication, an authority superior to legislation, not only earlier but later in time.79 Kapoor, op. cit. 6, p.115; A.A. Fatouros, International law in the new Greek Constitution, 70 AJIL 492 (1976).


legal system. If an international treaty of Russia conflicts with any law, the rules of international treaty will apply. Thus, the Constitution gives clear priority to both customary international law and treaties in force for Russia over both earlier and later national laws. Russian courts are increasingly applying principles of international law directly, particularly on human rights. But the international law does not get priority over the Russian Constitution. The Constitutional Court can review the compatibility with the Constitution of any treaty not yet in force for Russia.Power to conclude treaties rests with the President of Russia (Art. 86). Article 106 provides for both Chambers of Parliament (the Duma and the Federal Council) to give consent to treaties by federal law. The meaning of this provision is not very clear. But to have the binding force in Russian law, a treaty needs to be published.80

E. Indian Practice1. Customary international lawThe Constitution of India, adopted on January 26, 1950, have certain provisions with direct bearing on international law. The important provision is Art. 51(c) which reads: “The state shall endeavour to ... (c) foster respect for international law and treaty obligations in the dealings of organised people with one another....” Reference of the words “international law” and “treaty obligations” implies that the former refers to customary international law.81 But this interpretation does not make international law (nor the treaties) part of internal law in the sense of “incorporation” or “Blackstonian” doctrine. Since Art. 51 falls under part IV of the Constitution (Directive Principles of State Policy), the provision is not: binding on the courts or enforceable by any court, though the directive principles are fundamental in the governance of the country (Art. 37). The government is thus committed to foster respect for international law and make laws in furtherance of that.82 But Art. 51(c) is too general and no conclusion can be drawn from the provision itself as to how far rules of international law shall be applied by the courts. Article 372(1), on the other hand, provides:Notwithstanding the repeal by this Constitution of the enactments referred to in Art. 395 but subject to other provisions of the Constitution all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.__________________80 Eileen Denza, The Relationship Between International and National Law, in Malcolm D. Evans (Ed.) International Law 423 at 432 (2nd edn., Oxford University Press) 2006.81 This interpretation is given by C.H. Alexandrowicz, International law in India, ICLQ, p. 252 (1952); M.K. Nawaz, International law in the contemporary practice of India: some perspectives. Proc. ASIL, 275 at p. 278 (1963).82 The view has been expressed that calling upon the State to foster respect for international law and treaties has strengthened the common law principle that international law is a part of the law’ of the land, S.K. Agarwala, India’s contribution to the development of international law - role of Indian Courts, in Asian States and

Development of International Law (R.P. Anand (Ed.), Vikas Publishing House, Delhi), p. 73, 1977.


Before the adoption of the Constitution, the British doctrine of incorporation with certain qualifications as prevailing in Britain was followed in India. This practice still continues in India by virtue of Art. 372(1) of the Constitution83 as is evident in the judicial practice.The case of Krishna Sharma v. The State of West Bengal84 reflects the true Indian position regarding the enforceability of international law at the municipal level. The Calcutta High Court stated that the Indian courts would apply rules of internal law which include: (a) the Constitution of India, (b) the statutes enacted by the Parliament, and (c) statutes enacted by state legislatures (thus, leaving outside the judge-made law). It observed:If the [Indian statutes are] in conflict with any principle of international law ... municipal courts of India have got to obey the laws passed by the Legislature of the country to which they owe their allegiance. In interpreting and applying municipal law, the courts will try to adopt such a construction as will not bring into conflict with rights and obligations deducible from rules of international law. If such rules or rights and obligations are inconsistent with the positive regulations of municipal law; the municipal courts cannot override the latter.85In A.D.M. Jabalpur v. Shukla,86 the issue before the Supreme Court was that since the Universal Declaration of Human Rights has acquired the force of customary international law is binding on India and thus enforceable by the Court. The Court rejected the argument and held, “Nothing which conflicts with the provisions of our Constitution could be enforced here under any disguise”.87In Gramophone Company of India v. Birendra Bahadur Pandey,88 the Supreme Court accepted the binding force of customary international law, but observed:The Comity of Nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction with Acts of Parliament. But when they do run into ... conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules ... The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law unless they are in conflict with an Act of Parliament. Comity of Nations or no, municipal law must prevail in case of conflict. National courts cannot say “yes’" if Parliament has said no to a principle of international law. National courts will endorse international law but not if it conflicts with national law... But the [national] courts are under an obligation within legitimate limits, so to interpret the municipal statute as to avoid confrontation with the comity of nations or the well established principles of international law. But if conflict is inevitable, the latter must yield.89The case was related to the importation of pirated audio cassettes from Singapore destined for Kathmandu, which landed at Calcutta port and were awaiting dispatch to Nepal when__________________83 T.K. Varred v. State of Travancore-Cochin, AIR 1956 SC 142.84 AIR 1954 Cal. 591.

S5 Ibid. The Assam High Court held similarly in Maharaja Sikrani Kishore of Tripura v. Province of Assam, AIR 1976 SC 1207.86 AIR 1976 SC 1207.87 Ibid., at p. 1291. Justice H.R. Khanna, in his dissenting judgement also remarked that if there is a conflict between municipal law and international law, the courts shall give effect to municipal law.88 AIR 1984 SC 667.89 Ibid., at p. 671.


it was found that they were pirated. On an application by the appellant to the Registrar of Copyrights under Sec. 53 of the Copyright Act, 1957, and Sec. 11 of the Customs Act, 1962, cassettes were confiscated. The appellant company brought the case to restrain their onward transmission to Nepal. Defendants contended, among others, that there is no infringement of the Copyright Act, because there was no importation in the local market, as envisaged by the Act. The Court, by giving the liberal construction to the word “import” in Art. 53 of the Copyright Act, which incorporated the Berne Convention on Copyright, 1886, gave the judgment in favour of the appellant. The High Court earlier, on the basis of treaties with Nepal, did not find that there was any infringement of the said Acts when the goods entered India en-route to Nepal. The High Court, however, observed: “Though treaty may not be binding for construction of statute, it may be used to clarify the expression in statute in case of doubt or two meanings”.90In PUCL v. Union of India,91 the Court observed: ‘It is almost accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law.’ In Vellore Citizens’ Welfare Forum v. Union of India, the Court came very close to accepting the ‘incorporation doctrine’ in the matter of environmental law - ‘Precautionary Principle’ and ‘Polluter Pays Principle’ as part of domestic law by stating that, “once these principles are accepted as part of Customary International law there would be no difficulty in accepting them as part of the domestic law”.92Thus, it is a well-settled practice in India that the courts apply international law rules to the extent they are not inconsistent with the municipal law and are not overridden by clear rules of the domestic law.93 Generally, the tendency is to give a harmonious construction to the domestic law so as to make the rule of international law effective, because the presumption is that the legislature does not intend to violate its international obligation.94 The courts are bound by the executive statements in matters of conflict between the customary rules of international law, the extent of national territory and recognition of a foreign power or a State.95 There is no support for the doctrine of incorporation in the Constitution of India, except finding its basis in Art. 372, though Article has not been referred by the Court in its judgements. There is also no judicial authority on the issue that whether the customary international law will be binding where there is no controlling statute, executive decision or a treaty.__________________90 Birendra Bahadur Pandey v. Gramophone Company of India, AIR 1984 Cal. 69 at p. 77.91 AIR 1997 SC 568. In Pratap Singh v. State of Jharkhand & Another, (2005) 3 SCC 551, the issue was the reference to the UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985 in the interpretation of the Juvenile Justice Act, 2000. The Court stated that “principles of international law whenever applicable operate as a statutory implication”.92 (1996) 5 SCC 547.93 D.D. Basu, Shorter Constitution of India, (12th ed., Prentice-Hall of India, New Delhi), 1996, p. 327.

94 Transmission Corporation of A. P. v. Ch. Prahhakar & Ors. 26 May 2004 [ if two construction of the municipal statute are possible, the court will lean towards ‘harmonious construction’]; Mirza Ali Akbar Kashani v. United Arab Republic, AIR 1966 SC 230; Raja Harminder Singh v. Commissioner of Income Tax, AIR 1972 SC 202.95 Province of West Bengal v. Midnapore Zamindary Co. Ltd. (1949) 54 C.W.N. p. 677.


2. Treaty practiceThe Constitution of India does not include any clear direction on treaties as found in the United States and French Constitutions. It, however, follows the British approach, namely, that treaties are not a part of internal law unless specifically so adopted. But unlike Britain, India has a written constitution and it contains numerous provisions which have bearing on treaty making and treaty implementation in India. The relevant provisions are Arts. 51, 53, 73, 77, 246 read along with Entries 10, 13 and particularly 14 of List I of the Seventh Schedule (The Union List), as well as Art. 253. In accordance with these provisions, the Parliament has the exclusive power to legislate in the realm of treaties, i.e., the making of treaties and their implementation. But the Parliament has not yet legislated; it is instructive, therefore, to refer to the Indian practice, as reflected in the constitutional provisions and the judicial precedents.Treaty making is an “executive act”, exercised by the President by virtue of Art. 53(1) of the Constitution, which lays down: “The executive power of the Union shall be vested in the President and shall be exercised by him cither directly or through officers subordinate to him in accordance with this Constitution”. Art. 73(1) states: “Subject to the provisions of this Constitution, the executive power of the Union shall extend: (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any agreement or treaty....”It is not clause (b), but clause (a), read along with Entries 10 and 14 of the Union List, which sets the limits of the treaty-making power of the Executive. Entry 14 relates to “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”. Entry 10 is concerned with “foreign affairs: all matters which bring the Union into relation with any foreign country”. But the treaty-making power has to be exercised “in accordance with the Constitution” (Art. 53). Article 246 empowers the Parliament to legislate on Entry 14 (of the Union List), and until it does so, the President’s treaty-making power remains unfettered by any “internal constitutional restrictions”.96 Hence, the executive will be very much within its power to bind India internationally under a valid treaty, without referring to the Parliament, or require legislation sanctioning money expenditure, or require a change in existing laws for the implementation of the treaty obligations of the Union. Thus, the Parliament has no share in treaty making comparable to the United States Senate. The British Constitutional position in the realm of treaty law and procedure, as described in the Privy Council judgment in Attorney General for Canada v. Attorney General for Ontario is reflective of the Indian position: “Parliament, no doubt, has a constitutional control over the executive but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone”.97 (Italics added)The President can validly exercise his treaty-making power without an authorising legislation of the Parliament. In Union of India v. Manmull Jain,98 where the validity of the treaty relating__________________

96 Kaye Holloway, Modern Trends in Treaty Law (Oceana Publications. Dobbs Ferry), 1967, pp. 195-196.97 Op. cit 44.98 AIR 1954 Cal., p. 615.


to the transfer of the Chandemagore. a former French possession, without the prior parliamentary legislation was questioned, the court observed:Making a treaty is an executive act and not a legislative act. Legislation may he and is often required to give effect to the terms of a treaty. Thus, if a treaty, say, provides for payment of a foreign power, legislation may be necessary before the money can be spent, but the treaty is complete without the legislation.... The President makes a treaty in exercise of his executive power and no Court of law in India can question its validity.99The Supreme Court has clearly laid down that for the exercise of the executive power (of which treaty making is one), under Art. 73, the Union legislation is not a pre-requisite.100 In Nirmal Bose v. Union of India,101 the Court held that the Union Government has the right by executive action to enter into treaties and agreements with foreign countries.On the other hand, in the matter of implementation of treaties, the Parliament has the exclusive power to legislate in order to give effect to international agreements internally, even though the subject matter of the treaty pertains to the State List of the Seventh Schedule (Art. 245). Article 253 reads:... Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.But despite this provision, two views are in current about the enforcement of treaties at the municipal level. According to one view, treaties shall not be binding upon courts unless implemented by legislation.102 On the other hand, it has been contended that not all treaties require legislation for implementation and it is only treaties affecting private rights that must be enacted by legislation to become enforceable.103However, judicial authority predominantly supports the first viewpoint. In Jolly George Vergese v. Bank of Cochin,104 Krishna Iyer J. asserted that “the positive commitment of the States Parties ignites legislative action at home but does not automatically make the Covenant (International Covenant on Civil and Political Rights) an enforceable part of the corpus juris of India”. In Birma v. State of Rajasthan,105 the Court made a general statement supportive of the former point of view, “Treaties which are part of international law do not form part of the law of the land unless expressly made so by the legislative authority”. In Shiv Kumar Sharma and others v. Union of India,106 the Delhi High Court observed: “In India, treaties do not have the force of law and consequently obligations arising therefrom will not be enforceable in municipal courts unless backed by legislation”.__________________99 Ibid., at p. 616.100 Ramjawaya Kapur v. State of Punjab, AIR 1955 SC 549; Jayantilal v. Rana, AIR 1964 SC 648.101 AIR 1959 Cal. 506.102 This view has been advanced by Basu who states: ‘'No treaty which has not been implemented by legislation shall be binding on municipal courts”, see op. cit. 93.103 C.H. Alexandrowicz, op. cit. 81.104 AIR 1980 SC 470 at p. 474.

105 AIR 1951 Raj. 127; see also, Nanka v. Government of Rajasthan, AIR 1951 Raj., 153.106 AIR 1968 Delhi 643; see also Motilal v. U.P Government, AIR 1951 All 257; Nirmal v. Union of India, AIR 1959 Cal. 506.


In State of Madras v. G.G. Menon,107 the Supreme Court had gone to the extent of holding that the Indian Extradition Act, 1903, based on Fugitive Offenders Act, 1881 of British Parliament has no force under Art. 372 of the Indian Constitution. The British Act can be binding on India if appropriate changes are incorporated into an Act of Indian Parliament, by enacting an Indian Fugitive Offenders Act. After the coming into force of the Indian Constitution, extradition arrangements based on the 1881 Act will not justify an extradition unless appropriate legislation is passed by the Indian Parliament.108 In this case, Mr. and Mrs. Menon were advocates in Singapore (then a British colony). Mrs. Menon had also served as a member of the Legislative Council of Singapore. They came to India in 1952. The Colonial Secretary sought their extradition for the alleged breach of trust and certain other charges against them according to the law of Singapore. The Court rejected the application for extradition on the grounds already specified.On the other hand, in Maganbhai Ishwarbhai Patel v. Union of India,109 Shah, J., in his separate opinion observed that:The obligations arising under the agreements or treaties are not by their own force binding on Indian nationals. The power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of the Union List. But making of law under that authority is necessary when (he treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the Stale. If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty”. (Italics added)This approach of Shah, J. has put the treaties into two categories: self-executing and non-self- executing, akin to the American approach. But preponderance of judicial authority upholds the other approach.The cession of Indian territory, under a treaty, cannot be effected by simple legislation of the Parliament alone, but an amendment of the Constitution under Art. 368 is required. In the In re. Berubari Union case (called as the first Berubari case),110 the issue was related to the legislative measures required to give effect to the Indo-Pakistan Agreement of November 10, 1958, involving the division of Berubari Union No. 12 and exchange of old Cooch-Bihar enclaves under the sovereignty of India. The Supreme Court, in its advisory opinion (matter was referred to it under Art. 143(1) of the Constitution) observed that the Agreement amounted to cession of Indian territory, which can be effected by an amendment of the Constitution.111 This point was further strengthened in the second Berubari Union case, where the territory involved was de jure Pakistan’s territory awarded to it under the Radcliffe Award, but de facto was with________________________107 AIR 1954 SC 517.108 But in Rosaline George v. Union of India, (1994) 2 SCC 80, the absence of legislation of the treaty did not come in the way as the court observed that India is unequivocally committed to honour its international obligations arising out of the 1931 treaty with the United States under the India Independence (International Agreements) order, 1947.109 AIR 1969 SC 783 at p. 807.110 AIR I960 SC S45.

111 Parliament passed the IX Amendment Act, I960, to give effect to the transfer of Berubari and other enclaves as suggested by the Supreme Court in its advisory opinion. However, the Privy Council in 1876, in Damodhar (Gordhan v. Deoram Kanji (63 IA 102 (PC)) held the cession of territory by the Crown without the assent of Parliament as valid.


India. The Court observed that in this case no cession of Indian territory is involved but it is only to restore Pakistan what belonged to it and hence no legislation was needed.112In Maganbhai Ishwarbhai Patel,113 the petitioners sought to restrain the Indian Government from transferring some territory of Rann of Kutch to Pakistan, by giving effect to arbitral award, without the approval of Parliament. The Supreme Court, in the course of its judgment, distinguished this case from the Berubari Union. The Maganbhai case was concerned with disputed boundaries, but Berubari Union ease dealt with the transfer of de facto and de jure Indian territory. According to the Court, the Kutch Award, rendered by the arbitral tribunal (in 1968), was an operative treaty which did not require legislation. M. Hidayatullah, CJ observed:Ordinarily an adjustment of a boundary which International Law regards as valid between two nations should be recognised by the courts and the implementation thereof can always be with the Executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be held....114About the self-executive nature of the award, the Court observed:When a treaty or award after arbitration comes into existence it has to be implemented and this can only be if all the three branches of the Government to wit the legislature, the Executive and the Judiciary, or any one of them, possesses the power to implement it.... In some jurisdictions, the treaty or the compromise read with the Award acquires full effect automatically in the municipal law... Such treaties and awards are self-executing. Legislation may nevertheless be passed in aid of implementation but is usually not necessary.115In Union of India v. Sukumar Sengupta, the Government of India leased in perpetuity “Teen Bigha” connecting Bangladesh enclaves of Dahagram and Angerpota, surrounded by Indian territory, with Panbari Monza of Bangladesh in accordance with 1974 and 1982 agreements between India and Bangladesh, so as to enable Bangladesh to exercise her sovereignty over those enclaves. The Court held that the implementation of these agreements, as far as “Teen Bigha” was concerned, did not amount to cession of the said territory or transfer of sovereignty in respect of the same and did not require any constitutional amendment.116If a treaty which has not been implemented internally through legislation conflicts with a municipal statute, the statute will prevail. In Jolly George Vergese v. Bank of Cochin, there was a conflict between Art. 11 of the International Covenant on Civil and Political Rights to which India was a party (but did not legislate) and Sec. 51 (Proviso), Order 21, Rule 39 of the Civil Procedure Code. It was held that no right in favour of a private person can flow from the treaty or agreement between the two high contracting parties. International conventional__________________112 Ram Kishore Sen and others v. Union of India, AIR 1966 SC 644. The writ

petitions challenging the transfer of Berubari Union for the alleged violation of right of property under Art. 32, were dismissed by the Supreme Court in Union of India v. Sudhansu, AIR 1971 SC 1594. The Court held cession of Indian territory to a foreign State does not bring about a transfer of ownership rights so as to attract the operation of Art. 32(2) of the Constitution.

113 See op. cit. 109.114 Ibid., at p. 798.115 Ibid., at p. 794.116 AIR 1990 SC 1692 at pp. 1698, 1702 and 1704.


law must go through the process of transformation into the municipal law before the international treaty can become an internal law in India.117In Civil Rights Vigilance Committee v. Union of India,118 it was held similarly. The issue before the court was to ban the scheduled visit of M.C.C. Cricket team, consisting of two players, Boycott and Cook who were alleged to have links with South Africa which practised the policy of Apartheid. The Civil Rights Committee contended that permission granted to them was in violation of India’s obligations under the Gleneagles Accord of 1977, between Commonwealth countries. While dismissing the petitions, the court stated that India’s:... obligations under the Gleneagles Accord and obligations attached to its membership of the United Nations, cannot be enforced at the instance of citizens of this country or associations of such citizens, by courts in India, unless such obligations are made part of the law of this country by means of appropriate legislation.The Court also observed that “in the absence of such law, the Court cannot also enforce obedience of the Government of India to its treaty obligations with foreign countries”.119 But more recently, the Supreme Court has resorted to international treaties, which are ratified by India but not legislated, in the interpretation of the constitutional and statutory provisions, or in the absence of contrary legislative provisions, and thus making them part of the domestic law. This trend is particularly evident in the human rights treaties. In Vishaka v. State of Rajasthan,120 the issue before the Supreme Court was regarding ‘sexual harassment’ of women at the workplace. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Resolution of the Fourth World Conference on Women were relied upon by the court to construe the nature and ambit of constitutional guarantee of gender equality. The Court observed:121In the absence of domestic law occupying the field ... the international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality in the Constitution.... [a]ny international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.The Court stated that because of the ratification of these conventions, they create ‘legitimate expectations’ of their observance in the absence of contrary legislative provisions.This approach of the Supreme Court has diminished the distinction between the rules of customary international law and international conventions to which India is a party. The courts in India may enforce treaties which are not inconsistent with the Indian law or when there is a gap in the law.However, principles of international law, treaties, conventions will be used in the interpretation of municipal law where the terms of any legislation are not clear or capable of__________________117 Op. cit. 104, at p. 473.118 AIR 1983 Karn. 85.119 Ibid., at p. 89.

120 (1997) 6 SCC 241. In Apparel Export Promotion Council v. A.K. Chopa, (1999) 3 SCC 759, it was similarly held.121 Ibid, at 248-9, 251. The court relied on the concept of ‘legitimate expectations’. The same approach was taken in many subsequent cases - PUCL v. Union of India, (1997) 3 SCC 433, Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759.


having more than one meaning; courts will rely upon the meaning which is in consonance with international treaties or instruments.122 A subsequent ratification of international treaties will not render the existing municipal laws ultra vires of those treaties in case of inconsistency.123Thus, the treaty practice in India can be summed up as follows:1. The Union Executive has the unfettered authority to enter into treaties and agreements with foreign countries, but the power is to be exercised in accordance with the Constitution.2. For the implementation of a treaty, parliamentary assent through an enabling Act is necessary where treaty: (i) affects the rights of Indian citizens, or (ii) modifies the laws of the State (Maganbhai s case), or (iii) creates financial obligations for the Government.1243. Treaties involving the cession of Indian territory can only be effected through a constitutional amendment. However, no parliamentary sanction in the form of legislation is required to give effect to treaties relating to boundary settlement.4. Treaties in conflict with Part III of the Constitution (Fundamental Rights) shall be “null and void” (inferred from Art. 13 of the Constitution) and hence cannot be enforced. Similarly, assurances contained in international agreements will not be justiciable in the municipal courts unless made part of the law of the land by legislative incorporation.1255. If a treaty conflicts with a municipal statute, the statute will prevail.The practice of States on the relationship between international law and municipal law, as revealed in the above discussion, is divergent. Whereas the customary international law is generally considered to be part of the municipal law with few qualifications, the treaty practice is quite varied. It does not clearly support the monist or dualist approach. It has been revealed that some transformation is required in every case before they become operative at the municipal level, though they can bind the State without such a requirement at the international level. In certain jurisdictions, however, they are operative without such a requirement under their constitutions.126 Further, States have generally made a distinction between self-executing and non-self-executing treaties depending on the subject matter of the treaty.Slates, through their legislature and judiciary, are expected to honour their international commitments. There is no doubt that municipal law in violation of international law will have the legal effects within the State, but will create international responsibility for the State. Municipal courts are bound to give effect to the State-will as reflected in statutes. But a State cannot take the defence of its constitution to escape its international responsibility. State courts invariably strive to resolve the conflict between the two and give effect to international law unless they are constrained by the unequivocal language of the statute to do so.__________________122 People's Union for Civil liberties v. Union of India (2005) 2 SCC 436.123 Sakshi v. Union of India (2004) 5 SCC 518.124 Sec Motilal v. State of U.P., AIR 1951 AIL 257 (F.B.); State of West Bengal v. Jugal, AIR 1969 SC 783.

125 Nabob of Carnatic v. East India Co. (1793) AIR 1924 PC 216; Ajaib Singh v. State of Raj., AIR 1952 Punj. 309.126 Positivists argue that the constitutional provision amounts to granting validity to treaties at the municipal level without which they would not have been operative internally.

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CHAPTER 4Subjects of International Law

I. GENERALThe term ‘subjects of international law’ refers to entities endowed with legal personality, capable of exercising certain rights and duties on their own account under the international legal system.1 Capacity implinnnes personality, but always it is capacity to do particular acts. Therefore, personality as a term is only a short-hand for the proposition that an entity is endowed by international law with legal capacity. But all the entities may not have the similar capacity, such as entity A may have the capacity to perform acts X and Y but not act Z, entity B to perform acts Y and Z but not act X, and entity C to perform all three acts. In the Reparation case, the court stated: “the subjects of law in any legal system are not necessarily identical in their nature, or in the extent of their rights, and their nature depends upon the needs of the Community”.2Under municipal law, the individual is the typical subject of law, but certain entities, such as companies, public corporations, institutions, and idols are granted a personality distinct from the individuals who create them, and are empowered to enter into legal and economic transactions on their own. The typical legal subject of international law is the State. Ordinarily, international law deals with the rights and duties of States and its rules bind the States, but other entities may also be considered as the subjects of international law to the extent they can enter into legal relations and exercise certain rights on the international plane. The practice of the last half-a-century has clearly discarded the old dogmatic approach that the State is the only subject of international law and has recognised the independent existence of a variety of international institutions, and in numerous situations, has imposed obligations and granted rights to individuals. As a consequence, it is now generally accepted that international organisations and other non- State entities, together with individuals in certain situations, are the subjects of the international legal system.

II. STATE AS A SUBJECT OF INTERNATIONAL LAWDespite the momentous growth of international law, which has made a dent in the traditional theories of international law that States are the exclusive subjects of international rights and__________________1 According to Starke, the term “subject of international law" means: (a) an incumbent of rights and duties under international law; (b) the holder of procedural privilege of prosecuting a claim before an international tribunal; (c) the possessor of interests for which provision is made by international law; and (d) the capacity to conclude treaties with States and international organisations; J.G. Starke. Introduction to International Law, 10th ed. (Butterworths, London). 1989, p. 58, n. 2.2 Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ Rep., p. 174 at p. 179.


duties, the State is still the typical and most obvious example of an international person. To be considered as a State, an entity must have certain characteristics, such as territory, population, government sovereignty etc. The often quoted attributes of a State are provided in Art. 1 of the Montevedio Convention3 of 1933:The State as a person of international law should possess the following qualifications: (a) permanent population; (b) defined territory: (c) a government; and (d) capacity to enter into relations with other States.4However, this criterion of Statehood has not been strictly adhered to in international practice particularly so in the United Nations practice. The two republics of erstwhile Soviet Union - Byelorussia and Ukraine, were the original members of the United Nations, but they did not enjoy the capacity to carry on their commitments with other States at the international level or conduct their own external relations. Their position was in no way different from that of States of the United States of America or of the Commonwealth of Australia or of India.5 Such federal units are not States, but international persons sui generis.6 The federal units may or may not be allowed to conduct their own foreign affairs by their federal constitutions. If, and to the extent, they are allowed to do so, such units are regarded by international law as having international personality.

A. Population and TerritoryThe lack of permanent population (i.e., the shifting element in population such as the nomad tribes on the Kenyan-Ethiopian border), or non-existence of fixed boundaries are not enough to affect the existence of a State. The State practice as well as the judicial and arbitral decisions clearly establish that it is not necessary for an entity to have exactly defined or undisputed boundaries to be a State either at the time when it comes into existence or subsequently. For example, the State of Israel had been admitted to the United Nations and was recognised by many nations without its borders being fixed and they still remain unsettled. Similarly, many of the States created after the First World War were recognised by the Allied Powers although their boundaries were drawn later only by Peace Treaties.For the existence of a State, it is enough that its territory has a sufficient consistency, even though its boundaries may not have been precisely defined or accurately delimited.7 Uncertainty about the boundaries has little effect on the corpus of a State. Similarly, international law does__________________3 28 AJIL Supp., p. 75 (1935). The United States and 15 American States are

parties to it.4 Few other requirements added now are independence achieved: (a) not in pursuance of racist policies, e.g., erstwhile South African Homelands (Bantustans) of Transkei, Bophuthatswana, Venda and Ciskei, and (b) in accordance with the principle of self-determination (e.g., the case of Southern Rhodesia). But the term may be given a different meaning for the purposes of a particular treaty, for example, a dominion or protectorate may enter into treaty in certain situations.

5 After the dismemberment of the USSR, both Byelorussia (now Belarus) and Ukraine are now acting as fully independent States. Earlier their case was comparable to Liechtenstein, which was denied admission to the League of Nations because she relegated certain sovereign powers to other nations.6 Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell, London), 2010, p. 987 See Deutsche Continental Gas-Gesellschaft v. Polish State, 5 AD 11 at p. 15 (1929).

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not prescribe any lower limit of the size of a State’s population or territory. Nauru, a Pacific Ocean nation has only 12,000 inhabitants and an eight square miles area. The Vatican City has even fewer permanent residents and only 100 acres of land.

B. GovernmentThe entity to be considered as a State should possess a stable government. However, State practice suggests that the requirement of a State government in control of the territory of the State is not absolute during a civil war, once a State has established itself. It may be necessary that when an entity is at the threshold of emerging as a State, it should not be subject to the control of another State. Complete breakdown of law and order in the Republic of Congo (now Zaire) in July 1960, immediately following its independence did not affect its status as a State under international law.The continuous civil-war situation in Somalia since 1991, has not affected its membership of the United Nations and it continues to be recognised as a State by the international community. Somalia is an example of what is sometimes known as ‘Failed State’. From a legal point of view, a ‘failed State’ is one which, though retaining legal capacity, has for all practical purposes lost the ability to exercise it. A key element in this respect is that there is nobody who can commit the State in an effective and legally binding manner, like concluding an agreement.8 On the contrary, the Republic of Kosovo declared its independence from Serbia in 2008 and recognised as an independent State by 65 State (not recognised by China, India and Russia and many UN members) is yet to be admitted as a UN member.

C. Capable of Entering into Relations with Other StatesIn order to have a claim over Statehood, an entity should have the capacity to enter into relations with other States and must be accepted so by others. This requirement is also the most important determinant in according recognition to a new entity. A State cannot fulfil this requirement unless it has independence. Independence, considered to be a normal characteristic of a State as subject of international law, means independence de jure (in law) from the authority of any other State (and hence the capacity to carry relations independently with other States).9 Restrictions upon a State’s liberty, arising either out of customary international law or contractual engagements (i.e., treaties) do not affect its independence. As long as these restrictions do not place a State under the legal authority of another State, the former remains an independent State. In the S.S. Wimbledon case,10 the Permanent Court of International Justice observed: “No doubt any convention creating an obligation places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty”.__________________8 Daniel Thurer, International Review of the Red Cross, No. 836 (1999), p. 731, cited in Harris, op. cit. 6, at p. 102. Other ‘failed States’ in the last four decades have been Afghanistan, Bosnia-Herzegovina, Cambodia, Lebanon, Liberia and Sierra Leone. Like Somalia and Democratic Republic of Congo, all these States continued to be recognised as States by international community.

9 See Austro-German Customs Union case, PCIJ Rep., Series A/B, No. 41 (1931).10 PCIJ Rep., Series A, No. 1 at p.25, (1923).


States which are subject to the authority of one or more States are known as “dependent States”. The notion of dependence necessarily implies a relation between a superior State (e.g., protector etc.) and an inferior or subject State (e.g., protege etc.); the relation between the State which can legally impose its will and the State which is legally compelled to submit to that will. Sometimes the extent of factual dependency of one State upon another is so great that it is no more than a “puppet” State and would not be meeting the requirement of independence, necessary for Statehood. Lauterpacht opines:The first condition of Statehood is that there must exist a government actually independent of that of any other Stare... If a community, after having detached itself from the parent State, were to become, legally or actually, a satellite of another state, it would not be fulfilling the primary condition of independence....11One of the notorious examples of a ‘puppet State was the Chinese province of Manchuria, conquered by Japan in 1931. Japan had put a government of its own nomination and in early 1932, recognised it as the “new State of Manchukuo”. Based on the United States Secretary of State Stimson’s Doctrine of Non-Recognition (of January 7, 1932), the Assembly of the League of Nations and the United States independently adopted the principle of non-recognition.12 Subsequently, on the basis of Lytton Commission’s report, the Assembly of the League, on February 24, 1933. resolved that the sovereignty over Manchuria belongs to China.A similar situation arose out of the Turkish invasion of Northern Cyprus in 1974. Turkey occupied 36 per cent of land, administered by the Turkish Federated State of Cyprus, as an interim measure, till the establishment of federal State of Cyprus. In 1983, Turkey declared the establishment of an independent State of the Turkish Republic of Northern Cyprus, with its own constitution in the same area. The United Nations Security Council deplored this action and termed the declaration as “legally invalid”, and called upon “all States not to recognise any Cypriot State other than the Republic of Cyprus”.13The status of entities in the form of Bantustans or homelands, created by South Africa, for black Africans since 1976, in pursuance of its policy of apartheid was similarly doubtful under international law. South Africa granted independence to Transkei (1976), Bophuthatswana (1977), Venda (1979) and Ciskei (1981). They were not granted recognition by any State except South Africa. The United Nations General Assembly in October 1976 condemned this step of South Africa, creating homelands in furtherance of its policy of apartheid.14 Though in law, these home lands gained full legal control over their internal and external affairs, South Africa exercised major control on economic matters. On 17 November 1993, South Africa decided to abolish these independent homelands and__________________11 H. Lauterpacht, Recognition in International Law (Cambridge University Press. Cambridge), 1948. pp. 26-29.12 The Stimson Doctrine of Non-Recognition, I Hackworth 334; reproduced in Harris, op. cit. 6, pp. 188. n Security Council Resolution 541 (1983) SCOR, 38th year. Resolution and Decisions, p. 15. Except

Turkey, no other State recognised the Turkish Republic of Northern Cyprus. In 2003 and again in 2004, unsuccessful efforts were made by the United Nations for a new constitutional settlement for a single federal State of Cyprus.14 Res. 31/6 (XXXI) of Oct. 26, 1976, GAOR, 31st Session, Supp. 39, p. 10.


reincorporatcd them into South Africa. It discarded the policy of apartheid and set up an All-Race Transitional Executive Council.15The Southern Rhodesia case created one additional requirement of Statehood, viz., that independence be achieved in accordance with the principle of self-determination. Although it fulfilled all the requirements of Statehood according to Montevideo Convention, it was not recognised as an independent State. Southern Rhodesia, which was a British self-governing colony, declared its independence from Britain in 1965 by the Ian Smith led White regime, which blocked the rule of the black majority that would have come into power in accordance with the principle of self-determination. The United Nations Security Council imposed economic sanctions upon the White regime and called upon all States not to recognise the illegal racist government.16 The General Assembly also similarly called for non-recognition.17 The case of independence of Guinea-Bissau from Portugal in September 1973, and subsequent General Assembly Resolution 3061 (XXVIII) of November 1973, firmly laid the principle of self- determination as the manifestation of sovereignty, and a determinant for recognition by other States.18This clearly raises the question of legality of intervention by other States in aid of independence movements. Based on these resolutions of the General Assembly, Crawford suggests that, whereas States are under a legal duty not to intervene or not to recognise the illegal intervention in another State to foment secession, but intervention in aid of a local unit fighting for independence according to the principle of self-determination is not illegal.19 Thus, the Indian assistance to Bangladesh, though arguably questionable under Art. 2(4) of the Charter, was perfectly justified, given that Bangladesh was a unit (in control of substantial territory and supported by the population) to which the principle of self-determination applied.20 Bangladesh, until 1971 was known as East Pakistan. Pakistan consisted till then of East and West Pakistan, situated at the Eastern and Western borders of India respectively. Aggrieved by the biased attitude and treatment of the Pakistan administration towards East Pakistan, on 26 March 1971 East Pakistan declared itself independent by the name of Bangladesh. The Pakistani forces initially suppressed the uprising, but in November 1971, rebel guerilla forces from East Pakistan launched an offensive with considerable success. It was alleged that the offensive was carried out with the help of India who had sheltered over one million refugees from East Pakistan by then. Pakistani forces also clashed with Indian forces in the border area. On 3 December 1971, Pakistan attacked India on its western border, which led to a war between the two countries. On 17 December__________________15 Decision to this affect was taken by 21 South African political parties and endorsed by Pretoria on Dec.7, 1993. The elections on non-racial basis were held in South Africa from April 26-28, 1994, under the supervision of United Nations Observer Mission in South Africa (UNOMSA). The ANC won the elections.16 SC Res. 216 (1965) of April 9, 1966.17 GA Resolution 2379 (XXVI), GAOR, 26th Session Supp. 18, p. 57 (1968); 7 ILM 1401 (1968). In April 1980, Southern Rhodesia, under the name of Zimbabwe, was

granted independence in accordance with the principle of self-determination; thereupon the sanctions against it were terminated.18 GA Res. 3061 (XXVIII), GAOR, 28th Session, Supp. 30, p. 2. About this requirement for recognition of a new State, sec, J.E.S. Fawcett, Security council resolutions on Rhodesia, BYhIL. p. 112 (1965-66).19 James Crawford, The Creation of States in international Law (Clarendon Press, Oxford), 1979, p. 118.20 Ibid., at p. 117.


1971, Pakistani troops surrendered on both fronts and were taken as prisoners of war. East Pakistan was declared as an independent State of Bangladesh and was given recognition as an independent State (by Pakistan as well).It is not the size of the territory but the independence which is crucial for Statehood. In recent years, many new mini or micro States have emerged, claiming for Statehood. It is not a new phenomenon because entities like Andorra (under the joint protection of France and Spain), Monaco (France looks after its defence and a guarantor of its sovereignty), San Marino and Liechtenstein of feudal origin have survived on the European scene, and it was never their size, but display of sovereignty that came in the way of determining their Statehood. In 1920, the League of Nations rejected Liechtenstein’s application for membership,21 on the basis of the report of its Committee which found that though juridically it was a sovereign State, “but by reason of her limited area, small population and her geographical position, she has chosen to depute to others some of the attributes of sovereignty”, such as the control of her customs, the administration of her posts, telegraphs and telephone services, for the diplomatic representation of her subjects in “foreign countries” and “has no army”.22 Liechtenstein became a member of the United Nations in 1990.23 In 1949, it acceded to the Statute of the International Court of Justice and was a party to the Nottebohm case24 San Marino, which is under the protection of Italy, likewise was a party to the Statute of the Court under Art. 93(2) of the United Nations Charter.The mini or micro States quite often are unable to conduct their international relations in a normal manner due to paucity of resources—manual and material, which may as well affect their sovereignty. At the time of Maldives Islands’ admission to the United Nations in 1965, the United States representative in the Security Council raised the issue, as the Charter “provides that applicants for United Nations Membership must not be only willing but also able to carry out their Charter obligations” and many of the small emerging entities, though willing, probably do not have the human or economic resources to fulfil this requirement. He urged to evolve some agreed standards, some lower limits, to be applied in the case of future applicants for the United Nations membership.25 But, apart from some suggestions, like the associate membership for such entities and the examination of this issue from other angles, no serious attempt has been made in this direction and the new aspirants are allowed the membership of the United Nations because of the pre-ponderant anti-colonist feeling in the United Nations and for other political reasons rather than the capacity of the new entrant to fulfil its international obligations. Further, “associate” membership also casts doubt on the__________________21 Under Art. 1(2) of the League of Nations (LN) Covenant, the membership was open to “any fully self- governing State, Dominion or Colony ... provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval and air forces and armaments”.22 Report of the 5th Committee to the First Assembly of the L.N., Dec. 6, 1920, 1 Hackworth, pp. 48-49; W.S.G. Kohn, 61 AJIL 547 (1967).

23 Byelorussia opposed its membership to the UN, terming it as a dependent State because its diplomatic relations, and post and telegraph services were looked after by Switzerland with whom it formed a customs union, GAOR, 4th Session, 6th Comm., 174th Meeting, p. 215.24 (1953) ICJ Rep., p. 122; (1955) ICJ Rep., p. 4 (II Phase).25 S/PV. 1243, SCOR, Sept. 20, 1965.


Statehood of the new entity. Nauru is the only country which has been accorded the associate member’s status.

III. NON-SELF-GOVERNING TERRITORIESThere are difficulties in applying the requisites of Statehood to non-self-governing territories— colonies, protectorates, trusteeship and mandate territories. Capacity to conduct international relations is significant in deciding the international personality of an entity, but this requirement puts under suspect the claims of many non-self-governing territories, though their number has fast shrinked in the last three decades. Such arrangements, to different degrees, limit these territories’ power over their foreign relations, and sometimes there is a total exclusion of such powers, with the consequence that they would be devoid of international personality. However, in furtherance of Charter provisions of Arts. 1, 55 and 56, numerous resolutions adopted by the United Nations General Assembly have greatly enhanced their status at international law. The General Assembly resolution 1514 (XV) of December 14, 1960, Declaration on the Granting of Independence to Colonial Territories and Peoples ,26 expressed the conviction that “all peoples have the right to self-determination” and “subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights”. Further it stated:Immediate steps shall be taken, in Trust and Non-self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will or desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.In 1963, the General Assembly established a committee, commonly known as the Decolonisation Committee or the Special Committee of 24, to assist in the implementation of resolution 1514. Resolution 1514 was later supplemented by the 1970 Programme of Action for the Full Implementation of the Declaration27 and the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States.28The endorsement of the right of self-determination set a pace for self-governance and independence of many non-self-governing territories, which were earlier either colonies or trust or mandate territories. The ambit of the principle of self-determination was extended even to “freedom movements” targeted against foreign subjugation, by the 1972 General Assembly resolution 2908 (XXVII). The General Assembly expressed its satisfaction therein with the arrangements made by Angola, Mozambique, Guinea-Bissau, Namibia and Southern Rhodesia, to allow the representatives of national liberation movements to participate in the work of the General Assembly’s special commission charged with investigating the implementation of the__________________26 The resolution was adopted by 89 votes to zero, with nine abstentions. The abstaining States were Australia, Belgium, Dominican Republic, France, Portugal, South Africa. Spain, the United Kingdom and the United States, see GAOR, 15th Session, Supp., 16, p. 66.

27 GA Res. 2621 (XXV), GAOR, 25th Session, Supp. 16, p. 10 (1970).28 GA Res. 2625 (XXV), Oct. 24. 1970. The resolution was adopted by the General Assembly without a vote. One of the principles contained in the Declaration was “The principle of equal rights and self- determination of peoples”.


1960 Declaration. The resolution urged all States and the specialised agencies and other organs of the United Nations to provide “moral and material assistance to all peoples struggling for their freedom and independence in the Colonial Territories” in consultation, if appropriate, with the Organisation of African Unity (OAU).29 This provided the legal ground for the recognition of liberation movements, which implied an international personality on the part of the “freedom movements” as well. In the United Nations practice, this resolution was put into effect in the cases of liberation of Guinea-Bissau in 1973, when it was yet considered by the colonial power Portugal as its territory, and Palestine Liberation Organisation (PLO) in 1974.In September 1973, the Party for the Liberation of Guinea and Cape Verde Islands, PAIGC, fighting for independence, proclaimed the State of Guinea-Bissau (by joining the two Portuguese territories). The new State was soon recognised by many nations. In November 1973, the General Assembly also welcomed the independence of the people of Guinea-Bissau and asked Portugal to desist from violating the sovereignty and territorial integrity of the Republic of Guinea-Bissau.30The PLO, fighting for the independent State of Palestine, was accorded the “observer status” by the General Assembly in 1974.31 This made PLO a non-voting member, since it did not have a “national territory” of its own. The “observer status” accorded some degree of international personality and entitled the PLO leader to some functional immunity in the United States. As the PLO was not a State, it could reasonably be classified ?s a governmental authority with claims to represent a people not yet established as a territorial unit to which resolution 2908 (XXVII) is applicable. The PLO has since opened its consulate offices in many Arab and Asian countries including India. It is recognised as the “sole legitimate representative of the Palestinian people” by over 100 states with which it holds diplomatic relations. It is a member of the Arab League, the Non-Aligned-Movement and the Group of 77. Its authority to represent Palestinian people is further confirmed by the Peace Treaty signed between Israel and the PLO on 13 September 1993, whereby the PLO has been allowed to form an interim government over the territorial area of Gaza strip and Jericho in the West Bank, and is in charge of the local administration.32The resolution 1514, however, proposes the application of the right of self-determination within the existing colonial boundaries. The Frontier Disputes case33 between Burkino Faso__________________29 GA Res. 2908 (XXVII), 1972.30 GA Res. 3061 (XXVIII), op. cit. 18. Over 90 members voted in favour of the resolution, 7 (including UK and USA) voted against and 30 (comprising largely European and South American States) abstained. The western governments accorded recognition only after the change of government in Portugal when it decided to withdraw Portuguese troops from any active role against independence forces, PAIGC, in mid- 1974. Arguably, PAIGC could legitimately have been granted recognition on the basis of GA Res. 2908 (XXVII) if Guinea-Bissau had not been a State in 1973.31 GA Res. 3237 (XXIX) of Nov. 22, 1974.

32 In order to have a democratically elected authority for self rule, elections were held on Jan. 21, 1996 for Palestine Council and its Presidency. Yasser Arafat won the election for Presidency. Arafat died in 2004. In the election held in 2006, Hamas won almost two-thirds of the seats in the legislative council, but it has been widely criticised over the lack of Mamas presence in the Organisation, and for that reason not recognised by many Palestinians as a true representative of Palestinians’ views. See, en.wikipedia.org/ wiki/Palestine Liberation Organization33 (1986) ICJ Rep., p. 554.


and Mali confirms that the principle of self-determination now forms part of the customary international law and in Africa particularly, it is subject to the principle of uti possidetis in accordance with para 6 of the resolution, which states, “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations”. The principle of uti possidetis was developed in the nineteenth century when the Spanish America was decolonised and extended to Africa in the twentieth century. The International Court of Justice observed: “The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved”.34Further, the principle, as enshrined in resolution 1514, has not been extended beyond the then existing colonies under the minority White regimes. The post-colonial States are reluctant to allow their minorities to exercise the right of self-determination, as it is disruptive to national integrity and international security. Thus, the Biafrans (in Nigeria), the Kurds (in Iran, Iraq and Turkey), the Somalis (in Kenya) and the Tamilians (in Sri Lanka) have been denied this right so far. However, the General Assembly has in certain cases accepted this right of peoples specifically, such as in Palestine and South Africa.35 The principle was not being upheld by the Arbitration Commission [known as Badinter Commission] of the EC Peace Conference on Yugoslavia in the cases of Serbian Republic of Krajina (declared in December 1991 consisting of Serbian enclaves in Croatia) and the Republic of the Serbian People of Bosnia-Herzegovina declared by Serbs living there in January 1992. Croatia and Bosnia-Herzegovina were two of the six republics of the Socialist Federal Republic of Yugoslavia (SFRY) before 1991. Serbs were in minority in both the republics. Slovenia and Croatia justified their declarations of independence by reference to the principle of self-determination. Instead the Commission found the principle of uti possidetis applicable in non-colonial context, as the principle of self- determination had been developed in the United Nations in the colonial context. State practice has established that minorities as such do not have the right of self-determination.36The principle has also not been adhered to in the cases of Western Sahara, Gibraltar and for some time in East Timor. Western Sahara (known also as Spanish Sahara) was colonised in 1884 by Spain and remained so till 1976. It is rich in phosphates, with a population, mostly nomads, of less than 100,000. In 1966, the General Assembly desired the colony to be freed on the basis of the right of self-determination and called upon Spain to consult with the__________________34 Ibid., at p. 566.35 GA Res. ES-7/2, GAOR, 7th Emergency Session, Supp. I, p. 3 (1980); and GA Res. 33/24, GAOR, 33rd Session, Supp. 45. p. 139 (1978) respectively. The Government of India, at the time of acceding to the two international covenants on Human Rights on March 27, 1979, put the following reservation with reference to Art. 1 of the international Covenant on Economic, Social and Cultural Rights and Art. 1 of the International Covenant on Civil and Political Rights, that the “words ‘the rights of self-determination’ appearing in those articles apply only to the peoples under foreign domination and that

these words do not apply to sovereign independent States or to a section of a people or nation which is the essence of national integrity”. On the right of self-determination, see A. Rigo Sureda, The Evolution of the Right of Self-Determination (A.W. Sijthoff. Leiden), 1973, p. 353; Antonio Cassese, Self-Determination of Peoples (Cambridge University Press) 1995.36 Harris, op. cit. 6, p. 105; Rosalyn Higgins, Problems and Process (Oxford University Press, 1994), p. 124.


neighbouring States of Morocco and Mauritania to evolve the procedure for holding of a referendum in the territory under the United Nations auspices, to enable the indigenous population to exercise their right of self-determination at the earliest possible date.37 Spain agreed to hold a referendum only in 1975. During this time, King Hassan of Morocco (who earlier favoured the United Nations stand) claimed the territory on the basis of “historic title” predating Spain’s colonisation of the territory. Mauritania made a similar claim. On the initiative of both the States, the General Assembly sought the advisory opinion of the International Court of Justice, which, on the basis of materials and information presented to it, found “the existence at the time of Spanish colonisation, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity38 ... and the territory of Western Sahara”.39Morocco considered the opinion in its favour and held a “Green (i.e., peaceful) March” into Western Sahara on November 4, 1975. The United Nations Security Council on November 6, 1975, deplored the March and called for its termination, which was not heeded to.40 A week later, tripartite talks between Spain, Morocco and Mauritania led to an agreement under which Western Sahara was to be divided between Morocco (two-third) and Mauritania (one-third), and Spain would retain 35 per cent interest in the phosphate industry. In December 1975, the General Assembly adopted two apparently conflicting resolutions,41 in one, asking Spain to take immediate steps to realise the right of self-determination of the inhabitants without making reference to tripartite agreement, and another, asking the interim administration established by Spain to take necessary steps to realise the right of self-determination, by making reference to tripartite agreement. In 1976, Spain withdrew from the territory and Morocco and Mauritania took over in accordance with the tripartite agreement. In the same year, Polisario, the independent movement of the Saharans (which was all through backed by Algeria), proclaimed the Saharwi Arab Democratic Republic (SADR), which has been recognised by more than 70 nations and is admitted as a member to the OAU.42 In 1979, Mauritania renounced its claim over Western Sahara and since then Morocco controls the whole territory although Polisario continued to wage a guerilla war. In 1991 Morocco and the Polisario Front agreed on a UN-backed ceasefire in the Settlement Plan.43 In the 2003 proposed Plan of James Baker, the Personal Envoy of the United Nations Secretary General, self-determination has been provided after a transitional period, following a referendum in which voters would have the choices of independence,__________________37 GA Res. 2229 (XXI), GAOR, 21st Session, Supp. 16, p. 72 (1966).38 It was not then a State.39 Western Sahara case (Advisory opinion) (1975) ICJ Rep., p. 12, para. 162.40 SC Res. 380 (1975), Security Council’s Resolutions and Decisions, p. 9.41 GA Res. 3458 A and Res. 3458 B (XXX), GAOR, 30th Session, Supp. 34, pp. 116 and 117 respectively (1975).42 On the Statehood of the SADR, see G.J. Naldi 25 IJlL 448 (1985).

43 In order to restore peace and to hold free, fair and impartial referendum for the self-determination of the people of Western Sahara, the United Nations peace-keeping forces are stationed there. The United Nations Mission for the Referendum in Western Sahara (MINURSO) have to fulfil this task under the Settlement Plan reached between the Moroccan Government and Polisario, see the SC Res. 1017 of Nov. 25, 1995; SC Res. 1033 of Dec. 19, 1995; SC Res. 1131, Sept. 1997.


integration with Morocco, self-government or autonomy within Morocco. Plan was accepted by Polisario but not by Morocco, which had by then reneged on its promise to hold a referendum, declaring it “unnecessary”.44The issue about the status of Gibraltar was raised by Spain in 1964, upon which the Committee of 24 and the General Assembly took the view that the wishes of the current population cannot be decisive since it is imported colonial population; the earlier, largely Spanish population left the territory when it was captured by Britain in the early eighteenth century.4- Instead, Spain and Britain should find out a negotiated solution, taking into account the interests of the population of the territory and the views expressed by the members of the Committee to resolve the issue. Paragraph 6 of resolution 1514 was emphasised, which was viewed as having retroactive effect, back to the time when Gibraltar was captured from Spain.46 In a referendum held in 2003 by the Gibraltar Government, inhabitants rejected by an overwhelming majority (99%) a proposal of shared sovereignty on which Spain and Britain were said to have reached “broad agreement”, and overwhelmingly favoured remaining British.47The East Timor case similarly shows disrespect for a time for the principle of self- determination. East Timor, which was a Portuguese colony, was to join Indonesia after independence from Portugal, in accordance with an agreement between Australia and Indonesia. An independence movement within East Timor, Fretilin, opposed it and in August 1975, it declared itself independent from Portugal by use of force. Indonesia invaded East Timor in December 1975, and defeated Fretilin forces and claimed sovereignty over the territory. In spite of the calls of the General Assembly and the Security Council to withdraw and allow the people of East Timor to decide their own future, in accordance with the principle of self-determination.48 Indonesia did not act on these resolutions for many years, but in 1999, it allowed a UN supervised referendum in which the people voted for independence. This was, however, opposed by anti-independence militia, backed by the Indonesian army. Finally, with the efforts of the United Nations, East Timor became a sovereign State of Timor Leste on May 20, 2002 and admitted to the membership of the United Nations.

A. Protected TerritoriesWhen the European nations entered into Asia and Africa, beside colonisation, they also created “protectorates” to have an access to the resources of these territories. Protectorate is always the creation of a treaty, involved a certain measure of control, and a total or partial loss of sovereignty. In many cases, it involved the loss of control of foreign relations and disappearance__________________44 The Plan has been supported by the General Assembly, GA Res. 58/109 (2003), and the Security Council, SC Res. 1495 (2003). See also GA Resolutions 59/131 [2004], 60/114 [2005], 61/125 [2006], 62/116 [2007] and SC Res. 1720 (31 October 2006).45 The current population consists mainly of Genoese, Maltese, Moroccans, British and others.

46 GA Res. 2065 (XX), GAOR, 20th Session, Supp. 14, p. 57 (1965); also GA Res. 2070 (XX) GAOR, 20th Session, Supp. 14, p. 58 (1965). In the Falkland Islands case, the Committee of 24 adopted the similar approach of “negotiated solution”.47 See the 2003 Special Committee of 24 Report, UN Doc. A/58/23, Pt II, pp. 8-9.48 GA Res. 3485 (XXX), GAOR. 30th Session, Supp. 34. p. 118 (1975); SC Res. 384 (1975), Resolutions and Decisions, p. 10.


of the protected State from the community of nations. In spite of common features possessed by “protectorates” under international law they had individual legal characteristics resulting from the special conditions under which they were created, and the stage of their development. The European nations evolved different modes of protection to serve their purpose.The European nations generally created protectorates of territories which even did not possess the international personality to enter into treaty of protection. They entered into treaties with the local rulers of tribes of Africa in underdeveloped areas, who relegated all their powers and independence to these European nations, keeping with them only the internal affairs to be conducted with the consent of the local “resident” of the foreign power. However, these arrangements cannot be termed as treaties, since the local rulers did not enjoy at any point of time, an international personality necessary to conclude a treaty.49 In such a case, the protectorate does not enjoy any international personality as such, unless it has been allowed to operate at the international plane and its competency as a State is recognised by other States. Mere recognition by the protecting State would not suffice.50But in some cases, the territory already existed as a State, and entering into an agreement for protection, does not extinguish the international personality of the protected entity, and the treaty between the two, protecting power and protectorate, is enforceable at the international plane (since it has been entered between two international persons). The extent of the powers of a protecting State in the territory of a protected State depends, firstly, upon the treaty establishing the protectorate between the two, and secondly, upon the conditions under which the protectorate has been recognised by ‘third’ States as against whom there is an intention to rely upon the provisions of these treaties.51 As such, whether the protectorate has an international personality depends upon its independent actions at the international plane and is being recognised as having the capacity to do so by other nations. The case in point is that of Morocco which existed as an independent State before it was divided into three units at the beginning of twentieth century—the city of Tangier (whose international status was guaranteed), and the French and Spanish zones. The treaties creating these two protectorates vested complete charge of the territory’s foreign affairs in the protecting State. In the Rights of US Nationals in Morocco case,52 the International Court of Justice held that Morocco retained its personality as a State under international law despite the overall control exercised by the protecting State (in this case, France). Whether the independent status of an entity which it enjoyed prior to entering into treaty, will survive the treaty depends on the interpretation of its terms. Similarly, the capacity of the protectorate to regulate its international obligations depends entirely on the terms of the treaties.__________________49 The point was made by Max Huber in the Island of Palmes case (Arbitration) that contracts made between a State or a company and the chiefs of people or native princes not recognised as members of community of nations “are not, in the international law sense, treaties or conventions capable of creating rights and obligations such as may in international law arise out of treaties” (1928) 2 UNRIAA 829 at p. 858.

50 The case in point is that of Kuwait, which became a British protectorate in 1899. and was gradually allowed to conduct its international relations and formally recognised as an independent State in 1961 by Britain by an Exchange of Notes between the two.51 See Nationality Decrees in Tunis and Morocco case (Advisory Opinion), PCI.) Rep., Series B, No. 4, p.(1923).52 (1952) ICI Rep., p. 176 (US v. France).


A protected State may be allowed to enter into treaties and conduct its foreign relations with substantial measure of independence. For example, Cyprus had been accepted as a State and is a member of the United Nations since 1960, in spite of the right of intervention of the guaranteeing powers (Greece, Turkey and Great Britain) in its affairs. In the Indian protected State of Bhutan, Art. 2 of the 1949 Treaty of Friendship between India and Bhutan reads, “The Government of India undertakes to exercise no interference in the internal administration of Bhutan. On its part, the Government of Bhutan agrees to be guided by the advice of the Government of India in regard to its external relations”.53 Bhutan became a member of the United Nations in 1971.In certain cases, because of the smallness of their size, certain States accept the protection of other States without destroying their position as sovereign States. Such arrangements exist for Liechtenstein (as stated above), Monaco and San Marino. The status of Monaco stems from a treaty of 1918 between Monaco and France, whereby France assured the principality of Monaco to defend its independence and sovereignty and guaranteed its territory. If the Monaco Prince will not have an heir, the territory will come directly under the French protection. Thus, Monaco retains an independent status although for political and economic necessity is largely dependent upon French goodwill. Similarly, San Marino is under the general protection of Italy, but accedes to treaties in its own name and was a party to the Statute of the International Court of Justice under Art. 93(2) of the United Nations Charter. The States in this category, though under the protection of other States, are not “protectorates” in the sense the term is associated with the underdeveloped and exploited territories.Where the protecting State has overall control to conduct the foreign relations of the protectorate, even though the protectorate can enter into treaties in its own name, the protecting State is bound by international obligations relating to the protectorate if it has concluded treaties on its behalf, because it is within the scope of its authority to bind the protected State.54

B. Mandates and Trust TerritoriesLike the protectorate which is now a dying species, the mandate system of the League of Nations no longer applies to any territory. The system was created after the First World War to deal with the future administration of the overseas possessions of the “Axis” States of Germany and Turkey, and which were inhabited by people not able to govern themselves. Three categories of mandates: A, B and C, were devised for the territories “according to the stage of their development” (Art. 22 of the Covenant of the League). Class A comprised territories which were formerly part of the Turkish Empire and were sufficiently advanced for their independence to be “provisionally recognised”, subject to the administrative advice and assistance of the Mandatory, “until such time as they were able to stand alone”. Except Iraq (Mandatory—Great Britain), which achieved early independence, all the territories under this category—Palestine and Transjordon (Mandatory—Great Britain), Syria and Lebanon (Mandatory—France) became independent only after the Second World War.__________________53 157 BFSP, p. 214. The treaty has to remain in force in perpetuity (Art. 10).

54 Rights of US Nationals in Morocco case, op. cit 52.


Class B consisted mainly of territories of Central Africa which were still at a stage of development. The Mandatory was responsible for their administration, subject to a variety of guarantees and was under obligation to allow trading opportunities to other League members. These territories were: British and French Cameroons, British and French Togoland, Tanganyika (Mandatory—Great Britain), and Ruanda-Burundi (Mandatory—Belgium). All these territories are now free, independent countries. Class C mandates were the least-developed and “owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical continuity to the territory of the Mandatory”, they were “best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards ... in the interests of the indigenous population”. The territories concerned were: Nauru (Mandatory powers were Great Britain, Australia and New Zealand), New Guinea (Mandatory—Australia), Western Samoa (Mandatory—New Zealand), Pacific Islands north of the Equator (Mandatory—Japan), South-West Africa (Mandatory—South Africa).In none of these cases sovereignty was transferred to the Mandatory. But the mandates in category C gave rise to many problems. The ambivalent status accorded to these mandates, the nature of the territories (least-developed, but rich in natural resources) and the integration with the Mandatory (by the application of its laws, etc.) allowed under the Covenant of the League, made the Mandatory powers to claim sovereignty over them, particularly in the case of South Africa, which was wary of its security interests from the German population of the South-West Africa. Except Great Britain, all other Mandatory Powers, viz., Australia, New Zealand and South Africa, read the mandate agreement as an authorisation for annexation of mandate territories in accordance with the expression “as integral portions of its territory” used in Art. 22 of the Covenant. But this view was not accepted by the International Court of Justice and mandate was considered to be a “sacred trust”. In the Namibia case55 the Court refused to give class C mandates an object and purpose different from those of A and B mandates. “To hold otherwise would mean that territories under C mandate belonged to the family of mandates only in name, being in fact the objects of disguised cessions as if the affirmation that they could be best administered under the laws of the Mandatory as integral portions of its territory ... conferred upon the administering power a special title not vested in States entrusted with A or B mandates.” Thus, the Mandatories under all the categories were given only the administrative powers and responsibilities that varied according to the category of mandate.

The United Nations Trusteeship CouncilUnder the Charter of the United Nations, the Trusteeship Council was created as one of its principal organs to help ensure that trust territories were administered in the best interests of their inhabitants After the coming into force of the United Nations, the mandate system was replaced by the “trusteeship system”. Art. 77 of the Charter provides:The trusteeship system shall apply to such territories in the following categories as may be placed there under by means of trusteeship agreements:

__________________55 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa), (1971) ICJ Rep., p. 16 at p. 32.


a. territories now held under mandate;b. territories which may be detached from enemy States as a result of the Sccond World War; andc. territories voluntarily placed under the system by States responsible for their administration.Following this, all the former mandated territories were placed under the trusteeship system by their mandatories (who were then appointed as the administering authorities in the same territories) except territories under category A, the Pacific Islands which were taken away from Japan, the former mandatory, after the war and made into a “strategic trust area” administered by the United States, and South-West Africa.South Africa refused to negotiate a trusteeship agreement and place South-West Africa under the supervision of the United Nations. South Africa claimed that it was entitled to incorporate South-West Africa into its territory in accordance with Art. 22 of the Covenant of the League (as an “integral part of its territory”). This claim was not acceptable to the United Nations. In its advisory opinion, sought by the General Assembly, the International Court of Justice rejected the South African argument that with the dissolution of the League of Nations in 1946, mandate had also lapsed. The Court opined that if the mandate had lapsed so did the South Africa’s authority over South-West Africa, it was not possible for South Africa to alter its relationship with South-West Africa without the authorisation of the United Nations General Assembly. However, there is no duty on the mandatory to effect the change by negotiating a trusteeship agreement and place such territory under the United Nations’ Trusteeship System as embodied in Art. 77(1) of the Charter.56 After a protracted conflict between South Africa, on the one hand, and the United Nations and the South-West Africa Peoples Organisation (SWAPO), the national independence movement of South-West Africa, on the other hand,57 South-West Africa became an independent State of Namibia in April, 1990.The object of the United Nations trusteeship system is to enable dependent territories to attain self-governance under the guarantee of international supervision, which is aimed to promote international peace and security by the elimination of wars of independence (Arts. 73 and 76(a)). It envisages the trusteeship agreements whose terms are to be “agreed upon by the States directly concerned” (Art. 79) and which are “approved by the General Assembly” (Art. 85) or the Security Council in the case of trusteeship of a “strategic area” (Art. 83). Besides the former mandate territories, which were brought under the trusteeship system in accordance with this procedure, Somaliland was made a trust territory after the Second World War for a brief period of 10 years__________________56 International Status of South-West Africa case, (1950) ICJ Rep, p. 128.57 The ICJ gave four advisory opinions and one judgment concerning the legal status of South-West Africa and the United Nations jurisdiction over it: International Status of South-West Africa case, Ibid; Voting Procedures case, (1955) ICJ Rep., p. 67; Admissibility of Hearings case, (1956) ICJ Rep., p. 23; and the Namibia case, op. cit. 55. In the South-West Africa cases (II Phase), (1966) ICJ Rep., p.6, Liberia and Ethiopia (both were League of Nations members) separately filed a case against South Africa for

the alleged violations of its obligations under the mandate. The Court did not find any infringement of the “interest” of the applicant States, which would entitle them to have a locus standi in the case against South Africa. The General Assembly by its Res. 2145 (XXI) of 1966, terminated the mandate of South Africa over South-West Africa and created the UN Commission for Namibia to look after the interests of the territory. In the same vain, the Security Council also adopted Res. 276 in 1970.


(from 1950 to 1960).58 In all, the United Nations trusteeship system applied to 11 territories,10 former mandates and one territory—Somaliland. All these territories have now become independent. With the independence of the last mandate territory of Palau (i.e., Pacific Islands) in November 1994, and with no possibility of bringing any new territory under the trusteeship arrangement, the mandate and trusteeship system have now become of academic interest only.59The mandate and trusteeship systems, as such, are devoid of creating any international personality for the territories administered under these systems. To this system, “the doctrine of sovereignty” has no application, which remains in abeyance until “the inhabitants of the Territory obtain recognition as an independent State”.60 Thus, until independence is in prospect and there is a degree of internal self-government, a mandate or trust territory cannot be regarded as having some semblance of international personality. Conversely, until independence is achieved, such territory cannot be considered as a State for international law purposes.

IV. PUBLIC INTERNATIONAL ORGANISATIONSThere has been a tremendous growth in the number of public international organisations since the Second World War. The number of inter-governmental organisations has been put over 1800,61 of different sizes ranging from near universal to regional membership, such as European Economic Community (EEC)—now European Union (EU) and Association of South-East Asian Nations (ASEAN), South Asian Association for Regional Cooperation (SAARC) etc., and with specialised functions such at North Atlantic Treaty Organisation (NATO) and now the defunct COMCUOM. While talking about their status as a subject of international law, one has to look into their constitution, which is the outcome of a treaty among States. It is, however, rarely that the constitution of an international organisation would provide and clothe it with international personality. Consequently, the question of whether an institution possesses an international personality can only be answered by inference from the type of functions, powers, privileges and immunities exercised by it, conferred by or to be implied from its constitution or agreements concluded by it.The legal capacity of these organisations under the municipal law, many a times, finds an explicit mention in their constitutions. For example, Art. 104 of the Charter of the United Nations provides, “the Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes”. Article 39 of the Constitution of the International Labour Organisation (ILO) similarly___________________58 It was earlier administered by Italy, from whom it was taken away immediately after the war. The former Dutch colony, West Irian, was also temporarily administered by the United Nations for few months in 1962-63 before it was transferred to Indonesia in accordance with the right of self-determination.59 Palau was admitted to the United Nations in Dec. 1994, and became the 185th Member State of the UN.

After its mission fulfilled, the Trusteeship Council suspended its operation on I November 1994, but it continues to exist on paper, though its future role and even existence remains uncertain. In March 2005, UN Secretary-General Kofi Annan proposed the complete elimination of the Trusteeship Council as a part of proposed UN reforms. However, the formal elimination of the Trusteeship Council would require the revision of the UN Charter.60 As per Judge McNair in South-West Africa case, op. cit. 56, at p. 150.61 Yearbook of International Organizations 2005-2006.


says: “the International Labour Organisation shall possess juridical personality and in particular the capacity: (a) to contract; (b) to acquire and dispose of immovable and movable property; (c) to institute legal proceedings”. These provisions are generally coupled with the requirement that the organisation and its officials, as well as representatives of the member nations should be entitled to such privileges and immunities under municipal law as are necessary for carrying out their functions. The 1946 Convention on Privileges aid Immunities of the United Nations endows the United Nations and its officials with legal capacity in the territory of each of its members. In the Reparation case,62 the Court observed that it is “difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality”.In this case, the United Nations sent the forces to the Middle-East, after Israel’s unilateral declaration of independence on May 14, 1948, and subsequent attack by neighbouring Arab States. On September 17, 1948, Count Bernadotte, a Swedish national, was killed allegedly by a private gang of terrorists in the new city of Jerusalem, then under the Israeli possession. Count Bernadotte was the chief United Nations Truce Negotiator in the area. Israel was not the member of the United Nations and became its member on May 11. 1949, shortly after the International Court of Justice gave its advisory opinion, sought by the General Assembly about the action that could be taken for the death of Count Bernadotte. The Court was asked to determine the capacity of the United Nations, as an organisation, to bring an international claim for compensation against a State. In answer to this question, the Court opined that an international organisation (the United Nations itself in that case) which has been empowered by its constitution to carry many functions and conclude agreements with its members, enjoying immunities, privileges and capacity in the territory of each member State, confirm its position as an independent entity. The Court stated that:The Organisation was intended to exercise and enjoy, and in fact, exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and capacity to operate upon an international plane .... [I]ts Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.63Even though an entity may lack some of the indicia of personality, it does not necessarily follow that it cannot be considered an international person, because in the Court’s opinion, the subjects of law need not be identical, they may differ in their nature and extent of their rights.64 Accordingly, the Court found enough evidence that the entity has the international personality by observing that:the Court has come to the conclusion that the Organisation is an international person. That is not the same thing as saying that it is a State, which it certainly is not.... What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.65__________________62 Op. cit. 2.

63 Ibid., at pp. 178-179.64 Ibid, at p. 179.


The Court advised that “the United Nations has the capacity to bring an international claim against the State for obtaining reparation when an agent of the United Nations suffers injury in the performance of his duties in circumstances involving the responsibility of State”.66 Thus, by implication, the Court rejected the proposition that only the States are subjects of international law. The objective status of the Organisation (i.e., the United Nations), which has the capacity to bring a claim against a State who is not even the signatory to its constituent instrument, however, was very cautiously asserted by the Court when it remarked:that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality and not merely personality recognised by them alone, together with capacity to bring international claims.67This, however, leaves open the status of organisations with small number of States as their members. The organisations like European Coal and Steel Community (ECSC), European Economic Community (EEC, now EU), and European Atomic Energy Agency (EURATOM) have some degree of international personality, either expressly provided in their constituent instruments or impliedly, since all of them have made agreements with third countries and international organisations, which can be classified as treaties and clothes the entity with international personality. Whereas ECSC has been expressly accorded legal capacity,68 the Treaty of Rome (incorporating EEC) and EURATOM do not contain any specific provisions but are allowed to enter into agreements and contracts with other countries and international organisations (in the case of EURATOM, with nationals of third States as well).69 These communities are competent to perform diplomatic relations also and are presently exercising the right of passive legation by receiving and accrediting representatives from and to States.70 The communities have the observer status (non-voting member) in the United Nations General Assembly and have participated in international conferences. All these are pointers to the fact that their corporate status has been tacitly accepted at the international plane and clothe them with international personality. There have been many other regional economic organisations, such as ASEAN, ANDEAN, NAFTA etc. in various areas of the world and the general attitude of tolerance of international community towards them has well established the international personality of such institutions.The most important characteristic of the personality of an entity is its treaty-making power. In the Reparation case, the Court referred the treaty-making power by citing specifically the 1946 Convention on Privileges and Immunities of the United Nations.71 The treaty-making power of international governmental organisations is well-entrenched in the United Nations practice,__________________66 Ibid., at p. 174.67 Ibid., at p. 185.68 Art. 6 of the ECSC (1951) states, “in international relations ... the legal capacity it requires to perform its functions and attain its objectives”, 261 UNTS 140.69 Art. 113(3), Rome Treaty 1957, 298 UNTS 11; and Art. 101, EURATOM Treaty 1957, 298 UNTS 167.

70 About 150 States have missions, usually at ambassadorial level, accredited to EU (presently consisting of 27 members) in Brussels. Art. 281 of the Rome Treaty establishing EC provides it with legal personality.71 Op. cit. 2, at p. 179.


and the 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations72 confirms that they have the capacity to enter into treaties.Although privileges and immunities, treaty-making powers, and the right to take part in international adjudication (or to bring claims) are important indications of the existence of the international personality of international organisations, they are constrained by their constituent instruments, resolutions and decisions to determine the limits of their personality. Thus, the legal personality of international organisations is now an accented fact, but unlike States, they do not enjoy unlimited power. Typical approach about their legal personality remains a functional one, i.e., the functions and powers the organisation perform at the international level rather than the abstract notion of international personality. Further, the fact that most organisations, created by multilateral inter-governmental agreements, pose a general problem of dissolution, for in the nature of things, the personality of all such organisations can be brought to an end by amending or terminating the constituent instruments.73 It is also important to note that the opinion of the International Court of Justice in the Reparation case is plagued by the dogma of the provisions of the Statute of the Court that only States can be parties in cases before the Court (Art. 34(1)). The result will be that although the United Nations is entitled to bring an international claim, it is not entitled to do so before its own judicial organ.

V. INDIVIDUAL AS SUBJECT OF INTERNATIONAL LAWThere have been substantial doctrinal differences over the international personality of an individual. The traditionalists accept States as the only subjects of international law. According to them, the individuals are incumbents of rights and duties at international law in so far as they are objects and not subjects of international law. The cases of pirates jure gentium or slaves who find a specific mention under international law, or the rules related to the protection of foreign sovereigns and their diplomatic representatives are explained by terming States as “subjects” and individuals as “objects” of international law. According to them, in the ultimate analysis, the so called rights or duties of slaves and pirates jure gentium, and foreign sovereigns are technically those of States only. As such, in the case of slaves, the States have accepted the obligation to protect their rights under international conventions,74 without which they would not have possessed any right under international law. Similarly, the pirates jure gentium, who are considered as enemies of mankind are punished under the municipal law of the apprehending State. Thus, no rule of international law operates directly or indirectly upon individuals without some municipal legislation. The liability of pirates and the rights of slaves and immunity of foreign sovereigns derive from municipal law.Against this view of traditionalists, others consider the individuals alone as subjects of international law; chief among them is the noted jurist Kelsen (1881-1973). A similar view was__________________72 For the text, see 25 ILM 543 (1986).73 D.W. Bowett, The Law of International Institutions, 4th ed. (Sweet & Maxwell, London), 1982, p. 339.

74 Article 13 of the Geneva Convention on the High Seas, 1958, provides that any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free; Art. 99 of the UN Convention on the Law of the Sea, 1982, also provides similarly.


earlier held by Westlake who had remarked: “the duties and rights of States are only the duties and rights of men who compose them”.75According to Kelsen, in the ultimate analysis, the concept of State waters down to the collectivity of individuals living in a definite territorial area, who are subjected to certain rights and obligations. Accordingly, the duties of States under international law are the duties of individuals. In his view, there is no real distinction between international law and municipal law. Both of them bind individuals, though international law does so only mediately and through the concept of State, the municipal law does so immediately.76 Kelsen’s view, though logically correct, is not supported by State practice which clearly establishes that the primary concern of international law is the rights, duties and interests of States. Nonetheless, the State practice points out that the individual is increasingly becoming the concern of international law, who has been subjected to certain rights and duties under the conventional rules of international law. Since the First World War, it has continuously empowered the individual to a substantial extent (mainly in the field of human rights). However, the fact that certain rules of international law apply to individuals, or invest them with certain rights and subjecting to certain obligations, does not necessarily mean that individuals are legal persons in international law, unless they are endowed with treaty-making power and the procedural capacity to be a party to international adjudication.So far as the procedural capacity of an individual is concerned, now there is no strict adherence to the doctrine that States are the exclusive subjects of international law. Although before the International Court of Justice, only States can be parties, a number of other international instruments have recognised the procedural capacity of the individual.77 In the treaties concluded after the First World War, Treaty of Versailles, 1919 (Arts. 297 and 304), and the Polish-German Convention of 1922 relating to Upper Silesia, the individual claimants were allowed access to various Mixed Arbitral Tribunals, set up pursuant to the provisions of these instruments even against the State of which they were nationals.78 The 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States has enabled private foreign investors to have access to international machinery, set up under the auspices of the World Bank, for the settlement of their disputes with the investment receiving States. The procedural capacity of the individual (also of private enterprises and corporate entities) has been recognised before the European Court of Justice of the Communities.79 The Iran-United States Claims Tribunal, established in 1981 after the relations between the two countries became strained over the hostages__________________75 Collected Papers, Vol. I (1914), p. 78, quoted in J.G. Starke, Introduction to International Law, 10th ed. (1989), p. 59.76 H. Kelsen, 14 Hague Recueil 231 (1926).77 The early instance of investing individual with procedural capability is that of the Central American Court of Justice (1907-18), operated only among five nations: Costa Rica, Guatemala, Honduras, Nicaragua and San Salavador. The Court had jurisdiction to deal with disputes between States and private individuals. In its brief tenure of 11 years, only five cases were brought by individuals, which ended without success.

78 For example, see Steiner and Cross v. Polish State. 4 AD, Case No. 188 (1927-28).79 The Court in Yun Duyn v. Home Office (No. 2) (1975) 3 All E.R. 1190, held that the provisions concerning freedom of movement in Art. 48 of the Treaty of Rome (constituting EEC) and Art. 3 of an EEC Directive as to the movement and residence of foreign nationals, conferred rights directly on individuals, enforceable in the courts of EEC member States.


issue, considered claims by the United States and its nationals against Iran and vice-versa. The claims could be brought directly by the individuals, particularly by companies.80 In the United Nations practice, the United Nations officials have the right to bring proceedings before the United Nations’ Administrative Tribunal to decide about their service matters, viz., alleged non- observance of their contracts of employment or the terms of their appointment.In the sphere of substantive law, there are many treaties which have conferred certain rights on individuals and subjected them to some obligations. Among the many treaties concluded after the First World War, where individuals were granted rights directly or indirectly enforceable against foreign States, the Upper Silesian Convention was typical of such treaties. Article 5 of this Convention stated that “the question of whether or to what extent, an indemnity for the abolition or diminution of vested rights must be paid by the State will be settled by the Arbitral Tribunal on the complaint of the person enjoying the right” (emphasis added). The Permanent Court of International Justice in its advisory opinion in the case of Jurisdiction of the Courts of Danzig81 recognised that there is nothing under international law to prevent individuals from acquiring rights directly under a treaty, if the parties intended to confer such rights which should receive recognition and effect at international law. It observed that “the very objcct of an international agreement ... may be the adoption by the parties of some definite rules creating individual rights and obligations and enforceable by national courts”.82 In this case, Poland contended that its agreement with Danzig (whom she had taken over) fixing the conditions of employment of Danzig railway officials conferred no right of action on these officials. Since this agreement was treaty by nature, enforceable between the parties only, thereby creating no right for private individuals, it involves Poland’s responsibility only towards Danzig. The Court, though admitted this as a general rule, did not see any reason why a treaty cannot grant individuals the right to prosecute a claim against a foreign State in proceedings before the municipal courts when they are the “beneficiaries” of the right. The Court held that certain Danzig railway officials could bring an action before the Danzig courts against the Polish State Railways for the recovery of compensation payable under an international agreement binding on Poland and Danzig.The more recent example of a treaty conferring individuals with rights under international law is the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space. State parties are under a duty to rescue and assist where astronauts land in territory under their jurisdiction, to assist in search and rescue operations in the event of their landing on the high seas or places not under the jurisdiction of any State, and assist in the safe and prompt return of the astronauts to the representatives of the launching authority. Again, the Geneva Convention on Prisoners of War, 1949, as supplemented by two Protocols of 1977—Protocol I relating to the Protection of Victims of International Armed Conflicts and Protocol II on the Protection of Victims of Non-International Armed Conflicts, confer wide range of powers on the individuals involved in armed conflicts.The fact that international law binds individuals directly was further confirmed and strengthened by the war crimes trials following the Second World War, where the

principle of individual responsibility for breach of international obligations was given extended application.__________________80 See R.B. Lillch (Ed.), The Iran-US Claims Tribunals 1981-83 (University Press of Virginia), 1984.81 PCIJ Rep., Series B, No. 15 (1928); see also PCIJ Rep., Series B, No. 11 (1925).82 Ibid., at pp. 17-18.


Two tribunals were set up—the International Military Tribunal at Nuremberg by the Agreement of August 8, 1945, and the International Military Tribunal at Tokyo by the Charter of January 19, 1946, for the trial and prosecution of war criminals. The offences for which charges were laid were (a) crimes against peace, e.g., starting a war of aggression; (b) crimes against humanity, i.e., murder or persecution of racial or religious groups; (c) war crimes, i.e., crimes under the laws of war; and (d) the conspiracy to commit these crimes. The theoretical objections to prosecute heads of State, ministers and high military and administrative officials responsible for initiating the war and authorising or committing other inhuman acts were disregarded.83 In rejecting the defendants’ contention that it was the German State alone which could be liable for acts contrary to alleged rules of international law, the Nuremberg Tribunal stated that:... international law imposes duties and liabilities upon individuals as well as upon States has long been recognised... Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes the provisions of international law be enforced.84The principles of the Nuremberg Agreement and Judgment were reaffirmed by the General Assembly in its resolution of December 11, 1946.85 These principles were subsequently formulated as a Draft Code of Principles Recognised in the Tribunal’s Judgment by the International Law Commission (ILC) and presented to the General Assembly in 1950.The Genocide Convention adopted by the General Assembly on December 9, 1948, further strengthened this trend by attaching direct responsibility upon individuals for committing crimes of genocide (i.e., acts committed with intent to destroy in whole or in part national, ethnical, racial or religious groups) and making them punishable by national courts or by international criminal tribunal. Reference has been made to persons as being guilty of crimes (similar to the Draft Code of the ILC). Article IV explicitly provides that persons committing the acts should be punished regardless of their official or private position. Thus, international law can now reach over and beyond traditional technicalities and make the individual directly responsible for his criminal acts.The Agreements and the judgments of the Nuremberg and Tokyo Tribunals as well as Genocide Convention, by proclaiming the criminality of offences against humanity or human groups provided that such offences, which are against the fundamental rights of man to life and liberty will be punishable even if committed in obedience to the law of the State. They have clearly established that the individual is endowed with certain rights under international law and their violation is a criminal act. They, in fact, have set the pace to protect human rights and fundamental freedoms of the individual, for which the provisions have also been made in the Charter (Arts. 1, 55 and 56). The United Nations has adopted numerous instruments83 The tribunal rejected their plea that they had been subjected to international crimes under the rules of ex post facto since such crimes as crimes against peace or crimes against humanity did not exist prior to 1940; defendants must have known that their actions were illegal and wrong. This ruling was widely criticised. Some writers criticised the propriety and legality of the tribunals as they were constituted by

Agreement between Four Allied Powers: France, Great Britain, the United States and Soviet Union, see H. Kelsen, 1 ILQ 153 (1947), G.A. Finch, 41 AJIL 33 (1947).__________________84 Official Record, Official Documents, Vol. I, at p. 223; 41 AJIL 221 (1947).85 GA Res. 95(1), GAOR, Resolutions, First Session, Part II, p. 188 (1946).


and declarations on this matter, including the most notable, the 1948 Universal Declaration of Human Rights.86 These instruments to a great extent have empowered the individual to enforce those rights even against their own State. “Peoples as such” have also been provided certain inalienable rights under international law, such as the right to self-determination, the right to choose their political, economic and social system, and the right to dispose off wealth and natural resources of their territory. These rights have been recognised in the 1970 Declaration on the Principles of Friendly Relations and Cooperation among Nations,87 and in the Namibia case, the Court referred to the people of the territory as a “jural entity” and as an “injured entity”.88 Even the ethnic, religious and linguistic groups now enjoy these rights.89 However, the most notable achievements in the sphere of human rights have been in Europe under the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The Convention governs the relations between the State-parties and all persons under their jurisdiction. Individuals within the territorial jurisdiction of member States are granted the right to petition directly to the European Court on Human Rights under Protocol 9 (adopted in 1990), which amended Art. 44 of the Convention, that required the petition to be submitted to the Commission. The Protocol came into effect in 1992.90 The Protocol has highly augmented the position of an individual as a subject of international law.The rights of, or obligations binding, individuals under international law are generally enforceable at the instance of or against those States only whose nationality such individuals possess. It is the nationality of the individual that determines who may bring a claim at the international plane; nationality places him under the domestic jurisdiction of the State. In other words, an individual cannot sue or be sued to assert his claim before an international tribunal or be answerable for failing to fulfil his obligations in his own right. But such procedural incapacity of the individuals before international tribunals has not prevented the supporters from claiming international personality for them, by equating their case with minors under municipal law, who can be a party to any litigation before the municipal courts through their guardian ad litem.However, there is no denial of the fact that despite the increasing exceptions created in the traditional international law, subjecting individuals with rights and duties, and endowing them with legal capacity in certain cases, the position of individual at the international plane, to a great extent, depends at the express or implied will of the State. As to this Jessup has stated:So long ... as the international community is composed of States, it is only through an exercise of their will, as expressed through treaty or agreement or as laid down by an international authority deriving its power from States, that a rule of law becomes binding upon an individual.91Whether an individual will benefit from treaty guarantees that a State secures for its nationals, depends on his nationality. The individual enjoys these rights so long as the State stays as a party to the treaty. Moreover, the treaties bestowing rights on individuals invariably have the__________________86 The subject of Human Rights has been treated separately, infra Ch. 10.87 GA Res. 2625 (XXV) Oct. 25, 1970.

88 Op. cit. 51, at p. 56.89 See Art. 27 of the 1966 Covenant on Civil and Political Rights.90 For a detailed discussion on the European Convention on Human Rights, see Ch. 10 infra.91 Philip C. Jessup, A Modern Law of Nations, 4th ed. (MacMillan, New York), 1952, p. 17.


withdrawal clauses or can be denounced, and this is so even with the European Convention, which brings to an end the individuals rights at the international plane against their own State.Thus, it can safely be stated that individual is becoming the increasing concern of international law and many treaties are specifically aimed at the betterment of its position, such as humanitarian treaties or the large number of conventions adopted by the International Labour Organisation, and he has been subjected to obligations and enjoys procedural capacity in a few exceptional cases. But a wide gap still exists before the international law confers rights on individuals directly and ex proprio vigors without necessarily operating for this purpose through the medium and under the cover of the State. The individual’s position is still not equivalent to the States and international organisations.

Page 105

CHAPTER 5Recognition of States and Governments

I. RECOGNITION IN GENERALThe international community often witnesses territorial changes in the political map of the world. New States are born out of the existing States, or old States disappear by merging with other States, or splitting into many new States. Revolutions occur and new governments take over. For example, after the disintegration of the Socialist Federal Republic of Yugoslavia, starting in 1991, many new states have emerged, viz., Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia and Kosovo (the last declared independence in 2008). A new state of South Suden has emerged from Sudan in July 2011. The members of the international community cannot remain indifferent to these developments. It is for them to approve or disapprove these changes. It is through recognition, a State expresses its approval of the change in the State or the government that has occurred. International community also faces the problem of recognition of national liberation movements and situations of insurgency and belligerency, and other territorial changes brought out by States actions.Recognition is concerned with the status of the new entity (a) on the international scene and (b) within the municipal legal system of the recognising State. Through recognition, a State manifests its willingness to maintain necessary international intercourse with the new entity or the government. Recognition is a unilateral act of cognitive nature of a recognising State, which is followed by certain legal consequences.According to the Institute of International Law, the recognition of a new State is:the free act by which one or more States acknowledge the existence on a definite territory of a human society politically organised, independent of any other existing State and capable of observing the obligations of international law, and by which they manifest therefore, their intention to consider it a member of the international community.1In the opinion of Schwarzenberger, “Recognition is a means by which States express their willingness to acknowledge vis-a-vis themselves the existence, and legal effect, of a situation or transaction which, in the absence of such recognition, would not be opposable to them”.2 Oppenheim states that through recognition, the recognising State declares that “a foreign community or authority is in possession of necessary qualifications of Statehood, of governmental capacity, or of belligerency”.3 Different criteria are applied in the recognition of a State and of a government.__________________1 Article I of the Resolution adopted at Brussels on April 23, 1936, in 30 AJIL Supp., p. 185 (1936).2 G. Schwarzenberger, A Manual of International Law, 5th ed. (Stevens & Sons Ltd., London), 1967, p. 69

3 L. Oppenheim, International Law, Vol. I, 9th ed. (Lauterpacht (Ed.), Longmans, London), 1952, p. 127.


Before a new entity is recognised as a State, it should fulfil the essential attributes of Statehood as mentioned in the Montevideo Convention,4 i.e., population, defined territory, a government, and the capacity to conduct its international relations independently.In State practice, definiteness of territory is not held as a sine qua non for recognition of a new entity, as is evident in the case of Israel which was recognised immediately upon its independence on May 14, 1948, by the United States and many other nations. Similarly, the requirement of a stable and effective government for Statehood, has not been applied rigidly.5 There is, however, no criterion for the recognition of a government as such, except that in the opinion of the recognising State the recognised government is willing to fulfil its international obligations and capable of representing the State, i.e., it commands the general support of the population. In other words, the government should have factual control and sufficient degree of stability. When a new State comes into existence, its recognition also covers the recognition of its government.But in spite of possessing the essential attributes of Statehood by a community or a government endowed with essential qualifications, it may be denied recognition for the simple reason that recognition is more a political act than the legal obligation which makes the subject of recognition very difficult. International law does not provide any machinery for an authoritative declaration; neither does it provide any precise rules or principles on the issue. Each State decides about whether or not a new State has come into being. For these reasons, the International Law Commission which in its first session, held in 1949, included “recognition of States and Governments” as one of the topics considered suitable for codification, subsequently dropped this topic from its list on the ground that “the questions of recognition pertain to the province of politics rather than of law”.6 In the absence of codified rules, the subject of recognition is governed by State practice which is very fluid, inconsistent and unsystematic, and does not help in evolving the clear rules. Granting of recognition to national liberation movements and entities, such as Palestine Liberation Organisation (PLO) and South-West Africa Peoples’ Organisation (SWAPO) has further added confusion to the State practice on recognition.The practice of most States shows that recognition is more a question of policy than of law. States, motivated by their self-interest, grant or withhold recognition for political exigencies, diplomatic considerations or strategic reasons that lack strict legal justifications. For example, India granted recognition to Israel (established as a sovereign State on May 14, 1948) on September 17, 1950, but did not establish diplomatic relations till January 29, 1992. India’s belated recognition of Israel and the non-establishment of diplomatic ties were due to the attitude of Arab states towards Israel who, except Egypt, did not recognise Israel for long.7 On the other hand, India__________________4 Article 1 of the Convention, see in 28 AJIL Supp., 75 (1935).5 The former Belgian Congo (later Zaire, and now from June 1997 as Republic of Congo), Burundi and Ruanda were granted independence when they were without effective government; see R. Higgins, Development of International Law through the Political Organs of the United Nations (Oxford University Press. London), 1963, pp. 21-23.

6 YhlLC, Vol. II, p. 289 (1949).7 The PLO and Israel had signed an agreement on Sept. 13, 1993, recognising each other. Jordan and Israel signed a peace treaty on Oct. 26, 1994, which amounts to mutual recognition. More recently, South Sudan seceded from Sudan on 9 July 2011 as a result of referendum held in January 2011, without having an effective government.

Page 107 RECOGNITION OF STATES AND GOVERNMENTS

was the first country to grant recognition to Bangladesh on December 6, 1971, mainly because of political considerations. India granted recognition to People’s Republic of China’s government on December 30, 1949 (one of the first States out of the communist bloc to recognise), while the United States granted recognition only on January 1, 1979. During the First World War, the Allied Powers and other countries recognised Poland and Czechoslovakia before they actually became as independent States or governments.Recognition of governments-in-exile and national liberation movements is governed by the same considerations of diplomacy and self-interest as in the case of recognition of States and governments. For example, PLO, which was granted the observer status by the United Nations General Assembly in 1974,8 declared the establishment of the independent State of Palestine on December 15, 1988 by its Parliament-in-exile or Palestine National Council.9 The Government-in-exile of Palestine was based in Tunisia and recognised by a number of States including India,10 which granted recognition to SWAPO as well.11 During the Second World War, the United Kingdom and the United States recognised many governments-in-exile even though they lacked effective control over the territory of the State. Similarly, Algeria’s National Front of Liberation established Provisional Government of the Algerian Republic on September 19, 1958 in Cairo, which was recognised by many countries before being granted independence by France in 1962.The fact that recognition is a unilateral act whose time and mode is determined by extra legal considerations was made amply clear in the United States Department’s communication to the New York Court of Appeal in 1933, on non-recognition of Soviet Union, which stated:... refusal of the Government of United States to accord recognition to the Soviet regime is not based on the ground that the regime does not exercise control and authority in the territory of the former Russian Empire but on other facts.12Undoubtedly, apart from the element of discretion left to States in assessing the facts concerning the existence of a new State and in determining the act of recognition, political considerations play a vital role. The political character of recognition is very explicit in the statement made by the United States representative, Mr. W.R. Smith, in the Security Council at the time of recognition of Israel, who stated:I should regard it as highly improper for me to admit that any country on earth can question the sovereignty of the United States of America in the exercise of that high political act of recognition of the de facto status of a State.13__________________8 GA Res. 3237 (XXIX) of Nov. 22, 1974.9 The General Assembly also acknowledged the proclamation of the State of Palestine, see GA Res. 43/177,15 December 1988.10 On March 26, 1980, the Foreign Minister of India, Mr. P.V. Narasimha Rao. announced in Parliament that India has decided to accord full diplomatic recognition to the Office of the PLO in India.11 The UN General Assembly by its resolution of Dec. 20, 1976, accepted SWAPO as the “sole and the authentic” representative of the People of Namibia (S.W. Africa). It

amounted to recognition of SWAPO by the UN General Assembly. India accorded full diplomatic status to SWAPO in April 1985.12 Salimoff and Co. v. Standard Oil Co. of New York, 262 NY 220 (1933).13 SCOR, 3rd year, at p. 16; See Whiteman, Digest 2, pp. 5-7, 10.


Despite its being a political act, legal significance of recognition cannot be minimised because recognition bestows on the new entity certain legal rights under international law and municipal law vis-a-vis the recognising state, i.e., regularising the relations on the diplomatic level between recognising State and the entity recognised, and in clarifying its juridical standing in the courts of the recognising State. Further, once granted, the recognising State is stopped or precluded from contesting the qualifications for recognition of the State or government recognised. Thus, recognition in form and substance remains primarily a unilateral political act with evidential value in law. The Institute of International Law in 1936 declared that recognition is a “free act”. Granting of recognition by States is a matter of policy and not of law.

A. Manner of RecognitionInternational law does not specify any form or manner of granting recognition. But, in the practice of States, it may be express or implied, that should unequivocally establish the intention of the recognising State.

1. Express recognitionA State may convey its decision of recognition to the new entity or government through a formal announcement, which may take the form of public statement or notification or diplomatic note or a personal message sent to the new entity. Recognition may also be granted by the conclusion of a bilateral treaty or agreement. Recognition of Bangladesh by India on December 6, 1971 was through a formal declaration. Similarly, the recognition of three Baltic Republics, i.e., Estonia, Latvia and Lithuania by India on September 7, 1991, was through the Prime Minister’s message sent to the Presidents of the three republics. This method was followed by the United Kingdom in its practice with its former colonial or other dependent territories. For example, the treaty between the Government of the United Kingdom and the Provisional Government of Burma of October 17, 1947 (treaty became operative on January 4, 1948), provided that the Government of the United Kingdom recognised “the Republic of the Union of Burma as a fully independent sovereign State”.142. Implied recognitionRecognition may be inferred from the conduct of the parties involved. The act must be such as to clearly indicate that recognition was intended or is inescapable. The crucial question thus is that of intention.15 Article 7 of the Montevideo Convention, 1933, states that the tacit or implied recognition “results from any act which implies the intention of recognising the new State”. Usually, the acts indicating the intention may be bilateral or multilateral.__________________14 D.W. Greig, International Law, 2nd ed. (1976), p. 121.15 Whiteman, Digest of International Law, Vol. 2, p. 48.


a. Bilateral Acts: If a State concludes or signs a treaty with a new entity, it amounts to recognition. Mere signature and not ratification is sufficient for this purpose.16 Treaty between the Federal Republic of Germany and the Democratic Republic of Germany (GDR) on November 8, 1972 had preambular references to “two German States” and “both German States” signified mutual recognition of each other’s Statehood. Establishing diplomatic relations between a State and a new entity, or receiving consuls of an unrecognised State, or sending representatives to attend ceremonial functions in an unrecognised State establishes the intention to recognise the new entity. Initiation of negotiation between the two is also a pointer towards recognition.b. Multilateral Acts: A State may express its intention of recognition through common participation in a multilateral treaty or an international conference along with the unrecognised entity.17 But the significance of this mode in according recognition is questionable, because recognition is a unilateral and discretionary act of a State. Participation in an international conference with an unrecognised State or government will not indicate recognition if it is made clear that it is not intended to have that effect. The United States and the United Kingdom have quite often entered a caveat against such a construction. For example, the final paragraph of the Berlin Conference of Foreign Ministers of France, the United Kingdom, the United States, and the Soviet Union, held in 1954 in preparation for the holding of the Geneva Conference on Korea and Indo-China, inviting China, two Koreas and “other interested States”, stated:It is understood that neither the invitation to, nor the holding of, the above mentioned conference shall be deemed to imply diplomatic recognition in any case where it has not already been accorded.18The United States, which was a party along with People’s Republic of China to the Geneva Protocols on French Indo-China of 1954 and 1972, declared at the time of signing that it was not to be construed as according diplomatic recognition to the Red Chinese regime.19However, recognition of laws proclaimed by a particular entity, does not necessarily import recognition of that entity. It is also important to note that non-recognition is not necessarily accompanied by non-intercourse just like recognition does not always manifest into intercourse between the two. For example, India recognised Israel in 1950, but established diplomatic relations in January 1992. States sometimes send special missions to non-recognising territories for trade and traffic or other purposes and even consuls are appointed, but States, while making such appointments, are generally careful not to convey their recognition.20__________________16 See US Court of Appeal’s observation in Republic of China v. Merchants’ Fire Ass. Corp., 30F (2d) 278 (1929) about a treaty of commerce between United States and the Nationalist Government of China in 1928. The signing of the Treaty between Israel and Jordon on Oct. 26, 1994, signified recognition of each other.17 H. Lauterpacht, however, is of the view that these acts do not constitute recognition, sec Recognition in International Law (Cambridge University Press, Cambridge), 1948, p. 405.18 Op. cit. 15, at p. 50.

19 Ibid., at p. 51.20 President Nixon’s visit to China in 1972, and his meeting with Chairman Mao-tse-tung, paved the way for the establishment of a liaison office in each other’s capital, though formal recognition by the United States to Chinese regime was granted only in 1979.


B. Theories of RecognitionThe legal significance of recognition under international law remains controversial. Different theories have been propounded about the nature and actual import of recognition.

1. Constitutive theoryThis theory attaches considerable importance to recognition. According to this theory, it is through the act of recognition alone that a new State emerges as an international person or a new government derives the requisite authority or status in the international arena. In Oppenheim’s view, “a State is, and becomes, an international person through recognition only and exclusively”.21 This theory has also been advocated by Anzilotti and Holland. The theory advocates that a new entity cannot become a State ipso facto, but has to be recognised by other nations to become an international person.But this theory has serious drawbacks and is not supported by State practice. When a new entity emerges with all the attributes of Statehood, it is not recognised by all States simultaneously. This creates an anomalous situation about which Brierly observes: “The status of a State recognised by State A but not recognised by State B, and therefore, apparently both an ‘international person’ and not an ‘international person’ at the same time, would be a legal curiosity”.22 As the timing of recognition in most cases differs between States, does it mean that a new entity exists as a State for some States but not for others? This clearly shows that recognition is not a conclusive proof of existence of a State. On the other hand, the State practice confirms that the non-recognition does not prima facie entail non-existence of an entity or government. States do not refrain from bringing claims against unrecognised States or governments under international law. The Pueblo case23 between the United States and North Korea, which was not recognised as a State by the United States, and the Tinoco Concessions Arbitration24 between the United Kingdom and Costa Rica whose government was not recognised by the United Kingdom clarify this point.In the Pueblo case, the United States vessel was captured by North Korea on January 23, 1968, for spying in North Korean territorial waters, which was subsequently released without trial upon the United States signing a document indicating that the Pueblo was spying. In the Tinoco Concessions case, the Tinoco Government took over power of the country by force in February 1917, and proclaimed its own constitution. The government remained in power till August 1919, when it was ousted. The new government revived the earlier constitution and by passing a decree repudiated certain obligations undertaken by the Tinoco Government, including towards the British nationals. The Tinoco Government was not recognised by many nations, including the United Kingdom. The United Kingdom brought a claim, on behalf of__________________21 Op. cit. 3, at p. 125. Oppenheim further states, “International Law does not say that a State is not in existence as long as it is not recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law”, at p. 117.22 J.L. Brierly, The Law of Nations, 6th ed. (Clarendon Press, Oxford), 1963, p. 138.

23 62 AJIL 756 (1968).24 1 RIAA 369 (1923).


its nationals, against Costa Rica which disputed the claim as inadmissible because of the nonrecognition of Tinoco Government by the United Kingdom. The arbitrator, while observing that the United Kingdom can bring a claim against Costa Rica, on the issue of non-recognition stated:Undoubtedly recognition ... is an important evidential factor, in establishing proof of the existence of a government in the society of nations ... non-recognition for any reason, however, cannot outweigh the evidence ... as to the de facto character of Tinoco’s Government, according to the standard set by international law.Similarly, in the incident of shooting down of British aeroplanes over Egypt in January 1949 by Israeli airmen, the British Government, which had not recognised Israel at that time, informed the Israeli Government that Britain would demand compensation.25 These cases suggest that recognition is simply an evidence that international law requirements are met.The theory, if taken to its logical conclusion, means that an unrecognised entity would neither have rights nor duties under international law, which obviously would lead to absurd conclusions. For example, People’s Republic Government of China was not recognised by the United States till 1979, or Bangladesh was recognised sometime after its creation by Pakistan, Albania and China, but it could not be stated that neither of them, i.e., the Chinese Government or Bangladesh, had rights or duties under international law.The theory is also not plausible for two other reasons. Firstly, recognition is a political act of a State, which is accorded for political and diplomatic exigencies of the recognising State. States grant, delay or refuse recognition to a newly formed State or government to further their national interest,26 which means recognition merely follows the cognition of the fact of a new entity.27 Secondly, the rule that recognition has retroactive effect, dating back to the time of the actual inception of the State, when the requirement of Statehood were in fact fulfilled, and giving effect to all the acts and laws from that date does not lend credence to “constitutive” theory. In the courts of the recognising State, the relevant date for taking cognizance of the laws of the recognised entity is the date when the requirements of Statehood were in fact fulfilled. The basic idea behind the rule of retroactivity is that there should be continuity in the essence of State sovereignty or governmental authority, which would otherwise make many transactions entered into by unrecognised entity with private citizens of a State null and void during the period of non-recognition.This theory, in fact, is the extreme manifestation of the concept of State sovereignty, i.e., that without the consent of the State, a new entity does not emerge in international law.__________________25 J.L. Brierly, at p. 139, n. I. The UK Government also claimed compensation from the unrecognised Taiwan Government for damage done to its vessels by the Taiwan forces, see 61 CLQ 507 (1957).26 In 1903, the United States recognised Panama three days after it had revolted from Columbia and in 1948, Israel was granted recognition within few hours. On the other hand. People’s Republic of China’s Government was granted recognition only in 1979, almost 30 years after it came into power.

27 Article 9 of the Charter of the Organisation of American States, 1948 provides, “The political existence of the State is independent of recognition by other States”.


2. Declaratory theoryIn contrast to the constitutive theory, the declaratory theory (also called evidentiary theory) considers that a new State or a new government exists independent of recognition. The recognition is merely an evidence of the fact that the new entity fulfils the essentials of Statehood or of a government. The primary function of recognition is to formally acknowledge an established fact and recognising the State’s willingness to accept the consequences of that fact. Hall, Fisher and Brierly are its main advocates. Brierly says: “A State may exist without being recognised, and if it does exist in fact, then, whether or not it has been formally recognised by other States, it has a right to be treated by them as a State”;28 According to these theorists, the recognition is required only for the reason that it enables the new entity to enter into official intercourse with other nations.State practice widely confirms the evidentiary theory because of the political nature of the act of recognition. Also refusal by a single State or few insignificant States would not affect the situation if the majority of nations have granted recognition.29 The State practice and judicial precedents to the effect that a non-recognised entity is bound by its international obligations further strengthen the declaratory theory.30However, this theory alone does not convey the exact position. An entity or a government although would come into existence upon its fulfilling all the necessary requisites, would not have the legal relationship with other subjects of international law unless recognised. Further, it is upon recognition that the new entity gets a juridical status under the municipal law of the recognising State and to that extent, recognition is constitutive in nature.To make these theories more plausible, Kelsen has made a distinction between natural Statehood and juridical Statehood. A State having all the attributes of Statehood acquires an international personality in the natural sense, where upon it gets all the rights under international law, i.e., inviolability of its territory, sovereignty or political integrity, independent of recognition by other States. But upon recognition, it acquires the juridical Statehood with more specific rights accompanying it. Thus, recognition although declaratory of the existence of natural Statehood is constitutive of juridical Statehood.31 Kelsen’s theory, in fact, is a modified form of constitutive theory. However, despite bestowing certain specific rights upon a new entity or a government and thus being constitutive in nature, recognition is primarily declaratory in effect.C. Absence of Duty to RecogniseLooking into the constitutive nature of recognition, the varied practice of States about the timing in granting recognition, and in the absence of any central machinery to regulate the State conduct,__________________28 J.L. Brierly, op. cit. 22, p. 139.29 The Institute of International Law in its Res. of 1936 stated that the existence of the new State with all the legal effects connected with that existence is not affected by the refusal of one or more States to recognise, see op. cit. 1.30 The Arbitral Commission of the EC conference on Yugoslavia (Badinter Commission) was of the opinion that recognition of States is “purely declaratory’ in

effect, although it did confer certain rights and obligations under international law. See opinions No. 1 and No. 8 in 92 ILR 162 and 92 ILR 199; D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell, London), 2010, pp. 131, 135.31 H. Kelsen, Recognition in international law, 35 AJIL 605 (1941).


some writers have proposed that once an entity fulfils the factual characteristics of Statehood, there becomes a legal duty of all States to grant recognition to the new entity becausc without recognition it cannot have legal rights and duties under international law. Lauterpacht is the chief proponent of this view. He states:To recognise a community as a State is to declare that it fulfils the conditions of Statehood as required by international law. If these conditions are present, existing states are under the duty to grant recognition... Although recognition is ... declaratory of an existing fact, such declaration, made in the impartial fulfilment of a legal duty, is constitutive as between the recognising State and the community so recognised....32But the State practice does not support this proposition and States do not consider recognition as a duty. In 1976, the United States State Department stated, “In the view of the United States, international law does not require a State to recognise another entity as a State, it is a matter for the judgment of each State whether an entity merits recognition as a State”.33 [emphasis added]. States grant or withhold recognition at their sovereign discretion and for withholding, they give legal reasons.Another difficulty in accepting recognition as a State duty is related to the manner and the party competent to enforce it. If States are under a duty, it logically invests the new entity with a corresponding right to be recognised. But the supporters of this duty concept fail to satisfy these quaerers. In fact, there is no evidence of such a duty existing under international law, or to withdraw recognition if any of the qualifications of Statehood or of governmental authority cease to exist. It is a “facultative” and not an “obligatory” act, which the duty concept entails.However, it is amply clear that though States may withhold recognition on extra-legal considerations, but once an entity fulfils the necessary requisites, it cannot be ignored by international community. Generally, while granting recognition, the States satisfy themselves about the legal requirements, i.e., whether or not the new entity fulfils the requisite qualifications, and to this extent, “States do treat recognition as a legal act”.34

D. Collective RecognitionInternational law does not prescribe or prohibit the grant of collective recognition nor does it preclude derecognition. States may, however, collectively grant recognition. As recognition is considered to be a unilateral act of a State, collective recognition is not in practice, although its possibility cannot be ruled out. Rather, it would have an advantage over the unilateral act by obviating the embarrassment so very characteristic of the unilateral act of recognition. Collective recognition can be granted by States through some collective international act or through the medium of an international institution. In the past, Berlin Congress of 1878 granted recognition to Bulgaria, Serbia, Roumania and Montenegro; and Allied Powers to Estonia and Albania in__________________32 H. Lauterpacht, op. cit. 17, p. 16.33 72 AJIL 337 (1978). However, where a new State had emerged as a result of decolonisation, some States considered themselves bound to recognise them.34 J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 135.


1921.35 The Eur0pean Commission recognised the three Baltic States of Estonia, Lativia and Lithuania in August 1991. The recognition of the Balkan States in January 1992 was the result of EC declaration on Yugoslavia in December 1991, after the disintegration of the Socialist Federal Republic of Yugoslavia (SFRY). But admission to the membership of an international institution, such as the United Nations Organisation, raises the problem whether this act of admission amounts to recognition of the applicant as a State, and if a new member State has not been recognised as a State, what would be the effect of the actual voting on its application for membership?In the United Nations membership case,36 the International Court of Justice stated that admission of a new entity to the United Nations is merely an acknowledgement by the organisation that the new member is a State. Admission to the membership may not amount to collective recognition. This position was further clarified by the United Nations Secretary General in a Memorandum of March 8, 1950, by stating that:Since recognition of either State or government is an individual act, and either admission to membership or acceptance of representation in the organisation are collective acts, it would appear to be legally inadmissible to condition the latter acts by a requirement that they be preceded by individual recognition.Further, it stated that “such a vote did not imply recognition or readiness to assume diplomatic relations”.37 Thus, it clearly rejected the inference that admission to the United Nations amounts to recognition.Nevertheless, it must be stated that under international law recognition plays two important roles, i.e., as far as the recognising State is concerned, recognition only means that it proposes to treat the new entity as a State, while for the international community, recognition is an evidence of Statehood of the new entity. Admission to membership fulfils the latter function, namely, the organisation purposes to treat the new entity as a State for its purposes. For individual States, this act of admission is of probative value about the existence of an entity as a State. Further, since the existence of a State under international law is independent of individual acts of recognition, collective decisions taken or views expressed by the member nations at the time of admission, should not affect the attitude maintained by an individual member on recognition.Apart from the question of admission of a new member State to the United Nations, disputes have arisen about the acceptance of the credentials of the government of an existing member State where the change of government has occurred through revolution. The credentials of a new representative from an existing member State, following a change in government, are normally accepted, but in the case of acceptance of the credentials of a revolutionary government, the problem involved is that whether the same considerations should be taken into account as in the recognition of a government which comes into power through constitutional means. This problem arose in the most stark manner in the case of the Communist Government of China.__________________35 Ibid., at p. 137. In December 1991, the European Commission issued guidelines on the recognition of new States in Eastern Europe and in the Soviet Union. Following this, 11 of the 15 republics of the former USSR were recognized as independent States.36 (194 8) ICJ Rep., p. 57.

37 UN Doc. S/1466, SCOR, 51h year Supp. (Jan.-May, 1950), see 44 AJIL 549 (1950).


China, an original member of the United Nations, was represented by the Nationalist Government of China led by Chiang Kai Shek. In October 1949, Communist Government of China gained the total control of mainland China and the Nationalist Government was driven to Formosa (Taiwan). The Communist Government was recognised by many nations, including the United Kingdom, but not by the United States, which invoked Art. 4 of the Charter stating that the Communist Government was not “peace loving” to prevent its representation in various organs of the United Nations.38The United Nations Secretary General termed the connection created between recognition and representation as “unfortunate from the practical standpoint, and wrong from the standpoint of legal theory”. He was of the view that the two matters, i.e., recognition and representation, rested on different considerations, and that the United Nations representation must rest, inter alia, on the capacity to undertake the obligations of the membership of the United Nations.39 Linking recognition with representation will virtually lead to the denial to a member State its due right of participation in the United Nations for all practical purposes unless the credentials of effective government are accepted. The controversy centring around the representation of the Communist Government of China could finally be resolved only in 1971, when the United States relented.40 However, this failed to resolve the basic issue involved in this controversy that whether the United Nations can refuse to accept the credentials of a government which is in effective control of the State. Nonetheless, it is clear from the United Nations practice, that whatever stand the individual States may take in according recognition, they are not entitled to accord United Nations representation to a government which is unstable and not in actual control of the national territory.41The issue of credentials was also raised by Pakistan after India’s independence, when India was bifurcated into India and Pakistan. India was the original member of the United Nations. The Security Council decided to ask Pakistan to apply afresh for membership as a new member of the United Nations.

E. Recognition of GovernmentsThe government is the sole representative of a State at the international arena. Recognition granted to a government signifies that the recognising State considers the government in power as the sole representative of the State. It is governed by the similar political and diplomatic considerations__________________38 Invocation of Art. 4 cannot be justified in such cases because Art. 4 is related to admission to membership and not to representation. If a government is continuously in violation of the Charter principles, it can be expelled from the Organisation under Art. 6, as was done in the case of Yugoslavia, which was expelled from the United Nations membership on Sept. 21, 1992. There is no provision in the Charter for the refusal to accept the representation of a government which is in effective control of the State.39 S/1466, op. cit. 37, pp. 18-23.40 By Res. 2758 (XXVI) of Oct. 25, 1971, the General Assembly decided “to restore all its rights to the People’s Republic of China and recognise the representatives of its Government as the only legitimate representative of the China to the United Nations” and

through this resolution, the representatives of Nationalist Government of China were expelled from the UN and its related organs.41 For example, after the fluid situation for some time prior to 1975 in Khmer Republic (Cambodia), the representation of Prince Norodom Sihanouk government was accepted.


as in the case of a new State. Nonetheless, recognition accorded to the government is independent of recognition granted to a State, except in the case of a nascent State where it is recognised along with the government. Withholding recognition to a new government does not amount to loss of recognition of an existing State as an international person. In fact, once a State is recognised, its obligations towards other nations are not affected because of change in government, which is entirely an internal change.42 However, States are under no legal duty to grant recognition to a new regime. It is a discretionary act of a State; hence State practice is not uniform.The subject of recognition of governments is particularly important when a new regime takes over by revolution, coup d'etat, or by unconstitutional means. Where the change in the government has taken place in accordance with the constitutional process of the State, granting of recognition is merely a formality, which can be observed by sending a congratulatory message to the new Head of the government. But where the change has come by unconstitutional manner, States generally take into account the stability, effectiveness and the control over the population of the territory of the new regime before granting recognition. Otherwise it may amount to a premature act and unwarranted and illegal intervention in the internal matters of another State, which will be in breach of international law. Beside the act may be termed unfriendly by the legitimate government in power.43 Where the recognising State is not satisfied about the effectiveness of the new regime, it may still grant de facto recognition to test its stability, which may subsequently be changed to de jure recognition.A nascent State which has emerged as an independent State through constitutional manner, such as in the case of a former trust or dependent territory, which was granted independence by the tutelary or parent State already de jure recognised, the new' entity would automatically get de jure recognition. This is what had happened precisely in the case of recognition of a large number of Afro-Asian States which emerged as independent countries after the Second World War. But where a nascent State comes into existence through revolutionary means, recognition has a different connotation because the new State has to be recognised along with its government and one cannot be recognised without recognising the other. In such situations, States generally adopt the policy of “wait-and-watch” before granting recognition, and prefer to grant de facto recognition in the first instance to be followed by de jure recognition, unless there have been political compulsions or it becomes strategically necessary to grant de jure__________________42 Cf. Tinoco Concessions case, op. cit. 24.43 The first instance of premature recognition, which was also treated as intervention by Great Britain was the French recognition of the United States Government in 1778. In the case of the Biafran Government, which declared its independence from Nigeria on May 30, 1967, it was recognised by five nations— Tanzania, Zambia, Gabon, Haiti and Ivory Coast, though none of them established diplomatic relations with it. After its unsuccessful war of independence, it surrendered to the Nigerian Federal forces on Jan. 12, 1970, and became part of Nigeria again. Arguably, the act of recognition by five nations in the Nigerian civil war may amount to illegal intervention in Nigerian internal affairs for which Nigeria could claim compensation under international law. However,

the subsequent practice of the United Nations in lending support to national liberation movements, such as SWAPO or PLO, has discounted the view that such a diplomatic assistance in granting recognition would amount to intervention. The recognition of Croatia by the European Community on January 15, 1992 and subsequently of the Bosnia-Herzegovina on April 6, 1992 and by the United States on April 7, 1992, when these States were controlling only about one-third of the States’ territory can be termed as pre-mature.


recognition at the first instance. For example, India was one of the early countries to grant recognition to the Heng Samrin Government of Kampuchea on July 7, 1980, which came into power with the help of Vietnamese forces in 1979. The recognition was withheld by most of the countries.The practice of granting recognition to governments has not found favour with jurists and experts in international law. Judge Richard Baxter of the International Court of Justice (1979-80) found it more problematic than of any help and opined that its partial withdrawal will help in having smooth relations with States where revolutionary governments take over.44 The “Estrada doctrine” propounded in 1930, by the then Mexican foreign minister, laid down that it is the duty of a State to continue diplomatic relations with States without regard to revolutionary changes. Mr. Estrada declared that issuing of declarations to grant recognition “is an insulting practice” because it offends the sovereignty of other nations as well as amounts to passing a judgment upon the internal affairs of those nations.45 The increasing number of countries including the United Kingdom and the United States, are taking into account this doctrine in the matter of recognition of new revolutionary governments, i.e., the governments will not be recognised at all.Under the earlier United Kingdom practice adopted in 1951, the “effective control test” criterion was followed to grant recognition to new revolutionary governments. It was officially stated, by the then Foreign Secretary, “The conditions under international law' for the recognition of a new regime as the de facto government of a State are that the new regime has in fact effective control of the State’s territory and that this control seems likely to continue”.46 However, since 1980, the United Kingdom, like many other countries (particularly of Anglo- American system), is following the practice of granting recognition to States only and not to governments. In 1980, the then Foreign Secretary, Lord Carrington, stated in the House of Commons: “We shall continue to decide the nature of our dealings with regimes which came to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so”.47Accordingly, the status of the new revolutionary government will be adjudged from the “dealings” that the United Kingdom will have with it. This new approach, however, does not basically change the criteria followed by the United Kingdom earlier, except that there is no suggestion of a duty to recognise, nor it is bogged down by de facto or de jure recognition, and the words “able of themselves” have been added, which indicates emphasis on independence of the new regime.__________________44 See in L.T. Galloway, Recognising Foreign Governments: The Practice of the United States (1978), Forward, p. xi.45 2 Whiteman, pp. 85-86, (1963). On the other hand, “Tobar doctrine” (propounded by Tobar of Ecuador in 1907) insisted on not granting recognition to any government coming into existence by revolutionary means. The doctrine was incorporated by the five Central American Republics in their treaties of 1907 and 1923.46 485 HCD, Col. 2410, see also Greig, op. cit. 14, at p. 124.

47 H.L. Hansard, Debates of the United Kingdom Parliament, Vol. 408, Cols. 1121-1122 (April 28, 1980) quoted in D.J. Harris. Cases and Materials on International Law, 6th ed. (Sweet and Maxwell, London), 2004, p. 155-156; C. Warbrick, 30 ICLQ 568 (1981).


The United States, since 1977, has also been following the same practice of not granting recognition to governments. The United States State Department stated that “United States practice has been to de-emphasise and avoid the use of recognition of changes of governments”. The administration’s policy is that establishment of relations does not involve approval or disapproval but merely demonstrates the willingness to conduct its relations with other governments and have diplomatic relations with them.48 However, the qualifying criterion is the display of “effective control” by the new regime. This clearly indicates the implied acceptance of the “Estrada doctrine”. In 1978, while recognising the Taraki Government in Afghanistan, the United States Government stated that the important question is not recognition, but “whether diplomatic relations continue”.49 Australia had similarly declared in 1988, its policy not to extend formal recognition, whether de jure or de facto in future, but stated that it would replace recognition by conduct of relations with new regimes “to the extent and in the manner which may be required by the circumstances of each case”.50 Though India has not come out clearly in favour of “Estrada doctrine” but in practice it is also adhering to it. For example, the Afghan regime which took over in 1991, after the fall of the Najibullah regime, was not formally recognised by India, though it maintained its diplomatic relations with that regime. Similarly, with the new Karzai regime, it maintained diplomatic relations.Although the present trend is towards de-emphasising the recognition issue and its importance has lessened, it is, however, doubtful whether this will be completely eliminated because nations quite often consider political factors strong enough to make them an issue for recognition.51 Thus, the United Kingdom refused to recognise the Heng Samrin regime in Kampuchea (Cambodia), which came into power with the help of the Vietnamese occupation army in 1979, for its continued dependence on the Vietnamese army, but it recognised the Obote Government in Uganda while the Tanzanian troops that had brought it to power were still in the country. Further, “Estrada doctrine” does not lay down the general rule of international law, nor it is complete in itself. The States at the time of recognition or establishing diplomatic relations invariably take into account the stability of the regime and its factual control over the territory.Like recognition of States, recognition of government can also be effected through several ways, such as sending a formal note to the new' head of the government, by public announcement, or receiving credentials of the envoy of the new government. It can also be through an agreement, as India had granted recognition to the South African Government on November 22, 1993, by entering into an agreement and both countries have agreed to establish diplomatic relations with each other. Nonetheless, it is also not uncommon for a State to terminate its diplomatic relations with another State as an act of retorsion, as India did in 1971 during the Indo-Pak war, and later resumed them after the Simla Agreement in July 1973.52__________________48 77 US State Dept. Bull. 462 (1977); (1977) USD1L, 19; Harris, ibid., p. 159.49 On the contrary, the US Government and China expressly agreed to recognise each other and establish diplomatic relations as of 1979. see. Joint Communique, US Government and the People’s Republic of China’s Government in 73 AJIL 277 (1979).

50 J.G. Starke, Introduction to International Law, op. cit. 34, p. 138.51 According to Galloway, there are about 30 countries adhering to “Estrada doctrine” and there are over thirty States, which follow ad hoc policy based on political considerations, see op. cit. 44, at p. 138.52 The United Kingdom broke off diplomatic relations with Albania in 1946, Libya in 1984, with Argentina in 1982 over the Falklands war (re-established in 1990), with Syria in 1986 (for Syrian involvement in an attempt to blow up an El-Al Airliner) and Iran in 1989 (over the Salman Rushdie affair).


When a new regime is recognised, officially it is considered to be in continuity of the old government even if there has been a gap in granting recognition because for international law purposes, the State’s legal capacity is not affected, hence, recognition is retroactive in operation. However, so long as the new regime is not recognised, the official intercourse remains suspended, which may revive when recognition is granted to the new regime. For example, Col. Rabuka’s Government in Fiji in 1987, which came into power by coup d’etat was not recognised by India following its racial and discriminatory policies against Indians, and all trade and technical co-operation with Fiji were suspended, and the diplomatic relations were snapped.

F. Conditional RecognitionConditional recognition implies that the granting of recognition is made dependent upon the fulfilment by the recognised entity of certain stipulations in addition to the normal requirements. It was quite frequent in the nineteenth century but has disappeared from the contemporary State practice. Its reference is found in the Berlin Congress of 1878, when Great Britain, France, Italy and Germany at the time of recognising Bulgaria, Serbia, Roumania and Montenegro imposed condition that these countries would not impose any religious disabilities on any of their subjects.As a legal concept, however, conditional recognition has no real significance. This is partly for the reason that non-observance of the condition would not annul the recognition, since recognition once given cannot be withdrawn. Further, recognition is granted to a new entity, if in the opinion of the recognising State, it fulfils all the attributes of Statehood and governmental authority and this is not affected by the subsequent non-observance of the condition.53 Moreover, recognition being a unilateral act of the recognising State, the recognised entity is clearly not bound to observe the conditions which were thrusted upon it. Many of these conditions, such as holding the free elections in future, observing the human rights or fulfilling the international obligations, are imposed for political reasons and are expressed in political rather than in legal terms.54 Because of the political nature of conditions, their non-observance would not terminate the recognition, though it will make the relations unfriendly between the recognising and recognised States. The recognising State may take any political action open to it including breaking of diplomatic ties, diplomatic protest or any other form of sanction.55 Because of these reasons, conditional recognition is now in disuse in international relations.

G. Withdrawal of RecognitionWhether recognition once granted can be withdrawn, remains a controversial issue. However, while discussing this issue, one must keep in mind the distinction between de jure and de-facto__________________53 According to Baty, establishing relations with a new State implies recognition of its Statehood, which implies that it cannot be conditional, either it is a fact or it is not, see G. Baty, So called de facto recognition, 31 Yale Law Journal 469 (1922).

54 When the US granted recognition to the Government of Soviet Union, many of the conditions in the Litvinov Agreement were political in nature, such as that the Soviet Union would refrain from acts likely to cause disorder in the US, and their violation left the United States with political remedies alone.55 Great Britain recognised the Soviet Union de jure in 1924, later broke off relations in 1927, re-established relations, but participated in expelling the Soviet Union from the League of Nations in 1939. But none of these acts annulled the recognition of the Soviet Union.


facto recognition as well as the distinction between the recognition of a State and a government.Prima facie, de jure recognition once granted cannot be withdrawn from a State or a government. This holds true even if, in the first instance, recognition was granted with conditions. Article 6 of the Montevideo Convention, 1933 supports this position, which declares that de jure recognition is “unconditional and irrevocable”. Institute of International Law in 1936 also opined that recognition once given is irrevocable.56 But in practice, de jure recognition may be withdrawn when the State merges into another State through annexation or conquest (recognition comes to an end in such a situation). In the case of a government, when recognition is granted to the new governmental authority which is in effective control of the territory, recognition accorded to the erstwhile authority which is no more in control of the territory or is in exile, stands withdrawn. This may even be effected by intimating the representative of the defunct State. Great Britain withdrew recognition of Abyssinia (Ethiopia) and Haile Salessie’s Government, and granted de jure recognition to the Italian annexation of Abyssinia and the Italian authority. The recognising authority, nonetheless, at its discretion may not withdraw recognition for political reasons even if the State has merged with another State and has lost all the attributes of an independent State. For example, the United States and the United Kingdom refused to accept the Soviet annexation of the Baltic States of Latvia, Estonia and Lithuania in 1940, and had continued to accept diplomatic agents of these States as accredited representatives of a de jure government.57The position is different with de facto recognition which is provisional and implies some degree of uncertainty about the future stability of the recognised entity. Once the stability of the new entity is in suspect, recognition can be withdrawn. Further, it is operative on the continued factual existence of the new entity and if the entity has ceased to exist, with that recognition also comes to an end. De facto recognition does not affect the rights and powers of a de jure government, which will come to an end only through the grant of de jure recognition to the successor power.

II. DE JURE AND DE FACTO RECOGNITIONThe countries belonging to the Anglo-American system observe the distinction between the de jure and de facto recognition. Except in the case of nascent States, where the recognition of Statehood and governmental authority is merged together, this distinction between de jure and de facto recognition mainly relates to governments. The de jure or de facto recognition conveys the status of a government which is either de jure or de facto. The practice was much favoured by the United Kingdom, though it has been largely discarded since 1980 after the United Kingdom has adopted the new policy of not recognising the governments.58 The contemporary American practice also does not adhere to this distinction. It is also not observed by those countries that follow the “Estrada doctrine”.__________________56 Op. cit. 1, p. 1.However, on Sept. 2, 1991, the United States acknowledged their independence from the Soviet Union, which they declared on Aug. 21, 1991

58 See op. cit. 47.


In the case of nascent States, the State practice differs. Sometime the recognition is withheld altogether, as was the case with the German Democratic Republic before 1974, which was not recognised by most of the countries till then,59 or the practice is to accord recognition to the government and not to the State. For example, India was not recognised as an independent State before August 15, 1947, but the United States took certain steps to recognise the de facto status of the interim government of India prior to that date and in February 1947, received the Indian Ambassador representing the Government of India.60When in the opinion of the recognising State, the new State or government, lacks stability and permanency, or does not possess all the essentials required under international law for its effective participation in international affairs, but fulfils these requirements in fact, it may grant recognition to the latter provisionally with all due reservations for the future. This is termed as de facto recognition. On the other hand, in de jure recognition, if the recognising authority considers that the new State or government fulfils all the attributes essential for its effective participation in the international community, the former may grant the recognition to the latter formally. However both, de facto and de jure recognition, are related to the fact that the recognised authority should have effective control over a given area and it should have a semblance of permanence and stability. It has generally been the practice to preface de jure recognition with de facto recognition, particularly when the new government comes into power through unconstitutional means. In choosing between the two, the recognising State while acknowledging that circumstances require recognition to be accorded, conveys its disapproval of the new regime by granting de facto rather than de jure recognition. Distinction between the two can be described as a de jure government is one “which ought to possess the powders of sovereignty, though at the time it may be deprived of them. A de facto government is one which is really in possession of them although the possession may be wrongful or precarious”.61 The de facto recognition enables the recognising authority to protect its own economic interests and rights of its citizens in the recognised territory without committing itself to condoning the illegalities or irregularities in the emergence of the new regime, and for this reason, it may be considered as a necessary concomitant.Once the de jure recognition is granted to a State or a government, it cannot be withdrawn unless the State has ceased to exist or the government has been replaced by another authority. But the de facto recognition implies some degree of uncertainty as to the future stability of the recognised entity, hence it may be withdrawn if there is any doubt about the new regime’s ability or it ceases to exist because it is dependent on the continuous factual existence of the recognised entity. However, it is misleading to say that de facto recognition is always tentative or revocable. On the contrary, it can be substituted by de jure recognition when the recognising government is satisfied about the stability and permanence of the new regime.62__________________59 It was due to the application of “Hallestein doctrine” by the United States, which envisaged that a State could not have diplomatic relations with both Germanys-East and West, at the same time.60 Whiteman, op. cit. 45, at p. 164.

61 As per L.J. Banker, in Luthor v. Sagor (1921) 3 KB at p. 543.62 The United Kingdom in granting de jure recognition applies the criterion “whether a government can be held to enjoy with a reasonable prospect of permanence, the obedience of the mass of the population and the effective control of much of the greater part of the territory”, see government’s statement of July 4, 1973 in the House of Commons, in HCD, Vol. 859, para. 521, quoted by D.W. Greig, op. cit. 14, p. 121.


A typical illustration of it was that of the Britain’s de facto recognition of the Soviet Union on March 16, 1921, and later de jure on February 1, 1924.63 Similarly, the Italian conquest of Abyssinia in 1936 was recognised by Britain de facto in 1936 and de jure in 1938. On the other hand, in the Spanish Civil War, Britain accorded de facto recognition to Nationalist forces of General Franco which were increasingly occupying large area of Spain, while still recognising de jure the Republican Government. Thus, the de facto recognition is accorded in different circumstances for different reasons.64 In the cases of Italian regime in Abyssinia and Nationalist Government in Spain, there were still de jure governments in existence (though in the case of Abyssinia, it was government-in-exile), recognition was clearly a sign of disapproval of the new regime, while not being totally ambivalent to the reality of a new government’s coming into power. In the case of the Soviet Union the original de jure government had ceased to exist; the de jure recognition was delayed because of Russia’s continuous refusal to fulfil its international obligations.The United States, however, grants recognition without referring to de facto or de jure status of the new regime. The genuine disapproval of the new regime is shown by withholding the recognition as was done in the case of the Soviet Union and the People’s Republic of China’s Government, which were granted recognition in 1933 and 1979 respectively. Nevertheless, the United States Government acknowledged their de facto existence, “A foreign government, although not recognised by the political arm of the United States Government, may nevertheless have de facto existence which is juridically cognisable. The acts of such a de facto government may affect the private rights and obligations ... within the territory controlled by it”.65 The United States has repeatedly paid regard to whether the new regime has shown willingness to discharge its international obligations. In doing so, it has always used recognition as a tool in the conduct of its international relations.The legal distinction between de jure and de facto recognition is more pronounced in the municipal law of the recognising State than in the sphere of international law. In the British practice, recognition de facto is conclusively binding like de jure recognition before the municipal courts. The courts give due recognition to all the legislative acts of the de facto recognised regime. In Luthor v. Sagor, the court clearly laid down that in both the cases, “the Government in question acquires the right to be treated by the recognising State as an independent State”.66 In this case, the defendant bought a quantity of wood from the new Government of the Soviet Union in 1920. The Plaintiff (a Russian company) claimed title to the wood on the ground that it had come from the Plaintiff’s factory which was confiscated under the 1919 decree of the new Government. Plaintiff’s main argument was that since the Soviet Union had not been recognised by the British Government, the Soviet Government’s decree should not be recognised. When the case came up before the court of first instance (King’s Court), the Soviet Government had not yet been recognised__________________63 In the case of the Soviet Union, UK also insisted that the new government should prove that it is able and willing to fulfil its international obligations.64 In 1953, Britain granted de facto recognition to the new Government of Egypt after the monarchy was overthrown, see HCD, Vol. 517, Col. 204 (June 30, 1953).

65 See Upright v. Mercury Business Machines Co. Inc 213 NYS 2d, 417 at p. 419 (1961). In this case the acts of a public institution of the GDR, which was not recognised by the USA, were in issue.66 Aksionairnoye Obschestvo A.M. Luthor v. James Sagor and Co. [1921] 3 KB 532 at p. 551.


by the British Government and hence was not entitled to recognition of its sovereign acts. The court gave the judgment for the plaintiff67 But when the case came up in appeal, the new Soviet regime was recognised de facto by Great Britain (March 16, 1921). The court gave judgment for the defendant by reversing the judgment of the court below and observed:The Government of the country having ... recognised the Soviet Government as the Government really in possession of the powers of sovereignty in Russia, the acts of that Government must be treated by the courts of this country with all the respect due to the acts of a duly recognised foreign sovereign State.68It is also evident from the case that even de facto recognition has retroactive operation and, further, a non-recognised government does not have any locus standi before the municipal courts.However, in certain cases, a conflict situation may arise between a newly de facto recognised regime and a displaced de jure government of the same territory. In such a case, so far as matters related to the territory under the control of de facto government are concerned, the laws and rights of the de facto government would prevail. In Arantzazu Mendi,69 the right of the de facto government headed by General Franco was upheld over the Republican Government, which was continued to be recognised as de jure government of Spain. The case was concerned with the claim of possession of Arantzazu Mendi, a ship registered at the port of Bilbao which was under the effective control of Nationalist Government during the Spanish civil war (1936-38). The ship was arrested by the Admiralty Marshal on the writ in rem for possession by the owners of the ship. The Nationalist Government, with the consent of the owners, requisitioned the vessel. The Republican Government also applied for a writ in rem for its possession, which was opposed by the Nationalist Government on the ground that the court had no jurisdiction to implead a foreign government. The claim of the Nationalist Government was accepted by the court. The argument put up by the de jure government that the Franco’s administration was not of a sovereign State as it did not occupy the whole of Spain was rejected. Similarly, in the case of Bank of Ethiopia v. National Bank of Egypt and Ligouri,70 the court ruled that in view of the fact that the British Government had granted recognition to the Italian Government as the de facto Government of Abyssinia, effect must be given to an Italian decree in Abyssinia dissolving the plaintiff’s bank and appointing liquidator. These cases have established the jurisdictional immunity of a de facto government and have done away with the distinction between de facto and de jure recognition to a great extent.Nevertheless, there are still discernible distinctions between the two:1. While de facto recognition is conditional and temporary, de jure recognition is formal and final. De facto recognition can be withdrawn for many reasons other than those justifying the withdrawal of de jure recognition.__________________67 [1921] I KB 456,68 See op. cit. 66.69 [1939] AC 256.70 [1937] Ch. 513.


2. The diplomatic relations can be established with de jure entities only, and the representatives of de jure recognised entities alone are entitled to full diplomatic immunities and privileges.713. Only a de jure recognised regime can claim to receive property located in the territory of recognising State.724. Only the de jure State or government is entitled to espouse the cause of its citizens and exercise diplomatic protection for the injuries suffered by them out of the breach of international law by the recognising State and can succeed the old State.5. If a sovereign State grants independence to its dependency or creates a separate State out of its territory, then the new State can be recognised de jure only. But the acts done or decisions taken related to that territory by the sovereign State would be attributed to the new de jure recognised State.73

III. RETROACTIVE EFFECT OF RECOGNITIONState practice on recognition is not uniform and States grant recognition to a new entity or a regime at different dates. If recognition becomes operative from the date it is granted this would make all the legislative or administrative acts of the new State prior to recognition as nullities before the courts of the recognising State. This situation is avoided by the principle of retroactivity, i.e., recognition relates back from the date of inception of that entity or government. All the acts of a newly recognised entity done during the intervening period are given effect by the courts of the recognising State. Except in the case of nascent States, it is further necessary for the continuity of the State’s legal capacity for international law purposes. This practice is followed by the countries belonging to the Anglo-American system, but there is no such rule under international law to this effect. The extent of the retroactive effect of recognition depends entirely upon the intention and national policy of the recognising State.The principle finds wide latitude in British practice, especially in the light of de jure and de facto recognition, and where two competing authorities have existed for a particular territory, one recognised de facto and other de jure. The normal effect of recognition is to validate the__________________71 The United States does not maintain this distinction and may have diplomatic relations with de facto governments, for example, il received the Indian ambassador of the Interim Government of India in Feb. 1947, though India became independent in Aug. 1947. This also amounted to accepting the de facto status of the Indian Government.72 Haile Salassie v. Cable and Wireless Ltd. (No. 2) [1938] 54 TLR 1087. The decision, however, was reversed after the United Kingdom granted de jure recognition to Italian conquest of Abyssinia. The Soviet Government could get the possession of Tzarist archives and other property in Britain only after its de jure recognition by the British Government in Feb. 1924.73 Gur Corp. v. Trust Bank of Africa Ltd. [ 1987] 1 QB 599 (CA); Carl Zeiss Stifung v. Rayner and Keeler Ltd. (No. 2) [1967] 1 AC 853 (H.L.); see, decision to the contrary in Adams v. Adams [1970] 3 All ER 572.


decrees or Acts of the previously unrecognised entity,74 or, in the case of de jure recognition, to give to the new de jure government the right to enforce its claims retroactively extra-territorially. The case of Haile Salassie v. Cable and Wireless Ltd.15 when came in appeal, de jure recognition was withdrawn from the Haile Selassie government and accorded to the King of Italy as sovereign of Abyssinia, which led to the decision that it was the Italian authorities which became entitled to recover debt from the company due to the Ethiopian State in England. Thus, a judgment of the court below may be set aside in appeal if before or at the time of appeal, the British Government grants recognition to a new government or State. On the other hand, a cause of action filed by a de jure recognised government may be nullified if at the time of hearing, the British Government recognises de jure another government which was in de facto control of the territory (and recognised as such) when the action was initiated.76However, the withdrawal of de jure recognition from the predecessor and the retroactive effect of according de jure recognition to the successor do not affect the validity of transactions already completed by the previous regime. In such matters, generally, the courts take into account the certificates of the executive which are conclusive about the extent of recognition and if the certificate clearly establishes that it is not to relate back, courts will not give it retroactive effect. In Gydnia Ameryka Linie v. Boguslawski,77 the court was confronted with the issue of the extent of retroactive operation of de jure recognition granted by Great Britain to the Lublin Government in Poland at mid-night of July 5-6, 1945, and withdrew recognition from the London based Polish government-in-exile. The Minister of Shipping of the government-in-exile, on July3, 1945, entered into an agreement with seamen of the Polish mercantile marine by which they were given a choice between returning to Poland or of leaving the shipping line and receiving a gratuity. The two respondents in this case accepted the offer of gratuity. When their employers refused to pay the promised gratuities, they sought the intervention of the court. The contention of the defendants was that the Lublin Government in Poland established itself on June 28, 1945, which had made the agreement signed on July 3 infractuous, due to the retroactive operation of de jure recognition granted by Great Britain on July 5-6, 1945.The Foreign Office left it to the court to decide about the retroactivity of recognition. The House of Lords upheld the agreement and unanimously decided that the Lublin Government’s recognition might be retroactive in its effect in Poland where it had an effective control, but it could not have retroactive operation on events over which it had no control, i.e., which were outside its territory. Similarly, in Civil Air Transport Incorporation v. Central Air Transport Corporation,78 40 aircrafts, which were flown to Hong Kong from Mainland China in October 1949, were sold on December 12, 1949 by the Nationalist Government of China, recognised__________________74 Luthor v. Sagor, op. cit. 66 and 67. In this case by the time it went to the Court of Appeal, the Soviet regime was recognised de facto by the British Government, with the result that the court held that it was operative from the time the Soviet regime seized power and set aside the judgment of the King’s Court.

75 See op. cit. 72; [1939] 1 Ch. 194, in appeal from the judgment of the court of first instance [1939] 1 Ch. 182.76 Cf. Bank of Ethiopia v. National Bank of Egypt and Liguori, op. cit. 70.77 [1953] AC 11.78 [1953] AC 70.


as the de jure government of China by Great Britain at that time, to two United States citizens, who then sold them to the appellants. The respondent corporation was an organ of the Chinese government. Many of the employees of the respondent together with their chairman in Hong Kong defected to the People’s Republic of China’s Government which was recognised de jure by Great Britain on January 5-6, 1950. The question in issue before the Privy Council was whether this recognition will invalidate the sale contract entered into on December 12, 1949, since the People’s Republic Government came into power in October 1949. The Privy Council while upholding the sale contract entered into by the then de jure government who was competent to sell them, observed:Primarily ... retroactivity of recognition operates to validate acts of de facto government which has subsequently become the new de jure government and not to invalidate acts of the previous de jure government.79These cases clearly establish that de jure recognition does not operate retroactively so as to affect acts done outside the territory of the recognised State, but then this depends upon the intention of the recognising State.In the United States, though does not follow the distinction between de jure and de facto recognition, the law on retroactivity is essentially similar to that in England, as is evident in Lehigh Valley Rail Co. v. Russia80 and US v. Belmont.8I Both the cases related to the recognition of the Soviet regime in Russia, which was not recognised by the United States, instead it recognised the provisional Government of Russia as the successor to Tzarist regime in 1917. In the case of Lehigh Valley Rail Co., the court observed that it was only the acts of an unrecognised regime “performed in its own territory” that could be “validated by the retroactive effect of recognition”; acts performed outside its own territory could not be “validated by recognition”. The United States Supreme Court endorsed this proposition in US v. Belmont case also.82

IV. LEGAL CONSEQUENCES OF RECOGNITIONThe act of recognition creates twofold consequences: political and legal, and bestows on the new State or regime a status under international law and municipal law vis-a-vis the recognising State. At the political level, it indicates the willingness of the recognising State to initiate international intercourse with the new territory. It is legally relevant because it provides an evidence of the Statehood of the new entity, i.e., the new entity fulfils all the required conditions. Once the State is recognised, it carries with it all the appended privileges of membership of the society of States. It entitles the new entity to conclude treaties and establish diplomatic relations with other nations, and creates corresponding obligations for those nations under international law. It also bestows upon the new entity or regime certain rights and privileges as a sovereign State under the municipal law of the recognising State.__________________79 Ibid., at p. 94.80 2 J F (2d) 396 at p. 401 (1927).81 301 US 324 (1937).82 But see the decision to the contrary in US v. Pink, 315 US 203 (1942).


The practice followed by Anglo-American courts has established that recognition entitles a recognised entity to:a. sue in the courts of law of the recognising State, and courts will give effect to its past and present legislative and administrative acts;b. claim sovereign immunity from legal action for its diplomatic representatives and public property; andc. demand and receive possession of public property belonging to recognised State.A. The Position of Unrecognised Entity under Municipal LawThe non-recognition of a State or a government transmutes the consequences of recognition into its disabilities, which means that an unrecognised entity will not have any locus standi before the municipal courts of a State, which has not recognised it, nor are its administrative and legislative acts given any effect. Its representatives are not entitled to any diplomatic or jurisdictional immunity and it also cannot recover the public property due to it.83Granting of recognition is an executive act of a State. In the matters of recognition, courts invariably seek the opinion of the executive, comment on the factual situation in the State concerned, and the letters or certificates received by the judiciary from the foreign office have conclusive force.84 It establishes that recognition is constitutive in its effect at the municipal level. In the Duff Development Co. v. Kelantan Government,85 the respondent pleaded sovereign immunity in an action brought by the appellant who contended that the respondent was not an independent State and by agreeing to arbitrate, it had waived its immunity, and hence amenable to the court’s jurisdiction. The court went along with the Foreign Office statement recognising Kelantan as an independent State. On the waiver of immunity by the Kelantan Government, the court observed that even if a sovereign had agreed to submit to the jurisdiction, but refuses to do so later when the question arises, that would not make him amenable to the jurisdiction of the court.Where the answer of the Foreign Office or the Foreign Secretary is ambiguous or incomplete or not sufficiently plain, the court is entitled to make its own independent examination. However, a statement by the executive that a particular regime is not recognised does not preclude the courts to examine the attributes of a State or government for purposes other than jurisdictional immunity, i.e., for the acts of private law nature, which are necessary for peace and good order among citizens. Thus, the absence of recognition does not affect marriages duly performed, or transfers properly registered, or acts not relevant to the power__________________83 Luthor v. Sagor. op. cit. 66. The principle was upheld even by the Court of Appeal, though the decision was reversed on Russia’s recognition by Britain by then, see op. cit. 67.84 See Sec. 21 of the British State Immunity Act, 1978. see also Republic of Somalia v. Woodhouse Drake Carey Suisse S.A., [1993] QB 54; Sierra Leone Telecommunications Co. Ltd. V. Barclays Bank pic., [1998] All.ER 821 (QB).85 [1924] AC 797 at p. 823 (H.L.).


or stability of the government. This is because there should not be any disruption in the administration of justice.86The United States practice is similar to the United Kingdom. The unrecognised State or government has no locus standi in the United States’ courts. The courts go by the pronouncements of the State Department on recognition and the extent of the policy of non-recognition which the government wishes to apply.87 But, in contrast to the United Kingdom position, the unrecognised government, if exercising authority in its territory in fact, cannot be sued in an American court, which clearly means that the United States does not equate non-recognition with non-existence. In Salimoff v. Standard Oil Co.,88 the effectiveness of Soviet decrees expropriating the plaintiff’s oil fields in Russia, and selling a quantity of oil from the oil fields to the defendant’s company were for consideration before the court. The court applied the private international law rule of lex situs for this transaction and gave judgment for the defendant on the basis of the certificate provided by the State Department, which stated that while the United States had refused to recognise the Soviet regime, nevertheless it was “cognisant of the fact that the Soviet regime is exercising control and power in territory of the former Russian Empire ... has no disposition to ignore that fact”. On this basis, the court observed that the Soviet regime “is a government in fact, its decrees have force within its borders and over its nationals”.89

V. DOCTRINE OF NON-RECOGNITIONThe doctrine of non-recognition, commonly called the Stimson Doctrine of non-recognition, implies the withholding of recognition from new territorial titles or territorial changes brought out by use of force or any other act of doubtful character depriving the rightful claimant thereto. It is designed as a mark of protest against some international illegality. The idea behind the doctrine is not to reward a State for its unlawful acts. Granting of recognition will turn a bad title into a good one. A declaration of non-recognition is necessary so as to defeat any claim based on acquiescence or prescription. Nevertheless, the continuance of formal relations with the State that had violated the international law, does not ipso facto amount to recognition of the new title.The doctrine was propounded by the United States Secretary of State, Mr. Stimson, in 1932, after Japanese invaded and conquered Manchuria, then legally under the sovereignty of China. The United States refused to recognise the Japanese conquest or any treaty between__________________86 See Re Al-Fin Corporation's Patent [1970] Ch. 160, in which Plaintiff’s claim under the Patents Act, 1949 was upheld even though North Korea was not recognised by Britain de facto or de jure. See also Reel v. Holder [1981] 1 WLR 1226 (CA). But in Adams v. Adams 11970] 3 All E.R. 572, the Court did not give effect to a divorce decree granted by a Rhodesian court in 1970 on the ground that the judge who granted divorce was appointed by the unrecognised Smith Government under its 1965 Constitution, not recognised by British Court because decree was not valid under the 1961 Constitution applicable to southern Rhodesia under the United Kingdom law. But Emin v, Yeldag (2002) 1 F.L.R. 956 [Fam. D.] accepted ‘private rights’ exception for the divorce decree

granted by the court of Turkish Republic of Northern Cyprus (TNRC) with which UK had no dealings, was supported by the British Court.87 See The Meret, 145 F (2d) 431 (1944) and Lativan State Cargo Lines v. McGrath,

188 (2d) 1000 (1951).88 186 NE 679 (1933).89 Ibid., at p. 682.


Japan and China legalising the conquest. Expressing the United States position, Mr. Stimson observed:In view of the present situation ... the American Government deems it to be its duty to notify both the Imperial Japanese Government and the Government of the Chinese Republic that it cannot admit the legality of any situation de facto nor does it intend to recognise any treaty or agreement entered into between those Governments ... which may impair the treaty rights of the United States ... including those which relate to the sovereignty, the independence, or the territorial and administrative integrity of the Republic of China ... and that it does not intend to recognise any situation, treaty or agreement which may be brought about by means contrary to the Pact of Paris.90The Stimson declaration was endorsed by the Assembly of the League of Nations in its resolution of March 11, 1932, which imposed a duty of non-recognition on member-nations, and stated:It is incumbent upon the Members of the League of Nations not to recognise any situation, treaty, or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.91The duty of non-recognition was thus said to ensue from the provisions of the Pact of Paris and from the Covenant of the League of Nations, which in Art. 10 stated, “Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League”.92The United Nations Charter, on the other hand, does not have an equivalent provision in the nature of Art. 10 of the Covenant of the League of Nations for the preservation of territorial integrity, but prohibits the use of force under Art. 2(4). Hence, any breach of territorial integrity in violation of Art. 2(4) logically would not be fit for recognition. Article 25 of the Charter by making decisions of the Security Council binding on all the members of the United Nations, also implies such a duty. But despite any clear directive in the Charter, there is a discernible trend towards non-recognition in the United Nations practice. Article 11 of the Draft Declaration on the Rights and Duties of States 1949, clearly imposes a duty of non-recognition. The General Assembly Declaration on Principles of International Law concerning Friendly Relations and Cooperation among Nations proclaims, “No territorial acquisition resulting from the threat or use of force shall be recognised as legal”.93 Similarly, Art. 5, para. 3 of the Definition of Aggression, adopted by the General Assembly in 1974, provides, “No territorial acquisition or special advantage resulting from aggression is or shall be recognised as lawful”.94 Article_________________90 Text in 1 Hackworth 334. The Pact of Paris, 1928 (also known as the Kellog-Briand Pact for the Renunciation of War) was signed by the US and also by China and Japan.91 LNOJ, Special Supp. No. 101, pp. 87, 88 (1932)92 In spite of this resolution and the provisions in the Covenant, the doctrine was applied in a haphazard manner even in the period immediately thereafter. Whereas the Italian invasion and subsequent annexation of Abyssinia in 1936 was generally recognised, and Austria’s absorption into Germany tacitly accepted, but the annexation of Baltic States by Russia in 1940 was not recognised by western States.

93 GA Res. 2625 (XXV) Oct. 24, 1970, para. 10 of the Principle against use of force.94 GA Res. 3314 (XXIX) Dec. 14, 1974; 69 AJIL 480 (1975). Similar provision is found in the Charter of Bagota of the Organisation of American States, 1948 (Art. 17).


52 of the Vienna Convention on the Law of Treaties, 1969, provides that a treaty is void if its conclusion has been procured by threat or use of force.95 Thus, there is a clear obligation of non-recognition on States of all illegal territorial acquisitions and unlawful treaties.However, under the United Nations practice, the question of obligatory non-recognition substantially arose in the matter of South-West Africa (Namibia), which was a South African mandate.96 The General Assembly terminated South African mandate over South-West Africa (Namibia) on October 27, 1966 and South-West Africa came under the direct control of the United Nations. The Security Council by its Resolution 276 of 1970 declared that “the continued presence of the South-African authorities in Namibia is illegal and consequently all acts taken by the Government of South Africa on behalf of or concerning Namibia after the termination of the mandate are illegal and invalid” (para. 2) and called upon “all States, particularly those which have economic and other interests in Namibia, to refrain from any dealings with the Government of South Africa which are inconsistent with paragraph 2 ...” (para. 5). In its advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in South-West Africa (Namibia),97 of June 21, 1971, the International Court of Justice held these paragraphs binding on all the member-nations of the United Nations. In pursuance of these paragraphs, the member-nations were under a duty not to recognise the legality of South-African presence in Namibia, were to abstain from sending diplomatic or special missions in South- Africa, including the territory of Namibia, and to abstain from sending consular agents to Namibia. The Court further restrained the member-nations from entering into any economic or other forms of relationship or dealings with South Africa concerning Namibia, in accordance with para. 5 of the Security Council Resolution 276. The Court even imposed the duty of non-recognition on non-members of the United Nations by stating: “the termination of the Mandate and the Declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law”.98After Namibia’s independence in 1990, the matter has become of historical and academic interest but these pronouncements by different organs of the United Nations (General Assembly, Security Council and the ICJ) have laid down the general rule of non-recognition for all territorial changes brought, out in violation of international obligations.

VI. RECOGNITION OF INSURGENCY AND BELLIGERENCYTill recently, the subject of recognition of insurgency and belligerency, had become more or less an academic one, but international situations in many parts of the world, as in Afghanistan,__________________95 UN Doc. A/CONF. 39/27, May 23, 1969, Arts. 51 and 52.96 The question of obligatory non-recognition also arose in connection with Rhodesia which unilaterally declared independence from Britain in November 1965. The Security Council imposed economic sanctions against Rhodesia and the United Kingdom

was asked to enforce these sanctions, SC Res. 221 (1966), SCOR, 21st year. Res. and Decisions, p. 5. In 1979, the Security Council terminated these sanctions by Res. 460 (1979), following an agreement on Rhodesia’s independence. Rhodesia became an independent State of Zimbabwe in April 1980, with the establishment of the non-white majority government.97 (1971) ICJ Rep., p. 16.98 Ibid., at pp. 55-56.


erstwhile Yugoslavia (particularly in Bosnia-Herzegovina) and Sri Lanka, have aroused the interest afresh in the subject. The earlier instance of its application could be found in the Spanish civil war (1936-39) by the European nations.Both, insurgency and belligerency are insurrection (i.e., an act or an instance of rising in arms or open rebellion against civil authority or an established government) against an existing government by a group for the purposes of obtaining power in whole or part of the territory. Generally speaking, in such situations, outside powers maintain a policy of non-interference unless their vital interests are at stake and it is to protect these interests that recognition may be granted by them. But before they do so, certain conditions must exist. For the recognition of insurgency, it is essential that: (a) insurgents should be in effective occupation of a substantial part of the territory; (b) they should enjoy the support from the majority of the population living in that territory; and (c) they should have the will and capacity to carry out international obligations. On the other hand, when the armed rebel against the established government reaches to such dimensions that it gets the form of actual war between the established government and the insurgent forces, the situation takes the form of belligerency. Recognition of belligerency is the acknowledgement of a juridical fact that a state of hostilities between two factions contending for power or authority exists. However, before belligerency is accorded recognition, the recognising State must satisfy that: (a) the hostilities must not be local (as in insurgency) but must be of a general character; (b) the insurgents must be in occupation and control of a considerable portion of the national territory; (c) insurgents forces must be properly commanded and they observe the rules of war; and (d) the hostilities have reached to such a magnitude that outside powers may be compelled to define their attitude towards belligerency. Recognition of belligerency, in fact, should be followed by a declaration of neutrality."The recognition of insurgency and belligerency helps the recognising State in protecting its commercial interests, sea-borne trade from attacks and confiscation by the warring groups, public property and the interests of its citizens in the territory under the control of insurgents. It entitles the recognised forces not to be treated as pirates and rules of war become applicable to them. Once recognition is granted, the parent government is exonerated from any responsibility for acts committed in the territory occupied by insurgents. After belligerency is recognised, the relationship of the belligerents and the recognising State are governed by the rules of international law. Belligerency may subsequently lead to the emergence of a new State or government.But like recognition of States and governments, recognition of belligerency is also motivated by political considerations, as it was evident during the Spanish civil war. Because of the declared policy of “non-intervention” by European powers, many nations, like Great Britain and France, did not recognise belligerency, instead Great Britain granted de facto recognition to insurgents, Germany recognised belligerency. Further, as in the matter of new entities or regimes, recognition of belligerency is not a matter of duty but is merely facultative. Nevertheless, recognition of belligerency is distinct from recognition of a State or government because it lasts as long the situation of belligerency exists. After one group empowers the other, the question of recognition of rightful regime arises.

_________________99 J.L. Brierly, op. cit. 22, p. 141.


However, recognition of both insurgency and belligerency requires the occupation of substantial national territory by rebel forces. In the case of insurgency, it is significant to note that before the recognition is accorded, the length of insurrection and the insurgents’ capability to observe their international obligations must be taken into account. Where the insurgent forces are not organised and the nature of hostilities is almost localised, the States should desist from recognising them lest it may amount to unlawful interference in the domestic affairs of another State. This will be illegal and in violation of the principles of the United Nations (Art. 2(7)) and the 1970 General Assembly Declaration on Friendly Relations and Cooperation among Nations.100 States sometime provide support to rebel forces without according recognition to them, when they consider it to be premature to do so. For example, the United States appointed a Special Envoy with the rank of an ambassador in April 1989 for Afghanistan to demonstrate its continuing support to rebel groups. This act of the United States was short of diplomatic recognition._________________100 See op. cit. 93; see also R.C. Hingorani, Modern International Law, 2nd ed. (Oxford & IBH Publishing Co., New Delhi), 1982, p. 88.

Page 133

CHAPTER 6

State Territory

I. GENERALThe territory of a State is an important attribute of Statehood. It conveys its factual existence and the basis for the exercise of its legal powers. It signifies the State’s title to its territory and sets the limits of its territorial sovereignty.1 The importance of State territory lies in the fact that it is the space within which a State exercises its supreme authority. It exercises jurisdiction over persons and property to the exclusion of others within this area. Territorial sovereignty is generally held to be indivisible, but there are numerous instances in international practice of division of sovereignty as well as of distribution of the components of sovereignty. For instance, in the case of leases and pledges, the States may restrict their right or transfer territory by treaty. In condominium, the sovereignty is quite often shared jointly by two or more States. For example, New Hebridges, before becoming an independent Republic of Vanuatu on July 30, 1980, was jointly administered by Great Britain and France.The territory of a State comprises not only the land mass but its national waters, i.e., rivers, lakes, bays, estuaries, other enclosed areas and extends to maritime zone (territorial sea) and the air space above its land and water territory. Beside territorial sea, the coastal State also exercises certain sovereign rights over its contiguous zone, continental shelf and Exclusive Economic Zone (EEZ). A State can also acquire additional territorial rights over dependent territories or by way of leases or servitudes over the territory of other States.A State comes into existence with a territory and it may acquire new territories subsequently. Acquisition of a new territory by a State means the acquisition of sovereignty over such territory.

II. MODES OF ACQUISITION OF STATE TERRITORYThe modes to acquire territory are now essentially of academic interest until a dispute arises and competing claims have to be assessed. A State may acquire the territory which may be under the sovereignty of another State or which may not belong to any State, i.e., terra nullius. Whereas in the first case, the State gets a derivative title (i.e., transfer of ownership from a previous sovereign) over the territory, in the latter case, it is the original mode, where there is no transfer of ownership, but to establish a superior title, it must be followed by occupation. The five modes_________________1 Max Huber, in the Island of Palmes Arbitration, stated: “Sovereignty in the relation between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State”, 22 AJIL 875 (1928).


of acquiring territory, given in many of the standard text books2 and accepted traditionally are: occupation, accretion, cession, annexation and prescription, whose terminology and characteristics are drawn from Roman law methods of acquiring private ownership of land. Whereas occupation and accretion create original title, the cession is clearly a derivative title. Annexation and acquisitive prescription are only derivative in the sense that territory acquired by these methods was formerly under the sovereignty of another State but they imply the destruction of the former title before a new title is created. Consequently, annexation and acquisitive prescription create new and independent title. However, their relevance as modes of acquisition under modern international law cannot be adjudged in isolation from recognition and other rules of international law, nor can there be a compartmentalised approach in their application to contentious cases of relative title, i.e., to show a better title to possess. Further, these modes apply to the acquisition of additional territory by an existing State and not to the emergence of a new State either out of revolution or by peaceful means, such as emancipation from colonialism. Their case pertains to the criterion of Statehood and consequent recognition.

A. OccupationOccupation gives a State original title to territory. Under international law, occupation is an act of establishing sovereignty by a State over a terra nullius (i.e., a piece of territory not under the sovereignty of any State). The term ‘occupation’ is derived from the Latin word occupatio, which means acquisition of terra nullius, i.e., it is not under the sovereignty of any other State, whether newly discovered or abandoned by the State formerly in control. It is different from res communis, i.e., the area which is accessible to all but legally cannot be acquired by any one, for example, the high seas and outer space. Similarly, a territory inhabited by tribes or peoples having their own social and political order cannot be of the nature of terra nullius, and thus, cannot be the subject matter of occupation. It is through an agreement with the representatives of the local peoples or tribes, that the territory can be acquired. This would amount to cession and not occupation.3In occupation, the principle of effectiveness is applied to acquire title over the territory. The principle has two components, which must be ascertained to establish the sovereignty: (a) there should be intention to occupy as sovereign, and (b) it should be backed by adequate exercise or display of sovereignty.4 The intention to occupy as sovereign is a matter of inference from_________________2 See, for example, J.L. Brierly, Law of Nations, 6th ed. (Clarendon Press, Oxford), 1963, pp. 163-173; J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, pp. 159-171; L. Oppenheim, International Law, edited by Jennings and Watts, Vol. II-IV, 9th ed. (Longman, London), 1992, p. 696; M.B. Akehurst, A Modern Introduction to International Law, 6th ed. (George Allen & Unwin, Sydney), 1987, pp. 143-50. But this classification has been termed as inadequate and unsound, see Brownlie, Principles of Public International Law, 7th ed. (Oxford University Press. Oxford), 2008,

p. 127; G. Schwarzenberger. A Manual of International Law, 5th ed. (Stevens & Sons Ltd., London), 1967, pp. 121- 133; D.N.H. Johnson, Cam. LJ. (1955), pp. 215-217.3 Western Sahara case (1975) ICJ Rep., p. 12.4 In Minquiers and Ecrehos case (1953) ICJ Rep., p. 47, the ICJ held that the decisive factors for occupation are direct evidence of possession and the actual exercise of sovereignty. See also Eastern Greenland case, PCIJ Rep., Sec. A/B, No. 53 (1933). In the Island of Palmes case (1928) 2 RIAA 829, Judge Huber also emphasised on a “continuous and peaceful display of State authority”.

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the circumstances, but unauthorised acts of the nationals of a State without subsequent ratification cannot become the basis for a claim of occupation.5 Intention to occupy may be manifested through certain symbolic acts, such as hoisting the national flag. But they confer only “inchoate” title and must be accompanied by the continuous display of sovereignty necessary to confirm the title signifying the “effective occupation” and control over the territory by the occupying State.6 It may be manifested by overt or symbolic acts or by legislative or administrative acts for the territory claimed or by entering into treaties with other States recognising the claimant State’s sovereignty. But the necessary degree of control or adequate display or exercise of sovereignty varies with the circumstances.In the Clipperton Island Arbitration (Mexico v. France), it was observed, “It is beyond doubt that... besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act or series of acts, by which the occupying State reduces to its possession the territory in question and takes steps to exercise exclusive authority there”.7 In this case, sovereignty over the Clipperton Island was disputed. In November 1858, the French crew landed at the uninhabitated Pacific Ocean island of Clipperton and soon was followed by a declaration of sovereignty in a Honolulu journal. This was considered to be sufficient to support the French claim over the island against Mexico which claimed sovereignty as the successor State to Spain whose army stated to have discovered the island. The tribunal failed to find any evidence of discovery by Spain, nor was there any proof of historic right “supported by any manifestation of her sovereignty over the island” by Mexico.The consideration of “manifestation of sovereignty” also led the Permanent Court of International Justice in the Eastern Greenland case8 in deciding that Danish sovereignty extended over the entire Eastern Greenland and not simply over the colonised areas. About the amount of authority which is required to establish sovereignty over areas of thinly populated or unsettled territories, “very little in the way of actual exercise of sovereign rights” might be sufficient in the absence of competing claim.9 Denmark was exercising all sovereign acts over Eastern Greenland since 1814. In the Minquiers and Ecrehos case, the International Court of Justice emphasised on the actual exercise of “State functions” such as acts of jurisdiction, local administration and legislation, proving thereby the continuous display of sovereignty required to confirm title. On this basis, the Court upheld the British claim over the Channel Islets against France.10 Again in the Sovereignty over Pulau Ligitan and Pulau Sipadan case between Indonesia and Malaysia regarding sovereignty over two small islands off the coast of Borneo, the Court_________________5 Anglo-Norwegian Fisheries case (1951) ICJ Rep., p. 116 at p. 184 as per Judge McNair.6 O.G. Lissitzyn and F.A. Mann, however, view such acts sufficient to establish immediately a right of sovereignty over such a territory, see Creation of Rights of Sovereignty through Symbolic Acts 1400-1800 (1938), pp. 148-149; see also D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet & Maxwell, London), 2010, pp. 167-168.

7 (1931) 6 AD, Case No. 50, at p. 107.8 See op. cit. 4, p. 43.9 Ibid., at p. 46. In the Clipperton Islands Arbitration, it was similarly held, see op. cit. 7.10 Op. cit. 4, at pp. 68-70. In the Western Sahara case also, the Court applied the principle of effective display of sovereignty distinct from routine or inconclusive acts not necessarily manifesting the firm intention of the State to establish territorial sovereignty, supra note 3, paras. 92-93.


did not find any evidence of Indonesian effectivites (i.e., exercise of government authority) and held they are Malaysian on the basis of “administrative assertions of authority” by Malaysia.11 In Rann of Kutch case, the arbitrators considered the exercise of economic activities and grazing rights by private landholders as evidence of title, because in an agricultural economy, the criterion of the exercise of State sovereignty through State functioning cannot be applied with the same firmness as in a modem industrial economy. On this basis, they upheld the claim of India, and gave a small part of Rann of Kutch to Pakistan on the ground of administrative convenience.12Notification to other States for the territory so occupied is not essential to complete the title. It is enough to show that it is effectively governed by the possessor which exercises all the administrative, legislative and jurisdictional acts. In a dispute between India and Bangladesh relating to the sovereignty over New Moore Island (being called South Talpathy by Bangladesh and Purbasha by India) which is a 12 kilometre uninhabited island in the estuary of Haribhanga river bordering India and Bangladesh in the Ganga-Brahmaputra basin of Bay of Bengal and occupied by India, it was contended by India that it had notified to the United Kingdom and the United States in 1971 about the occupation, though notification to other States is not an essential condition. This was done to show India’s intention and to remove any doubts as to its sovereignty. Since no objection was raised by any country, including Bangladesh, Indian occupation may be deemed to have been established.13The mere act of discovery, whether it entitles a State to claim sovereignty over terra nullius, was considered in the Island of Palmes Arbitration.14 The title over island of Palmas (or Miangas) was disputed between the United States and the Netherlands. The island lays halfway between Philippines and Indonesia. The United States laid its claim as the successor to Spain over the Philippines, which discovered it in the sixteenth century. On the other hand, the Netherlands based its claim on the long and continuous display of sovereignty and submitted historical evidence to this effect. Max Huber, as the sole arbitrator, while deciding in favour of the Netherlands, ruled that a mere act of discovery by a State without more per se is not sufficient to confer a valid title over terra nullius by occupation. It merely creates an “inchoate” title without external manifestation, i.e., there must be a “continuous and peaceful display of territorial sovereignty” by the State, and that territorial sovereignty has continued to exist in the period leading up to the “critical date” (the date on which the location of territorial sovereignty is decisive) relevant for the decision of the dispute. An “inchoate” title could not prevail over the continuous and peaceful display of authority by another State; for such a display may prevail even over a prior, definite title put forward by another State.15 Thus, the effective occupation applies to the actual exercise of sovereignty._________________11 (2002) ICJ Rep., p. 625 at 684. See also, the Land and Maritime Boundary between Cameroon and Nigeria case (2002) ICJ Rep., p. 303.12 See 7 ILM 633 at pp. 673-75 (1968).13 H.O. Agarwal, International Law, 14th ed. (Central Law Publications), 2007, p. 175.14 2 UNRIAA, p. 829; 22 AJIL 875 (1928); Harris, op. cit. 6, p. 163.

15 Harris, ibid, p. 167. In Eritrea v. Yemen (1998) 114 ILR 1 at 69, it was held that “continuous and peaceful display of State authority” under modern international law requires an intentional display of power and authority, by the exercise, of jurisdiction and State functions, over the territory on a continuous and peaceful basis. These criteria are tempered to suit the nature of the territory and the size of its population, if any.


Generally, possession of a part of the territory is regarded as the possession of all the territory. However, certain theories have been advanced by States to determine the extent of territory covered by an act of occupation, viz., the theory of continuity and the theory of contiguity. According to the theory of continuity, the act of occupation extends so far as is necessary for the security or natural development of its area of lodgment; and in the theory of contiguity, the sovereignty of the occupying State reaches to those neighbouring territories which are geographically pertinent to the area of lodgment, i.e., there is a geographical unity between the mainland and the area claimed. In the North Sea Continental Shelf cases,16 the Court preferred the theory of continuity to determine the rights of the coastal State to the continental shelf. In the Island of Palmes case, the United States based its claim on the theory of contiguity which was rejected by the arbitrator stating that “this principle would be in conflict with ... territorial sovereignty ... it is wholly lacking in precision and would in its application lead to arbitrary results”. It was further observed that it is impossible to show the existence of a rule of positive international law that islands situated outside territorial waters “should belong to a State from the mere fact that its territory forms the ... nearest continent or island of considerable size”.17 In Western Sahara case18 again, the Moroccan claim over Western Sahara on the ground of contiguity or geographical unity was rejected. Though in nineteenth century Africa, it was the basis to lay claim to areas of hinterland (areas claimed for future occupation) as contiguous to their coastal settlements, it is now well-established that contiguity alone is not a basis of title, but if accompanied with other geographical considerations, it is relevant to determine the limits of effective occupation.19 In Eastern Greenland Case, the Court viewed that minimal display of sovereignty may be sufficient to establish effective occupation over small, uninhabited territory.20Occupation as a mode of acquisition of territory does not have much relevance now, since there is no habitable area in the nature of terra nullius at present. However, its only importance lies in the settlement of boundary disputes arising out of past occupations, though such cases may be dealt under acquisitive prescription.

B. AccretionAccretion is the addition of new land territory to the existing territory of a State through new formations by operation of nature, as by the drying up of a river or the recession of a sea or the emergence of an island within territorial sea. Such formations may happen slowly (i.e., accretion), for example, by the gradual movement of a river bed, or suddenly (i.e., avulsion), for example, by the creation of an island in the territorial waters by volcanic action. Both accretion and avulsion are geographical processes. In such cases, no formal act or assertion of title is necessary. It is also immaterial whether the process of accretion has been gradual, sudden or imperceptible. If accretion occurs on a boundary river (i.e., between two States), then the boundary_________________16 (1969) ICJ Rep. 3, at pp. 30-31.17 Op. cit. 14, at p. 854.18 See op. cit. 3, para. 92.

19 See H. Waldock (1948) 25 BYhIL, p. 342.20 Eastern Greenland Case, PCIJ Rep., ser. A/B, No. 53 (1933), pp. 22-147, at p. 46.


changes. If the river is navigable, the boundary will follow the thalweg, that is, the centre of the navigable channel. If the river is non-navigable, the middle of the river stream will constitute the boundary. This mode of acquisition is of minor importance, and does not require a detailed treatment.

C. CessionCession is the transfer of sovereignty over State territory by the owner-State to another State. The transfer of territory by one sovereign State to another is the most usual form of acquiring derivative title to land. A State can cede any part of its territory or merge in another State. In the case of Berubari Union and Exchange of Enclaves,2] the Supreme Court of India remarked:... it is an essential attribute of sovereignty that a sovereign State can acquire territory and can, in case of necessity, cede a pail of its territory in favour of a sovereign State, and this can be done in exercise of its treaty making power. Cession of national territory in law amounts to the transfer of sovereignty over the said territory by the owner-State in favour of another State.Cession can be effected by an agreement,22 made either voluntarily (it is more in the nature of annexation), such as a gift, exchange or sale following peaceful negotiations, or under compulsion following war when the territory is ceded to the victorious State by the vanquished State. In fact, cession after war is more common than annexation. There are numerous instances of compulsory cession. Gibraltar’s cession to Britain in 1704, after it was captured by a British/Dutch expedition during the war of Spanish succession, effected by the Treaty of Utrecht 1713 after Spain lost the war.23 Similarly, Alsace-Lorraine of France was given to Germany in 1871, which was returned to France at the end of First World War. Cession of Hong Kong by China to Great Britain after the Opium War was the result of a treaty in 1898.24 Voluntary cession may either be gratuitous, or for some consideration. Examples are the sale of Danish West Indies by Denmark to the United States in 1916, Alaska by Russia to the United States in 1867, exchange of Heligoland for Zanzibar by Germany and Great Britain in 1890, marriage gift of Bombay by Portuguese King to British Prince at the occasion of his sister’s marriage in the seventeenth century. By whatever way the cession is brought about, it should clearly indicate an intention to transfer sovereignty from one State to another.In the Union of India v. Sukumar Sen Gupta25 the Supreme Court observed that giving the facility of using “Teen Bigha” to Bangladesh under the 1974 and 1982 agreements to have access to its two enclaves of Dahagram and Angarpota on lease do not amount to “cession of the said_________________21 AIR 1960 SC 845, at pp. 856-57.22 L. Oppenheim, op. cit. 2, para. 213.23 Spain has disputed the status of Gibraltar before the UN Committee of 24 (the Decolonisation Committee) since 1963. Great Britain has alternatively claimed a prescriptive title. The negotiations on the issue have so far proved unsuccessful and matter has remained unresolved. Spain demands the return of Gibraltar, but Great Britain continues to refuse.

24 Hong Kong and the New Territories were leased to Britain in 1898 under a treaty. These territories have since been returned to China under the terms of the 1984 agreement between China and the United Kingdom.25 1990 SC 1692, at p. 1698.


territory or transfer of sovereignty in respect of the same”, and clause 2 of the 1982 agreement clearly provided, “sovereignty over the leased area shall continue to vest in India”.The ceded territory takes effect under the rule of Nemo dat quod non habet (no one can give another a better title than he himself has), i.e., the acquiring sovereign cannot possess greater rights than those possessed by its predecessor. The new sovereign is subject to any encumbrance or limitation of sovereignty or sovereign rights by way of servitude or lease, to which the ceding State was bound.

D. AnnexationAnnexation is a mode of acquiring territory by a State through conquest or subjugation and subsequently formally annexing such territory. Mere conquest is not sufficient to give title to the territory; it must be accompanied by a formal declaration expressing the victorious State’s intention to annex. Conversely, the victorious State can disclaim such an intention, viz., Allied Powers’ disclaimer in 1945 with respect to Germany after its unconditional surrender.26 Annexation of territory after the war is generally carried out by a treaty of cession.In practice, however, annexation is not common, because modern international law does not recognise military conquest as a basis for title. It is a well-established rule that the “territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force” contrary to Art. 2(4) of the United Nations Charter.27 The use of force was also outlawed by the 1928 Kellog-Briand Pact and the 1932 Stimson Doctrine of Non-Recognition, which was endorsed by the League of Nations as well.28 The rule is still followed, for example, the territorial captures by Israel in June 1967 of Egypt, Jordon and Syria after the “Six-Day War” were not recognised by the Security Council Resolutions 242 (XXII) of 1967 and 338 (XXVIII) of 197 3.29 The Iraqi invasion of Kuwait and subsequent annexation of that territory in August 1990 culminated in the Security Council Resolutions 660 and 662 calling upon Iraq for immediate and unconditional withdrawal from Kuwait.30It is, however, a debatable issue whether a State, acting in self-defence under Art. 51, can annex the captured territory during hostilities, or can give effect to the principle of self- determination of people and anti-colonialism.31 This situation arose in the case of Goa, which was then under Portuguese occupation. India captured Goa, Daman and Diu on December_________________26 In contrast, there is so called “peaceful annexation”, i.e., taking over of territory, without use of force, in the name of a State following a settlement, e.g., colonisation of Australia by Great Britain.27 See the 1970 Declaration on Principles of Friendly Relations and Cooperation among States, GA Res. 2625 (XXV), Oct. 24. 1970, para X.28 LNOJ, Special Supp. No. 101, pp. 87-88 (1932).29 These captured areas are still termed as “occupied territories”. Following the Camp David Agreement in 1979, Israel returned Sinai Peninsula (but not the Gaza strip) to Egypt. Israel and Jordon have also entered into an agreement on Oct. 26, 1994, about

the West Bank. Israel’s annexation of East Jerusalem in 1980 and the Golan Heights in 1981 has not been recognised by any other country. See, en.wikipedia.org/ wiki/Israeli-occupied_territories30 For text of Resolutions see 29 I.L.M. 1323 and 1327 (1990).31 GA Res. 1514 (XV) GAOR Supp. 16 (A/4684) of Dec. 14, 1960, p. 66. On the significance of self-defence, see R. Jennings, The Acquisition of Territory in International Law (Manchester University Press, Manchester), 1963, p. 55.


17-18, 1961, against which Portugal requested the Security Council to put a stop to this act of aggression of India, ordering an immediate ceasefire and the withdrawal of all the invading forces of the Indian Union from these territories.32 The Indian representative, Mr. L.K. Jha, justified the Indian action and stated:Portugal has no sovereign right over this territory ... whole occupation [by Portugal] is illegal as an issue - it started in an illegal manner, it continues to be illegal today and it is even more illegal in the light Resolution 1514 (XV) there can be no question of aggression against your own frontier or against your own people, whom you want to keep liberate.33The resolution on this matter, moved by France, Turkey, the United Kingdom and the United States, asking India to withdraw its forces and for ceasefire, was vetoed by the Soviet Union. However, India remains in control of these territories, and Portugal recognised Indian title to them in 1974. There is also an acquiescence of the international community to India’s title to them and the process has achieved the status of legal prescription.

E. PrescriptionIn contrast to occupation, which applies to a terra nullius, prescription applies to a territory that had a sovereign. It is the long occupation and the implied acquiescence of the dispossessed sovereign that are the basis of prescriptive right. Principle of prescription may also be invoked to consolidate the title to a territory initially based on discovery (terra nullius) or occupation. The underlying rule for prescriptive title is that of “estoppel”, i.e., if a State has “slept upon its rights”, it cannot be allowed to revive against a State that has been in long continued enjoyment to those rights. International law does not fix a time limit for prescriptive title to ripen, nor is there any requirement of “animus” for acquiring prescriptive title. The de facto control and exercise of sovereignty are sufficient to constitute prescriptive title to the territory. However, in the Frontier Lands case34 between Belgium and the Netherlands, the International Court of Justice held that the Netherlands acts of sovereignty in the area at different times in derogation of the Boundary Convention of 1843, which vested the land in Belgian, could not extinguish Belgian sovereignty in land. The Court, nevertheless, seemed to be accepting that the title may be established by prescription. Same conclusion was implied in the Island of Palmes case.35Distinction has been made between extinctive and acquisitive prescription in international law. As to the extinctive prescription, a claim must be brought within a reasonable period of time. In acquisitive prescription, which is dealt here, the title arises out of a long continued possession, provided that there is no formal protest or that all other interested and affected States have acquiesced in this exercise of authority.36 However, the protest should be “effective”, i.e., mere diplomatic_________________32 UN Doc. S/5030.33 SCOR 16th yr., 987th and 988th Meetings, Dec. 1961.34 (1959) ICJ Rep., p. 209.35 Op. cit. 14.

16 J.L. Brierly, op. cit. 2, p. 167; W.E. Hall, International Law, 8th ed. (Clarendon Press, Oxford), 1924, p. 143; D.H.N. Johnson, 27 BYbIL 332 at pp. 353-354 (1950). Consolidation by Historic Titles is also raised as an alternative to acquisitive prescription as a basis of title to land, which was argued by Nigeria in the Land and Maritime Boundary between Cameroon and Nigeria case, op. cit. 11.


protest is not sufficient. It must be followed by a reference to an appropriate international organisation or international tribunal unless it is not possible to do so. But the length of time to establish the prescriptive title on the one hand, and the extent of action required to prevent its fructification on the other hand, are invariably matters of fact to be decided by the international tribunal seized with the task of adjudication.37In the Chamizol Arbitration38 between the United States and Mexico, the United States claimed and joined an area, the “El Chamizol” Tract of about 600 acres after Rio Grande changed its course. Rio Grande for part of its length made a boundary between the two countries by a treaty of 1848. The United States justified its action upon prescription on the ground of undisturbed, uninterrupted and unchallenged possession. The United States claim was rejected since Mexico had made a number of protests leading to the 1884 Convention between the two countries to settle their rights in respect to the changes brought about by the waters of Rio Grande. These actions of Mexico amounted to effective protest, which made the United States agree to refer the dispute to a competent tribunal in 1895. The tribunal observed that part of the Tract which resulted from a gradual process of accretion belonged to the United States but the part of it that had resulted from a Hood in 1864 belonged to Mexico.39In the dispute between Argentina and the United Kingdom over the Falkland Islands (or Malvinas), Britain stakes its claim on prescription and the principle of self-determination. It contends that it has an open, continuous, effective and peaceful possession, occupation and administration since 1833 (except for a brief period of 10 weeks of forcible occupation by Argentina in 1982). Further, it is exercising its authority in accordance with the washes of the islanders, expressed through their democratically elected representatives.40 On the other hand, Argentina claimed the islands as the successor to Spain on the principle of uti possidentis, made a number of formal protests since 1833 to the British Government and later at the United Nations and other international fora. In this context, it is difficult to determine claim of the two over the islands, because in prescription, it is not only the effective control of the territory in question, but it must also be accompanied by acquiescence of the “losing” State, i.e., in this case, that of Argentina. There is, however, evidence of acquiescence on the part of other nations.41 Another suggested mode for British sovereignty over the islands has been stated to be conquest, which was a recognised mode of acquiring territory in 1833. Being in accordance_________________37 Brownlie does not agree with the view that “protest must be followed by steps to use available machinery for the settlement of international disputes” because if “acquiescence is the crux of the matter ... one cannot dictate what its content is to be”, Brownlie, op. cit. 2, p. 149.38 See 5 AJIL 782 (1911).39 See Harris, op. cit. 6, p. 178.40 This argument has not been accepted by the Committee of 24, because the islanders are mainly immigrant population of about 3000, mainly British nationals, settled there since 1833, and strongly favour retaining their association with UK. Same is the position with Gibraltar which is inhabited by Genoese, Maltese, Moroccans, British

and others, replacing the earlier, largely Spanish population who left the territory after its capture in the early eighteenth century.41 In 1986, UK declared the Falkland Islands Exclusive Fishing Zone, which was protested by Argentina, but more than 15 nations’ vessels applied for licences to the Falklands.


with the doctrine of inter-temporal law, the British conquest of the islands was stated to be unaffected by protests.42In addition to these modes, the territory may be acquired by a State through multilateral or judicial acts of State. A State may be awarded a territory at an international conference through the multilateral act of States, for example, the territorial redistribution of Europe at the Versailles Peace Conference in 1919. Territory may accrue by reason of boundary delimitation under an award or as a result of a treaty of compromise or settlement of a disputed land. In the Temple of Preah Vihear case,43 the area, where the temple was situated, was awarded to Thailand under the 1904 boundary treaty. The Court awarded the territory to Cambodia by applying the rule of estoppel, because by her conduct Thailand had acquiesced to the frontier line contended by Cambodia, as shown in the map. In the case of Rann of Kutch arbitration44 of 1968 between India and Pakistan, India claimed the Rann area as successor to the Indian native State of Kutch, whereas Pakistan claimed that part or whole of the Rann fell within the district of Sind, which formerly was a part of British India and now constituted a part of Pakistan. However, the tribunal observed that because of the inhospitable nature of the terrain, which made the Rann virtually incapable of permanent occupation, the requirement of possession cannot play a role in determining sovereign rights in this case. Consequently, the tribunal accorded special significance to other State activities and on that basis, ruled that India had made a better claim through maps and statements made by the British colonial authorities, but awarded Dhara Benni and Chhad Bet to Pakistan because of the topography of the region which could be effectively administered by Sind in the circumstances.45

Loss of territoryModes of loss of territory are the anti-thesis of the methods of acquisition. For example, treaty of cession transfers the territory from one State to another State and similarly prescription creates a new title by extinguishing the previously existing sovereignty. In such a case, however, there should not only be a factum of relinquishment of sovereignty by the owner State, but there should also be animus to divest itself of effective control. The loss of territory is thus converse of acquisition of territory, except in the case of revolt. The emergence of a new State out of revolution results from the Secession of a part of the territory of the State concerned. For example, emergence of Bangladesh out of a. revolution in erstwhile East Pakistan was a loss of territory by Pakistan. Grant of independence by the metropolitan State also results in the loss of territory, though the severed territory becomes a new international entity._________________42 See Jennings, op. cit. 31, at p. 53. Britain has not relied upon it because of the political delicacy of the notion of conquest, nor has it raised it in its dispute with Spain over Gibraltar. Argentina and the UK re-established diplomatic relations in 1990 without prejudiced to their sovereignty claims. They also established two separate commissions to conserve fishing stocks and development of oil and gas in the disputed area.In 1994, constituent assembly of Argentina added a new provision in its constitution ratifying the claim of sovereignty over the Malvinas.

43 (1962) ICJ Rep., p. 6.44 See op. cit. 12.45 Ibid., at p. 689.


III. POLAR REGIONSIn the acquisition of territory in polar regions,46 the normal principles relating to discovery (terra nullius), annexation and prescription should apply, but because of the inaccessible climatic conditions, the physical assumption of control implicit in these principles virtually becomes non-applicable. In the case of the North Pole (Arctic region), the situation is further complicated because the region is mostly ‘ice territory’ (e.g., ice-shelves, those of Ellesmere Island, similar to Ross Ice Shelf in the Antarctic, and ice islands) with what must be considered as high seas capable of being navigated by submarines, and not land. The States have made claims to polar regions according to “sector principle”. A sector is established by enclosing an area, i.e., all land or frozen sea, from the coastline of a State, bordering polar region and the Pole, and within the line of latitude and the two lines of longitude to the point at which the latter lines converge at the North or South Pole as the case may be. Contiguity principle is hard to apply because of the “flattening out” of the earth towards the pole.Sector is considered to be contiguous of the State sovereignty to the pole. These claims have been made both in the Arctic (by the Soviet Union [now Russian Federation] and Canada, in particular)47 and in the Antarctic regions (by Argentina, Australia, Chile, France, Great Britain, New Zealand and Norway) 48 Other States bordering the Arctic Ocean, viz., Denmark, Norway and the United States have opposed the sector approach. The major argument against claims in this region is that beneath the frozen waters is high seas and not land and therefore is not capable of national appropriation. In the Antarctica region, the United States and the Soviet Union (now Russian Federation) do not recognise the claims of other States nor have they advanced specific claims of their own.The claimant States, however, recognise each other’s claims, except that the British claim conflicts with the claims of Argentina and Chile, which themselves overlap.49 The British claim is based on the theory of “continuity”, i.e., on the “historic British discoveries followed by the long continued and peaceful display of British sovereignty from the date of those discoveries onwards in, and in regard to, the territories concerned”.50 On the other hand, the claims of Argentina and Chile are based principally on the contiguity of the tip of South America to_________________46 Donald Rothwell, The Polar Region and the Development of International law, (Cambridge University Press, London) 1996.47 The USSR by its Decree of April 15, 1926, claimed “Sovereignty over all lands and islands ... in the Arctic Ocean North of the Coast of the Soviet Union to the North Pole, between Meridian 32c4’ 35” East of Greenwich and Meridian 168° 49' 30" West of Greenwich, see 1 Hackworth 461. Canada, till 1985, also made sector claim, but in 1985 it drew straight baselines around the outer limits of the islands constituting the Canadian archipelago, claiming the waters as “historic internal waters" on the landward side of the island, which has made the sector claim redundant, see D. Pharand, 25 CYbIL 234 (1987). Unde the US-Canadian Agreement on Arctic Co-operation, the US, while objecting to the baselines, agreed to seek Canadian consent before US vessels navigated the North West Passage. See Pharand, ibid.

48 For these claims, see Hackworth 456. No official sector claim has been made by any nation over the Marie Byrd Land in Antarctica.49 In 1955, UK instituted proceedings before the ICJ, asking the Court to rule on the disputes between UK on the one hand, and Argentina and Chile on the other. Argentina and Chile did not respond and the Court struck the disputes off its list in 1956.50 See op. cit. 48; also see International Law Docs (1948-49), pp. 217-245.


Antarctica, namely, the sector principle. Thus, the “sector principle”, as such is not materially different from other modes of acquisition of territory, and it represents the application of the principle of effective occupation and prescription.Developments in relation to South Pole have put the sovereignty claims in jeopardy. In order to avoid the rush of claims over Antarctica, the Antarctica Convention was adopted in 1959, which entered into force in June 1961. The Treaty designates Antarctica area exclusively for peaceful purposes and prohibits measures of “military nature” (Art. 1). The Treaty has frozen all the existing territorial claims and prohibits new claims or enlargement of existing claims to territorial sovereignty while the treaty is in force (Art. 4). It has created a “nuclear free” and “demilitarised zone” (Art. 5), and emphasises freedom of scientific investigation in the region and exchange of information regarding Antarctic scientific programmes. It has the provision ( Art. 9) for periodic meetings (now held annually) of the consultative (voting) parties, who are 12 named in the Convention, i.e., the States with territorial claims (listed above) and Belgium, Japan, South Africa, the United States and Russia, and the 16 other acceding parties (India acceded to the Treaty in August 1983) that at present conduct “substantial scientific research activity” in Antarctica (Art. 9(3)).51 The Treaty creates an international regime binding even on non-parties, by stating that “no one engages in any activity in Antarctica contrary to the principles or purposes of the present treaty” (Art. 10) (emphasis added). Currently, there are 46 treaty member nations: 28 consultative and 18 acceding. Consultative (voting) members include the seven nations that claim portions of Antarctica as national territory. The 21 non-claimant nations either do not recognise the claims of others, or have not stated their position.The Antarctica Treaty Consultative Meetings have adopted about 200 recommendations (nonbinding) concerning activities in Antarctica. The meetings have led to the adoption of the 1972 Convention for the Conservation of Antarctica Seals52 and the 1980 Convention for the Conservation of Antarctica Marine Living Resources.53 With a view to conserve the environment and to halt unreasonable exploitation of the Antarctica region (which is rich in mineral resources), the 1988 Convention on the Regulation of Antarctica Mineral Resources Activities was adopted, which provides for permit system to explore and exploit the minerals with stringent environmental safeguards.54 This was followed by the 1991 Protocol (Madrid Protocol) on Environmental Protection to the Antarctic Treaty that entered into force in January' 1998.55 It designates Antarctica as “a natural reserve, devoted to peace and science.” It has established procedures to assess the environmental impact of all human activities in Antarctica and bans exploration of minerals and oil in Antarctica for 50 years. The Protocol provides for the protection of the Antarctic environment_________________51 They are Brazil, Bulgaria, China, Ecuador, Finland, Germany (now comprise both GDR and GFR), India, Italy. Korea, Netherlands, Peru, Poland, Spain, Sweden, Ukraine and Uruguay. Brazil obtained this status in Sept. 1983, and has been attending the Consultative Meetings since then. India has already set-up two scientific stations in Antarctica and the work on the third station, Bharti, is to commence in austral summer - 2010/2011.

52 11 ILM 251 (1972), in force 1978, 13 parties.53 19 ILM 841 (1980), in force 1982, 27 parties.54 27 ILM 868 (1988). The Convention is not in force because international opinion favoured a complete ban on mineral exploitation. The 1959 Treaty has no provision on exploitation of mineral resources.55 Text in 30 ILM 1455 (1991).


through five specific annexes on marine pollution, fauna and flora, environmental impact assessments, waste management, and protected areas. It prohibits all activities relating to mineral resources except for scientific research. A sixth annex—on liability arising from environmental emergencies— was adopted in 2005 but is yet to enter into force.However, international opinion is against any mining in the region. Malaysia and some non-aligned countries have proposed to replace the present legal regime with the one that regards Antarctica as the “common heritage of mankind”, which, if accepted, would make the territorial claims to sovereignty inappropriate.

IV. EXTERNAL TERRITORIAL RIGHTS OF STATESStates under international law enjoy certain territorial rights over the territory of another State, such as servitudes and leases. These rights have parallel to easement rights in the municipal legal systems, which are the rights in rem, or real rights. They are attached to the territory and run with it, i.e., they are enforceable against the territory even if it passes under the dominion of another State. These rights are normally created by treaty and they are more than merely treaty obligations.

A. ServitudesServitudes are the exceptional restrictions imposed by treaty on the territorial sovereignty of a particular State whereby the territory of that State is put under conditions or restrictions or right of user serving the interests of another State or non-State entity. It is a right in rem enjoyed by the owner of one piece of land—the praedium dominans, not in his personal capacity, but in his capacity as owner of the land, over land which belongs to another—the praedium serviens.56 These rights run with the land, i.e., they bind the successors in title to the territory. Acceptance of servitude, however, does not represent any negation of sovereignty nor does the grant of servitude amount to cession of territory.57 It is not uncommon for States to grant rights of one kind or another over their territory, such as the right of fishing in the maritime belt, or the right of navigation through a national river, the use of ports, or grant an airfield or aerodrome facilities. But such rights may be in personam, which can be abrogated by the granting State, hence, they do not resemble servitudes as understood under the municipal legal systems on the private law analogy. The test of an international servitude is said to be that the right should be one that survives the change in the sovereignty of either of the two States concerned in the transaction. But in that sense, there is no real evidence of such a right existing under international law and State practice also does not clearly establish such a right.In the North Atlantic Fisheries Arbitration,58 the United States claimed that certain fishery rights created in favour of its inhabitants on the coast of Newfoundland under the Treaty of 1818 with Great Britain constituted a servitude, and the right was a limitation on British sovereignty. The arbitrators from the Permanent Court of Arbitration did not agree with this_________________56 See J.L. Brierly, op. cit. 2, p. 191.57 See Union of India v. Sukumar Sengupta, op. cit. 25, at 1707.

58 11 UN RIAA, p. 167 (1910).


contention and observed that “a servitude in International Law predicates an express grant of a sovereign right and involves an analogy to the relation of a praedium dominans and a praedium serviens; whereas by the Treaty of 1818, one State grants a liberty to fish, which is not a sovereign right but a purely economic right, to the inhabitants of another State” and the Treaty of 1818 did not prevent Britain from making regulations limiting the fishing rights of all persons including the United States inhabitants. Thus, the grant of economic concessions to States would not normally give rise to rights in rem which are irrevocable by the grantor State. Talking in terms of “intertemporal” law (i.e., a juridical fact must be appreciated in the light of the law contemporary with it and not of the law in force when the dispute arose or settled), the arbitrators stated that there was no evidence that the American or British statesmen were conversant with the doctrine of servitude in 1818, when they concluded the treaty.In the S. S. Wimbeldon case,59 the United Kingdom claimed that the right of passage through Kiel Canal guaranteed under Art. 380 of the Treaty of Versailles, which provided that the canal and its approaches should be maintained “free and open” to the vessels of commerce and war of all nations at peace with Germany on terms of entire equality, was a servitude binding upon Germany. The Court ruled that in terms of Art. 380, the canal “has become an international waterway intended to provide under treaty guarantee easier access to the Baltic for the benefit of all nations of the world”. But it did not express a definite view on the question of servitude, and instead found it to be very controversial that whether, at all, in the domain of international law there exist servitudes analogous to the servitudes of private law. On the other hand, in the Right of Passage over Indian Territory case,60 the Court came closer to the acceptance of servitude, though it did not invoke it to decide the claim of Portugal for a right of passage through Indian territory between Portuguese enclaves of Daman, Dadra and Nagar Haveli. The right was granted to Portugal by Maratha rulers and later accepted by British Indian Government by a treaty and continued by India after independence. The Court, although, accepting the existence of rights in rem, refused to categorise them as “servitudes” and upheld the claim of Portugal on the basis of local custom. It further held that such a right was not general as it was inapplicable to the armed forces, police and armaments, and was subject to the control and regulation by India, so the right could hardly be in the nature of servitude stricto sensu.61 The Court demonstrated that the rights of sovereignty can be limited by prescription or historical consolidation. This raises a quaere whether the transit rights of land-locked States are in the nature of servitudes or customary rights.However, sometime States create rights in the nature of servitudes benefiting the community of States. In the Aaland Islands case62 Sweden argued that Finland, as a successor to Russia, was bound by the provisions of the General Treaty of Peace of 1856, between France, Great Britain and Russia on the demilitarization of the islands, because the provisions created a servitude. The International Commission of Jurists, which reported on the matter, however, stated that “the existence of international servitude, in the true technical sense of the term, is not generally admitted”. But, it held that the demilitarisation provisions “constituted a special international_________________59 PCIJ Rep., Series A, No. I (1923).

60 (1960) ICJ Rep. 6.61 Ibid., at p. 40.62 LNOJ, Special Supp., No. 3 (1920), p. 3.


status relating to military considerations, for the Aaland Islands. It follows that until these provisions are duly replaced by others, every State interested has the right to insist upon compliance with them. It also follows that any State in possession of the Islands must conform to the obligations binding upon it”.63Nevertheless, on the basis of judicial authorities, it may be stated that the doctrine of “servitudes”, as it exists under private law, does not exist in international law. These rights, at the best, can be described as “territorial facilities” which are contractual in nature and may lead to prescriptive rights or may accrue by historical consolidation In the Union of India v. Sukumar Sengupta case,64 the Supreme Court of India, however, termed the territorial facility given to Bangladesh of using the Indian area known as “Teen Bigha” as “servitude” in international law. This facility has been provided to Bangladesh under the 1974 Agreement read with the 1982 Agreement, so that Bangladesh can have an access to her two enclaves of Dahagram and Angarpota, wholly encircled and enclosed by Indian territory. By the 1982 agreement, the sovereignty and administration of the area would continue to vest in India, though Bangladesh would have the undisturbed possession of the area. This territorial facility may ripen into a prescriptive right over a period of time.Nonetheless, authority is lacking on whether a servitude benefiting a single State might exist in other situations. It is also worth noting the status of “international waterways”, particularly of canals, which are created and governed by treaties and are benefiting the international community.

CanalsGenerally, canals (including the sea water canals), in the absence of treaty stipulations, are subject to the sole control of the State in whose territory they lie and ships of other nations have no right of passage through them though they are normally allowed. But the regimes established by the inter-oceanic canals of Suez, Panama and Kiel through treaties are good examples of rights in rem, and have accorded these canals the status of “international waterways”. The Convention Respecting Free Navigation of the Suez Canal, 1888, governing the Suez canal,65 the Hay-Pauncefote Treaty of 1901 between Great Britain and the United States (regarding canal across Central America, connecting the Pacific Ocean and the Atlantic Ocean), the Hay-Varilla Treaty of 1903 between the United States and Panama governing the Panama canal, and Art. 380 of the Treaty of Versailles governing Kiel canal were “constitutive” in nature. These treaties stated that the canal concerned shall be free and open in peace and war to all vessels. The subsequent changes in their control have not affected their international status. In 1956, Egypt nationalised the Suez Canal and took over its control, but it also declared to follow the terms and spirit of the Constantinople Convention of 1888.66 Similarly, according to the terms of the 1977 Treaty concerning the Permanent Neutrality and Operation of the Panama Canal between the United States and Panama, the relinquishment of sovereignty over the Panama Canal by the United States in favour of Panama would not_________________63 Ibid., pp. 16 and 19.64 See op. cit. 25, at p. 1706.

65 3 AJIL, Supp., p. 123 (1909); the canal became operational in 1869.66 See the Egyptian Declaration of April 24. 1957 in 51 AJIL 673 (1957).


affect the status of the canal as an international waterway, which will be open to the vessels of all nations.67

B. LeasesIn contrast to servitudes, leases of territory by one State to another closely resemble the ordinary leases of private law. However, the meaning attributed to “lease” under private law has no relevance for the construction of a treaty under international law, where neither of the parties is bound by the private law of the other. In a lease, the lessee acquires the control and sovereign rights over an area subject to the dominion of another State without resorting to annexation. After the expiry of the lease, the sovereign rights over the territory revert to the lessor or grantor State. In the nineteenth century, China leased several parts of its territory to western powers, while retaining its sovereignty. For example, the island of Hong Kong was leased by China to Great Britain by the 1842 Treaty of Nanking, Kowloon by the 1860 Treaty of Peking and New Territories on the Chinese mainland by the 1898 treaty.68 More recently, leases are created for varied purposes, such as ports for transit purposes, for the establishment of missile tracking stations, or for the installation of trans-border or trans-national pipelines. The most common purpose of leasing is for air, naval or military bases, though their terms vary.69 They are also created to grant a right of passage. For example, under the 1974 and 1982 Agreements between India and Bangladesh, India has given Bangladesh the area of “Teen Bigha” on “lease in perpetuity” to have an easy access to its two enclaves of Dahagram and Angarpota.70But some time leases amount to no more than mere annexation, rendering thereby permanent loss of territory to the lessor State.71 But even if the lessee State intend the lease as disguised cession, this is generally not the intention of the lessor. International practice is also clearly against annexation and for the return of the leased land, for example, the British decision in returning the leased Chinese territory.Most of the modern leases are granted for perpetuity, i.e., for 99 years, which may raise the issue that whether they would create a real right under international law surviving the change in sovereignty._________________67 For the text of the Treaty, see 72 AJIL 225 at 238 (1978). On Oct. 1, 1979, US control over Panama Canal zone came to an end according to the 1977 Treaty, but it retained Five military bases (earlier the number was 14) and had the right to defend the Canal until the termination of the treaty in 1999. Thereupon, Canal has come under the control of Panama.68 By the 1984 Agreement between China and the United Kingdom, all these territories have been reverted to China in 1997. Hong Kong has been handed over to China on 30 June 1997. On the other hand, Macau, which was a Portuguese colony since 16th century was handed over to China on December 20, 1999.69 A recent example is the 1960 Treaty concerning the establishment of the Republic of Cyprus between Greece, Turkey and Great Britain, on the one hand, and Cyprus, on the other, permitting the present British military bases in Cyprus.

70 Clauses 2 and 3 of the 1982 Agreement. Cf. Sukumar Sengupta’s case, op. cit. 25 at p. 1699.71 For example, the British bases in Cyprus. In 1985, the British Minister of State for Armed Forces stated: “The base is sovereign British territory as laid down in the 1960 treaty. It has the full rights of sovereignty that we associate with the use of that word”, see 56 BYbIL 473 (1985).


V. AIR SPACEA. Sovereignty in the Air SpaceWith the start of aviation, the problem of State sovereignty in superjacent air space also arose. At the turn of the century, various theories were propounded regarding State sovereignty in air space, and corresponding freedom of air navigation and rights of overflight. In addition to the theory based on the cujus est solum, ejus est usque ad coelum et ad inferos (the owner of the land ought to be taken to own right upto sky) doctrine, i.e., the sovereignty of the subjacent State extends in the air space to an infinite height, there were three other principle theories:1. The air space is free, subject only to the rights of States required in the interests of their self-preservation (championed by Fauchille and was adopted by the Institute of International Law in 1906);2. Upon the analogy of the maritime belt, there is over the land and waters of each State a lower zone of territorial air space, and a higher and unlimited zone of free air space; and3. It was the cujus est solum with the addition of a servitude of innocent passage for foreign non-military aircraft, akin to the right of innocent passage of merchant ships through territorial waters.72However, the First World War put at rest this theoretical controversy and States realised the significance of air transport and potential dangers from the unauthorised use of the air space to their security. In 1919, the Paris Convention for the Regulation of Aerial Navigation was concluded, which accepted a State’s “complete and exclusive sovereignty over the air space above its territory” including its territorial waters. It did not limit this right only to the High Contracting Parties (Art. 1). The Chicago Convention on International Civil Aviation, 1944, further reaffirmed this position and reflected the customary international law rule with regard to rights of subjacent State in the air space. The State enjoys unfettered sovereign right in its air space, whose height, once thought to be indeterminable, is now governed by the law on outer space. Notwithstanding the outward extent of the air space of a State, it is now well- established that no foreign aircraft can enter into the airspace of a State without the express authorisation or agreement of the subjacent State.In practice, through conventions and agreements, States have restricted their power to exclude foreign aircraft from their superjacent airspace and they are designed for reciprocal rights in the conduct of air transport operations. But these restrictions are confined to States, which are parties to these conventions and agreements. The Paris Convention contained detailed provisions for the regulation of international air navigation. It made a distinction between scheduled international air services (described as “regular international air navigation lines” and “international airways” in Art. 15) and aircrafts not belonging to such scheduled air services. Subject to the observance of the conditions laid down in the Convention, the aircrafts of a High Contracting Party, belonging to the category of non-scheduled air services were to have “freedom of innocent_________________

72 A.D. McNair, The Law of the Air (Stevens & Sons Ltd., London), 1964, pp. 3-18.


passage” through the air space of other contracting parties.73 The scheduled international air services could operate only with the prior authorisation of the States flown over (Art. 15). The scheduled air services were conducted on the basis of “line agreements” or “pre-determination agreements” (bilateral agreement), which were outside the purview of the Paris Convention. The Convention also contained provisions on registration of aircraft, certificates of airworthiness, aircrew licences etc.The Havana Convention on Commercial Aviation of 1928 among American States, including the United States, contained substantially similar provisions but without any rules on technical regulations. Thus, the hallmark of the inter-war period was the complete sovereignty of the State in its airspace. The grant of landing rights for foreign aircrafts was within the absolute discretion of the State concerned. There were two other notable conventions concluded during this period in order to limit the liability of the air carrier: the Warsaw Convention of 1929, i.e., the Convention for the Unification of Certain Rules Relating to International Transportation by Air, and the Rome Convention of 1932, i.e., the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface. The Rome Convention was later amended in 1952. A Protocol of Amendment to the Warsaw Convention was also adopted at The Hague in 1955, by which the upper limit of liability for passenger’s injury or death, and loss or damage of cargo was raised.74 However, under the pressure of the United States, the liability limit was further raised in 1966 by the Montreal Agreement. It provided that any foreign or United States carrier operating through or into the United States would have to pay a substantially higher compensation and would be strictly liable. But otherwise the Montreal Agreement did not raise the liability limit under the Convention. This was done in 1971, by the Guatemala Protocol, by amending the Warsaw' Convention.75 It also made liability strict or absolute instead of fault liability and made provision to hold regular conferences (quinquennial conferences) to increase the upper liability limit at regular intervals after the entry into force of the Protocol. To deal with the problem of expressing limits in an appropriate currency, the International Civil Aviation Organisation (ICAO) convened a conference at Montreal in 1975. It led to the adoption of three additional Protocols, which further amended the relevant provisions of the Warsaw Convention as amended by The Hague Protocol of 1955, and Guatemala City Protocol of 1971.76 Known as the “Montreal Protocol 4”, (the only Protocol to which the United States is a party), it became operational in 1999. In 1999, the Montreal Convention was adopted, which intend to replace the Warsaw' Convention of 1929 and its six Protocols, once it is ratified by all states. The Montreal Convention is primarily designed to unify the patchwork of private airline rules dealing with passenger injury and death claim issues._________________73 Article 2 of the Convention provided that “each contracting State undertakes, in time of peace, to accord freedom of innocent passage above its territory to the aircraft of the other contracting States, provided that the conditions laid dawn in the present Convention are observed”.74 4 7 8 UNTS 371; ICAO Doc. 7632.75 ICAO Doc. 8932/2; 10 ILM 613 (1971).

76 Additional Protocol 4 of 25 September 1975, known as Montreal Protocol 4, abolished the concept of “Willful Misconduct” as a basis for disregarding the Warsaw Convention and provided that: “The damage limit may not be exceeded whatever the circumstances which gave rise to liability.” In all there are six Protocols to the Warsaw Convention.


In 1944, the Chicago Convention was adopted by the International Civil Aviation Conference. The Conference had been convened in November 1944 by the United States at Chicago and was attended by more than 40 States. It was aimed at the adoption of a multilateral agreement to regulate the international air transport and set norms for technical and navigational matters relating to civil aviation. Although an agreement was reached at the latter issues, but there was much disagreement on the extent of freedoms of transit and transport of passengers and cargo on a multilateral basis. This led to the adoption of the Chicago Convention without specific provisions for the regulation of transportation of passengers and cargo. The United States, which had emerged as the most powerful operator after the Second World War was the chief proponent of the theory of “open skies” and proposed five freedoms of the air, viz.,a. to fly across foreign territory without landing;b. to land for non-traffic purposes (viz., for refuelling or maintenance);c. to disembark in a foreign country (i.e., “grantor country”) traffic (i.e., passengers, mail and cargo) originating in the State of origin (i.e., “flag State”) of the aircraft;d. to pick up in the grantor country traffic destined for the flag State of the aircraft; ande. to carry traffic between two grantor countries.The first two freedoms were solely transit rights and the other three were transport or traffic rights. The proposal of the United States for freedoms of the air did not get much support. Whereas the States were willing to accept the first two freedoms, they were not much agreeable to the other three freedoms because of their wide ranging economic ramifications. The European nations particularly were opposed to the idea. It was the fifth freedom, as perceived by the United States that raised much of the controversy and serious reservations by States. This freedom has a very wide scope and in fact can cover three different types of traffic, i.e., “anterior-point” fifth freedom (i.e., place anterior to the flag State), “intermediate point” fifth freedom (i.e., a place intermediate between the flag State and the grantor State), and the “beyond point” fifth freedom (i.e., a place beyond the grantor country). This also involves the grant of transport right by all these countries, i.e., of anterior point, intermediate point and the beyond point to the flag State. If accepted, all the parties to the Convention had to provide this freedom on a multilateral basis, which was not readily acceptable to all the participants.The profound disagreement on this issue led to the drawing up and adoption of two separate agreements: the International Air Services Transit Agreement (Air Transit Agreement) and the International Air Transport Agreement (Air Transport Agreement). The Transit Agreement, also known as the ‘Two Freedoms’ Agreement, provided for the grant of first and second freedom transit rights to all the contracting parties (Art. 1(1)). Further, subject to the provisions of this Agreement, the territorial State might designate the routes for transit flights and the airports with “reasonable commercial service” for the airlines of the States parties to the agreement, and could impose charges for the same (Art. 1(3) & (4)). The territorial State could revoke this permission to an airline of a State party, if the airline failed to comply with the laws of the territorial State or it was not satisfied about the substantial control or ownership of the enterprise, vested in the nationals of a contracting party (Art. 1(5)).


The Air Transport Agreement or “Five Freedoms” Agreement largely followed the form of the Air Transit Agreement and provided for the reciprocal grant of all five freedoms among State-parties (Art. 1(1)). They may refuse the right of “cabotage”, i.e., access to the internal air traffic within their territory to the aircraft of other State-parties. While the majority of the States represented at the Conference signed the Transit Agreement, only 20 States signed the Transport Agreement, and some abstained from signing both. However, because of the economic repercussions ensuing from the third, fourth and fifth freedoms, it soon became clear that the advantages envisaged from the Transport Agreement were difficult to be realised and the initial support for it rapidly disappeared. With the withdrawal of the United States in July 1946, the Agreement lost much of its significance in international civil aviation thereafter. Present practice, however, is limited to third and fourth freedoms and fifth freedom is of minimal significance.

B. Chicago Convention on Air LawThe Convention on International Civil Aviation (i.e., the Chicago Convention), 1944, incorporated the general principles of international air law, including the privileges envisaged in the two Agreements. It laid down the norms of technical, legal and navigational matters to be followed by States parties. It also established a permanent organisation, the International Civil Aviation Organisation (ICAO), to look into the implementation and enforcement of the Convention, and the resolution of disputes arising thereby.The Chicago Convention, however, did not depart materially from the already existing air law. It reinforced the exclusive sovereignty concept (Arts. 1 and 2) of the Paris Convention as well as maintained the distinction between scheduled and non-scheduled international air services. It provided transit rights to the States parties for non-scheduled international air services without the necessity of obtaining prior permission, but subject to the observance of the other terms of the Convention and the right of the subjacent State to require landing (Art. 5). However, an aircraft, other than of scheduled international air services, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire would have the privilege of embarkation and discharging passengers, cargo or mail, subject to the provisions of Art. 7 and the power of the State to regulate it.77 For scheduled international air services, the Convention clearly stipulates that they may be operated over and into the territory of a contracting State only with its special permission or authorisation (Art. 6). In 1952, the ICAO Council gave a definition of “scheduled international air services”, according to which such a service comprises “a series of flights” with following characteristics:a. It passes through the air space of more than one State;b. It is performed by an aircraft for the transport of passengers, mail or cargo for remuneration, in such a manner that the flight is open to use by members of the public;_________________77 Article 7 enables any State party to grant the right of “cabotage”, i.e., to carry “internal” traffic bound for different points within its territory. By the conjoint effects of Arts. 2 and 7, it also includes traffic between the mother country and its overseas territories or dependencies.


c. It is operated so as to serve traffic between the same two or more points, either (i) according to a published time-table, or (ii) with flights so regular or frequent that they constitute a recognisably systematic series.78The later advent of “charter” flights which were technically non-scheduled air services, nevertheless, created a controversy and States members of the ICAO consistently refused to allow charter flights to operate through their air space without prior permission, which was in most cases granted under bilateral agreements. The western European nations concluded a multilateral agreement amongst themselves.79The Chicago Convention is applicable to civil aircrafts (Art. 3). State aircrafts, including military aircrafts, have no right of transit without special authorisation. However, during the time of war or other notified emergency, States parties are not bound by their convention obligations. The subjacent State is under obligation to observe equality of treatment and nondiscrimination towards aircrafts of all States parties, and make international air navigation smooth and safe.

C. Bilateral AgreementsThe Chicago Convention, like the Paris Convention, left unregulated the international air traffic. The United States found the “pre-determination agreements” or “line-agreements”, followed during the inter-war period, inconsistent with its policy of liberal development of international air traffic. Under these agreements, the route to be operated and the services the route would justify were “pre-determined” by the parties. But the reservations shown by States for the Transport Agreement and the absence of any regulatory provision under the Chicago Convention, once again led to the conclusion of bilateral agreements. The first of its kind was concluded by the United States and the United Kingdom in February 1946 at Bermuda (later replaced by Bermuda Agreement of July 1977 - commonly known as ‘Bermuda 2’).The Bermuda Agreement provided a formula to regulate air transport on bilateral basis and served as a model for later bilateral agreements on international air transport. Under such an agreement, the designated airline or airlines of the contracting parties are granted the “two freedoms” and, subject to certain conditions in individual cases, the third, fourth and fifth freedoms are granted. The routes to be operated are specified in separate annexes to the agreement in question. The capacity of the air carrier of a contracting State is to be determined according to: (a) the traffic requirements between the country of origin and the countries of destination; (b) the requirement of through airline operation; and (c) the traffic requirements of the area through which the airline passes after taking account of local and regional services.These bilateral agreements with varying conditions, however, failed to meet the avowed purpose of the Chicago Convention, which was to bring uniformity in law and practice of international air transport. However, the “Two Freedoms” Agreement (Transit Agreement) plays a significant part in the operation of international traffic based on “Bermuda type” agreements._________________78 ICAO Doc. 7278-C/841 (May 10, 1952).

79 See the Agreement on Commercial Rights of Non-scheduled Air Services in Europe, concluded at Paris on April 30. 1956.


They have certain common features, viz., the dependence of transit and traffic rights upon reciprocity, the recognition of the principle of orderly development of international air traffic, and substantial uniformity in the drafting of administrative and technical clauses. These agreements also work on the premise that fares and freight charges should be fixed, subject to the approval of the contracting States, by the International Air Transport Association (IATA), headquartered in Montreal.The IATA is a non-governmental organisation, with a voluntary membership of around 230 airlines and comprising 93% of scheduled international air traffic. The members participate in the process of tariff fixing at the IATA Tariff Conferences where all the members are represented. A new rate or the adjustment of an existing rate can take effect only with the unanimous agreement, and the rate thus fixed must be approved by the governments of the member airlines. These rates are binding on the States because of their acceptance of the rates established by IATA under the bilateral agreements. A failure to accept a new rate would lead to an “open rate” situation, which may result into closing down of the airlines from small nations. Such a failure would also amount to a breach of bilateral agreement, forcing other State to withdraw transport rights. States generally accept these altered rates rather than jeopardising the interests of their airlines to operate in the airspace of a particular nation.Under the prevalent practice of international air law, the subjacent State designates “air corridors” for an approaching aircraft and the remainder of the area remains under the absolute control of the subjacent State. Any transgression by the foreign aircraft of the designated corridors would entitle the State to withdraw the transit rights (Art. 9 of the Chicago Convention). These developments have clearly established the sovereignty of the subjacent State in the airspace, but in the matter of the scheduled international air services, multilaterism still remains a far-cry.

D. Aerial IntrusionA State enjoys an absolute and exclusive sovereignty over its airspace under international law and a foreign aircraft can enter into its airspace only under its specific authorisation. The violation of this principle amounts to unauthorised entry by the aircraft, leading to serious consequences.

1. Unauthorised Flight by Civil AircraftIt is unlikely that there would be a deliberate infringement of the airspace of another State by an aircraft. One possible reason for intrusion/trespass in foreign airspace could be in distress. Article 25 of the Chicago Convention imposes a duty on each contracting party “to provide such measures of assistance to aircraft in distress in its territory as it may find practicable” and also to the owner of aircraft and the State of registration. This provision, however, is limited to the States parties to the Convention but, on humanitarian grounds, this provision may equally be applicable to a State that is not a party to the Convention. But the straying aircraft may not necessarily be in distress or the intrusion may be criminally motivated, such as espionage or smuggling. In such cases, the flag State may not be able to protest effectively against the use of force by the territorial State against the

alleged intruders in view of Art. 4 of the Chicago Convention, which prohibits the use of “civil aviation for any purpose” inconsistent with the


aims of the Convention. On broad premise, the same principle applies to the non-parties to the Convention.But cases of shooting down of trespassing civil aircraft are not uncommon, though this has always remained very controversial issue.80 For example, in July 1955, an Israeli Airliner, en route from London to Lod (Lydda) via Paris and Vienna, strayed from its flight plan and entered into Bulgarian airspace. A Bulgarian fighter aircraft attacked and destroyed the airliner. The airliner was not in distress and had in fact been flying in clear weather conditions. Bulgarian authorities denied responsibility for the incident which resulted from the violation of Bulgaria’s territorial sovereignty, though admitted that their fighter plane might have acted in haste. In a case filed before the International Court of Justice, the Israeli Government in its written pleadings submitted that shooting down of a civilian aircraft is an act out of all proportion to the wrong, causing an undue degree of physical danger to the aircraft and its occupants.81 Intrusion can be brought to an end by other appropriate acts. The case, however, could not be decided because of lack of jurisdiction by the Court.82In another incident a Libyan Airlines aircraft was shoot down by Israeli fighter planes in February 1973 over the Israeli occupied Sinai area, which killed all the persons on board. The aircraft was on a scheduled commercial flight from Benghazi to Cairo, when it strayed into the airspace of the Sinai. The aircraft was provided with a weather chart 24 hours old and had to face a bad weather, putting it off course. It knowingly ignored instructions to land. The ICAO Council, on the basis of the ICAO report, adopted a resolution condemning the Israeli action and stated that “such actions constitute a serious danger against the safety of international civil aviation”.83 Israel apologised and paid compensation for the loss of 108 lives on an ex gratia basis. The ICAO resolution strongly implied for the non-use of force against the civilian aircraft.A tragic case is of the shooting down of the Korean Airlines (KAL) aircraft by the USSR in September 1, 1983, killing all the 269 persons on board. The KAL Boeing 747 was on a scheduled flight (KE-007) from Alaska to South Korea, when it strayed 500 kilometres off course into the airspace of military sensitive area of Sakalin Island in USSR, north of Japan. The USSR was also sensitive at that time over the presence of United States reconnaissance aircraft RC- 135 in the area north-east of the Kemchalka Peninsula. The USSR defence air command assumed it was a RC-135 aircraft and ordered its destruction. The 14 States, whose nationals died, claimed reparation for loss of life and damage to property (the USSR did not pay any compensation, but Korea paid the compensation). The ICAO fact finding investigation report pointed out that before destruction, the USSR did not try to establish the identity of the aircraft, nor was any attempt made to contact the crew of KE-007 by radio and thus USSR aircraft failed to meet ICAO recommended standard and practices. The KE-007 was hit by two air-to-air missiles. But_________________80 See G. Richard, KAL 007: The legal fallout. 9 Annals of Air and Space Law, 147 at p. 148 (1984).81 (1955) ICJ Rep., Vol. of Pleadings, pp. 86-87. Submissions were also filed by the US and UK whose nationals were killed.

82 Bulgaria’s Declaration of 1921, accepting the compulsory jurisdiction of the Court expired with the dissolution of the PCIJ, because Bulgaria was admitted to the membership of the UN in 1955.83 ICAO Council Res. of June 4, 1973. ICAO Bull. (July 1973), p. 13; 12 ILM 1180 (1973). The resolution was adopted by 27 affirmative votes; with two abstentions (one being the USA).


the report also blamed the crew of the 747 for its negligence, leading to the aircraft’s deviation. On the basis of the report, the ICAO Council condemned the “use of armed force” by the USSR in its Resolution of March 6, 1984.84The KAL incident, however, led to the unanimous adoption by the ICAO Assembly of Art. 3bis of the Chicago Convention.85 Article 3bis prohibits absolutely the use of weapons against civil aircraft in flight, except where permitted under the United Nations Charter, on obvious reference to the right of self-defence under Art. 51 of the Charter. The contracting States recognise “that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered” (Art. 3bis(a)). Further, a State, in the exercise of its sovereignty, is entitled to require the landing of the intruding aircraft or may give any other instructions to put an end to such violations (Art. 3bis(b)). The Art. has thus made the rule in relation to intruding civil aircrafts very strict and does not rule out the use of force as a last resort if the aircraft threatens the national security of a subjacent State. In such a case, it loses its civilian character and deemed to become a military aircraft against which the use of force may be permissible. But the Convention does not identify any sanctions against the ‘offending’ State.

2. Military AircraftThe right to use force against a straying/trespassing military aircraft has been accepted as a legitimate right of the territorial State. Intrusion of a military aircraft is not only the violation of State sovereignty but a threat to its security. This position has been made evidently clear by numerous incidents that arose in the “cold-war” era involving straying military aircrafts into foreign airspace.86 On a number of occasions, the United States aircrafts were shot down when found engaged in espionage activities. Most of the time the dispute between the flag State and the territorial State is not related to the right of taking military action but to the location of the aircraft and the giving of warning before shooting, although the requirement of giving a warning to the erring aircraft is a controversial matter.In 1952, a Swedish aircraft was shot down by a Soviet aircraft over part of the Baltic Sea, claimed by the Soviet Union to be within its territorial waters. There was a dispute over the extent of these waters and also the rights of the territorial State. The Soviet view in this and other similar cases was that the offending aircraft is required to land failing which it can be attacked. The United States and Sweden took the position that in such cases the territorial State has no right to demand landing but the right to “warn off” the straying aircraft. Impliedly, they agreed that failure to follow the instructions would entitle the territorial State to shoot down the aircraft._________________84 23 ILM 937 (1984). The investigation in this case again resumed in Dec. 1992, following the emergence of fresh evidence, including the original tapes of the cockpit voice recorder and the digital flight recorder, recovered by the USSR in 1983, and turned over to ICAO in Jan. 1993. On June 14, 1993, the ICAO Council, by a resolution closed the investigation on the KAL crash.

85 1984 Protocol Relating to an Amendment to the Convention on International Civil Aviation (1984) 23 ILM 705, in force since 1998, 139 States parties.86 For details of incidents, see 47 AJIL 559 (1953).


Another important example of great political significance of a straying military aircraft was of the well-known U-2 Incident.87 The U-2, a high altitude United States reconnaissance aircraft, on May 1, 1960, was shot down at a height of 20,000 metres over the Soviet territory. The aircraft had taken off from Pakistan and was scheduled to land in Finland after taking photographs while over Soviet territory. The pilot of the aircraft was taken into custody and subsequently put on trial. The United States, however, did not try to justify its action under international law or protest at the shooting down or the trial of the pilot. In the RB-47 Incident,88 similarly, the controversy was surrounded about the exact location of the aircraft and not about the right of the Chinese Government of shooting down of RB-47 which entered into the Chinese airspace following operations over North Vietnam.The lack of protest by the United States over military actions is consistent with the view that except for straying in distress, aerial intrusion by military aircrafts (with the exception of military transport aircraft) may be subjected to use of force without warning. If they fly near the territory or stray into the airspace of a hostile State, they do so at their own risk. Warning before shooting may be given out of humanitarian considerations rather than due to legal obligations.

VI. OUTER SPACEThe launching of the first artificial satellite in October 1957 by the Soviet Union opened up a new vista of outer space. This was soon followed by space activities on a constantly increasing scale. There has been orbiting of the earth through manned and unmanned satellites of varying weight and orbital ranges, launched for different functional purposes, viz., for telecommunication, remote sensing of the earth resources, earth survey, meteorology, monitoring of pollution, missile detection, espionage, etc. These activities are being carried out without any effective protest from the territorial States. But they have raised new questions about the upward extent of the State’s sovereignty, which is no more considered to be indeterminate and thereby put a strong challenge to the doctrine of cujus est solum. Further, the use of air space of a State without its authorisation for launching a satellite to orbit the earth has been accepted as a rule, more in its acquiescence, leading to the formation of a customary rule of international law.89The boundary between airspace and outer space has so far remained undefined and for that matter even the term ‘outer space’ itself. But States, motivated by their security interests, agree in principle that there should be some upper limit of State sovereignty in the air space, although there has not been any consensus as to the precise figure for this height. The suggested figures range from 20 miles to 10,000 miles (at the height of which traces of air can be found), based on the different theories advanced with respect to fixing the outer limit of the outer space.90 But none of the theories advanced has got the general approval. Because of its controversial nature, the question of delimitation of the boundary was not dealt with by the_________________87 Quincy Wright, Legal aspects of U-2 incident, 54 AJIL 836 (1960).88 C.J. Lissitzn, Some legal implications of the U-2 and RB-47 incidents, 56 AJIL 135 (1962).

89 Bin Cheng. UN Resolution on outer space: “instant” international customary law?, 5 IJIL 23 (1965).90 J.F. McMohan, Legal aspects of outer space, 38 BYbIL 339 (1962); N.M. Matte, Aerospace Law (Sweet& Maxwell, London), 1969, pp. 13-74.


United Nations General Assembly at the time of the adoption of the Outer Space Treaty, 1967. Even the Committee on the Peaceful Uses of Outer Space (COPUOS) has failed to resolve this issue.91There is, however, a considerable support for the “perigee” approach, i.e., the limit of the airspace would be the lowest perigee of an orbiting satellite, without burning into the thicker parts of the earth’s atmosphere. The recent studies have suggested the lower limit of this height between 50 to 60 miles. On the other hand, there is a strong move for the acceptance of functional approach, whereby the nature of the activity is significant rather than the distance from the surface of the earth at which it takes place. Hence, the launching or return of the space vehicle through the air space of another State would be permissible whereas, at the same distance from earth, a flight by a high altitude aircraft would not be permissible because States have not protested over the passage of satellite through their territory. This may amount to right of innocent passage for space objects. Such a State practice regarding outer space activities would lead to the crystallisation of boundary between the two.Regardless the upper limit of the airspace, the outer space is outside the purview of the State sovereignty. The legal principles governing a State’s activities in outer space are laid down by the United Nations. It is through the efforts of the United States and the Soviet Union that the international community was quick in agreeing upon the basic principles governing activities in outer space. The General Assembly, in quick succession adopted a number of resolutions regarding outer space, the most notable being the General Assembly Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted in 1963,92 which later culminated in the adoption of the Outer Space Treaty in 1967.93 To monitor the activities of the States in the outer space, the General Assembly created the Committee on the Peaceful Uses of Outer Space (COPUOS), whose legal sub-committee has been instrumental in the adoption of the following conventions relevant to outer space:1. The Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space of April 22, 1968 (referred to as the 1968 Astronauts Agreement);_________________91 See the 1987 Report of the COPUOS, GAOR, 42nd Sess., Supp. 20, p. 15. The COPUOS was first established in 1958 (then as an ad hoc committee) and constituted in its present form in 1959 with 27 members, GA Res. 1472(X1V). Its present membership consists of 65 States. The questions presently under consideration of the Committee include the boundary between air and outer space, control of remote sensing, particularly of the natural resources of the earth by satellite, the use of nuclear power sources in outer space, and finding ways and means of maintaining outer space for peaceful purposes, draft treaty on the concept of the “launching State”, and a draft protocol to the Convention on International Interests in Mobile Equipment on matters specific to space assets, see 20 JSL, p. 46 (1992); Nandasiri Jasentuliyana, Space law (1999).92 The most notable resolutions are: Res. 1721 (XVI), GAOR 16th Sess., Supp. 17, p. 6 (1961); Res. 1884(XVIII) and Res. 1962(XVIII), GAOR, 18th Sess., Supp. 15, pp. 13 and 15 (1963) respectively.

93 General Assembly adopted the text of the Treaty, GA Res. 2222 (XXI), December 19, 1966. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of Jan. 27, 1967 is in force since October 10, 1967. For discussion on the treaty, see H.G. Darwin, 42 BYbIL 278 (1967), D. Goedhuis, 15 Netherlands ILR 17 (1968).


2. The Convention on International Liability for Damage Caused by Space Objects of March 29, 1972 (Liability Convention of 1972);3. The Convention on Registration of Objects Launched into Outer Space of January 14, 1975 (Registration Convention of 1975); and4. The Agreement Governing the Activities of States on Moon and Other Celestial Bodies of December 5, 1979 (Moon Treaty of 1979).These conventions together have made the law of outer space predominantly institutional law. In addition to these conventions, the UN General Assembly has adopted three more sets of principles based on the work of the Committee on the Peaceful Uses of Outer Space: (i) The Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting,94 adopted in 1982, that condition the establishment of direct-broadcasting satellite services on the prior consent of receiving States; (ii) The Principles Relating to Remote Sensing of the Earth from Outer Space, adopted in 1986,95 provide for international cooperation and participation in remote sensing; the States are required to carry out remote sensing activities for the benefit and in the interests of all countries, and “not in a manner detrimental to the legitimate rights and interests of sensed States”. These activities should be used to protect the earth’s environment and conducted in accordance with international law. Such activities will be permitted without the consent of the States being sensed but that the latter will have the right to receive primary and processed data and analysed information concerning its territory at a reasonable rate and on a non-discriminatory basis. There are also provisions for dispute resolution and international responsibility for remote sensing; (iii) The Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted in 1992.96 They provide guidelines and criteria for safe use of nuclear power sources in outer space, including the requirement that a safety review be made prior to launching of any nuclear power source and that results of such review be made public through the Secretary-General of the United Nations, who should also be notified of any re-entry of radioactive materials to the earth. In carrying out the space activities, main emphasis has been on international cooperation.

A. Outer Space TreatyThe Outer Space Treaty establishes the legal regime of outer space and lays down the premise of other conventions concluded so far in this area. It is the constitution of the outer space regime. The Treaty clearly leaves outer space outside the sovereignty of States and declares that the area of the outer space “is not subject to national expropriation” (Art. 2). On the other hand, the outer space, including moon and other celestial bodies, are subject to international law and the United Nations Charter, and are “free for exploration and use by all States ... on a basis of equality and in accordance with international law”. Such exploration and use are to be carried out for the benefit and in the interests of all countries (Art. 1). In order to clarify the ambit of Art.1, the General Assembly in June 1996 adopted a declaration on international cooperation_________________94 GA Res. A/RES/37/92, 10 December 1982.95 GA Res. 41/66, Dec. 3, 1987.

96 GA Res. 47/68 of 14 December 1992; 32 ILM 917 (1993).


in the exploration and use of outer space for the benefit and in the interests of all States, taking into account the particular needs of developing countries.97 The III UN Conference on Exploration and Peaceful Uses of Outer Space (UNISPACE-III), held in Vienna in July 1999 further emphasised this aspect.98Parties to the Treaty undertake not to place in orbit round the earth, or install in space, weapons of mass destruction, and use the moon and other celestial bodies exclusively for peaceful purposes. The installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies are forbidden (Art. 4). This, however, does not prohibit the transient use of outer space for weapons, such as passage of ballistic missiles through outer space. It is also well known that the outer space has been used for a variety of other military- related purposes, for example, for reconnaissance satellites, effected for defensive purposes or satellite weapons known as ASAT weapons, which are not prohibited by Art. 4 of the Treaty. There has been rampant use of the outer space for espionage and surveillance purposes as well as for testing weapons with laser beams in the name of scientific research.99 The increased militarisation of the outer space is due to the inherent deficiencies of Art. 4 as well as of the Treaty which fail to provide any mechanism to check the violations of the provisions of the Treaty.100 Taking note of these military activities and to prevent the arms race in outer space, the General Assembly in 1995 requested the Committee on Disarmament to re-establish the Ad-hoc Committee on the Prevention of Arms Race in Outer Space, which was established in 1996. The General Assembly also adopted a resolution in November 2000 for the prevention of arms race in outer space.101_________________97 The General Assembly adopted by consensus Resolution 51/122, containing a Declaration on international cooperation in space. This Declaration finalised the agenda item which is known as ‘Space Benefits’ in the COPUOS Legal Subcommittee. It provides an authoritative interpretation of the cooperation principle in Art. 1 of the Outer Space Treaty.98 The primary objectives of III UNISPACE was (a) to promote effective means of using space technology to assist in the solution of regional and global significance; and (b) to strengthen the capabilities of Member States of the United nations, in particular developing countries, to use the applications of space research for economic, social and cultural development.99 In 1982 in the UNISPACE II. it was stated by its Secretary-General, Prof. Yashpal, that 75 per cent of space activities are military-oriented, limited mainly to reconnaissance and surveillance satellites. Remote sensing, communication and weather observation activities designed for both military and non-military purposes are totally excluded from the current regime of the Outer Space Treaty. In March 1983, the US President Reagan announced the star-war programme, which was later withdrawn by President Clinton in June 1993.100 In 1988, the General Assembly recognised this deficiency for not guaranteeing the prevention of arms race in outer space (GA Res. 47/70, adopted in 1988). Earlier, by its resolution of December 9, 1981, the General Assembly urged the States to prevent arms race and refrain from any action contrary to it. The UN Committee on Disarmament has

also been seized with the issue since 1982. It appointed an Ad-hoc Committee on the Prevention of Arms Race in Outer Space in March 1985, but has not come out with any workable solution due to differences in perception between space powers on this issue. The legal subcommittee of the COPUOS, in its 31st session held in March-April, 1992, discussed the draft principles relevant to the use of nuclear power sources in outer space, with the aim of finalising the draft set of principles, without any conclusion; see 20 SSL 46 (1992). For the GA Resolutions and Principles relevant to the Use of Nuclear Power Sources in Outer Space, see op. cit. 96.101 GA Res. 35/32, Nov. 20, 2000.


The Treaty emphasises on international cooperation in the exploration and use of outer space and carrying out outer space activities. The States conducting activities in outer space have to inform the United States Secretary General, as well as the public and the international community, of the nature, conduct, locations and results of such activities. The information so provided is to be disseminated by the Secretary General immediately and effectively (Art. XI). All stations, installations, equipment and space vehicles on moon and other celestial bodies shall be open to representatives of other States parties on a reciprocal basis (Art. XII).On the question of jurisdiction over space objects and satellites, and over any personnel thereof, the Treaty empowers the State of registry to exercise full control, while the projectile is in outer space or on a celestial body (Art. 8). In 1961, the General Assembly, in its Resolution 1721 (XVI), called upon States launching space objects into orbit to furnish information to the COPUOS through the Secretary General of the United Nations, who has to maintain a public registry of information furnished. This system has been formally made a part of the 1975 Registration Convention,102 under which the space objects, besides being registered nationally, must be registered with the central registry kept by the Secretary General for this purpose. The launching State must register every launch, indicating its purpose. The Convention also lays down the additional means and procedure, and emphasises on cooperation among States for the identification of space objects and to mitigate the hazards caused by space objects. Article V(4) of the 1968 Astronauts Agreement also provides that a launching State, on receiving notification of the location of its space object, believed to be of a hazardous or deleterious nature, has to take immediate steps to eliminate possible danger or harm.The astronauts have been regarded as envoys of mankind and the States parties shall provide them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State party or on the high seas. When astronauts make such a landing, they will safely and promptly be returned to the State of registry of their space vehicles (Art. 5 Outer Space Treaty). This requirement is applied and amplified in Art. IV of the 1968 Astronauts Agreement. Under the Agreement, a contracting State is required to render all possible assistance to the personnel of a spacecraft landing in its territory (Art. II). If a space object or its component parts returns to earth in the territory of a contracting State, that State must notify the United Nations Secretary General and the launching State, which should take immediate steps, and the contracting State, if requested, may assist in recovering the space objects or its component parts (Art. V).Article 6 of the Outer Space Treaty deals with the problem of imputability in respect of any liability that may arise from space activities. It sets out the international responsibility of States parties for national activities in outer space. If the activity is carried out by an international organisation, it will bear the responsibility along with States parties to the Treaty participating in such organisation. Article 7 further lays down that each State party “that launches or procures the launching of a space object”, or “from whose territory or facility an object is launched is internationally liable for damage” to another State party_________________102 See text of the Treaty in 14 ILM 32 (1975).


or to its natural or juridical persons by such objects on earth, in the airspace, or in outer space. Article 9 imposes a duty of non-contamination and of prevention of harm to the environment resulting from the introduction of extraterrestrial matter. A State is also required to consult in advance other States parties if its space activities are believed to be potentially harmful to their space activities.

B. The Liability ConventionState liability for damage caused by space objects was given a detailed treatment in the 1972 Liability Convention. It imposes absolute liability on a launching State, including the State whose territory or facility is used in launching as well as the State which “procures the launching” (Arts. I and V) “for damage caused by its space object on the surface of the earth or to aircraft in flight” (Art. II). But where the damage is caused elsewhere than on the surface of the earth to a space object of another launching State or persons or property on board this object, liability will be based on fault, i.e., the launching State will be liable if the damage is due to its fault or the fault of the persons for whom it is responsible (Art. III). Launching State is not liable for damage caused to its own nationals or foreign nationals participating in the operations of the space object (Art. VII). It also establishes joint and several liability in the case of a joint launch by two or more States (Arts. IV and V). Where there has been gross negligence or intention to cause damage on the part of the claimant State, the launching State would be exempted from its liability to that extent (Art. VI). Claims can be made either by the State of nationality of persons, natural or juridical, suffering damage, or by the State on the territory of which the damage was sustained (Art. VIII). Local remedies need not be exhausted before a claim is brought (Art. XI). If the claim cannot be settled by negotiation, it will be determined by a Mixed Claims Commission established at the request of either party (Art. XIV), which will determine the measure of compensation “in accordance with international law and the principles of justice and equity” (Art. XII). Unlike the Warsaw and Rome Conventions on civil aviation, the Liability Convention does not set any upper limit for the amount of compensation.It is, however, debatable whether the Liability Convention covers comprehensively all problems caused by a nuclear powered satellite, particularly in case if it disintegrates and there is a consequential earth-bound scattering of debris, as had occurred with the Soviet nuclear powered satellites, Cosmos 954 in February 1978, and Cosmos 1402 in January 19 8 3.103 There may be difficulties in locating all radioactive fragments, which unless deactivated can harm the environment. Art. XXI of the Convention is limited in its approach and does not cover the damage resulting from experiments conducted in space with far reaching consequences, such as affecting the climate or the atmosphere. It is necessary to regulate this aspect by providing_________________103 Cosmos 954, which was powered by a small nuclear reactor weighting about 100 lbs, broke up over the Canadian territory in the north-west. Moderate radiation was reported from the debris. The USSR reportedly agreed to pay $3 million compensation, see 18 ILM 899 (1979); B. Cohen, 10 Yale JIL 78 (1984).


for the coordination of emergency action and deactivation measures.104 In 1986, two conventions were adopted: the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident, both of which were concluded as a consequence of the Chernobyl nuclear reactor accident in April 1986 in the USSR. These conventions may become relevant to the consequences on earth of accidents involving space objects carrying nuclear substances. The Convention on Nuclear Safety, adopted by the IAEA on Sept. 20, 1994, imposes a responsibility on the national State having jurisdiction over a nuclear installation for nuclear safety.105

C. The Moon AgreementThe United Nations General Assembly on December 5, 1979 adopted the Agreement Governing the Activities of States on the Moon and Celestial Bodies (Moon Treaty) to regulate the activities of States concerning moon and other celestial bodies in a more precise manner and to clarify the provisions of the Outer Space Treaty in this regard.106 The Treaty’s main concern is the exploration and exploitation of the natural resources of the moon and celestial bodies for which Art. XI of the Agreement lays down detailed rules. It proclaims that “the moon”107 is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means” (Art. XI, para. 2). States parties have the right to explore and use the moon without discrimination of any kind, on a basis of equality and in accordance with international law and the provisions of the Agreement. It declares that the moon and its natural resources are the “common heritage of mankind” (Art. XI, para. 1), and for which States parties “undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible” (para. 5). Accordingly, the natural resources of the moon are to be exploited when commercially and technically become feasible, in accordance with an international regime. Although Art. XI(5) imposes a duty to establish an international regime when exploitation is feasible, but if no such regime can be agreed upon, the Agreement does not impose any moratorium on unilateral exploitation by contracting parties.The main purposes of the proposed international regime to facilitate and govern the exploitation of the moon’s natural resources are: “(a) the orderly and safe development of the_________________104 In the 1978 COPUOS meeting, a 15-power working paper suggested that the wilful disregard by a launching State of a patent risk of grave injury to the environment of the earth amounts to crime. The Convention on Environmental Modification, 1976, also imposes an obligation on States parties not to engage in military or other hostile uses of environmental modification techniques having wide-spread, long-lasting or severe effects as the means of destruction, damage or injury to any other State party. Environmental techniques are defined as techniques for changing, through deliberate manipulation of natural processes, the dynamic structure of the earth, including its biota, lithosphere and atmosphere, see S.C. Khare, Use of Force under UN Charter (Metropolitan Book Co., Delhi), 1985, p. 275.105 See text in 33 ILM 1514 (1994).

106 For text, see 18 ILM 1434 (1979), in force since 1984. None of the permanent members of the Security Council is a party to the Treaty.107 The Convention provisions relating to moon are also applicable “to other celestial bodies within the solar system, other than the earth”. Art. 1(1) of the Agreement.


natural resources of the moon; (b) the national management of those resources; (c) the expansion of opportunities in the use of those resources; and (d) an equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of developing countries as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration” (Art. XI, para. 7). But neither the States, nor the national, inter-governmental and non-governmental organisations shall have property rights on the moon’s surface or sub-surface or over natural resources in place, or placing of personnel and equipment on moon can create property rights (para. 3). The provisions on ownership are without prejudice to the contemplated international regime.108 However, to encourage scientific activity, the Agreement allows States to collect and remove samples of its minerals and other substances for carrying out scientific investigations (Art. VI (2)). Article VI does not use the term ‘natural resources’ which finds mention in Art. XI. Nevertheless, Art. VI lays the foundation for more advanced exploitation of moon resources as contemplated in Arts. XI and XVIII which oblige States parties to work out a more detailed international regime for the governance of moon and its resources. A State party can act through both “governmental agencies” and “non-governmental entities”.The Agreement neither prohibits exploitation nor imposes a moratorium on such activities, which have to be carried out in accordance with Arts. XI (7) and VI(2), pending the establishment of the future international regime. There is also no legal moratorium over exploration and use of substances of moon for research and development purpose, which are presently conducted in compliance with Art. 2 of the Outer Space Treaty. The Moon Agreement, however, does not clarify the position of non-parties to the Agreement.

VII. NATIONAL WATERS AND RIVERSState’s sovereignty is not confined only to land territory or airspace but extends to territorial waters, internal and historic waters. Territorial waters or maritime belt establishes the limit of a State’s sovereignty over its territory and the airspace above it. But whereas the territorial sea is subject to the right of innocent passage of foreign ships, the internal waters are not subject to this limitation. The State also has certain jurisdictional rights in contiguous zone and enjoys exclusive rights of exploitation with regard to Exclusive Economic Zone (EEZ) and continental shelf. The extent and rights over these maritime zones have been dealt with separately in Chapter 14. The discussion here is confined to internal waters, and international rivers.

A. Internal WatersThe national or internal waters of a State flowing within its boundaries, i.e., rivers, lakes, canals,109 straits, bays, estuaries and other enclosed areas fall entirely within the sovereignty of a State as well as waters on the landward side of the baseline of the territorial sea. These waters are part of a State’s land territory. But where these waters make boundaries with opposite_________________

108 See S.K. Verma, The moon: A common heritage of mankind, 8-9 DLR 35 (1979-80).109 On canals, see supra, pp. 147-148.


States, the problem is to define the boundary and decide about the extent of a State’s sovereignty. Boundaries are the most significant external manifestation of a State’s territorial sovereignty, which separate the territory of one State from that of another, and they constitute part of a State’s title to territory. Rivers quite often constitute the natural boundary between opposite or adjoining States. Mountains, seashores, forests, lakes, bays and deserts are other natural boundaries. On the other hand, “artificial” boundaries consist of either sign posts erected to indicate the boundary or of parallels of longitude or latitude. Where the river is non-navigable, in the absence of any provision to the contrary, the boundary line is generally the “median line” (also adopted by the Peace Treaties of 1919-20), i.e., the line running down the middle of the river or through its principal arm, and if there are more than one, following all turnings of both banks.For navigable rivers, the boundary line runs through the middle line of the deepest navigable channels or the principal navigable channel, known as Thalweg. But, by a treaty, States may draw the boundary line along one bank of the river, thus putting the whole bed of the river under the sovereignty of the other riparian State.110 This situation may also arise out of prescriptive acquisition or peaceful occupation or historic title. But where the river flows within a single State, Art. 13 of the 1958 Geneva Convention on Territorial Sea and Contiguous Zone (Territorial Sea Convention) provides that “the baseline shall be a straight line across the mouth of the river between points on the low-tide line of its banks”, if the river “flows directly into the sea”. For a river which does not flow directly into the sea, but flows into an estuary, the coasts of which belong to a single State, the Convention does not provide any rule, but Art. 7, applicable to bays, can be of relevance, even though the river does not qualify as a bay. It would entitle the coastal State to a much greater area of internal waters by enclosing the mouth of the river by baselines drawn in accordance with Art. 13.In the case of lakes and other enclosed areas, the boundary line depends on the depth, configuration, and use of the particular lake or sea concerned. Generally, it is the “median line”, as in the case of river, of the navigable channel. Any other line is dependent upon a treaty between the parties.With respect to straits which join two large zones of the high seas, the rule is that straits up to six miles breadth are considered within the territory of the littoral State, and those which are beyond six miles are outside the territory of the littoral State and are open to all nations without discrimination during war and peace.111 Where they form a boundary, it is the “median line” that is the boundary, unless there is a historic title or a treaty to the contrary.

1. Bays“Bay” has been defined in Art. 7(2) of the 1958 Territorial Sea Convention as a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation, however, shall not be regarded as a bay “unless its area is as large as, or larger than, that_________________110 States through whose territories such rivers flow are known as riparian States.

111 On Straits, see Arts. 34-45 of the 1982 UN Convention on the Law of the Sea, UN Doc. No. A/CONF.62/ 122.


of the semi-circle whose diameter is a line drawn across the mouth of that indentation”. For the purpose of measurement, the area of an indentation is that lying between the low- water mark of its natural entrance points. Wherever, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation are to be included as a part of the water area of the indentation (Art. 7(3)). In case the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between the two marks so as to render the enclosed waters internal waters (Art. 7(4)). However, if the distance between the low-water marks of the natural entrance points exceeds 24 nautical miles, a straight baseline of 24 nautical miles is to be drawn within the bay in such a manner so as to enclose the maximum area of water within the line of that length (Art. 7(5)). But these principles are not applicable to “historic bays” or in cases where the straight baseline method provided in Art. 4 of the Convention is applicable, (Art. 7(6)), over which the States can claim sovereignty under “historic title”.112 Nevertheless, these rules apply only to bays, the coasts of which belong to a single State (Art. 7(1)). Article 7 has been reproduced verbatism in the 1982 Law of the Sea Convention as Art. 10.Where the coast of a bay belong to two or more States, the delimitation will be in accordance with the “median line” in the absence of any other factor, viz., prescriptive (historical) title or geographical factors, by following the “configuration” of the coast.113

2. Historic WatersThe regime of historic waters is an exception to the general rules of law relating to the delimitation of the maritime domain of a State.114 In the Anglo-Norwegian Fisheries case115 the “historic waters” are defined as “waters which are treated as internal waters but which would not have that character, were it not for the existence of an historic title”.Since historic waters have the status of internal waters, the innocent passage as of right does not exist thereto. In support of a claim to historic waters, it must be established that there have been: (a) the exercise of exclusive authority and control by the coastal State for a long period of time; and (b) acquiescence by other States, particularly of those affected by the claim in question. A State may buttress its claim by showing that its vital interests, such as geographical, economic or national security, are at stake. It is for the State making the claim to prove its existence._________________112 The “historic” bays are those the waters of which have come to be regarded internal over a long period of acquiescence by non-littoral States, irrespective of the distance between the headlands.113 In the Anglo-Norwegian Fisheries case (1951), ICJ Rep., p. 116, at p, 151, the Court refused to apply the “configuration” test or the 10 miles width, as contended by Britain, to determine the extent of national sovereignty over bays, as the 10 mile rule was not a customary rule and was not adopted by the 1930 Hague Codification Conference. The rule of configuration was, however, adopted in the North Atlantic Fisheries Arbitration (1910) 11 UNRIAA 167.

114 Donant Pharand, Historic waters in international law with special reference to the Article, University of Toronto LJ, XXI (1971), p. 1, at p. 2.115 Op. cit. 113.


However, with the coming into force of the 1958 Territorial Sea Convention, much of the premise of historic waters has been explained by Art. 7. It permits 24 nautical miles as closing line for bays and use of straight baselines for deeply indented coasts to enclose large water areas as internal waters under Art. 4 (corresponding to Art. 7 of the 1982 Law of the Sea Convention).

3. Indian positionThe Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (Maritime Zones Act, 1976) proclaims that the sovereignty of India extends, and has always extended to the historic waters of India and to the seabed and sub-soil underlying, and the airspace over such waters (sec. 8(2)). The Central Government is empowered to specify the limits of historic waters adjacent to its land territory by notifying in the Official Gazette (sec. 8(1)). In accordance with this provision, the Central Government on January 15, 1977, notified the limits of the historic waters of India in Palk Strait and Bay, and in Gulf of Mannar. Further, the historic waters of India in Palk Bay and Palk Strait areas of the sea are internal waters of India; in the Gulf of Mannar area, the historic waters beyond the appropriate baseline mentioned in Section 3(2) of the Maritime Zones Act have the status of territorial waters of India.116

B. International RiversWhen the whole course of a river and both its banks lie within the territory of a single State, that river is exclusively under the sovereignty and control of that State unless limited by treaty or other prescriptive rights. Rivers which are navigable from the open sea and pass through several States between their sources and mouths are called “international rivers”. Each State, through which the river passes, owns that part of the river which runs through its territory. In contrast to a river which lies wholly within the territory of one State over which that State enjoys exclusive rights of navigation, in the case of international rivers, the rights of navigation of riparian and non-riparian States through the whole length of the river are controversial. Though many writers, starting with Grotius, hold the view that there is a general right of passage for all States through these rivers, but no such right is recognised under customary international law. Generally speaking, the right of navigation is limited only to riparian States, i.e., only those countries through which an international river passes. For the non-riparian States, the extent of freedom of navigation is entirely the creation of a treaty. But the treaties may differ in character and technical problems for various river systems.The process to establish such a freedom for non-riparian States began with the Treaty of Paris, 1814, and the Vienna Congress of 1815, and continued with the Peace Treaties of 1919- 20, which internationalised certain European rivers, principal among which was the River Danube. The League of Nations also attempted to achieve freedom of navigation on all rivers by adopting two Conventions in 1921: (i) the Convention on Freedom of Transit and, (ii) the Convention_________________116 For Notification, see 16 IJIL (1976), pp. 561-62.


on the Regime of Navigable Waterways of International Concern,117 and subsequently through its codification conference in 1930. More recent conventions on the same subject with similar provisions are the Bangkok Convention of July 22, 1956, for facilitating inland navigation between Asian countries and the Geneva Convention relating to the unification of certain rules concerning collisions in Inland Navigation of March 15, 1960. But all conventional attempts to establish a general right of passage along these rivers have failed. At regional level, it is possible to accord such a right, with each riparian State having full power to regulate passage over its part of the river, such as the regional arrangement existing between the United States and Canada for St. Lawrence Seaway, concluded in 1954, and operative since 1959. They have established an International Joint Commission under their Boundary Waters Treaty of 1909, to overlook such arrangements.In the matters of injurious uses of waters of international rivers, or the diversion of and interference with the free flow to the disadvantage of other riparian States, there are no settled rules existing under international law. Nevertheless, a riparian State should refrain from any use, diversion or interference with the river water to the detriment of co-riparian States. States are also under a duty not to cause any irreparable damage to other riparian States by any use or exploitation of the river within their own territories. In the Lake Lanoux Arbitration (Spain v. France),118 Spain complained that France had violated a treaty by diverting the waters of river Carol in French territory before it entered Spain. The Tribunal found no violation of the Treaty, because Spain could not show that the effect of the diversion had been detrimental to it in any way. Further, it found that there was no duty on a riparian State under customary international law to consult, or obtain the prior agreement of a co-riparian, as a condition precedent of its right to begin new river works, though in executing any such project, it must take into account the interests of other co-riparian States in a reasonable manner.119 In a more recent case of Pulp Mills on River Uruguay (Argentina v. Uruguay), the dispute was related to the permission granted by the Uruguayan government to the Spanish company ENCE to build a pulp mill in Fray Bentos, on the Uruguay River (which forms the natural border in the north between Brazil and Argentina and in the south between Uruguay and Argentina) in 2003 and to Finnish company Botnia in 2005. Argentinians residing near Fray Bentos claimed that ENCE’s pulp mill would pollute the river. Argentina had argued the Uruguayan pulp mills were Argentina filed suit in 2006 at the International Court of Justice, claiming that pollution from the mills will cause serious environmental damage by pumping dangerous waste into the mutual river on the border between the two countries and mill was being erected in breach of the 1975 border treaty known as the Statute of the River Uruguay between the two countries which requires both parties to inform the other of any project that might affect the river. Besides the issue of pollution, Argentina claimed that the Uruguayan government had not asked for permission to build the mills. Uruguayan authorities countered that the Treaty does not require that permission be obtained, but merely that the other party be appropriately informed. Taking into account the World Bank study on the environmental standards to be followed by the mills, on April_________________117 7 LNTS 51. Only few States (23) became parties to these treaties.

118 24 1LR 101 (1957) at p. 123.119 Ibid., at pp. 128 and 130.


2010, the Court rejected Argentina’s claims that Uruguay’s pulp mills are polluting the River Uruguay. It also stated that Uruguay failed to negotiate with Argentina over the plant, but said it would not be appropriate to make Uruguay pay damages or dismantle the operation.120In cases related to rivers which form part of a drainage basin, each riparian State is entitled to a reasonable and equitable share in the beneficial uses of the waters of the basin. This principle was made applicable to resolve the Indus Water Dispute, continuing since 1948 between India and Pakistan concerning the Indus, Chenab and Jhelum rivers. Dispute was related to the alleged misuse of water of these rivers by India that was interfering with Pakistan’s development, particularly its measures for flood control, irrigation and developing hydro-electric power. An agreement was concluded on September 19, 1960, by India, Pakistan and the International Bank for Reconstruction and Development under which the waters of the Western rivers - Indus, Chenab and Jhelum were allocated to Pakistan, the lower riparian State, and the waters of the Eastern rivers - Ravi, Beas and Sutlaj to India after a transitional period of 10 years. During this time a temporary arrangement for mutual use of the waters of all the rivers had to continue till Pakistan completed arrangements for water storage and irrigation by using the waters of the Western rivers. India was also allowed to use waters of Western rivers for certain purposes, including the generation of hydro-electric power, after communicating and satisfying Pakistan about the proposed construction and design of any such project. India, in pursuance of this provision, constructed Salal hydro-electric project on river Chenab, whose design and capacity was finalised with Pakistan’s approval in 1978.121On the basis of State practice and treaties, certain broad principles of law have been evolved to regulate the interests of riparian and non-riparian States, viz., (a) where a river drains the territory of many States, each of them has the right to consider that river as a whole and have its interests taken into account with those of other States; (b) a State, while using the waters within its territory, must take into account the rights of other States; (c) where their rights conflict, the benefits of the river system should be equitably distributed; (d) a State is precluded from making any change in the river system, which would cause substantial damage to another State, and the State is relieved from obtaining consent if it offers the proportionate share in the benefits derived from the change; and (e) if a State does not suffer substantial damage of its enjoyment of the water, it is not entitled to oppose that development.122The disputes related to the injurious utilisation of river waters can be solved by mutual agreement between the parties, either in the form of a treaty, or through conciliation or arbitration. In a dispute between India and Bangladesh over the Farakka Barrage, the matter was resolved by an agreement between the parties. The issue was related to the utilisation and diversion of the waters of the Ganges by India. India built Farakka Barrage on river Ganga in 1974, to save the port of Calcutta from silting, and to prevent the consequential hardships it would have caused to people of Eastern India. Bangladesh alleged that India had made a unilateral withdrawal of_________________120 See at www.haguejusticeportal.net/eCache/DEF/11/636.TGFuZzlFTg.html

121 Recently a dispute arose between India and Pakistan over the initial filling of Baglihar Dam (in Doda district in Jammu and Kashmir) in 2008. Pakistan alleged the reduction of flows in the Chenab river. Matter has since been mutually resolved. Reported in The Hindu, June 2, 2010, p. 1.122 J.L. Brierly, op. cit. 2, pp. 231-32.


water and demanded an uninterrupted flow of Ganga water all the year round and insisted that India should have obtained prior permission before utilising or diverting the Ganga waters in its territory. In 1976, Bangladesh brought the matter before the United Nations General Assembly, which referred it to the Special Political Committee. The matter was subsequently withdrawn by Bangladesh following a consensus reached between the two countries to discuss the issue bilaterally. It is important to note that about 90 per cent of the course of river Ganga is exclusively through Indian territory and the remaining 10 per cent is common with Bangladesh. It is clear from Lake Lanoux Arbitration that international law does not impose a duty on a riparian State to consult or obtain prior permission of a co-riparian as a condition precedent to undertake any work on the river, though it should pay due regard to the interests of the co-riparian State. But the co-riparian State does not have the right to veto the proposed development of the common river. Nonetheless, it is desirable that a State intending to undertake any exploitation of its part of the river water should notify the other interested States and, if any of them object, should seek to resolve the difference by amicable means. Hence, though India was not under an obligation to obtain prior approval for constructing Farakka Barrage, but the notification to Bangladesh would have saved India from embarrassment.123In September 1977, an agreement was signed between the two countries after several rounds of negotiations, for a period of five years, which specified the amount of water that each of them can withdraw during the lean period. Both the States committed themselves to augment the flow' of the river and a Joint Rivers Waters Commission was set up to examine the proposals made by either of them and assess their economic feasibility. The recommendations of the Commission would be submitted to the governments for consideration within a five- year time frame. Disputes related to the interpretation of the Agreement are to be resolved bilaterally by peaceful means. A new Agreement was concluded in 1982, after the expiry of the 1977 Agreement and subsequently, a Memorandum of Understanding was signed in November 1985, on the lines of 1977 Agreement, which remained in force till 1988. Bangladesh did not get any water except from the natural flow of the river after 1988. In December 1996, a treaty was signed between the two countries for a period of 30 years, settling this issue finally. Any difference in this regard will be resolved by the Joint Committee consisting of representatives of both the countries, failing which the matter will be referred to the Indo- Bangladesh Joint Rivers Water Commission.In order to resolve the issues related to the right of passage, injurious uses of the river waters, regulation of the newer technological uses of rivers, pollution and the systematic development of river basins, it is necessary to constitute international machinery under an international legal regime, which should be sensitive to the regional and local variations. In the past, efforts have been made to have such an International legal regime. The Draft Helsinki Rules on the Uses of Waters of International Rivers adopted at the 52nd Conference of the International Law Association at Helsinki in 1966 laid stress on the equitable utilisation of the waters of international drainage basin and proposed rules to deal with water pollution, navigation_________________

123 State practice supports this view, which is generally followed by nations in similar circumstances. See Eduardo Jumenez de Arechaga, “International Legal Rules Governing the Use of Waters from International Water Courses”, Inter-American Review, p. 329 (1960).


and floating timber.124 These rules can become the basis for any future efforts to adopt a multilateral convention on the international rivers. The subject of non-navigational uses of “international water courses” (including international rivers, dams, canals, underground waters, surface waters and reservoirs) had been under consideration of the International Law Commission (ILC) since 1971, to iron out inequalities in resources between States and to contribute to the solution of questions of the sovereign control of States over their natural territorial resources. On the basis of the draft articles prepared by the ILC, the United Nations General Assembly on 21 May 1997 adopted the Convention on the Law of the Non-Navigational Uses of International Watercourses. Besides governing the non-navigational uses of international watercourses, the Convention provides measures to protect, preserve and manage them. It is designed to serve as a framework agreement between or among watercourse States to address issues such as flood control, water quality, erosion, sedimentation, saltwater intrusion and living resources as well as equitable and reasonable utilisation of such an international watercourse.125_________________124 See particularly Arts. XXIX, XXX and XXXIV of the Helsinki Rules, cited in V. Ramaswami, Inter State water disputes-problems of submergence of territory, 19 IJIL, p. 1, at p. 7 (1979).125 For the text of the Convention, see 36 ILM 700 (1997). The Convention was open for signature until May 20, 2000. It has not yet come into force.

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CHAPTER 7State Jurisdiction

I. JURISDICTION IN GENERALThe exercise of jurisdiction by a State is an essential attribute of State sovereignty. The State jurisdiction signifies the power of a State to exercise control over persons, property, acts and events under its national law. It “concerns essentially the extent of each State’s right to regulate conduct or consequences of events”.1 This includes the power to prescribe (prescriptive jurisdiction) and enforce (enforcement jurisdiction) legislative, executive and judicial rules. It may be civil and criminal, it may be concurrent with other States or it may be exclusive. “Jurisdiction” also connotes the competence of the court of law to try a particular dispute.Generally, every State exercises exclusive jurisdiction within its territory. But International law does not put any limitation on the State’s power to exercise jurisdiction beyond its territorial limits. Restrictions upon the independence of States cannot be presumed. The Permanent Court of International Justice, in the S.S. Lotus case2 laid down that there is no restriction on the exercise of jurisdiction by any State unless that restriction can be shown by the most conclusive evidence to exist as a principle of international law. Although it is true that there is no restriction on a State’s jurisdiction, nonetheless States generally refrain from exercising their jurisdiction over acts with which they have absolutely no concern.3 The territorial basis of jurisdiction normally is the starting point in this matter.

A. Civil JurisdictionIn matters of civil jurisdiction, the municipal courts apply private international law in those cases where a foreign element is involved. But the courts in normal circumstances are reluctant to exercise jurisdiction unless there is a “substantial connection” between the foreign element_________________1 Oppenheim’s International Law, Vol. 1, 9th ed. (Longman, London and New York), 1992, p. 456.2 PCIJ, Series A, No. 10 (1927).3 See J.K.S. Fawcett, The Law of Malians (Penguin Press, London), 1968, p. 55. In Central Bank of India v. Ram Narain, AIR 1975 SC 361 at pp. 38-39, the Supreme Court of India laid down that a foreigner cannot be made liable in India for a crime committed abroad regardless of the fact that after committing the crime, the person becomes a citizen of India or acquires domicile there.

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and the forum either by allegiance or by domicile,4 i.e., that the defendant or the facts of the case should have some connection with the forum State. The exercise of jurisdiction without such a connection may be an ultra vires act, which could lead to international responsibility of the State. The matters related to the enforcement of civil jurisdiction, involving criminal sanctions, do not differ substantially from criminal jurisdiction over aliens.

B. Criminal JurisdictionIn criminal matters also, the “substantial connection” between the alleged offender or the offence with the State exercising jurisdiction is necessary. The State practice discloses four general principles on the basis of which States generally claim penal jurisdiction. First, the territorial principle which determines jurisdiction by reference to the place where the offence is committed. Second, the nationality principle which determines jurisdiction by reference to the nationality either of the person committing the offence even with respect to events occurring entirely abroad or with reference to the nationality of the person injured by the offence. Third, the protective principle which refers to jurisdiction according to the national interest of the State injured by the offence. Fourth, the universality principle which provides jurisdiction by reference to the nature of the crime (e.g., piracy).The jurisdiction based on these principles may give rise to concurrent jurisdiction by two or more States leading to conflicting claims. This may lead to a situation where neither State is willing to give the other precedence and where international law may provide no satisfactory solution because in such cases it is not the competence of the State that is at issue, but the relative rights of other States. Further, though it cannot be doubted that there should be some link between the offence or the offender and the State claiming jurisdiction, nevertheless, it is difficult to state precisely how close that link should be to satisfy the requirements of international law.

II. BASIS OF JURISDICTIONA. Territorial JurisdictionThe power of a State to exercise jurisdiction over persons, property or events occurring within its territory is conceded by international law. All persons present, even transiently, and incidents occurring therein are amenable to State’s jurisdiction. It is generally presumed that the laws and statutes of a country are limited to its territory unless a contrary intention appears and an extra-territorial application is established. In the Lotus case, the Court observed that:Jurisdiction is certainly territorial, it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.5_________________4 F.A. Mann, Hague Recueil (1964-1), at pp. 49-51; 1. Brownlie, Principles of Public International Law, 7th ed. (Oxford University Press, Oxford), 2008, p. 299. To the contrary, M.B. Akehurst holds that assumption of jurisdiction by a State does not seem to subject to any requirements, 46 BybIL 145 (1972- 73) at p. 176. In Surinder Kaur Sandhu

v. Harbax Singh Sandhu, AIR 1984 SC 1224, the Supreme Court of India also held that modern theory of conflict of laws prefers the jurisdiction of the State which has the most intimate contact with the issues of the case.5 See op. cit. 2, at pp. 18-19.


There are obvious reasons for this close connection between a State’s territory and its jurisdictional competence, particularly relating to criminal law, i.e., (i) the State where the crime is committed generally has the strongest interest in punishing the criminal; (ii) the local forum is the most convenient one, since the witnesses and other facilities are most probably available there; (iii) the offender is most likely to be found there, and (iv) to avoid the element of double jeopardy, i. e., subjecting the persons to two legal systems at the same time. In general, a State has exclusive jurisdiction within its own territory, subject to certain extensions and exceptions laid down by international law. Because of them, in practice, the State may exercise jurisdiction outside its territory.Normally, no problem will arise for an offence if it is either exclusively committed within the State territory or outside that territory. But it becomes problematic if the crime has been planned and set in motion in one State and has its effects in the territory of another State. For example, if A in State X shoots and kills B in State Y, or if A obtains money by false pretences by means of a letter posted in State X to B in State Y,6 an offence is probably committed in both the States, depending upon the constituent elements of murder and related offences in the criminal law of each of them. In such circumstances, States arrogate to themselves jurisdiction by technically extending the territorial jurisdiction on the basis of subjective territorial principle and objective territorial principle.According to subjective territorial principle, a State has jurisdiction over a crime when it is commenced within the State but completed or consummated abroad. The objective territorial principle applies in reverse order, i.e., when a crime commenced in another State but is completed or consummated within its territory. The State concerned in such a case can take action against the offender. The objective territorial principle is generally accepted and applied, according to which jurisdiction can be exercised when any essential constituent element of a crime is consummated in State territory.7In D.P.P. v. Doot,8 the respondents were aliens convicted of conspiracy to import cannabis resin into the United Kingdom. They were arrested in England while executing the agreement amounting to conspiracy was made abroad. The House of Lords held that the English courts had jurisdiction in the case because the offence continued to occur in England. Lord Wilberforce stated, “the present case involves international elements—the accused are aliens and the conspiracy was initiated abroad—but there can be no question here of any breach of any rules of international law if they are prosecuted in this country”, on the basis of objective territorial principle.In Mubarak Ali Ahmad v. The State of Bombay,9 the Supreme Court of India observed: “The fastening of criminal liability on a foreigner in respect of culpable acts or omissions in_________________6 On criminal competence of States in respect of offences committed outside their territory, see the report of Sub-committee of League of Nations Committee of Experts for the Progressive Codification of International Law (1926).7 The Harvard Research Draft Convention on Jurisdiction with Respect to Crime, 1935, also proposed a State territorial jurisdiction when a crime is committed in whole or in part within the territory of a State (Art. 3). A crime is committed “in part” within the

territory, “when any essential element is consummated there”, 29 AJIL Supp. 443 (1935) at p. 495.8 [1973] AC 807 (H.L.).9 AIR 1957 SC 857.


India which are juridically attributable to him notwithstanding that he is corporeally present outside India at the time, is not to give any extra-territorial operation to the law; for it is in respect of an offence whose locality is in India, that the liability is fastened on the person and the punishment is awarded by the law, if his presence in India for the trial can be secured”.10 Thus, in such cases though the offence is committed outside, but by reason of the principle of constructive presence of the offender treated as being committed within the territory and the fact that the offender is outside the territory of the State at the time of commission of the offence is not an obstacle to the exercise of the jurisdiction.The principle also received a fillip from the Permanent Court of International Justice in the Lotus case.11 The case originated in a collision on the high seas between the French ship, the Lotus, and the Turkish vessel Boz-Kourt, resulting in the sinking of the latter and the death of eight Turkish nationals. On reaching Constantinople, the French officer of the watch and the Captain of the Boz-Kourt were arrested and convicted with manslaughter by a Turkish Court. France protested and challenged the legality of Turkish action. By an agreement between the parties, the dispute was submitted to the Permanent Court of International Justice. Before the Court, France raised two main contentions: (i) international law does not allow a State to take proceedings with regard to offences committed by foreigners abroad simply by reason of the nationality of the victim, and (ii) international law recognises the exclusive jurisdiction of the flag State over events occurring on board a ship on the high seas.The judgment of the Court was rendered by the casting vote of the President. On the first contention regarding criminal jurisdiction, the judgment was vague and full of generality. It did not say clearly whether jurisdiction could be exercised on the basis of the nationality of the victim. But it held that “the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners”.12The second French contention was similarly rejected. The French government, although able to show that jurisdiction normally followed the flag, was unable to establish that international law recognises the exclusive jurisdiction of the flag State over incidents occurring on the high seas. The Court observed that if “a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent”.13_________________10 Ibid., at p. 868. In the United States also, a similar approach is taken, see G.H. Hackworth, Digest of International Law, Vol. II, p. 188 (1941); US ex. rel. Hatfield v. Guay, 11F. Supp. 806 (1935), on appeal,87 F (2d) 358.11 Op. cit. 2.

12 Ibid., pp. 20-21.13 Ibid., at p. 21.


The majority opinion of the Court, thus, clearly brought the case under the principle of the “objective, territorial jurisdiction”.14 On the territorial jurisdiction, the Court remarked:Though it is true that in all systems of law the territorial character of criminal law is fundamental, it is equally true that all or nearly all of these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty.15However, failing any permissive rule, international law contains a general prohibition that the States cannot extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory. It leaves the States in this respect, a wide measure of discretion to decide for themselves about their jurisdiction, which is limited in certain cases by prohibitive rules. The Court, however, opined that the onus lay on the State challenging the jurisdiction, to show that it was prohibited by international law.16On the question of competence of Turkey to exercise jurisdiction on territorial basis, Judge Moore (in his dissenting opinion in Lotus case) remarked:It appears to be now universally admitted that when a crime is committed in the territorial jurisdiction of one State as the direct result of the act of a person at the time corporally present in another State, international law, by reason of the principle of constructive presence of the offender at the place where this act took effect, does not forbid the prosecution of the offender by the former Stale, should he come within its territorial jurisdiction”.17The objective territorial principle has also been supported by many international conventions and international studies,18 though under few conventions, such as the Geneva Convention for the Suppression of Counterfeiting Currency, 1929, and the Geneva Convention for the Suppression of the Illicit Drug Traffic, 1936,19 the objective as well as subjective territorial principles have been incorporated. Thus, States parties are bound to punish crimes related to counterfeiting and drug traffic if any conspiracy or attempts to commit these offences take place within their territory.Territorial jurisdiction is as much applicable to aliens as to citizens. An alien can be exempted from this jurisdiction only if he is able to show that (a) by reason of some special immunity, he is not subject to the operation of the local law, or (b) the local law is not in conformity_________________14 The rule laid down by the Court in the Lotus case was set aside by the 1952 Brussels Convention on Collision or other Incidents of Navigation and subsequently by the 1958 Geneva Convention on High Seas in Art. 11 and also by the 1982 Law of the Sea Convention, Art. 97, whereby the flag State has the exclusive penal jurisdiction in maritime collision cases.15 Op. cit. 2, at p. 20. The judgment has been criticised by J.L. Brierly, The Law of Nations, 6th ed. (Clarendon Press, Oxford), 1963, pp. 301-302; G. Fitzmaurice, 92 Hague Recueit (1957-11), 56-57.

16 S.S. Lotus case, op. cit. 2, at pp. 19-20.17 Ibid., at p. 73.18 Viz., Multinational Corporations in World Development (prepared by the UN) and the Multinational Enterprises and Social Policy (prepared by the ILO) in 1973, which make the multinational corporations amenable to the local laws of the host State in certain respects.19 The Single Narcotic Drugs Convention 1961, has been concluded on the same subject matter, but the 1936 Convention has remained in force between its parties.


with international law. Though there is a close connection between territory and criminal jurisdiction which can be extra-territorial only if permitted by agreement or custom, civil jurisdiction is less dependent on the territorial principle. A civil court, adjudicating a dispute involving a foreign element, can apply the law of the place with which the transaction has the most real connection or where the events giving rise to the litigation occurred.

B. Jurisdiction according to Nationality PrincipleDistinct from territorial jurisdiction, a State may exercise jurisdiction or. the basis of the nationality of the person involved in a particular legal situation. The person concerned is its national who is either the one which has committed the crime or, is the one who is the victim of the crime. In such a case, the State may exercise the jurisdiction against the alleged offender as and when he enters the territory of the State voluntarily, or in consequence of legal proceedings leading to his extradition. The jurisdiction may be exercised on either of the two grounds: active nationality principle and the passive nationality principle (also known as passive personality principle).

1. Active nationality principleIt is indisputable that nothing in international law precludes a State from prosecuting and punishing its juristic persons for a crime committed outside its territory. A State may exercise civil or criminal jurisdiction over its nationals on the basis that the nationality is a mark of allegiance which the person, charged with the crime, owes to his State of nationality.20 For this allegiance, the State provides diplomatic protection to its nationals. This jurisdiction can be exercised even by ignoring the changes of nationality, if the evidence of allegiance is clear enough.21 However, the territorial and nationality principles together may create the incidence of concurrent jurisdiction and possible double jeopardy unless resolved by clear rules about the priority between them.

2. Passive nationality/personality principleA State may assume extra-territorial jurisdiction over aliens if the person suffering injury or a civil damage is its national. But the rule has not always been accepted without any qualifications. In the Lotus case, although the Court upheld the Turkish jurisdiction on this ground, it did not delve on the extent of the right of the State to protect its citizens abroad. The principle was rejected by all the six dissenting judges. Judge Moore of the United States found Art. 6 of the Turkish Penal Code, which enabled Turkey to exercise jurisdiction over aliens for crimes committed abroad to the prejudice of any Turkish subject, contrary to international law.22_________________20 Harvard Research Draft Convention, op. cit. 7 at p. 519.21 See Ram Narain v. Central Bank of India, 18 1LR 49 (1951).22 See op. cit. 2, at p. 75. Article 6 of the Turkish Penal Code reads: “Any foreigner who ... commits an offence abroad to the prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty involving loss of freedom for a minimum

period of not less than one year, shall be punished with the Turkish Penal Code provided he is arrested in Turkey...”


The provisions similar to Turkish Penal Code are found in the penal codes of several countries, such as Mexico, Brazil, Italy, etc. The Harvard Draft Convention, 1935, lists over 20 States making use of passive personality principle. But it has been explicitly opposed by the Anglo-American countries, which adhere to the territorial theory of criminal competence if a crime is “committed and consummated” within their territories. They go to the extent of denying to States the right to assume criminal jurisdiction which is not properly territorial over non-nationals. In the Cutting case,23 the United States Government protested the exercise of jurisdiction by a Mexican Court over Cutting, an American citizen, for an alleged offence of defamation of a Mexican national in Texas, when he visited Mexico. There was no evidence that the alleged libelous article, published in Texas, was circulated in Mexico. The United States maintained that Mexico cannot try Cutting for a crime committed and consummated entirely abroad earlier, merely because the person suffering injury happened to be a Mexican citizen. The trial court convicted Cutting by applying the passive personality principle.24 The objection of the United States against extra-territorial application of the State jurisdiction in such cases finds wide support in State practice.25 However, there are now increasing evidence of the acceptance of this principle by many of these States, particularly in treaties related to terrorists acts and other matters of general international law, such as hijacking and hostage taking. Such cases may also fall under the protective principle.The rationale for the exercise of passive personality or nationality jurisdiction is that a State is entitled to protect its nationals for the injury suffered by them abroad if the territorial State fails to punish the offender and the State of the forum may get hold of him, if he comes there voluntarily or through extradition.

C. Jurisdiction according to Protective PrincipleA State can assume jurisdiction over aliens for the acts done abroad affecting its security, integrity and independence, including its vital economic interests. International law recognises such a right which is embodied in the criminal codes of many countries. Oppenheim holds that the penal jurisdiction of a State includes serious crimes against its own safety.26 Penal jurisdiction requires a “linking point”, i.e., a legal connection linking the State and the offender. The acts that concern a State’s “vital interests” can be tried by the State under the protective principle.The rational behind its application is the concern of the State against whom these acts are directed and the grave nature of the offences, which may go unpunished simply because_________________23 J.B. Moore, Digest of International Law, Vol. III, pp. 228-242 (1906).24 The case in fact could be resolved only by diplomatic negotiation between the two States subsequently, but technically, Cutting was discharged on appeal because the offended party had withdrawn from the action.25 In the US v. Yunis (No. 2) (1988) 82 ILR 344, the US Federal District Court convicted a Lebanese national for hostage taking and air piracy for hijacking a Jordanian airliner at Beirut Airport and later blowing it up, wherein two US nationals died. He was arrested by FBI agents on board a vessel in international waters in the Mediterranean. See also US v. Alvarez-Machain (1992) 119 L.Ed. 2de. 441.

26 L. Oppenheim, International Law, op. cit. 1, p. 470, Sec. 139.


they do not violate the law of the land where they were committed. Such acts include high treason or counterfeiting of currency etc. In such cases, extradition may be refused because of the political nature of such offences. On the other hand, it may vest a State with arbitrary power to decide about its jurisdiction, and it is another instance of extra-territorial application of State’s laws.The Anglo-American countries, which generally oppose the passive personality principle, quite often resort to protective principle to exercise jurisdiction over crimes committed by aliens abroad. In England, the House of Lords upheld the principle in Joyce v. D.P.P.,27 by holding that an alien owing allegiance to the Crown can be tried by British courts for the crime of treason committed abroad. The Court stated that no principle of international law demands “that a State should ignore the crime of treason committed against it outside its territory. On the contrary, a proper regard for its own security requires that all those who commit that crime, whether they commit it within or without the realm, should be amenable to its laws”. The accused, in this case, was born to Irish parents in the United States and was a naturalised citizen of Britain. He was charged with treason under the British law for having made propaganda broadcasts during the war against Britain from Germany, an enemy country where he was working for the German Government. As he was holding a British passport at the time of broadcasts and was entitled to protection by the Crown, he therefore, owed an allegiance to the Crown. Hence, the British courts had the jurisdiction even though the passport was obtained by fraud.28In K.T.M.S. Abdul Cader and others v. Union of India,29 the petitioners (one of them was a foreign citizen) were alleged to have been dealing with smuggled goods. The State of Madras apprehended threat to the safety and security of the country unless they were detained forthwith. Detention orders were first passed against them under the Maintenance of Internal Security (Amendment) Ordinance, 1974, and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The warrant of arrest could not be served since they were residing abroad, and subsequently the State government issued two proclamations under Secs. 82(1) and 7(1)(c) of the Criminal Procedure Code and passed orders for their detention. These proclamations were challenged by the petitioners on the ground that the Act does not have extra-territorial application and, therefore, the State government had no power to issue detention orders against persons who were not in India at the time of issuance of orders. The Madras High Court, while rejecting their contention, observed that:... though a State’s jurisdiction is mainly territorial, its jurisdiction can extend in respect of things or acts done by its nationals, even outside its territories. It has also jurisdiction which may properly be called protective jurisdiction to deal with a foreign national whose acts have jeopardised or are to jeopardise its safety or public order.... If such a protective jurisdiction is not given to a sovereign State, its stability and existence itself can be shaken by acts or things done by foreigners outside its territory.... It may be that any action taken by the State government against a foreigner sometimes is ineffective so long as the foreigner is outside its territory. But ... the_________________27 [1946] AC 347.

28 H. Lauterpacht, 9 CLJ 330 (1947). See also the US decision in Stegeman v. US, 425 F (2d) 984 (1970) on the protective principle.29 AIR 1977 Mad. 386 (F.B.).


action taken cannot be said to be invalid as the jurisdiction of the State to take action against a foreigner mainly depends upon its competency and not upon its effective execution.30

D. Jurisdiction according to Universality PrincipleStates generally exercise jurisdiction over certain offences regardless of the nationality of the offender or the place of commission of crime. These offences are considered to be against international public policy (jus cogens) and they are treated as delicts jure gentium. Any State may arrest persons committing these crimes and try them under its domestic law. Examples of such crimes are piracy,31 war crimes32 and slave trade.33 The principle of universality of war crimes has also been embodied in the four Geneva Conventions, 1949, i.e., on prisoners of war, protection of civilians, sick, and wounded personnel, and the ship wrecked, as supplemented by Protocols I and II of 1977.In Attorney General of the Government of Israel v. Eichmann (Eichmann case), the principle of universal jurisdiction was relied in part by the Supreme Court of Israel to uphold Eichmann’s conviction for war crimes and crimes against humanity committed by him as the Head of the Jewish Office of the German Gestapo, whose actions led to the death of millions of Jews during the Second World War.34 The Court overruled the objection of the defendant that his actions occurred in Europe before the State of Israel was founded and offences were committed against people who were not its citizens. These objections were dismissed by the District Court of Jerusalem, which stated: ‘The State of Israel’s ‘right to punish’ the accused derives ... from two cumulative sources: a universal source ... which vests the right to prosecute and punish crimes of this order in every State within the family of nations; and a specific or national source, which gives the victim nation the right to try any who assault its existence”.35Universality principle finds expression in a limited way in a number of treaties on matters concerning the international community, such as genocide,36 drug traffic,37 trafficking in women_____________________30 Ibid., at p. 396. In G.B. Singh v. Government of India, AIR 1973 SC 2667, also the Supreme Court recognised the protective principle by stating that the first duty of a State is to survive.31 The subject of piracy has been discussed in Ch. 14 on the Law of the Sea, see infra, pp. 414-415.32 Brownlie does not accept the view that the universality principle is applicable to cases of war crimes, because what is punished is not the violation of national law, but breaches of international law, see op. cit. 4, p. 305.33 Arts. 13 and 22 of the 1958 High Seas Convention, and Art. 110 of the 1982 Law of the Sea Convention authorise a State to exercise jurisdiction against ships flying its flag or unlawfully using the flag while engaged in slave trade.34 Eichmann was abducted to Israel from Argentina where he took refuge under an assumed name of Ricardo Klement. In Israel, he was tried under the Israeli Nazi and Nazi Collaborators (Punishment) Law of 1951. On the illegally obtained custody, see the

decision of the Permanent Court of Arbitration in Savarkar case (1911) (France v. Great Britain), Hague Court Reports, p. 275.35 36 ILR 5 (1961), para. 30. The judgment, in part reproduced in D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell. London), 2010, p. 241.36 Article VI, Genocide Convention, 1948.37 Article 36(2)(iv), Single Convention on Narcotic Drugs, 1961.


and children, counterfeiting of currency, taking of hostages,38 torture,39 apartheid,40 attacks on diplomats41 and hijacking 42 Although such acts are increasingly viewed as crimes permitting any country to assert universal jurisdiction over the perpetrator, but contrary to their being delicts jure gentium (which can be tried by all States), these crimes are dealt on the principle of aut punire, aut dedere, i.e., the offenders are either to be punished by the State where they are found or to be surrendered to the State competent and desirous to exercising jurisdiction over them. They are the cases of concurrent jurisdiction and sometime remain controversial. The universality principle in these cases can serve as a basis only for auxiliary competence.In the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),43 an arrest warrant was issued in 2000 by Belgium against Abdoulaye Yerodia Ndombasi, the then Minister of Foreign Affairs of the Democratic People’s Republic of the Congo in absentia, along with three other Rwandans, charged for their involvement in 1994 Rwandan genocide of Tutsi civilians and committing crimes against humanity, and sentenced from 12 to 20 years’ imprisonment. Belgium acted under its 1993 law of universal jurisdiction over people accused of war crimes, crimes against humanity or genocide “wheresoever they may have been committed.” No Belgian national was the victim of the alleged crimes nor was there any link between Belgium and the accused. The warrant was both sent to the Congo Government and Interpol. The issue of arrest warrant was challenged before the International Court of Justice. The Court limited the scope of its judgment to the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs and found that Belgium failed to respect the inviolability and immunity of the incumbent minister under international law and decided that Belgium must cancel the arrest warrant. But the Court did not examine the question of Belgian jurisdiction, though Belgian claimed that in the absence of any prohibitive rule, it was entitled to confer itself a universal jurisdiction in absentia,44However, jurisdiction of the State cannot be compartmentalised in different categories or forms, such as legislative or executive, or civil or criminal, because the exercise of the jurisdiction is essentially dependent upon the competence of the State, and not on any inherent_________________38 Article 8, 1979 International Convention against the Taking of Hostages.39 Article 5(2), 1984 UN Convention on Torture. See the House of Lords judgement in R. v. Bow Street Magistrates Ex p Pinochet [2000] 1 AC 147.40 Articles II-1V, Convention on the Suppression and Punishment of the Crime of Apartheid, 1973.41 Article 2, Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomats, 1973.42 Article 4, Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970, and Art. 5, Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971.43 (2002) ICJ Rep., p. 3; 41 ILM 563 (2002).

44 On similar facts, a case presently pending before the International Court of Justice (ICJ), Congo brought a case based on France’s assertion of universal jurisdiction over several Congolese high officials, including the Denis Sassou Nguesso, President of the Republic of the Congo, for “crimes against humanity and torture allegedly committed in the Congo against individuals having Congolese nationality,” Congo challenged the criminal jurisdiction of France. The Court rejected Congo’s request for the indication of a provisional measure to avoid a risk of irreparable prejudice to the Congolese sitting head of state, see Certain Criminal Proceedings in France (Republic of the Congo v. France) (Provisional Measures) (2003) ICJ Rep., p. 102.


distinction between them. The two most commonly accepted bases of jurisdiction are: territorial and active nationality principle, which are resorted by States if there is substantial link between the subject matter and the source of jurisdiction. Further, jurisdiction is not always based upon the principle of exclusiveness. There are bound to be conflicts of jurisdiction between States having concurrent jurisdiction in certain situations, unless the situation is governed by a treaty or an agreement.

III. EXEMPTIONS FROM TERRITORIAL JURISDICTIONAs a general principle, the municipal law of a State is applicable throughout the territory of a State. However, under international law, certain degree of exemption and immunity from local jurisdiction is enjoyed by the following:a. Foreign sovereigns and foreign States,b. Diplomatic representatives and consuls of foreign States,c. Foreign public ships,d. Foreign armed forces, ande. International institutions.

A. Foreign Sovereigns and Foreign StatesThe concept of “sovereign immunity” or “State immunity” is imbibed in the customary international law, according to which a foreign sovereign or State is not amenable to the jurisdiction of the State of the forum unless voluntarily submitting to the jurisdiction of the local courts and the law enforcement agencies. However, there is no bar against the foreign sovereign initiating the proceedings in territorial State. The concept was earlier attached to the person of the sovereign but later extended to the State and its organs. The two terms “State immunity” and “sovereign immunity” have become interchangeable.45The concept finds its expression in the exemption of the person of the sovereign from arrest or detention within a foreign territory and extends to the foreign troops (under licence) and the diplomatic agents or other representatives of the foreign sovereign.46 The legislative, administrative and executive acts of a foreign State and its agents cannot be called into question by the territorial State.47 It also extends to property within the territory of the State of the forum, and public ships belonging to the foreign State or foreign sovereign are immune from seizure_________________45 Sinclair points out that “sovereign immunity” in the strict sense of the term “should be taken to refer to the immunity which a personal sovereign or Head of State enjoys when present in the territory of another State”. See I. Sinclair, The law of sovereign immunity: recent developments, 167, Hague Recueil 113 at p. 197 (1980-11).46 The former ruler or sovereign of a foreign country would be entitled to immunity only if the territorial State, where the suit has been filed, regards him as a foreign sovereign. This rule is similarly applicable to diplomatic representatives, see Art. 39 of the Vienna Convention on Diplomatic Relations, 1961.47 However, it is highly controversial whether the courts may refuse to recognise if the acts of a foreign State are in contradiction of international law, or public policy, see Brownlie, op. cit. 4, p. 323.


or detention or judicial disposition. If the foreign sovereign has no title to the property claimed, it should at least show right to possession or control in order to claim immunity. To succeed in its claim of immunity, the foreign government is not bound to give complete proof of its proprietary or possessory title.48 Immunity is referable to the entire judicial process and the execution of the judgment rendered.The immunity, nevertheless, is not confined to proceedings in rem but to proceedings in personam, and if successful, would have the indirect effect of depriving the foreign State or foreign sovereign of proprietary or possessory rights, or any rights of control. A sovereign could not be impleaded even indirectly in a suit.49The immunity might be waived by express or implied consent. If express, the waiver had to be made with full knowledge of the consequences and the authority of the foreign sovereign. The implied waiver depends on all the circumstances of the case. But a mere clause in a contract for the submission to the jurisdiction has not always been accepted as amounting to waiver.50 Waiver of immunity from jurisdiction does not automatically include waiver from execution, for which a separate waiver has to be accorded. If a foreign State opts to sue in the territorial State, it would be bound by the ordinary incidents of the suit, such as set-offs or counter-claims by the opposite party.51

1. Rationale of jurisdictional immunityIn The Schooner Exchange v. McFaddon, Marshall C.J. of the Supreme Court of America laid down the rationale of jurisdictional immunity, by stating that the jurisdiction of the nation within its own territory is “necessarily exclusive and absolute”.52 He observed:One sovereign being in no respect amenable to another ... can be supposed to enter a foreign territory only under an express licence, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated ... will be extended to him.The perfect equality and absolute independence of sovereigns ... have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.In Christina case,53 Lord Wright observed, “there are general principles of international law according to which a sovereign State is held to be immune from the jurisdiction of another sovereign State ... the rule may be said to be based on the principle of par in parent non habet imperium_________________48 Compania Naviera Vascongado v. S.S. Christina (Christina case) [1938] AC 485.49 US v. Dolfus Mieg [1952] AC 582 (H.L.), Rahimtoola v. Nizam of Hyderabad [1957] 3 All ER 441 (PC); [1958] AC 379.50 Kahan v. Pak Federation [1959] 3 All E.R. 659; Duff Development Co. v. Kelantan Government [1924] AC 797. Sec. 2 of the State Immunity Act, 1978 (Britain), negativates this position. See also Sec. 1605(a)(1) of the Foreign Sovereign Immunities Act, 1976 (US) and Arts. 8 and 11 of the ILC Draft Articles on jurisdictional Immunities of States and their Property, YblLC 1986, Vol. II, p. 8; Harris, op. cit. 35, p. 271.

51 Cf. Art. 32(3) of the 1961 Convention on Diplomatic Relations, applicable to diplomatic agents.52 7 Cranch 116 (1812); reproduced in Harris, op. cit. 35, p. 259, at 259-260.53 See op. cit. 48.


The immunity also rests on the functional need to leave the foreign State, its organs and representatives unencumbered in the pursuit of their mission. Several principles are quoted as the basis of jurisdictional immunity:a. Par in parem non habet imperium, i.e., an equal has no authority over an equal.54b. The principle of non-intervention, i.e., the matters related to the acts, policy and transactions of a foreign State should not stand to scrutiny by the forum State, lest it would amount to intervention in the internal matters of another State.55c. Rule of comity or reciprocity, i.e., the accepted rules of mutual conduct as between States, which each State adopts in relation to other States and expects other States to adopt in relation to itself.56 It may otherwise be considered as an unfriendly act.d. Implied grant of licence to a foreign sovereign or State to visit or function within its territory, signifies immunity and imposes an implied obligation on the territorial State not to derogate from such a grant.57

2. Extent of State immunityHistorically, a foreign State could not be subjected to the jurisdiction of the territorial courts than could the State itself. The foreign State enjoyed the absolute immunity for all its acts, whether of public nature (acts jure imperii) or private nature, for example, trading, and non-public functions (acts jure gestionis).58 The absolute immunity extended to State organs as well.59 In Britain, immunity was held to be available in spite of the clause for the submission to jurisdiction of English courts, unless the submission was made before the court.60_________________54 Ibid., see also The Schooner Exchange case, op. cit. 52.55 See F.A. Mann, 42 BYbIL (1967), pp. 1-2.56 See Buck v. A.G. [1965] Ch. 745; 42 ILR II; see also Mann, 14 1CLQ (1965), 985-987.57 See Wright v. Cantrell [1943] 44 SRNSW 45 at p. 52.58 For example, the doctrine of absolute immunity was followed in numerous cases in Great Britain, viz., Mighell v. Sultan of Johore (1894) 1 QB 149 (sovereign cannot be sued for breach of marriage promise); Companies Merchantil Argentina v. US Shipping Board [1924] 40 TLR 601 (action in personam,, a sovereign by entering into a trading contract does not lose its immunity from legal process); Parlement Beige [1880] 5 PD 197 (Belgium mail vessel used for commercial purposes, held that British courts had no jurisdiction over the person and property of the foreign sovereign).59 See Krajina v. Toss Agency [1949] 2 All E.R. 274 (CA), in a suit by plaintiff for alleged libel, the plea of sovereign immunity was accepted for the defendant as the central information organ of the USSR; Baccus v. S.R.L Servicid Nacionel del Trigo [1957] I QB 438 (CA), the defendant, a Spanish State organ, formed as a separate organ, held to be entitled to immunity in a commercial contract with the plaintiffs, an Italian company.60 See Duff Development Co. Ltd. v. Government of Kelantan [1924] AC 797 (a garnishee order for the enforcement of an arbitral award against an independent sovereign State cannot be issued); Kahan v. Pakistan Federation [1951] 2 KB 1003 (CA), the case

was related to the supply of Sherman tanks to Pakistan Government. The UK State Immunity Act, 1978, Sec. 2(3) however, has now reversed this position.


Nevertheless, with the increasing involvement of States in trading activities and other non-governmental functions, not many States are now willing to apply the doctrine of absolute immunity in granting exemptions from legal process to foreign sovereigns and States. Even those States which were applying the doctrine in its full rigour, have tried to create certain exemptions in the matters of private nature undertaken by a foreign State.The great prominence given to the public sector or State-owned organs and corporations in national economies by many countries, particularly those belonging to the erstwhile communist bloc and many developing countries, such as India, to develop a modern economy and conduct their business has further raised doubts about the rationale of the rule of absolute immunity, and in many jurisdictions it has been replaced by restrictive or relative doctrine.61In the Anglo-American practice, the doctrine of restrictive immunity has been applied to suits relating to title to land (not to land on which legation premises are established) within the territorial State, having vital interest in the land; or a trust fund if a foreign state or sovereign is interested in it, but not being the trustee;62 representative actions, such as debenture holders’ actions; or the winding up of a company in whose assets the foreign State or sovereign has claimed an interest.63The doctrine of restrictive immunity has been consciously developed by introducing the concept of implied waiver and the activities of private law have been kept outside the scope of State immunity. Thus, the immunity was not granted in a case related to the payment of bills for the repair of legation premises, done at the request of the ambassador,64 or the official residence of the ambassador.65 In the United Kingdom, the doctrine of absolute immunity was clearly abandoned for commercial transactions in The Philipine Admiral case66 (action in rein) and The Trendex Trading Corporation67 (action in personam) just before the 1978 State Immunity Act was enacted, giving effect to the restrictive immunity rule.In the United States, the “Tate Letter” issued way back in May 1952, by the State Department, laid down the restrictive immunity theory in considering requests from foreign governments for a grant of immunity. A foreign State might even present a claim directly before the court, in which case the court is to adjudge about the immunity by taking into account whether the State act pertains to the categories of political or public acts.68 Political or public acts are generally_________________61 Brownlie lists about 20 countries (mostly western States) which now follow the restrictive immunity doctrine, another seven support the doctrine in principle. See Brownlie, op. cit. 4, pp. 327-328.62 Rahimtoola v. Nizam of Hyderabad [1958] AC 379 at p. 401.63 See J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 212.64 See the Claim Against the Empire of Iran, 45 ILR 57 (1963) decidcd by the Federal Constitutional Court of Germany.65 Planmount Ltd. v. Republic of Zaire [1981] I All E.R. 1110 (QB); [1980] 2 Lloyd’s Rep. 393.

66 Owners of the Ship Philippine Admiral v. Wallem Shipping (Hong Kong) Lid. and Others [1976] I All ER 71 (PC). It was held that the State-owned vessels, engaged in commercial activities are not immuned. For the contrary view, see the US decision in Heaney v. Government of Spain, 445 F (2d) 501 (1971) at pp. 503-504.67 Trendex Trading Corp. v. Central Bank of Nigeria [1977] QB 529 (AC), the issue of a letter of credit in favour of the plaintiffs was held to be a non-governmental function.68 See, for example. Victory Transport Inc. v. Comisaria General de Abasteciementos Transporte 35 ILR 110 (1964), 336 F. Rep. (2d) 354 (1964); Isbrandtsen Tankers Inc. v. President of India 10 ILM 1046 (1971); Alfred Dunhill of London. Inc. v. Republic of Cuba 15 ILM 735 (1976).


limited to internal administrative acts, such as expulsion of an alien; legislative acts, such as nationalisation; acts concerning the armed forces; acts concerning diplomatic activity; and publicloans.69However, the restrictive approach manifested in judicial practice has created difficulties, such as of classifying the acts as jure imperii and jure gestionis, the governmental entities which are entitled to immunity, and whether a State can be impleaded indirectly.In the case of Claim Against the Empire of Iran,70 the West German Federal Constitutional Court rejected the plea of State immunity in respect of a contract claim by a local firm for the cost of repairs made to the heating system of the Iranian Embassy in Cologne, by holding that the conclusion of such a contract “does not fall within the core of the State’s political authority”. It observed that “for determining the distinction between acts jure imperii and jure gestionis, one should rather refer to the nature of the State transaction or the resulting legal relationships, and not to the motive or purpose of the State activity. It thus depends on whether the foreign State has acted in exercise of its sovereign authority, that is in public law, or like a private person, that is in private law”.71Thus, it is the “nature” rather than the “purpose” test that distinguishes the acts jure imperili and acts jure gestionis and followed by the English and American courts. In Trendtex Trading Corporation, Lord Denning M.R. stated:If a government department goes into the market places of the world and buys boots or cement, as a commercial transaction that government department should be subject to all the rules of the market place. The seller is not concerned with the purpose to which the purchaser intends to put the goods.72In the I Congreso del Partido case,13 it was held that the court must look not only to the nature of the contract, but also to the nature of breach. If a contract is in the nature of act jure imperii, there is immunity, if it is an act jure gestionis, a defence of immunity may still succeed if the act in breach of contract is an act jure imperii.There is, however, no clear State practice regarding the immunity of foreign governmental agencies or instrumentalities, and of semi-public corporations. A separate, incorporated legal entity might, by reason of the degree of governmental control over it, nonetheless be an organ of the State. A decisive criterion, however, is whether the corporate entity was an alter ego of the government.74 In Thai-Europe Tapioca Service_________________69 See Victory Transport Inc. case, op. cit. 68.70 Op. cit. 64.71 Ibid, quoted in I Congreso Del Partido [1983] 1AC 244 (HL).72 See op. cit, 67, at p. 558. Lord Denning had taken a similar position in Rahimtoola v. Nizam of Hyderabad, op. cit. 62, at p. 422 where he stated: “it seems to me that at the present time, sovereign immunity should not depend on whether a foreign government is impleaded directly or indirectly, but rather on the nature of the dispute”.73 [1983] I AC 244 (HL).74 Mellenger v. New Brunswick Development Corp. [1971] 2 All ER 593 at p. 596. See also, Trendex Trading Corp., op. cit. 67. Under Sec. 14 of the British State Immunity

Act, 1978, a “separate entity” (one that is not a department of State but is capable of being sued) is not entitled to State immunity unless it is acting “in the exercise of sovereign authority”.


v. Government of Pakistan,15 the West Pakistan Agricultural Development Corporation entered into a charter party contract with the German company to carry Polish fertilizers to Karachi. Any dispute between the parties was to be decided under English law. The ship was extensively damaged at Karachi by Indian air raids. Before the writ was served on the defendants, the Corporation was dissolved and the Pakistan’s Ministry of Food and Agriculture started looking into its work. The plea of sovereign immunity was upheld. But in Trendex Trading Corporation, the court held that the Bank of Nigeria was not a government department but a “legal entity” in its own right, and was not entitled to jurisdictional immunity in an action brought by the plaintiffs for honouring the letter of credit, a transaction which was commercial in nature.76

3. Current legal positionThe developments in the field of sovereign immunity in many jurisdictions have made a dent in the customary rule of absolute immunity, and the modem trend is towards restricted sovereign immunity from the judicial process to only in respect of governmental activities pertaining to public administration and not to other activities which are truly commercial.77 But some countries, mainly developing countries, still adhere to the rule of absolute immunity.78 The Soviet Union also till its dismemberment had held the view that the restrictive immunity doctrine cannot apply to socialist States since in the political theory of such States all governmental acts are sovereign so that the distinction between acts jure imperii and acts jure gestonis has no meaning, even though it agreed to restrictive approach in many bilateral treaties. The problem of other socialist countries regarding State immunity in their transnational commercial transactions was overcome by the formation of trading corporations with distinct legal personality, and has thus avoided any dispute of sovereign immunity.79In some countries, rule of relative immunity has found legislative embodiment, such as USA,80 UK,81 Australia,82 Canada,83 or through judicial practice in some countries.84 The 1972_________________75 [1975] 2 WLR 1485.76 See op. cit. 67. In Uganda Co. (Holdings) v. Government of Uganda [1979] 1 Lloyds Rep., p. 481, however, the court followed the Thai-Europe case.77 D.P. O’Connell, International Law, Vol. II, 2nd ed. (Stevens & Sons Ltd., London), 1970, p. 841.78 Materials on Jurisdictional Immunities of States and Their Property, UN legislative Series, UN Doc.ST/ LEG/SER.B/20 (1982); YblLC II (1982). See CM. Badr, State Immunity: An Analytical and Prognostic View (1984), p. 40; C.H. Schreuer, State Immunity. Some Recent Developments (Grotius Publications Ltd., Cambridge), (1988).79 For example, in I Congreso Del Partido, op. cit. 73, Cubazucer, a Cuban State trading enterprise, had entered into contract.80 United States Foreign Sovereign Immunities Act, 1976, 15 ILM 1388 (1979).81 United Kingdom State Immunity Act, 1978; see I. Sinclair, 167 Hague Recueil 113 (1980-11), pp. 257- 265.82 Australian Foreign States Immunities Act, 1985.

83 Canadian State Immunity Act, 1982. The other countries which have enacted legislation are Pakistan, Singapore and South Africa, see Brownlie, op. cit. 4, p. 328.84 For example, Austria, Belgium, Denmark, France, Germany, Italy, Lebanon, New Zealand, Senegal, and Spain, see Brownlie, op. cit. 4. p. 327, n. 25.


European Convention on State Immunity85 and the 1926 Brussels Convention for the Unification of Certain Rules Relating to the Immunity of State-owned Vessels86 also incorporated the restrictive immunity doctrine. Balance has now shifted in favour of restrictive immunity approach.These legislations and judicial practice, however, have not effectively dealt with all the problems involved in the application of the restrictive immunity rule. The distinction between jure imperii and jure gestionis has not been drawn precisely in the judicial practice of different States. The State immunity statues similarly differ in much of their details. As stated in the Claim Against the Empire of Iran*1 determination of the nature of transaction by national courts would hinder the uniformity of the rule. This problem can be met if the international law lays down qualifications of a State activity as an act jure gestionis. Further, these statutes also fail to solve the problem in cases where the transaction was determined as jure gestionis, but becomes jure imperii at a later stage as had happened in I Congreso del Partido where it was held that the plea of immunity will be available if at any stage the State has acted as a sovereign.88These statutes in certain cases conflict with the other international obligations of the territorial State like the diplomatic and consular immunities, by enacting provisions on dismissal from employment by the mission.89 But the most striking lacuna in all these is related to the general unwillingness to apply the doctrine of restrictive immunity at the level of enforcement, by means of issuing any process against the property or seizure of assets of the debtor State. For example, Sec. 1609 of the United States Foreign Sovereign Immunities Act, 1976, incorporates the customary international law rule, also followed in common law, that the property of a foreign sovereign shall be immune from attachment and execution, unless this immunity has been waived by the foreign sovereign expressly or impliedly (Sec. 1610).90 On the other hand, Sec. 13(4) of the 1978 United Kingdom Act allows attachment only against property used “for commercial purposes”.91 This half-hearted approach by the adherents to the restrictive immunity rule at the critical stage of the judicial process has failed to carry the rule to its logical conclusion._________________85 11 ILM 470 (1972) (in force 1976).86 176 LNTS 199.87 Op. cit. 64.88 Op. cit. 73. In this case, one of the two ships, Marble Islands, chartered by Mambisa (a Cuban State enterprise) to carry sugar under a contract with Cubazucer (another Cuban State agency) to Chile, was asked to proceed to North Vietnam while on high seas on orders from the Cuban Government following the death of President Allende of Chile, where its cargo was discharged. I Congreso, another vessel, was arrested in British waters on the application of the plaintiffs, the owners of cargo. The Cuban Government entered the plea of sovereign immunity which was rejected.89 In Sengupta v. Republic of India [1983] 1 CR 221, the Employment Appeal Tribunal accepted the plea of State immunity at common law, but Sec. 4 of the 1978 State Immunity Act (UK) gives jurisdiction to local courts in such matters.90 In Permanent Mission of India v. City of New York, 551 U.S. (2007), the Supreme Court construed the Foreign Sovereign Immunities Act to allow a federal court

to hear a lawsuit brought by the City of New York to recover unpaid property taxes levied against India and Mongolia, both of which own real estate in New York. See at caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=00091 But execution cannot be enforced against an embassy bank account, see Alcom v. Republic of Colombia [1984] AC 580 (HL), see also J. Crawford, 54 BYbIL 75 (1983).


In order to bring uniformity in State practice, in December 2004, the United Nations General Assembly adopted the UN Convention on Jurisdictional Immunities of States and Their Property,92 which was based on the text prepared by an Ad Hoc Committee established by the General Assembly in 2000.93 The draft articles on jurisdictional immunities of States and their property were prepared by the International Law Commission in 1991.94 Article 5 of the Convention states the general rule of immunity that “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State”. It is followed by certain exceptions and limitations to the rule (Arts. 10-16). Articles 11-15 specifically exclude immunity in cases related to employment contracts, personal injuries or damage to property, property claims, intellectual and industrial property, and participation in companies or other collective bodies. Convention docs not cover criminal proceedings, nor docs it allow civil actions for human rights abuses against State agents if the abuse has occurred in another country.In determining whether a contract or transaction is “commercial”, reference should be made primarily to the nature of the contract, but its purpose can also be taken into account if the parties to the contact so agree, or if, in the practice of the State of the forum, that purpose is relevant to determine the non-commercial character of the contract or transaction, i.e., the national courts decisions to spell out the distinction between them will also be taken into account (Art. 2(2)). State property is similarly exempted from any measures of constraint, including attachment, unless it is specifically in use or intended for use for commercial purposes, or earmarked by the State for the satisfaction of the claim (Art. 21).The Convention takes a compromise approach between the absolute immunity and restrictive immunity rules. It follows the pattern of the 1972 European Convention on State Immunity and the national legislations brought out recently and thus suffers from all those lacunas left in those legislations. It has also left the position unclear on cases like I Congreso del Partido.

4. Sovereign immunity and IndiaIndia does not have any specific legislation on the subject, and the matter of sovereign immunity is governed by Secs. 86 and 87 of the Civil Procedure Code. Section 86(1) incorporates the general rule that “No foreign State may be sued in any Court... except with the Central Government certified in writing by a Secretary to that Government”.Such consent shall generally be withheld except when it appears to the Central Government that the foreign State:a. has instituted a suit in the Court against the person desiring to sue it, orb. by itself or another, trades within the local limits of the jurisdiction of the Court, or_________________92 See General Assembly Resolution 59/38, December 2, 2004.93 General Assembly Resolution 55/150 of 12 December 2000. The Convention was opened for signature from 17 January 2005 to 17 January 2007. As of 15 June 2009, there are 28 signatories to the Convention and 6 instruments of ratification have been deposited. According to its Article 30, the Convention requires

30 States parties to come into force.94 See the Report of the International Law Commission on the work of the 43rd Sess., GAOR, 46th Sess., Supp. 10, at II, UN Doc. A/46/10 (1991).


c. is in possession of immovable property situated within those limits and is to be sued with reference to such property or for money charged thereon, ord. has expressly or impliedly waived the privilege accorded to it by this section (Sec. 86(2)).It also provides for the non-execution of decree against the property of any foreign State without the consent of the Central Government in writing (Sec. 86(3)).These provisions are applicable to any ruler of a foreign State; any ambassador or envoy of a foreign State; any High Commissioner of a Commonwealth country; and such members of the staff of these persons, so specified by the Central Government in a general or special order, as they apply in relation to a foreign State (Sec. 86(4)). These persons cannot be arrested.These provisions give effect to absolute immunity approach with exceptions and limitations stated in Sec. 86(2), which are very close to those mentioned in the UN Convention on Jurisdictional Immunities of States and Their Property. The suits against foreign States can be brought only with the consent of the Central Government, which is not always forthcoming, thereby denying any relief against the foreign State even for its non-public or commercial acts,95 or where the foreign sovereign has waived the immunity expressly or impliedly.96 However, the recent judicial pronouncements have eased the rigour of government consent to sue a foreign sovereign or State.In Harbhajan Singh v. Union of India,97 the petitioner had done some work of building maintenance and renovation at the Algerian Embassy and the residence of the then Algerian Ambassador in New Delhi in 1976. After the petitioner’s failure to get his dues, he requested the Ministry of External Affairs to grant permission to sue the Algerian Embassy. On the Ministry’s refusal to grant permission on “political grounds”, the petitioner filed a suit. The Government of India contended that it “has discretion to refuse consent” as required under Sec. 86, and the petitioner failed to make a case. The Supreme Court rejected this contention and held that it is not for the government to decide whether there was a prima facie case or not. The Court also did not accept the plea of “political grounds” for refusal to grant permission. As the claim of the petitioner was related to Sub-sec. (c) of Sec. 86(2), i.e., related to immovable property situated within the limits of India, the petitioner is liable to be sued in this country. The Court directed the government to reconsider the matter “[k]eeping in view the trend and development of international law” and further directed to “explore the possibilities with Algerian authority of mutual settlement either by arbitration or by other accepted legal norms”.98However, the Delhi High Court was more direct in ordering the Central Government to “accord permission to the petitioner to sue the Ambassador of the Government of Afghanistan” in Century Twenty One (P) Ltd. v. Union of India.99The case related to the recovery of rent of the house occupied by the Ambassador of Afghanistan and the permission from the Ministry_________________95 M.K. Nawaz, The problem of jurisdictional immunities of foreign States with particular reference to Indian State practice, 2 IJIL 164 (1962).96 See Sagarmull Agarwala v. Union of India, AIR 1980 Sikkim 22.97 AIR 1987 SC 9.

98 Ibid., at p. 15.99 AIR 1987 Delhi 124.


of External Affairs to sue the Ambassador or his successor. The Court took judicial cognizance of the distinction regarding liabilities arising out of sovereign acts of foreign States (acts jure imperii) and liabilities arising out of commercial activities (acts jure gestionis). The Court followed the English Court decision in Planmount Ltd. v. Republic of Zaire,100 wherein the contract for repairs of a building was regarded an act of private or commercial nature.101 Seeking permission from the government before suing the foreign State is reminiscent of the American practice before the passing of the 1976 Foreign Sovereign immunities Act.Nevertheless, the restrictive immunity rule finds judicial support under Sec. 86(2) in certain cases. In Raja Sir Harinder Singh v. The Commissioner of Income Tax,102 the ruler of the erstwhile Indian State was held liable to pay income tax for his personal income accrued in India. The Supreme Court observed that Sec. 86 does not impose an absolute prohibition against a ruler of a foreign State being sued in India. Even in the matters of trust created by a foreign sovereign, the plea of sovereign immunity was not accepted. In the Institute Indo-Portuguese v. Broges, Datar J. of Bombay High Court stated:If there has been a trust, and if that trust is created by a foreign sovereign, it does not mean that the foreign sovereign has created this trust in the exercise of his foreign powers. In my view, when a trust is created by a sovereign, the sovereign would be no better than a settler amenable to the law of the country in which the charity is created and is to be conducted.103The Supreme Court had the occasion to consider the relationship between Sec. 86(1) of the Civil Procedure Code before its amendment in 1976, and the rule of general international law in Mirza Ali Akbar Kashani v. United Arab Republic,104 and observed that the rule stated therein is applicable to a foreign State also.105Immunity to foreign States or sovereigns is available only in suits and not to disputes decided by the Industrial Tribunal under the Industrial Disputes Act106 or arbitration proceedings.107 However, in the case of M/s Uttam Singh Duggal and Co. Pvt. Ltd. v. United States of America Agency for International Development,108 (USAID) the appellants entered into a contract with the defendants to construct staff houses and apartments, and the contract contained a clause for arbitration by the contracting officer of the USAID mission in India. On the refusal of the defendants to refer the dispute to arbitration, the appellants approached the Court which rejected the defendants contention that in view of arbitration clause, Sec. 86 will not be applicable. The Court also rejected their contention that a building contract is not a commercial or trading activity, hence restrictive immunity theory is not applicable. The Court stated that:_________________100 See op. cit. 65.101 See also Art. 31(1)(a) of the 1961 Vienna Convention on Diplomatic Immunity, allowing real action relating to private immovable property.102 AIR 1972 SC 202.103 27 ILR 111 (1960) at p. 114.104 AIR 1966 SC 230.

105 Earlier the Calcutta High Court, in the same case, had stated that Sec. 86(1) is applicable only to a foreign ruler and not to a State which will not be entitled to immunity, see United Arab Republic v. Mirza Ali Akbar Kashani, AIR 1962 Cal. 387.106 See Maharaja Sahib Shiv Bhagwat Singh Bahadur of Udaipur v. State of Rajasthan, AIR 1964 SC 444.107 See Nawab Usman Ali Khan v. Sagar Mal, AIR 1965 SC 1798.108 The Delhi High Court decision of May 24, 1982, see ILR (1982) II Delhi 273.


In order to differentiate between a sovereign act and a private act, one will have to look into the nature or to the purpose of the transaction. The transaction ... was purely a construction contract and it would ... best be termed a private commercial act.The court rejected the defendants’ plea of immunity. The court’s approach was very close to I Congreso del Partido case.109The rule of absolute immunity in India is now confined to narrow regions, i.e., immunity of a foreign sovereign is restricted to acts jure imperii a s distinguished from acts jure gestionis.110 But what constitute acts jure imperii are left to the discretion of the courts in the absence of any legislation on the lines of British State Immunity Act or Foreign Sovereign Immunities Act of the United States. The courts in India take into account the nature or the purpose of the transaction, as evident from the M/s Uttam Singh Duggal and Co. Pvt. Ltd. Case.111

B. Diplomatic Representatives and ConsulsDiplomatic representatives and consuls of foreign States enjoy certain immunities and privileges in the receiving States. They enjoy these immunities under international law, which are codified in the Vienna Convention on Diplomatic Relations, 1961, and the Vienna Convention on Consular Relations, 1963. The basis of these immunities and privileges is that they are representatives of the foreign State, and they have to perform special functions.The detailed discussion of diplomatic and consular immunities has been done in the chapter on “Diplomatic and Consular Relations”.112

C. Foreign Public ShipsUnder general international law, foreign public ships, including the warships,113 enjoy immunity to a great measure from the territorial jurisdiction of another State while in its territorial waters, ports or internal waters.114 Any private vessel, called for public purposes, such as carrying of troops or war material is considered a public ship, and as such, attracts sovereign immunity. The ships are immune from the legal process and cannot be the subject of execution of any degree or damages for collisions. The members of the crew when on duty or official mission, are immune from local jurisdiction even while committing breaches of the local law when they are ashore. When not on duty, they are not protected, though normally they are handed over_________________109 Op. cit. 73.110 State of Kerala v. K. Cheru Babu, AIR 1978 Ker. 43 at pp. 48-49.111 See op. cit. 108.112 See Ch. 8, infra.113 Article 29 of the 1982 Law of the Sea Convention defines “warship” as “a ship belonging to the armed forces of a State bearing the external marks distinguishing ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent and manned by a crew which is under regular armed force discipline”.

114 See Schooner Exchange v. McFaddon, op. cit. 52, the statement of Marshall CJ laid down the basis of immunity; the Parlement Beige, op. cit. 58; Chung Chi Cheung v. The King [1939] AC 160; Municipality of Saint John v. Fraser-Brace Overseas Corp., 26 ILR, 165 (1958-11).


to the authorities of the ship. These immunities, however, are available only if the foreign vessels enter the territory of a State lawfully. In ease they violate the latter’s territorial sovereignty or its laws, that will attract the international responsibility of the flag State.11- While in territorial sea, the warships must comply with the laws and regulations of the coastal State, failing which they may be required to leave the territorial sea.116The special inviolability which public ships enjoy is stated to be based on the extra-territorial character of the ship, i.e., the “floating island” theory, considering a public vessel as a part of the territory of the flag State, and subject to its jurisdiction only.117 But in Chung Chi Cheung v. The King,118 the Privy Council held that the local court of Hong Kong has the jurisdiction over a crime (in this case, murder) committed on board the Chinese armed vessel, because the crime was committed in the territorial waters of Hong Kong. Lord Atkin stated that the correct view is that according to international law the court grants certain immunities or exemption to the ships and crew of another State. However, the said immunities of public ships are conditional and if there are serious breaches of the local law, or if the flag State waives the immunities, the territorial State can exercise the jurisdiction. Nonetheless, the public ships remain for many purposes an independent area of competence of the flag State. No local police power can be exercised on board the public vessel even if the local fugitives have taken refuse or any act of violence has happened there unless requested by the captain of the ship or the ambassador of the flag State, or it affects the peace and good order of the territorial State. This may, however, give rise to an area of concurrent jurisdiction of the flag State and the coastal State. But preponderant opinion and judicial practice in Anglo-American countries and in France accepts the local jurisdiction over offences where they affect the peace and good order of the port.119The immunity to foreign public vessels is granted to enable them to discharge their State functions efficiently. However, the entitlement of jurisdictional immunity of government ships used for commercial purposes is surrounded by controversy. The use of government ships or private ships by government for commercial purpose has raised the similar problems as the government engaged in trade or non-governmental activities and States are increasingly resorting_________________115 Ships entering under disguise or false pretences, termed as “spy” ships loose their immunity and are liable to confiscation and legal process. See Ingrid Delupis, Foreign warships and immunity for espionage, 78 AJIL (1984).116 See Art. 23 of the 1958 Territorial Sea Convention and Art. 30 of the 1982 Law of the Sea Convention. Article 31 of the 1982 Convention imposes international responsibility On the flag State for the loss resulting from the non-compliance with these laws and regulations.117 The theory finds its expression in Art. 11(1) of the 1958 High Seas Convention and Art. 97(1) of the 1982 Law of the Sea Convention.118 See op. cit. 114.119 In Wildenhus’s case 120 US I (1887), the US Supreme Court took the view that a murder by one crew member of another (both were Belgian nationals in this case) on board the foreign public ship (Belgian ship) while in dock in Jersey City, ipso facto

disturbed the peace of the port, and thus was subjected to local jurisdiction. The French law had been more explicit on the matter of jurisdiction, i.e., the matters affecting the interest of the State, matters of police, and offences by members of the crew against strangers even on board, were subject to local jurisdiction. But local jurisdiction would not apply in matters of internal discipline or offences not affecting strangers, except when the peace and good order of the port is affected, or specific assistance of local authorities was sought. See Brownlie, op. cit. 4, pp. 318-319.


to restrictive immunity rule, which is incorporated by many States in their statutes on sovereign immunities and in judicial practice.120There are certain international conventions which do not exempt the State-owned commercial ships from local jurisdiction of the territorial State. The 1926 Brussels Convention for the Unification of Certain Rules relating to the Immunity of State-Owned vessels (as supplemented by a Protocol of 1934) places sea-going vessels owned or operated by States, cargoes owned by them, and cargoes and passengers carried on government vessels on the same footing as private vessels (Arts. 1 and 2). But the ships of war, government yachts, patrol vessels, hospital ships, auxiliary vessels, supply ships, and other crafts owned or operated by a State, and used at the time a cause of action arises exclusively on governmental and non-commercial service are exempted from these provisions (Art. 3). Article 21 of the 1958 Territorial Sea Convention and Art. 28 of the 1982 Law of the Sea Convention make them subject to the criminal and civil jurisdiction of the coastal State while traversing the territorial sea. Article 30 of the 1972 European Convention on State Immunity also provides that the Convention “shall not apply to proceedings in respect of claims relating to the operation of sea-going vessels owned or operated by a contracting State or to the carriage of cargoes and of passengers by such vessels or to the carriage of cargoes owned by a contracting State and carried on board merchant vessels”.Article 16 of the United Nations Convention on Jurisdictional Immunities of State and their Property incorporates the similar rule. It provides:1. ... a State which owns or operates a ship cannot invoke immunity from jurisdiction before a court of another State... if, at the time the cause of action arose, the ship was used for other than government non-commercial purposes.2. Paragraph 1 does not apply to warships and naval auxiliaries nor does it apply to other vessels owned or operated by a State and used, for the time being, only on government noncommercial service.121A State also cannot invoke immunity from jurisdiction related to cargo on board a ship if it is being used for other than governmental non-commercial purposes (para 3). State is allowed to plead all measures of defence, prescription and limitation of liability which are available to private ships and cargoes and their owners (para 5). Thus, the restrictive approach towards the government commercial ships is more evident than in the matter of a foreign State or sovereign engaged in economic or non-governmental activities.

D. Foreign Armed ForcesGenerally, matters related to armed forces between States are governed by agreements or treaties and the circumstances under which they were admitted. In the absence of any express agreement, they enjoy certain measure of immunity under general international law. In the Schooner_________________120 See The Philippine Admiral, op. cit. 66. See also Sec. 10 of the British State Immunity Act, 1978.121 YblLC, Vol. 11-2(1986), p. 8.


Exchange,122 Marshall CJ observed that “a sovereign is understood to cede a portion of his territorial jurisdiction where he allows the troops of a foreign prince to pass through his dominions”. In such a case if the sovereign exercises jurisdiction he “would certainly be considered as violating his faith.... The grant of a free passage, therefore implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline and to inflict those punishments which the government of his army require”.In other words, the foreign armed forces entering into the territory of a State under licence are not subject to its jurisdiction unless the immunity has been waived by the foreign State. In principle, the visiting force has exclusive jurisdiction over matters of discipline and internal organisation, over offences committed while on duty. But if the crime is committed by a member of the force outside the base area and/or while not on duty, it has been strongly argued that the territorial State can exercise jurisdiction because it has an interest and substantial connection with the matter.123 This seems to be more plausible if the foreign forces are stationed there and are not merely passing through. The immunity is granted to preserve the integrity and efficiency of the force. This is also being done on grounds of courtesy and comity between the nations. But in civil matters where the harm has been caused to a local citizen, the territorial State has good reasons to exercise jurisdiction because in such cases it is not affecting the discipline of the armed forces nor it is in conflict with the laws of the sending State.Because of the uncertainty of the customary law, the States generally enter into special agreement to govern the questions of jurisdiction. Thus, in the case of NATO Status of Forces Agreement, 1951 (a multilateral agreement), the sending State has exclusive jurisdiction over all persons subject to its military law and committing offences against that law while in the receiving State. The receiving State has exclusive jurisdiction over any breach of its law which is not a breach of the law of the sending State also. But there is a wide area of concurrent jurisdiction when the breach is the violation of the laws of both the States, in which case, the sending State has the primary jurisdiction if the offence is committed while discharging official duty. In other matters, a treaty provides detailed rules to determine jurisdiction. In civil matters, no claim of immunity is to be pressed by the sending State except where members of the force act within their official duty. The scheme set under the NATO Agreement has been followed in many bilateral agreements.The exemption from jurisdiction is accorded only to visiting armed forces and not to a visiting armed band, unconnected with military operations, even though they might be taking orders from persons of military rank. The armed forces, invited by a territorial State to help in expelling hostile forces from its territory or suppress the uprising, enjoy the similar immunities as the forces visiting in other circumstances. Generally, in such cases, their position is regulated by a treaty, such as, India-Sri Lanka Accord of 1987 to send the Indian Peace-Keeping Forces to Sri Lanka to fight the secessionist forces there. The United Nations Peace-Keeping Forces_________________122 Op. cit. 52, at pp. 139-140.

123 See O’Connell, International Law. op. cit. 77, Vol. II (1970), pp. 879-886; L. Oppenheim, op. cit.1, Vol. I, p.461; Starke, op. cit. 60, pp. 229-230; Guggenheim, International Law, Vol. I, pp. 518-519; Brownlie, op. cit. 4, p. 373.


are similarly deployed under an agreement with the receiving State, regulating the powers and immunities of the armed forces, and the establishment of their bases.124

E. International InstitutionsInternational institutions, such as the United Nations, International Atomic Energy Agency, and the International Monetary Fund also enjoy certain measure of privileges and immunities from the jurisdiction of the territorial State. These immunities are conceded to them under international agreements, as in the ease of United Nations and its specialised agencies by the Conventions on the Privileges and Immunities of the United Nations, and of the Specialised Agencies of 1946 and 1947 respectively. To concede immunity under the municipal law, the States have taken legislative measures, viz., the United Nations (Privileges and Immunities) Act, 1947 of India, and the Federal International Organisations Immunities Act, 1945 of the United States. The subject has been dealt with in detail in Chapter 19.

IV. HIJACKING AND JURISDICTION WITH REGARD TO AIRCRAFTAny crime committed on board an aircraft in flight can always give rise to problems of jurisdiction among nations. With the addition of hijacking and other unlawful interference with civil aviation, such as placing the bomb on board the aircraft, the runway or the aircraft on ground, the roster of international and national crimes has become more serious. The customary international law does not provide any clear rules on jurisdiction to deal with the offenders. The extradition rules are equally inadequate to tackle the menace of these crimes.125 The international attempts in the form of conventions, however, have been made to control the crimes related to civil aviation.

A. The Tokyo ConventionThe 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft126 was the first major attempt to deal with the problem of jurisdiction over all crimes committed aboard a civil aircraft. The aircrafts used in military, customs or police services are kept out of the purview of the Convention. It applies in respect of offences127 committed or acts done by a person on board any aircraft registered in a contracting State, while that aircraft is in flight128 or on the surface of the high seas or of any other area outside the territory of any State (Art. 1(2)). The Convention does not lay down the concept of exclusive jurisdiction of any State,_________________124 On the UN Peace-keeping forces, see generally, D.W. Bowett, United Nations Forces (Stevens & Sons Ltd., London), 1964, pp. 428A67; D.S. Wijewardane, 41 BYblL 122 (1965-66).125 B. Cheng, 11 CLP pp. 225-257 (1958); L. Oppenheim, op. cit. 1, Vol. L, pp. 521 and 851; J.L. Brierly, op. cit. 14, p. 269.126 704 UNTS 219, came in force in 1969.127 Offences covered under the Convention are against penal law, or acts which may or do jeopardise the safety of the aircraft or of persons or property therein, or which jeopardise good order and discipline on board (Art. 1(1)).

128 For the purpose of the Convention, an aircraft is considered to be “in flight” from the moment power is applied for the purpose of take-off until the moment when the landing run ends (Art. 1(3)).


nor does it lay down a priority list among States competent to exercise jurisdiction. The State of registration of the aircraft has been accorded jurisdiction over crimes or acts committed on board. Other contracting States may also take such measures as may be necessary to establish their jurisdiction (Art. 3). However, a contracting State other than State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except when:a. the offence has effect on the territory of such a State;b. the offence has been committed by or against a national or permanent resident of such a State;c. the offence is against the security of such a State;d. the offence consists of a breach of any rules or regulations relating to the flight or manoeuvre of aircraft in force in such a State;e. the exercise of jurisdiction is necessary to ensure the observance of any obligation of such a State under a multilateral international agreement (Art. 4).Thus, the Convention gives effect to the principles of objective territorial, passive personality, and protective principle of jurisdiction to vest the State other than the State of registration to exercise its criminal jurisdiction over offenders. This is also an instance of concurrent jurisdiction.The aircraft commander enjoys special authority and powers to protect the safety of the aircraft, persons and property, and to maintain good order and discipline on board (Arts. 5 and 10). The Convention, however, does not contain any elaborate provisions on hijacking, except Art. 11 (unlawful seizure of aircraft), which obliges contracting States to take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft. The contracting State where the hijacked aircraft lands has to permit its passengers and crew to continue their journey and return the aircraft and its cargo to the persons lawfully entitled to possession. Coupled with this, the Convention imposes no obligation to extradite the offenders, but offences committed on board an aircraft, for the purpose of extradition, are to be treated as if they had been committed not only in the place in which they have occurred but also in the territory of the State of registration of the aircraft (Art. 16).

B. The Hague ConventionThe spate of hijacking in the late sixties129 made the States to act conceitedly to curb the menace of this new form of international terrorism that had threatened the international civil aviation. The United Nations General Assembly in its Resolution 2645 (XXV),130 condemned all acts of aerial hijacking or other interference with civil aviation, whether originally national or_________________129 There were about 30 successful hijackings in 1968 and 89 in 1969. The most famous incident of the Dawson’s Field Hijacking took place in Sept. 1970, in which Palestinian guerillas hijacked three civilian aircrafts belonging to Swissair, BOAC and TWA of Switzerland, the United Kingdom and the United States respectively. The aircrafts were blown up. The passengers and crew, over 400 in number, were released in stages in return for the release of a number of Palestinian guerillas.

130 Res. of Nov. 25, 1970, GAOR, 25th Sess. Supp. 28, p. 126; 9 ILM 1258 (1970). The Resolution was adopted by 105 to zero, with eight abstentions.


international. It called upon States to take all appropriate measures to deter, prevent or suppress such acts within their jurisdiction, and to provide for prosecution and punishment of persons who perpetrate such acts. The Security Council also asked States to take all possible legal steps to prevent further hijackings or any other interference with international civil air travel.131Closely at the heels of these resolutions, the International Civil Aviation Organisation (ICAO) adopted a Convention for the Suppression of Unlawful Seizure of Aircraft (commonly known as the Hague Convention) on December 16, 1970. Like the Tokyo Convention, this Convention was also not applicable to military, police or customs services. The Hague Convention, which is in force, is applicable only if the place of take-off or the place of actual landing of the aircraft, on board which the offence is committed, is situated outside the territory of the State of registration of that aircraft,132 and it is immaterial whether the aircraft is engaged in an international or domestic flight (Art. 3(2) and (3)).The Convention deals exclusively with the crime of hijacking, though the word “hijacking” does not find a mention in the Convention. Instead, an offence will be committed under the Convention by any person who on board an aircraft in flight (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person who performs or attempts to perform such an act (Art. 1). An aircraft is considered to be “in flight” from the moment when all its external doors are closed following embarkation, until the moment when any such door is opened for disembarkation. In the case of forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board (Art. 3).133 The State parties are obliged to make the offence punishable by severe penalties (Art. 2).In the matter of jurisdiction, non-registration State can also claim jurisdiction. Article 4 requires each State party to take such measures as may be necessary (i.e., by incorporating the crime of hijacking and its prosecution in its criminal law) to establish its jurisdiction over the alleged offender in the following cases:a. when the offence is committed on board an aircraft registered in that State;b. when the aircraft on board in which the offence is committed lands in its territory with the alleged offender still on board;c. when the offence is committed on board an aircraft leased without crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State.134_________________131 See SC Res. 286, of Sept. 9, 1970, which was adopted by consensus.132 Under the Anglo-American system, an aircraft has the nationality of the State where it is registered. In some countries, mainly the European countries, nationality of an aircraft is generally determined by the principal place of business.133 This is an improvement over the Tokyo Convention. Compare Art. 3(1) of the Hague Convention with Art. 1(3) of the Tokyo Convention.

134 On “dry leasing” situation incorporated in Art. 4(1)(c), see G. White, 6 Rev. ICJ 38 (1971). In such a case, the State of registration may not have any direct interest in exercising jurisdiction over the act of hijacking or any other act of violence (i.e., assault or killing), see S.K. Agarwala, Aircraft Hijacking and International Law (N.M. Tripathi, Bombay), 1973, pp. 40-45.


If the alleged offender is present in any State other than the State of registration, the State of landing or the State of the lessee, that State should take measures to establish its jurisdiction, if it does not extradite the offender (Art. 4(2)).135 It is obliged to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. Thus, the Convention has given effect to the principle of aut punire aut dedere (i.e., prosecute the offender or extradite him) to some extent, though the State is not obliged to extradite the offender.The Convention makes hijacking an extraditable offence and States parties are under a duty to include it in every extradition treaty to be concluded between them. If an extradition treaty already exists, hijacking is deemed to be included in that treaty. In case a contracting State receives a request from another contracting State for extradition when no extradition treaty exists between them, that State may consider the Hague Convention as the basis for extradition, which will be subject to other conditions provided by the law of the requested State. However, extradition treaties generally make exceptions for “political offences” and the nationals of the requested State. It is, therefore, doubtful whether a State would extradite an alleged offender since in majority of the cases, hijacking is motivated by political factors though in a few cases, it has been committed for private ends as well. Similarly, a State is not obliged to surrender its own national under customary international law.The contracting States are also to take all appropriate measures to restore control of the aircraft to its commander, and facilitate the continuation of the journey of the passengers and the crew, when it becomes practicable and return the aircraft and cargo to their lawful owners.

C. The Montreal ContentionThe Hague Convention, though a big achievement, was limited in its scope. It dealt solely with hijacking, and all other act of interference with civil aviation, such as sabotage, armed attack and other violent acts directed against the civil aviation were left outside its purview. It was, however, no less an important matter as numerous cases with grave consequences had taken place between 1949 to 1970, involving 22 aircraft and caused death of more than 400 passengers and crew.136 To address this problem, the ICAO adopted the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation at Montreal on September 23, 1971 (commonly known as the Montreal Convention).137_________________135 The provision is akin to universality principle of jurisdiction.136 See Agarwala, op. cit. 134, at p. 80. For example, on Feb. 21, 1970, a Swissair Coronado crashed in Switzerland after an explosion within 15 minutes of its take-off, 47 persons on board the aircraft died. On the same day, an explosion occurred in the mail compartment of an Austrian Caravelle shortly after take-off. The more recent example is of Aerial Incident at Lockerbie (Scotland) on Dec. 21 1988, when a bomb exploded on Pan-Am flight 103, causing the aircraft to crash. In 1985, Air India Flight 182 (Kanishka)

was blown up on 23 June 1985 while in flight from Montreal to Delhi, killing all the 329 persons on board.137 10 ILM 1151 (1971), in force 1973.


The Convention extended the area of the Hague Convention to cover the crimes committed against the safety of civil aviation committed while the aircraft is “in service” in addition to “in flight”. For the purposes of the Convention, five categories of acts were enlisted as crimes, if committed by a person or his accomplice unlawfully and intentionally, viz.,a. an act of violence against a person on board an aircraft ‘in flight’ if that act is likely to endanger the safety of that aircraft;b. destroying or causing damage to an aircraft ‘in service’, which rendered it incapable of flight or which is likely to endanger its safety in flight;c. placing or causing to be placed on an aircraft ‘in service’, a device or substance which is likely to destroy that aircraft or endanger its safety in flight;138d. destroying or damaging air navigation facilities or interfering with their operation, if any such act is likely to endanger the safety of an aircraft in flight;e. communicating the information known to be false, and thereby endangering the safety of an aircraft in flight139 (Art. 1).An aircraft is considered to be “in service” from the beginning of the pre-flight preparation of the aircraft by ground personnel or by the crew for a specific flight until 24 hours after any landing and it extends to the entire period during which the aircraft is “in flight” (Art. 2(2)).140 On the matters of jurisdiction and extradition, the Convention provides the similar rules as provided in the Hague Convention. A contracting State in whose territory any of the acts amounting to an offence listed in the Convention takes place, has to report to the Council of the ICAO about the circumstances of the offence, and measures taken in relation to the alleged offender, particularly extradition or other legal proceedings (Art. 13), and follows the principle of aut punire aut dedere. In the case Concerning Questions of Interpretation and Application of the 1971 Convention Arising from the Aerial Incident at Lockerbie, the Libyan Arab Jamahiriya asserted its right to try two Libyans under the Montreal Convention, who were indicted by the UK and the USA for their alleged involvement in the crash of Pan-Am flight 103 over Lockerbie, Scotland that killed 207 people in December 1988, and pressurising Libya to hand over those offenders. Libya prosecuted and imprisoned the two nationals in question. Libya filed two separate cases against the UK and the USA in the International Court of Justice in March 1992, requesting the Court to indicate provisional measures to prevent further action by the United Kingdom and the United States to compel it to surrender the alleged offenders before any examination of the merits of the cases. However, the Court, in April 1992, referring to the Security Council resolution 748 adopted under Chapter VII of the United Nations Charter, found that the circumstances do not mandate the exercise of its power to indicate such measures.141 The United Kingdom and the United States raised objections to the Court’s jurisdiction_________________138 On this aspect, see the case Concerning Questions of Interpretation and Application of the 1971 Convention Arising from the Aerial Incident at Lockerbie, Scotland (Libyan Arab Jamahiraya v. UK), (1992) ICJ Rep., p. 3 (Provisional Measures).139 This obviously covers the bomb hoaxes.

140 The “in flight'’ period starts from the moment when all the external doors are closed following embarkation until such doors are opened for disembarkation (Art. 2).141 Op. cit. 138.


and to the admissibility of the Libyan claims, contending that Libya’s claims under the Montreal Convention were “superseded” by the Security Council resolutions which take precedence over all rights and obligations arising out of the Convention. In February 1998, the Court, however, ruled that it did in fact have jurisdiction on the basis of Article 14, para. 1, of the Montreal Convention to hear Libya’s case on its merits, thereby rejecting the US and UK claim that only the Security Council could decide on the matter.142

D. Protocol to Montreal ConventionIn February 1988, a Protocol on Unlawful Acts of Violence in Airports Serving International Civil Aviation, supplementary to the Montreal Convention, was adopted at the International Conference on Air Law convened by the ICAO at Montreal.143 It widened the ambit of the 1971 Montreal Convention by including attacks against people at airports within the Convention. The adoption of the Protocol was necessitated due to the terrorist attacks at Rome and Vienna airports in 1986. The protocol adds to the definition of “offence” given in the Montreal Convention, including actions that are likely to endanger airport safety. It establishes universal jurisdiction over the offender and applies the Montreal Convention’s rules of custody, extradition, and prosecution. On the lines of the Montreal Convention, the Protocol stipulates severe penalties for unlawful acts of violence against persons at an airport serving or using international civil aviation, causing serious injury or death or causing destruction or damage to civil aviation facilities. The State where the alleged offender is found has the choice to prosecute or extradite him.With a view to further curb the crimes against civil aviation, the International Conference on Air Law held in February-March 1991 at Montreal, adopted the Convention on the Marking of Plastic Explosives for the Purpose of Detection. It requires States parties to prevent and prohibit the manufacture of unmarked explosives in their territory as well as movement of such explosives into or out of their territory. All explosives are to be marked by manufacturers with any one of the four “detection agents” agreed upon at the Conference. All unmarked explosives, not held for military purposes, are to be destroyed within a three-year period and_________________142 See case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, [Preliminary Objections] (1998) ICJ Rep., p. 4. The case is yet to be decided on merits. In the meantime, diplomatic efforts have overtaken the Court’s proceedings, with the US and UK agreeing to an arrangement that they had refused earlier: the extradition of the suspects to a “neutral” third country to be tried by a neutral court. In April 1999 Libya transferred the two suspects to a US Airbase in the Netherlands to be tried by a three-judge Scottish court applying Scottish law. Libya also received assurances that the trials will not be used as a means to implicate the Government of Libya. If found guilty, the suspects were to serve prison sentences in Glasgow, in the UK, under the UN supervision. The case, however, has raised crucial questions about the relationship between the ICJ and the Security Council, though the Court made it clear that it did not in

any way seek to negate the applicability of Security Council resolutions. However, having decided that there was a legal dispute, the Court as the “primary” judicial organ of the UN was simply fulfilling its obligations under the UN Charter without coming into conflict with the Security Council.143 The Protocol came into force on Aug. 6, 1989.


those for military or police functions, within 15 years. An International Explosives Technical Commission, set up under the Convention, monitors the implementation of the provisions of the Convention.144In spite of these instruments, including the three conventions of the Tokyo, the Hague and Montreal on hijacking and other violent acts against the safety of civil aviation, these unlawful acts have not been eradicated totally and are committed unabated. The reasons for this state of affairs are manifold. Many nations have yet to ratify these conventions. The strict adherence to the provisions on extradition or prosecution has not been very successful because of the “political nature” of these acts. The Hague and Montreal Conventions provide only severe penalties without prescribing the minimum punishment and the time frame within which the prosecution should take place, with the result that most of the time such crimes go unpunished. Trial and prosecution have been left to the jurisdiction of the national law. There is absence of any sanction against the State where the offender is found if it fails to extradite or prosecute the offender.145 The situation can be salvaged by providing a minimum punishment for these heinous crimes and the speedy trial within a specified time frame. There should be strict adherence to the principle of aut punire aut dedere. States should return the aircraft at the earliest to its lawful owners and the passengers should be helped in continuing their journey. Failure to abide by these provisions should be met with effective sanctions.146In the absence of an effective multilateral framework, the States may conclude bilateral treaties or take unilateral action under its laws, not to allow a country to operate within its territory which shelters the hijackers or other offenders against the safety of civil aviation. The unilateral action may, however, come into conflict with a State’s international treaty obligations.

E. Aircraft Hijacking and IndiaIndia is a party to all the three international conventions on hijacking, viz., the Tokyo, the Hague and the Montreal Conventions.147 It, however, did not ratify these conventions till it became subject to series of hijacking incidents in which the Indian airliners were taken to Pakistan, a country sympathetic to the demands of the hijackers. In the first incident which took place in January 1970, the hijacked Indian aircraft was taken to Lahore (Pakistan) and after the hostages were released by the hijackers, the plane was blown up. The authorities in Pakistan remained_________________144 The Convention entered into force on 21 June 1998. Currently, there are 135 parties to the Convention.145 In the Pan-Am crash over Lockerbie, the Security council imposed sanctions against Libya, see SC Res. No 748 of March 31, 1992; SC Res. 731 on 21 January 1992.146 In 1978, the seven chief industrial countries—Canada, France. FRG, Italy, Japan, UK and the US, at their Summit Meeting in Bonn, adopted a Declaration on International Terrorism (17 ILM 1285 (1978)), in which they agreed that “in cases where a country refuses to the extradition or prosecution of those who have hijacked an aircraft and/or does not return such aircraft”, action would be taken to cease all flights to and from that country and its airlines, see S.C. Chaturvedi, “Hijacking and the Law”, 11 UIL 89 at p.

101 (1971); M. Akehurst, “Hijacking” 14 UIL 81 at p. 85 (1974). See also the European Convention on the Suppression of Terrorism, 1976, in 15 ILM 1272 (1976).147 These conventions are effected by the Tokyo Convention Act, 1975, the Anti-Hijacking Act, 1982 (to give effect to the Hague Convention and the Montreal Convention).


merely mute spectators to this incident. The hijackers were later granted asylum by Pakistan. They were neither extradited, nor were they prosecuted. This led India to suspend all rights of over-flight to Pakistani aircraft through Indian airspace with immediate effect, against which Pakistan made a complaint to the Council of the ICAO, which found the Indian action not in consonance with its obligation under the Chicago Convention, 1944, and the Transit Agreement, 1944. India appealed to the International Court of Justice (ICJ) against the said decision of the Council of the ICAO. The ICJ also observed that India does not have a right to suspend a multilateral treaty unilaterally and the ICAO Council has the jurisdiction in such cases.148In subsequent hijacking incidents of Indian aircrafts, however, Pakistan returned the aircraft and sent back the passengers, but in no case the hijackers were extradited. In the September 10, 1976 incident, the hijackers were arrested by Pakistani authorities, but no further action was taken.The five hijackers involved in the September 29-30, 1981 incident, were tried by a Special Court constituted by the Pakistan Government in March 1984, under the Anti-Terrorists Act. The nine hijackers involved in the July 1984 incident were also tried, out of whom three were awarded death sentence, two were given life imprisonment and four were acquitted. All the convicted hijackers in the 1981 and 1984 incidents have appealed to the Lahore High Court against their conviction, alleging that their trial by the Pakistan Court is illegal since the crime was committed in the Indian airspace. The appeals have yet to be decided finally.149The latest hijacking incident involving an Indian aircraft is the Indian Airlines Flight 814 en route from Kathmandu, (Nepal) to Delhi, (India) when it was hijacked by five Pakistani nationals on 24 December 1999. Harkat-ul-Mujahideen, a Pakistan-based terrorist group, was held responsible for the hijacking. After touching down in Amritsar, Lahore and Dubai, the hijackers forced the aircraft to land in Kandahar, Afghanistan. The hijackers released 27 of 176 passengers in Dubai but fatally stabbed one and wounded several others. The hijacking lasted for seven days and ended after India released three Islamic militants. Instead of arresting and trying the hijackers, the five hijackers and the three released militants were provided a safe passage by the Taliban.1'0_________________148 See the ICAO Jurisdiction case (1972) ICJ Rep., p. 46.149 See H.O. Agarwal, International Law, 2nd ed. (Allahabad Law Agency), 1992, p. 514.150 en.wikipedia.org/wiki/Indian_Airlines_Flight_814

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CHAPTER 8

Diplomatic and Consular Relations

I. INTRODUCTORYMutual relations among States at international level are normally conducted through diplomatic missions, which are invariably accredited permanently by a State to other countries. There are also semi-permanent or regular representation to international organisations, such as the United Nations and other inter-governmental organisations, special missions to represent States at international conferences, or to conduct ad hoc diplomacy. They provide an important link between the country which sends them and the country to which they are accredited. Diplomatic envoys are the authorised agents to help States in performing the acts of diplomacy, maintaining mutual relations, communicating with each other, or carrying out political or legislative transactions.State’s representation in the territory of foreign States is a very old practice.1 But it was neither uniform nor permanent. The permanent appointments of diplomatic envoys began only from the seventeenth century. However, the rights, duties, privileges, and duties of diplomatic staff were mainly based on reciprocity. In 1815, the Congress of Vienna clarified and codified the law relating to classification, order and precedence of diplomatic envoys. Its efforts led to “Regulation of Vienna”. However, it failed to bring the desired uniformity in their rights, duties, privileges and immunities. But in 1961, this was done by an International Conference at Vienna which adopted the Vienna Convention on Diplomatic Relations (the 1961 Vienna Convention). The Convention, in most part, is declaratory of the customary law and in other parts constitutes a progressive development of the law by filling in gaps or by spelling out rules where the State practice was uncertain or inconsistent. The Convention has made it clear that “questions not expressly regulated by the provisions” of the Vienna Convention will continue to be governed by customary international law.2 India gave effect to the Convention and matters related therewith through the Diplomatic Relations (Vienna Convention) Act, 1972._________________1 References of granting exemptions to diplomatic representatives in India are found even in the epic sagas of Ramayana and Mahabharata, see S.S. Dhawan, International law in the age of Ramayana, National Herald, Jan. 28, 1973, p. 1.2 Preamble to the Vienna Convention. See the text in 500 UNTS 95; 55 AJIL 1064 (1961). The Convention came into force in April 1964. It has become almost universal in membership, with 186 States as members in March 2010. In the case concerning United States Diplomatic and Consular Staff in Tehran (1980) ICJ Rep., p. 3, the ICJ observed that the Convention is the evidence of generally accepted rules of international law, see at p. 31, para. 62 and pp. 30-43.

Page 205 DIPLOMATIC AND CONSULAR RELATIONS

To regulate other aspects of diplomatic intercourse among States, the Vienna Convention on Consular Relations, 1963 was adopted under the auspices of the United Nations.3 In 1969, the Convention on Special Missions was adopted by the United Nations General Assembly.4 The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomats was adopted in 1973.5 This was followed by the adoption of the Convention on the Representation of States in their Relations with International Organisations of Universal Character on March 14, 1975, at Vienna.6

II. DIPLOMATIC RELATIONSA. Legal Aspects of Diplomatic RelationsThe Vienna Convention in Art. 2 declares that “the establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent” which may be expressed informally. Though every independent State has the capacity to establish diplomatic relations, there is no such right of legation vested in a State under international law. The establishment of diplomatic relations need not be accompanied by the establishment of permanent missions, just like recognition of a State need not always be followed by the establishment and maintenance of diplomatic relations. Normally the establishment of diplomatic relations is manifested in the establishment of permanent missions.

1. Functions of a diplomatic missionArticle 3 of the Vienna Convention is very comprehensive which states:1. The functions of diplomatic mission consist, inter alia, in:(a) representing the sending State in the receiving State;(b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;(c) negotiating with the government of the receiving State;(d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the government of the sending State;(e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.2. Nothing in the present Convention shall be construed as preventing the performance of consular relations by a diplomatic mission.Under customary international law, diplomatic missions have three functions to perform, viz., to protect the interests of the sending State and its nationals, to negotiate with the government of the receiving State, and to report about the conditions of the receiving State to their States._________________3 For the text of the Convention, see 57 AJIL 993 (1963). The Convention came into effect in March 1967.4 GA Res. 2530 (XXIV), Dec. 8, 1969.5 GA Res. 3166 (XXVIII), Dec. 14, 1973.6 J.G. Fennessy, 10 AJIL, pp. 62-72 (1976).


2. Classification and precedence of diplomatic agentsThe Vienna Convention (Art. 14) classifies heads of mission into three categories, namely: (i) ambassadors or nuncios (or legates appointed by the Pope) accredited to heads of State, and other heads of mission of equivalent rank; (ii) ministers, envoys and internuncios, accredited to heads of State; (iii) charges d'affairs accredited to ministers for foreign affairs. Whereas ambassadors and legates are the diplomatic agents of the first category and considered to be representing the person of their sovereign, charges d'affairs are diplomatic agents of the last category. The Convention provides that except for precedence and etiquette, there is hardly any distinction between diplomatic agents and their privileges and immunities (Art. 14(2)). Heads of mission take precedence in their respective classes in the order of the date and time of taking up their functions (Art. 16(1)).There are ministers or envoys that may be sent on temporary assignment, which were earlier designated as “Extraordinary” and “Plenipotentiary” with full powers to transact business on behalf of the head of the State. But now the terms are used for temporary as well as resident envoys. There are also envoys on ad hoc missions, usually carrying “full powers”, stating the extent of their authority in any negotiations with the receiving State or at an international conference.

3. Accredition of heads of mission and appointment of other membersSince diplomatic relations between States and establishment of permanent missions is a matter of mutual agreement, it is the States concerned which decide about the category of diplomatic representation they want to have. Before an individual is appointed as Head of the mission, the consent of the receiving State is obtained, which may refuse to accept the appointment without specifying the reason (Art. 4). It is for this reason, generally that the accrediting State ascertains the acceptance of a particular person as the diplomatic envoy from the receiving State. The head of mission has to present Letters de Creance (letter of credence) about his appointment to the receiving State at a formal ceremony.The sending State may freely appoint the other members of the staff of the mission, except the military, naval or air attaches who may be appointed after their names have been approved by the receiving State (Art.7).7 Further, in the absence of a specific agreement as to the size of the mission, the receiving State may require that the size of the mission be kept within limits considered by it to be reasonable and normal, by taking into account the circumstances and conditions in the receiving State and the needs of the particular mission (Art. 11). However, to check the subjectivity in any such decision, and avoid any discriminatory action, it is required that “the receiving State may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category” (Art. 11(2)).Nevertheless, the receiving State may at any time and without explaining its decision, notify the sending State that the head of the mission or any member of diplomatic rank accredited_________________7 This provision is, however, qualified by Art. 10 and failure to notify the receiving State destroys the appointee’s immunity.


to the mission is persona non grata (person no longer acceptable) or that any other member of the staff of the mission is not acceptable. In such a case, the sending State is obliged to recall that person or terminate his functions with the mission. If the sending State refuses or fails to act within a reasonable time, the receiving State may refuse to recognise the concerned person as a member of the mission, and thus his immunities and privileges will come to an end. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State (Art. 9).

B. Rights, Privileges and Immunities of Missions and Diplomatic Agents1. Rationale of privileges and immunitiesDiplomatic relations of the States are conducted in the territory of the receiving State with its specific permission, which entitle diplomatic missions and their staff to certain privileges and immunities, and enable them to function smoothly.Numerous theories are in vogue regarding the basis for diplomatic immunities and privileges. The International Law Commission (ILC) has listed a few of them: (i) The “exterritoriality theory”, which regards the premises of the mission representing an extension of the territory of the sending State. This theory is almost discarded now.8 (ii) The “representative character” theory, that considers the diplomatic mission as personifying the sending State and the diplomat as representative of the foreign sovereign, hence there are privileges, (iii) The ''functional necessity theory”, which justifies the privileges and immunities as being necessary to enable the mission to perform its functions. The Vienna Convention is the sum total of all the three theories and the last one has been generally followed where the customary international law had failed to give any clear pointer.9 It is based on the principle that diplomatic agent should be free to perform official business on behalf of his country without any disturbance, interference or interruption.

2. Inviolability of the missiona. Premises: The Vienna Convention in Art. 22 set out the basic proposition in this regard and states:l. The premises of the mission10 shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission._________________8 See the decision of the Supreme Court of Australia in R. v. Turnbull, ex-parte Petroff 16 FLR 438 (1971); J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 424.9 See II YblLC, pp. 94-95 (1958). According to Brownlie, the immunities are related to the double aspect of diplomatic representation: the sovereign immunity attaching to official acts of foreign States and more significantly, elements of “functional” privileges and immunities of the diplomatic staff and premises, see I. Brownlie, Principles of International Law, 7th ed. (Oxford University Press, Oxford), 2008, p. 351.

10 The “premises of the mission” are “building or parts of buildings and the land ancillary thereto used for the purposes of the mission including the residence of the head of the mission”, Art. 1 (i) of the Vienna Convention.


2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, attachment or execution.The inviolability of the diplomatic mission, which is a part of the customary international law, is an absolute rule, which cannot be violated even for serving any writs through mail. In India, under Sec. 8 of the Diplomatic Relations (Vienna Convention) Act, no public servant or agent of the Central Government, a State Government or any public authority can enter the premises of a diplomatic mission for the purpose of serving legal process, except with the consent of the head of the mission.However, Art. 22 of the Convention leaves open the issue of waiver of obligations stated therein to enter the premises under a pressing emergency, such as fire, epidemic, or force majeure (e.g., earthquake etc.).11 Further, the right to enter in case of “abuse” of the premises by the staff of the embassy has not been clearly dealt with. Article 41(3) of the Convention stipulates that the premises of the mission must not be used “in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of international law or by any general agreements in force between the sending and the receiving State”.This provision has clear application to the case which arose between Iraq and Pakistan in 1973. On the suspicion that the arms are smuggled in Pakistan, the Iraqi Ambassador was called by the Ministry of Foreign Affairs of Pakistan and was told that arms were being brought into Pakistan under diplomatic immunity and there was evidence that they were stored in the Iraqi Embassy in Pakistan. On the refusal of permission for a search by the ambassador, the premises were raided by the armed policemen in his presence, and huge quantity of arms stored in crates was recovered. Pakistan sent a strong protest to the Iraqi Government, and declared the Iraqi Ambassador and an attache persona non grata and recalled their own ambassador. Though this was a clear breach of Art. 41(3), such a forcible entry can be justified only in an extreme case of abuse, and in this case it could be justified ex post facto.In another incident, the United Kingdom severed diplomatic ties with Libya in 1984, after the Libyan People’s Bureau Incident, when firing from the Libyan Bureau in London killed one police personnel and injured 11 demonstrators. The demonstrators were protesting against Colonel Gaddafi’s Government. After the incident, the Bureau building was evacuated, it was searched and guns were found.12The Convention does not have any provision on diplomatic asylum because it is doubtful whether a right to grant diplomatic asylum for political or other offenders exists under general_________________11 In Peru, commandos entered the Japanese embassy which was under siege by the rebels from Dec. 17, 1996-April 22, 1997, to rescue the hostages, see en.wikipedia.org/wiki/Japanese_embassy_hostage crisis12 56 BYbIL 435 (1985): cited in Harris, Cases and Materials on International Law, 7th ed. (Sweet & Maxwell, London), 2010, p. 367.


international law.13 Nonetheless, it may be allowed by bilateral agreements between the parties under Art. 41(3). In the case of violation of the obligations and “abuse” of the premises, probably the remedy available to the receiving State is that of severing of diplomatic relations.The “special duty” imposed under Art. 22(2) has been stated to be a part of customary international law, and failure to discharge it entails the international responsibility of the receiving State. In the United States Diplomatic and Consular Staff in Tehran case,14 thousands of Iranian students attacked the United States Embassy in Tehran on November 4, 1979, and other consulates at Tabriz and Shiraz were taken over by them forcibly. Fifty-two United States nationals (50 were diplomatic and consular staff, and two were private persons) were kept hostages (who were subsequently released in January 1981, through a negotiated settlement between the two countries), and they also seized the mission’s archives and documents. The Iranian security forces did not stop the demonstrators. The International Court of Justice observed that the Iranian Government failed to ensure the protection of the United States embassy and consulates, which was in violation of the Vienna Conventions of 1961 and 1963 on Diplomatic and Consular Relations respectively,15 for which Iran was “under an obligation to make reparation” to the United States.16In a similar incident in 1965, the United States Embassy in Moscow was attacked by students. The Soviet Union expressed regret over the incident and promised to take stricter measures of protection. It also agreed to pay compensation for property loss.17In 1990, when Iraqi forces, after annexation of Kuwait, entered the premises of foreign embassies of France and some other countries, and took away the diplomats and other nationals who were present on those premises, the United Nations Security Council considered the action as “a flagrant violation of international obligations” and stated that Iraq shall be fully responsible for any use of violence against diplomatic missions or their personnel.18 On the other hand, in 1999, the Chinese embassy in Belgrade was hit by a United States missile during Kosovo crisis. The United States apologised and agreed to pay $28 million compensation. China also agreed to pay $2,876 million compensation for the damage done to the United States embassy in China by rioting as a reaction to Belgrade incident.19The receiving State is under a duty to respect and protect the premises of the mission, together with its property and archives, even in case of armed conflict (Art. 45(1)). The property of the mission and its means of transport are immuned from search, attachment or execution._________________13 See the Asylum case (1950), ICJ Rep., p. 266. Such a right is recognised by Latin American countries, as is evident from the Montevideo Convention on Political Asylum, 1933, see in M.O. Hudson, International Legislation, Vol. VI (West Publishing Co.), 1931, p. 607. Harvard draft (Art. 6) also does not favour diplomatic asylum, see Harvard Research Draft on Diplomatic Privileges and Immunities, 1932, 26 AJIL Supp. 19 (1932).14 See op. cit. 2.

15 Iran was found to be in breach of Arts. 22(2), 24, 25, 26, 27 and 29 of the 1961 Convention and Arts.5 and 36 of the 1963 Convention.16 Iran did not participate in the proceedings, nor did it comply with the Court’s judgment.17 7 Whiteman 387.18 SC Res. 667, Sept. 16, 1990.19 See Harris, op. cit. 12, at p. 367.


b. Archives and Documents: The Vienna Convention in Art. 24 establishes the inviolability of the mission’s archives and documents “at any time and wherever they may be”. They are not subject to legal process. However, the Convention fails to define the term “archives”, but the 1963 Convention on Consular Relations provides that “consular archives” includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safe-keeping.c. Freedom of Communication: The receiving State is under an obligation to “permit and protect free communication on the part of the mission for all official purposes” (Art. 27(1)). The official correspondence of the mission shall be inviolable (para. 2) and the diplomatic bag20 shall not be opened or detained (para. 3). The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents intended for official use (para. 4).Even though now it is a well accepted international practice, but it is doubtful under the Convention that whether the receiving State can open or demand the right to search the bag in case there is a doubt about its contents.21 Such a right, however, existed before 1961.22 In 1984, Mr. Dikko, a minister in the deposed Nigerian Government, was kidnapped in London and found drugged in a crate at Skansted Airport, awaiting to be airlifted to Nigeria, to face criminal charges there. There was no “visible external mark” on the crate as required under Art. 27(4), though labelled “diplomatic baggage”. The customs officials, alerted by emitting odours, opened the crate. It may be stated, ex post facto, that in this case there was no violation of the provisions of Art. 27, but it is doubtful if a State can exercise such a right under the Convention, though quite often resorted to by States in doubtful cases.23To solve such problems and put the law on a firmer footing, the International Law Commission, in 1989, adopted the Draft Articles on the Status of the Diplomatic Courier and the Diplomatic Bag not Accompanied by Diplomatic Courier. It provides in Art. 28(2) that if the receiving or transit States have serious doubts about the contents of the diplomatic bag, they may request that the bag be opened in their presence by the representative of the sending_________________20 The diplomatic bag consists of packages, sacks, or possibly trunks and is usually sent in the custody of a diplomatic courier “who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag”, Art. 27(6) of the Vienna Convention. There is no limit on the size or shape of the bag.21 The UK Government which was not conducting any scanning of the diplomatic bag earlier, has changed its stand since 1985, and stated that it would be ready “to scan any bag on specific occasions where the grounds for suspicion are sufficiently strong”. At such an occasion, a member of the relevant mission is invited to be present. Diplomatic Immunities and Privileges, Misc. 5 (1985), United Kingdom Command Papers, 9497, p. 21.22 Eileen Denza, Diplomatic Law, 3rd ed. (Oxford University Press), 2008, p. 227.

23 See A. Akinsanya, 34 ICLQ 602 (1985). In 1964, Italy resorted in opening a trunk marked “diplomatic mail” sent by the Egyptian embassy in Rome to Cairo. It had an Israeli national, found drugged and gagged inside it. The First Secretary and two other members of the Egyptian missions were declared persona non grata, but the Egyptian Ambassador claimed ignorance and deplored the incident, see in Harris, op. cit. 12, p. 339 for other cases.


State. If the request is refused, the bag shall be returned to its place of origin.24 In India, since 1954, the government has evolved a method for smooth handing of the diplomatic bag. The missions or their agents collect the bag on producing the katcha bill. The missions are to cooperate in the proper identification of the diplomatic bag, which should bear a clear mark of “Diplomatic/ Official” and accompanied by a certificate.25Like the diplomatic bag, the diplomatic courier is also protected in the performance of his official functions, and enjoys personal inviolability and is not liable to any form of arrest or detention by the receiving State (Art. 27(5)). The courier, otherwise, does not enjoy any personal immunity from local jurisdiction of the receiving State, nor is his personal bag exempted from search.26 However, he must carry a courier’s passport.The obligations in relation to diplomatic bag and diplomatic courier are equally binding on third States. They shall accord the similar freedom and protection to the official communication and correspondence as are provided by the receiving State. The diplomatic couriers and diplomatic bags in transit would enjoy the similar inviolability and protection as the receiving State is bound to accord (Art. 40(3), Vienna Convention).

3. Diplomatic agentsa. Personal Inviolability: Article 29 of the Vienna Convention lays down that:The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.Thus, it is the duty of the receiving State to protect the diplomatic agent and prevent any action directed against him. The “appropriate steps” required of the receiving State in this regard must be determined in the light of relevant circumstances. Submitting to the demands of kidnappers to save a diplomat may not be covered under “appropriate steps”.27 In Democratic Republic of the Congo v. Uganda case,28 the International Court of Justice declared admissible the counterclaim of Uganda that Congolese soldiers had threatened and maltreated members of the Uganda diplomatic mission in Kinshasa in violation of Article 29 of the Convention. The Court held that the alleged violation related to rights owed directly to Uganda and thus there was no need for local remedies to be exhausted by the diplomats who were victims. Similarly, in Hostage case,29 the International Court of Justice, found the inaction of the Iranian government_________________24 GAOR. 44th Sess., Supp. 10, p. 26 et seq. In Art. 28(1) of the Draft it has been provided that the “diplomatic bag shall be inviolable... it shall not be opened or detained and shall be exempt from examination directly or through electronic or other technical devices”.25 See Arun Chaturvedi, Diplomatic laws and Indian State practice, 25 IJlL, pp. 62-63 (1985).26 See Paul G. Booth (Ed.), Satow's Guide to Diplomatic Practice (1979), p. 118.27 In 1970, the German Ambassador to Guatemala was kidnapped and the Guatemala Government’s failure to submit to the demands of the kidnappers led to the murder of the ambassador. The Guatemala Government did not accept the German accusation that Guatemala had failed to protect the ambassador. The obligation to protect

does not entail to surrender to illegal demands made by kidnappers, see The Times, April 7, 1970.28 (2005) ICJ Rep. (judgement of 19 Dec. 2005).29 Case concerning United States Diplomatic and Consular Staff in Tehran, (1980) ICJ Rep. 3.


in the detention of diplomatic and consular staff in the US embassy by the students as a ‘clear and serious’ violation of Art. 29 and other provisions of the Vienna Convention, for which Iran was “under an obligation to make reparation” to the United States.However, in contrast to the case of inviolability of mission premises, there is no provision against the rule of inviolability of diplomatic agents in grave emergency situations, such as a drunken diplomat with a leaded gun in a public place.30 In such cases, he may be detained by the receiving State in the interest of peace and tranquility of the State. But otherwise, where he abuses his privileges or immunities and his activities are a threat to the stability and security of the receiving State, he may be declared as persona non grata. It is doubtful whether he can be arrested for conspiring against the receiving State.31

b. Inviolability of Residence and Property: Article 30 of the Vienna Convention states:1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.2. His papers, correspondence, and ... his property shall likewise enjoy inviolability.The principle of inviolability applies even to the temporary residence of the diplomatic agent. In the case of property, the inviolability does not apply where there is an exception to his immunity from civil jurisdiction.

c. Immunity from Jurisdiction: Under customary international law, diplomatic agents enjoy jurisdictional immunity from the local courts of the receiving State. However, immunity from jurisdiction does not automatically accord immunity from liability under substantive law, for once the exemption from liability is effectively waived, liability may arise. Immunity is from suit and not from liability. The Vienna Convention restates this position.Article 31(1) of the Vienna Convention provides that a “diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State”. A diplomatic agent enjoys total immunity, without any qualification, from the jurisdiction of the local courts of the receiving State, and even if he is guilty of serious or persistent breaches of the substantive law he can be declared persona non grata but cannot be subjected to its criminal jurisdiction. The receiving State may also ask for the waiver of the immunity to the sending State, and in the case of officers of lower rank, to the head of the mission.A diplomatic agent also enjoys immunity from civil and administrative jurisdiction, except in the case of:(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions (Art. 31(1))._________________

30 See Brownlie, op. cit. 9, p. 358; Denza, op. cit. 22, pp. 267-268.31 In 1712, Ambassador of Sweden in England, George Gyllenborg was arrested on the charge of conspiring against the King of England.


A diplomatic agent, however, cannot indulge in any professional or commercial activity in the receiving State (Art. 42) except with the specific permission of the receiving State. Thus, the exception in Art. 31 (1)(c) applies to: (i) cases in which the receiving State allows such an activity, except under Art. 42, and (ii) to such activities undertaken by members of the staff not of diplomatic rank.A diplomatic agent is not obliged to give evidence as a witness (Art. 31(2)) unless he waives this immunity and present himself before the court. In that case, he will be deemed to be within the jurisdiction of the court. He also cannot be subjected to measures of execution except in cases falling under sub-paras, (a), (b) and (c) of Art. 31(1) provided that the measures concerned can be taken without infringing the inviolability of his person or his residence (Art. 31(3)). Article 32(4) further reinforces this rule relating to execution, which states, “Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary”.It is, however, “the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State” (Art. 41(1)). They should conduct official business with or through the Ministry of Foreign Affairs or any other agreed ministry of the receiving State. They shall not practice for personal profits and profession or commercial activity in the receiving State (Art. 42). Whether a person qualifies for these privileges and immunities is generally decided by the State Department of the receiving State whose decision will be binding on the local courts.32The immunity of a diplomatic agent for official acts is permanent since it is attributed to the sending State, but for private acts, the immunity is contingent, which comes to an end when the person concerned leaves his post. Article 39(2) of the Vienna Convention, which relates to the duration of immunities, states that “with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist”. These official acts may be described as Acts of State, which make them non-justiciable, and may include even a road accident involving the car while in the course of discharging official duties, though such acts may be separated from Acts of State, and can become amenable to local laws if the relevant immunity is waived.33

IMMUNITY FROM JURISDICTION IN INDIAIn India, Sec. 8 of the 1972 Diplomatic Relations Act provides, “Whether a person is entitled to any privilege or immunity under the Act, a certificate issued by or under the authority of the Secretary of the Government of India in the Ministry of External Affairs will be the conclusive evidence in this regard”._________________32 There is a general practice, followed by most countries, that the mission deposits periodically with the foreign office of the receiving State the list of personnel for whom the exemption from territorial jurisdiction is claimed, which may include beside head of the mission, the secretaries, counsellors, trade attaches etc.33 Brownlie, op. cit. 9, p. 361.


But to implead a diplomatic agent or mission, normally no writ or summons can be issued and permission of the government is a pre-requisite in this regard. Article 86 of the Civil Procedure Code, 1908, governs the suits against the foreign State and diplomatic agents. For filing a suit, consent of the Government of India, certified in writing by a Secretary to the Government is a precondition. However, refusal to give consent by the Central Government to sue a diplomatic agent has become a justiciable issue.In Century Twenty One (P) Ltd. v. Union of India,34 the Ambassador of Afghanistan had rented residential premises on lease from a private party and refused to vacate it after the expiry of the lease. On the Indian Government’s refusal to give consent for filing the suit for the recovery of the rent, the petitioner filed a writ under Art. 226 of the Constitution before the Delhi High Court for the enforcement of his fundamental right to hold and dispose of the property. The Court, after making a distinction between the sovereign acts and commercial activities of a foreign sovereign government, termed the renting of the private premises as commercial activity of a foreign sovereign government. The Court directed the Government of India to accord sanction to the petitioner to sue the Afghan Ambassador for the recovery of the arrears of the rent.In Harbhajan Singh v. Union of India,35 the petitioner sought permission of the Government of India to sue the Algerian Ambassador in Delhi for the recovery of his dues for the reconditioning and renovation work done at the Algerian Embassy, after his representation to the ambassador failed to elicit any response. On the refusal of the Ministry of External Affairs to grant permission on “political grounds”, the petitioner brought a writ petition before the Supreme Court under Art. 32 of the Constitution of India. The government pleaded that under Sec. 86(1) and (2) of the Civil Procedure Code, 1908, it has the “discretion to refuse” the permission. The petitioner had failed to make out a prima facie case under these provisions of the Civil Procedure Code.The Supreme Court observed that it is for the judiciary to adjudicate whether there is a prima facie case or not. It further observed that there is a dispute about the petitioner’s claim which has not been judicially determined. If a foreign State in this country fulfils the conditions stipulated in Sec. 86(2), it is liable to be sued in this country.36 The Court directed the Union of India to reconsider the matter and pass a reasoned order in accordance with the principle of natural justice, keeping in view the trend and development of international law.37It has, nevertheless, been remarked that to “frustrate their (i.e., the Indian citizens) grievances in the name of diplomatic immunities hardly contributes to the dignity of foreign_________________34 AIR 1987 Delhi 124.35 AIR 1987 SC 9.36 Section 86(2) of the CPC provides, “consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify in the case of any suit or class of suits, the Court in which the foreign State may be sued, but it shall not be given, unless it appears to the Central Government that the foreign State:a) has instituted a suit in the Court against the person desiring to sue it; or

b) by itself or another, trades within the local limits of the jurisdiction of the Court; orc) is in possession of immovable property situated within those limits and is to be sued with reference to such property or for money charged thereon; or has expressly or impliedly waived the privileges accorded to it by this section”.37 See op. cit. 35, at p. 15.


missions. The Government of India is therefore well advised to evolve a code to resolve just claims of Indian citizens in this regard and the foreign missions be persuaded to adhere to such a course of action”.38 But the fact remains that even after obtaining the necessary consent from the Central Government to sue the foreign diplomat, the petitioner may not succeed because the diplomat may claim immunity from the court’s jurisdiction and further, claim immunity from the execution of the decree of the court. A code of conduct can be devised by nations to deal with such cases.

d. Immunity from Taxes, Customs Duties and Other Dues: A diplomatic agent is immuned from the payment of taxes, customs duties and other dues (Arts. 34 and 36, Vienna Convention). He is exempt from all dues and most forms of taxation whether national, regional or local but he will be liable to (i) indirect taxes which are normally incorporated in the price of goods or services, such as sales tax on goods he buys or service charges taken by hotels; (ii) dues and taxes on private immovable property situated in the territory of the receiving State, such as house tax and electricity bills; (iii) estate, succession or inheritance duty, levied by the receiving State, subject to the provisions of Art. 39(4), i.e., the property he holds in his personal capacity, having no bearing to his functions as a diplomat; (iv) tax on income having its source in private investments in commercial undertaking in the receiving State; (v) charges levied for specific services rendered, such as road tax etc.; (vi) registration, court or record fees, mortgage dues and stamp duty with respect to immovable property, but the embassy premises are exempted from these dues under Art. 23 (Art. 34).Under Art. 36 of the Vienna Convention, the personal baggage, articles for the mission and the personal use of the diplomat or a member of his family forming part of his household, including articles intended for his establishment (such as a car or furniture), shall be admitted to the receiving State free from all customs duties, taxes and related charges other than charges for storage, cartage and similar services. They are, however, subject to such laws and regulations of the receiving State as it may adopt in this regard (Art. 36(1)).39 The personal baggage of a diplomatic agent is also exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in Para. 1 of Art. 36, or whose import or export is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or his authorised representative (Art. 36(2)). Thus, this provision contains an important exception to the rule of general inviolability of a diplomat’s property in the receiving State. Failure to allow the baggage to be inspected by the diplomatic agent will make it liable to be sent back.40_________________38 K. Narayana Rao, Foreign embassies in India: claims for recovery of rents and repair charges, 27 IJIL 483, at p. 486 (1987).39 The Diplomatic Relations Act, 1972, of India, in Sec. 6 lays down that “Nothing contained in Art. 36 of the [Vienna] Convention shall be constructed to entitle a diplomatic mission or member thereof to import into India goods free of any duty of customs without any restrictions on their subsequent sale therein”.

40 Article 6 of the 1989 Draft Articles on the Status of the Diplomatic Courier and the Diplomatic Bag provides that if there are serious doubts about the abuse of this privilege and the baggage is not for official use, the inspection can be conducted in the presence of the diplomatic agent or his representatives, see, op. cit. 24.


e. Other Diplomatic immunities: Among the other immunities which a diplomatic agent enjoys are: the right to travel freely in the territory of the receiving State, subject to the condition that he cannot go to the prohibited area, important for the national security of the receiving State (Art. 26); freedom of communication for official purpose (Art. 27); exemption from social security provisions in force in the receiving State except in case he employs servants who are not exempt, for which he must comply with the obligations of the social security legislation as an employer (Art. 33); and immunity from local and military obligations (Art. 35).These immunities and privileges, however, are restricted by Art. 38(1) in cases where the diplomatic agent is a national of or permanently resident in the receiving State. In that case he shall enjoy immunity only from jurisdiction and inviolability in respect of official acts “performed in the exercise” of his functions.The immunity of diplomatic agents is not only confined to their own persons, but extends to other members of the family forming part of their household. Article 37(1) provides that the “members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Arts. 29 to 36”. Thus, the family members who happen to be the nationals of the receiving State are not entitled to these immunities. Further, those family members who do not form part of his “household”, i.e., who do not reside with him in the same house and are not dependent would also not have the immunities.

4. Administrative, technical and other staff of the missionPrior to the Vienna Convention, the State practice on the extent of privileges and immunities of the administrative, technical and service staff of the mission, who do not have diplomatic rank and are not in the domestic service, was not uniform. About the administrative and technical staff,41 the Vienna Convention, in Art. 37(2) states:Members of the administrative and technical staff of the mission, together with their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Arts. 29 to 35, except that the immunity from civil administrative jurisdiction of the receiving State specified in para. 1 of Art. 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Art. 36, para. I, in respect of articles imported at the time of first installation.42Thus, they enjoy their personal inviolability (Art. 29), inviolability of their residence (Art. 30(1)), immunity from criminal jurisdiction (Art. 31(1)), exemption from social security provisions (Art. 33), exemption from taxes, levies and duties (Art. 34). In the matters of civil and administrative jurisdiction, immunity exists only when they are performing service duties. The Convention, however, does not define the “acts performed outside the course of their duties”. The respective immunities of the technical and administrative staff extend to the members of the family “forming part of their respective households”._________________41 For example, archivists, typists, clerical staff, translators.42 It concerns with customs duties.


As to the members of service staff,43 Art. 37(3) of the Vienna Convention provides:Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Art. 33 [concerning social security provisions].The members of the staff of the mission in these categories, who are nationals of or permanently resident in the receiving State, shall enjoy privileges and immunities only to the extent admitted by the receiving State. But the receiving State must exercise its jurisdiction over such persons in a manner as not to interfere unduly with the performance of the functions of the mission (Art. 38(2)).44For private servants45 of the members of the mission, Art. 37(4) of the Vienna Convention provides that they shall be exempted from dues and taxes on the emoluments received by reason of their employment if they are not nationals or permanent residents of the receiving State. But in other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State should exercise its jurisdiction over them in such a manner as not to interfere unduly with the performance of the functions of the mission. The provision of Art. 38(2) is applicable in their case also. Their immunities, for the most part, are based upon the principle of reciprocity among the sending and the receiving States.46

5. Duration of immunityThe diplomatic immunities and privileges of a person commences from the moment he enters the territory of the receiving State to take up his post or, if already there, from the moment when his appointment is notified to the Ministry of Foreign Affairs or other designated ministry (Art. 39(1)). These immunities and privileges subsist for a reasonable period even after the termination of the mission. Article 39(2) provides that when “the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in respect of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of_________________43 Service staff is defined as “members of the staff of the mission in the domestic service of the mission” (Art. 1(g)), such as chauffeurs, porters, kitchen staff44 For the purposes of Art. 38 of the Vienna Convention, Sec. 7 of the 1972 Diplomatic Relations (Vienna Convention) Act provides that a citizen of India shall be entitled to such additional privileges and immunities as are granted to him through the Government Notification in the Official Gazette.45 A “private servant” is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State, Art. 1(b), Vienna Convention.46 A number of States put reservation to Art. 37 of the Convention. In India, sec. 4 of the Diplomatic Relations Act, 1972, provides that if a State party in breach of its obligations under the Convention or the Indian mission or its member are accorded lesser

privileges and immunities than those provided in the Vienna Convention, the Government of India may by official notification withdraw such of the privileges or immunities as it may consider proper. In Britain, the Diplomatic Immunities Restriction Act, 1955, provides for the withdrawal of immunity for private acts of envoys, their servants and staff if the accrediting State does not accord the similar immunity.


the mission immunity shall continue to subsist”.47 Impleading such a person for official acts would otherwise amount to impleading the sovereign on whose behalf the agent acted.48

6. Diplomatic immunity and third StatesIf a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such a visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same principle applies to his family, enjoying privileges and immunities (Art. 40(1)). In the case of administrative, technical or service staff, and members of their families, their privilege is limited only to passage,i. e., the third States shall not hinder their passage through their territories (Art. 40(2)).The official correspondence, diplomatic bag and diplomatic courier in transit shall enjoy the same inviolability and protection as the receiving State is bound to accord (Art. 40(3)).Article 40 of the Vienna Convention was invoked in R. v. Pentonville Prison Governor, ex parte Teja.49 In this case, the Indian Government had sought unsuccessfully the extradition of Teja from the United States and then from Costa Rica. He had left India after embezzlement. From Costa Rica he proceeded to Europe on behalf of the Costa Rican Government. He was carrying a diplomatic passport and a “letter of credence” stating that he was soon to be accredited as economic counsellor for the Costa Rican Embassy in Switzerland and was an economic adviser on special mission in Europe for a while. It was requested that he be granted “the reciprocal privileges, prerogatives and immunities inherent to his diplomatic condition”.50 While he was on a brief visit to Britain, he was arrested on an extradition warrant issued on behalf of the Indian Government. It was argued on behalf of Teja that since he was soon to be accredited to the Costa Rican Embassy in Switzerland, he is entitled to immunity. The contention was rejected since there was no Costa Rican Embassy in Switzerland, nor there was any evidence that his accredition had been accepted by the Swiss Government. Similarly, the argument that he is already an economic counsellor to the Embassy of El Salvador was also rejected, thus giving the strict interpretation to Art. 40. The court observed that he is not entitled to any immunity because he “was not proceeding to take up or return to his post in El Salvador ... nor was he at that time returning to his own country, namely, Costa Rica from El Salvador”.51In another case, R. v. Guildhall Magistrates Court, ex parte Jarret Thorpe,52 the court had the occasion to interpret Art. 40 in relation to family members of the diplomatic staff. The applicant was the husband of the counsellor to the Sierra Leone Embassy in Rome. His wife travelled to London to buy furnishings for the Rome Embassy and the applicant was to join_________________47 This extension of period of immunity does not apply to a dismissed diplomatic agent or whose immunity has been waived.48 See Rahimtoola v. Nizam of Hyderabad [1958] AC 379.

49 [1971] 2 QB 274.50 Ibid., at p. 283.51 Ibid., at p. 284. See also the case of New Chile Gold Mining Co. v. Blanco [1888] 4 TLR 346, wherethe court declined to issue writ on a Venezuelan minister in France, while in England on his way to France.


her there to help with her luggage. On arrival in the United Kingdom, he was informed that his wife had already left for Rome. While he was waiting for a flight to Rome, the applicant was arrested by the police in connection with a criminal case pending against him in London. The court held that the applicant was entitled to immunity by virtue of Art. 40 and rejected the argument that the provision is applicable only to diplomatic agents and members of their families when they are in transit between the sending State and the receiving State.

C. Waiver of ImmunityThe jurisdictional immunities enjoyed by the diplomatic agents and other persons enjoying immunity under Art. 37, i.e., members of the administrative, technical and service staff, as also private servants, may be waived by the sending State (Art. 32). The sending State can do so because the privileges and immunities of diplomatic agents are in substance the State’s concern, which has accredited them. This is based on the principle that diplomatic immunity is accorded not for the benefit of the individual in question, but for the benefit of the sending State, enabling him to fulfil his diplomatic duties with the necessary independence.The immunity of the Head of the mission can be waived by the State and the immunity of other persons of the mission may be waived by or on behalf of the government of the sending State by the head of the mission. Waiver must be made with full knowledge of the circumstances and of that person’s rights. When the immunity or privilege of the subordinate official is waived, it comes to an end irrespective of the desire of the official to retain his immunity.In R v. Madan53 the defendant was employed in the passport office of the Indian Mission in England and was entitled to diplomatic immunity. He was charged and convicted for obtaining a season ticket and attempting to obtain money by false pretences. The Deputy High Commission wrote to the Commonwealth Relations Officer that in order not to impede the course of justice, the High Commissioner was prepared to waive the applicant’s immunity. Similarly, in R v. Kent,54 the respondent Kent was a code clerk in the American Embassy in England. He was charged for stealing two documents from the office and was dismissed from service. The American Ambassador waived his immunity. He was arrested and tried by the court and sentenced for seven years imprisonment. The court rejected his contention of diplomatic immunity as that was being waived by the envoy.Waiver of the immunity must always be express (Art. 32(2)).55 If a diplomatic agent or any person entitled to immunity under Art. 37 initiates proceedings, this would amount to waiver and he shall be precluded from invoking immunity from jurisdiction in respect of any counter claim directly connected with the principal claim (Art. 32(3)). This principle was applied in England by the Court of Appeal in High Commission for India v. Ghosh,56 where the case was filed by the High Commission for the Government of India, and the Government of West Bengal for the recovery of money lent to the applicant. He filed a counter-claim for the alleged slander_________________53 [1961] 2 QB 1.

54 [1941] 1 KB 454.55 For example, presenting himself before the court in a case, filing a case in the court, or appearing as a witness amount to waiver of the immunity.56 [1960] 1 QB 134 at pp. 140-141; 28 ILR 150 (C.A.).


by their servants and agents. The court held that though the plaintiffs were entitled to immunities, but by choosing to come before the court, they had waived their immunity to a certain extent. The claim brought by them had entitled the defendant to file the counter-claim, but such a counterclaim should be sufficiently connected with or allied to the subject matter of the claim. The court observed that the counter-claim for damages for slander had no bearing at all on the subject matter of the plaintiff’s claim to recover the money lent.However, as stated earlier, waiver of jurisdictional immunity shall not imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary (Art. 32(4)). A diplomatic agent may successfully claim his immunity against the execution of the judgment of the court.

D. Termination of the MissionThe diplomatic mission may come to an end in the following manner:

1. Recall of the envoyWhen the relations between the sending and the receiving States deteriorate, to express its displeasure and policy differences with the receiving State, the accrediting State may recall its diplomatic agent. The letter of recall is given to the Head of the State or to the Minister of Foreign Affairs in solemn audience. The envoy receives a Lettre de Recreance in return.57 A diplomatic agent may also be recalled at the request of the receiving State.

2. Through notificationThe functions of the diplomatic agent may come to an end through notification. According to Art. 43 of the Convention such a notification may be sent:i. by the sending State to the receiving State; orii. by the receiving State to the sending State that it refuses to recognise the diplomatic agent as a member of the mission in accordance with Art. 9(2). This signifies the rupture of diplomatic relations between the two countries.

3. Persona non grataIt is the right of the receiving State to declare at any time a diplomatic agent persona non grata, i.e., undesirable person without assigning any reason. A State enjoys this right under international law and recognised under Art. 9 of the Vienna Convention. Normally the declaration of persona non grata is based on the gross misconduct on the part of the diplomatic agent. It may be resorted to as a measure of retortion by the sending State considering it an unfriendly act of the receiving State.58_________________57 In 1981, India recalled its High Commissioner in Zambia, Ravi Tandon, over his alleged remarks on the book of Kenneth Kaunda (then President of Zambia), to the displeasure of the latter. In 1985, deputy military attache in the French Embassy in India, Allan Bolley, was recalled after he was found involved in espionage.

58 The declaration of the Iraqi Ambassador and an attache as persona non grata by Pakistan in 1973, and thereafter termination of the mission is an example of this mode of termination.


4. The mission may come to end when the object of the mission has been achieved or after the expiration of the stipulated time, if it had been established for a specific purpose or created for a specific time respectively.5. The armed conflict does not ipso facto terminate the mission, but in war, sometimes it is difficult to discharge the functions of the mission.59 In such a case, delivery of the passports to the envoy and the staff of the mission by the receiving State terminates the mission.In cases where diplomatic relations are broken or if a mission is permanently or temporarily recalled, the sending State may entrust custody of the premises of the mission, together with its property and archives, or the protection of its interest to a third State acceptable to the receiving State (Art. 45(b) and (c)).

III. CONSULAR RELATIONSConsuls are the representatives of their State in a foreign country, but they are not accredited to the receiving State and, therefore, are not entitled to the privileges and immunities accorded to diplomatic agents. They are often appointed under a commission issued by the governments, and the receiving State accept them by issuing “exequater” (“Letter of Permission”). They generally look after the commercial and trade interests of the sending State and its nationals, but they are quite often entrusted with a great variety of duties, for example, the granting of passports and visas, execution of notorial acts for the nationals of the sending State, and the registration of marriages, deaths, births, supervision and inspection of vessels and aircrafts attributed to the sending State.Ordinarily, they are conferred special privileges and immunities by bilateral treaties. Their status under customary international law was regulated by usages, according to which a consul is not immune from local jurisdiction except in respect of the judicial and administrative acts performed in the exercise of consular functions. Consular premises are also not inviolable from entry by the servants or agents of the receiving State. In order to bring uniformity in the laws and usages as to the functions and immunities of consuls, the United Nations Conference on Consular Relations adopted the Vienna Convention on Consular Relations in April 1963. The matters not expressly covered by the Convention are to be regulated by the customary international law.60 States are also free to conclude treaties to supplement, confirm, extend or amplify the provisions of the Convention (Art. 73).The Convention divides the consuls into four classes: (a) Consuls-General, (b) Consuls,(c) Vice-Consuls, and (d) Consuls-Agent (Art. 9). The Consul-General is often appointed by the Head of the State and he is the Head of the Consul-Office and appoints the Consuls and Vice-Consuls. Consul-agents are appointed either by the Consul-General or the Vice- Consul._________________59 During the 1965 war with Pakistan and 1962 armed conflict with China, diplomatic relations did not come to an end, but in the 1971 war, India and Pakistan closed their missions.60 The Convention came into effect in March 1967. India acceded to it in Nov. 1977.


A. Immunities, Privileges and Rights of ConsulsThe 1963 Vienna Convention has brought the status of consuls nearer to that of diplomatic agents in certain respects, but they do not enjoy complete immunity from local jurisdiction unless consul acts in a diplomatic capacity on behalf of his State in a country where his State has no diplomatic representation (Art. 17).61 Article 41 confers certain limited immunities in respect of his official functions and provides:1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.2. ... consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted ... in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in para. 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum delay.Thus, in criminal matters, a consular officer can be arrested or detained pending trial in the case of grave crime and may be sentenced to imprisonment. The consular officers and consular employees are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of official acts (Art. 43(1)). Generally, consuls are not amenable to the local jurisdiction for other acts unless their government assents to the proceedings being taken. A restriction has been imposed in respect of consular employees, service staff or their families for non-official acts, who carry on “private gainful occupation” in the receiving State (Art. 57). They are also exempted from local taxes and customs dues and enjoy inviolability of their official papers and archives.The inviolability of consular premises, to a substantial degree, has been accepted in Art. 31 of the Convention, i.e., the authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post, except by permission which may be assumed in the case of fire or other disaster requiring prompt protective action.62 The consular premises, furnishings and other property cannot be requisitioned for the purposes of national defence or public utility. If that becomes necessary, prompt, adequate and effective compensation shall be paid to the sending State._________________61 Article 3 of the 1961 Vienna Convention on Diplomatic Relations provides that consular functions may be performed by a diplomatic mission.62 In 1948, the New York authorities entered the Soviet Consulate-General to provide medical assistance, and to investigate the fall of a Soviet national who refused to go back to the Soviet Union, from a third story window. However, following this, consular relation between the USA and the USSR were broken off, see L. Preuss, 43 AJIL 37 (1949).


The limited consular immunities from local process are granted by the receiving State to enable them to perform their consular duties properly, and as a matter of practice, they are generally recognised by all States.63The rules applicable to the waiver of consular immunities and privileges (Art. 45), and the commencement and termination of such privileges and immunities (Art. 53) are similar to that of the 1961 Vienna Convention on Diplomatic Relations (Arts. 32 and 39). Thus, the consular officer or any other member of the consular staff may be declared persona non grata if their conduct is not acceptable to the receiving State (Art. 23), which may withdraw “exequatur” from the consul.64

IV. SPECIAL MISSIONSApart from diplomatic missions and consuls, States quite often make use of ad hoc diplomacy and send special missions to other States. Sometimes, they are led by the heads of States or cabinet ministers, to perform specific tasks, such as to attend the ceremonial occasions like royal marriage, coronation, to attend funerals, or to conduct important political negotiations.Although customary international law does not accord them any special status, but the increased use of special missions and the important tasks performed by them led to the adoption of the Convention on Special Missions, 1969 by the General Assembly, which will come into force on the ratification or accession of 22 States.65 The “special mission” has been defined as a temporary mission of State sent by one State to another, with the consent of the latter to deal with specific questions or performing a specific task in relation to it (Art. 1(a)). The Convention does not make a distinction between missions of technical nature and those of political nature.The Convention on Special Missions is based on the Conventions on Diplomatic Relations of 1961 and Consular Relations of 1963 on the matter of privileges and immunities of the head and members of the special missions. The immunities for special missions are justified for the efficient performance of the tasks and responsibilities entrusted to special missions. However, in practice, members of the missions are seldom declared persona non grata by the receiving State, but the receiving State may notify the sending State if any member of the mission is not acceptable (Art. 12(1)), in which case the sending State shall either recall the person concerned or terminate his functions with the mission.

V. REPRESENTATIVES APPOINTED TO INTERNATIONAL ORGANISATIONSThe creation of the United Nations in 1945 led to the establishment of many inter-governmental organisations in the following years and with that the appointment of representatives or_________________63 Brownlie does not consider that the provisions of the 1963 Vienna Convention on consular relations have become the general international law on the subject, though 173 States are parties to it, op. cit. 9, p. 365.

64 In 1982, India declared the Consul of Israel, Mr. Hassan, as persona non grata for his statements which India termed as amounting to interference in its domestic affairs.65 GA Res. 2530 (XXIV), Dec. 8, 1969.


permanent missions to these organisations by the member-nations also became a regular feature. In order to regulate their conduct and treatment of these representatives uniformly, the United Nations General Assembly on March 14, 1975, adopted a Convention on the Representation of States in their Relations with International Organisations of Universal Character at Vienna.The Convention governs the status, functions and immunities of the representatives to:(a) permanent missions or representatives to international organisations; (b) permanent observer missions of non-member governments to international organisations; (c) representatives or delegations to conferences of States convened by or under the auspices of international organisations or their organs. The extent of privileges and immunities granted to representatives, delegates and observer missions to international organisations are at par with diplomatic agents as stated in the 1961 Vienna Convention on Diplomatic Relations.The Convention, however, has not met with much enthusiasm.66 It is considered to be of little value, since most of its provisions are already incorporated in other diplomatic conventions, such as the Headquarters Agreements, the Conventions on privileges and immunities of the relevant international organisations and specialised agencies, and the Vienna Convention on Diplomatic Relations, 1961. The prospects of its general acceptance by States appear to be remote, though it is an accepted fact that these representatives require special status for the efficient execution of the functions entrusted to them.

VI. PREVENTION AND PUNISHMENT OF CRIMES AGAINST DIPLOMATS67In response to a spate of crimes against diplomatic agents and diplomatic missions, such as kidnapping and killing of diplomats, and attacks against the premises of the mission, the United Nations General Assembly adopted a Convention on the Prevention and Punishment of Crimes against Internationally Protected Parsons, including Diplomatic Agents on December 14, 1973 (Protection of Diplomats Convention).68 This Convention closely followed the two conventions on hijacking: the Hague Convention for fee Suppression of Unlawful Seizure of Aircraft of December 16, 1970, and the Montreal Convention for the Unlawful Acts Against the Safety of Civil Aviation of September 23, 1971.For the purposes of the Convention, an “internationally protected person” means: (a) Head of State or Government, or a Minister of Foreign Affairs, whenever any such person is in a foreign country, as well as members of his family accompanying him; (b) any representative or official of a State or any official or other agent of an international organisation of an intergovernmental character who is subjected to crime, or his official premises, his private accommodation or his means of transport are targeted, is entitled to special protection from_________________66 It has not come into force as yet, which requires 35 ratifications or accessions for this purpose.

67 See Franciszek Prazetacznik, Prevention and punishment of crimes against internationally protected persons,13 1JIL 65 (1973).68 GA Res. 3166 (XXVIII) of Dec. 14, 1973. The text of the Convention was based on the draft articles prepared by the International Law Commission (ILC), see Report of the ILC on the work of its 24th Sess. (May-June 1972), Doc. A/8710, pp. 232-257. The Convention came into force on Feb. 20, 1977. India acceded to it on April 11, 1978.


any attack on his person, freedom or dignity, as well as members of his family forming part of his household (Art. 1 of the Convention).The crimes envisaged under the Convention are: (a) murder, kidnapping or other attack upon the person or liberty of as internationally protected person; (b) violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty; (c) any threat or attempt to commit such attack; and (d) an act constituting participation as an accomplice in any such attack (Art. 2).Each State party is to take necessary measures to establish jurisdiction over these crimes when the alleged offender is present in its territory and has not been extradited by it (Art. 3). It is under an obligation either to extradite the alleged offender or to prosecute under its internal law without undue delay (Arts. 6 and 7). Crimes under the Convention are extraditable and the States parties undertake to include these crimes in their extradition treaties, and these crimes are deemed to be included in them. If no extradition treaty exists between the State parties, the Convention would be considered as the legal basis for the same (Art. 8). The States parties are required to cooperate and assist each other in connection with the criminal proceedings for the alleged offences under the Convention (Art 10).

VII. PROTECTION OF UNITED NATIONS AND ASSOCIATED PERSONNELOn December 9, 1994, the United Nations General Assembly adopted the Convention on the Safety of United Nations and Associated Personnel,69 which is of particular importance to United Nations peacekeeping operations. The Convention creates a legal regime for the prosecution or extradition of persons accused of attacking the peacekeepers and other persons associated with operations under the United Nations mandates. It also contains provisions concerning the relationship of peacekeepers and others with host and transit States.The “United Nations Personnel” includes persons engaged or deployed by the UN Secretary General as members of the military, police or civilian components of a United Nations operation. This is the core group comprising the United Nations peacekeepers. The “associated personnel” described persons assigned by the UN Secretary General or an inter-governmental organisation with the agreement of the competent organ of the United Nations (Art. 1). For example, NATO forces that were asked to assist UNPROFOR or IFOR in Bosnia, Herzegovina, the Multilateral Force that assisted UNMIH (in Haiti), and the United States assistance under the Unified Task Force in Somalia (UNITAF) come under the purview of the Convention. “Associated personnel” also includes persons “engaged” by the Secretary General, a specialised agency or the IAEA, and persons deployed by a humanitarian non-governmental organisation or agency under an agreement with the Secretary General.The Convention does not apply to a United Nations operation authorised by the Security Council as an enforcement action under Chapter VII of the United Nations Charter (Art. 2(2)). Following the pattern set by the 1973 Protection of Diplomats Convention, and the International_________________

69 See GA Res 49/59 (Dec. 9, 1994); text in 34 ILM 482 (1995).


Convention against the Taking of Hostages of 1979,70 the Convention creates a regime of universal jurisdiction over attacks against United Nations and associated personnel. Intentional commission of murder, kidnapping or other attacks on the person or liberty of the protected persons under the Convention or attacks on official premises, private accommodation or means of transportation of these personnel are offences under the Convention (Art. 9). A State party is required to take measure to establish its jurisdiction over these crimes (Art. 10) and they should cooperate in the prevention of crimes set out in Art. 9 (Art. 11). They are obliged to prosecute or extradite (Art. 14), and the State party in whose territory the alleged offender is present shall take appropriate measures under its national law to ensure his prosecution or extradition (Art. 13). The crimes under the Convention are deemed to be included in any extradition treaty existing between States parties (Art. 15). Defendents and targets of investigations are guaranteed fair treatment, fair trial and full protection of their rights (Art. 17). The Secretary General of the United Nations will be communicated about the outcome of the prosecution, who will transmit the information to the States.The transit States are required to facilitate the unimpeded transit of United Nations and associated personnel and their equipment (Art. 5). The host States and the United Nations must conclude agreement on the status of the UN operation and all personnel engaged in the operation (Art. 4). However, it is not possible to conclude such agreements always. The Convention does not limit the ability of the United Nations and associated personnel to defend themselves and act in self defence (Art. 21).71_________________70 See text in 16 ILM 1456 (1977).71 S.K. Verma, Protection of the United Nations Peacekeepers, 1 National Capital LJ, 31 (1996).

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CHAPTER 9

The State and the Individual

I. INTRODUCTORYThe intimate relation between the individual and the State is being recognised by international law, which is apparent from the rules on diplomatic protection. This relationship manifests itself in the most striking form in the concept of nationality, which has a direct bearing on the concepts of extradition and asylum. These concepts are being discussed in this chapter.

II. NATIONALITYUnder international law, nationality1 constitutes an important link between the individual and the State. It establishes a continuing relationship between the sovereign State on the one hand and the citizen on the other. The fundamental basis of a man’s nationality is his membership of an independent political community.2 Fenwick defines nationality as “the bond which unites a person to a given State which constitutes his membership in the particular State, which gives him a claim to the protection of that State and which subjects him to the obligation created by the laws of that State”.3 In the Nottebohm case (second phase),4 the International Court of Justice stated that:Nationality is a legal bound having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties ... Conferred by a State, it only entitles that State to exercise protection vis-a-vis another State, if it constitutes a transition into juridical terms of the individual’s connections with the State which has made him its national.The reciprocal rights and duties created through nationality entitle an individual to the diplomatic protection of the State of his nationality, and subject him to a duty to owe allegiance to his State of nationality. It is through nationality that an individual can enjoy the benefits of_________________1 On nationality, see generally, P. Weis, Nationality and Statelessness in International Law, 2nd ed. (Stevens& Sons Ltd., London), 1979; H.F. Van Panhuys, The Role of Nationality in International Law (A.W. Sythoff, Leydon), 1959; N. Bar-Yaacov, Dual Nationality (1961); Donner, The Regulation of Nationality in International Law (1983); G. Fitzmaurice, 92 Hague Recueil, 191-207 (1957-II); Max-Planck-Institute, Encyclopaedia of Public International Law, Vol. VIII (Elsevier Science Publishers B.V., Amsterdam), 416-24; I Brownlie, 39 BYbIL 284-364 (1963).2 See the decision of British-Mexican Claims Commission in Re-Lynch, Annual Digest of Public International Law Cases, 1929-30, p. 221 at 223.3 Charles G. Fenwick, International Law (Vakils, Feffer & Sons, Bombay), 1971, pp. 301-302.4 (1955) ICJ Rep. 4, at p. 23.


international law.5 Persons not enjoying the protection of the State of their nationality are known as ‘de facto Stateless’.Nationality of a person is determined in accordance with the rules of municipal law. In its Advisory Opinion in the Tunis-Morocco Nationality Decrees case,6 the Permanent Court of International Justice opined that the questions of nationality are solely within the domestic jurisdiction of a State. The Hague Convention on Certain Questions relating to the Conflict of Nationality Laws (Convention on Nationality Laws) adopted in 1930 by The Hague Codification Conference, also in Art. 2 provided, “Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State”.7 Article 1 of the Convention states that while “it is for each State to determine under its own law who are its nationals”, such law “shall be recognised by other States only in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality”. Thus, this provision sets limits on the power of a State to confer nationality. As a general proposition, international law does not limit the right of a State to extend its nationality to any one, but it is not always binding on other States. Nationality to be effective against other States must conform to certain general principles recognised by international law. In the Nottebohm case, the Court expounded the principle that for nationality to be opposable to other States on the international plane, there must be a real and effective link, a genuine connection, between the State and the individual concerned.8

Significance of NationalityNationality creates important incidents at international law, and for that matter, it is necessary to know the nationality of a particular person. Nationality is the basis of a State’s right to exercise diplomatic protection abroad, whose national has suffered a wrong at the hands of another State. On the basis of this right under customary international law, a State is entitled to forcible intervention to protect the life and property of its nationals. This right is still practised even after the coming into existence of the United Nations Charter, for example, the United States intervened in Grenada in 1983 allegedly on this ground.9 This is also closely related with the questions of State responsibility, viz., when the acts of sovereignty by a State within its own territory affect the aliens or their property, such as the “denial of justice” or “expropriation”.Aliens may be expelled for sufficient reason and their home State (State of nationality) is bound to accept them. On the other hand, nationals may not be extradited, but aliens may. Article 12 of the International Covenant on Civil and Political Rights, 1966, states, “No one_________________5 L. Oppenheim, International Law, Vol. 1, 9th ed. [Jennings and Watts (Ed.). Longman, London], 1996, p. 512.6 PCIJ, Series B, No. 4, p. 24 (1923).7 The Convention entered into force on July 1, 1937. It was signed by 27 States and ratified by 13, including India. See also Nottebohm case, op. cit. 4, at pp. 20-21.8 Ibid., at pp. 22-23.

9 See D.W. Bowett, Self-Defence in International Law (Manchester University Press, Manchester), 1958, pp. 87-105.

Page 229 THE STATE AND THE INDIVIDUAL

shall be arbitrarily deprived of the right to enter his own country”. The enemy status during war time is decided on the basis of nationality.10 Furthermore, nationality provides a normal (but not exclusive) basis for the exercise of civil and criminal jurisdiction by a State, even in respect of acts committed abroad.11 Nationality also imports allegiance for the nationals, who are obliged to serve their country when the occasion arises.Generally, the passport of a person is a prima facie evidence of a person’s nationality, but it is not always conclusive evidence and other evidences of nationality have to be taken into account to determine the nationality conclusively.

Nationality and CitizenshipNationality is different from citizenship, though often used interchangeably. Nationality is the quality of belongingness to a particular State by which a person is internationally known, it creates a legal relationship between the State and the individual under international law. Citizenship, on the other hand, is the sole concern of municipal law. It bestows a political status upon an individual whereby a citizen enjoys civil and political rights under municipal law. The concept of citizenship is irrelevant to international law. It may happen that all the citizens may possess the nationality of a State, but all the nationals of that State may not necessarily be its citizens. For example, under the Nationality Act of the United States, the citizens are endowed with full political and personal rights within the United States, but persons residing in territories and possessions not forming part of the Union are described as nationals. Although they owe allegiance to the United States and are United States nationals under international law, they do not enjoy rights of United States citizens. Thus, the rights of citizenship can be denied to persons who are nationals. On the other hand, disabilities in citizenship even of a serious nature, do not involve loss of nationality.12Nationality also differs from domicile which is merely a de facto residence of an individual in a State with an intention to permanently settle there, and it may be a factor for acquiring nationality of a particular State.

A. Acquisition of NationalityStates generally adopt certain rules in their legislation to confer nationality.13 Since each State is free to frame its own law to confer nationality, the laws on nationality are not uniform among nations. Nevertheless, on the basis of these laws, broadly speaking, there are two bases for acquiring nationality: nationality acquired by birth, and nationality acquired subsequently._________________10 See infra Ch. 17.11 See supra Ch. 7, pp. 151-52.12 See Kahane v. Parisi and the Austrian State, Decision of the Austro-German Mixed Arbitral Tribunal, Annual Digest of Public Int. L. Cases, 1929-30, p. 213 et seq. It was held that even if a State denies to certain categories of its nationals the full status or privileges of citizenship does not affect its rights in the matter of claims in respect of the individuals in question.

13 For the acquisition and termination of Indian nationality, see the Citizenship Act of Dec. 30, 1955, as amended.


1. Nationality acquired by birthThe nationality laws of every State provide for the acquisition of its nationality by birth, either according to jus soli, i.e., by being born in the territory of a State; or jus sanguinis, i.e., by descent— being born to parents who are its nationals; and sometimes, according to both, or according to alternative principle. Experts commonly regard these two principles as permissible criteria under international law.14

(a) Jus Soli. The nationality laws of the British Commonwealth and the United States provide that persons born within their territorial limits acquire their nationality. This principle of jus soli is also applied in many Latin American countries. It is also extended in certain countries to ships and aircrafts flying their flag, as by Argentina, or to birth within territorial waters as productive of nationality as in the United States, Japan and Italy.15Relevant Indian legislation in this matter is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Ordinance 2005.16 Earlier, under Sec. 3 of the Citizenship Act, 1955 mere birth in India on or after January 26, 1950, entitled a person to be a citizen of India even though both the parents were foreigners. But after the commencement of the 1986 Act on 1 July 1987, a person born in India on or after 1 July 1987 will be a citizen of India if either parent was a citizen of India at the time of the birth (Sec. 3(1)(b)). Those born in India on or after 3 December 2004 are considered citizens of India only if both of their parents are citizens of India or if one parent is a citizen of India and the other is not an illegal migrant at the time of their birth. But children born to foreign diplomats and whose father is an enemy alien and birth took place in enemy occupied territory, would not be entitled to Indian nationality (Sec. 3(2)).17 Thus, Indian Act combines jus soli with jus sanguinis rule.18(b) Jus Sanguinis. It is a reasonable enough rule that a State should bestow nationality upon persons born of parents who are its nationals, even if they are born out of the State territory. In practice, in some cases, the father’s nationality is a decisive factor, in other cases the mother’s nationality is decisive, and in some, the nationality of unmarried mother as in the United States, in the case of legitimate child (partly because of the reason that marriage does not always automatically bestow the husband’s nationality on the wife). An illegitimate child, in most of the jurisdictions, takes the nationality of its mother. Most of_________________14 H.F. Van Panhuys considers these two principles sanctioned by customary international law, see Panhuys, op. cit. 1, pp. 160-161.15 See Brownlie, Principles of Public International Law, 7th ed. (Oxford University Press, Oxford), 2008, p. 389. The texts of the nationality laws of many countries are to be found in the UN Legislative Series Publications, Laws Concerning Nationality (1954) and the 1959 Supp. to that volume.16 The Citizenship (Amendment) Ordinance 2005 came into force on 28 June 2005

17 Article II of the Optional Protocol Concerning Acquisition of Nationality, adopted at the 1961 UN Conference on Diplomatic Intercourse and Immunities exempts the members of the mission from the laws of the receiving State regarding the nationality of that State.18 Weis opines that in the absence of historical examples, it is a matter of conjecture whether a nationality law based equally on jus soli and jus sanguinis would be regarded as inconsistent with international law or the general principles of law, Weis, op. cit. 1, at pp. 97-98.


the European countries, including Germany and France, offer nationality on the principle of jus sanguinis. Even the United States and the United Kingdom whose laws are based on jus soli, allow the children of their nationals, although born abroad, to acquire their nationality in certain circumstances, i.e., there should be some connection with the country like being in the service of the government etc. Section 4 of the Citizenship Act of India also confers nationality by descent if the father is a citizen of India at the time of birth. By an amendment to this Act in 1992, Indian nationality has been conferred on a child born to an Indian mother outside India also.19Many States recognise both the principles for conferring nationality, such as India, or the alternative principle. Some countries, which follow the jus soli rule, restrict it to the descendents of their own nationals. Children born to alien parents shall have to make a declaration opting out of the nationality of one State after attaining majority as in the United States, or the parents have to make a declaration on behalf of the child denouncing any other nationality at the time of birth, for example, in Spain.

2. Nationality acquired subsequentlyIn majority of States, nationality may also be conferred by operation of law, due to the effect of certain changes in the civil status of an individual, like marriage, adoption, legitimation, affiliation, and naturalisation.

(a) MarriageThe laws of majority of nations were earlier based on the concept that the wife automatically gets the nationality of her husband, and a woman marrying a foreigner would lose her nationality of origin on marriage, and cease to be the citizen of the country of her birth. The British Nationality and Status of Aliens Act, 1914, in Sec. 10(1) is declaratory of the contemporary law in stating that “the wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deemed to be an alien”. This was sometimes leading to certain hard cases of statelessness, as she may not be conferred the nationality of her husband’s State (under the law of that State). To deal with this practical problem, the Hague Convention Relating to the Conflict of Nationality Laws, 1930, enabled women to retain their pre-marital nationality under certain conditions (Arts. 8-11). It lays down that if the national law of the wife “causes her to lose her nationality on marriage with a foreigner, this consequence shall be conditional on her acquiring the nationality of her husband”. It also provided that the naturalisation of the husband during marriage shall not involve a change in the nationality of the wife except with her consent.In order to accord sexual equality in the matter of nationality, the United Nations General Assembly adopted a Convention on the Nationality of Married Women, 1957.20 Under the_________________19 However, if the father (or mother) of such a person was a citizen of India by descent, that person shall be the citizen of India if: (a) his birth is registered at an Indian consulate within one year of the birth or the commencement of this Act, whichever is

later; and (b) his father (or mother) is, at the time of his birth, in service under the Government of India.20 GA Res. 1040 (XI), Jan. 29, 1957; for the text of the Convention, see S.K. Kuba, Status of Women in International Law (Delhi Law Book Co.), 1986, p. 165.


Convention, each State party agreed that neither the celebration nor the dissolution of marriage between one of its nationals and an alien nor change of nationality by the husband during marriage, shall affect the wife’s nationality automatically. However, an alien wife of a national of a State party may acquire her husband’s nationality by privileged naturalisation procedures. The 1979 Convention on the Elimination of All Forms of Discrimination against Women provides (Art. 9):1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall change the nationality of the wife, render her stateless or force upon her the nationality of the husband.2. States Parties shall grant women equal rights with men with respect to the nationality of their children.The Indian Citizenship Act, in Sec. 5(l)(c) provides that “a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration” may become citizen (national) of India by registration with the prescribed authority. The Citizenship (amendment) Act, 1992, has accorded women equal rights with men regarding the nationality of their children.

(b) Adoption and LegitimationThe laws of most States accept that a change in the family of an individual, whether by adoption or by legitimation, will have the effect of creating a new nationality, and the child acquires the nationality of the adopting parents or of the father through legitimation.

(c) Domicile, Cession, Resumption and OptionQuite often States have legislative provisions for the grant of nationality on the basis of residence and domicile and immigration animo manendi.If the natural born subjects have lost their nationality acquired by naturalisation abroad, they recover their original nationality on fulfilling certain conditions. Similarly, where the nationality has been conferred by marriage and if the marriage dissolves, the person may resume his original nationality after completing certain requirements.Inhabitants of a ceded territory assume the nationality of the State to which the territory is ceded. When the State is partitioned or exchanged, the nationals of the former State have the option to become the nationals of any of the States.In the commonwealth countries, the nationality can be acquired through registration for which the laws may be different among States. The Indian Citizenship Act in Sec. 5 lists the categories of persons who can acquire nationality by registration.21

(d) NaturalisationA State has the discretion to confer nationality by naturalisation, and a person who wishes to acquire nationality through naturalisation is required to give application and it will be granted if the conditions laid down by the State are fulfilled (“voluntary” naturalisation) and the person_________________

21 Sec. 5(1)(d) of the Citizenship Act provides that minor children of persons who are citizens of India get nationality through registration.


takes the oath of allegiance to the granting State. Hudson remarks, “Naturalisation must be based on an explicit voluntary act of the individual or of a person acting on his behalf”.22The requirement of prolonged residence or domicile is normally followed by all States for the purposes of naturalisation. Other conditions may include the requirement of good character, knowledge of the national language, government service, etc. But from the international standpoint, the most important are residence and governmental service, which establish the connection between the State and the applicant. For naturalisation, the Indian Citizenship Act provides that citizenship by naturalisation can be acquired by a foreigner (not illegal migrant) who is ordinarily resident in India for twelve years (throughout the period of twelve months immediately preceding the date of application and for eleven years in the aggregate in the fourteen years preceding the twelve months) must first renounce his citizenship of the other country and notify to the Government of India, and he should not be the subject or citizen of a country where citizens of India are prevented by law or practice from becoming citizens by naturalisation (Sec. 6). A State may, in its discretion, relax these conditions in conferring nationality by naturalisation.23 Nevertheless, the nationality granted by naturalisation must establish a “genuine link” between the individual and the naturalising State. In the notable case of Nottebohm,24 the International Court of Justice elaborated this point.Nottebohm was born in Hamburg, Germany in 1881. In 1905, he went to Guatemala where he took up residence and made that country the headquarters of his activities. After that he went sometimes to Germany and other countries for business and holidays. He continued to have business connections in Germany. He paid a few visits to his brother in Liechtenstein since 1931. Some of his brothers, relatives and friends were in Germany and others in Guatemala. He continued to have his fixed abode in Guatemala until 1943. At the outbreak of the Second World War in 1939, he still possessed the German nationality.On October 9, 1939, Nottebohm applied for admission as a national of Liechtenstein, a neutral country during war, by naturalisation. Under the Liechtenstein Law of January 4, 1934, for naturalisation, among other conditions, there was the requirement of three years residence in the territory of the principality, which could be dispensed with in circumstances deserving special consideration and by way of exception. Nottebohm sought and received dispensation from residence requirement without specifying special circumstances warranting such waiver. He was given the certificate of nationality, dated October 13, 1939, after concluding an agreement with the revenue authorities and paying naturalisation fees and taking oath of allegiance. As a consequence of naturalisation, he lost his German nationality. After obtaining the Liechtenstein passport, he got it visaed by the Counsel General of Guatemala in Zurich on December 1, 1939, and returned to Guatemala in the beginning of 1940. At his request, Guatemalan authorities made appropriate changes regarding his nationality in the Registrar of Aliens and in his identity documents._________________22 YblLC, Vol. II, p. 8 (1952). By naturalisation he means every nationality acquired subsequent to birth.

23 Sec. 6 of the Indian Citizenship Act provides that these conditions can be waived if, in the opinion of the Central Government, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally.24 Liechtenstein v. Guatemala, op. cit. 4. The extracts here are taken from D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet & Maxwell, London), 2010, p. 505 et seq.


On July 17, 1941, the United States blacklisted Nottebohm and froze his assets in the United States. War broke out between the United States and Germany, and between Guatemala and Germany on December 11, 1941. Nottebohm was arrested by Guatemalan authorities in 1943, and deported to the United States where he was interned as an enemy alien until 1946. After his release, he applied for his readmission to Guatemala, which was refused. He then took up residence in Liechtenstein, but Guatemala in the meantime had taken measures against his properties and confiscated them in 1949 under its legislation. On December 17, 1951, the Government of Liechtenstein instituted proceedings before the Court asking it to “adjudge and declare that the Government of Guatemala in arresting, detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his property without compensation acted in breach of their obligations under international law” and claimed damages from Guatemala.25 Guatemala contested the claim of Liechtenstein, and the principal objection to the admissibility of the claim was related to Nottebohm’s nationality. In its counter memorial, Guatemala stated that “it is the bound of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection”.The Court first explained the basic proposition in this regard that “it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalisation granted by its own organs in accordance with that legislation”.26 The Court often pointed out that the issue before it, however, was not pertaining to the legal system of Liechtenstein alone, but to the international law. “It is international law which determines whether the State is entitled to exercise [diplomatic] protection and to seize the Court” of a dispute.27 On this apparent conflict, the Court stated that:the diversity of demographic conditions has thus far made it impossible for any general agreement to be reached on the rules relating to nationality, although the latter by its very nature affects international relations. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such rules to the competence of each State. On the other hand, a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has acted in conformity with this general aim to making the legal bond accord with the individual's genuine connection with the State which assumes the defence of its citizens by means of protection as against other States.28 (emphasis added)The grant of nationality to be entitled to international recognition, and to be opposable to other States at the international plane, must at least coincide in manner or conditions with the circumstances in which States in general bestow their nationality. Further the Court stated that naturalisation “is not a matter to be taken lightly”. It does not happen frequently in the life of an individual. “It involves his breaking of bond of allegiance and his establishment of a new bond of allegiance”.To determine Liechtenstein’s right of diplomatic protection, it is to be resolved that “[a]t the time of his naturalisation does Nottebohm appear to have been more closely attached to______________________25 Nottebohm case, ibid., pp. 6-7.

26 Ibid., p. 20.27 Ibid., pp. 20-21.28 Ibid., p. 23.


his tradition, his establishment, his interests, his activities, his family tie, his intentions for the near future to Liechtenstein than to any other State?”The Court found that on this basis his relations were more strong with Guatemala where he had settled for 34 years and even after his naturalisation, he stayed there until removed in 1943. In contrast, his actual connections with Liechtenstein were extremely tenous, no settled abode, no prolonged residence in that country at the time of his application for naturalisation, and even after naturalisation he did not stay there. Naturalisation was obtained only to change his status as a national of a belligerent State to a neutral State, with the sole aim of coming within the protection of Liechtenstein “but not of becoming wedded to its traditions, its interests, its way of life, or of assuming the obligations ... and exercising the rights pertaining to the status thus acquired”.29 He did not possess the “effective nationality” of Liechtenstein. The facts clearly established, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long standing and close connection between him and Guatemala, a link which his naturalisation in no way weakened. The Court ruled that Guatemala was not obliged to recognise a nationality granted under such circumstances.The Court propounded the doctrine of “effective link” between the State and the individual for the purposes of exercising diplomatic protection in cases where nationality is granted by naturalisation. The “effective nationality” with international consequences, is the one which is accorded with the facts, and based on stronger factual ties between the person concerned and one of the States whose nationality is involved.

B. Loss of NationalityThere are different modes, found in State legislations, by which a person may lose his nationality.

1. Voluntary renunciationA person may renounce his nationality in a prescribed manner by signing a deed before a diplomatic or consular officer, or a registering authority,30 or by exercising the right of renouncing on attaining majority.31

2. Loss by operation of lawAn individual may be deprived of nationality due to his voluntary conduct. Legislation of many countries recognise numerous grounds on the basis of which an individual can lose his nationality. They are usually the acquisition of a new nationality, taking an oath of allegiance to another State, desertion from armed forces of which the individual is a national, entering into foreign military service without permission, etc. Long residence abroad is also a ground for losing the______________________29 Ibid., pp. 25-26.30 See 8 USC, Sec. 1481 (a) 6 and 7; Sec. 8 of the Indian Citizenship Act.31 Articles 19 and 24 of the French Nationality Code allow certain children who are entitled to French nationality to renounce it after coming to age. Sec. 8 of the Indian

Citizenship Act provides that for making a declaration of renunciation the person making the declaration be “of full age and capacity.”


nationality in many countries. Section 10 of the Indian Citizenship Act provides that a person may be deprived of his Indian citizenship (nationality) if the Government is satisfied that:a. the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact;b. the citizen has been disloyal or disaffected towards the Constitution of India as by law established; he has, during any war in which India is engaged, unlawfully traded or communicated with an enemy or associated with any business that is prejudicial to India;c. the citizen has, within five years after his registration or naturalisation, been sentenced in any country to imprisonment for a term of not less than two years; ord. he has been ordinarily resident out of India for a continuous period of seven years without being a student of any educational institution in a foreign country, or in the service of the Government of India or of an international organisation of which India is a member, and registered himself at an Indian consulate annually to retain his citizenship of India.

3. Involuntary loss of nationalityCompulsory expatriation of individuals from their country leads to loss of nationality, and in most of the cases, in statelessness. Large number of Jews lost their nationality during Hitler’s rein; also, refugees from Eastern European countries lost their nationality at the beginning of the cold-war era by the operation of such measures.32

4. By substitutionA person may lose nationality of a State when he acquires nationality in some other State by naturalisation. Section 9 of the Indian Citizenship Act provides for the automatic termination of Indian citizenship when an Indian citizen voluntarily acquires the citizenship of another country. This is done with a view to avoid the incidence of dual citizenship. But the provision will not be applicable where a person acquires the citizenship of another country while India is at war with any country, until the Central Government otherwise directs.Article 15(2) of the Universal Declaration of Human Rights states that “no one shall be... denied the right to change his nationality”. This provision, however, has to operate under the national laws.

C. Double NationalityOwing to variance in the nationality laws among States, cases of persons possessing double or multiple nationality may always occur. The double nationality may occur in many ways, viz.,______________________32 For example, see Art. 17.1 (2) of the Hungarian Nationality Act, 1948, depriving its nationals of their nationality if on going abroad, they contravene or evade the statutory provisions relating to departure from the country.


a person born in a foreign country to foreign parents would get the nationality of that country on the principle of jus soli, and of the country of the parents on the principle of jus sanguinis. The incidence of double nationality may arise also by marriage. A woman may acquire the nationality of her husband after marriage and, at the same time, continues to possess her original nationality. An individual may acquire double nationality through naturalisation in a foreign country without losing the nationality of his home State (if provided under the laws of his home State).Double nationality sometimes leads to undesirable consequences, that is, a person may not get the diplomatic protection from any of them, or both the States (and in case of multiple nationality all of them) may claim jurisdiction over the person. For this, Art. 4 of the Hague Convention on Conflict of Nationality Laws, 1930, states: “A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses”. A different case of dual nationality arises when one of the two States claims against a third State and the latter pleads that the other nationality of the individual is the effective or dominant nationality. A substantial jurisprudence supports the principle of the inopposability of the nationality of a third State in an international claim.33The Hague Convention, 1930, dealt with some of the difficulties arising out of double nationality. Article 5 provides that a person having more than one nationality may be treated in the third State as if he has only one nationality, and such a third State shall recognise exclusively either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appeared to be most closely connected. This idea has also been incorporated in Art. 2 of the European Convention on the Reduction of Cases of Multiple Nationality, 1963.

D. Statelessness34A person becomes Stateless when he does not possess the nationality of any State. This may be the result of lack of uniformity in the nationality laws of different States, change of sovereignty over a territory, and through denationalisation by the State of nationality. In such cases, a person may lose his original nationality without acquiring another nationality. Statelessness may also arise from gaps in national law or from the absence of nationality law when a new State comes into being. This may be remedied by reference to residence or domicile in conjunction with other principles of law concerning State responsibility and the nature of Statehood and territorial sovereignty.Statelessness causes great hardship and lack of security for individuals. Stateless persons do not enjoy the rights conferred by international law upon a national, for example, their interests______________________33 In the Salem case, Annual Digest of PIL Cases 6 (1931-32), no. 98, the tribunal found that Salem was a Persian national at the time of his American naturalisation, and held that it was not open to Egypt to invoke the Persian nationality against the claimant State, the US.34 The subject of statelessness has been under study for some time by the ILC and the General Assembly, see the Work of the International Law Commission, 3rd ed.

(1980), pp. 33-36. On the subject of statelessness, see generally, A.P. Mutharika, The Regulation of Statelessness under International and National Law, 2 Vols. (1980); Weis, op. cit. 1; A Study of Statelessness (UN, Department of Social Affairs), 1949.


are not protected by any State, they lack diplomatic protection, and are denied enjoyment of rights based upon reciprocity. So long as his personal status is doubtful, a Stateless person is also deprived from the enjoyment of many rights in a normal way, such as family rights and succession to property.35 In recent years, Statelessness has become a major problem. Attempts are under way since the time of the League of Nations to control it.The Hague Convention on Nationality Laws, 1930, in Art. 1 provides that the Contracting States agree to accord nationality to a person born in their territory who would otherwise be Stateless. Articles 13-15 of the Convention specifically dealt with this problem. The Universal Declaration on Human Rights, 1948, in Art. 15 provides that “everyone has the right to a nationality” and in para. 2, it states: “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality” (although in actual practice an individual does not enjoy this right). Some other international instruments also contain similar provision, like the freedom to leave any country, including one’s own.36Based on the work of the International Law Commission, the United Nations adopted a Convention on the Reduction of Statelessness, on August 30, 1961, which came into force in 1975.37 The Convention creates obligation for the granting of nationality on the basis of residence (five to ten years), with disqualifications for nationality, viz., persons committing offences against national security, sentenced on any criminal charge, or imprisoned for five years or more. In addition, it contains provisions enabling persons who would otherwise be Stateless to acquire the nationality by birth, or by descent. Other provisions control deprivation of nationality. A person who would otherwise lose nationality under certain circumstances, his loss of nationality will be dependent upon the acquisition of another nationality (Art. 8). Article 9 prohibits deprivation of nationality on racial, ethnic, religious, or political grounds. The Conference which adopted the Convention had also drew up a resolution recommending that persons who are de facto Stateless should, as far as possible, be treated Stateless de jure to enable them to acquire an effective nationality. Earlier also, a Convention relating to the Status of Stateless Persons was adopted on September 28, 1954, which entered into force in 1960.38

E. RefugeesClosely related to the problem of Statelessness is the issue of refugees. Attempts have been made to provide refugees with a certain status, regardless of the fact that they are often stateless de facto or de jure. Under the Convention Relating to the International Status of Refugees of October 28, 1933, the Contracting Parties assumed obligations towards Russian and Armenian refugees. In 1946, the United Nations General Assembly adopted the Constitution of the International Refugee Organisation, which functioned until 1952. Thereafter its main functions were taken over by the Office of the United Nations High Commissioner for Refugees (UNHCR)._________________________35 See Report of the ILC on the Work of its 5th Session (1953), para. 22; S.K. Agarwala, International law - Indian courts and legislature (N.M. Tripathi, Bombay), 1965, p. 97.

36 See Art. 12 of the International Covenant on Civil and Political Rights, 1966; the European Convention on Human Rights, Fourth Protocol, 1963, Art. 2, in force since 1968.37 For the text of the Convention, see 11 ICLQ (1962), p. 1090.38 360 UNTS 117; UN Doc. No. E/Conf. 17/5 Rev 1.


In 1951, at Geneva, a Convention on the Status of Refugees was adopted by the United Nations Conference and later in 1967, a Protocol to the Convention conferred certain important privileges on refugees, viz., allowing the use of identity or travel documents, privileges of admission, carrying a vocation with right of residence, national treatment with regard to some rights, such as freedom of religion, most-favoured-nation treatment in wage-earning employment and the right of association. It stipulates that in other contexts, including education (other than elementary), refugees are to receive treatment as favourable as possible, and not less than that accorded to aliens as a class. No refugee may be expelled to a territory “where his life at freedom would be questioned” (Art. 32(1)). But if he is a security risk or convicted of a serious crime, this rule is not applicable (Art. 33(2)).In addition to these, however, clear provisions are required under international law obliging States not to resort to denationalisation measures unless there are compelling reasons. It is also necessary that both under international law and municipal law, there should be a strong presumption against the loss of nationality for all purposes and heavy onus should be discharged before the loss is recognised. If there is any chance of resumption of nationality, that must be explored, and it also means onus has not been discharged beyond doubt.

III. EXTRADITIONThe term extradition has been derived from two Latin words ex and traditum, which means “delivery of criminals”, “surrender of fugitives” or “handover of fugitives”. It is a well-established principle of international law that a State cannot exercise acts of sovereignty upon the territory of another State; thereby if a criminal escapes to another State, he would be immuned from seizure and trial by the former State. On the other hand, the State where he has taken refuge may find it difficult to punish a person who has committed a crime elsewhere, primarily for lack of jurisdiction or for any other technical reason. In such a case, the person may be extradited to the State where the crime is committed upon its request. When the request is made for the extradition to the State where the fugitive criminal has taken refuge, it is the courts and executive of the requested State which decide whether or not to surrender the individual concerned. Extradition, therefore, is the surrender by one State to another of an alleged or convicted criminal in respect of a crime over which the latter State has territorial competence to exercise jurisdiction.39 Crimes committed on ships or aircrafts flying a State’s flags are considered to be committed on State’s territory.Extradition is based upon the principle that an individual should not be allowed to escape responsibility for the common types of crimes (male in se), and no crime should go unpunished. It is part of the comity of nations that a State should provide every assistance to another State in bringing the guilty persons of such crimes to justice.40 For the purposes of evidence to try the offender, the State where the crime has been committed is in a better position to try him and has the greatest interest in punishing the fugitive.There exists no duty to extradite under international law except for war crimes. Extradition usually takes place under a bilateral treaty, creating reciprocal rights to claim extradition of

______________________39 D.W. Greig, International Law, 2nd ed. (Butterworths, London), 1976, p. 408.40 Lord Russell in Re Arton (No. 1) (1896) I QB 108, at p. 111.


fugitives.41 State practice has established that not only is there no duty to extradite in the absence of a treaty, but also that there is no authority with the State executive to extradite in the absence of such a treaty nor would the surrender of fugitives be requested in the absence of such a treaty. The Supreme Court of the United States in Factor v. Lubenheimer42 stated that international law recognises no right of extradition apart from treaty. It observed that:While a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled, and it is said that it is under a moral duty to do so ... the legal right to demand his extradition and correlative duty to surrender him to the demanding country exist only when created by treaty”.In the absence of treaty or statute, the grant of extradition depends purely on reciprocity or courtesy. Conditions in the extradition treaty must be generally fulfilled. In the Savarkar case (1911), Savarkar escaped from the British ship bringing him to India, was apprehended by the French Police at the port of Marcelese and handed over to the captain of the British ship. The French Government demanded his return, on the ground that he was wrongly handed over without the rules of extradition being strictly observed. The Permanent Court of Arbitration held that though international law does not impose any obligation to extradite, but if extradited, even in an irregular manner, the receiving State is not bound to return the fugitive.

1. RenditionWhen there is no extradition treaty between two States, an offender may be returned to a State to stand trial there, by an ad hoc special arrangement. This recourse may be taken even if there is an extradition treaty and irrespective of the fact that the alleged offence is an extraditable crime or not.43 In certain cases, deportation or refusal of asylum may have the effect of rendition.

2. Extradition and expulsionExtradition is different from expulsion. Every State possesses the absolute and unfettered power to expel, deport and reconduct aliens.44 It is an incident of a State’s territorial sovereignty but it must be effected in a reasonable manner and without unnecessary injury to the alien affected. The expulsion of Ugandan-Asians by the Government of Uganda in 1970, led to untold miseries and in certain cases led to Statelessness of the affected people. Article 13 of the Covenant on the Civil and Political Rights, 1966 provides that an alien lawfully in___________________41 There are certain multilateral treaties on extradition, e.g., the European Convention on Extradition, Dec. 13, 1957 (by the Council of Europe); the Arab League Extradition. Agreement (by the Council of the League of Arab States) of Sept. 14, 1952. Such regional conventions contribute towards the trend of creating general rules of extradition.42 2 90 US 276 (1933).

43 But see the order of the First Class Magistrate, New Delhi, dated March 29, 1963, in Tarashov Extradition case (1963) 3 IJIL (1963) 323 at 325, where the Indian Court discharged the fugitive because there was no treaty between India and the USSR, but only a request for extradition by the USSR. A notification issued by the Government of India, extending the provisions of Extradition Act, 1962, to the USSR, could in no case be called a formal treaty.44 “Reconduction” amounts to a police measure whereby the alien is returned to the frontier under escort.


the territory of a State may be expelled only pursuant to a decision reached by law. Article 33 of the Geneva Convention on the Status of Refugees, 1951, also provides that an alien should not be deported to a country or territory where his person or freedom would be threatened on account of his race, religion, nationality or political views.Extradition, on the other hand, deals with criminals and those accused of crimes. It takes place only under a treaty obligation, and certain persons whose extradition is demanded under the treaty are handed over to the requesting State for prosecution and punishment. But despite a treaty, a State may still refuse to extradite.45 Further, once the person is expelled, it is not the concern of the expelling State where the alien goes, but in extradition, it is done in the interest of the requesting State and the alien is handed over to it.In India, expulsion takes place under the Foreigners’ Act, 1946, and extradition under the Extradition Act, 1962. Extradition is done by India only when conditions under the Act are satisfied.

A. Procedure and Law on ExtraditionThe procedure and grant of extradition primarily depend upon the municipal law rather than on international law. States generally adopt legislation laying down the conditions and manner to extradite the fugitive offender. Because of divergence in State practice, the law on extradition is unsettled and differences exist on matters like extraditability of the nationals of the State of refuge, evidence of guilt required for extradition and the relative powers of the executive and judicial organs in the procedure of surrendering the fugitives. But, in spite of these differences, the bilateral treaties, national laws of States and the judicial decisions of municipal courts have led to develop certain principles on extradition, which are now well-entrenched in the corpus of international law. Before the extradition is effected, it is necessary that there must be an extraditable person, and an extraditable crime. A request for extradition is made through the diplomatic channel.

1. Extraditable personIt is a well-established practice that a State may seek extradition of its own nationals or of nationals of a third State. A requested State is not obliged to extradite its own nationals, though it is not an absolute rule, and a State can extradite its own nationals on the basis of reciprocity. Many States insist on such a provision in their extradition treaties. It is because nations insist on their right to exercise criminal jurisdiction over their nationals; even though the offence is committed abroad.46 Furthermore, refusal to extradition does not mean non-prosecution of the criminal, and in such a case, the maxim aut punire aut dedere may be applied, which means the offender must be punished by the State of refuge, or surrendered to the State which can and will punish him.______________________45 See Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Cal. and others, AIR 1955 SC 367, in which the Supreme Court held that even if there is a requisition and a good case for extradition, the government is not bound to accede to the request, because Sec. 3(1) of the Extradition Act gives the government discretionary power.

46 See supra Ch. 7.


2. Extraditable crimeThe crimes for which extradition can be ordered must be listed in the treaty with the requesting State as well as they must be set in the relevant Act.47 Generally States extradite only for serious crimes. But as a general rule, States do not extradite persons charged of political offences, military offences (desertion, etc.) and of religious offences.

3. Extradition of political offendersUnder customary international law, political offenders are not extradited and this rule is based on considerations of humanity. However, the extradition of political offenders has always remained controversial because of the difficulty in defining a “political offence”. Oppenheim says that “many writers consider a crime ‘political’ if committed from a political motive, others call ‘political’ any crime committed for a political purpose; again others recognise such a crime only as ‘political’ as was committed both from a political motive and at the same time for a political purpose ... some writers confine the term ... to certain offences against the State only such as high treason, lese majeste and the like”.48 Whether or not the offence is political, is entirely a matter for the courts of the requested State to decide. In the absence of precedents, the courts are bound to draw upon the approach taken by other States in the matter.An important test was laid down by the English courts in the cases of Re Castioni and Re Meunier. In Re Castioni,49 the prisoner was arrested on a warrant for his extradition to Switzerland. In the course of an uprising in which a number of citizens of the Canton of Tigno (in Switzerland) had seized weapons and had captured the municipal palace, the prisoner had shot a member of the Canton Council in the course of seizing the palace. The court, while holding that the prisoner should be discharged from custody because of the political nature of the alleged crime of murder committed by him, stated that in order to avoid extradition “for such an act as murder ... it must at least be shown that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a political rising, or a dispute between two parties in the State as to which is to have the government in its hands”.50In Re Meunier,51 extradition was sought of a prisoner who had committed two anarchist bomb explosions in a Paris cafe and two military barracks in France. The Court refused to hold his crime as political and stated that “in order to constitute an offence of a political character, there must be two or more parties in the State, each seeking to impose the government of their______________________47 See Rambabu Saxena v. State, AIR 1950 SC 155, in which the petitioner contended that he cannot be extradited because the treaty did not mention the crime for which the extradition was sought. But the Supreme Court held that he can be extradited when the treaty authorised the Indian Government to grant extradition for some additional offences, not listed in the treaty, thus giving the other party power to seek extradition.48 L. Oppenheim, op. cit. 5, p. 707.49 [1891] 1 QB 149.50 Ibid., at p. 156.

51 [1894] 2 QB 415.


own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not”.These cases confined the notion of “political offence” to inter-party strife within a State. But the meaning was extended in ex pane Kolezynski,52 in which a group of Polish seamen seized control of the trawler on which they were serving and sailed the vessel to an English port where they sought “political asylum”. The request for extradition was also made. The court held that the offences committed with a political objective (e.g., anti-communism) or to avoid political prosecution for political defaults or political persecution are political crimes, notwithstanding any intention to overthrow the government. It also pointed out that the words “offence of a political character” “must always be considered according to the circumstances present at the material time when the alleged crime was committed”.53 In Cheng v. Governor of Pentoville Prison,54 it was further laid down that there should be a connection between the offence and politics of the requesting State; acts committed with the aim to induce the government of the State to change its policy, or to change the government, or to enable the offender to escape from the jurisdiction of a government of whose political policies he disapproved but despaired of altering are political offences.But there are cases of “relative political crimes” (debits complexes), i.e., those cases in which the political offence also comprises an ordinary crime at the same time, such as murder, arson, theft, etc. The act might have been done with a political motive or a political purpose, but in ordinary circumstances, it ought not to be considered political.55 To deal with such cases, attempts have been made in the past to define the nature of crime for extradition purposes, viz., the attentat clause, i.e., the attempt on the life of the head of the State of a foreign country or his family, shall not be considered political offence.56 War criminals or persons charged with the crime of genocide (Art. VII, the Genocide Convention, 1948) are not considered political and criminals could be extradited.Thus, the political character of the offence, preponderantly is determined by reference to the circumstances attending its alleged commission. Nevertheless, it is well-established in the State practice that if the act does not have any close relation with the political aims, even though committed during the course of a political controversy or by persons politically opposed to the requesting State, it will be considered as an ordinary crime, including crime of violence, and will be extraditable. However, because of the different political systems and ideologies, the differences in tackling crimes for extradition purposes are not likely to be avoided. The issue______________________52 [1955] 1 QB 540.53 See Schtraks v. Government of Israel [1964] AC 556 esp. at pp. 591-92. See also, Re Extradition of Locatelli, 468 F. Sup. 568 (1979).54 [1973] AC 931.55 In Re Kutir [1961] 56 AJIL 224-227, the Swiss Court refused the French request to extradite the criminal who killed his fellow countryman from Algeria in France as being a relative political crime. Both men were the members of the Algerian Front for

National Liberation (the FLN), and the victim was suspected of “treason” against the cause for which Kutir killed him.56 The clause was first introduced by Belgium in 1856, in its extradition law (Art. VI of the Act). The Russian Project of 1881 had also the similar proposal. According to Sec. 10 of the Swiss Solution, 1892, if the chief feature of the act contained more aspects of an ordinary crime than political, the offender will be extradited.


of “political crime” is closely related to the issue of “political asylum”, which a sovereign State is empowered to decide under its municipal law.Even though the States generally do not extradite their own nationals, but in extraditing the nationals of the requesting State or of the third States, the following principles are generally followed by States:

(a) Rule of Double CriminalityAccording to the rule of double criminality, the crime for which extradition is sought must be punishable under the law of the requested State (where the fugitive has sheltered) and of the requesting State. In order to fulfil this condition, a list of extraditable crimes is attached in the extradition laws of some States, and generally a list of extraditable crimes for which extradition can be affected is attached to the treaty also. The Indian Extradition Act, 1962, has adopted both these approaches. The Second Schedule to the Act lists the crimes for the purposes of extradition. This list applies to cases of extradition with Commonwealth countries and also to those with which India has no treaty, but reciprocity exists. If there is a treaty with any State, a list is attached to it for the extraditable offences. Extradition is limited to such offences only. But if the crime does not find mention in the treaty, it is difficult to extradite. To overcome this difficulty, States sometimes insert a general clause in the treaty for extraditable crimes with minimum penalty under the laws of both the States.57The rule of double criminality, however, is subject to judicial interpretation and can be deviated.58 Substantial similarity between the alleged extradition crime and the crime punishable is sufficient to bring into effect the double criminality rule. It is also often related to the problem of punishment, i.e., that the crime is punishable for man-slaughter in the State of refuge, but amounts to murder, which is punishable with death sentence in the requesting State. In such cases, the requested State sometimes refuses to extradite. For this, generally extradition treaties provide for taking an assurance from the requesting State not to execute death penalty if it is imposed.59 Abu Salem case is in point.Abu Salem, along with his girl-friend Monica Bedi, was extradited to India in 2005 from Portugal, after the Indian government gave a solemn assurance before the Portuguese court that if convicted they would not be sentenced to death. The assurance was given since European law prohibits extradition of any accused to such a country where capital punishment is in______________________57 See the French law, prescribing definite minimum penalty. Under Art. 3(1) of the Indo-Canada Extradition Treaty, 1987, any crime with minimum penalty of one year in both the countries is extraditable.58 See Factor v. Lubenheimer. op. cit. 42, where the US Supreme Court allowed extradition of Factor to Britain on charges of fraudulently obtaining money in London, which was not a crime in the State of Illinois, where he had taken refuge at that time.59 See Art. 6 of the Indo-Canada Treaty 1987. See also Soering v. UK, 28 ILM 1063 (1989); 83 AJIL 129 (1989), in which Soering after committing murder in US, for which the punishment was death sentence, fled to UK, where he was found guilty for manslaughter. He challenged his extradition, before the Divisional Court, on the basis of

Art. IV of the US-UK Extradition Treaty, incorporating the rule for non-extradition unless there is an assurance against execution of death penalty. Upon the US giving such an assurance, Soering was extradited. The European Court on Human Rights in this case held that Soering’s extradition to US, risking him to death penalty would involve inhuman or degrading treatment, which is violative of Art. 3 of the European Convention on Human Rights, particularly his exposure to the so- called “death-row phenomenon”, see Council of Europe Doc. H (87) 4.


vogue. Abu Salem was accused of Mumbai blasts of 1993 and was trailed by the CBI from the United States to Portugal. As there was no extradition treaty between India and Portugal, political considerations played a major role in extradition. Indian government sought his extradition under the United Nations Convention on Suppression of Terrorism of 2000 under which all member-nations have to help each other in the war against terrorism. Portugal and India are both signatories to the Convention. Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can do so even by exercise of executive discretion.

(b) The Principle of SpecialityUnder this principle, the requesting State is under a duty not to try or punish the offender for any other offence than that for which he was extradited. This principle finds a fair mention in extradition treaties and laws,60 and is also supported by judicial practice. In the case of United States v. Rauscher,61 Rauscher was extradited from Britain to the United States on the ground for murdering a fellow servant on an American ship. In the United States, Rauscher was tried not for murder but for causing grievous hurt to a man named Jansen. The United States Supreme Court held that when a person is brought before the court under the extradition treaty, he may be tried only for such offence for which his extradition is sought. It was thus clearly implied that the requesting State cannot exercise jurisdiction with respect to a charge other than that for which the accused was extradited. But in R. v. Corrigan,62 the appellant had been extradited from France under the treaty on the charge of obtaining money by false pretenses, but was tried for fraudulent conversion upon the same facts that had been the basis of the original claim for extradition. The English Court held that a court has the jurisdiction if the same facts on which he was extradited are referable to the crime for which he is tried.

(c) Prima Facie EvidenceBefore a person is extradited, there should appear to be a prima facie case of crime against the fugitive.63

(d) The Offence must be of a Non-political CharacterTo be extraditable, the offence must be of a non-political character, i.e, the extradition can be granted for common crimes, or those of a purely fiscal nature to safeguard the public interest. International law does not lay down the nature of crimes for which a person can be extradited. In the case of Dharm Teja, who was the Managing Director of the Jayanti Shipping Corporation (a Government of India Undertaking), after embezzling crores of rupees, fled to Ivory-Coast with which India had no extradition treaty. Later, while he was in England, on the request of the Government of India, he was taken into custody and finally was extradited to India in April 1971, and convicted in 1972. He was freed after three years. But he again left the country it 1978, after evading four crores in income tax, but no extradition proceedings could be initiated______________________60 See Sec. 31(d) of the [Indian] Extradition Act, 1962, for speciality principle.

61 (1886) 119 US 407.62 [1931] 1 KB 527.63 See the Tarashov Extradition case (1963), op. cit. 43, where the Court did not find any prima facie case against the accused; see also AIR 1958 SC 98; and Sec. 7(3) of the Extradition Act.


against him as there was no criminal charge against him, income tax evasion is not a crime for extradition purposes.

(e) Time-Barred CrimesA fugitive criminal is generally not extradited if prosecution for the offence in respect of which extradition is sought has become time barred in the requesting State.64 He may also not be extradited if he has been tried and convicted for the same offence in the requested State.In the matter of extradition, the governments enjoy unfettered power to refuse extradition, in spite of the power of the court to look into the nature of the crime. Under Sec. 29 of the (Indian) Extradition Act, the Central Government may refuse extradition if the application for extradition is not made in good faith, or in the interest of justice or for political reasons or if it is unjust or inexpedient to surrender or turn the fugitive criminal.

B. Law on Extradition in IndiaThe Extradition Act, 1962 (Act XXXIV of 1962) lays down the law and procedure on extradition in India. Prior to that, there existed the 1903 Act, which supplemented the British Extradition Act, 1870, and the Fugitives Offenders Act of 1881. The 1962 Act stipulates that all extradition treaties made before August 15, 1947, are binding on India (Art. 2(d)). A request for extradition is made to the Government of India by a diplomatic representative of the foreign State and on receiving such a request, the Central Government may issue an order to any magistrate having jurisdiction to inquire into the offence. The magistrate then issues an order of arrest against the fugitive criminal and shall inquire the case on the basis of evidence. If he is satisfied that there is no prima facie case against the fugitive criminal in support of the requisition of the foreign State, he shall discharge him. On the other hand, if a prima facie case is made out against him, the magistrate shall make a report and forward it to Central Government. On receipt of such a report, the Central Government may issue a warrant for the custody and removal of the fugitive criminal and for his delivery at a place and to a person to be named in the warrant (Ch. II). A magistrate may also on his own initiative issue a warrant for the arrest of a foreign fugitive criminal present within his jurisdiction and report the matter along with the evidence or certified copies to the Central Government, and on receiving the order, proceed with the case as stated above (Sec. 9). In the matter of exercising jurisdiction over a fugitive criminal, the Supreme Court in the case of Mubarak Ali Ahmad v. State of Bombay stated:The fastening of criminal liability on a foreigner in respect of culpable acts or omissions in India which are judicially attributed to him notwithstanding that he is corporeally present outside India at that time is not to give any extra-territorial operation whose locality is in India, that the liability is fastened on the person and the punishment is awarded by the law, if his presence in India for the trial can be secured.65In this case, the petitioner, while on trial for forgery and fraud in the Sessions Court, Bombay, fled to Pakistan, and from there he went to England. The Indian Government got him extradited______________________

64 See Sec. 31(b), Extradition Act, 1962.65 AIR 1957 SC 857 at p. 868. See also Ch. 7, p. 149.


under the (British) Fugitive Offender’s Act. He was brought to Bombay to stand trial. While he was facing trial and lodged in Bombay Jail, a person brought a case against the petitioner for cheating for which the Presidency Magistrate issued a warrant against him. He argued that he was a Pakistani national and was out of India during the period when the offence was alleged to have been committed. But this argument was rejected by the Supreme Court, which held that the Indian courts would have jurisdiction over a case in which a person committed an offence although not being present in India at the time of commission of the offence.66Other important decisions, relevant on the law of extradition, rendered by courts in India are Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Cal. and others,67 State of Madras v. G. C. Menon,68 and Rambabu Saxena v. State.69

IV. ASYLUMAsylum70 means refuge and active protection granted by a State to a person seeking such a refuge and protection on the territory under its control. Thus, asylum is granted on the request of the person concerned and it involves more than merely a temporary refuge and a degree of protection by the authorities of the State of refuge. Asylum is closely connected with extradition, and both are interdependent in as much as where the asylum stops extradition begins. If a fugitive is not surrendered or returned by the sheltering State to the State where he is alleged to have committed the crime, then he may be allowed to remain in the State and would be granted asylum. Once the territorial State (State of refuge) decides to extradite him, the question of asylum does not arise at all. Usually, asylum is relevant in the context of “political asylum” and, if extradited, there is a fear of political persecution in his own country. Since the late nineteenth century, liberal tendencies have favoured the practice of granting asylum to political offenders.The right to grant “asylum” is an aspect of a State’s territorial sovereignty. It has been recognised in Art. 1 of the Draft Convention on Territorial Asylum emerged from the discussions in the United Nations General Assembly in 1974-75, that every State has the right, in the exercise of its sovereignty to admit any person into its territory. A State has the power to allow an alien to enter or remain in its territory at its discretion, subject to any duty to extradite the individual to a requesting State with which it has an extradition treaty, barring a political offender. Thus, States have complete freedom to put restrictions on their territorial jurisdictional right by concluding treaties, and agreeing to extradite persons. But the asylum is generally motivated by human considerations and involves an adjustment between the legal claims of State sovereignty and the demands of humanity.______________________66 Ibid., at p. 869.67 See op. cit. 45.68 AIR 1954 SC 517, for details, see Ch. 3, p. 77.69 Op. cit. 47.70 See generally on the subject V. Bevan, The Development of British Immigration Law (1986); R.C. Hingorani (Ed.), Humanitarian Law (Oxford & IBH Publications, New Delhi), 1987, pp. 121-131.


A. Kinds of AsylumAsylum may be territorial (or internal), granted by a State on its territory, or extra territorial, which is granted at the legations, consular premises, international institutions, headquarters and warships (public ships).71

1. Territorial asylumStates have an inherent right, as an attribute of their sovereignty, to grant asylum in their territory to all kinds of refugees, including the fugitive offenders, but they are not under a legal obligation to grant asylum to a fugitive. Normally, a State refrains from granting asylum to aliens held on a foreign vessel within its territorial waters. But it is very controversial whether a State can grant asylum to prisoners of war detained by it, and who are unwilling to be repatriated for the fear of persecution, for example as happened after the Korean conflict in 1953. The territorial asylum has been classified into: (i) political asylum, i.e., for political defectors; (ii) refugee asylum, i.e., for those who fear persecution in their own country, and (iii) general asylum, i.e., for persons who have deserted their country to seek economic betterment but do not enjoy the status of immigrants.72

2. Extra-territorial asylumAsylum granted by a State not on its physical territory, but on its notional territory, like in legation and consular premises in the physical territory of another State, and on warships, is called the extra-territorial asylum. The grant of such an asylum is not inherent and its extent and scope is not well-defined under international law.

(a) Diplomatic AsylumThe granting of asylum in the legation premises is known as diplomatic asylum but it is an exceptional measure and controversial. The Vienna Convention on Diplomatic Privileges and Immunities, 1961, contains no provision on the subject although in Art. 41, reference to “special agreements” makes room for bilateral recognition of the right to give asylum to political refugees within the mission premises. But para. (3) of Art. 41 of the Convention provides that the premises of the mission shall not be used in a manner “incompatible” with the functions of the missions. It is also doubtful if a right of diplomatic asylum for either political or other offenders is recognised by general international law.73 However, a qualified right of diplomatic asylum is accepted under the Havana Convention on Asylum, 1928, in Art. 2(1),74 and a regional custom on the subject______________________71 It may be extended to State aircrafts flying its flags.72 J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 358.73 See Harvard Research Draft, 26 AJIL Supp. 62-66 (1932), Art. 6; M. Sorensen (Ed.), Manual of Public International Law (Macmillan, New York), 1968, p. 409; Asylum case (1950) ICJ Rep. 266, at pp. 282- 86; for contrary view, see Morgenstern, 25 BYblL, pp. 236-61 (1948); and ibid., 67 LQR 362 at p. 381 (1951).

74 See also the Montevideo Convention on Political Asylum, 1933.


seems to exist in Latin America.75 Generally, a State claiming to have such a right must expressly establish it. But, on the other hand, in the absence of any clear rule, a territorial State is not bound to respect such an asylum. It must, by an express consent, agree to do so.In the Asylum case (Columbia v. Peru),76 the Court stated:In the case of extradition (territorial asylum), the refugee is within the territory of the State of refuge.... In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.The Court also stated that the practice of States in the matter of diplomatic asylum is laden with uncertainty and contradiction.77 Whereas the power to grant territorial asylum is an incident of territorial sovereignty itself, but the granting of extra-territorial asylum is rather a derogation from the sovereignty of the territorial State which has to acquiesce in the action of State granting asylum by not apprehending the fugitives who enjoy its protection. Such an asylum, however, is generally granted to political refugees.Although there exists much uncertainty about the existence of the right of diplomatic asylum, a number of principles are supported by State practice in this regard:i. there is no general right of diplomatic asylum existing under international law, except in the Latin American region;78ii. where there is a well-established local custom, the diplomatic asylum is permissible (cf. Asylum case);iii. under a special treaty between the territorial State and the State of refuge, it isadmissible;iv. temporary shelter may be provided in the mission premises to individuals whose lives are in immediate danger (e.g., if pursued by a Violent mob), or where the fugitive is in peril because of extreme political corruption in the territorial State, in order to tide over imminent threat temporarily. Because of the inviolability of diplomatic premises______________________75 See the Asylum case, op. cit. 73, at p. 295; Haya de la Torre case, (1951) ICJ Rep., p. 71; see now the Inter-American Convention on Diplomatic Asylum, 1954.76 Ibid., at pp. 274-75. For the facts of the case, see Ch. 2, pp. 27-28.77 Ibid., at p. 271.78 Judge Alvarez (from Latin America) in his dissenting opinion in the Asylum case, ibid., at p. 295, stated that there is no customary American international law of asylum, properly speaking. There are certain practices, followed by these States, which are: (1) Asylum is granted only in cases of political offence and not to common criminals. (2) Asylum is granted in accordance with the laws and usages of the State of refuge, and it is for the latter to appreciate whether the offence committed by the refugee is a political offence or a common crime. (3) The territorial State may request the departure of the refugee from its territory and the State of refuge may then require the former State to

deliver a safe conduct enabling the refugee to leave the country safely. (4) The State which has granted asylum sometimes, with the same end in view, requests that a safe conduct be issued to the refugee.


(Art. 29(1) of the Vienna Convention, 1961), the surrendering of the criminal can be taken up by the territorial State with the foreign State concerned;v. asylum may be granted in the consular or diplomatic premises as a matter of agreement between the host and the sending State.79Although the right of diplomatic asylum exists among a number of Latin American States, its precise limits are ill-defined. This right primarily depends upon treaty provisions, viz., the 1928 Havana Convention on Asylum, and the 1933 Montevideo Convention on Political Asylum, and to some extent on common unarticulated understanding. However, it is doubtful whether there exist any customary rules elaborating the framework established by conventional obligations. In the Asylum case, the Court observed that:asylum as practised in Latin America is an institution which, to a very great extent, owes its development to extra legal factors. The good neighbour relations between the republics, the different political interests of the governments, have favoured the mutual recognition of asylum, apart from any clearly defined juridical system. Even if the Havana Convention, in particular, represents an indisputable reaction against certain abuses in practice, it no way tends to limit the practice of asylum as it may arise from agreements between interested governments inspired by mutual feelings of toleration and goodwill.80The dissatisfaction and uncertainties raised by the Asylum case on the existence of a legal right of asylum peculiar to Latin America led to the conclusion of an inter-American Convention on Diplomatic Asylum, adopted at Caracus in March 1954. The Convention empowers the asylum granting State to categorise the nature of the offence for which the fugitive criminal’s arrest is sought, and to decide upon the urgency of the circumstances required before the asylum can be validly granted.81 However, the Convention has not been widely ratified, and the United States even refrained from signing the original draft on the ground that it did not recognise any general right of diplomatic asylum. Nevertheless, the majority of States in Latin America recognise the inviolability of the diplomatic premises, which is extended to cover the immunity from arrest for a fugitive granted asylum in those premises.The legal framework of the right of diplomatic asylum, nonetheless, still remains unclear. This lack of clarity was vividly highlighted by the events in Chile when in September 1973, President Allende’s Government was overthrown. Many Chileans were granted asylum in foreign______________________79 For example, in the case of Cardinal Minszenty, by an ad hoc arrangement, he was granted asylum in the US Embassy, after an unsuccessful Hungarian Uprising in 1956. As long as he remained in the embassy, the Hungarian authorities made it known that they would not take any step to seize him.80 Asylum case, op. cit. 73, at p. 286. The Court’s conclusion that asylum is based on “extra legal factors” left the dispute over the fugitive, Haya de la Torre who had taken refuge in the Columbian Embassy in Peru after an unsuccessful rebellion, in an impasse. The only means, suggested by the Court, to resolve their dispute was through an agreed solution by the parties. In the process, Haya de la Torre spent five years in the Columbian

Embassy before Peru finally agreed to grant him a safe-conduct to leave Peruvian territory. See also the Haya de la Torre case, op. cit. 75.81 In the Asylum case, the urgency of granting circumstances was a disputing issue between Peru and Columbia, because Haya de la Torre, who had been at large for three months after the rebellion and against whom arrest was ordered by Peruvian authorities, reappeared in the Columbian Embassy in Lima and was granted asylum. Therefore, it was difficult to contend that his case was urgent.


embassy premises in Chile, and many of them were allowed to leave the country, but subsequently, the new regime announced that it would not recognise diplomatic asylum if granted in contravention of the provisions of treaties to which Chile was a party. This demonstrated that asylum granted even on humanitarian grounds without the support of any international convention endorsing such a right is not tenable under international law.The events in Chile had their impact in the United Nations. At the initiative of Australia (which refused to grant asylum in its embassy in Chile in 1973), the United Nations General Assembly in 1974, adopted a resolution (Res. 3321 (XXIX)), inviting member States to convey their views on diplomatic asylum to the United Nations Secretary-General who was requested to prepare and circulate a report “containing an analysis of the question of diplomatic asylum” to be considered in the 30th Session of the General Assembly (in 1975). The report paved the way for further clarification and development of the law on diplomatic asylum.The grant of asylum in legation premises is a question which is difficult to be settled under international law, mainly for the reason that the practice of States is not uniform. Political considerations often play a dominating role in granting asylum or in surrendering refugees. The Government of India does not recognise the right of diplomatic asylum. It made this clear vide its circular of December 30, 1967, sent to all diplomatic missions in India. It was further reiterated by the Indian delegate (Dr. Seyid Mohmad) on November 3, 1975, before the Sixth Committee concerning diplomatic asylum. He stated, “The practice of temporary refuge is clearly justified on grounds of humanitarian considerations. What is important is that this practice does not in any way involve withdrawal of the persons concerned from the jurisdiction of the State. In fact, it helps the territorial State as much as the refugee if he is returned to it after the cessation of the imminent danger to his life”.82 The general rules applicable to asylum granted in the legation premises are also applicable in relation to consular premises.

(b) Asylum in the Premises of International InstitutionsThere is no general right or practice regarding granting of asylum in the premises of international institutions and of the specialised agencies, even on humanitarian grounds, which is clearly evident from the Headquarters Agreements of these institutions. Although no case as yet has arisen, but theoretically temporary refuge in extreme cases (e.g., to shelter from mob frenzy) cannot be ruled out.

(c) Asylum on WarshipsThe warships and public vessels enjoy immunity under international law and because of the similarity with the rule that diplomatic premises are inviolable, it has been claimed that there exists an analogous right of asylum on board such ships. The diplomatic practice has also, to a great extent, assimilated the position of warships with the status of diplomatic premises in this regard. It is a generally held view that an individual, who is not a member of the crew and takes refuge on board a vessel after committing a crime on shore, cannot be arrested by the local authorities and removed from the vessel if the commander of the ship refuses to hand him over.83 On the other hand, some scholars are of the view that such an asylum should be

______________________82 For the text of the statement, see 15 IJIL 534 (1975).83 About public ships, see Ch. 7, pp. 192-194.


granted only on humanitarian grounds if the life of the individual seeking asylum is threatened. Asylum may also be granted to political offenders on warships.84Asylum on merchant ships, however, cannot be granted because merchant vessels do not enjoy immunity and are not exempted from the local jurisdiction.85

B. Right of AsylumUnder international law, there does not exist any enforceable right of a fugitive criminal to be granted asylum, although in the constitutions of certain countries, the right of asylum is expressly recognised for persons fleeing from persecution on political grounds.86 Efforts have been made to create such a right of asylum for individuals, in place of discretion which the States enjoy at present. The Universal Declaration of Human Rights prescribes the right “to seek and to enjoy in other countries asylum from persecution”, which is not to be invoked in the case of prosecutions “arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations” (Art. 14). In 1962, during a discussion on the Draft Covenant on Civil and Political Rights in the Third Committee of the General Assembly, some States unsuccessfully supported the inclusion of a new article on the right of asylum, mainly due to the difficulty in defining a “political offence”. On December 14, 1967, the United Nations General Assembly adopted a Declaration on Territorial Asylum, which recommended States to observe certain principles, stated therein, in granting asylum on their territory.87The important principles mentioned in the Declaration are: that the asylum granted by a State to persons seeking refuse from persecution should be respected by all States, but in principle, asylum should not be granted to persons for whom there are well-founded reasons that they have committed crimes against peace, humanity or war-crimes (Art. 1); the principle of non refoulement, i.e., the persons should not be rejected at the border, or if he has already entered the territory in which he seeks asylum, should not be expelled or deported. If it is not possible to grant asylum due to national security reasons, the State should consider granting provisional asylum and should help him in going to another State (Art. 3). If a State finds it difficult to grant or continue to grant asylum, States individually, jointly or through the United Nations should consider taking appropriate measures to lighten the burden of that State (Art. 2). This principle has been put into practice in the case of Rwandan refugees. In August 1995, Zaire ordered the expulsion of all refugees from Rwanda, who had fled their country in May-June 1994, due to civil war and had taken refuge in the neighbouring countries (mainly Tutzi tribe people), but due to the intervention of the United Nations High Commission for Refugees, and the promise of increased financial aid to Zaire, it accepted back all the refugees.______________________84 The 1928 Havana Convention forbids the grant of asylum on warships to persons accused of or condemned for a crime.85 D.P. O’Connell, International Law, Vol.II, 2nd ed. (Stevens & Sons Ltd., London), 1970, p. 814.86 See Preamble to the French Constitution, 1946; Art. 10 of the Italian Constitution, 1947; Art. 16 of the Constitution of the German Federal Republic, 1949.

87 UNGA Res. 2312(XXII) of Dec. 14, 1967; 62 AJIL 822 (1968); P. Weis, 7 Canadian YbIL (1969), 92- 149.


Nevertheless, the Declaration in itself does not create any enforceable right of asylum, as being merely a declaration. In an attempt to create such a right and binding obligations, a draft Convention on Territorial Asylum was laid down in 1974-75 and a United Nations Conference was held for its adoption from January 10, 1977 to February 4, 1977, but no consensus emerged at the Conference. The prospects of its adoption in future also appear to be bleak.88 This confirms the unrestricted right of a State in the matter of granting or withholding asylum, under its own domestic laws, policies and practices.______________________88 G.S. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Clarendon Press, Oxford), 1996, pp. 104-40.

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CHAPTER 10

Human Rights and Fundamental Freedoms

I. GENERALHuman rights1 are said to be those fundamental rights which every individual inhabiting any part of the world should be entitled to merely by virtue of having been born a human being. They are the basic rights or natural rights, which are inalienable and essential for the adequate development of human personality and for the happiness and progress of the human society. Being fundamental rights, they cannot be taken away by any act of the government or by the legislature of the country. This concept of human rights, imposing a responsibility on the State to respect and protect these rights is largely a post-1945 phenomenon.Prior to the Second World War, persons under the jurisdiction of a State were categorised as nationals and aliens, and not as individuals. As aliens they were protected from State actions under international law,2 but the treatment of nationals was regarded entirely within the domain of a State as a part of its domestic jurisdiction and not regulated by international law. However, in the nineteenth century an exception was created, which was largely accepted in favour of humanitarian intervention,3 for example, the collective humanitarian intervention by the great powers in the Turkish empire to prevent large scale atrocities and the French intervention in Syria (August 1860-June 1861) to prevent the recurrence of massacres of Maronite Christians. Before coming into force of the United Nations, there existed few treaty provisions regarding the treatment of minorities. The Covenant of the League of Nations although did not contain any provision in this regard but the execution of these treaty provisions were put under the guarantee of the League and could not be modified without the consent of the League Council. In some cases, clauses were included to bring the action for violation of treaty obligations before special tribunals, such as the Upper Silesian Tribunal. These treaties, however, were limited______________________1 On the international law of human rights, generally see T. Meron (Ed.), Human Rights in International Law (Clarendon Press, Oxford), 1984, 2 Vols; T. Meron, Human Rights Law Making in the UN (Clarendon Press, Oxford), 1986; A.H. Robertson, Human Rights in the World, 3rd ed. (Robertson and Merrills), 1989; P. Sieghart, The Lawful Rights of Mankind (1985); P. Sieghart, The International Law of Human Rights (Clarendon Press, Oxford), 1983; McDoughal, Lasswell and Chen, Human Rights and World Public Order (Yale University Press), 1980; H. Lauterpacht, International Law and Human Rights (Praeger, New York), 1950; Vasak and Alston (Eds.), The International Dimensions of Human Rights (Greenwood Press, Connecticut), 1982, 2 vols. Nagendra Singh, Human Rights and the Future of Mankind (Variety Books, Delhi), 1981; Steiner and Alston, International Human Rights in Context 2nd ed. (Oxford University Press) 2000; J. Rehman, International Human Rights Law (Longman) 2003.

2 See J.L. Brierly, Law of Nations, 6th ed. (Waldock (Ed.), Clarendon Press, Oxford), 1963, pp. 276-291.3 On humanitarian intervention, see infra Ch. 16, pp. 486-488.

Page 255 HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

in their ambit and related to minorities in question and did not create general obligations to respect fundamental human rights. The minorities rights covered under these treaties were the protection of life and liberty and the free exercise of religion without discrimination on grounds of language, race or religion, equality before law, and the freedom of organisation for religious and educational purposes. These rights were mainly civil and political in nature, but there was no protection of individual’s rights generally.In contrast to the League of Nations, the United Nations has shown a specific interest in the protection of minorities as such, and Art. 27 of the International Covenant on Civil and Political Rights, 1966, recognises the rights of the minorities “to enjoy their own culture, to profess and practice their own religion or to use their own language”.4 The other instruments which have recognised the minority rights are: the 1966 International Convention on the Elimination of All Forms of Racial Discrimination,5 and the 1986 Declaration on the Right of Development.6 There is also the 1992 Declaration on the Rights of the Peoples of Minorities. But the events in 1930s, in which the Jews and other races were subjected to appalling atrocities led to the increased attention to individual’s human rights. The Second World War shock the conscience of humanity and bore out the close relationship between human rights, peace and progress, because without the protection of human rights, there can be neither lasting security nor sustained economic and social development.7 Naturally, the promotion and protection of human rights and fundamental freedoms without any distinction became one of the purposes of the United Nations (Art. 1(3) of the Charter). It is the duty of the General Assembly to initiate studies and make recommendations for “the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion” (Art. 13). Similarly, the ECOSOC may also make recommendations for the purpose of promoting and observance of these rights and freedoms for all (Art. 62).8 It is also the objective of the Trusteeship System to encourage respect for-human rights and fundamental freedoms (Art. 76). More importantly, the United Nations is obliged to promote “universal respect” for and observance of these rights (Art. 55) and the member-nations pledge themselves to take joint and separate “action” in cooperation with the organisation to that end (Art. 56).It is, however, doubtful whether these Charter provisions, as such, create any binding legal obligation on the member-nations in the arena of human rights, apart from imposing a moral duty not to undermine the human rights, particularly with regard to their own nationals.9 Nonetheless, South Africa’s racial segregation policies adopted by the earlier regime were found______________________4 See also the UN Commission on Human Rights, 30th Sess., 1977, Res. 5 and 6 (xxx) and the Report of Capotorti, E/CN.4/Sub. 2/304 and Add. 1-7. There is also a separate sub-commission on the Prevention of Discrimination and Protection of Minorities.5 660 UNTS 195; reproduced in 15 ILM 352 (1966).6 GA Res. 41/126 of Dec. 4, 1986, UN Doc. HR/PUB/91/2, p. 65.7 This was eloquently declared in the Atlantic Charter of Aug. 14, 1941, between President Roosevelt (USA) and Prime Minister Churchill (UK). The Dumbarton Oaks proposals, 1944, also contemplated “to promote respect for human rights and fundamental freedoms”.

8 The ECOSOC his so far adopted 59 resolutions and decisions on human rights, including the Right to Development and the Rights of Ethnic, Religious and Linguistic Minorities.9 See L. Oppenheim, International Law, Vol. I, 9th ed. (Jennings and Watts (Ed.), Longman, London), 1996, p. 989; A.M. Robertson, The Law of International Institutions in Europe (1961), p. 53.


to be out of harmony with her obligations under the Charter.10 It is also controversial whether the United Nations can intervene in the matters of a State for human rights violations. The Charter prohibits intervention by the Organisation “in matters which are essentially within the domestic jurisdiction” of a State and intervention is allowed in pursuance of a decision of the Security Council under Chapter VII (Art. 2(7)), or by the General Assembly under its general competence to take “measures” under Arts. 11 and 14. But the United Nations actions in Bosnia-Herzegovina in 1992, and in Rwanda in 1993, under Chapter VII without the consent of the concerned States have established and justified the humanitarian intervention by the United Nations. In the Congo crisis, the measures initiated with the consent of the State concerned were also a form of humanitarian intervention. But humanitarian intervention, without the sanction under Chapter VII, is not without controversy.Theoretically, any matter that becomes of “international concern” may invite intervention, but barring any enforcement action under Chapter VII, intervention cannot take place without the consent of the State concerned, and the United Nations must confine itself in such matters to discussion and recommendations. On the other hand, protection of human rights is the fundamental purpose of the Charter, and violation of this obligation by a State cannot be considered essentially a matter of domestic jurisdiction. Gross human rights violations, as in South Africa under the earlier regime, call for the United Nations action, even without resorting to Chapter VII enforcement measures. But States have in the past, reacted sharply even to any “discussion” by the Security Council or the General Assembly on their domestic matters, as South Africa, or France for its action in Algeria. But barring any specific “recommendation”, mere discussion and recommendation of a general nature does not amount to intervention within Art. 2(7) of the Charter and the General Assembly logically can discuss and consider the breaches of human rights. If the breaches are of a grave nature, as to endanger international peace and security, it may call such situations to the attention of the Security Council (Art. 11(3)), which may address dictatorial injunctions.The United Nations Charter, however, has provided the requisite impetus for the further protection and improvement of human rights. There are more than 90 international instruments (declarations, resolutions and conventions) adopted by the United Nations since its inception to protect these rights,11 in addition to over 100 ILO conventions in force, out of which some were adopted during the League of Nations time. Apart from the 1948 Universal Declaration of Human Rights, and two international Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights, 1966, other notable instruments brought out under the aegis of the United Nations are: the 1948 Genocide Convention, 1951 Convention relating to the Status of Refugees, 1973 Convention on the Crime of Apartheid, 1953 Convention on the Political Rights of Women, 1979 Convention on the Elimination of All Forms of Discrimination against Women, 1966 Convention on the Elimination of All Forms of Racial Discrimination, 1984 Convention against Torture, 1986 Declaration on the Right to Development, 1989 Convention on the Rights of Child, 1989 Indigenous and Tribal Peoples Convention (ILO 169), 2006 International Convention for the Protection of All Persons from Enforced disappearance,

and the 2007 Declaration on the Rights of Indigenous Peoples. At the regional level, the European Convention on Human Rights,______________________10 J.L Brierly, op.cit. 2, p. 293.11 The latest instrument is the 2008 Declaration on Sexual Orientation and Gender Identity.


1950;12 the European Social Charter, 1961;13 the American Convention on Human Rights, 1969;14 and the African Charter on Human Rights and Peoples’ Rights, 1981,15 have been adopted. The four Geneva Conventions, 1949, and two additional Protocols to these “Red Cross” Conventions, 1977, on humanitarian law, and the Final Act of the Conference on Security and Cooperation in Europe, 1975, (the Helsinki Declaration)16 contain important provisions on human rights. Progress in the evolution of the international law of human rights has so far been made mainly through treaties. But international treaties and even declarations can, over time, obtain the status of customary international law. However, more important than the recognition of these rights, it is their actual formulation and enforcement which have not yet been perfected.

II. HUMAN RIGHTS: THE UNITED NATIONS APPROACHThe United Nations Charter, which has played the catalyst role in the human rights movement, however, did not define the fundamental freedoms and human rights, nor did it provide any machinery to secure their observance. This task was fulfilled by the subsequent United Nations instruments. The First was the Universal Declaration of Human Rights, adopted by the General Assembly on December 10, 1948,17 which elucidated the Charter provisions and defined expressly certain human rights and fundamental freedoms that need to be protected.The Declaration is not a legally enforceable instrument and some of the rights mentioned therein, viz., the right of asylum (Art. 14), could not be said to represent the legal rule, others are merely general principles of law or represent elementary considerations of humanity.18 The rights enshrined in the Declaration in its 30 articles are broadly divided into civil and political rights, and economic, social and cultural rights. Though legally not binding, the Declaration has gained considerable authority as a general guide of fundamental rights and freedoms for the member- nations and has affected the subsequent developments in the field of human rights and shaping the international instruments adopted in this regard. The Declaration, along with two human rights Covenants, 1966, has become the backbone of human rights jurisprudence world-over and finds an appropriate place in the legislations and constitutions of many new nations (e.g., Part III of Fundamental Rights in the Indian Constitution) and has been relied upon in the decisions of the courts.19 All this has provided the rules of the Declaration the status of customary international______________________12 213 UNTS 221, in force since Sept. 3, 1953, 23 parties.13 529 UNTS 89, in force since Feb. 28, 1965, 35 parties; Revised Social Charter adopted in 1996 came into force in 1999, 30 parties as on 13 Oct. 2010.14 1144 UNTS 123; 9 ILM 673, in force since 1978, as in 2010, 24 parties.15 21 ILM 59 (1982), in force since 1986, as of 15 June 2009, 53 parties.16 The Declaration is legally not binding. For the text, see 14 ILM 1292 (1975); see also Russell, 70 AJIL 242 (1976).17 GA Res. 217A (II), GAOR, 3rd Sess., Official Records, Part I, Resolutions, p. 71. The Declaration was adopted by 48 votes to none with eight abstentions.18 Cf. Corfu Channel case (Merits) (1949) ICJ Rep. p. 4, at 22.

19 For example, the European Court of Justice invoked it in the Golder case, 57 ILR 201 at 216-217 (1975) for the interpretation of Art. 6 of the European Convention on Human Rights; the ICJ in the case Concerning United States Diplomatic and Consular Staff in Tehran (1980) ICJ Rep. 3, at p. 42 (para. 91); referred by the Supreme Court of India in Jolly George Vergese v. The Bank of Cochin, AIR 1980 SC 470.


law. The rights enshrined in the Declaration are set “as a common standard of achievement for all peoples and all nations”. States shall “strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance” (Preamble).Among the human rights documents, however, the most important are the two Covenants adopted by the General Assembly in 1966: the International Covenant on Civil and Political Rights and its two Optional Protocols,20 and the International Covenant on Economic, Social and Cultural Rights.21 These two Covenants, Optional Protocols to the Covenant on Civil and Political Rights and the Universal Declaration on Human Rights together form the International Bill of Rights. The Covenants impose legal obligations in respect of these rights and provide machinery for dealing with complaints of violation of the Covenants obligations.Over a period, writers have started referring human rights in one of three generations. The two Covenants together represent the first two generations of human rights. The “first generation” consists of civil and political rights, mainly based upon natural rights philosophy of the eighteenth century thinkers, like Locke and Rousseau. The “second generation” consists of economic, social and cultural rights, which were propagated and recognised after the advent of socialism in the twentieth century. The emphasis in both has been on the individual’s rights The Universal Declaration which is the embodiment of the rights of both these generations gave them equal importance and made them interdependent. However, as late as in the 1970s, the “third generation” rights emerged with the predominant support of developing countries. In contrast to the individual’s rights (i.e., the first two generation rights), these are collective or group rights, such as the right to development, right to healthy human environment, right to peace and right of self-determination. They are enshrined in the Declaration on the Right to Development. Many western scholars are skeptical of labelling such group rights as human rights since they do not vest in, nor are exercised by, an individual.22 There are also problems in the realisation of these rights. For example, regarding the right to development, there is no difficulty in accepting the negative duty not to impede the development of a State, but its positive duty aspect to help in such a development involves a higher level of commitment which may not be easily forthcoming, as it has happened with the United Nations General Assembly Declarations in the realm of New International Economic Order (NIEO). Such a commitment rests principally on non-legal considerations. Article 27 of the International Covenant on Civil and Political Rights also provides for such group right for ethnic, religious or linguistic minorities in a State, and persons belonging to such minorities, “shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”.______________________20 Adopted by 106 votes to none, and Optional Protocol was adopted by 66 votes to 2, with 38 abstentions, see Report of the Third Committee, UN Doc. A/6546, Dec. 13, 1966, entered into force on March 23, 1976, as of October 2009, have 166 parties; as of September 2009, had 113 parties to the Protocol. The Second Protocol to this Covenant,

aimed at the Abolition of the Death Penalty was adopted in 1989, entered into force on 11 July 1991 and had 72 parties as of October 2009.21 Adopted by 105 votes to none, entered into force on Jan. 3, 1976, had 160 parties as of December, 2008. The United States ratified both the Covenants in 1992 with reservations and declarations.22 See P. Sieghart, supra note 1. Crawford considers peoples’ rights as a sub-category of human rights, see J. Crawford (Ed.), The Rights of Peoples (Clarendon Press, Oxford), 1988, pp. 65-66, 159-166.


The human rights instruments set the human rights standards to regulate most aspects of the relationship between the government and its people. However, it is the enforcement of these standards, which is vital for creating the culture of the observance of human rights and building the corpus of practice on international human rights law. Most of these instruments provide the machinery and procedure, albeit not so perfect, for the implementation and monitoring compliance with the standards stated in these instruments. In some cases, no machinery exists at all, like the Genocide Convention, 1948. Under most of these instruments, an individual does not have any direct recourse to any international organ to enforce its rights, and in certain cases, where such machinery exists, after receiving complaints from the individual, non-binding recommendations are generally made. The net result of all this is that the United Nations so far has not proved very effective in the prevention of the flagrant violations of human rights. Except under the European Convention for the Protection of Human Rights, 1950, a similar situation exists under other regional treaties as well.

A. Enforcement of Human Rights: United Nations MachineryUnder the Charter, the United Nations is obliged to promote “respect for, and observance of human eights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (Art. 55(c)). In furtherance of this, the ECOSOC, in February 1946, established the Commission on Human Rights (CHR) under Art. 68 of the Charter and was assisted in its work by the Office of the United Nations High Commissioner for Human Rights (UNHCHR). The Commission was considered to be the nearest approach to permanent machinery for the protection and promotion of human rights. The Commission has been replaced by the Human Rights Council in 2006.23 The Council is a subsidiary organ of the General Assembly and unlike CHR, which was reporting to the ECOSOC, the Council reports to the General Assembly. The CHR had been criticised for allowing countries with poor human rights records to be members.Apart from the Human Rights Commission, a Commission on the Status of Women was also established in 1946, which started first as a sub-commission of the CHR.24 It is charged with the functions of preparing reports and making recommendations to the ECOSOC to promote rights of women.25 There is also a Sub-Commission on the Prevention of Discrimination and Protection of Minorities established by the CHR in 1947, consisting of 26 members selected by the CHR, who work in their individual capacity. The Sub-Commission is entrusted with the task of prevention of discrimination and protection of racial, national, religious and linguistic minorities. The Sub-Commission commits its report on each session to the CHR.______________________23 UNGA Res. A/RES/60/251, 15 March 2006. In contrast to the Human Rights Commission, which had 43 members elected by the ECOSOC, the Human Rights Council has 47 members elected by the General Assembly: 13 from Africa, 13 from Asia, 6 from Eastern Europe, 8 from Latin America and the Caribbean, and 7 from the Western European and others States.

24 See ECOSOC Official Records, 1st year, 2nd Sess., p. 405 (1946). The Commission composed of representatives of the member-States of the UN, has a membership of 32 now, UN Doc. ST/HR/2/Rev. 2, p. 290 (1983).25 For the functions of the Commission on the Status of Women, see Res. 11(11) and 48 (IV) in ECOSOC Resolutions, 4th Sess., p. 34 (1947).


The work of the CHR was related to standard-setting, promotion activities and enforcement of human rights. In the area of standard-setting, the Commission was very active in the first few years after its coming into force when it prepared the drafts for the Universal Declaration of Human Rights and two international Covenants, and also the Convention on the Political Rights of Women, 1954. The promotional activities were mainly confined to holding regional seminars, advisory services, fellowships, etc. But later on the Commission’s role became more significant in the enforcement of human rights standards, for which it established special procedures to monitor human rights violations by member-nations.26 There are two kinds of procedures: country specific and thematic. The Sub-Commission on the Promotion and Protection of Human Rights was the main subsidiary body of the CHR. The Sub-Commission was composed of 26 elected human rights experts whose mandate was to conduct studies on discriminatory practices and to make recommendations to ensure that racial, national, religious, and linguistic minorities are protected by law.Under the special procedures, private complaints from individuals were received by the CHR (complainant’s identity was not divulged), and after ascertaining the nature of the complaint, the government concerned could be invited to give its observation, and if need be, the Commission would investigate the alleged human rights violations. Special procedures also included special Working Groups constituted of legal experts to ascertain violations on the complaints received from States.27 In pursuance of this, in 1967 the Commission constituted an Ad-hoc Working Group of Experts to investigate various aspects of human rights, including the situation of prisoners and detainees, in South Africa and Southern Africa under the apartheid policy of South Africa. In 1969, similar groups were established to ascertain the alleged violation of the 1948 Geneva Convention Relative to the Protection of Civilian Persons in Time of War by Israel, and in 1975 for Chile to control the opposition.28 In each of these cases, the State concerned was severely criticised.The communication received from individuals and Non-Governmental Organisations (NGOs) by the Secretary General of the United Nations was referred to the Sub-Commission on Prevention of Discrimination and Protection of Minorities,29 which was examined in private and in cases of gross violations, the Commission could appoint an ad hoc committee to undertake investigation with the express consent of the State concerned. Based on the report of the ad hoc committee, the Commission would submit a report and recommendations to the ECOSOC. But the procedure did not prove very successful because of the confidential nature of the proceedings and the intervention of bloc-politics in them.In order to overcome this drawback, in the 1980s, the Commission established a Working Group on Enforced or Involuntary Disappearances, and Special Rapporteurs on Summary or_________________26 The ECOSOC is empowered lo obtain reports from members on the progress in the field of human rights: Art. 64 of the Charter.27 See ECOSOC Res. 1235 adopted in 1967 for receiving the complaints from States, ESCOR, 42nd Sess., Supp. (1967). It authorised the Commission to “examine

information relevant to gross violations of human rights” and to “make a thorough study of situations which reveal a consistent pattern of violations of human rights”.28 See United Nations Action in the Field of Human Rights, UN Doc. ST/HR/2/Rev. 2 (1983).29 ECOSOC Res. 1503 of 1970 established the procedure for receiving the private communication from individuals and NGOs, and for its consideration, see ESCOR, 48th Sess., Supp. 1 (1970).


Arbitrary Executions, Torture, Religious Intolerance and Mercenaries. The Working Group and Special Rapporteurs would prepare public reports on State practice, based on the thematic approach, rather than singling out a particular country, in their areas of concern and collect evidence in respect of human rights violations in all States. These reports were discussed by the Commission at public meetings, in which the concerned States were allowed to defend themselves. However, these meetings could be influenced by politics thereby affecting the choice and treatment of particular cases. The Commission was also without power to hear witnesses or enter territory to conduct investigations. The Commission had no power to impose legally binding sanctions in cases of the human rights violations and its actions were restricted to pursuance, public criticism and, in serious cases, isolation of the offending State.30The ‘special procedures’ mechanism adopted by the CHR has been continued by the Human Rights Council (HRC). Under it, various activities are undertaken by special procedures, including responding to individual complaints, conducting studies, providing advice on technical cooperation, and engaging in promotional activities. The special mechanisms are categorised according to thematic mandates and country mandates. Currently, there are 29 thematic and 13 country mandates under special procedures.31 Special procedures also include working groups made up of legal experts who monitor and investigate specific human rights concerns.32 The Sub-Commission on the Promotion and Protection of Human Rights of the CHR has been replaced by an Advisory Committee in September 2007 with 18 members.33 The Advisory Committee should be implementation-oriented. The scope of its advice should be limited to thematic issues pertaining to the mandate of the Council; namely, promotion and protection of all human rights. In the performance of its mandate, the Advisory Committee is urged to establish interaction with States, national human rights institutions, non-governmental organisations and other civil society entities in accordance with the modalities of the Council.The Council has established a new complaint procedure in June 2007 (Resolution 5/1). Two working groups make up the complaint procedure: the Working Group on Communications (WGC) and the Working Group on Situations (WGS). The WGC consists of five independent and highly qualified experts, and is geographically representative of the five regions represented by the Advisory Committee. The Advisory Committee designates the WGC’s experts from among its members. The experts serve for three years. The experts determine whether a complaint deserves investigation. If a complaint deserves investigation, the WGC passes the complaint to the WGS. The WGS also consists of five members, geographically representing the five regions represented by the Advisory Committee. The UNHRC appoints the five members for a term of one year. The WGS reports to the HRC about the complaints received from the WGC and makes______________________30 D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell, London), 2010, p. 539 et seq; H. Tolley, Jr., The UN Commission on Human Rights (West View Press, London), 1987, p. 602.31 http://www.ohchr.org/english/bodies/chr/special/docs/13threport.AEV

32 There are currently four such groups: on people of African descent; on Arbitrary Detention; on Enforced or Involuntary Disappearances; on the use of mercenaries to impede the right of peoples to self- determination.33 Membership is distributed as follows: five from Africa; five from Asia; three from Latin America and Caribbean States; three from Western Europe and other states; and two from Eastern Europe.


recommendations about the course of action the Council should take.34 The complaint procedure’s purpose is to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances.These developments at the international level, however, have clearly established that the treatment by a State of its own nationals does not pertain to its exclusive domestic jurisdiction. The acceptance of the jurisdiction of the Human Rights Commission/Council by States in responding to the allegations against them has brought the subject of protection of human rights within the domain of international law.

B. Procedure and Practice under the CovenantsTalking about the procedure for the enforcement of human rights under different treaties churned out by the United Nations, the two International Covenants, which came into force in 1976, provide better means of review and supervision of these rights. But out of these covenants, the Covenant on Civil and Political Rights (CCPR) is more specific in delineation of these rights; stronger in creating obligations in respect of them and their enforcement than the Covenant on Economic, Social and Cultural Rights (CESCR).

1. Procedure under CCPRThe Covenant,35 with its preamble and fifty-three articles, obliges a State party to “ensure and respect” the rights mentioned in the Covenant for all individuals under its jurisdiction without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Art. 2(1)). Rights are related to liberty and security of the person (Art. 10), equality before law, fair trial (Art. 14), freedom of thought and expression (Arts. 18-19) and the like. To monitor the implementation, there is the Human Rights Committee (a separate body to the Human Rights Council) consisting of 18 persons of high moral character and recognised competence in the field of human rights and having legal experience, elected from among the nationals of the contracting parties but serving in their individual capacity (Art. 28). In elections, the principle of “equitable geographical distribution of membership” is followed (Art. 31).Under the Covenant, the State parties are required to submit periodic reports to the Human Rights Committee on the measures undertaken by them to give effect to the rights recognised in the Covenant.36 The Committee considers these reports at public hearings in which the concerned State whose report is discussed is asked to send its representative to introduce and defend the report and answer questions. If need arises, a State may be asked to submit a supplementary written report which is considered at the “second round” of public hearings. Generally, these

34 http://www.ohchr.org/english/bodies/chr/complaints.htm35 As of October 2009, there were 166 parties to the Covenant.36 After the submission of the first report within one year of the entry into force of the Covenant or accession of the State, subsequent reports may be submitted at five years’ intervals or earlier if the Committee’s workload permits, GAOR, 36th Sess., Supp.

40, Annex V (1981). The Committee meets in Geneva or New York and normally holds three sessions per year.


meetings are courteous and no State had so far declined to cooperate in this regard. In considering a State’s report, it is now a well-established practice to receive information from NGOs (e.g., Amnesty International, and the International Commission of Jurists) by the individual members of the Committee, which they commonly rely upon while questioning State representatives on the report. After considering the national reports, the Committee sends its comments, which are general in nature (rather than specific to the country concerned), to the States parties (Art. 40(4)).Under the Covenant, a State party may complain against another State party for the non- compliance with the Covenant, on the basis of reciprocity, accepting the competence of the Committee to receive such complains (Art. 41).37 But such a complaint is subject to prior bilateral attempt at adjustment and exhaustion of domestic remedies. If the Human Rights Committee fails to find a solution within twelve months, it may, with the prior consent of the concerned States parties appoint an ad hoc Conciliation Commission. Where the Conciliation Commission fails to arrive at a settlement, it indicates in its Report the possibilities of an amicable settlement. The Report of the Commission, however, is not binding and no State complaint has been brought under this provision of the Covenant so far.The Optional Protocol (First Protocol, 1966) to the Covenant also empowers the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction, who claim to be victims38 of violations by the State party of any of the rights listed in the Covenant and who have exhausted available local remedies.39 But if the same matter is examined under another procedure of investigation or settlement (viz., the European Convention or Inter-American Convention on Human Rights), the Committee will not consider that matter (Art. 5(2)(a): I Optional Protocol). But where the same conduct has affected more than one alleged victims, the Committee may entertain communication received from one of the victims, even though the others have submitted petitions elsewhere.40 The State charged with a violation is under an obligation to submit to the Committee written statements or explanation, and steps taken to remedy the situation. The Committee, in private, examines the admissibility and the merits of the complaint on the basis of these statements and explanations submitted by the complainant and the State. There is no provision for oral hearings. Subsequently, the Committee forwards its views to the concerned State party and the individual. The Committee’s “views” are legally not binding but, in practice, the defendant States generally adhere to them by taking appropriate actions. These “views” in substance involve decisions on issues of law and fact.______________________37 So far 26 States have accepted this obligation. Such a procedure of receiving complaints from other States parties also exists under the ILO (Art. 26 of the ILO Constitution); the 1962 UNESCO Protocol (Art. 12); compulsory system of inter-State complaints under the 1966 Convention on the Elimination of Racial Discrimination (Art. 11); and the 1950 European Convention on Human Rights (Art. 24).38 For the meaning of “victim” for the purposes of eligibility to bring an Optional Protocol Claim, see Aumeeruddy-Czifra v. Mauritus (The Mauritian Women case), 1 Selected Decisions HRC 67 (1981).

39 The Human Rights Committee may also hear complaints under the 1966 Protocol that arise under the 1989 Second Optional Protocol for the abolition of the death penalty unless the ratifying State conveys contrary to that, see Art. 5 of the 1989 Protocol, GA Res. 44/128.40 A number of States have inserted reservation, thereby excluding the Committee’s jurisdiction if the same matter has been the subject of investigation under another procedure, see Harris, op. cit. 30, p. 678.


2. Procedure under the CESCRThe International Covenant on Economic, Social and Cultural Rights does not contain an elaborate procedure akin to CCPR. This difference in approach is essentially the result of the rights to be enforced under the two Covenants. Whereas under the CCPR, obligations are typically negative (e.g., not to torture), but for economic, social and cultural rights, the obligations are mostly positive (e.g., to adopt measures for economic upliftment, providing adequate housing etc.). hence their observance is dependent upon the availability of the resources to the government. The obligations are essentiality programmatic and promotional.The Covenant recognises certain rights, such as right to work, right to enjoyment of just and favourable conditions of work, right of social security, adequate standard of living for himself and his family, highest attainment of standard of physical and mental health. The States parties undertake “to take steps ... to the maximum of its available resources” to achieve “progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (Art. 2(1)). The rights recognised are to be exercised on the basis of non-discrimination (Art. 2(2)). However, in relation to economic rights, developing countries “may determine to what extent they would guarantee” such rights to non-nationals.The ECOSOC has been entrusted with the task of supervising the implementation of these rights (Arts. 16-22). The States parties submit their reports to the ECOSOC on the measures adopted and the progress made in achieving the observance of the rights recognised (Art. 16(1)). With effect from 1987, the task of supervision is performed by an expert Committee on Economic, Social and Cultural Rights. The Committee consists of 18 members elected by the Covenant parties, giving due consideration to equitable geographical distribution. After receiving reports (which the States are required to submit every five years after an initial report submitted within two years of becoming party to the Covenant), they are examined at public hearings in which reporting States are required to defend them. All States parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to implement the rights affirmed in the Covenant. The Committee examines each report and addresses its concerns and recommendations to the State party. The Committee also collects information from other sources, viz., the specialised agencies like the ILO, UNESCO and WHO, and the NGOs with the UN consultative status, which submit written statements to examine the national reports. The Committee, after examination, makes suggestions and recommendations of a general nature in the form of “concluding observations”.41 But, based on the national report, the Committee can make observations in its annual report that a country is not complying with its obligations under the Covenant.42 It can also prepare general comments on various provisions of the Covenant to help States in fulfilling their reporting obligations.43 These rights, though progressive in nature, are mostly not treated “justiciable” and there has not been any mechanism existing to receive complaints from individuals or inter-State complaints by the Committee for non-implementation of the Covenant provisions. However, in line with the Human Rights______________________

41 See ECOSOC Res. 1985/17.42 See Harris, op. cit. 30, p. 612 et seq.43 See ECOSOC Res. 1987/5.


Committee under the CCPR, the UN General Assembly on 10 December 2008 adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which allows States parties to recognise the competence of the Committee on Economic, Social and Cultural Rights to consider complaints from individuals.44 The adoption of the Protocol may help in creating the right attitude by States in making changes in national legislation for the realisation of these rights.

C. General Conventions on Human RightsThe machinery for the enforcement of human rights also exists, albeit imperfect, under the other United Nations Conventions. The ILO Constitution requires members States to submit annual reports on the measures adopted by them to give effect to ILO Conventions. They are examined by a Committee of experts. The provision also exists to make inter-State complaints to the International Labour Office by one member against another for the non-observance of a convention to which both of them are parties (Art. 26). Such a complaint is referred to a Commission of Inquiry, and failing a settlement based on the Commission’s report, the findings can be referred to the ICJ.45As to other human rights treaties, treaty-based reporting or petition systems for monitoring or ruling on compliance exist under the Convention on the Elimination of all Forms of Racial Discrimination 1966 (CERD); Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment 1984 (CAT); Convention on the Rights of the Child 1989 (CRC); Convention on the Protection of the Rights of All Migrant Workers 1990; Convention on the Rights of Persons with Disabilities 2006. The Committee for the Elimination of Racial Discrimination, consisting of 18 independent members with legal or diplomatic background, exists under the 1966 Convention on the Elimination of All Forms of Racial Discrimination. The members of the Committee are elected on the basis of “equitable geographical distribution”, representing the principal legal systems and different civilizations. Unlike the committees under the two human rights Covenants, the expenses of the Committee under the CERD are borne by the States parties to the Convention. The parties are to submit biennial reports on the implementation of the Convention.46 National reports are discussed at public hearings where the State representative initiates the report and answers the questions. The CERD was the first to adopt this procedure among all the human rights treaties, even though the Convention did not provide this procedure. The Committee makes general recommendations and suggestions,______________________44 The Protocol was opened for signature on 24 September 2009, and as of October 2010 was signed by45 parties and ratified by 3; will enter into force after ratified by 10 parties.See the separate opinion of Judge Jessup in the S-W Africa cases (1962) ICJ Rep. 427-28. In Feb. 1962, the first Commission of Inquiry was appointed upon a complaint by Ghana against Portugal for the alleged existence of forced labour in Portuguese African territories, contrary to the provisions of the Convention Concerning the Abolition of Forced Labour, 1957. Similar inquiries were conducted against Liberia, Poland, FRG see

I 46. Brownlie, Principles of Public International Law, 7th ed. (Oxford University Press, Oxford), 2008, p. 555, n. 7 et seq.46 Now it is decided to submit “comprehensive reports” after every four years with brief updating reports on intervening occasions, see CERD Report, GAOR, 43rd Sess., Supp. 18, p. 6 (1988).


together with comments if any, from States parties, to the General Assembly through the Secretary General (Art. 9(2)). There is a compulsory system of inter-State complaints (Art. 11). Such a complaint is referred by the Committee to the alleged violator State for comment. In case no negotiated settlement between the two reaches, either of them may refer the matter back to the Committee, which may then conduct a fact finding inquiry and appoint an ad hoc Conciliation Commission (Art. 13). But the findings and recommendation of the Commission are not binding on the State concerned. The Committee is also empowered to receive petitions from inhabitants of Trust and non-self-governing territories subject to General Assembly Resolution 1514 (XV) of 1960, via the Special Committee of 24, constituted under the Resolution (Art. 15). So far, no such petition has been received.The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, has also established a Committee Against Torture to supervise its implementation (Art. 17). The Committee consists of 10 experts “of high moral standing and recognised competence in the field of human rights” who serve in their “personal capacity” (Art. 17(1)). Members are elected by the States parties on the basis of equitable geographical distribution (Art. 19(2)). States parties are responsible for the expenses of the Committee (Art. 18(5)). They are required to transmit initial reports to the Committee on the measures taken by them to give effect to the Convention, and supplementary reports are submitted after every four years on any new measures. The reports are discussed at public hearings and the Committee may make such general comments on the report as it may consider appropriate and shall forward these to the State party concerned (Art. 19(3)). The Committee may also examine in cooperation with the State party concerned, any “reliable information” containing “well-founded indications” that torture, and not inhumane treatment, “is being systematically practised” in that State party (Art. 20). State cooperation may involve a visit to the State party. Having conducted its examination, the Committee must transmit its findings to the State party concerned with appropriate comments or suggestions. This procedure is confidential but the Committee, in its annual report may include a “summary account” of the results of this procedure. The annual report is published (Art. 20(5)) and if the Committee finds the existence of a “systematic practice” of torture in a State party, adverse publicity will work as a sanction.The Convention also provides for inter-State and individual petitions procedure. Inter-State complaint procedure is based on the condition of reciprocity and subject to the exhaustion of local remedies (Art. 20), which is similar to Art. 41 of the International Covenant on Civil and Political Rights. The procedure of individual petitions (Art. 22) is also closely modelled on the I Optional Protocol to the CCPR.

D. Protection and Enforcement of Women’s RightsThe Commission on the Status of Women47 has played a pivotal role in norm creating for women’s rights. It drafted an extensive convention: the Convention on the Elimination of All Forms of Discrimination against Women 1979, which entered into force on September 3, 19 87.48 The______________________

47 About the Commission, see op. cit. 24 and 25.48 India ratified the Convention on July 9, 1993, see ST/LEG/SER.A/557 (1994) p. 444.


Convention obligates States parties to eradicate all kinds of discrimination against women “in effect” in all walks of human activity.To monitor the implementation of the provisions of the Convention, there is a Committee on the Elimination of Discrimination against Women. It comprises 23 experts elected by States parties, and has its own rules of procedure (Arts. 17 and 19). Like other human rights conventions, the States parties to this Convention also are required to submit initial reports to the Committee within one year after the entry into force of the Convention, and thereafter, after every four years on the legislative, judicial, administrative or other measures to give effect to the provisions of the Convention. The Committee, after examining the reports on receiving information from States may make suggestions and general recommendations in the form of a report to the Secretary General of the United Nations, who transmits it to the Commission on the Status of Women (Art. 21).However, there are no provisions for inter-State and individual petitions. States are generally reluctant to submit complaints against each other in human rights matter as it is considered to be an unfriendly act and is also perceived to be an interference in the internal matters of another State, but to entertain petitions from individuals or victims is a better alternative to improve the probability of enforceability and adherence to human rights. The Convention also fails to provide any follow-up action on the report or any sanction if the State fails to submit the report. It is also doubtful whether the Committee may comment on violations of the Convention by a State party. The Convention is in no way an improvement over the existing international machinery to enforce the women’s human rights, existing under the Commission on the Status of Women. The Commission itself lacks any power to take action with regard to complaints concerning the human rights or the status of women.The 1993 World Conference on Human Rights (Vienna) recognised women’s rights as human rights and recommended for the appointment of a Special Rapporteur on Violence against Women. The General Assembly also adopted a Declaration on the Elimination of Violence against Women.49 On May 8, 1990, the Social Committee of the ECOSOC stressed the need for women’s participation in all aspects and at all levels of national life. At the international level also, it stressed to attain women’s participation in the United Nations system upto 35 per cent by the year 1995, for which the Secretary General was to take necessary measures. At the World Summit on Social Development (held between 6-12 March 1995, at Copenhagen), the Summit leaders pledged to achieve equality and equity between men and women, and enhance the participation and leadership roles of women in the political, civil, social, economic and cultural life and in development. The Action Plan, among others, aims at empowering the women.50 The Fourth World Conference on Women (held on September 4-15, 1995 at Beijing) adopted the Beijing Declaration and Platform of Action to promote the Status of Women. The Platform of Action identified 12 critical areas for the betterment of women: health, education, poverty, violence, armed and other conflicts, power-sharing and decision-making, human rights, mass media, environment and development, economic participation, and the needs of girls. The recommendations of the Conference are addressed to various components of the international______________________

49 For the text of the Vienna Declaration and Programme of Action on Human Rights, see 32 ILM 1661 (1993); see also GA Res. 48/41, Dec. 20, 1993.50 www.un-documents.net/cope-dec.htm.


community, particularly governments, international financial institutions, bilateral donors, private sector, NGOs and mass media.51 However, the Declaration and the Platform of Action are merely statements of policy which the governments must follow, without any binding obligations, or any machinery to monitor their adherence.

III. PROTECTION OF HUMAN RIGHTS: REGIONAL APPROACHESA. European Convention for the Protection of Human Rights and Fundamental Freedoms52The European Convention on Human Rights (ECHR) of November 4, 1950 mainly incorporates the civil and political rights enshrined in the Universal Declaration of Human Rights. The economic, social and cultural rights in the Universal Declaration find their way in the European Social Charter of October 18, 1961. All the members of the Council of Europe are parties to the Human Rights Convention, which is also applicable to their overseas territories (Art. 63). It has 14 protocols, adopted gradually after its coming into force on September 3, 1953.53The Convention imposes binding commitments on the States parties to enforce and secure to “everyone within their jurisdiction”, the rights and freedoms enlisted in the Convention. These rights have been precisely defined and the exceptions and restrictions are created to them (Arts. 2-18). For example, Art. 15 permits a State party to take measures derogating from the obligations under the Convention “in times of war or other public emergency threatening the life of the nation”. But no derogation is permitted under this provision from the right to life (Art. 2, except in case of lawful acts of war), torture and inhuman punishment (Art. 3), slavery or servitude (Art. 4(1)), and ex-post facto (retrospective) punishment (Art. 7).The rights and freedoms are guaranteed by an effective machinery for their enforcement. As amended by Protocol 11, the Convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions.Before the entry into force of Protocol 11, the machinery consisted of a Commission, a Court, and the Committee of Ministers of the Council of Europe. Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the Court, Sections III (Articles______________________51 See UN Newsletter, Sept. 23, 1995, Vol. 50, No. 38, p. 3.52 The European Convention is by far the most established regional human rights treaty whose jurisprudence is well developed. It is not possible to do full justice to the subject due to constraints of space. For more details, see S.D. Bailey, D.J. Harris and Jones, Civil Liberties: Cases and Materials, 3rd ed. (Sweet & Maxwell, London), 1991. Ch. 13; D.H. Ott, Public International Law in Modern World (Pittman, London), (1987), pp. 264-285, Ch. 14; D.J. Harris, The European Social Charter (University of Virginia Press) 1984; J.E.S. Fawcett, The Application of the European Convention on Human Rights, 2nd ed. (Clarendon Press, Oxford), 1987.

53 All Protocols are in force. Protocol No. 14 (CETS no. 194) entered into force on 1 June 2010. The text of the Convention had previously been amended according to the provisions of Protocols No. 3, 5 8 and comprised also the text of Protocol No. 2. All provisions which had been amended or added by these Protocols were replaced by Protocol No. 11 (ETS no. 155), as from the date of its entry into force on 1 November 1998 and from that date, Protocol No. 9 with Protocol No. 10 lost its purpose.


20 to 37) and IV (Articles 38 to 59) laid down the machinery for the operation of, respectively, the Commission and the Court, and Section V contained various concluding provisions. Together, they had made the European Convention as a fully workable system. Protocol 11, however, has made fundamental changes in the machinery of the Convention to the advantage of the individual. It has abolished the Commission, allowing individuals to apply directly to the Court, which has been given compulsory jurisdiction and altered the latter’s structure. Previously, States could ratify the Convention without accepting the jurisdiction of the Court of Human Rights. The Protocol has also abolished the judicial functions of the Committee of Ministers of the Council of Europe.54Protocol 14 further streamlines the process of the Court and improves upon the efficiency of the Court. It seeks to “filter” out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member State. The Court examines the case together with the representatives of the parties and may undertake an investigation, if necessary. A case is not considered admissible where an applicant has not suffered a “significant disadvantage”. This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject-matter of the application had already been considered by a national court. Hearings are held in public unless the Court in exceptional circumstances decides otherwise. Protocol 14 has also introduced a new mechanism to assist enforcement of judgements by the Committee of Ministers. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. The Committee can ask the Court for an interpretation of a judgement if that is required for its execution and can even bring a member State before the Court for non-compliance of a previous judgement against that State (Art. 46).55Prior to the adoption of Protocol 11, the Commission of Human Rights, for all practical purposes, was the principal organ which entertained all the complaints filed under the Convention. The membership of the Commission equalled the number of the High Contracting Parties and no two members of the Commission could be nationals of the same State, who will sit on the Commission in their individual capacity. The principal function of the Commission was to investigate the alleged breaches of the Convention and to secure, if possible, a friendly settlement of the matter. A State party could refer to the Commission any alleged breach of the Convention by another State party.56 States may support the rights of nationals of other States, as was done by Denmark, Norway, Sweden and the Netherlands against Greece in April 1967.57______________________54 Protocols 2, 3, 5, 8, 9 and 10 have been superseded by Protocol 11.55 Protocol 14 also allows for European Union accession to the Convention. The Protocol has been ratified by every member State of the Council of Europe (presently there are 27 members). On coming into force of the Protocol 14, Protocol 14bis which was adopted in 2009 and made applicable provisionally against the signatory States, has ceased to exist.56 See, for example, the three applications submitted by Cyprus against Turkey’s conduct in the Northern Cyprus in Commission’s decision of May 26, 1975, 18 Yb. of the European Convention (1975), p. 82; Commission’s decision of July 10, 1978, ibid., Vol.

21, p. 100. See also, Ireland v. UK, European Ct of H.R., Series A, Judgment of Jan. 18, 1978.57 The Commission of Human Rights found Greece in breach of a number of provisions of the Convention, which subsequently led to the withdrawal of Greece from the Convention, but it rejoined in Nov. 1974, after the “restoration of democracy” in Greece.


Individuals or groups of individuals or NGOs could also petition before the Commission directly, without the intervention of any State party on their behalf, provided the State against which the complaint was laid, had accepted the jurisdiction of the Commission in this regard. Thus, the right of an individual to seek a remedy “directly” was a misnomer, which, in fact, was dependent upon the option of the government accepting the competence of the Commission to receive petitions from individuals by making express declaration.58 A precondition of this right was that the petitioners should have exhausted the domestic remedies available in their own country “according to the generally recognised rules of international law” and filed their petition within six months time limit after the final decision was taken by the domestic court. The inordinate or improper delay by national tribunals, however, was deemed to be an exhaustion of local remedies.59 The Commission had the right to reject in limine petitions incompatible with the Convention, i.e., the activities of the complainant conflicts or aims at the destruction of the guaranteed rights and freedoms under the Convention,60 manifestly ill-founded, or an abuse of right of petition. After admitting a petition, the Commission would examine the alleged breaches, and for this purpose, it could carry out investigations in the territory concerned, and to secure, if possible, an amicable settlement.In case the Commission failed to dispose of the matter by negotiation, it would report to the Committee of Ministers of the Council of Europe, along with its opinion and proposals. The Committee’s competence was two-fold: (i) where the concerned States have not accepted the jurisdiction of the Court, so that the matter cannot be referred to the Court; and (ii) where they have accepted the jurisdiction and the matter could not be resolved by the Commission through negotiation. In the former case, on the basis of Commission’s report, the Committee of Ministers would decide by a two-thirds majority whether a violation of the Convention had been committed and suggest measures to be taken. The Committee’s decision was binding on the parties and it was the responsibility of the Committee to secure compliance with its own decisions and of the Court. Where no satisfactory action had been taken on its decisions, it would decide what effect should be given to those decisions. Where the States parties had accepted the Court’s competence, the Commission would refer the matter to the Court within a period of three months from the date of the transmission of the report to the Committee of Ministers.______________________58 The Commission became competent to receive such applications only in July 1955, when requisite number of six States accepted the competence of the Commission in this regard.59 In the case of Ireland v. UK, op. cit. 56, the Court observed that the rule of exhaustion of local remedies need not be followed if the act is shown to be in breach of the Convention, or is the result of an administrative practice. In Donnelly et al. v. The UK, 68 AJIL440 (1974), 18 Yb. ECHR (1975), p. 84, the Commission, on the question of “exhaustion of local remedies” held that “where an applicant under Art. 25 (applications from alleged victims) submits evidence, prima facie substantiating both the existence of an administrative practice ... and his claim to be a victim of acts part of that practice, the domestic remedies rule in Art. 26 does not apply to that part of his application”, ibid., p. 147. If an individual is the direct victim of the alleged administrative practice, which has

made the local remedies ineffective, the rule of exhaustion of local remedies cannot be a bar of his bringing a claim for his right.60 On this ground, in 1957, the Commission rejected the German Communist Party’s petition against the FRG for the alleged violation of its right to freedom of association guaranteed under the Convention. The Federal Constitutional Court of Germany had already made an order for the party’s dissolution.


The European Court of Human Rights was set up at Strasbourg on January 21, 1959. Number of judges of the Court is equal to that of the members of the Council of Europe. To consider a case, the Court sits in single-judge formation, in committees (consisting of three judges), chambers of seven judges and Grand Chamber of seventeen judges. The State party’s judge sits as an ex-officio member of the Court, other judges are appointed by the President. Prior to Protocol 11, the judges of the European Court of Human Rights were not holding any tenure post and were appointed from a panel and paid for the duration when they were seized with a particular case. Now the judges are elected for a period of nine years and not eligible for re-election. Their term of office expire at the age of 70. Jurisdiction of the Court was compulsory only for those States making express declarations of acceptance or an ad hoc declaration for a particular case. Only States parties to the Convention and the Commission of Human Rights could bring cases directly before the Court. Individual was not empowered to approach the Court directly, but after the adoption of Protocol 9 (1990) an individual could do so.An individual’s representation in a contentious case remained a thorny issue for long, when his case was to be presented in the Court. The issue was succinctly raised in the first decided case by the court, the Lawless case,6] during the hearing of preliminary objections. The case also raised important points of procedure relating to the respective functions of the Commission and the Court.G.R. Lawless, an Irish citizen filed a petition for his unlawful detention in violation of Art. 5 of the ECHR (right to liberty and security of person and freedom from arbitrary arrest) under the Unlawful Activities (detention) Act, 1940, of the Irish Republic. It had promulgated public emergency on July 5, 1957, and this emergency was duly notified to the Secretary General of the Council of Europe. The petitioner was suspected to be a member of outlawed Irish Republic Army (IRA) and indulging in terrorist activities. He was arrested on July 11, 1957, and was detained till December 11, 1957. On September 13, he applied for a writ of habeas corpus, which was rejected by the High Court. His appeal to the Supreme Court of Ireland, alleging that not only the law of the Republic but the provisions of the European Convention on Human Rights were also violated, was rejected on November 28, 1957. After the Supreme Court gave the reasoned judgment on December 3, he moved to the European Commission for his detention and arrest in violation of Art. 5 of the Convention. He was, however, freed on December 11, 1957, after giving an undertaking of good behaviour before the Detention Commission in Ireland.The Commission found that Lawless’s arrest and detention was not in accordance with Art. 5 of the Convention, which requires the trial of a detainee within a reasonable time, and he must be produced before a competent legal authority. But due to the public emergency declared by it in July 1957, the Government of Ireland did not act in contravention of Art. 15(1) of the Convention, which allows a State party to take measures derogating from its obligations under the Convention “to the extent strictly required by the exigencies of the situation” in time of war or other public emergency threatening the life of the nation. The Commission concluded that the facts did not disclose any breach of the Convention by the Irish Government.______________________

61 31 ILR 276; 56 AJIL187 (1962).


The Commission sent its report to the Committee of Ministers on February 1, 1960, and subsequently on April 1, 1960, submitted the case to the Court to get an authoritative interpretation of Art. 15 of the Convention. The case centred on two issues: one, dealing with the question of procedure concerning the complainant’s right to present his viewpoint before the Court and to receive a copy of the Commission’s report, and two, with the merits of the case, i.e., the allegation of breach of his human rights.Since an individual did not have locus standi before the Court, and his case was represented by the Commission, Rule 76 to its rules of procedure was adopted by the Commission to have some sort of representation of the individual in the case. According to this Rule, in such cases, the Commission’s report is communicated to the petitioner, who must keep the document secret. He may then submit his observations to the Commission within a time limit. The Commission, in its discretion, decides about the action to be taken in respect of the observations. This may be transmitted to the Court as one of the Commission’s documents. In this case, the Commission sought the permission of the Court to submit it as one of the Commission’s documents, which was objected to by the Irish Government as it amounted “to bestow on the individual the quality of a party before the Court”. It also argued that transmitting the report to the applicant is against Art. 31 of the Convention and in contravention of the Commission’s obligation of secrecy and that Rule 76 is ultra-vires. But the Commission’s President submitted that the government and the petitioner are on an equal footing before the Commission. While the government would have every opportunity to challenge the contents of the report before the Court, an individual would not have such an opportunity under the existing rules, and that must be provided by some means.In its judgment on preliminary objections on November 14, 1960, the Court implicitly accepted the validity of Rule 76. It recognised the complainant’s right to receive a copy of the report with a proviso that he must not publish it. This set a precedent for the future. On the Commission’s request to submit the applicant’s observations on the report, the Court ruled that it is in the interest of the proper administration of justice that the Court should have the knowledge of and, if need be, take into account the applicant’s point of view.62 In its final decision on April 7, 1961, on the question of procedure, the Court also observed that “it was for the Commission ... to invite the Applicant to place some person at its disposal [to apprise the Court the Applicant’s viewpoint on specific points]”.63 The Court, however, did not consider the written observations of the applicant as part of the proceedings of the case. On the decision on merits of July 1, 1961 in the Lawless case, the Court upheld the validity of the complainant’s arrest and detention without trial by a public emergency, threatening the life of the respondent country, Ireland, within the meaning of Art. 15 of the Convention.64Rule 30 of the Revised Rules of the Court of November 24, 1982 had expressly permitted separate legal representation of applicants in proceedings before the Court. The issue was subsequently settled by Protocol 9 of 1990, whereby the NGOs, individual and groups of______________________62 Yb.E. Conv. HR (1960) 474, at p. 516.63 Ibid., (1961) 442-444.

64 31 ILR (1960) p. 290. For the Court’s ruling on merits, see 56 AJIL 187-210 (1962); 31 ILR 276 at p. 290 (1960).


individuals, after submitted a petition to the Commission, got the right to bring a case before the Court, But such a case had to be first submitted to a panel composed of three members of the Court. A judge of the State against whom a complaint has been made will also sit as an ex-officio member of the panel. It is only if the panel had concluded that the case raises a serious question affecting the interpretation or application of the Convention and warrants a serious consideration by the Court, that the case was decided by the Court.65 Under Protocol 11, an individual can make the application directly to the Court, which will be examined by a committee of three judges of the Court. If found admissible, it will be decided by a Chamber of 7 judges and in a Grand Chamber of 17 judges (Art. 27). The Court may only deal with a case after all domestic remedies have been exhausted, within a period of six months from the date on which the final decision was taken. An individual application may be declared inadmissible if the Court considers that (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill- founded, or an abuse of the right of individual application; or (b) the applicant has not suffered a significant disadvantage.The Court’s influence in inculcating the respect and observance of the rights enshrined in the Convention is singular. Often its decisions have led to changes in the national legislation. For example, the Belgian Penal Code was amended after the Court decided the De Becker’s case.66 De Becker was a journalist by profession who worked with the Germans during the War. After the War, he was charged under the Belgian law (Art. 123 Series of the Penal Code) for collaborating with the Germans during the occupation of Belgium, and was imprisoned in 1947. He was freed in 1954 on the basis of an undertaking, and was asked to leave the country, and not to indulge in the profession of journalism and politics. He filed a petition to the Commission after Belgium became a party to the Convention on June 14, 1955. The Commission held the application admissible because De Becker had been placed under a continuing disability, as the forfeiture had been imposed for life and could plausibly be said to constitute a breach of his right to freedom of expression under Art. 10 of the Convention. The Commission rejected Belgium’s contention of ratione temporis for the non-admissibility of the application.The Court has also held many national laws and decisions in contravention of the Convention. For example, in the case of Young, James and Webster,67 the British Rail’s “closed shop” agreement with three rail unions, making the membership in one of them as a pre-condition for employment,______________________65 The problem of having access to the views of the individuals was also encountered by the ICJ in the Administrative Tribunal of the ILO case (Advisory Opinion) (1956) ICJ Rep., p. 77. Before the ICJ, individuals have no locus standi (Art. 34 of the Statute) from which inequality flows. The UNESCO sought the advisory opinion on the validity of certain decisions of the ILO tribunals. The ICJ got access to the observations of the officials through the intermediary of the UNESCO and also dispensed away with the oral proceedings. It observed, “The judicial character of the Court requires that both sides directly affected by these proceedings should be in a position to submit

their views and arguments to the Court.... The principle of equality of the parties follows from the requirement of good administration of justice”.66 (1958) 25 ILR 172 (Commission); (1962) 33 ILR 205 (Court).67 E. Court H.R., Series A, Vol. 44, Judgment of Aug. 13, 1981.


was found to be in contravention of Art. 11(1) (right of association) of the Convention. In The Sunday Times (Thalidomide) case (1979), the Court ruled that the injunction imposed by the House of Lords against the petitioner in A.G. v. Times Newspapers Ltd.68 restraining the petitioner from publishing about the detrimental effects of the drug thalidomide (the matter was sub-judice) on the grounds of contempt of court, was in contravention of Art. 10 (freedom of expression) of the Convention.The Court is also empowered to give advisory opinions at the request of the Committee of Ministers on certain legal questions related to the interpretation of the Convention and the Protocols thereto, but such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in the Convention and the Protocols (Art. 47).

B. American Convention on Human Rights, 1969The American Convention on Human Rights (ACHR, also known as the Pact of San Jose) draws upon the European Convention on Human Rights, the American Declaration of the Rights and Duties of Man, 1948, and the International Covenant on Civil and Political Rights, 1966. Only States members of the Organisation of American States (OAS) have the right to become parties.69The Convention guarantees primarily the civil and political rights, and except a reference in Art. 26 of the Convention to economic, social, educational, scientific and cultural standards of the OAS Charter, it does not deal with these rights. It has been supplemented by two protocols: the 1988 Additional Protocol to the Inter-American Convention which provides compulsory system of individual petitions (as under the American Convention) for the right of education and trade union rights. It came into effect on 16 November 1999 and has been ratified by 14 nations. In June 1990, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty was adopted and is not yet in force.For the enforcement of the Convention rights, there exist two organs: the American Commission on Human Rights (based in Washington, DC), and the American Court of Human Rights (based at San Jose, Costa Rica). The Inter-American Commission on Human Rights was first created in 1960 as an organ of the OAS and was re-established in 1969. It has powers both under the OAS Charter (Arts. 41, 42 and 43) and under the ACHR. It consists of seven independent experts. The Court is composed of seven judges, who are elected to six-year terms by the OAS General Assembly and are eligible for reelection for one additional six-year period. The Court became functional in 1979. The Court exercises contentious (Arts. 61-63) and advisory (Art. 64) jurisdiction which can be invoked by any OAS member State, whether a member of the ACHR or not. The jurisdiction of the Court is optional by a State making a declaration to this effect or by agreeing to jurisdiction in a particular case. Under the Convention, cases can be referred to the Court by either the Inter-American Commission on Human Rights or______________________68 [1974] AC 273; [1973] 3 All ER 54.

69 At present, out of 35 members of the OAS, 20 are parties to the Convention. Most of the English- speaking Caribbean nations, Canada and the United States are not parties to it.


a State party. In contrast to the European human rights system, individual citizens of the OAS member States are not allowed to take cases directly to the Court.While exercising its adjudicatory jurisdiction, the Court can award damages70 and non-monetary reparations.71 The advisory jurisdiction is related to the interpretation of ACHR or other treaties “concerning the protection of human rights in the American State”. Thus, the Court’s task is not entirely related to giving effect to the American Convention but to any other treaty, and by any State, whether it is a member or a non-member to such a treaty. This is a confusing and vague proposition.72The ACHR provides for the compulsory system of individual petitions. The Commission has the power to hear such petitions ipso facto against States parties (Art. 44). The Commission is also empowered to deal with inter-State petitions, provided that both the State-parties have made declarations recognising the Commission’s competence in this regard (Art. 45).73 Individual petitions can be made by “any person or group of persons, or non-governmental entity legally recognised in one or more member States” of the OAS (Art. 44). Their admissibility is subject to the exhaustion of local remedies and a six-month time limit thereafter (Art. 46). The Commission attempts to secure a friendly settlement after hearing written and oral arguments (Art. 48). If no settlement could be secured, the Commission sends its report with its conclusions to the concerned State (Art. 50). If not settled, the case can be submitted to the Court by the Commission, or by the State for a binding decision, provided the State concerned has accepted the Court’s jurisdiction. Proceedings of the Court are held in written and oral phases wherein the concerned State, victims or their next-of-kin, the other member states, and OAS headquarters submit their brief and participate in the proceedings. If within three months, the case is not referred to the Court for lack of jurisdiction, the Commission prepares a second report with its “options and conclusions”, and if appropriate, makes recommendations and prescribes the time-limit to remedy the situation (Art. 51). After the expiry of the prescribed time limit, the Commission must take stock of the situation and, if necessary, to publish its second report (prepared under Art. 51 fiat). This procedure observed in individual petitions is also followed in inter-State petitions (Art. 45).Because of its heavy dependence on the OAS and its Charter, the Commission has exercised jurisdiction in respect of individual petitions coming from the non-members of the ACHR. This was the reason to entertain petitions against the United States which is not a party to the Convention______________________70 In the first case decided by the Court, Velasquez v. Honduras (Judgment of July 28, 1988), 28 ILM 294 (1989), the Court decided that Honduras has violated Arts. 4 (Right to life), 5 (Right to physical, mental and moral integrity) and 7 (Right to personal liberty and security) and ordered to pay “fair compensation” to the next of kin of the victim and to make declaratory decrees and orders.71 In Barrios Altos Case, Judgment of November 30, 2001, Inter-Am Ct. H.R. (Ser. C) No. 87 (2001), which related to the massacre of 15 persons in Lima, Peru, at the hands of the state-sponsored Colina Group death squad in November 1991, the Court ordered for the payment of damages to the families of victims, free health care and various forms

of educational support; to repeal two controversial amnesty laws; to establish the crime of extrajudicial killing in its domestic law; to widely publish the Court’s judgement; and to publicly apologise for the incident.72 See the Advisory Opinion in Other Treaties case, 22 ILM 51 (1983).73 Eight parties have made declarations so far.


but is bound by the American Declaration of the Rights and Duties of Mart74 The Commission may also initiate a country study if the human rights situation there so warrants. It may include an “on site” investigation with the consent of the concerned State (Art. 18 of the OAS Charter).

C. African Charter on Human Rights and Peoples’ Rights, 1981The heads of the Organisation of African Unity (OAU, now replaced by the African Union), adopted the African Charter on Human Rights (also known as the Banjul Charter) on June 17, 1981.This is the first human rights document that emphasised upon the peoples’ rights (Arts. 19-24), i.e., the “third generation” rights, viz., right of self-determination, the right to freely dispose of their wealth and natural resources etc. Every individual has been guaranteed certain rights (Arts. 3-18) and subjected to duties (Arts. 27-29). But it does not have any deviation clause akin to Art. 15 of the European Convention (for war or other public emergency).For the enforcement of the rights and duties under the Charter, there exists the African Commission on Human and Peoples’ Rights whose function, to a large extent, is promotional, though it also has the enforcement role (Art. 45). Initially, there was an absence of any judicial or quasi-judicial organ, but in 1998, a Protocol to the Charter was adopted whereby an African Court on Human and Peoples’ Rights was to be created. The Protocol came into effect on 25 January 2005.75The Commission, which is tasked with oversight and interpretation of the Charter, does not enjoy any substantive powers to bind the States with its findings. The Commission is composed of 11 members who serve as independent experts. The Charter provides a compulsory system of State petitions, whereby a State may file a complaint against another State to the Commission about the alleged violations of the Charter after exhausting local remedies, or following the bilateral negotiations, or directly (Arts. 47-54). In the light of written and oral representation, the Commission endures to achieve an “amicable solution”, failing which it must send its report with its findings to the defendant State and the OAU Assembly of Heads of States and Governments, along with its recommendations (Arts. 52-53).The Commission is also empowered to receive and consider communications from individuals and NGOs (Arts. 55-56). It is only when a complaint reveals the existence of “a series of serious or massive violations of human and peoples’ rights”, the Commission will draw the attention of the OAU Assembly, which “may then request the Commission to undertake an in-depth study of these cases and make a factual report accompanied by its findings and recommendations” (Art. 58). The reports made by the Commission under the State or non-State petitions remain confidential unless the OAU Assembly decides otherwise (Art. 59). Each State party has a duty to report on the legislative measures for the implementation of the Convention provisions every two years (Art. 62).______________________74 Brownlie, op. cit. 45, p. 571, n. 4 et seq. See also Fox, “Death Penalty cases”, 82 AJIL 601 (1988); the Baby Boy case 2 HRLJ MO (1981). In the Death Penalty cases, two juveniles (under 19 years of age) were sentenced to death by States of South Caroline and Texas. The Commission’s request to stay the execution was not complied by the US and

the Federal Government expressed its lack of jurisdiction, and the two concerned States ignored the request.75 Judges to the African Court of Justice were appointed in January 2006 but the relationship between the newly created Court and the Commission is yet to be determined.


IV. ENFORCEMENT OF HUMAN RIGHTS IN INDIAHuman rights enshrined in the Universal Declaration find an ample place in the Indian Constitution under Ch. III on Fundamental Rights, and Ch. IV on the Directive Principles of State Policy. Chapter III gives effect to civil and political rights, and in Ch. IV, economic, social and cultural rights find their mention. Thus, the Constitution gives effect to the rules of equality regardless of any distinction on any ground, right to life and liberty, freedoms of expression, movement, association, and to practice any profession, or to carry on any occupation, trade or business, and freedom of religion. It abolishes untouchability, and allows special laws in favour of women and children, and prohibits exploitation of human beings and employment of children in factories. The Constitution also ensures equal pay for equal work for both men and women, and the right to an adequate means of livelihood to all citizens. The Constitution, thus, in many of its provisions, gives effect to first and second generations rights incorporated in the Universal Declaration. India became a party to both the International Covenants on Human Rights by ratifying them on March 27, 1979, but it has not ratified both the Optional Protocols to the Covenant on Civil and Political Rights.But all the rights in these Covenants are not covered under the Constitution. Nevertheless, the Supreme Court of India has expanded the meaning of already accepted rights under the Constitution, covering the rights recognised in the Covenants. Thus, the Court has recognised the right to go abroad.76 The right of a person to be tried without undue delay has been recognised as part of the right to life and liberty under Art. 21 of the Constitution in Hussainara Khatoon v. Home Secretary, State of Bihar.77 The right to have access to legal assistance78 and the right of prisoners to be treated with humanity79 have been similarly recognised under Art. 21. Right to education has been specifically adopted as a fundamental right by the Constitutional (86th Amendment Act) Act, 2002, which has been re-enforced by the Right to Education Act 2009.80However, India is a party to many international conventions, including the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW). To give effect to its international commitments on women, the Parliament enacted the Maternity Benefits Act, 1961 and the Equal Remuneration Act, 1976. It also amended in 1992, the Citizenship Act, 1955, in order to confer Indian citizenship on a child born to an Indian mother outside______________________76 See Menaka Gandhi v. Union of India, AIR 1978 SC 622; see also Satwant Singh v. Assistant Passport Officer, New Delhi, AIR 1967 SC 1836.77 AIR 1979 SC, p. 1360; ibid., p. 1369; Ibid., p. 1377. See also, Mantoo Mazumdar v. State of Bihar, AIR 1980 SC 1360.78 See M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548; see also Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 91.79 Charles Shobraj v. Supdt., Central Jail, Tihar, New Delhi, AIR 1978 SC 1514; Ramesh Kaushik v. B.L. Vig, Supdt., Central Jail, New Delhi, AIR 1981 SC 1767.80 The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE) 2009, came into force on April 1, 2010. The Act was adopted in pursuance of Article 21 A, which was added to the Constitution of India by

Constitutional (86th Amendment Act) Act, 2002, that made education a fundamental right for every child in the age group of 6-14 years.


India. This was done to grant women equal rights with men regarding the nationality of their children. To oversee the human rights implementation, the government has established two Commissions under the Acts of Parliament: the National Commission on Women and the National Human Rights Commission, which became operative in 1992 and 1993 respectively. Their main task is to make reports to the government on human rights violations in a particular situation. Individuals or groups of individuals can make complaints or petitions to the Commission. But the Commissions do not enjoy any power beyond making reports after investigating the case situations. The NHRC, however, has ordered for the payment of interim compensation in certain cases by the State governments of the perpetrator. 81The international instruments, viz., the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights came for examination by the courts in India. The Supreme Court expressed its opinion on the enforceability of the Universal Declaration at the municipal level. In the ADM Jabalpur v. Shukla,82 the Court rejected the argument that the Declaration was a part of the municipal law of India. In legal terms also, it is not binding for being merely a “declaration” and not being legislated by India.83 But, on the other hand, in Keshavananda Bharti v. State of Kerala, Sikri, J observed:I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights and that Declaration describes some fundamental rights as unalienable.84It cannot be denied that the Universal Declaration has held a bearing on the construction of the provisions of the Constitution.In Jolly George Vergese v. Bank of Cochin,85 the Covenant on Civil and Political Rights was referred by the Court. The issue before the Court was whether a judgment debtor could be arrested and detained in prison in execution of a money decree, or for failing to fulfil contractual obligations. For this purpose, while interpreting Sec. 51 of the Civil Procedure Code (Power of the Court in execution of decrees), Justice Krishna Iyer referred to Art. 11 of the Covenant which reads, “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation”. Accordingly, he opined that imprisonment of an honest and bonafide judgment debtor in execution of a money decree is violative of Art. 11 of the Covenant and Art. 21 (Protection of Life and Personal Liberty) of the Constitution of India.In Francis Coralie Mullin case,86 the Supreme Court read Art. 7 of the International Covenant on Civil and Political Rights and held that the right to live with basic human dignity was implicit______________________81 For example, in Rakesh Kumar Vij (against state of UP 1996-97), the Commission ordered for the payment of Rupees 10 lakhs as interim compensation by the State of Uttar Pradesh beside ordering the prosecution of the police officers responsible for torturing the victim and the doctors for giving fabricated report about the status of the injuries suffered by the victim. In State of Punjab cases of disappearance and mass graves, NHRC ordered the payment of compensation and action against the erring officials.

82 AIR 1976 SC 1207.83 For more on the subject to give internal effect to an international instrument, see Ch. 3 above.84 AIR 1973 SC 1461 at p. 1536.85 AIR 1980 SC 470.86 Francis Coralie Mullin v. The Adm. Union Territory of Delhi, AIR 1981 SC 746.


in the right to life guaranteed under Art. 21 of the Constitution and it included the right not to be subjected to torture or to cruel, inhuman or degrading punishment or treatment.However, now the courts are more explicit in taking note of international treaties to which India is a party, particularly on human rights, to expand the scope of the constitutional provisions on human rights. The Court has resorted to the concept of ‘legitimate expectations’ in the absence of contrary legislative provisions - making the international conventions and norms as a part of domestic law. This has enabled the Supreme Court to import treaty norms/rules of international law in the domestic arena till the Parliament enacts the law on that subject. The Court invoked this doctrine in Vishaka v. State of Rajasthan,87 in which the issue before the Court was regarding ‘sexual harassment’ of women at the workplace. The CEDAW and the Resolution of the Fourth World Conference on Women were relied upon to construe the nature and ambit of constitutional guarantee of gender equality. The Court observed:In the absence of domestic law occupying the field ... the international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality in the Constitution. Articles 14, 15, 19(1)(g) and 21 and the safeguards against sexual harassment implicit therein...[a]ny international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.The Court further stated that, “It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law”.88 The concept was further reiterated by the Court in PUCL v. Union of India89 and in Apparel Export Promotion Council v. A.K. Chopa.90In Apparel Export Promotion Council, the Court categorically stated that in cases involving human rights violations, ‘the courts must forever remain alive to international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field.91 In PUCL v. Union of India, the issue of compensation to a victim of unlawful arrest was before the Court. Jeevan Reddy, J. while referring to Art. 9(5) of the ICCPR stated that ratification of a convention creates a ‘legitimate expectation’ among the people that the executive will honour the commitment, but ratification of a treaty is not equivalent to legislation and it is doubtful whether the court can undertake the legislative function in the matters of treaties and conventions.92The Universal Declaration recalls that “the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom,______________________87 (199 7) 6 SCC 241.88 Ibid., at 248-9, 251. On the concept of ‘legitimate expectations’ the court relied upon the Australian High Court’s decision in Minister for Immigration and Ethnic Affairs v. Teoh, 128 Aus. L.R. 357.89 People’s Union for Civil Liberties v. Union of India (1997) 3 SCC 433.

90 (1999) 1 SCC 759.91 Ibid., at 776.92 Supra note 89, at 442.


justice and peace in the World.” But, in spite of the impressive record of the United Nations in setting the norms of human rights and setting up the international and regional machinery for their observance and enforcement, their violations are rampant. This requires some political will and concerted efforts at the national, regional and international levels by the States. Though the concept of “domestic jurisdiction” has not remained absolute in the matter of human rights violations, the national sovereignty is still a formidable obstacle in the enforcement of these rights. Furthermore, the promotion of human rights is closely dependent upon many other factors, viz., international peace and security, and the economic and social development of nations, which require close cooperation between the States.93______________________93 See Louis Henkin, The United Nations and Human Rights, International Organisation, Vol. XXI, No. 3 (Fredrick A. Praeger, New York), 1965, p. 504 at 512.

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CHAPTER 11State Responsibility

I. INTRODUCTORYThe invasion of the vested legal rights of a legal person by another or failure to observe obligations imposed by law on its subjects creates liability in various forms under any legal system, which is known as responsibility under international law. International responsibility is commonly considered in relation to States as the normal subjects of international law, although other international persons, such as international organizations are also responsible for their wrongful acts.As a primary rule of State responsibility, responsibility arises for the breach of an obligation or legal duty owed under international law by the State. The law on the subject enunciates the consequences of a breach by a State of an international obligation, and regulates the permissible responses to such breaches. Unlike the municipal law, where a fine distinction is drawn between civil and criminal liability and also between liability in contract and tort in the case of civil liability, international law never had this distinction. State responsibility is not based upon ‘delict’ in the municipal sense, and ‘international responsibility’ relates both to breaches of treaty and other breaches of a legal duty.1 In the “Rainbow Warrior” arbitration, the tribunal affirmed that “in the field of international law, there is no distinction between contractual and tortious responsibility”.2 As far as the origin of the obligation breached is concerned, there is a single general regime of State responsibility. Till recently, law on State responsibility was not well developed and was not codified. It was mainly talked about in relation to the treatment of aliens by a State or treaty obligations. But with the adoption of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (the Draft articles), prepared by the International Law Commission (ILC),3 after many years of endeavour, the position has now changed. The General Assembly adopted the Draft articles4 and “commended” them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action. The possible adoption of the Draft articles as a Convention was left unresolved. Due to wide differences between the States about the possible Convention, the matter was last deferred to the 65th session of the General Assembly in 2010.5 The Draft Articles, together with the ILC commentaries on them, present the law on State responsibility, discussed here.______________________1 I. Brownlie, Public international Law, 7th ed. (Oxford University Press) 2008, at p. 435.2 “Rainbow Warrior” 20 UNRIAA 215 at p. 251, para 75 (1990).3 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001).4 GA Res. 56/83, 12 Dec. 2001.5 GA Res A/RES/62/61 (2007); and A/RES/56/83 (2001).


The Draft articles lay down the basic rules on State responsibility by way of codification and progressive development. These rules are concerned with the secondary, and not the primary, rules of State responsibility, that is to say that “the general conditions under international law for the State to be considered responsible for wrongful actions or omissions, and the legal consequences which flow therefrom. The articles do not attempt to define the content of the international obligations, the breach of which gives rise to responsibility” which is the function of the primary rules whose codification would involve restating most of substantive customary and conventional rules of international law. Thus, rather than setting forth any particular obligations, the Draft on State responsibility determines, in general, when an obligation has been breached and the legal consequences of that breach. In this way, they are “secondary” rules that address basic issues of responsibility and remedies available for breach of “primary” or substantive rules of international law, such as with respect to the use of armed force. The Draft establishes the (1) conditions for an act to qualify as internationally wrongful; (2) circumstances under which actions of officials, private individuals and other entities may be attributed to the State, (3) general defences to liability, (4) the consequences of liability and (5) admissibility of claims.The Draft deals only with the responsibility of States for conduct which is internationally wrongful and not with the obligations of States arising out of acts which are not prohibited and may even expressly permitted under international law (e.g., compensation for property duly taken for a public purpose). The Draft also does not deal with the responsibility of international organizations or of other non-State entities, including individuals (Arts. 57 & 58 of the Draft). Similarly, the Draft covers the whole field of State obligations and not only arising out of treaty relationships. The applicable rules of international law will continue to govern questions of State responsibility not regulated by the Draft articles (Art. 56). The Draft, nevertheless, is residual in nature, that is, that the States are free while agreeing to be bound by a particular rule to specify the consequences of the breach of the rule and thereby exclude the ordinary rules of responsibility (Art. 55 - Rule of lex specialis of the Draft). Thus, the Draft leaves a wide area of State responsibility to be governed by the customary rules on State responsibility.The Draft is divided into four parts with 59 articles. Part One (Arts. 1-27) - The International wrongful act of a State, deals with the requirements for the international responsibility of a State to arise. Part Two (Arts. 28-41) - Content of the international responsibility of a State, deals with the legal consequences of a State for its internationally wrongful act, in particular as they concern cessation and reparation. Part Three (Arts. 42-54) - The implementation of the international responsibility of a State, identifies the State or States which may react to an internationally wrongful act and specifies the modalities by which this may be done, including, in certain circumstances, by taking countermeasures as necessary to ensure cessation of the wrongful act and reparation for its consequences. Part Four (Arts. 55-59) - contains certain general provisions applicable to the articles as a whole.As to primary rules, State responsibility arises for the breach of any obligation owed by a State under international law. A State is responsible, for example, if it fails to honour a treaty, if it violates the territorial sovereignty of another State, if it damages territory or

property of another State, if it employs armed force against another State, if it injures the diplomatic representatives of another State or if it mistreats the nationals of another State.

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It is, however, in the treatment of aliens that the State responsibility has been much highlighted by most of the scholars, which makes a small part of the State responsibility in general under international law. With the development of human rights law, much of the issues related to treatment of aliens have been addressed. It is important to note while considering a case of State responsibility the limits between international law and municipal law. Responsibility under international law arises (i) out of the breach of duty or non-performance of an international obligation by the State, even though the facts bring into question the rights and duties under municipal law between the citizen of the claimant State and the State alleged to be responsible; (ii) the authority or competence of the State agency through which the wrong has been committed, even though it has exceeded its power under municipal law, is no defence to the State’s responsibility under international law: even though under municipal law, State will not be responsible. This gives the occasion for international law to prevail over municipal law.

II. SCOPE OF INTERNATIONAL RESPONSIBILITYArticle 1 of the Draft articles provides: “Every internationally wrongful act of a State entails the international responsibility of that State.” Historically States have been the primary subjects of international law; it is upon them that most obligations lay and on whom the burden of compliance principally rests. But there can be other legal persons than States, who can also be responsible under international law. In the Reparation for injuries case,6 the ICJ affirmed the international personality of the United Nations, which is capable of possessing rights and duties, and can bring international claims. The potential responsibility for the conduct of the organs and agents of international organizations was also affirmed by the Court in the Cumaraswamy case.7 Since special considerations, such as the implementation of these obligations (viz., in relation to the jurisdiction of international courts or tribunals)8 remain relevant, the Draft articles deals only with the responsibility of States.So far as the individuals, corporations and other groups are concerned, their position, however, is not clear. But since the end of the Second World War, international responsibility of individuals in the criminal field has seen remarkable developments. The Nuremberg and Tokyo trials, the establishment of the International Criminal Tribunals for Yugoslavia (1993) and Rwanda (1994), and then the establishment of International Criminal Court (2002) have established the responsibility of individuals for their criminal acts. Art. 58 of the Draft articles makes it clear that the “individual responsibility under international law of any person acting on behalf of a State” is distinct from the State responsibility, which is not limited only to criminal responsibility and thus civil responsibility of the individuals cannot be ruled out. But there can be occasions when the individuals have committed the wrongful acts as State officials, in which case, the State will also be internationally responsible for its failure to stop those acts. So far there has been practically no development on civil responsibility of______________________6 (1949) ICJ Rep. p. 174, at p. 184.7 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, (1999) ICJ Rep. p. 62, at pp. 88-89, para 66.

8 Under the ICJ Statute, Art. 34, only States can be parties to a case before the Court.


individuals or corporations for breaches of international law.9 On the other hand, criminal responsibility of States under international law has not been clearly established or accepted, even though the act is criminal in nature, such as genocide or war crimes. In such cases, the individuals are made criminally liable, even if they may be acting in their official capacity and on the perceived interests of the State.10 On the other hand, possibility of individuals seeking remedies against States responsible for serious breaches of international law, such as genocide, war crimes, or denial of fundamental human rights also remain.But serious breaches of peremptory norms of international law (Jus cogens) by a State, which involves a ‘gross or systematic failure by the responsible State to fulfil’ such an obligation, impose an obligation on all other States to refrain from recognizing as lawful the situation created thereby or from rendering aid and assistance in maintaining it.11 In the advisory opinion on Legal Consequences of the Construction of a Wail in the Occupied Palestine Territory, the International Court of Justice held that, given the character and the importance of the rights and obligations involved, other States were under an obligation not to recognize the illegal situation resulting from the construction of the Wall, and were under an obligation not to render aid and assistance in maintaining the situation created thereby, as well as an obligation “ to see ... that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end.” The Court further stated that the General Assembly and the Security Council should also consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall.12Principle enshrined in Art. 1 of the Draft articles has been applied by the Permanent Court of International Justice in number of cases. In Charzow Factory case, the Court stated: “It is a principle of international law that the breach of an engagement involves an obligation to make reparation.”13 In the Phosphates in Morocco case, PCIJ affirmed that when a State commits______________________9 Under the Alien Tort Claims Act (28 USC § 1350) of the United States, private parties (US or foreign) can be sued for torts occasioned ‘in violation of the law of nations’ committed anywhere against aliens. The case law makes a distinction under the Act between corporate complicity with governmental violations of human rights, and those violations (e.g. genocide) which do not require any governmental involvement or State action, see Kadic v. Karadzic 70 F.3d 232 (1995). See, James Crawford & Simon Olleson, The Nature and Forms of International Responsibility Ch. 15, in Malcolm D. Evans (Ed.) International Law, 2nd ed. (Oxford University Press) 2006, p. 451, at 454, fn. 9.10 See Rome Statute of the ICC, Arts. 27, 33. The ICJ has, however, held that serving foreign ministers (and by implication, serving heads of State and government, and other senior ministers) enjoy absolute jurisdictional immunity from prosecution while in office in national courts of other States. See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), (Preliminary Objections and Merits), (2002) ICJ Rep. p. 3, paras 51-61. The jurisdictional immunity, however, lasts so long as

the individual holds office. See also ex parte Pinochet Ugarte (No. 3) (Pinochet III) [2001] 1 AC 147.11 Arts. 40(2) and 41(2) of the Draft articles; see also the Stimson doctrine on non-recognition, adopted by the League of Nations in March 1932 after Japan invaded and conquered Manchuria12 Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, (2004) ICJ Rep. p. 136, paras 159, 160. See also the Legal Consequences for States of the Continued Presence of South Africa in Namibia case, (1971) ICJ Rep., p. 16.13 Factory at Charzow (Jurisdiction), PCIJ Rep. Series A, No. 9, p. 21 (7927); and ibid., (Merits), PCIJ Rep., Series A, No. 17, p. 29 (1928).


an internationally wrongful act against another State, international responsibility is established “immediately as between the two States.”14 The International Court of Justice (ICJ) has also applied this principle on several occasions.15 Even the arbitral tribunals have repeatedly affirmed this principle. In the Spanish Zone of Morocco Claims, Judge Huber said: “Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation.”16 In the Rainbow Warrior case,17 the tribunal stated that “any violation by a State of any obligation, of whatever origin, gives rise to State responsibility.”

III. ELEMENTS OF STATE RESPONSIBILITYAs stated above, the international responsibility of a State results from an omission or commission of an internationally wrongful act. Article 2 of the Draft articles states that an internationally wrongful act of a State presupposes that there is a conduct consisting of an action or omission which (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. Thus, the presence of these two elements in principle will entail the international responsibility of a State. This has been affirmed by the World Court in number of cases.18 In the Dickson Car Wheel Company case, the Mexico-United States General Claims Commission noted that the condition required for a State to incur international responsibility is “that an unlawful international act be imputed to it, that is, that there exist a violation of a duty imposed by an international juridical standard”.19 In some cases, however, the respondent State may justify its action by claiming self-defence or force majeure for its non-performance.The three elements important in State responsibility are: imputability or attribution, breach (causation) and the absence of any valid justification or legal excuse.

A. Conduct Attributable to the StateArticles 4-11 of the ILC’s Draft articles deal with acts that can be attributed to a State. Conduct attributable to the State can consist of actions or omissions. For example, in the Corfu Channel case, ICJ held the omission on the part of Albania, that it knew, or must have known, of the______________________14 PCIJ Rep, Series A/B, No. 74, p. 10, at p. 28 (1938).15 See, for example, the Corfu Channel case (Merits) (1949) ICJ Rep. p. 4, at p. 23; Military and Paramilitary Activities in and against Nicaragua case [Merits), (1986) ICJ Rep. p. 14, at p. 142, para 283, and p. 149, para 292; Gabcikovo-Nagymaros Project case, (1997) ICJ Rep. p. 7, at p. 38, para. 47.16 Spanish Zone of Morocco Claims (Great Britain v. Spain), (1931), 2 RIAA 615.17 Op. cit. 2.18 For example, PCIJ in Phosphates in Morocco, PCIJ, Series A/B, No. 74, p. 10 (1938); the ICJ in the United States Diplomatic and Consular Staff in Tehran, (1980) ICJ. Rep, p. 3, at p. 29, para. 56; Military and Paramilitary Activities in and against Nicaragua (1986) ICJ Rep. p. 14, pp. 117-118, para. 226; and Gabcikovo-Nagymaros Project (1997) ICJ Rep. p. 7, p. 54, para. 78.

19 Dickson Car Wheel Company (U.S.A.) v. United Mexican States (1931) 4 RIAA 669, at p. 678.


presence of the mines in its territorial waters and did nothing to warn third States of their presence, was a sufficient basis for Albanian responsibility.20The State is like a corporation under municipal law, a legal entity with full authority to act under international law. Like corporations, States also act through their organs and agents. “States can act only by and through their agents and representatives.”21 For particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the State to create its responsibility generally or in specific circumstances. An “act of the State” to be attributable must involve some action or omission by its actor or actors. The question is which persons should be considered as acting on behalf of the State. The official position of a person is of no consequence for creating responsibility of the State for conduct allegedly in breach of international obligation. Some senior officials under international law enjoy inherent authority to bind the State, viz., Head of the State, head of the Government, foreign minister and diplomats in certain circumstances, cf. Art. 7 Vienna Convention on the Law of Treaties), and some act on the basis of ostensible authority. But for the purposes of State responsibility, any State official, at any level, may commit an internationally wrongful act which is attributable to the State. The level of seniority of the relevant official in the State hierarchy is inconsequential, and as long as he or she is acting in official capacity, the State responsibility will be there. Further, there is no distinction in this regard between the legislative, executive or judicial organs (Art. 4 (2), Draft articles).22 The responsibility is not limited to whether the act was “commercial” (acta jure gestionis) or “act of State”. Likewise, the responsibility arises equally for the acts of organs of the central government and to those of regional or local units. In the LaGrand case, International Court said that “the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be”. It stated that it is the responsibility of the United States to stop the execution of the LaGrand and “the Government of the United States is ... under the obligation to transmit the present Order to the Governor of Arizona [who] is under the obligation to act in conformity with the international undertakings of the United States.”23But while the State remains free to determine its internal structure and functions through its own law and practice, international law has a distinct role. For example, the conduct of certain institutions performing public functions and exercising public powers (e.g., the police) is attributed to the State even if those institutions are regarded in internal law as autonomous and independent of the executive government. Conduct engaged in by organs of the State______________________20 Corfu Channel (Merits), (1949) ICJ Rep, p. 4, at pp. 22-23. In the United States Diplomatic and Consular Staff in Tehran, op. cit. 18, pp. 31-32, paras. 63 and 67, the ICJ held that the responsibility of Iran was entailed by the “inaction” of its authorities which “failed to take appropriate steps”, in circumstances where such steps were evidently called for.21 German Settlers in Poland, PCIJ Rep, Series B, No. 6, p. 22 ((1923); Commentary to Art. 2. Draft articles, op. cit. 3.

22 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights , op. cit. 7, p. 87, para. 62. See also Certain German Interests in Polish Upper Silesia (Merits), PCIJ Rep., Series A, No. 7, at p. 19 (1926).23 LaGrand, (Provisional Measures), Order of 3 March 1999, (1999) ICJ Rep. p. 9, para. 28. See also LaGrand (Germany v. United States of America), (Merits) (2001) ICJ Rep. p. 466, at p. 495, para. 81.


in excess of their competence may also be attributed to the State under international law, whatever the position may be under internal law (Art. 7, Draft articles). The case of Rainbow Warrior is in point in which the conduct performed by State agents vis-a-vis another State for sinking the Greenpeace ship Rainbow Warrior in Auckland harbor by French agents on 10 July 1985 was attributable conduct. The French Government subsequently admitted that explosives were planted on the ship by agents on the orders of the Directorate General of External Security. New Zealand sought and received an apology and compensation from France for the violation of its sovereignty.24 Thus, the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e., as agents of the State. The scope of State responsibility for official acts is broad, and the definition of ‘organ’ for this purpose comprehensive and inclusive.International law does not limit attribution to the conduct of the regular officials or organs of the State and extends to conduct carried out by others who are authorized to act or who at least act under its actual direction or control. Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation. The principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State’s direction or control. In the Military and Paramilitary Activities in and against Nicaragua case, the question was whether the conduct of the contras was attributable to the United States so as to hold the latter generally responsible for breaches of international humanitarian law committed by the contras. The Court stated that: “For this conduct [of the contras] to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military, or paramilitary operations in the course of which the alleged violations were committed”.25 In the Tadic case, the Appeals Chamber of the International Tribunal for the Former Yugoslavia (ICTY), on the other hand, preferred the threshold of “overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations.” The Tribunals stated that the “degree of control may, however, vary according to the factual circumstances of each case.”26 But the legal issues and the factual situation in the Tadic case were different from those facing the Court in that case. The tribunal’s mandate is directed to issues of individual criminal responsibility, not State responsibility, and the question in that case concerned not responsibility but the applicable rules of international humanitarian law. The distinguishable question was “whether the FRY was using force through the [Bosnian Serb militia] against [Bosnia-Herzegovina]” to fix the responsibility of the FRY.27 Conduct of persons or groups is attributable to the State if the person or groups______________________24 Rainbow Warrior (No. 1) (1986), 74 ILR 256; cited in James Crawford and Simon Olleson, op. cit. 9. at p. 460.25 Military and Paramilitary Activities in and against Nicaragua, op. cit. 18, at. pp. 62 and 64-65, paras. 109 and 115

26 Prosecutor v. Dusko Tadic, International Tribunal for the Former Yugoslavia, Case IT-94-1-A: (1999) 38 ILM. 1518, at pp. 1541, 1546, para. 117, 145.27 See the separate opinion of Judge Shahabuddeen in Prosecutor v. Dusko Tadic, (1999) 38 ILM. 1518, para 17. See ILC Commentary on Art. 8, Draft articles, p. 48.


have committed acts under the effective control of a State, even if particular instructions may have been ignored.28The conduct of private persons is not as such attributable to the State, unless they were, in fact, acting under the authority or control of the State or the State adopts (i.e., ratifies) their acts as its own.29 A State may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects. For example, a receiving State is not responsible, as such, for the acts of private individuals in seizing an embassy, but it will be responsible if it fails to take all necessary steps to protect the embassy from seizure, or to regain control over it. In the Tehran Hostages case, the subsequent endorsement of the seizure by students of US embassy in Tehran by the Iranian authorities made the Iranian State internationally responsible for the acts of students.30 Similarly, the State will also be responsible if the authorities act in collusion with the mob, or participate in the mob violence. But the international tribunals require strong evidence in such collusion.31 But purely private acts will not be attributable to the State, although it may in certain circumstances be liable for its failure to prevent those acts, or to take action to punish those responsible.Acts or omissions of any State organ or an entity empowered to exercise elements of the governmental authority, acting in its official capacity, is attributable to the State even if the organ or entity in that capacity may have acted in excess of authority or contrary to instructions (ultra vires of its authority). A State may be responsible for conduct which is clearly in excess of authority if the official has used the official position. In the Caire case, a French national was murdered by two Mexican officers who, after failing to extort money, took Caire to the local barracks and shot him. The tribunal held that the ultra vires acts of officials were attributable to the State and stated: “that the two officers, even if they are deemed to have acted outside their competence ... acted under cover of their status as officers and used means placed at their disposal on account of that status.” They must have acted in all appearance as competent officials or organs, as they must have used powers or methods appropriate to their official capacity.32Acts that may not be attributable to a State because they were not carried out by its organs or agents may be chargeable to the State because it failed in some obligation to prevent the conduct. For example, in the Hostages case, Iran was held to have breached its obligation to protect the embassy and consular premises and personnel, even prior to its adoption Of the acts of the occupying students.33 The duty to control a mob is particularly important when the mob is in some way under the control of authorities.The above discussion reveals that the governing principle is that the State is responsible for its own acts, i.e., the acts of its organs or agents, and not for the acts of private parties, unless their acts can be attributed to the State due to special circumstances warranting such an attribution. A State may be held responsible for the wrongful act of a third State where they______________________28 Commentary to Art. 8, ibid.29 See Arts. 9 and 11 of the Draft articles.30 See United States Diplomatic and Consular Staff in Tehran, op. cit. 18.31 Janes case (US v. Mexico) (1926) 4 UNRIAA 82.

32 Caire, (1929), 5 UNRIAA 516, at pp. 530, 531. See also the Youmans case (1926) 4 UNRIAA 110; (1927)21 AJIL 571.33 United States Diplomatic and Consular Staff in Tehran, op. cit. 18, para 63.


may be acting through a common organ to commit a wrongful act, or may involve independent conduct by several States, each playing its own role in carrying out an internationally wrongful act. These rules are cumulative but they are also limitative. Though the third State will be individually in breach of its own obligation, but a State cannot shelter behind the involvement of other States in common conduct. It is responsible if and to the extent that it contributed to that conduct by its own acts. Thus, in the Corfu Channel case, Albania was held liable for its failure to warn the United Kingdom of the presence of mines in Albanian waters which had been laid by a third State.34 Similarly, if a number of States are involved in administering a territory, then each will be responsible for its part in the common enterprise (joint and several liability).35 A State is also held responsible for the conduct of an insurrectional movement which subsequently becomes a government of that State. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration, shall be considered an act of the new State under international law (Art. 10). This, however, makes the acts attributable after the revolution or insurrection succeeds.36In the absence of a specific undertaking or guarantee (which would be a lex specialis - Art. 55 Draft articles), a State is not responsible for the conduct of persons or entities in circumstances not covered by the draft articles. As the Iran-United States Claims Tribunal has affirmed, “in order to attribute an act to the State, it is necessary to identify with reasonable certainty the actors and their association with the State”.37

B. Breach of an International ObligationIn determining the responsibility of a State, it is to establish whether given conduct attributable to a State constitutes a breach of its international obligations incumbent upon it. Article 12 of the Draft articles states that there is a breach of an international obligation when the act in question is not in conformity with what is required by that obligation “regardless of its origin”.38 International obligations may be established by a customary rule of international law, by a treaty______________________34 Corfu Channel, (Merits), (1949) ICJ Rep., p. 4, at p. 22.35 See Certain Phosphate Lands in Nauru, (Nauru v. Australia), (Preliminary Objections) (1992) ICJ Rep, p. 240, at pp. 253-255, paras. 31-36, 47. In this case three States - Australia, New Zealand and United Kingdom had jointly administered Nauru, but the action was brought against Australia on the “joint behalf’. The Court held that the possibility of the existence of joint and several liability of three States at the material time did not render inadmissible a claim brought against only one of them. See also the Legality of the Use of Force cases between Yugoslavia and the NATO States, e.g. Yugoslavia v. Belgium, (Provisional Measures), Order of 2 June 1999 (1999) ICJ Rep. p. 124. See Arts. 16-19 Draft articles: Commentary.36 In the Yeager case, (1987) 82 ILR 178, claimant was held captive by the ‘revolutionary guards’ for several days during the revolution in Iran in 1979. The tribunal held that though the guards were not recognized under the Iranian law, they were in fact

exercising public functions in the absence of previous State apparatus. Iran was held responsible for their acts.37 Kenneth P. Yeager v. The Islamic Republic of Iran, 17 Iran-U.S. C.T.R. 92, at pp. 101-102 (1987).38 Art. 12 of the Draft Articles states: “There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”


or by a general principle applicable within the international legal order.39 States may also assume international obligations by a unilateral act.40 The essence of an internationally wrongful act lies in the non-conformity of the State’s actual conduct with the conduct it ought to have adopted in order to comply with a particular international obligation, i.e., between the requirements of international law and the facts of the matter. A breach by a State of an international obligation incumbent upon it gives rise to its international responsibility.But a distinction may be drawn between State responsibility arising in the context of direct State-to-State wrongdoing and State responsibility arising in the context of diplomatic protection, such as injury to aliens or their property. This may happen even if the obligation is arising out of a treaty. In the ELSI case, a Chamber of the International Court of Justice asked the “question whether the requisition was in conformity with the requirements ... of the FCN Treaty”.41 In this case, dispute arose out of the requisition by the Government of Italy of the plant and related assets of Raytheon-Elsi S.p.A., previously known as Elettronica Sicula S.p.A. (ELSI), an Italian company which was stated to have been 100 per cent owned by two United States corporations - Raytheon and Machlett Laboratories (Raytheon). The US demanded compensation from Italy. The United States based its claim on the breach of a treaty - FCN, but the International Court of Justice (Chamber) ruled that its claim is in the nature of diplomatic protection and was thus subject to the requirement of the ‘exhaustion of local remedies’. In the State-to-State cases, the only issue relevant is whether the conduct attributable to a State causes legal harm to victim State in violation of international law. Once it is established, the State’s responsibility is invoked. The breach by a State of an international obligation constitutes an internationally wrongful act, whatever the subject matter or content of the obligation breached, and whatever description may be given to the non-conforming conduct.Prima facie, breach of an international obligation gives rise to State responsibility. But before a State is held responsible, a number pf other issues also arise, like causation (fault), injury, resulting damage and the time of its occurrence (for the purposes of non-retrospectivity). On these aspects, rules of international law are distinct from municipal law and State cannot take shelter behind municipal law to avoid its responsibility under international law.

1. Causation, Injury and DamageCulpa or fault is a debatable issue in attributing responsibility for the breach of an international obligation by a State. The supporters of ‘objective responsibility’ are of the view that there should be a casual connection between the act and the breach by the State or its organs.42 The doctrine______________________39 ICJ has recognized “[t]he existence of identical rules in international treaty law and customary law” on a number of occasions, Military and Paramilitary Activities in and against Nicaragua , op. cit. 18, at p. 95, para. 177; see also North Sea Continental Shelf cases, (1969) ICJ Rep. p. 3, at pp. 38-39, para. 63; Gabcikovo-Nagymaros Project, op. cit. 15, at p. 46, para. 57.

40 See Nuclear Tests cases (1974) ICJ Rep. at pp. 253 and 457 where France undertook by a unilateral act not to engage in further atmospheric nuclear testing.41 Elettronica Sicula S.p.A. (ELSI) (United States v. Italy) (1989) ICJ Rep., p. 15, at p. 50, para. 70.42 I. Brownlie, op. cit. 1, p. 437.


of ‘objective responsibility’ is the responsibility of the State for the acts of its officials or organs, which may devolve upon it despite the absence of any fault on its part. To make the State responsible for acts committed by its officials or organs outside their competence, it is necessary that they should have acted as authorized officials or organs, or in so acting, they should have used powers or measures appropriate to their official character.43 On the other hand, in the Corfu Channel case, the International Court of Justice, while holding Albania responsible on the basis of evidence that Albania had the knowledge of mine-laying and its failure to give warning in this regard in breach of its international obligations, stated:...knowledge of the mine-laying cannot be imputed to the Albanian Government by reason merely of the fact that a minefield discovered in Albanian territorial waters ... [I]t cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that that State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily know, or should have known, the authors. This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.”44Accordingly, there is no clear rule that responsibility is always based on fault, nor one that it is independent of it. Hence, there is no clear presumption either way. Where responsibility is essentially based on acts or omission, like in Corfu Channel case or Diplomatic and Consular Staff in Tehran case, fault becomes a vital consideration. But if the act is carried out deliberately, consideration of fault has insignificant role. So, everything depends on the context and the interpretation of the obligation breached. The international law on State responsibility, as stated in the Draft articles (2-12), does not require fault as a pre-requisite before an act or omission be characterized as an international wrong. But the case law point to the conclusion that fault is necessary condition for responsibility, having regard to the alleged conduct of the State.43The role of harm or damage in the law of State responsibility has also been a subject of debate among the scholars. As evident from the Draft articles, there is no general requirement of harm or damage before the State responsibility is actually laid down. In certain situations, mere breach of an obligation is enough to give rise to the responsibility of the State, such as a minor infringement of the inviolability of an embassy or a consular mission. On the Other hand, in trans-boundary environment pollution cases, such as river pollution, the actual damage needs to be established to fix the State responsibility 46 Consequently, the breach of an international obligation by a State is necessary in State responsibility without always establishing the material harm to another State or person. The main focus in fixing responsibility in such cases is to avoid repetition of such conduct in future, rather than seeking compensation.47______________________43 In Caire case, (1929) 5 UNRIAA 516 at P. 529, the arbitral tribunal affirmed the doctrine.44 Op. cit. 20, at p. 18.45 Brownlie, op. cit. 1, at pp. 440-441.46 In Gabcikovo-Nagymaros Project, (1997) ICJ Rep. p. 7, preparations for the diversion of the Danube was not found to be in breach of treaty until the diversion went

ahead and caused damage to Hungary. See also Lake Lanoux Arbitration (1957) 24 ILR 101. In the case between Costa Rica and Nicaragua, Costa Rica, among others, has requested the Court to direct Nicaragua not to artificially channel the San Juan River away from its natural watercourse without the consent of Costa Rica and not to prohibit the navigation on the San Juan River by Costa Rican nationals, see, ICJ Press Release, No. 2010/38, 19 November 2010.47 Crawford & Olleson in Evans Ed., International Law, op. cit. 9, at p. 466.


2. Obligation in force, continuing wrongful acts and the time factorArticle 13 of the Draft articles states the basic principle that “[a]n act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.”48 Hence, it is important to examine at what point an obligation entered into force for the State and when it ceased to bind the State or was terminated. So, if any breach occurs while the obligation was in force for that State, responsibility will accrue as a result of an internationally wrongful act, and it will not be affected by the subsequent termination of the obligation, whether as a result of the termination of the treaty which has been breached or of a change in international law.49It is, however, not easy to establish the time when the obligation came into force under customary international law or when the old rule has been replaced by a new rule. Another problem in this regard involves determining exactly when, or during what period, a wrongful act occurred and how long it continued. Wrongful acts may continue over a period of time, for example, the continued detention of diplomatic and consular staff in the Hostages case, or the forced or involuntary disappearance of a person contrary to human rights terms. Other wrongs may be instantaneous, even though their effects may continue even after the breach. For example, an unlawful killing or expropriating property have effect at a specific time, the breach occurs at the moment the victim is killed or the property has been taken over, even though the effects of these breaches are enduring. In general, such continuing consequences concern the scope of reparation, not whether there has been a breach in the first place.50Although the existence and duration of a breach of an international obligation depends for the most part on the existence and content of the obligation and on the facts of the particular breach, certain basic concepts are established under Art. 14 of the Draft articles. These concepts are significant in the matters of jurisdiction of courts in State responsibility cases. There are certain breaches not extending in time and there are continuing wrongful acts. A continuing wrongful act, occupies the entire period during which the act continues and remains not in conformity with the international obligation, provided that the State is bound by the international obligation during that period.51 For example, the Inter-American Court of Human Rights has interpreted forced or involuntary disappearance as a continuing wrongful act, one which______________________48 See Judge Huber’s statement in Island of Palmes case (Netherlands v. United States of America), (1928)2 UNRIAA 829, at p. 845.49 See Northern Cameroons case (Preliminary Objections) (1963) ICJ Rep. p. 15, at p. 35; in the “Rainbow Warrior” arbitration, the tribunal held that, although the relevant treaty obligation had terminated with the passage of time, France’s responsibility for its earlier breach remained op. cit. 2, at pp. 265-266. But both aspects of the principle are implicit in the ICJ decision in the Certain Phosphate Lands in Nauru case. Australia argued there that a State responsibility claim relating to the period of its joint administration of the Trust Territory for Nauru (1947-1968) could not be brought decades later, even if the claim had not been formally waived, see Certain Phosphate Lands in

Nauru (Nauru v. Australia) (Preliminary Objections) (1992) ICJ Rep. p. 240, at pp. 253-255, paras. 31-36.50 Commentary, Art. 14, Draft articles.51 Art. 14(2) of the Draft articles reads: “The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.”


continues for as long as the person concerned is unaccounted for.52 An act does not have a continuing character merely because its effects or consequences extend in time. It must be the wrongful act as such which continues. To determine the responsibility, in each of these cases, the question of the continuance in force of the obligation breached is taken into account. The consequences of a continuing wrongful act will depend on the context, as well as on the duration, of the obligation breached. A question common to wrongful acts whether completed or continuing is when a breach of international law occurs, as distinct from being merely preparatory or imminent.The notion of continuing wrongful act has also been applied by the European Convention on Human Rights (ECHR). For example, under the ECHR, claims can be brought against a State party for the breaches after the Convention entered into force for that State (ratione temporis), and an individual could also bring a claim against the State party previously if the State had accepted the right of individual petition.53 But if the breach of the Convention, committed before the State acceded to the Convention, State may still be held responsible, if the breach continues even after the State became a party and the court will have the jurisdiction. In De Becker case, the petitioner was debarred from entering Belgian and not to indulge in journalism, after he was found guilty for collaborating with Germans during the War, under Belgian law in 1954. Belgian became a party to the ECHR in June 1955. The petition was held to be admissible by the Commission as De Becker was put under a continuing disability for life in violation of his right to freedom of expression. Belgium’s contention of ratione temporis for the non-admissibility of the application was rejected.54

C. Legal Excuses or Defences for Breaches of International LawAs under municipal legal systems, international law also recognizes certain grounds justifying or excusing non-compliance by a State with its international obligations. These defences preclude the responsibility of a State for its wrongful conduct. The Draft articles in Chapter V of Part One enlist these defences under the heading of “circumstances precluding wrongfulness,” though they are not exclusive. It sets out six circumstances/defences: consent (Art. 20), self- defence (Art. 21), countermeasures (Art. 22), force majeure (Art. 23), distress (Art. 24) and necessity (Art. 25). These circumstances are also recognized by many legal systems, often under the same designation. It is also made clear that none of these circumstances can be relied upon if the conduct in question is in conflict with a peremptory norm of general international law (Art. 26). Article 27 deals with certain consequences of the invocation of one of these circumstances.______________________52 Blake, Inter-American Court of Human Rights, Series C, No. 36, para. 67 (1998).53 Prior to the entry into force of Protocol 11 to the ECHR, individual could bring a claim only if the State party had accepted the right of individual petition, now under the Protocol, this right is compulsory (Art. 34, ECHR)54 (1962) 33 ILR 205 (Court); see also, Loizido v. Turkey, (Merits), Eur. Court H.R., Reports, 1996-VI, p. 2216.


1. ConsentValid consent by a State to a particular conduct of another State, which would otherwise be inconsistent with its international obligations, precludes the wrongfulness of that act in relation to the consenting State, provided the conduct remains within the limits of the consent given (Art. 20 Draft articles). Consent may be vitiated by error, fraud, corruption or coercion. This is consistent with the role of consent in international relations generally. Consent to the commission of otherwise wrongful conduct may be given by a State in advance or even at the time it is occurring. Examples of consent given by a State which has the effect of rendering certain conduct lawful include military action or commissions of inquiry sitting on the territory of another State, the exercise of jurisdiction over visiting forces, humanitarian relief and rescue operations and the arrest or detention of persons on foreign territory.55 But the consent given to an act in violation of peremptory norms (e.g. genocide) would not be considered as ‘valid’. Consent, however, can only preclude the wrongfulness with regard to the giving State; but if the obligation breached is owed to more than one State, the wrongfulness of the act will not be precluded with regard to those States that have not given their consent.

2. Self-defenceSelf-defence precludes the wrongfulness of the conduct taken within the limits laid down by international law. Art. 21 of the Draft articles states: “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.” Article 51 of the Charter of the United Nations preserves a State’s “inherent right” of self-defence in the face of an armed attack. The International Court of Justice in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons has also upheld this right implicitly. It made a distinction between a per se restriction on the use of force under Art. 2(4) and the right of self-defence. Even if a State is under an obligation of “total restraint” by an international obligation (under Art. 2(4)) if that obligation is expressed or intended to apply as a definitive constraint to States in armed conflict, it might be overridden if a State is facing an imminent threat and required to act in self defence.56

3. CountermeasuresUnder certain circumstances, the commission by one State of an internationally wrongful act may justify another State injured by that act in taking non-forcible countermeasures in order to procure its cessation and to achieve reparation for the injury. Art. 22 of the Draft articles provides: “The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State.” Legality of the countermeasures has been accepted in judicial decisions and State practice. In the Gabcikovo-Nagymaros Project case, ICJ clearly accepted that countermeasures______________________55 Savarkar case, (1911) 11 UNRIAA 243, at pp. 252-255.56 Legality of the Threat or Use of Nuclear Weapons, (1996) ICJ Rep. p. 226, at p. 242, paras 30, 39, 52.


might justify otherwise unlawful conduct “taken in response to a previous international wrongful act of another State”, provided certain conditions are met.37 The more usual terminology for such measures under customary international law has been “legitimate reprisals” or, more generally, measures of “self-protection” or “self help”.Countermeasures may only preclude wrongfulness in the relations between an injured State and the State which has committed the internationally wrongful act. Under the Draft articles countermeasures only cover suspension of performance by a State of one or more of its obligations, they are to be distinguished from acts of retorsion which, since they are by definition not a breach of the obligations of the State, cannot give rise to State responsibility and therefore require no justification. Certain obligations, such as to refrain from the use of force, those of a humanitarian character prohibiting the taking of reprisals, and those under other peremptory norms may not be suspended by way of countermeasures.58

4. Force majeureLike most legal systems, international law also does not impose any responsibility in circumstances where the non-performance is entirely outside the control of the State. Art. 23(1) of the Draft articles provides: “The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.” Thus .force majeure as a defence is available only where three elements are met: (a) the act in question must be brought about by an irresistible force or an unforeseen event; (b) which is beyond the control of the State concerned; and (c) which makes it materially impossible in the circumstances to perform the obligation. Material impossibility of performance giving rise to force majeure may be due to a natural or physical event (e.g., stress of weather which may divert State aircraft into the territory of another State, earthquakes, floods or drought) or to human intervention (e.g., loss of control over a portion of the State’s territory as a result of an insurrection or devastation of an area by military operations carried out by a third State), or some combination of the two. The Draft articles further limits the defence by stating that if either (a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or if (b) the State has assumed the risk of that situation occurring (Art. 23(2)), the defence of force majeure cannot be invoked to avoid responsibility.59 Force majeure does not include circumstances in which performance of an obligation has become more difficult, for example, due to some political or economic crisis. Nor does it cover situations brought about by the neglect or default of the State concerned,______________________57 Gabcikovo-Nagymaros Project, op. cit. 15, at p. 55, para. 83. Other cases upholding these measures are Naulilaa (Portugal v. Germany) (1928) 2 UNRIAA 1011, at pp. 1025-1026, and Air Service Agreement award, 54 ILR 303.58 See also Ch. 16 infra on reprisals and countermeasures.

59 Compare with Arts. 61(2) and 62 of the Vienna Convention on the Law of Treaties.


even if the resulting injury itself was accidental and unintended. 60 Force majeure has been acknowledged as a general principle of law but has not become the basis of judgement by courts.61

5. DistressAccording to Art. 24 of the Draft articles, distress operates to excuse the wrongfulness of an act if the author of the act had “no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.” The wrongfulness of conduct precluded in circumstances where the State agent had no other reasonable way of saving life. Thus, defence is limited to cases where human life is at stake. Most of the cases of distress under international law have involved aircraft or ships entering a State territory under stress of weather or following mechanical or navigational failure. To avoid its misuse, the Draft provides that (a) if the State invoking distress may well have contributed, even if indirectly, to the situation; or (b) if the act in question is likely to create a comparable or greater peril, distress as a defence is not available (Art. 24(2)).

6. NecessityNecessity operates to excuse an act done which ‘is the only means for the State to safeguard an essential interest against a grave and imminent peril’ and it does not seriously impair an essential interest of other State or States towards which the obligation exists, or of the international community as a whole (Art. 25). A State cannot invoke necessity if it has contributed to the situation of necessity. Unlike distress, necessity consists not in danger to the lives of individuals in the charge of a State official but in a grave danger either to the essential interests of the State or of the international community as a whole (Art. 25). Necessity has been invoked to protect a wide variety of interests, including safeguarding the environment, preserving the very existence of the State and its people in time of public emergency, or ensuring the safety of a civilian population.Necessity and distress differ from force majeure because the conduct in question of the State is theoretically avoidable but in force majeure it is involuntary or at least involves no element of free choice. A State is not required to sacrifice human life or to suffer inordinate damage to its interest to fulfil its international obligations. Necessity and distress can only excuse conduct which is not unduly onerous for other States. Even though in cases where necessity or distress is found to be established to preclude the wrongfulness of the acts, other States are not expected to bear the consequences of another State’s misfortune; the invoking State may have to pay compensation for any material loss caused to the State or States to which the obligation owed (Art. 27(b)).______________________60 ILC’s Commentary on Art. 23, Draft articles.61 See PCIJ judgements in Brazilian Loans case (France v. Brazil) PCIJ Rep. Series A, No. 21, p. 121 (1929); Serbian Loans case, PCIJ Rep. Series A, No. 20, pp. 39-40 (1929); and the "Rainbow Warrior" arbitration, op. cit. 2, at p. 253.


7. Consequences of invoking a circumstance precluding wrongfulnessDespite the fact that the wrongfulness of an act may be precluded in certain circumstances, but it is subject to two conditions. First, the wrongfulness of the conduct will be precluded so long as the circumstance precluding wrongfulness exists. When and to the extent that a circumstance precluding wrongfulness ceases, or ceases to have its preclusive effect for any reason, the obligation in question will again have to be complied with.62 In the Gabcikovo-Nagymaros Project case, while considering Hungary’s argument that the wrongfulness of its conduct in discontinuing work on the Project was precluded by a state of necessity, the Court remarked that “[a]s soon as the state of necessity ceases to exist, the duty to comply with treaty obligations revives”.63 Secondly, the preclusive effect may be relative rather than general and may not be justified erga omnes. In certain circumstances, the State having committed the act might have to provide some form of compensation for any material loss caused by the act in question (Art. 27(b)).

IV. CONTENT OF INTERNATIONAL RESPONSIBILITY OF A STATEThe core legal consequences for the responsible State on the commission of an internationally wrongful act are twofold: to cease the wrongful conduct (Art. 30) and to make full reparation for the injury caused by the internationally wrongful act (Art. 31). Part Two, Ch. I of the Draft articles codify obligations of a responsible State. They are aimed at the restoration of the legal relationship that has been threatened or impaired by the breach, i.e., with the assurance of continuing performance. The obligation continues to bind the responsible State, and the State therefore remains obliged to perform the obligation in question (Art. 29). Where the internationally wrongful act constitutes a serious breach by the State of an obligation arising under a peremptory norm of general international law, the breach may entail further consequences both for the responsible State and for other States. In particular, all States in such cases have obligations to cooperate to bring the breach to an end, not to recognize as lawful the situation created by the breach and not to render aid or assistance to the responsible State in maintaining the situation so created (Arts. 40-41).

A. Cessation and non-repetitionCessation of conduct in breach of an international obligation is the first requirement in eliminating the consequences of wrongful conduct. With reparation, it is one of the two general consequences of an internationally wrongful act. Reparation in many cases may not be the central issue in a dispute between States as to questions of responsibility.64 Art.______________________62 Art. 27(a), and Arts. 52(3)(a) and 53.63 Gabcikovo-Nagymaros Project, op. cit. 15, at p. 63, para 101.64 The ICJ has recognized so in, for example, Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) (Merits), (1974) ICJ Rep, p. 175, at pp. 201-205, paras. 65-76; and Gabcikovo-Nagymaros Project, op. cit. 15, p. 81, para. 153. See also C. D. Gray, Judicial Remedies in International Law (Oxford, Clarendon Press) 1987, pp. 77-92.


30 provides that the State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require. While the obligation to cease wrongful conduct will arise most commonly in the case of a continuing wrongful act, Art. 30 also encompasses situations where a State has violated an obligation on a series of occasions, implying the possibility of further repetitions. Cessation and the offer of assurances and guarantees of non-repetition by the responsible State are particularly important when the individual breach may not have in itself caused any great amount of harm but where there is a threat of repetition. It is of great significance in matters of the protection of embassies and the environment. In the case of a continuing wrongful act, in breach of an international obligation, the responsible State is under an obligation to bring that act to an end (Art. 30(a)). In certain circumstances, it will be incumbent upon and appropriate for the responsible State to offer appropriate assurances and guarantees of non-repetition to the State or States to which the obligation is owed (Art. 30(b)). Where assurances and guarantees of non-repetition are sought by an injured State, the question is essentially the reinforcement of a continuing legal relationship and the focus is on the future, and not on the past.The question whether the obligation to offer assurances or guarantees of non-repetition may be a legal consequence of an internationally wrongful act was debated in the LaGrand case. The case was concerned with the United States’ admitted failure of consular notification contrary to Art. 36 of the Vienna Convention on Consular Relations to Germany. Germany’s complaint was related to the failure of notification to two death row German inmates, but its wider concern was the United States’ compliance with its continuing obligations of performance under the Convention on Consular Relations, 1963. Germany sought both general and specific assurances and guarantees as to the means of future compliance with the Convention. The United States, though rejected this claim of Germany, but took extensive action to ensure that federal and State officials would in future comply with the Convention and spelt out those measures in detail. In consequence, the Court held, that the commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), must be regarded as meeting Germany’s request for a general assurance of non-repetition.65There is no specific form of assurance and guarantees against future repetition in international law.

B. ReparationUnder international law, the responsible state is obliged to make full reparation for the consequences of its breach, especially where actual harm or damage has occurred, provided that these are not too remote or indirect. Art. 31 of the Draft articles provides:1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.______________________65 LaGrand (Germany v. United States of America) (Merits) (2001) ICJ Rep., p. 466 at p. 513, para. 124.


2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.“Material” damage here refers to damage to property or other interests of the State and its nationals which is assessable in financial terms. “Moral” damage includes such items as individual pain and suffering, loss of loved ones or personal affront associated with an intrusion on one’s home or private life (ILC Commentary: Art. 31).The linkage between breach and reparation has been mentioned in Art. 36(2) of the Statute of the International Court of Justice in cases falling within its jurisdiction: (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation. This linkage is spelled out by the Permanent Court of International Justice in its much quoted judgement in Chorzow Factory case when it stated:It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.66Thus, there is no need for a specific mandate to an international tribunal to award reparation, if it has otherwise jurisdiction as between the parties in the matter. The underlying principle is that reparation must wipe out the consequences of the breach, putting the parties as far as possible in the same position as they would have been if the breach had not occurred, i.e., to restore the status quo ante. In this regard, reparation may take several forms, including monetary compensation. This fact was highlighted by the Court in Chorzow Factory case:The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals— is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.67It is thus clear that international law accepts restitution as the first of the forms of reparation, and it is only where restitution is not possible that other forms of reparation are substituted. Reparation is designed to restore previous conditions and, if that is not possible, to compensate for the injury itself. Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination (Art. 34). Part Two, Ch. II of the Draft articles deals with forms of reparation for injury.______________________

66 Factory at Chorzow, (Jurisdiction), PCIJ Rep., Series A, No. 9, p. 21 (1927).67 Factory at Chorzow (Merits), PCIJ Rep., Series A, No. 17, at p. 47 (1928).


Restitution is the first form of reparation available to a State injured by an internationally wrongful act under Art. 34 of the Draft articles. Restitution involves the re-establishment as far as possible of the situation which existed prior to the commission of the internationally wrongful act, to the extent that any changes that have occurred in that situation may be traced to that act. The primacy of restitution was confirmed by PCIJ in the Factory at Chorzow case when it said that the responsible State was under “the obligation to restore the undertaking and, if this be not possible, to pay its value at the time of the indemnification, which value is designed to take the place of restitution which has become impossible”.68 Restitution may take the form of material restoration or return of territory, persons or property, or the reversal of some juridical act, or some combination of them. However, restitution in kind is infrequent.69Restitution is not required if it is “materially impossible” or it involves a burden out of all proportion to the benefit deriving from restitution instead of compensation (Art. 35 (2)). It is thus based on considerations of equity and reasonableness.

2. CompensationOf the various forms of reparation, compensation is perhaps the most commonly sought in international practice. In the Gabcikovo-Nagymaros Project case, ICJ declared: “It is a well- established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it.”70 The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The basic requirement of compensation is that it should cover any ‘financially assessable damage’ flowing from the breach (Draft article 36). Compensation is normally a matter of negotiation. There are no established principles for calculating the sum to be paid. In many cases though, like loss of life, the quantification of damage is only approximate, but in others, like in cases involving loss of property (e.g., expropriation), it is assessable in the context of market, including even the loss of profits, etc., and may be compensable. But non-material damage (referred to as “moral damage” in national legal systems) is financially assessable and may be the subject of a claim of compensation. Damages have been awarded for non-material loss, but international tribunals have been reluctant to grant exemplary or punitive damages. In the Lusitania case, the United States-Germany Mixed Claims Commission refused to award punitive damages. On the other hand, in the I’m Alone case, $25,000 was awarded against the United States as a “material amend in respect of the wrong suffered by Canada.”71 It awarded only reparation in respect of injury suffered.72 Compensation, however, may include even interest (Draft article 38, Commentary).______________________68 Ibid. p. 48.69 Martini case (Italy v. Venezuela), 2 UNRIAA 975, at p. 1002 (1930).70 Op. cit. 15, p. 81, para. 152.71 I’m Alone case (Canada v. United States), 3 RIAA 1609(1933/35).72 Lusitania case, 7 RIAA 32, at pp. 38-44 (1956).


It is evident from cases coming out of international tribunals that there is a gradual movement towards a more realistic and complete appreciation of issues of compensation, and of remedies more generally, but they remain more symbolic in nature.73

3. SatisfactionMore often, the claimant, whether a State or some other entity, may seek vindication more than compensation, by way of a protean remedy of ‘satisfaction’. According to Art. 37(2), “Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.” Satisfaction is the remedy for those injuries, not financially assessable, which amount to an affront to the State. These injuries are frequently of a symbolic character, arising from the very fact of the breach of the obligation, irrespective of its material consequences for the State concerned. It is available for injury sometimes described as “nonmaterial injury”. In many cases before international courts and tribunals, an authoritative finding or declaration of the wrongfulness of the act has been held to be sufficient satisfaction. In the Corfu Channel case, in response to Albania’s claim, the International Court of Justice held that the mine-sweeping operation by the British Navy constituted a violation of Albanian sovereignty.74 However, while the making of a declaration by a competent court or tribunal may be treated as a form of satisfaction in a given case, such declarations are not intrinsically associated with the remedy of satisfaction. Any court or tribunal which has jurisdiction over a dispute has the authority to determine the lawfulness of the conduct in question and to make a declaration of its findings, as a necessary part of the process of determining the case. Such a declaration may be a preliminary to a decision on any form of reparation, or it may be the only remedy sought. On the other hand, regret or apologies were required as a form of satisfaction in the “I’m Alone”, and “Rainbow Warrior” cases75, and were offered by the United States in the Consular Relations and LaGrand cases.76 There are, however, limitations in providing satisfaction: first, the proportionality of satisfaction to the injury; and secondly, the requirement that satisfaction should not be humiliating to the responsible State.In LaGrand case, the Court held that an apology for any future violation of Article 36 of the Vienna Convention would be inadequate reparation, but it left the choice with the United States to find the means of reparation for the breach of its obligation. It emphasized “that the competent national authorities failed to comply with their obligation to provide the requisite consular information [under Article 36, paragraph 1 of the Vienna Convention on Consular Relations, 1963] ‘without delay’, thus preventing the person from seeking and obtaining consular assistance from the sending State.”77 However, in the Avena case in 2004, while noting that the ‘procedural default’ rule has not been revised to prevent its application in cases involving______________________73 Crawford & Ollesson, op. cit. 9, p. 472; C. Gray, Judicial Remedies in International Law (Oxford: Clarendon Press) 1987, pp. 77-95.74 Corfu Channel (Merits), op. cit. 34, at p. 35.75 See op.cit. 71 above; op.cit. 2 above respectively.

76 See Vienna Convention on Consular Relations (Paraguay v. United States of America), (Provisional Measures), Order of 9 April 1998, (1998) ICJ Rep. p. 248; op.cit. 65 above respectively.77 Germany v. United States of America, (Merits) (2001) ICJ Rep. 2001, p. 466, paras 79-91.


the breaches of the Convention, the Court found that the internationally wrongful acts committed by the United States were the failure of its competent authorities for their failure to inform the Mexican nationals concerned, to notify the Mexican consular posts and to enable Mexico to provide consular assistance.78 The case was related to the arrest, detention, trial, conviction and sentencing of 52 Mexican nationals, and the failure of the United States authorities to give them timely notification of their right to consular protection. About the reparation the Court stated, “it follows that the remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of these nationals’ cases by the United States courts, with a view to ascertaining whether in each case the violation of Article 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice.” It observed that the appropriate reparation in this case would consist in the obligation of the United States to provide, ‘by means of its own choosing, review and reconsideration of the conviction and sentences of Mexican nationals so convicted.”79 As noted above, if the breach in question is a serious breach of an obligation under a peremptory norm, certain additional consequences arise for all other States under Art. 41 (Draft articles), the principal among them is the obligation not to recognise as lawful the situation created, or to render aid or assistance in its maintenance (Art. 41(2)). A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation (Art. 40(2)).

V. INVOCATION AND ISSUES OF ADMISSIBILITY OF INTERNATIONAL RESPONSIBILITY OF A STATEA. Invocation of State ResponsibilityIt is now well-established that international responsibility arises directly by operation of law when a breach of an obligation occurs, but for all practical purposes, it has to be invoked by someone towards whom that obligation was owed. Central to the invocation of responsibility is the concept of the injured State. This is the State whose individual right has been denied______________________78 Case Concerning Avena and Other Mexican Nationals (Mexico V. United States of America) (2004) ICJ Rep., p. 12.79 Ibid. para 121. Responding to the Court’s judgement, President Bush issued a Memorandum stating that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision.” , which was rejected by the Supreme Court on the ground that the courts are bound by the domestic law. Immediately after the decision of the ICJ, in March 2005, the United States pulled out of the Optional Protocol to the Convention, which allows the ICJ to have compulsory jurisdiction over disputes arising under the Convention. In June 2006, the US Supreme Court ruled that foreign nationals who were not notified of their right to consular notification and access after an arrest may not use the treaty violation to suppress evidence obtained in police interrogation or belatedly raise legal challenges after trial - Sanchez-Llamas v. Oregon, 548 US 331 (2006). In March 2008, the Supreme Court further ruled that the decision of the ICJ directing the United States to give “review and

reconsideration” to the cases of 51 Mexican convicts on death row was not a binding domestic law and therefore could not be used to overcome state procedural default rules that barred further post-conviction challenges - Medellin v. Texas, 552 US (2008).


or impaired by the internationally wrongful act or which has otherwise been particularly affected by that act. Part Three of the Draft articles deals with the invocation of the responsibility of a State by another State or States. It deals not only with bilateral obligations but with obligations in the nature of erga omnes (e.g., peace and security, sustainable development, the environment) and deals with the countermeasures taken in order to induce or force the responsible State to cease the conduct in question and to provide reparation, if the remedies are not forthcoming.Art. 42 defines the concept of an ‘injured State’ who is entitled “to invoke the responsibility of another State if the obligation breached is owed to(a) that State individually; or(.b) a group of States including that State, or the international community as a whole, and the breach of the obligation:(i) specially affects that State; or(ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.”80This has two aspects, i.e., breach of an obligation owed to a State individually; and the breach of a multilateral obligation has affected that State or States particularly, either they are specifically affected or because the obligation is integral in character, breach of which affects the enjoyment of the rights or the performance of the obligations of all the States concerned. Art. 48 deals with the invocation of responsibility by a State other than an injured State in the collective interest, in particular in regard to obligations owed to the international community as a whole. It provides: “Any State other than an injured State is entitled to invoke the responsibility of another State ... if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.”In the Barcelona Traction case,81 the International Court of Justice gave certain examples of “obligations erga omnes partes”, including the prohibition of acts of aggression and genocide and “the principles and rules concerning the basic rights of the human person, including protection from slavery and discrimination”.82 In its judgment in the East Timor case, the Court added the right of self-determination of peoples to this list.83The term “[a]ny State” in Art. 48(1) is intended to avoid any implication that these States have to act together or in unison. It relates to protection of collective interest of a group of States to whom the obligation is owed, and no particular State is injured in the______________________80 Compare with Art. 60(2) of the Vienna Convention on the law of Treaties.81 Barcelona Traction, Light and Power Co. Case, (1970) ICJ Rep., p. 3 at p. 32, para. 33.82 Ibid, para 34. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Preliminary Objections) (1996- II) ICJ Rep. p. 595, para 31; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) (Provisional Measures) Order of 10 July 2002 (2002) ICJ Rep. p. 219, para. 71.

83 See East Timor (Portugal v. Australia), (1995) ICJ Rep., p. 90, at p. 102, para. 29. See also Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory (2004) ICJ Rep., p. 136, para 155.


sense of Art. 42. Examples of these obligations are human rights norms and environmental protection norms; the beneficiaries of such obligations are either individuals (for human rights norms) or a group of States as a whole (under environmental protection norms). In the case of breach of one or other of these categories of obligation, third States can demand cessation and assurances and guarantees of non-repetition, as well as performance of the obligation of reparation on behalf of either the State injured or the beneficiaries of the obligation breached (Art. 48(2)).

B. Admissibility of ClaimsFor the admissibility of a claim of responsibility, two major aspects are looked into: first, to identify the State or States that could be described as being wronged and have locus standi in relation to a given wrong; and second, to consider the application of other rules of international law that may operate to preclude the admissibility of a claim before an international tribunal even if a cause of action and legal interest are clearly established. As a preliminary issue, a litigant State should be able to establish that an obligation owed to it has been breached, but where the obligation breached is in the nature of erga omnes, it may be easier for the claimant State to establish its legal interest, but the legal regime for protecting community obligations is not well established so far and lacks coherence.84 In contrast to obligations arising out of bilateral or private rights framework, breaches of obligations designed to protect community values and interests pose a particular challenge in the context of traditional rules on admissibility of claims. The obligations in the field of human rights, protection of environment, preservation of peace and security may affect the interest of the international community as a whole without specifically affecting the interest of a particular State. In such a case, to bring a claim under the existing framework needs to be worked out.85Under international law, like other legal systems, a claimant must have a demonstrable interest in the matter. Legal interest is generally defined with reference to the obligation breached, and thus a party to whom the obligation owed is the party entitled to claim. The International Court of Justice, in South-West Africa cases, rejected the claim of Ethiopia and Liberia (the members of the League of Nations) on the ground that they had no legal interest in respect of the subject-matter of the dispute brought by them against South Africa, and they lacked the locus standi.86 Though this approach of the Court had invited wide criticism, nevertheless, it is generally accepted that apart from obligations in the nature of erga omnes, only those who have an interest or are beneficiaries of international obligations, have the right to enforce them.87______________________84 Phoebe Okowa, Issues of Admissibility and the Law on International Responsibility, in Evans (Ed.) International Law, 2nd Ed. (Oxford University Press), 2006, p. 479, at 480.85 See Art. 48, Draft articles. Although there has been a general recognition of obligations erga omnes, there is not a single case in which an applicant State has successfully brought a claim to enforce community values.

86 South-West Africa cases (Merits) (1966) ICJ Rep. p. 6, para 99. See Draft Art. 48, Commentary, para 7 - “collective obligations”, must apply between a group of States and they have been established in some collective interest.87 Barcelona Traction case, op. cit. 81, at pp. 32, paras. 32, 33.


Under international law, only States in general have procedural capacity to bring an action before an international tribunal. The non-State actors - individuals, corporations or other legal entities (barring international organizations) do not enjoy this capacity. In the absence of a special treaty arrangements granting them access to international tribunals, their claims must be channelled through the State of their nationality on the ground of diplomatic protection. The rationale behind this is that it is the State of which that individual is a national that is wronged and it can bring an action in respect of that wrong. Most of the claims under international law arise out of bilateral relationship, which may, inter alia, be based on breaches of treaty obligations, violation of territorial integrity, injuries to diplomatic representatives, mistreatment of nationals or injury to the property of nationals by the other State. Conception of standing under international law is primarily a vindication of bilateral or private rights. To pursue these cases, nationality provides a convenient premise for channelling claims and becomes a ground of admissibility of claims.In determining the locus standi of a State, a distinction is generally made between injury to direct interests and those that affect indirect interests (principally to its nationals - natural, corporate or other legal entity). There is generally no problem in pursuing the cases affecting its direct interests, but in protecting the indirect interests, the issues related to diplomatic protection, particularly related to nationality, come in. Furthermore, the dividing line between direct and indirect interests of a State sometime gets blurred, especially with regard to mixed claims where there are elements of direct injury to a State’s interests as well as to its nationals. Examples of direct interests may relate to damage to a State’s property, warships, diplomatic mission, members of armed forces, the executive, including head of State (they enjoy sovereign immunity).

VI. BASES OF DIPOLMATIC PROTECTIONWhen a national of a State is ill-treated by another State, victim’s State may bring a claim against the delinquent State by exercising its right of diplomatic protection. This will require compliance with the law on admissibility of claims, in particular, the State exercising the right of protection must satisfy the rules concerning the nationality of claims, and the exhaustion of local remedies available under the law of the delinquent State by the victim.In 2006, the International Law Commission adopted a set of Draft Articles on Diplomatic Protection, accompanied by a Commentary.88 The Draft Articles defines “diplomatic protection” in Art. 1 as:... diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.______________________88 For the text and Commentary, see the Report of the 58th Sess. ILC (2006), GAOR A/61/10, pp. 22 et seq. See D.J. Harris, Cases and materials on International Law, 7th ed. (Sweet & Maxwell) 2010, at p. 502.

Page 306 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW A. Nationality of Claims RuleArt. 44(a) of the Draft articles on State responsibility provides that the responsibility of a State may not be invoked if the claim is not brought in accordance with any applicable rule relating to the nationality of claims.Nationality is important in the context of State responsibility. When injury is suffered by its national, recognized by municipal law, it is only the State of victim's nationality that has the right to bring a claim. By resorting to diplomatic action or international judicial proceedings on behalf of its national, a State in reality asserting its own right, to ensure respect for the rules of international law. A State may only espouse a claim against another state on behalf of one of its nationals. In the Mavrommatis Palestine Concessions case, the Permanent Court stated:It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic protection or international judicial proceedings on his behalf, a State in reality asserting its own rights - rights to ensure, in the person of its subjects, respect for the rules of international law.89Thus, the State is the sole judge to decide whether to grant diplomatic protection, and about i its extent and duration. It retains in this respect a discretionary power, which may be influenced j by political considerations rather than the legal merits of a particular claim.The claim of the State may be in variance with that of its national whose cause it has espoused. In the Barcelona Traction case, the International Court noted that:...within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law ... The municipal legislation may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation, and clothe the right with corresponding sanctions. However, all those questions remain within the province of municipal law and do not affect the position internationally.90As the exercise of diplomatic protection is discretionary, hence there is no obligation on the part of the State to transmit the damages received for any of the individuals concerned.911. Protection of Natural PersonsTo espouse the cause of its nationals, the first and foremost requirement is to establish nationality of the 'victim' for purposes of diplomatic protection. Since the exercise of diplomatic protection in international law lays down no definition of nationality, granting of nationality is exclusively____________________89 Mavrommatis Palestine Concessions, PCIJ Rep., Ser. A, No. 2, at p. 12 (1924).90 Barcelona Traction case, op. cit. 81, paras 78-79.

91 Human rights obligations and treaties protecting the economic interests of individuals have nevertheless substantially qualified the discretionary character of diplomatic protection by creating directly enforceable rights even against the State of which the individual is a national. See Phoebe Okowa, op. cit. 84, at p. 484.

Page 307 STATE RESPONSIBILITY a matter of domestic law.92 There is a general presumption that nationality granted by a State is valid as long as it complies with the provisions of domestic law. A state is free to determine for itself who are to be deemed its nationals.93 Despite this prima facie unfettered discretion, the validity of such nationality so conferred by a State on the international plans is a question of international law, and is only opposable to other States if it has been granted in a mariner consistent with the principles of international law. For this reason, nationality may be disregarded or treated as nullity at the international plane if it has been granted in excess of jurisdictional limits placed by international law.For nationality to be valid at international plane, it must be firmly grounded on the existence of genuine link between the claimant State and the individual on whose behalf the claim is brought.94 A State's right to afford diplomatic protection may be challenged on the ground that the link between it and its alleged national is only tenuous and not genuine. In the absence of such a link, a claimant State will be prohibited from proceeding with an international claim. In the Nottebohm case, Liechtenstein attempted to exercise diplomatic protection on behalf of Nottebohm against Guatemala. Nottebohm had become a naturalized Liechtenstein citizen after only a few weeks residence in that State and Guatemala challenged Liechenstein's right to espouse a claim on his behalf. The International Court laid down that for nationality to form a valid basis for diplomatic protection, there must be a 'genuine link' between the wronged individual and the State on whose behalf it is claiming. The Court maintained:"... a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual's genuine connection with the State..."95The Court characterized nationality as:"a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State."96It is thus clear that for diplomatic protection, not only must an individual possess the claimant State's nationality, but that the nationality must be effective. The Court extended the requirement of "genuine link" in Nottebohm case to resolve problems of dual97 and multiple nationality,_________________92 Nationality may be acquired in a variety of ways but the two most common ways of attaining nationality are (i) by descent from parents (jus sanguinis), or (ii) by birth in the territory of the state (jus soli). For more on 'nationality', see Ch. 9 supra.93 Art. 1 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 179 L.N.T.S. 89; U.K.T.S. 33 (1937) Cmnd. 5553.94 Brownlie, op. cit. 1, at p 477.95 Nottebohm Case (Second Phase) (1955) ICJ Rep. p. 4 at p. 23.96 Id.

97 See Canevaro Case (Italy v. Peru), 11 RIAA 397; 6 AJIL. 746 (1912) Translation. In the Flegenheimer case, the Italian-United States Commission confined the application of 'genuine link' requirement to cases involving dual nationals, Flegenheimer Claim, (1958), 25 ILR at 148-150.


as also to the issue of diplomatic protection generally. But in Barcelona Traction case, the International Court refused to extend the 'genuine link' requirement to corporations and refrained from expressing an opinion as to correctness of the 'genuine link' requirement as a matter of general international law.98The general rule is that a State will only espouse a claim on behalf of an individual if the latter is a national at the time when the injury occurs and at the time when the claim is presented and award is made. For exercising diplomatic protection, the nationality must be continuous, as it is the bond of nationality that establishes the State's interest in the claim. "Genuine link" is not limited to individuals. Accordingly, "ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship."99Nationality rule can be waived by treaty or other ad hoc arrangements, such as the delegation of the right of protection to another sovereign. Treaties may also extend a general right of protection to non-nationals. In these circumstances, the bond of nationality is not critical to the admissibility of the claim. Examples can be of aliens in the service of the claiming State; stateless persons; non-nationals forming a minority in a group of national claimants; and non-nationals with long-term residence in the State espousing diplomatic protection.100

2. Nationality of CorporationsLike the case of individuals, in the case of corporations also the State of which the corporation is a national can exercise diplomatic protection to espouse its cause. A company has traditionally been regarded as having the nationality of "the State under the laws of which it is incorporated and in whose territory it has its registered office."101 However, these are not the only two criteria whereby a link between a company and a State may be evidenced. For example:"it has been the practice of some States to give a company incorporated under their law diplomatic protection solely when it has its seat (siege social) or management or centre of control in their territory, or when a majority or a substantial proportion of the shares has been owned by nationals of the State concerned."102In the Barcelona Traction case, the Court concluded that, with respect to "the diplomatic protection of corporate entities, no absolute test of the 'genuine connection' has found general acceptance."103 The International Court in this case was confronted with the question of whether Belgium could intervene on behalf of Belgian nationals and shareholders in a company, Barcelona Traction, which was incorporated in Canada and where it maintained its registered office. Majority of shareholders of the Company were Belgian. The losses sustained had been as a result of measures taken by Spain, the country in which the company operated. Canada initially intervened, but subsequently withdrew and did not proceed with a claim._________________98 Barcelona Traction case, op. cit. 81, para 70.99 Art. 5, Geneva Convention on the High Seas 1958. See also Chicago Convention 1944, Arts. 12 and 18.100 Phoebe Okawa, op. cit 84, at p. 493.

101 Barcelona Traction, Light and Power Co. Case, op.cit. 81, at p. 42.102 Id.103 Id.

Page 309 STATE RESPONSIBILITY The Court upheld Spain's objection to Belgian intervention on the grounds that Canada's failure to act did not increase Belgium's right. According to the Court's judgement, the State whose nationality a company possesses, even if it operates in a foreign country and is controlled by foreign shareholders, has the right to make the claim on its behalf. It was the company which had suffered the injury, but the company was not defunct and, therefore, whether or not to espouse a claim on behalf of the company remained within Canada's discretion. Regarding shareholders, the general rule is that a State may not pursue a claim on behalf of nationals who suffer injury as a consequence of a measure taken against foreign companies in which they own shares. As such where a wrong was done to the company, the interests of the shareholders may be affected but it was the company alone that had a right to maintain an action in international law. The Court concluded that to recognise diplomatic protection on behalf of shareholders would result in confusion as the shares of international companies are "widely scattered and frequently change hands."104 The Court did admit one exception to the general rule, namely, if the company ceased to exist. In such circumstances, the Court recognised that the national State of the shareholders could initiate a claim on behalf of the shareholders in respect of losses sustained by them as a result of the injury to the company.105 But it was not necessary to lift the corporate veil in order to determine the economic reality of a country, even if it indicated links with a State other than that of incorporation. The judgement failed to acknowledge that a State in which a company is incorporated may have little interest in pursuing a claim on its behalf. A company may be incorporated in a particular State as a matter of convenience. In that event, the State whose nationals are shareholders may indeed have considerable interest in espousing a claim.In the case of shareholding, ascertaining the legal interest may be particularly difficult, if the shares have changed hands, since for the right of protection to exist nationality must be continuous. There has to be some tangible connection between the company and the State exercising diplomatic protection. In the Oil Platforms case, Iran contested the United States right to extend diplomatic protection to US flagged but foreign owned merchant ships, on the ground that there was an absence of a genuine link as required by international law. The Court, however, decided in favour of the United States, ignoring the absence of genuine link for exercising diplomatic protection.106 Similarly, in ELSI case, the United States was permitted to exercise diplomatic protection on behalf of shareholders in an Italian company when the company had not ceased to exist. The company was wholly owned by two US subsidiaries - Raytheon and Machlett. Despite Italy's objections, the International Court decided in favour of the United States on the basis that there had been no violation of the treaty obligations relied on by the United States.107On the basis of judicial decisions, it is evident that the rules governing the nationality of claims has thus far have not been stated with certainty in the context of diplomatic protection._________________104 Ibid at p. 49.105 Ibid at p. 41.106 Oil Platforms (Islamic Republic of Iran v. United States) (2003) ICJ Rep. p. 161.

107 Elettronica Sircula SpA (ELSI) (1989) ICJ Rep. p. 15, para 101.

Page 310 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW B. Rule on Exhaustion of Local RemediesArt. 44(b) of the Draft articles provides that "the responsibility of a State may not be invoked if: the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted."It is an established rule of customary international law that before diplomatic protection is afforded, or before recourse may be made to international arbitral or judicial processes, local remedies must be exhausted. The raison d'etre of the rule is:(i) respect for the sovereignty of States - that matters occurring in the territory of a State must be given the first opportunity to exercise jurisdiction;(ii) to allow the State concerned the opportunity to afford redress within its own legal system for the alleged wrong; to reduce the number of possible international claims;(iii)it rests on considerations of practical convenience as the local courts are better placed to evaluate the facts; and(iv) there can be no claim on the basis of denial of justice until local remedies have been exhausted.The rule, however, only applies in those cases where the State brings a claim on behalf of a national. In principle, exhaustion of local remedies108 is not required when a State is bringing a claim to protect its direct interests. Local remedies means:"not only reference to the courts and tribunals, but also the use of the procedural facilities which municipal law makes available to litigants before such courts and tribunals. It is the whole system of legal protection, as provided by municipal law..."109Thus, the obligation to exhaust local remedies relates only to legal remedies, and would exclude remedies that are discretionary.110 Local remedies must be exhausted to the fullest extent, including the appeal procedure provided under local law.An individual must, therefore, employ "all administrative, arbitral or judicial remedies."111 Only effective remedies which could affect the final outcome of the case need be exhausted.112 The exhaustion of local remedies has been strictly applied, but local remedies need not be exhausted if it is evident that there is no justice to exhaust, or where it is apparent that any attempt to seek redress would be thwarted or unlikely to yield any results.113 If it is apparent_________________108 According to Art. 14 of the Draft Articles on Diplomatic Protection, 'local remedies' "means legal remedies which are open to an injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury." See op. cit. 88.109 Ambatielos Arbitration (Greece v. U.K.), 12 RIAA 83 (1956); 23 I.L.R. 306 (1956).110 Brownlie, op. cit. 1, p. 494 et seq; Brierly The Law of Nations, 6th ed. (Oxford: Clarendon Press) 1963, p. 281.111 See Draft Art. 19, 1961 Harvard Draft Convention on International Responsibility of States for Injuries to Aliens.112 Finnish Ships Arbitration, 3 RIAA. 1479 (1934) cf. El Oro Mining and Railway Co. Case (Great Britain. v. Mexico), 5 RIAA 191 (1931); and Interhandel Case (Preliminary Objections), (1959) ICJ Rep. p. 6, at pp 26-29.

113 Robert E. Brown Case, 6 RIAA 120, at p. 129 (1923).


that an Indian National, in exhausting municipal remedies, has encountered prejudice or obstruction and, accordingly, a denial of justice in a foreign country, the Indian Government may intervene in order to seek redress on his behalf. The requirement to exhaust local remedies may be dispensed with by treaty, but this must be explicitly stated and not merely implied.Only those local remedies which are "available and effective" have to be exhausted before invoking the responsibility of a State. The mere existence on paper of remedies under the internal law of a State does not impose a requirement to make use of those remedies in every case. In particular, there is no requirement to use a remedy which offers no possibility of redressing the situation, for instance, where it is clear from the outset that the law which the local court would have to apply can lead only to the rejection of any appeal. (Commentary, Art. 44(b)). But it is a contentious issue, and remains unclear how far the foreign national is expected to test the options under national law before concluding that legal remedies provided under national law are bound to be futile. In the Interhandel case, brought by Switzerland against the United States, the International Court concluded that as the suit was still pending before United States courts, local remedies have not been exhausted.114 The corporation, Interhandel, in this case had been involved in litigation in the United States courts for almost 10 years before Switzerland brought the case before the International Court. In fact, the remedy available must present a reasonable possibility of redressing the personal claim of the litigant.In cases where there is a mixed claim, i.e., State making the claim on its own behalf as well as on behalf of its national for the same wrong in the same proceedings, it becomes difficult to decide whether the rule requiring exhaustion of local remedies applies or not. There is some support in the jurisprudence of international tribunals for the preponderance of interests test in such cases, that is, the exhaustion of local remedies rule should only apply if the claim is overwhelmingly concerned with the injury to the national.115_________________114 Interhandel case (Preliminary Objections), (1959) ICJ Rep. p. 6.115 See Interhandel case, ibid.; see also ELSI case, op. cit. 107; J. Dugard, Third Report on Diplomatic Protection, UN Doc A/CN.4/523 (2002).

Page 312

CHAPTER 12International Protection of Environment

I. GENERALThe protection and improvement of human environment has become a worldwide concern.1 The environment has been increasingly threatened by human activities in different spheres of life. The basic causes for the deterioration of the environment have been identified as: (1) population explosion, (2) increased urbanisation, and (3) an expansion in the use of efficient new technology with its associated demands on space, food and natural resources.2 Together, they have created a sort of environmental crisis with the rise in pollutant levels of the atmosphere and of maritime, coastal and inland waters, extinction of species, contraction of genetic resources, deforestation, climate change and a general deterioration in environment.Although the world is not environmentally uniform and the nations differ in environmental resources, but degradation of the environment affects all the nations, which requires a resolve on the part of all of them to conserve and protect the environment not only for the present generation but for the future as well. Close cooperation is required amongst nations to preserve the genetic resources for future, to stop deforestation and shrinking of land races. Customary international law does not contain any specific rules on the protection and preservation of the environment. Hence, treaties are vital in the formulation of rules to regulate the conduct of States, and in this regard the role of the United Nations is very significant, which has in the last four decades laid down an impressive institutional framework for this purpose.

II. GENERAL PRINCIPLES OF INTERNATIONAL LAW AND ENVIRONMENTInternational environmental law contains general and particular rules governing State conduct in respect of the environment, but there is no binding general customary or treaty law obligation_________________1 See, on the subject generally, W. Paul Gormley, Human Rights and Environment: The Need for International Cooperation (A.M. Sijthoff, Leyden), 1976; I.A. Tecloff and A.E. Utton (Eds.), International Environmental Law (Praeger, New York), 1974; J. Barros and D.M. Johnson, The International Law of Pollution (Free Press, London), 1974; F.S. Johnson, International Environmental Law (1976); J. Schneider, World Public-Order of the Environment (1979); A.L. Springer, The International Law of Pollution (Forum Books, London), 1983; A. Gillepsie, International Environment Law, Policy and Ethics (Oxford University Press) 1997; P. Bernie and A. Boyle, International Law and the Environment, 2nd ed. (Oxford University Press) 2002. P. Sands, Principles of International Environmental law, 2nd ed. (Manchester University Press, Manchester) 2003.

2 See the UN Secretary-General's Report on the Problems of the Human Environment, UN Doc. E/4667, May 26, 1969, para. 8.

Page 313 INTERNATIONAL PROTECTION OF ENVIRONMENT

on States to protect and preserve the environment per se. Under customary international law, no particular rule exists, except the general principles of State responsibility, which have some relevance in the area of environment, particularly when a State's actions have their impact on the territory of another State. It has been a generally accepted principle that a State should not allow its territory to be used for purposes injurious to the interests of other States. This principle is reflected in the doctrine - sic utere tuo ut alienum non laedas (one must use his own right so as not to injure others), which makes the basis of customary international law on pollution and environmental damage. The duty of a State to abstain from causing any harm to others was successfully invoked and enforced in the Trail Smelter case (US v. Canada, 1938 and 1941).3This case arose out of the operations of a Canadian company, situated on the Canadian territory, smelting lead and zinc at Trail, on the Columbia River, about 10 miles from the border with the United States. The fumes containing considerable quantities of sulphur dioxide emitted by the company were carried through the Columbia River Valley across into the United States and were alleged to have caused considerable damage to land and other interests of the State of Washington. The International Joint Commission (established by the two countries under the Boundary Waters Treaty, 1909), to which the matter was referred by an agreement between the two countries, reported (in 1931) that the United States had suffered the damage and awarded $ 350,000 as damages. But the Trail Smelter continued to operate, and the question this time was referred to arbitration, which awarded $ 78,000 as compensation for damage suffered by the United States. However, another question was also put to the Tribunal, that "whether the Trail Smelter should be required to refrain from causing damage in the State of Washington in the future and, if so, to what extent?" In answering this question, the Tribunal found Canada liable and held that it "is responsible in international law for the conduct of the Trail Smelter. Apart from the undertakings in the Convention between the two nations, it is the duty of the Canadian Government to see that the conduct of Trail Smelter should be in conformity with its obligations under international law". The Tribunal stated that:under the principles of international law ... no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.4The basis of liability in Trail Smelter arbitration is closer to the common law principles on nuisance under municipal law, i.e., liability for unreasonable interference with the enjoyment of land. States have a duty to prevent, reduce and control pollution and trans-boundary harm. The ambit of this liability was defined in the Gut Dam Arbitration, in which Canada, by an agreement with the United States, undertook to pay compensation in respect of any damage caused by raising the level of the dam across the international boundary on the St. Lawrence River. The Tribunal, while fixing the liability of Canada, interpreted the agreement to compensate all United States nationals whose property was damaged by flooding and erosion due to the dam, and not just those in the immediate vicinity.5_________________3 3 RIAA 1905; 35 AJIL 684 (1941).

4 Ibid., AJIL, at p. 716.5 See 8 ILM 18.


On the other hand, in the Lake Lanoux Arbitration (Spain v. France),6 Spain complained that by diverting the waters of the river Carol before its entry into Spain, France had violated a treaty with Spain. The Tribunal did not find any violation of the treaty, as Spain failed to show that the effect of diversion had been detrimental to it in any way. However, if Spain had argued that "the works would bring about an ultimate pollution of the waters of the Carol or that the returned waters would have a chemical composition or a temperature or some characteristic which would injure Spanish interests", it could have been a good claim against France for causing damage to Spain.The principle of sic Mere tuo ut alienum non laedes has also been made part of the soft law declarations. It has been made applicable to river pollution and underlies the Helsinki Rules on the Uses of International Rivers, adopted by the International Law Association in 1966. Article X of the Rules states:Consistent with the principle of equitable utilisation of the waters of an international drainage basin, a Statea. must prevent any new form of water pollution7 or any increase in the degree of existing water pollution in an international drainage basin which would cause substantial injury in the territory of a co-basin State, andb. should take all reasonable measures to abate existing water pollution in an international drainage basin to such an extent that no substantial damage is caused in the territory of a co-basin State.The principle has found a fair mention in Principles 21 and 22 of the Stockholm Declaration on the Human Environment, 1972.8 Principle 21 declares:States have ... the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.Thus, a State is under a duty not to cause any harm to the environment of others. Areas "beyond the limits of national jurisdiction" include the high seas and Antarctica. Principle 22 emphasises on cooperation amongst member States. It declares:States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.This duty of cooperation is certainly related to the State's obligation not to harm or cause environmental damage to other States. Hence, Principle 22 further emphasises upon this duty of abstention from causing harm.The principle of sic utere tuo has been judicially pronounced in the Corfu Channel case where the Court stated that every State is obliged "not to allow knowingly its territory to_________________6 24 ILR 101 (1957).7 "Water Pollution" has been defined as "any detrimental change resulting from human conduct in the natural composition, content or quality of the waters" (Art. IX of the Helsinki Rules).8 UN Doc. A/Conf. 48/14; 11 ILM 1416 (1972).


be used for acts contrary to the rights of other States".9 In the Nuclear Tests cases brought against France by Australia and New Zealand, it was also argued that the fact that the tests were carried out on French territory in the Pacific Ocean did not entitle France to infringe the sovereignty of another State by the deposit of nuclear fall-outs over that State's territory.10 The issue, however, remained unresolved when the Court did not consider the merits of the dispute in view of the French declaration that those tests would be last in the series and that the future tests would be conducted underground. The Court has also accepted the international responsibility of a State in causing harm to the environment in the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia). The dispute was related to the rehabilitation of certain phosphate lands mined under Australian Administration before Nauruan independence.11

III. INTERNATIONAL EFFORTS TO PROTECT ENVIRONMENTApart from the general duty not to harm other States existing under customary international law, there was no separate body of law to govern the environment. It was only in the late sixties that concerted efforts started to have a body of rules by way of treaties and declarations for this purpose. The bulk of environmental law is contained in treaties, which usually provide an institutional mechanism for their implementation.However, there already existed few international conventions, which emphasised on the protection of the environment in a fragmentary manner. These conventions were mainly confined to the control of pollution of the seas and rivers, and contamination of the atmosphere through nuclear weapons. The most notable among these conventions were:1. The International Convention for the Prevention of Pollution of the Sea by Oil, 1954, which made any contravention of the Convention as an offence "punishable under the laws of the territory in which the ship is registered" (Art. III). This Convention was later replaced by the International Convention for the Prevention of Pollution from Ships, 1973, (MARPOL) and its 1978 Protocol, which also covered pollution caused by sewage and garbage, and by other noxious or harmful substances discharged from a ship as well as oil.122. The 1958 Geneva Convention on the High Seas (Arts. 24 and 25), which oblige States to prevent pollution of seas by oil discharges from ships and enjoins every State to "take_________________9 (1949) ICJ Rep., p. 4, at 22.10 (1974) ICJ Rep., pp. 253 and 457.11 (1992) ICJ Rep., p. 240 (Preliminary objections). The case was later withdrawn from the Court by an agreement between the parties, see (1993) ICJ Rep., p. 322. In the case concerning the Gabcikovo-Nagymaros Project (about the damming up of the Danube river), Hungary and Slovakia by an agreement, also asked the Court to decide on the basis of the principles of general international law and treaties "as the court may find applicable", see Report of the ICJ (August 1, 1993-July 31, 1994), GAOR, 49 th Session, Supp. No. 4 (A/49/4), pp. 31-32 (1993) ICJ Rep., p. 319. Both the Trail Smelter case and the Gabcikovo-Nagymaros dispute saw the application of customary rules because of the

bilateral character of the dispute and the obligations there under. In a multiparty dispute over a wider area, the rules have yet to be tested.12 12 ILM 1319 (1973), in force since 1983. There are 150 countries party to the agreement as of December 31, 2010. There are now six annexes to the Convention, ratified by requisite number of States.

Page 316 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organisations".133. The 1963 Vienna Convention on Civil Liability for Nuclear Damage. The 1997 Convention on Supplementary Compensation for Nuclear Damage increased the amount of compensation for nuclear damage.144. Article 1 of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969,15 required States Parties to take necessary measures "to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences". In 1973, the Convention was extended to apply to substances other than oil. In 1990 the Oil Pollution Preparedness and Response Convention was adopted which relates to the preparation of emergency response plans for oil spill incidents. In 2000, it was extended by Protocol to cover hazardous and noxious substances.5. The Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 1972.166. Article IX of the Outer Space Treaty, 1967,17 enjoins the parties to "pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extra-terrestrial matter and, where necessary, shall adopt appropriate measures for this purpose".7. The 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons on the Sea-bed and Ocean Floor and Sub-soil Thereof (referred to as the Sea-bed Arms Control Treaty). Prior to the adoption of this Convention, the General Assembly in its Resolution 2340 (XXII) of December 18, 1967 stressed the "importance of preserving the sea-bed and the ocean floor and the sub-soil thereof ... from actions and uses which might be detrimental to the common interests of mankind". The General Assembly Declaration on Principles Governing the Sea-bed and the Ocean Floor, and the Sub-soil thereof, beyond the limits of National Jurisdiction, in para. 11 affirmed that States shall take appropriate measures and cooperate in the prevention of pollution and contamination and other hazards to the marine environment including the coastal line, and of interference with the ecological balance of this environment, and the protection and conservation of the natural resources of the seas, and the prevention of danger to the flora and fauna of the marine environment.18_________________13 For the text of Convention on the High Seas, see 52 AJIL 842 (1958); 450 UNTS 82.14 www.iaea.org/Publications/Documents/Infcircs/.../inf500.shtml15 For text, see 9 ILM 25 (1969).16 Text in 11 ILM 262 (1972).17 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and other Celestial Bodies, 610 UNTS 205.

18 GA Res. 2749 (XXV), Dec. 17, 1970; text in 10 ILM 230 (1970).


Other treaties of significance in this connection are: the 1968 African Convention on the Conservation of Natural Resources adopted by the Organisation for African Unity (OAU);19 the Treaty for the Prohibition of Nuclear Weapons in Latin America, 1967; the Nuclear Weapons Test Ban Treaty, 1963; the Convention on Wetlands of International Importance especially as Waterfowl Habitat, 1971 (Ramsar Convention); the Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972 (World Heritage Convention-WHC).The environmental problems, however, could be categorised in the following broad areas: atmospheric pollution, marine pollution, water pollution and water resources development, land use and conservation of natural resources, urban environmental problems, and control of selected pollutants.20 Because of the fact that practically all the inter-governmental organisations that are part of the United Nations system were involved in activities pertaining to one or the other of these heads given above, they failed to achieve the desired effects to protect the environmental interests. The consolidated document prepared in 1971 by the United Nations Administrative Committee on Coordination (ACC) on "United Nations System and the Human Environment"21 pointed out that "many problems of the human environment are of inter-sectoral nature and, in fact, have often been the result of taking too narrow a sectoral approach".22 In order to have a better coordination among the different inter-governmental organisations and to create a suitable institutional arrangement at the global level to conserve and improve the human environment, the United Nations General Assembly, by its resolution of December 3, 1968, requested the Secretary-General to prepare a report on the Problems of Human Environment. The report23 was endorsed by the General Assembly on December 15, 1969. The Secretary-General was requested to organise and convene a conference on human environment and to assist him in this endeavour, a 27-member Preparatory Committee was constituted.24

A. Stockholm Conference on Human EnvironmentThe first United Nations sponsored global conference on human environment took place at Stockholm from June 5-16, 1972, which proved to be a turning point on environmental law. The Conference mobilised and focused the attention and need of international cooperation on the protection of environment.25 The work of the Conference was mainly handled by three committees consisting of all the participating States: (1) the first committee dealt with human settlements and non-economic aspects; (2) the second committee was concerned with natural resources and development aspects, and (3) the third committee related to pollutants and organisational aspects. Apart from these committees, the Conference established a Working Group_________________19 OAU has been replaced by African Union from 9 July 2002.20 See Brian Johnson, The UN institutional response to Stockholm: A case study in the international politics of international change, International Organisation, Vol. 26, p. 257 (1972).21 UN Doc. A/Conf. 48/12, Dec. 17, 1971.

22 It was notwithstanding the ACC's function to attain intra-UN coordination between the specialised agencies.23 See op. cit. 2.24 For the work of the Preparatory Committee, see UN Doc. A/Conf. 48/19, Jan. 10, 1972.25 See Cecil J. Olmstead, Prospects for regulation of environmental conservation under international law, in The Present State of International Law and other Essays (1972), p. 245 at 253.

Page 318 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW to examine and consider the draft Declaration on the Human Environment placed before the Conference.The deliberations at the Conference led to the adoption of non-binding declarations, resolutions and recommendations. The principals among them were: (i) the Declaration on the Human Environment, (ii) an Action Plan for the Human Environment, and (iii) a resolution on Institutional and Financial Arrangements, (iv) a resolution condemning nuclear weapons tests especially those carried out in the atmosphere, and the States were called upon to refrain from conducting such tests as they could contaminate the environment, (v) a resolution recommending that June 5 be designated as a World Environment Day, (vi) a resolution on the convening of a Second Conference on the Human Environment, and (vii) the decision to refer to governments recommendations for action at the national level.In addition to these, the Conference also recommended for the convening of a conference by the United Kingdom towards the end of 1972, for the adoption of the draft articles of a Convention on ocean dumping. This ultimately resulted into the adoption of the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972.26 Article I of the Convention requires parties individually and collectively to promote the effective control of all sources of pollution of the marine environment and to take all practicable steps to prevent the pollution of the sea by the dumping of waste and other matter that is liable to create hazards to human health, harm living resources and marine life, damage amenities or interfere with other legitimate uses of the sea.

1. The Declaration on the Human Environment (DHE)The DHE contains 26 principles which laid down the basis of an international policy for the protection and improvement of the environment at the national and international levels. As mentioned above, Principles 21 and 22 are particularly significant .and reinstate the customary rules of international law for the protection of environment. The Declaration's (DHE) significance in the environmental field has been compared with the Universal Declaration of Human Rights, 1948, in the protection of human rights and fundamental freedoms.27 Like the Universal Declaration of Human Rights, this is also non-mandatory in nature, but provides a platform for future action. However, the text of the Declaration on the Human Environment is less precise than the Universal Declaration of Human Rights. The principles enshrined in it are very general in nature and, at best, can be termed as well-phrased environmental guidelines or truths.The text of the Declaration is an odd mixture of propositions of international law, scientific generalities and political declarations. For example, Principle 1 states that man has the fundamental right to freedom, equality and adequate conditions of life, in the environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. Principle 2 requires that the natural resources of the earth including the air, water, land, flora and fauna, and especially representative samples of natural ecosystems must be safeguarded for the present and future generations through_____________________

26 For text, see 11 ILM 1291 (1972); 1046 UNTS 120. The Convention came into force on Aug. 30, 1975. 27 Louis B. Sohn, The Stockholm Declaration on the human environment, 14 Harvard ILJ 423, at p. 515 (1973).

Page 319 INTERNATIONAL PROTECTION OF ENVIRONMENT careful planning or management, as appropriate. Principle 8 recognises that economic and social development is essential for ensuring a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life. Principle 18 accepts that science and technology, as part of their contribution to economic and social development, must be applied to the identification, avoidance, control and the solution of environmental risks and problems, and for the common good of mankind. Principle 26 declares that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement in the relevant international organs on the elimination and complete destruction of such weapons. These principles were endorsed by the General Assembly in its Res. 2996 (XXVII) of December 15, 1972.

2. The Action Plan on Human EnvironmentThe Declaration on the Human Environment was accompanied by an "Action Plan" consisting of 109 recommendations for the actions to be taken to protect and improve human environment.28 Its main emphasis is upon national and international action and cooperation in the identification and appraisal of environmental dangers and problems of global significance. The content of the Action Plan is grouped into three parts, viz., (1) the global environmental assessment programme (Earthwatch); (2) environmental management activities; and (3) international measures to support the national and international actions of assessment and management (i.e., supporting measures). All the recommendations are so arranged that they fall in the above three groups. Accordingly, the component of "Earthwatch" includes: (a) evaluation and review—to provide the basis for identification of problems and to determine the necessary steps against the impending environmental crisis, for example, identification and control of pollutants (particularly Recommendation 79); (b) research—undertaken to create new knowledge of the kinds specifically needed to provide guidance in the making of decisions; (c) monitoring—to gather certain data on specific environmental variables and to evaluate such data in order to determine and predict important environmental conditions and trends; and (d) information exchange—to disseminate knowledge within the scientific and technological communities and to ensure that decision makers at all levels shall have the benefit of the best knowledge that can be made available in the forms and at the times in which it can be useful.29The "environmental management" aimed at comprehensive planning about what was shown to be desirable or necessary for the environment, after taking into account the side effects of man's activities, in order to save and enhance the human environment for present and future generations.The "supporting measures" related to activities pertaining to "Earth watch" and environmental management, and included education, training, public information, organisational arrangements, and financial and other forms of assistance, particularly to developing countries to equip them to take all measures needed for the protection of the environment._________________

28 See Report of the UN Conference on the Human Environment, Stockholm, June 5-16, 1972, UNDoc. A/Conf. 48/14/Rev. 1, pp. 6-27.29 Ibid., pp. 27-28.

Page 320 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 3. Institutional and financial arrangementsThe Stockholm Conference made a recommendation to the General Assembly for the creation of an institutional structure to carry out the Action Plan and to take other such initiatives and actions as might seem appropriate for the protection of the environment. The Conference approved the creation of a subsidiary organ of the ECOSOC or of the General Assembly, which should perform the functions of central policy review and coordination of all environmental activities of the United Nations system and related organisations, establish policy guidelines regarding ongoing and planned programmes of work in the field of human environment. For this, the Conference recommended to the General Assembly for setting-up a Governing Council for Environmental Programmes composed of 54 members, elected for a three-year term on the basis of equitable geographical distribution. The Governing Council was to be supported by the Environment Secretariat, a Fund, and an Environmental Coordination Board.30The General Assembly adopted this recommendation of the Conference and created the Governing Council of 58 members rather than 54 with the new headquarters of the Programme in Nairobi.31 The General Assembly established the Governing Council, Secretariat, Fund and the Environmental Coordination Board as recommended by the Conference as an institutional and financial arrangement for international environmental cooperation, which together constitute the United Nations Environmental Programme (UNEP). It was established by the General Assembly on the lines of UNCTAD and UNDP.The Governing Council is an inter-governmental body with 58 members32 and provides overall policy guidance in dealing with environmental concerns of international importance. The Environment Secretariat administers the programme and acts as a focal point for environmental action and coordination within the United Nations system to ensure a high degree of effective management. The Environment Fund, based on voluntary contributions, is used to finance new environment initiatives, including those envisaged in the Action Plan. The Environmental Coordination Board, headed by the Executive Director, is to link the work of the UNEP with other United Nations bodies concerned with the implementation of environment programme within the framework of the Administrative Committee on Coordination (ACC) of the United Nations. The Governing Council of the UNEP is to report annually to the General Assembly through the Economic and Social Council (ECOSOC), particularly with regard to questions of coordination and relationship of environmental policies and programmes within the United Nations system.Establishment of the UNEP has resulted into a new awareness of the environmental problems and a zeal to tackle them. It has brought marked attitudinal changes in the world community in general and developing countries in particular. Currently the UNEP remains the only international body exclusively concerned with environmental matters, though some other bodies,_________________30 See UN Doc. A/8783.31 GARes. 2997 (XXVII) of Dec. 15, 1972, adopted by 116 votes in favour, none against and 10 abstentions.

32 The distribution of membership is as follows: Africa 16; Asia 13; Latin America 10; Western Europe and others 13; Eastern European States 6. The increase in membership from 54 to 58 was made at the request of Asian countries; see UN Doc.A/C.2/L. 1243.


like Food and Agriculture Organisation and International Maritime Organisation also concern themselves with environmental matters in respective areas.Before the Stockholm Conference began, developing countries perceived it as a new ploy by developed countries to thwart their development aspirations. They viewed developed countries responsible for eco-crises and considered that the developed countries should bear the consequences of their acts on the basis of "polluter pays principle". They hoped that their developmental needs would be safeguarded in the deliberations of the Conference and wanted that whatever institution was entrusted with this responsibility should focus: (i) on their specific problems or ecological system, for example, a river basin; (ii) on its implications for developing countries and should not be at the cost of their development, that is, developed countries' environmental action should not adversely affect or reduce the net level of resource flow from rich to poor countries for developmental purposes; (iii) the developing countries should not be compelled to bear the costs of anti-pollution campaigns; and (iv) the environmental protection should be integrated with development planning. This concern of the developing countries was reflected in the text of the Action Plan, wherein it was emphasised that "environment concern "should not be invoked by governments as a pretext for trade discrimination or for reduced access to markets, and if environmental standards should adversely affect developing countries' exports or result into trade restriction, measures should be adopted to compensate developing countries.33 The link between environment and development also found expression in the Declaration on Human Environment (Principles 4, 8-14, 17, 20 and 23).

B. UNEP during 1972-82 and Other Environmental DevelopmentsThe role of the UNEP remained more of a promotional than of an operational nature during 1972-82.34 In its first session in June 1973, the Governing Council of the UNEP took an important decision on convening a Conference on Human Settlements (Habitat) by allocating $5 million to its budget. It approved a report on the Stockholm Conference Action Plan and decided that the major task of the UNEP should be the identification and assessment of the environmental problems and to provide supporting measures such as information, technical assistance, training, and finance to deal with them. It was concerned with the establishment of necessary machinery for this purpose.As part of these decisions, in the matter of environment assessment (Earthwatch), the Global Environmental Monitoring System (GEMS) and the International Referral System for Sources of Environmental Information (INFOTERRA) were created. The GEMS keeps a watch on dangerous and injurious pollutants and their transport, renewable natural resources, climate, health and water quality. The INFOTERRA facilitates access to the knowledge and experience in the environmental matters, and for this purpose, it has constituted a global directory and network of information._________________33 See Johnson, op. cit. 1, at pp. 259-69; K. Ramakrishna, UNEP: An assessment of its impact, 24 IJ1L 346, at p. 348 (No. 3, 1984).

34 See the Report of the Executive Director on the State of the World Environment 1972-82, UNEP/GC. 10/3, Jan. 29, 1984; see also Martin O. Holdgate et al. (Ed.), The World Environment 1972-82; A Report by the UNEP (Tycooly, Dublin), 1982, p. 637.

Page 322 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW At present, 174 countries have designated National Focal Points to coordinate national INFOTERRA activities. The INFOTERRA has contributed significantly towards environmental planning, development and technology by providing precise information.35 Also, the International Register for Potentially Toxic Chemicals (RPTC) has been established as a world centre for information on toxic chemicals, and their trans-boundary transport and disposal. The International Programme on Chemical Safety (IPCS) is providing environmental response data for an increasing number of substances. And finally, the status of stratospheric zone is under active investigation through the Background Atmospheric Pollution Monitoring System.The Habitat Conference was held at Vancouver from May 31 to June 11, 1976.36 Its overall theme was the formation and maintenance of human settlement. It adopted a Declaration on Human Environment, which sets out principles in order to prevent aggravation of situations in human settlements and to attend the basic needs of food, water, shelter and leisure for disadvantaged people, and to deal with uncontrolled urbanisation and rural backwardness. Thus, it was closely connected with the protection of human rights of individuals.37 Subsequent to this, the Commission on Human Settlements, at its Helsinki meeting from April 25 to May 6, 1983, called upon the States for the immediate launching of activities related to the international year of shelter for the homeless (1987 was declared as the year of shelter for the homeless by the General Assembly). It also called for increased efforts to ensure that adequate land is made available to the poor and disadvantaged in developing countries to enable them to build and improve their own shelter and neighbourhoods. As a follow-up action, the United Nations Conference on Human Settlements (Habitat II) was held at Istanbul from June 3-14, 1996, where the focus was "Adequate Shelter for All", and "Sustainable Human Settlements Development in an Urbanising World". Habitat II adopted the Habitat Agenda and placed urbanisation at the top of national and international agendas. It aimed to promote new policies and strategies for urban management and housing development, and to help solve urban environmental problems. It also highlighted the needs and opportunities for investment in infrastructure and services. The Habitat has become the UN Human Settlement Programme since 2002.38In 1973, the United Nations initiated a major study of economic trends, taking into account such matters as the availability of natural resources, pollution and the economic impact of pollution abatement. Consequently, the Environment Secretariat of the UNEP began "Project 2000" to examine alternative patterns of development up to that year, and their policy implications.39_________________35 The 1992 Rio Conference on Environment and Development (UNCED) reiterated the importance of information for decision-making and requested the strengthening of the INFOTERRA network to improve information availability (Agenda 21, Chapter 40).36 UN Doc. A/Conf.70/15, p. 2.37 See Chhatrapati Singh, International environmental law agenda for sustainable development and human rights: The Indian perspective. Human Rights Yb., p. 18 (1993).38 The United Nations Centre for Human Settlements (Habitat) was established in 1978, UN-HABITAT, is based in Nairobi, and has been elevated in status to become the

United Nations Human Settlements Programme on 1 January 2002. UN-HABITAT work is currently guided by the Medium Term Strategic Institutional Plan (MTSIP) that was adopted in 2007 by the 21st Governing Council of UN-HABITAT.See United Nations Human Settlements Programme (UN HABITAT) www.unbrussels.org/agencies/habitat.html39 See Report of the Executive Director on the State of the World Environment, op. cit. 34, p. 9.


In the direction of environmental management, during this period, a number of international and regional conventions were concluded. Notable among them are:1. The Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973;2. The International Convention for the Prevention of Pollution from Ships, and its six Annexes and two Protocols, concluded on November 2, 1973 (MARPOL 73/78), 40 and the related Convention on the Prevention of Marine Pollution from Land-Based Sources, 1974;3. The Convention on the Law of the Sea of December 10, 1982, containing Part XII on the Protection and Preservation of the Marine Environment (Arts. 192-237).4. The 1979 Convention on Long-Range Transboundary Air Pollution, concluded between European nations;41 and eight Protocols adopted thereto.425. The Paris Convention for the Prevention of Pollution from Land-Based Sources, 1974, including the 1986 amending Protocol,43 concerning pollution of the sea from rivers, etc.6. The Convention for the Protection of the Mediterranean Sea against Pollution, 1976.44 There are the 1980 amending Protocol (in force from 1983) and the 1982 Protocol concerning Mediterranean Specially Protected Areas (in force from 1986).7. Environmental Modification Convention, 1977, prohibiting the hostile use of environmental modification techniques, affecting the environment adversely.8. The 1981 West and Central African Marine and Coastal Environment Protection Convention.459. The 1978 Kuwait Regional Convention on the Protection and Development of the Marine Environment and Coastal Areas, and a Protocol for Cooperation in Combating Oil Pollution and Pollution by other Harmful Substances.46 Under this Convention, a regional action plan was adopted by eight coastal States in the Kuwait region for the protection and development of the marine environment and coastal areas.Since 1979, the UNEP has been entrusted with the responsibility of administering three environmental trust funds: for the 1973 Convention on International Trade in Endangered Species_________________40 www.imo.org/.../conventions/listofconventions/.../international-convention-for-the-prevention-of-pollution-from-ships-(marpol).aspx The Convention address the incidents of oil spills such as the Torry Canyon in 1967.41 18 ILM 1442 (1979); entered into force on March 16, 1983.42 The Protocols are: Sept. 28, 1984 Protocol (in force from Jan. 28, 1988); July 8, 1985 Helsinki Protocol (in force from Sept. 2, 1987); Oct. 31, 1988 Sofia Protocol (in force from Feb. 14, 1991); Nov. 18, 1991 Geneva Protocol (in force from 1997); 1994 Oslo Protocol (in force from 1998); two 1998 Aarhus Protocols (entered into force in 2003); and 1999 Gothenburg Protocol (entered into force in 2005).43 13 ILM 352 (1974) in force 1978, Protocol came into force in 1990.44 15 ILM 290 (1976), came in to force in 1983.45 20 ILM 746 (1981), came in to force in 1984.46 Behrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, and UAE are parties.


of Wild Fauna and Flora; for the protection of the Mediterranean sea; and for the protection and development of the marine environment of the Kuwait region.47In addition to these, Action Plans were adopted to combat desertification, to improve water supply and management. A United Nations Conference on Desertification was held in Nairobi from August 29 to September 9, 1977. The Conference adopted a Plan of Action, containing 26 recommendations for action at the national, regional and international levels. The Conference recommended that the UNEP with its Governing Council and the Environment Coordination Board should be responsible for coordinating and following up the implementation of the Plan. The United Nations regional commissions would have the responsibility for coordinating, catalysing and executing intra-regional programmes adopted by the Member States. These efforts finally led to the adoption of an International Convention to Combat Desertification (UNCCD) on 17 June 1994 and entered into force in December 1996.48Realising that environmental policies and actions have to be viewed on a broader context of inter-relationships between people-resources-environment-development, and that without such an understanding, it is not possible to have development on a long-term sustainable basis, emphasis was laid on restraining the wasteful and excessive consumption, and for the adoption of integrated policies by recognising this relationship between them. For this purpose, the UNEP in 1978-79 proposed a world conservation strategy, which was endorsed by the United Nations General Assembly in 1979 and was successfully launched in 34 countries in March 1980.In supporting measures, the importance of environmental education and training, and technical assistance was acknowledged. In this context, by its Decision 8 (II) of March 22, 1974, the Governing Council directed the Executive Director of the UNEP to give consideration to the role of environmental law in the solution of environmental problems, and work for the development of international environmental law in collaboration with governments and inter-governmental bodies. Since then, the UNEP has made useful efforts in the environmental education programme and in the inclusion of environmental training programmes in the activities of the cooperating agencies. It is providing assistance to developing countries, at their request, for enacting the national environmental legislation.

C. Nairobi Declaration 1982 and Subsequent DevelopmentsTo celebrate the tenth anniversary of the 1972 Stockholm Conference on the Human Environment, 105 nations gathered at Nairobi from May 10-18, 1982, and adopted the "Nairobi Declaration".49 While endorsing the Stockholm Declaration, it expressed concern about the present state of environment, particularly deforestation, soil and water degradation, desertification, changes in the ozone layer, the increasing concentration of carbon dioxide and acid rain, pollution, and the extinction of animal and plant species. The Declaration stressed on the collective and individual_________________47 See J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 414. 48 The UNCCD has 193 countries Parties, making it truly global.

49 For the text of the Declaration, see the 10th Sess. Report of the Governing Council of UNEP (1982), pp. 49-51. The Nairobi Declaration was supplemented by an elaborate World Charter for Nature on the conservation of nature adopted by the UN General Assembly, see GA Res. A/RES/37/7(XXXVII), 28 October 1982.


responsibility of governments and peoples to ensure that future generations should be able to live in a condition which guarantees a life in human dignity for all. It asked for specific attention to technical innovation in' promoting resource substitution, recycling and conservation. States were asked to promote the progressive development of international environmental law, including conventions and agreements.The Nairobi meeting also decided to create a special commission to propose long-term environmental strategies for achieving "sustainable development to the year 2000 and beyond".50 The decision was endorsed by the Governing Council of the UNEP in 1987, and later by the General Assembly. In pursuance of the Nairobi Declaration, the General Assembly by its resolution in 1982, established an Inter-governmental Committee on the Development and Utilisation of New and Renewable Sources of Energy. The Committee was entrusted with the task of recommending policy guidelines to different organisations and bodies within the United Nations system regarding new and renewable sources of energy, and monitoring its implementation, and to review the activities of the United Nations system in that domain. The Committee, since 1983, has supported various pilot projects for the production of energy from sun, wind and household and other wastes, as well as the environmental impact of their production, use and transport.In order to have a better coordination within the United Nations system and with an objective to have an integrated means of dealing with planning, programming, budgeting and evaluation in the field of environment, the System Wide Medium-Term Environment Programme (SWMTEP) was evolved in 1982 by the Executive Director of the UNEP. The SWMTEP is the environment programme of the United Nations system in which the institutions by their names are listed with specific responsibilities. Between 1984-89, the SWMTEP followed the pattern set by the UNEP in its programme matters, which was divided into 15 heads: environment and development; environmental awareness; atmosphere; oceans; waters; lithosphere; natural disasters; terrestrial ecosystems; living resources; health and welfare; working environment; human settlements; energy; industry and transportation; and the arms race and environment. Each of these programmes contained two or more sub-programmes bringing the total to 38 programmes.51 Each sub-programme is structured into five sections: problem addressed; legislative authority; general and specific authorities; the situation at the end of 1983; and the period of 1984-89. The Governing Council's decision of May 1981 identifying the priority areas for developing countries was also fully accommodated in the SWMTEP. The areas were: environment and development; terrestrial eco-systems, including desertification; supporting measures; human settlements and human health; natural disasters; energy and oceans.52In 1987, the World Commission on Environment and Development (WCED), in its report entitled Our Common Future (Brundtland Report) emphasised on the conservation of natural resources while striving for the development goals. It was noted that the environmental implications_________________50 Ibid., at p. 41.51 See UNEP/GC/10/7, March 25, 1982, p.13.

52 Council Decision No. 9/12 of May 26, 1981, see GAOR, Sess. 36, Supp. No. 25 (A/36/25), pp. 116-117.


of poverty and underdevelopment and the inter-relationships between development-environment-population and resources must be taken into account in the process of development. The environment policies should be geared to achieve "sustainable development" which was stated to mean "a development appropriate to the needs of today's generation, yet without jeopardising future generations' chances of satisfying their own needs and choosing their life style. The demand that the development be made 'sustainable' applies to all countries and all people".53 The Brundtland report later rechristened as the World Charter on Nature, which called for "sustainable development".The most significant development of the 1980s, after the Nairobi Conference, was the Vienna Convention for the Protection of the Ozone Layer concluded in March 1985,54 to be followed by the Montreal Protocol on Substances that Deplete the Ozone Layer of September 16, 1987.55 The Convention and Protocol were adopted to deal with an urgent environment problem of global warming due to industrial emissions of certain harmful gases in the atmosphere. The gases identified were chlorofluorocarbons (CFCs), fully Halogenated CFCs (HCFCs), halons used in fire extinguishers and refrigeration, and carbon-dioxide from the burning of coal, oil, fossil fuels, and industrial gases. These emissions have threatened the Ozone layer (i.e., a layer in the upper atmosphere) which works as a protective umbrella from the ultra-violet radiation from the sun that adversely affects the life on earth. For example, ultra-violet radiation from the sun causes skin cancer, cataracts, destruction of aquatic life and vegetation. The concentration of these gases in the ozone layer will progressively warm the earth's atmosphere, causing the polar icecaps (glaciers of the Arctic and Antarctic) to melt, with the consequential rise in sea levels by approximately 300 feet, which may submerge many sea ports and towns of the world. Research has also revealed that the excessive emissions of carbon-dioxide and methane, which will concentrate in the upper atmosphere, would cause "greenhouse effects".The Convention on the Ozone Layer, 1985, provides for scientific cooperation and periodic conferences to contain the emission of these gases. The Protocol requires the parties to limit the consumption of CFCs and halons. It provides a timetable on which the production of those substances must be phased out and eventually eliminated. It aimed at curtailing CFCs by half by 1998. Parties to the Protocol agreed to set year 2013 as the time to freeze the consumption and production of HCFCs. They also agreed to start reducing its consumption and production in 2015. The Protocol originally required parties other than developing countries to freeze consumption and production of CFCs at 1986 levels (the base year), to reduce them by 20 percent and then an additional 30 percent by 1999, and to freeze consumption of halons at 1986 levels. But it contains separate phase-out schedules for developed and developing countries, and countries with economies in transition. It also provides an "essential use" exemption, which allows countries to consume a limited quantity of these chemicals. Several countries_________________53 WCED, Our Common Future, p. xv (Oxford University Press, New York), 1987.54 Text in 26 ILM 1529 (1987), in force from Sept. 22, 1988, India acceded on March 18, 1991.

55 26 ILM 1550 (1987), in force Jan. 1, 1989, 196 States parties. India acceded on June 19, 1992, China on June 14, 1991. Seven amendments have been adopted to the Protocol since its adoption; in 1990 (London- 195 countries parties), 1991 (Nairobi), 1992 (Copenhagen- 192 parties), 1993 (Bangkok), 1995 (Vienna), 1997 (Montreal- 182 parties), and 1999 (Beijing- 166 parties). See http://ozone.unep.org/Ratification status/

Page 327 INTERNATIONAL PROTECTION OF ENVIRONMENT have sought the exemption. Subsequently, Helsinki meeting of March 11, 1989, stipulated for the total elimination of CFCs by the year 2000, and for a freeze, on the consumption of halons. Non-signatories to the Protocol are not allowed to import certain CFCs and halons from the signatory countries. They are also not able to import technology or obtain financial aid to produce such chemicals replacing existing chemicals emitting CFCs. The formula of targets and timetables under the Protocol has been subsequently employed in other international agreements controlling air pollutants and in the Kyoto Protocol to the UN Framework Convention on Climate Change.India and China initially did not sign the Protocol on the basis of "polluter pays principle", and "common but differentiated responsibility principle". They demanded compensation to switch over to new technology to replace the sources of energy emitting harmful gases in the upper atmosphere. They also wanted free/concessional transfer of technology to them to replace the present technology. In fact, the developed world releases 95 per cent of the total emission of CFCs. The Protocol alloted developing countries 300 grams per capita consumption per year, until 1989, and then this consumption to be frozen at the 1989 level. Developed countries were allowed 500 grams per capita consumption per year until 1989. From this level it has to be reduced. India initially did not see any justification in ratifying the Protocol, since its release of CFCs is very negligible, equal to one and half day's total yearly release of the world, i.e., 0.3 kg as compared to developed countries 1 kg per capita consumption.

D. Developments after 1990In order to adopt some kind of a code on environmental behaviour to regulate environmental related activities, in 1989, on the proposal of the Soviet Foreign Minister, a Summit Meeting on environment in the form of United Nations Conference on Environment and Development (UNCED) was convened at Rio de Janerio from June 3-14, 1992, also called the "Earth Meet". The Conference principally focused on the problem of "greenhouse effects", in terms of the level of gas emission of carbon dioxide and methane by various nations, the depletion of the ozone layer due to CFCs, as well as the issues of the depletion of biodiversity and the preservation of tropical forests. Deliberations on these issues resulted into the adoption of the United Nations Framework Convention on Climate Change (FCCC), the Convention on Biological Diversity (CBD) as well as the Rio Declaration, "Agenda 21", and other relevant international agreements relating to the environment, economic development and human rights.56 These instruments, churned out of the "Earth Summit", together recognise the need to develop a broader range of regulatory techniques to address environment and development issues, which were so far based upon traditional approaches of "command-and-control" principle, economic instruments, and integrated pollution control._________________56 For more details on the Conference, see Mostafa K. Tolba, Osama A. El-Kholy, E. El-Hinnawi, M.W. Holdgate, D.F. McMichael, and R.E. Munn, The World Environment 1972-92 (Chapman and Hall, on behalf of UNEP 1992); UN Publication: Agenda 21, The UN Programme of Action from Rio (1992).


1. Climate Convention (FCCC)The groundwork for the Framework Convention began in 1988, when the United Nations General Assembly adopted resolution 43/53 recognising climate change as a common concern of humanity. In that year, the UNEP and the World Meteorological Organisation (WMO) jointly established the Inter-governmental Panel on Climate Change (IPCC) to investigate the potential severity and impact of global climate change, and to suggest possible policy response. The IPCC's First Assessment Report was published in August 1990, and discussed at the Second World Climate Conference later that year. In its report, the IPCC concluded that atmospheric concentration of greenhouse gases was increasing and if this trend continued, it would lead to the warming of the earth's surface. Further, it concluded that climatic change could have highly destabilising effects on human society and would affect agriculture, forestry, natural eco-systems, water resources, human settlements, oceans and coastal zones.57 In 1989, the General Assembly noted that existing legal instruments and institutions dealing with climate change were insufficient and that a framework convention on climate change was needed. An Inter-governmental Negotiating Committee (INC), supported by the UNEP and the WMO, was set up in 1990, for a Framework Convention on Climate Change which adopted the Convention on May 9, 1992, and was opened for signature at Rio.58The aim of the Climate Convention is to stabilise atmospheric concentrations of greenhouse gases at a level that will prevent human activities (anthropogenic) from interfering dangerously with the global climate system. The Convention itself, however, does not set any mandatory limits on greenhouse gas emissions for individual countries and contains no enforcement mechanisms. Instead, it has been done through protocols that set mandatory emission limits. The principal protocol in this regard is the Kyoto Protocol, adopted in 1997.59 All parties to the Convention have the obligation to produce inventories and greenhouse gas sources not controlled by the Montreal Convention and to formulate national and, where appropriate, regional programmes to reduce global warming, to cooperate in preparing for adaptation to the impacts of climate change, and to promote scientific research. While doing so, parties may take into account their "common but differential responsibilities and their specific national and regional development priorities." The Convention obliges Annexure I parties (developed countries and countries with economies in transition) to take measures in order to bring by the year 2000, their greenhouse gas emissions to the levels prevailing in 1990 (Art. 4). States are required to report periodically on their level of emissions and efforts to slow climate change and other information related to implementation of the Convention commitments to the Conference of the Parties [COPs] (Art. 12). To enable developing countries to meet their obligations under the Convention, developed countries [Annexure II parties] have agreed to provide "new and _________________57 The IPCC advises governments on the state of ongoing research. The IPCC has adopted its 5th Report in the 32nd Session, which has been approved by the governments on Oct. 10, 2010. For more details, see http://www.ipcc.ch/58 At Rio, 150 nations signed it. The Convention came into force on March 21, 1994; 192 parties including the EU in December 2009. India became a party on Nov. 1, 1993.

59 For the text of the Protocol, see unfccc.int/resource/docs/convkp/kpeng.html Currently there are 193 parties, including the EU. It sets binding targets for 37 industrialised countries.

Page 329 INTERNATIONAL PROTECTION OF ENVIRONMENT additional" financial assistance, including for the transfer of technology. Duty has also been imposed on developed countries to help developing countries that are particularly vulnerable in meeting costs of adaptation to the adverse effects of climate change (Art. 4(4)). Financial mechanism for this assistance is the Global Environment Facility (GEF), a fund administered jointly by the World Bank, the UNDP and the UNEP (Art. 11). GEF is also the financial mechanism under the CBD. The Convention provides the dispute settlement procedure between the parties (Art. 14).The parties to the Convention meet annually from 1995 in Conferences of the Parties (COP) to assess progress in dealing with climate change. Despite the obligations contained in the Convention, no progress was registered in limiting the emissions of greenhouse gases till the third Conference of the Parties (COP 3). In December 1997, the COP 3 adopted the Kyoto Protocol (the meeting took place in Kyoto, Japan). The Protocol entered into force on 16 February 2005. The Protocol outlined the greenhouse gas emissions reduction obligation for Annex I countries with explicit, unambiguous targets and timetables. The core obligation of the Protocol states that Annex I parties "shall, individually or jointly, ensure that their aggregate anthropocentric carbon dioxide equivalent emissions of specific greenhouse gases do not exceed their assigned amounts" and that overall omissions of such parties are reduced "by at least 5 percent below 1990 levels in the commitment period 2008-2012"60 (Art. 3(1)). The Protocol also established the 'flexibility mechanisms' (commonly known as Kyoto mechanisms) to achieve these targets and timetables related to emissions trading, clean development mechanism (between Annex I [31 countries] and non-Annex I parties) and joint implementation (projects between Annex I parties).61 Annex I countries agreed to legally binding reductions in greenhouse gas emissions by 5.2% from the 1990 level. Most industrialised countries and some central European economies in transition agreed to 6 to 8% below 1990 levels between the years 2008-2012, defined as the first emissions budget period.62At COP 15, which took place in Copenhagen, Denmark in December 2009, the over-all goal for the COP and the meeting of the parties (MOP 5)63 was to establish a global climate agreement for the period from 2012 when the first commitment period under the Kyoto Protocol_________________60 The 1990 emission levels were accepted as benchmark by the COP (decision 2/CP.3) were the values of "global warming potential" calculated for the IPCC Second Assessment Report.61 To ensure its effectiveness, the Protocol could enter into force upon the adherence of 55 States including Annex I parties representing 55% of that group's 1990 carbon dioxide emissions. Annex I parties participation was contingent on their satisfactory adherence to the Kyoto mechanisms. As of July 2010, there have been 191 States that have signed and ratified the Protocol.62 The most notable non-party to the Protocol is the United States, which is a party to UNFCCC and was responsible for 36.1% of the 1990 emission levels of Annex I countries. It would be required to reduce its total emissions on an average of 7% below 1990 levels. Most advanced developing countries like China, India and Brazil are still in the non-Annex or similar group. This makes them without obligations in the Kyoto

Protocol to limit their carbon dioxide emissions. In November 2006, an amendment to Annex B of the Kyoto protocol was adopted, which has not yet come into force.63 MOP was established in 1997 at Kyoto to the Kyoto Protocol. Its first meeting was held in 2005, at COP 11 in Montreal. It is a facilitative branch of the Kyoto Protocol. There are also two permanent subsidiary bodies of the UNFCCC - the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI).

Page 330 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW expires and which was required to be renewed. Ministers and officials from 192 countries took part in the Copenhagen meeting. As many of the Annex 1 developed countries were found to be reluctant to fulfill commitments under the Kyoto Protocol, the COP 15 laid foundation for a post-Kyoto agreement. The Conference adopted a non-binding agreement for long-term action. A 13-paragraph 'Copenhagen Accord' was negotiated by approximately 25 parties including the United States and China, to enable and support enhanced action on mitigation, including substantial finance to reduce emissions from deforestation and forest degradation (REDD-plus), adaptation, technology development and transfer and capacity-building. The accord was notable in that it referred to a collective commitment by developed countries for new and additional resources up to USD 30 billion for the period 2010-2012, which will be channeled through international institutions. In the context of meaningful mitigation actions and transparency on implementation, developed countries committed to mobilise jointly 100 billion USD a year by 2020 to address the needs of developing countries. For this purpose, the Copenhagen Green Climate Fund was purposed to be established as an operating entity of the financial mechanism of the Convention to support the Convention activities of the developing countries, including REDD-plus, capacity-building, technology development and transfer. Longer-term options on climate financing mentioned in the Accord are being discussed within the UN Secretary General's High Level Advisory Group on Climate Financing. The negotiations on extending the Kyoto Protocol had remained unresolved as did the negotiations on a framework for long-term cooperative action.The outcome of the COP 16, which was held in Cancun, Mexico, in November 2010 was once again a non-binding agreement instead of a binding treaty. Based on the Fourth Assessment Report of the IPCC, the Conference recognised the warming of the climate system and an increase in global average temperatures since the mid-twentieth century due to the increase in anthropogenic greenhouse gas concentrations. For this it recognised that deep cuts in global greenhouse gas emissions are required, with a view to hold the increase in global average temperature below 2°C above pre-industrial levels. It emphasised that Parties should take urgent action to meet this long-term goal, consistent with science and on the basis of equity. Further, it was realised that addressing climate change requires a paradigm shift towards building a low-carbon society. The agreement called upon rich countries to reduce their greenhouse gas emissions as pledged in the Copenhagen Accord, and for developing countries to plan to reduce their emissions. The Parties decided to establish a Green Climate Fund, to be designated as an operating entity of the financial mechanism of the Convention proposed to be worth $100 billion a year by 2020, to assist poorer countries in financing emission reductions and adaptation. The Fund shall be governed by a board of 24 members; the trustee shall administer the assets of the Green Climate Fund only for the purpose of, and in accordance with, the relevant decisions of the Green Climate Fund Board. The Conference established a Standing Committee to assist the Conference of the Parties in exercising its functions with respect to the financial mechanism.For technology development and transfer, Conference decided to establish a technology mechanism, consisting of a Technology Executive Committee (comprising of 20 expert members) and a Climate Technology Centre and Network. There was, however, no

agreement on how to extend the Kyoto Protocol, or how the $100 billion a year for the Green Climate Fund will

Page 331 INTERNATIONAL PROTECTION OF ENVIRONMENT be raised, or whether developing countries should have binding emissions reductions or whether rich countries would have to reduce emissions first.64

2. Convention on Biological Diversity (CBD)The CBD65 defines biodiversity broadly to encompass the variability among living organisms from all sources, including, inter alia, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part. The Convention has three main objectives: (i) conservation of biological biodiversity; (ii) sustainable use of its components; and (iii) fair and equitable sharing of benefits arising from genetic resources, including by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding (Art. 1). It obligates the parties to protect traditional knowledge of indigenous/local communities and regulate access to genetic resources and requires prior informed consent of the party providing resources. The Convention has established a quid pro quo arrangement between the access to genetic resources/traditional knowledge and the transfer of technology, including biotechnology (Arts. 15 and 16). It obligates putting into effect of "all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and the benefits arising from bio-technologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms" (Art. 19). Conservation of biodiversity is to be carried out by identification, monitoring, as well as by in situ and ex situ conservation (Arts. 7-9). It also contains provisions for financial resources to support activities undertaken towards the objectives of the Convention (Art. 20), financial mechanisms to provide financial resource to developing countries on a grant or concessional basis (Art. 21), and settlement of disputes (Art. 27). The Convention establishes a Conference of Parties (COP), a Secretariat and a Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA).On 29 October 2010, the COPs of the CBD adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity. The Protocol is open for signature by Parties to the CBD from 2 February 2011 until 1 February 2012. The Protocol broadly reiterates the approach of the CBD. It aims at sharing the benefits arising from the utilisation of genetic resources in a fair and equitable way, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.66In January 2000, the Cartagena Protocol on Biosafety of the Convention, also known as the Biosafety Protocol, was adopted in the extraordinary meeting of the Parties. The Protocol entered into force on 11 September 2003. The Biosafety Protocol seeks to protect biological_________________64 See en.wikipedia.org/…/2010_United_Nations_Climate_Change_Conf

65 For the text, see 31 ILM 818 (1992). 168 States signed it at Rio, entered into force on Dec. 29, 1993, presently 193 parties. The US signed on June 4, 1993, not yet ratified.66 For the text of the Protocol, see www.cbd.int/abs/


diversity from the potential risks posed by living modified organisms (LMOs)67 resulting from modern biotechnology. The Protocol is guided by the precautionary approach in its objective of trying to achieve safe transfer, handling and use of LMOs that may have adverse effects on the conservation and sustainable use of biodiversity, including considerations of risks to human health (Art. 1). It mainly focus on trans-boundary transfers; the decision procedures for import and export of LMOs for intentional introduction into the environment and for those LMOs intended for direct use as food or feed, or for processing, differ in their complexity and stringency. The Protocol addresses the obligations of Parties in relation to the trans-boundary movements of LMOs to and from non-Parties to the Protocol. The Biosafety Protocol makes clear that products from new technologies must be based on the precautionary principle and allow developing nations to balance public health against economic benefits. Countries may be able to ban imports of a genetically modified organism if they feel there is not enough scientific evidence that the product is safe and requires exporters to label shipments containing genetically altered commodities such as soyabean or cotton.68 In addition to the dispute settlement provisions of the CBD, the Protocol includes provisions on compliance (article 34), as well as liability and redress for damage resulting from trans-boundary movements of LMOs (Art. 27). A facilitative compliance mechanism has been established by the COP serving as the Meeting of the Parties to the Protocol (COP-MOP). A Compliance Committee assists the parties in fulfilling their obligations. With respect to liability and redress, the parties have decided to draft legally binding rules and procedures separately.69

3. Agenda 21Agenda 21 is an action plan of the United Nations related to sustainable development. It contains a check list of do's and don'ts to protect the environment in the 21st century. It stresses on sustainable development and reflects the idea that the international trade and the protection of the environment are of complementary value.70 The Agenda was a response to United Nations General Assembly's call of December 22, 1989 to halt and reverse the effects of environmental degradation "in the context of increased national and international efforts to promote sustainable and environmentally sound development in all countries". Towards this end, 40 chapters of the Agenda are divided into the following four main sections:1. The social and economic dimensions: It deals with international cooperation to accelerate sustainable development in developing countries, combating poverty, changing_______________________67 Living modified organisms (LMOs) resulting from modern biotechnology are broadly equivalent to genetically modified organisms (GMOs). The difference between an LMO and a GMO is that a LMO is capable of growing, and typically refers to agricultural crops. GMOs include both LMOs and organisms which are not capable of growing, i.e., are dead.68 See for more details www.cbd.int/ Currently there are 160 parties to the Protocol. India ratified the Protocol on Jan 17, 2003.

69 See L. Boisson de Chazournes, U. Thomas, et al., The Biosafety Protocol: Regulatory Innovation and Emerging Trends, Revue Suisse de droit international, 2000, pp. 513-557.70 See UN Doc. A/Conf. 151/14 (1992), Provisions 2.19, 2.22, etc.; see also Thomas J. Schoenbaum, AGORA trade and environment, 86 AJIL 724 (1992).

Page 333 INTERNATIONAL PROTECTION OF ENVIRONMENT consumption patterns, demographic dynamics and sustainability, protecting and promoting human health, promoting sustainable human settlements, policy-making for sustainable development.2. Conservation and management of resources for development: It relates to atmospheric protection, an integrated approach to land resource use, combating deforestation, protecting mountain ecosystems, meeting agricultural needs without destroying the land, sustaining biological diversity, management of biotechnology in an environmentally sound way, safeguarding the ocean's resources, managing and protecting fresh water resources, safe use of toxic chemicals, managing hazardous wastes, seeking solutions to solid waste problems, management of radioactive wastes.3. Strengthening the role of major groups: It includes the action for women, roles of children and youth, NGOs, local authorities, business and workers in sustainable and equitable development, social patterns for sustainable development.4. Means of implementation: Implementation includes science, technology transfer, education, financial resources and mechanisms, making environmentally sound technology available to all, science for sustainable development, promoting environmental awareness, building national capacity for sustainable development, strengthening institutions for sustainable development, international legal instruments and mechanisms, bridging the data-gap.Implementation of the Agenda by member States remains essentially voluntary.

4. Rio DeclarationThe Rio Declaration on Environment and Development, adopted at the "Earth Summit", contains 27 Principles, which reflected two major concerns: the deterioration of the environment and its ability to sustain life, and the deepening awareness that long-term economic progress and the need for environmental protection must be seen as mutually interdependent. The Declaration emerged as a compromise between industrialised and developing countries. Developing countries required more detailed references to their specific concerns, especially their sovereign right to development, acknowledgement that industrialised countries were primarily responsible for current environmental problems, and the need for new financing and technology to enable developing countries to avoid taking the same polluting route to development as done by the developed countries.Principle 11 of the Rio Declaration calls for the adoption of environmental standards at the national level. Principle 16 encourages the internationalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution ("polluter should pay" principle), with due regard to the public interest and without distorting trade and investment. This relationship between environment and development is also stressed in Principle 12 of the Declaration.71 Principle 15 incorporates the precautionary principle which states that the precautionary approach shall be widely applied by States according to their capabilities to protect the environment. Where there are threats_________________71 See also Art. 3(5) of the Climate Change Convention.

Page 334 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.The Declaration is not legally binding, but a strong moral commitment exists to adhere to the Principles. A non-legally binding set of Principles was also adopted for the management, conservation and sustainable development for all types of forests. The Food and Agriculture Organisation (FAO), as a follow-up action to the "Earth Summit", hosted a meeting in March 1995 at Rome on the protection, sustainable development and conservation of the world's forests. Ministers from 121 participating countries adopted a "Rome Statement on Forestry", which emphasised on enhancing international cooperation, including mobilisation of financial resources for the benefit of developing countries, and called upon the international community to assess the role of voluntary certification in promoting sustainable forest management.72 In June 1995, a Convention on Desertification was adopted.

E. United Nations Commission on Sustainable DevelopmentAfter the Earth Summit, the United Nations Commission on Sustainable Development (CSD) was established by the UN General Assembly in December 1992 to ensure effective follow-up of United Nations Conference on Environment and Development (UNCED) to fulfil a range of functions. These functions broadly fell into the following three categories:731. Monitoring the implementation of Agenda 21, which means gathering information from governments, various United Nations agencies and bodies, international institutions and NGOs.2. Reviewing the availability of financial and technical resources, i.e., to determine whether, and to what extent, developed countries have honoured their commitment of Agenda 21 by providing resources to developing countries to enable them to implement Agenda 21.3. Acting as a forum for discussion, consensus-building and decision-making, which will include identifying weaknesses in the international legal and institutional regime, proposing areas for regulation by treaty, and forging consensus on new issues. The new areas which require firm actions are regional transboundary air pollution and fresh water conventions. The Commission should establish effective subsidiary bodies, disseminate information, and play a role in developing and assessing the implementation of national strategies.74The CSD acts as a high-level forum on sustainable development and has acted as preparatory committee for summits and sessions on the implementation of Agenda 21. The United Nations Division for Sustainable Development acts as the secretariat to the Commission and works within the context of Agenda 21._________________72 See UN Newsletter, Vol. 50, p. 2 (No. 14, April 8, 1995).73 GA Res. A/RES/47/191 (1992). It is a functional commission of the UN Economic and Social Council (ECOSOC), CSD has 53 member States (about one-third of the members are elected on a yearly basis). It meets annually at New York.

74 See FIELD (Foundation for International Environmental Law and Development), Report of a Consultation on Sustainable Development: The Challenge to International Law, p. 2 (April 27-29, 1993).

Page 335 INTERNATIONAL PROTECTION OF ENVIRONMENT F. Hazardous Substances and ActivitiesUnder Agenda 21, the UNEP took initiative to regulate the transboundary movement of hazardous substances and activities, which led to the conclusion of 1989 Basel Convention, 1998 Rotterdam Convention, 2000 Cartegena Protocol on Living Modified Organisms,75 and the 2001 Stockholm Convention on Persistent Organic Pollutants.The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is concerned with regulating the transboundary movement of hazardous waste, particularly to prevent transfer of hazardous waste from developed to less developed countries, and ensuring sound environmental management in respect of its disposal.76 The Convention is intended to minimize the amount and toxicity of wastes generated. It does not, however, address the movement of radioactive waste. A waste will fall under the scope of the Convention if it is within the category of wastes listed in Annex I of the Convention and it does exhibit one of the hazardous characteristics contained in Annex III. In other words, it must both be listed and contain a characteristic such as being explosive, flammable, toxic, or corrosive. Annex II lists other wastes such as household wastes and residue that comes from incinerating household waste. A waste may fall under the scope of the Convention if it is defined as or considered to be a hazardous waste under the laws of either the exporting country, the importing country, or/and of the countries of transit. In addition to conditions on the import and export of the above wastes, there are stringent requirements for notice, consent and tracking for movement of wastes across national boundaries. It is significant to note that the Convention places a general prohibition on the exportation or importation of wastes between Parties and non-Parties. The exception to this rule is where the waste is subject to another treaty that does not take away from the Basel Convention. The United States is a notable non-Party to the Convention and has a number of such agreements for allowing the shipping of hazardous wastes to Basel Party countries. Parties to the Convention must honour import bans of other Parties. In 2002 the Convention established a compliance mechanism to facilitate early detection of implementation and compliance problems such as illegal trafficking or meeting reporting obligations.The Basel Convention calls upon countries for an overall reduction of waste generation (Art. 4). It thus focuses on sound environmental management seeking to eliminate waste reduction and pollution prevention at its source of generation through best environmental practices. The Convention states that illegal hazardous waste traffic is criminal but contains no enforcement provisions. There is no liability and compensation provision for environmental damage arising out of the non-compliance with the Convention. In December 1999, the Fifth Conference of Parties (COP-5) adopted the Basel Protocol on Liability and Compensation. The objective of the Protocol is to provide for a comprehensive regime for liability as well as adequate and prompt compensation for damage resulting from the transboundary movement of hazardous wastes and other wastes, including incidents occurring because of illegal traffic in those wastes. The Protocol provides who will be financially responsible in the event of an incident.77 In 1995 the Basel Ban Amendment to the Basel Convention was adopted, which_________________75 See above, p. 331-332 for Cartegena Protocol.

76 The Convention entered into force on May 5, 1992; India became party on March 15, 1990. Total number of Parties is 175.

Page 336 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW is not yet in force.78 The Amendment prohibits the export of hazardous waste for any reason, including recycling, from a list of developed (mostly OECD) countries to developing countries. An area of special concern for advocates of the Amendment was the sale of ships for salvage and shipbreaking.The 1998 Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade [commonly known as the Rotterdam Convention] and the 2001 Stockholm Convention on Persistent Organic Pollutants addressed the regulatory gap in respect of substances that are 'toxic, persistent and bio-accumulative and whose use cannot be controlled'. The Rotterdam Convention establishes a prior informed consent regime in respect of the importation of toxic substances, many of which are subject to the Stockholm Convention. Rather than banning the export/import of hazardous chemicals and pesticides outright, it promotes open exchange of information and calls on exporters of hazardous chemicals to use proper labelling, include directions on safe handling, and inform purchasers of any known restrictions or bans. Parties can decide whether to allow or ban the importation of chemicals listed in the treaty, and exporting countries are obliged to ensure that producers within their jurisdiction comply.79The Stockholm Convention on Persistent Organic Pollutants, adopted in 2001 by the UNEP, aims to eliminate or restrict the production and use of persistent organic pollutants (POPs), which are defined as "chemical substances that persist in the environment, bio-accumulate through the food web, and pose a risk of causing adverse effects to human health and the environment". The Convention seeks to eliminate or reduce the release of POPs into the environment through controls over the production or use of intentionally produced POPs (i.e., industrial chemicals or pesticides), management and reduction of stockpiles, and minimisation and elimination of unintentionally produced POPs (i.e., industrial by-products such as dioxins and furans).80In January 1991, the Organisation of African Unity adopted the Bamako Convention on the Ban of the Import and the Control of Trans-boundary Movement and Management of Hazardous Wastes within Africa.81 The Bamako Convention arose out of the necessity to prohibit trade of hazardous waste to less developed countries (LDCs) in Africa, which could not be effectively stopped by the Basel Convention. The Bamako Convention uses the format and language similar to that of the Basel Convention, but is much stronger in prohibiting all imports of hazardous waste and does not make any exceptions on certain hazardous wastes (like those for radioactive materials) made by the Basel Convention._________________77 The Protocol has not yet entered into force. There are 10 parties and will enter into force on the ratification by 20 Parties. For a detailed analysis of the Protocol, see K. Kummer, International Management of Hazardous Wastes (Oxford; Clarendon Press) 2000.78 Amendments to the Convention enter into force after ratification of "three-fourths of the Parties who accepted them" [Art. 17.5 of the Convention].79 Convention entered into force on 24 February 2004 and currently has 116 parties.80 Convention entered into force on 17 May 2004 and there are 172 Parties to the Convention as of January 2011. Parties to the Convention in May 2009 have agreed to a

process by which persistent toxic compounds can be reviewed and added to the Convention.81 See 31 ILM 164 (1992) for Annexes to the Convention. The Convention came into force in 1998 and has 23 Parties and signed by 30 African States.


IV. ENVIRONMENT AND NUCLEAR SAFETYThe environment gets polluted from the nuclear tests or explosion, which has been the concern of international community. Nuclear sector has been the subject of considerable regulation at the international level because of the ultrahazardous character of nuclear energy activities with potentially devastating transboundary implications. The 1972 Stockholm Conference on Human Environment adopted a resolution on nuclear tests, which called upon States to refrain from conducting nuclear tests as they could contaminate the environment. The 1963 Nuclear Test Ban Treaty had already banned the testing of nuclear weapons in the atmosphere.82 The Environmental Modification Convention, 1977, in Art. I enjoins States parties not to engage in military or any other hostile use of environmental modification techniques, having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State party. "Environmental Modification" includes deliberate manipulation of natural process—the dynamics, composition or structure of the earth including its biota, lithosphere, hydrosphere, and atmosphere, or of outer space. The most potential environmental modification technique that human ingenuity has so far devised is the nuclear weapon.But the incident on April 25-26, 1986, at Chernobyl, after the USSR nuclear reactor's explosion, gave a new direction and fresh impetus to nuclear safety and environment. The explosion released radioactive materials, including caesium, into the atmosphere. The radioactive fall-out affected the territory of the neighbouring States, contaminating animals and crops. The accident resulted due to design faults in the reactor and human error. The Chernobyl incident led to the adoption of two conventions by the International Atomic Energy Authority at its special session on September 26, 1986: (a) the Convention on Early Notification of a Nuclear Accident on Radiological Emergency;83 and (b) the Convention on Assistance in the Event of a Nuclear Accident or Radiological Emergency.84 The Notification Convention enjoins a State party to provide information about a nuclear accident to other States that may be affected by radioactive pollution and to inform the IAEA of a nuclear accident. Five nuclear power States (China, France, Russia, UK and USA) have agreed to give notice of any nuclear accident, having significant effects in other States. The Assistance Convention stresses on cooperation amongst State parties to limit the effects of a nuclear accident or radiological emergency upon life, property and environment. There was already the 1979 Convention on the Physical Protection of Nuclear Material, which binds parties to take measures in relation to certain deliberate acts involving nuclear material, involving actions such as theft, sabotage or removal and use, whether in transit, storage or otherwise. But the Convention entered into force only after the Chernobyl incident (on February 26, 1987). The 1979 Convention does not cover Chernobyl-type accidents, which result not from deliberate acts. The 1963 Vienna Convention on Civil Liability for Nuclear Damage is concerned only with the liability of the parties for damage caused by nuclear incident. A draft Protocol has been adopted in September 1997 to raise the limits of liability to $400 million.In order to protect earth's environment from nuclear activities of States in outer space, the Outer Space Scientific and Technical Sub-committee (a subsidiary of the Committee on the

_________________82 480 UNTS 43, in force since 1963.83 25 ILM 1370 (1986), in force from Oct. 27, 1986.84 25 ILM 1377 (1986), in force since Feb. 26, 1987.


Peaceful Uses of Outer Space), in its meeting held in April 1994 at Vienna, highlighted the need for further studies on the problem of collision of nuclear power sources with space debris and reporting by States to the United Nations on their research on the safety of nuclear powered satellites. The recommendations of the Sub-committee were discussed by the Committee on the Peaceful Uses of Outer Space at its session in Vienna from June 6-17 1994. In September 1994, IAEA adopted a Convention on Nuclear Safety. Its aim is to legally commit participating States operating land-based nuclear power plants to ensure a high level of safety by setting out a number of general and specific safety considerations that must be taken into account in the operation of nuclear installations. Nuclear safety rests with the State having jurisdiction over the nuclear installation, but the Convention does not create any clearly binding regime.85

V. IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL NORMSThe role of international law is of great significance in matters of compliance and enforcement of the international environmental instruments, which are most crucial for the conservation and protection of the environment.For implementation of the conventional standards, there is an urgent need for further development of assistance to developing countries to meet incremental costs of implementing conventions, reporting requirements, technology transfer, and capacity building. Environment problems faced by developing countries are due to poverty and underdevelopment. In developed countries, an environmental crisis caused more by unmindful and wasteful consumption of food and other resources. Their wasteful consumption of natural resources is depriving people in the developing world from these resources.86 Hence, there is a need to regulate the consumption and exploitation of natural resources in a sustainable manner.The role of NGOs is very crucial in the enforcement of environmental conventions. But the issue of enforcement of international legal obligations becomes particularly acute in relation to the damage caused to the global environment and areas beyond national jurisdiction. There are practically no conventional rules existing on this issue.The question of international liability of the State for causing environmental damage has been taken up by the International Law Commission (ILC) as a part of its consideration of the issue of International Liability for injurious consequences arising out of acts not prohibited by international law, which preponderantly deals with the law of environment.87 On the basis of the recommendation of the Working Group, the Commission in 1997 decided, inter alia, to proceed with its work on the topic, undertaking first prevention under the subtitle "Prevention of_________________85 See the text in 33 ILM 1514 (1994). The Convention entered into force on 24 October 1996. As of November 2010, there were 72 Contracting Parties; all countries with operating nuclear power plants are now parties to the Convention.86 For example, fish and other sea-food cater mainly to the needs of rich nations, thereby depriving poor nations from the protein-rich food. For details, see The World Bank

Appraisal Reports of the Brackish Water Fisheries Development Projects in Bengal and Andhra Pradesh (1988, New Delhi).87 In 1997 the Commission decided to subdivide the topic "International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law" into two parts: prevention of transboundary damage from hazardous activities and international liability in case of loss from transboundary harm arising out of hazardous activities - G.A. Res. 52/156 of 15 December 1997.

Page 339 INTERNATIONAL PROTECTION OF ENVIRONMENT transboundary damage from hazardous activities". But, so far little progress has been made on the formulation of the draft provisions, since wide differences persist on the nature of liability— whether it should be strict or fault based, and about its emphasis—whether it should be upon prevention or compensation. In its latest deliberations on the issue, the Commission examined the "polluter-pays-principle" so as to make it a part of the draft. The Commission has also agreed to certain principles regarding preventive measures, salient features of the concept of due diligence and ways in which that concept could be implemented in the light of State practice and doctrine but has not yet formulated the rules or principles on compensation for harm.88In 1993, the Council of Europe adopted the Convention on Civil Liability for Damage Resulting from Activities Dangerous to Environment, which aims at ensuring compensation for damage caused by activities dangerous to the environment, but it does not include liability caused by a nuclear substance, or damage arising from carriage.89However, apart from these, further efforts are needed to develop the principle of actio popularis (actions brought on behalf of the whole community) identified by the International Court of Justice in the Barcelona Traction case.90 They are particularly relevant in the transboundary pollution or where the multinational corporations are involved, as was in the Bhopal gas leak case (1984), where Union Carbide (a US multinational) was involved. Consideration should also be given to endowing one or more international organisations with the capacity to bring claims for the protection of the global environment or causing environmental damage. The trend has already been initiated by the Iraq Claims Commission pursuant to the Security Council Resolution 687 of April 5, 1991, allowing international organisations to bring claims in respect of environmental damage caused as a result of Iraq's invasion of Kuwait,91 or done by the World Health Organisation (WHO) seeking advisory opinion from the International Court of Justice on the legality of the nuclear weapons.92 As a positive step towards protecting human environment, the General Assembly, on December 14, 1992, adopted a set of resolutions and principles relevant to the use of nuclear power sources in outer space. It imposes international responsibility on States for their national activities involving the use of nuclear power sources in outer space, and will be internationally liable for damage so caused (Principles 8 and 9).93_________________88 See the Third Report of the Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao (52nd session of the ILC (2000)) In the case concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997) ICJ Rep., p 7, the Court held that violation of newly developed norms of environmental law could create State responsibility, see paras. 44 and 105.89 For the text of the Convention, see 32 ILM 1228 (1993); see also the Agreement on the Conservation of Cetaceans of the Black Sea between 18 European States, including the EC, text in 36 ILM 111 (1997).90 (1970) ICJ Rep., p. 3, paras. 33-34.91 For the text of the resolution, see 31 IJIL 192 (1991).92 Case was filed on May 14, 1993. The UN General Assembly made the similar request on Dec. 15, 1994. The opinion was given on July 8, 1996. Text in 35 ILM 809

(1996). The Court declined to give the opinion on the request of the WHO as the matter was out of its constitutional mandate.93 See GA Res. A/RES/47/68, Feb. 23, 1993; see text in 32 ILM 917 (1993).

Page 340

CHAPTER 13Law and Practice of Treaties

I. GENERAL INTRODUCTIONThe treaty is the ubiquitous tool through which all kinds of international transactions are conducted. It is, in fact, the closest analogy to legislation that international law has to offer. It can range from merely a bilateral arrangement among States to a multilateral constituent instrument, such as the United Nations Charter or the International Labour Organisation (ILO). Almost every kind of legal act or transaction is performed through a treaty.1 The multilateral treaty remains the best medium for imposing binding rules in the existing as well as in new areas, such as international commercial transactions, outer space, environment, continental shelf and sea-bed mining, into which international law is expanding and for codifying, clarifying and supplementing the customary law already in existence in many areas. Private law analogy of contract is applicable to treaty and the general principles of contract (i.e., there must be consent and capacity on both sides, and object must be legal), are applicable to it as well.Prior to 1969, the law of treaties consisted for the most part of customary rules of international law. These rules are now codified and clarified in the Vienna Convention (referred here as the Convention) of May 23, 1969. The Convention also contains rules in the nature of progressive development of international law, like the provisions on jus cogens.2 In fact, it is a compound of codification and progressive development of customary international law whose jurisprudential value has been well-recognised.3 The Convention, for the most part now, governs the law and practice of treaties.4 Nevertheless, it is not intended to be a complete code on treaty law and the rules of customary international law continue to play a significant role. The preamble and_________________1 Lord McNair, The functions and differing legal character of treaties, 11 BYblL 100 (1930).2 The Convention was adopted by 19 votes to 1, with 19 abstentions. France voted against because of its objection to the provisions on jus cogens and the procedures provided for the settlement of disputes; see, Treaty Conference Records (1969), p. 203. The abstention was mainly by members of the Soviet bloc who objected to the failure of the Convention to adopt the principle of universality of participation in multilateral law-making treaties. In their view, every State should be entitled to participate in such treaties. Other abstentions were based on the inadequacy of the procedures providing for the settlement of disputes. Ibid., pp. 204-208.3 The ICJ has placed reliance on the Convention in the Namibia case (1971) ICJ Rep., p. 16; Fisheries Jurisdiction case (1974) ICJ Rep., p. 3; Nicaragua case (1986) ICJ Rep., p. 14.4 For an analysis of the Vienna Convention and of its drafting history, see R.D. Kearney and R.E. Dalton, The Treaty on Treaties, 64 AJIL 495 (1970); I. Sinclair, The Vienna

Convention and the Law of Treaties, 2nd ed. (Manchester University Press), 1984; S. Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (Oceana Publications), 1970. For the text of the Draft Articles and thecommentary, see YblLC II (1966), pp. 177-274; 61 AJIL 263-463 (1967). For other valuable work on the

Page 341 LAW AND PRACTICE OF TREATIES Art. 38 of the Convention affirm that the rules of customary international law will continue to govern questions not regulated by the Convention. Thus, the following areas are still regulated by customary international law:(1) According to Art. 1, the Convention is limited in its scope to "treaties between States". This leaves all other agreements, such as between States and international organisations or international organisations inter se, to be governed by customary international law (Art. 3).5 Now the International Law Commission has adopted a separate convention, the Convention on the law of Treaties between States and International Organisations or between International Organisations, 1986 (referred to as 1986 Convention), on this subject which follows the pattern of the 1969 Convention.6(2) The Convention is limited to international agreements concluded between States in written form and governed by international law (Art. 2(1)(a)). This leaves agreements not in written form outside the purview of the Convention which will be governed by customary international law.(3) The questions related to succession to treaties, State responsibility and the effect of outbreak of hostilities have not been dealt by the Convention and are regulated by the customary international law. The effect of outbreak of hostilities might raise the problems of extinction of the international personality of a State and consequently of State succession. It may also create the problems both of termination of treaties and suspension of their operation. In 1978, the International. Law Commission (ILC) adopted the Vienna Convention on Succession of States in respect of Treaties and currently is seized with the drafting of a Convention on State responsibility.7(4) The Convention is non-retroactive in operation (Arts. 4 and 28), i.e., it applies only to treaties concluded by States parties after the entry into force of the Convention. Consequently,subject of treaties, see Kaye Holloway, Modern Trends in Treaty Law (Oceana Publications, New York), 1967; T.O. Elias, The Modern Law of Treaties (Oceana Publications, New York), 1974; Ingrid Detter, Essays on the Law of Treaties (Sweet and Maxwell, London), 1967; Henkin, R.C. Pugh, D. Schachter, and H. Smit, International Law: Cases and Materials, 2nd ed. (West Publishing Co., New York), 1987, Ch. 6; D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet & Maxwell, London), 2010, Ch. 10; S.K. Agarwala (Ed.), Essays on the Law of Treaties (Orient Longman, New Delhi), 1972. 5 The ILC, in its commentary explained about their exclusion by stating that "Treaties concluded by international organisations have many special characteristics, and the Commission considered that it would both unduly complicate and delay the drafting of the present articles if it were to attempt to include in them satisfactory provisions concerning treaties of international organisations", YblLC II, 187 (1965). 6 For the text, see 25 ILM 543 (1986). There is a close resemblance between the provisions of the 1986 Convention and the 1969 Vienna Convention, but the number of the situations covered under the 1986 Convention are more varied than that applicable to States alone; see The Work of the International Law Commission (United Nations, Publications, New York), 1980, pp. 88-91.

7 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the ILC at its 53rd session in 2001. See the report in YblLC, 2001 Vol. II, Part Two, p. 30. The present articles are concerned with the whole field of State responsibility. They are not limited to breaches of obligations of a bilateral character.

Page 342 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW treaties concluded prior to that date would continuously be governed by the customary international law.(5) Many of the Convention provisions are merely residual rules which are to operate in the absence of a treaty to the contrary or it is otherwise agreed by the parties or a contrary intention is established. This invariably leaves a large area of treaty law under the domain of customary international law.

II. WHAT IS A "TREATY"McNair defines treaty as "a written agreement by which two or more States or international organisations create or intend to create a relation between themselves, operating wit' in the sphere of international law".8 According to Fitzmaurice, "a treaty is an international agreement embodied in a single formal instrument ... made between entities both or all of which are subjects of international law possessed of international personality and treaty-making capacity, and intended to create rights and obligations or to establish relationships, governed by international law".9 The Vienna Convention describes treaty as "an international agreement concluded between States in written form and governed by international law" (Art. 2(1 )(a)). Thus, every treaty is an agreement, but not all agreements are treaties.The genus of agreements denoted by the word "treaty" is a wide one, viz., treaty, convention, protocol, pact, charter, act, agreement, proces verbal, memoranda or understanding, regulations, modus vivendi, armistic agreement, exchange of notes, etc. None of these terms has an absolutely fixed meaning, though they have been categorised into formal or less formal instruments by some writers.10 Whereas treaty, pact, charter, constitution, statute, convention, General Act, Final Act (when it is an independent instrument) are generally used for formal instruments of multilateral character, the terms such as memorandum of understanding, proces verbal, arrangement, exchange of notes, are less formal and generally related to transactions of provisional or temporary nature. The terms like declarations, agreements or modus vivendi are common to both formal and less formal type of agreements. A resolution by a diplomatic conference and protocol denote the minutes of the proceedings at an international conference, or supplementary or additional to the primary instrument or to a prior transaction. A treaty may also take the form of a joint communique issued by the Government Ministers at the end of a meeting. Though some types of instruments and titles are used more frequently for some purposes than others, there is no exclusive and systematic use of nomenclature for particular types of transactions.11Like terminology, international law also does not prescribe any form or procedure for the making of a treaty, though the constitutional law of certain States prescribes both (for_________________8 Lord McNair, The Law of Treaties (Clarendon Press, Oxford), 1961, p. 2.9 Article 2(1) of Fitzmaurice's report to the ILC, see YbILC, Vol. II, p. 107 (1956); see also D.P. Myers, The names and scope of treaties, 51 AJIL 574 (1957).10 Myers, ibid.; J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 439.11 See YblLC, Vol. II, p. 188 (1966).

Page 343 LAW AND PRACTICE OF TREATIES

example, the US Constitution, Art. II: 2). Hence, there is a total lack of uniformity. A treaty may be in the form of an agreement between the heads of States of the concerned countries,12 in an inter-governmental form,13 between ministers of the respective countries, or it may be an inter-departmental agreement.14 However, the form or terminology of a particular instrument is not decisive of the question whether or not it constitutes an international engagement in the nature of a treaty. The agreement must be measured by the following characteristics to be considered as a treaty:a. it should be embodied in a written instrument between two or more entities;b. those entities should be endowed with international personality;c. it should create or intend to create a legal relationship between the parties; andd. it should be governed by international law.A. A Written Instrument between the PartiesThe Vienna Convention is limited to written treaties in the interest of clarity and simplicity.15 However, it cannot be stated with confidence that international law requires treaty to be in a written form, though they are generally put in writing. Even the restriction in the Convention of the use of the term "treaty" to written agreements is not intended to deny the legal force of oral agreements (cf. Act. 3). Without denying their legal validity, however, oral agreements are not as clear and permanent as the written ones. Apart from the obvious problem of proof, it also suggests the reluctance of the parties to enter into a formal arrangement. Moreover, it is undemocratic that two persons by their spoken words should bind the States without the intervention of any other political organ of the State.The requirement of registration with and publication by the United Nations of all treaties entered into by member-nations in accordance with Art. 102 of the Charter further underline the need of treaties to be in written form. Failing to register a treaty with the United Nations would create a disability for the parties to the treaty, who may not invoke it "before any organ of the United Nations" (Art. 102(2)), including the International Court of Justice. The provision, as such, does not take away the validity of the unregistered treaty for other purposes, or prevents it being invoked before bodies or organs other than of the United Nations. The aim of this provision, like that of Art. 18 of Covenant of the League of Nations, is to give publicity to_________________12 For example, the US-USSR Treaty on Anti-Ballistic Missile Systems, 1971 SALT-I Agreement between President Nixon and General-Secretary Leonid Brezhnev. This form is the oldest and most orthodox, and used for treaties of important character.13 This is the most common form prevalent now. It has become the regular form for agreements made between the Commonwealth countries. Full powers are issued by the secretary for foreign affairs under his signature and seal of office. Most Exchange of Notes, now very common, fall into the category of inter-governmental agreements.14 The inter-departmental agreements are generally concerned with matters of private law rather than of international legal character. Their consideration as treaty proper is, however, doubtful, since they are not normally registered with the UN under Art. 102 of the Charter. But, nonetheless, they are agreements between the States. McNair, op. cit. 8, pp. 15-21.

15 Aegean Sea Continental Shelf case (1978) ICJ Rep., p. 3 at pp. 33-44.

Page 344 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW treaty relations and to curtail the practice of secret agreements among nations. Article 102 may be said to create a binding obligation effecting registration. The requirement of registration affects the enforceability of the treaty in a certain form, but does not affect the validity of the agreement and its effectiveness to create legal obligations for the parties.16The issues of the validity of an oral agreement and uncertainty stemming from such agreements were illustrated by the "Ihlen Declaration" in the Legal Status of Eastern Greenland case.17 Denmark, in addition to claiming sovereignty over Eastern Greenland on the basis of occupation and by the exercise of various acts of administration and legislation, also argued that Norway had recognised Danish sovereignty over the territory by the "Ihlen Declaration". M. Ihlen was the Norwegian Foreign Minister. On July 14, 1919, the Danish minister accredited to Norway suggested to Mr. Ihlen that Denmark would not raise any objection to Norway's claim over Spitzbergen at the Paris Peace Conference if Norway would not oppose the Danish claim over Greenland. Subsequently, on July 19, 1919, in the course of further discussion on the matter, Mr. Ihlen declared that "the Norwegian Government would not make any difficulty" concerning the Danish claim. These words were minuted by Mr. Ihlen for his government's purposes. On July 10, 1931, Norway took possession of Greenland.Denmark argued before the Court that the undertaking of M. Ihlen was binding upon Norway. The Court accepted the two "assurances", i.e., the Danish attitude on the Spitzbergen question and the Norwegian attitude on the Greenland question as interdependent, since they were quid pro quo in their nature and binding on the parties. Regarding the "Ihlen Declaration", the Court observed that "it is beyond all dispute that the reply of this nature given by the Minister of Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs".18 This, however, does not make it clear that the Declaration was binding on Norway as an international agreement.A unilateral declaration in certain circumstances has been accepted as binding ipso facto on the States, under international law, in the nature of a treaty without any quid pro quo, if it has been acted upon by other nations, for example, Ottoman Empire's Declaration of December 19, 1873, regarding the Suez Canal, which subsequently resulted into a multilateral treaty in 1888. In the Nuclear Tests cases,19 the International Court of Justice had the occasion to decide about the juridical nature of unilateral declarations. Australia and New Zealand brought cases against the French atmospheric nuclear tests in the South Pacific in 1973-74, and sought an injunction and a decision against these tests alleging that they were against international_________________16 However, compliance with Art. 102 cannot be strict in certain cases, such as in the interim period of conclusion of the treaty and pending registration, an unregistered treaty can be relied upon by the party with an undertaking to register. The lapse of registration can also be cured by subsequent registration "as soon as possible". The act of registration has, nonetheless, raised a number of problems about the status of certain agreements, when one or other of the parties did not possess international personality.

The UNTS Form No. 212 carries the statement to the effect that registration "does not confer on the instrumentthe status of a treaty or an international agreement if it does not already have that status, and would not otherwise have", ST/LEG/SER.A/105.17 PCIJ Rep., Series A/B, No. 53 (1933).18 Ibid., at p. 71.19 (1974) ICJ Rep., p. 253 (Australia) and p. 457 (New Zealand).

Page 345 LAW AND PRACTICE OF TREATIES law. The cases were taken off the Court's list without a decision on the merits, when France gave an undertaking that it would not conduct further tests in the atmosphere after its 1974 series of tests. The French President made a public declaration to this effect on June 8, 1974. France, nevertheless, maintained that it "has the conviction that its nuclear experiments have not violated any rule of international law".20 The Court found that "the claim of Australia no longer has any object" and, therefore, did not give any decision.21Dealing with the significance of the official French undertakings and public statements, the Court observed "that declarations made by way' of unilateral acts, concerning legal or factual situations may have the effect of creating legal obligations". But the declaration can have that binding character only "when it is the intention of the State making the declaration that it should become bound ... that intention confers on the declaration the character of a legal undertaking ..." (emphasis added) and "nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act".22 The Court clearly equated such unilateral declarations with treaties, "just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration".23

B. Entities Endowed with International PersonalityEntities enjoying international legal personality only can be parties to treaties. Although an international person might exist with no power to make treaties, but it is certain that any entity having a treaty-making power must be endowed with international personality. Every independent, sovereign State possesses the capacity and unlimited power to enter into treaties. In the S.S. Wimbeldon case, the Permanent Court of International Justice remarked that "the right to entering into international engagements is an attribute of State sovereignty".24 The Vienna Convention reflects and reinforces this rule in Art. 6, which provides that "every State possesses capacity to conclude treaties". The term "State" is confined to the entity fulfilling the essentials of Statehood under international law. However, the component members of a federal State can conclude treaties if such capacity is admitted by the federal constitution and within the limits prescribed therein. In certain federal constitutions, for example, in Germany, Switzerland and erstwhile Soviet Union, the component States enjoy this power; otherwise, generally speaking, the treaty making capacity rests with the federal government. But the Vienna_________________20 Ibid., at p. 269, para. 51.21 Earlier, the French Government had refused to comply with the Court's interim order requiring France to refrain from commencing the tests until the final disposal of the case by the Court. France restarted testing in 1981, and had again conducted these tests from Sept. 1995 to Jan. 1996 in the South Pacific against the stiff opposition from many nations. The tests were scheduled earlier up to May 1996.22 Op. cit. 19, at p. 267.23 Ibid., at p. 268.

24 PCIJ Rep., Series A, No. I, at p. 25 (1923). The Harvard Research Draft of Law of Treaties also states, "capacity to enter into treaties is possessed by all States, but the capacity to enter into certain treaties may be limited" (Art. 3), 29 AJIL Supp. 657 (1935).

Page 346 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW Convention fails to provide any answers to questions such as what happens when a State violates the constitution while entering into a treaty, or that when the constitution of a country is abrogated, who is responsible, or competent to conclude a treaty during the period of suspension or abrogation? The International Law Commission is similarly silent on these issues in its draft report. The answer has to be found in the State practice, which is practically nonexistent.The treaty-making power of the non-self-governing territories is dependent upon the constitutional structure by which they are governed. In the past, occasionally, the colonial territories had been endowed with such a power, viz., Australia, New Zealand, India and South Africa participated in the Paris Peace Conference, 1919, and became parties to the Treaty of Versailles and founder members of the League of Nations. In the case of "protectorates", their treaty-making power depends upon the terms of the agreement under which the protecting power administers the territory,25 But States which enter into agreements with other States, whose legal status is of doubtful character, may do so at their own risk.26The treaty-making capacity of the international organisations is well established. For example, the Mandate Agreement between the League of Nations and South Africa relating to South-West Africa was accepted as "an international agreement having the character of a treaty".27 This position is now well-confirmed by the 1986 Convention but their power to enter into treaties is limited by their constituent documents. Their capacity is also restricted to certain types of treaties only. According to Art. 6 of the 1986 Convention, their treaty-making power is restricted to the "constituent instruments, decisions and resolutions adopted in accordance with them and established practice of the organisation". If the constituent instrument is not specific about the treaty-making power, it will be derived from implied powers based on "established practice". Where the organisation's treaty-making power is doubtful or to enter into specific treaties is not clear, the position is less certain. However, the treaty should be in furtherance of the object and purposes of the organisation and should not be ultra-vires.The treaty-making power of the entities other than States has also been recognised under Art. 3 of the 1969 Vienna Convention. However, individuals have never been recognised as endowed with the requisite international personality to make treaties, either with States, or with other international persons with treaty-making capacity. It is possible for a State to enter into a contract with a corporation or an individual, but such an agreement will not be enforceable as a treaty on the international plane. In the Anglo-Iranian Oil Co. case,28 the United Kingdom argued that the 1933 concessionary agreement between the Iranian Government and the Anglo-Iranian Oil Company was in the nature of a treaty and created an international as well as private_________________25 For more details on protectorates, see Ch. 4, supra, pp. 91-93.26 L. Oppenheim, International Law, Vol. I, 8th ed. (Lauterpacht (Ed.), Longman, London), 1955, p. 882.27 South West Africa cases (Preliminary Objections) (1962) ICJ Rep., at p. 330. However, the jural character of the declarations made by States under Art. 36(2) of the Statute of the ICJ, accepting the compulsory jurisdiction of the Court is doubtful. In the

Nicaragua case (Jurisdiction) (1984) ICJ Rep., p. 392, the Court termed them as "a series of bilateral engagements". In the same case, Judge Jennings regarded them as sui generis, though "some parts of the law of treaties may be applied by useful analogy", at p. 620, cf. Judge Schwebel. But in the Fisheries Jurisdiction cases (Jurisdiction) (1973) ICJ Rep., p. 16, the Court clearly accepted them as "treaty provisions".28 (1952) ICJ Rep., p. 93.

Page 347 LAW AND PRACTICE OF TREATIES law obligation. The agreement was negotiated to settle a dispute between Iran and the United Kingdom which had been before the Council of the League of Nations. After the conclusion of the concessionary agreement, the matter was duly reported to the Council. The Court rejected this argument and stated, "[i]t is nothing more than a concessionary contract between a government and a foreign corporation" and not an agreement between the Iranian Government and the United Kingdom, which was not a party to the contract.29

C. Agreement Creates or Intends to Create Legal RelationshipThe requirement of the presence of the necessary intention to enter into a binding legal relationship in the nature of a private law contract under municipal law does not find its mention in the definition of "treaty" given in the Vienna Convention (Art. 2(1 )(a). Waldock, the fourth special rapporteur, in his report, stated that in any case, "the element of intention is embraced in the phrase governed by international law",30 though this requirement finds express mention in the reports prepared by other .rapporteurs.31 Nevertheless, there are practical reasons for the adoption of this approach in the Vienna Convention. States frequently intend to reach an agreement due to political considerations, without going to the extent of making it enforceable in law. Sometime, an agreement might be a combination of political intent and legal obligations. There are numerous examples of joint declarations amongst States about their future policies without imposing any legal obligation on any of the States to pursue those policies. The Final Act of Helsinki Conference on Security and Cooperation in Europe, 1975, was adopted with an express understanding that it would not be binding in law and the Act stated that it would not be "eligible for registration under Article 102 of Charter of the United Nations".32 Similarly, the Atlantic Charter of 1941 (joint declaration made by Roosevelt and Churchill), was no more than merely a statement of common principles and policies between the United States and the United Kingdom upon which they based "their hopes for a better future for the world". The 1948 United Nations Declaration on Human Rights was agreed by the member-nations on the understanding that it would not create legal duties for them. However, such agreements may ripen into binding rules of international law over a period of time, as has happened in the case of Declaration on Human Rights.

D. Agreement should be Governed by International LawAn agreement, to be termed as a "treaty", should be governed by international law and not by national law. There are certain inter-State agreements subject to a particular system of municipal_________________29 Ibid., p. 112.30 Fourth Report on the Law of Treaties, II YblLC 12 (1965).31 Brierly, the first rapporteur, defined treaty as an agreement between States, including organisation of States "intended to create legal rights and obligations for the parties". Fitzmaurice similarly put it as an essential for a treaty, see op. cit. 9. Four

rapporteurs on law of treaties, in chronological order, were J.L. Brierly, H. Lauterpacht, G. Fitzmaurice and H. Waldock. Their reports are printed in the yearbooks of the ILC.32 For text, see 14 ILM 1292 (1975); H.S. Russell, 70 AJIL 242 (1976). In the Nicaragua case (Merits), the Court relied on the Final Act, see op. cit. 3, para. 204.

Page 348 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW law, either by an express provision to this effect or by implication from the nature of the transaction. For example, the loan agreements between the International Bank for Reconstruction and Development (IBRD) with individual States contain a clause to the effect that the agreement and the bonds issued thereunder are to be "interpreted in accordance with the law of the State of New York".33 Waldock, in his report to the ILC observed:[t]here may be agreements between States, such as the acquisition of premises for a diplomatic mission or for some purely commercial transaction, the incidents of which are regulated by the local law of one of the parties or ... by reference to conflict of law's principles ... it would not follow that the basis of their international accountability was a treaty obligation ... the Commission was clear that it ought to confine the notion of an "international agreement" for the purposes of treaties to one, the whole formation and execution of which ... is governed by international law.34However, the Vienna Convention does not provide any test to be used to determine whether an inter-State agreement is governed by international law, nor does the act of registration under Art. 102 of the Charter indicate any judgment by the United Nations Secretariat on the status of the agreement, although it signifies the belief of the parties that the agreement is of an international character. Thus, broadly speaking, if an agreement between entities endowed with international personality is governed by international law, and intended to create a legal relationship, any kind of instrument or document, or any exchange between them may constitute a treaty, irrespective of the nomenclature, form or circumstances of its conclusion.

III. THE MAKING OF TREATIESAll matters concerning the authority to make international agreements are governed by municipal law. International law does not prescribe any manner or procedure to exercise the treaty-making power by a State which has the constitutional arrangements. Generally, the authority to conclude treaties vests in the Heads of State, who in turn delegate the power to negotiate and sign treaties to the ministers of Foreign Affairs and other diplomatic officials representing their respective States in the treaty-making process. The diplomatic officials may also be authorised by their governments. Article II: 2 of the United States Constitution states that the President "shall have power by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur...." But, the President can also conclude "executive agreements" which are distinct from "treaties" in terms of Art. II: 2 because they are made by the President alone. The President can enter into executive agreements in the conduct of foreign relations (Art. I: 10) or if authorised by the Congress under an Act (e.g., the Trade Act of 1974, etc.). These executive agreements are binding upon the United States under the international law._________________33 During the period 1966-68, Denmark's agreements with other nations for similar transactions laid down that, except as otherwise provided therein, "the Agreement and all rights and obligations deriving from it shall be governed by Danish law". The supply of

foodgrains to India by the US during the 1960s under the PL-480 agreement had the similar provision, as also the agreement to supply enriched uranium to Tarapur.34 II YblLC 32 (1962).

Page 349 LAW AND PRACTICE OF TREATIES There is no express provision in the Constitution relating to them, though there is an implied power to make them.In the United Kingdom, the making of treaties is a prerogative of the Crown. From negotiation to ratification, it is an act of the executive done in assertion of royal prerogative. It is the Crown which authorises or issues full powers to negotiate and sign treaties and ratifies them, if required. Though the Parliament has the constitutional control over the executive, except in the cases of treaties of cession, approval of Parliament is not required, unless the treaty is to have the effect in the municipal law of the United Kingdom through a parliamentary legislation.35 However, it has become the established practice that before ratifying a treaty, the Crown gets the approval of the Parliament under the "Ponsonby Rule".36 Under the rule, every treaty, before ratification, is laid on the table of both the Houses of Parliament for 21 days, after which it is ratified and published. The important treaties are submitted to the House for discussion within the period before ratifying.The French Constitution, on the other hand, contains a clear direction in the matter of treaty-making. Article 52 of the 1958 Constitution enables the President to negotiate and ratify the treaties. Article 53 names treaties that require ratification by law, such as the treaty of cession which requires ratification and is not valid without the consent of the population affected. Agreements contrary to the Constitution can be ratified only after the revision of the Constitution (Art. 54).37In India, the Constitution confers on the Union of India legislative and executive powers covering the total field of foreign affairs. The Central Government has the power to make and implement treaties in accordance with Arts. 245 and 246, along with entries 10, 13 and 14 of the "Union List", i.e., entering into treaties and agreements, and implementing treaties, agreements and conventions with foreign countries. Apart from vesting the Central Government to legislate on these aspects of treaty-making and implementation, the Constitution does not indicate the instrumentality of the Government, concerned with the treaty-making, nor does it establish any clear procedure for the making of treaties. The whole subject of treaty-making is left to the union legislation, which has not yet legislated. Hence, the practice followed during the British India, continues, and like in other commonwealth countries, in India also treaty-making remains an executive act.38 Until the Parliament enacts a law, the President's (who is the chief executive under Art. 53 of the Constitution) power to enter into treaties remains unfettered by any "internal constitutional restrictions". In practice, the President appoints the plenipotentiaries and issues full powers, and ratifies the treaties. The agreements made in the name of signatory governments, full powers are granted and ratification is effected_________________35 McNair, op. cit. 8, pp. 94-97; Holloway, op. cit. 4, p. 191. In the absence of a written constitution in the UK, the rules governing the conclusion of treaties are based on custom and usage, see UN Compilation, Laws and Practices Concerning the Conclusions of Treaties, NST/LEG/SER.B/3, p. 97 (1953).36 The "Ponsonby Rule" was introduced in 1924, discontinued in the same year and was reintroduced in 1929. The Rule was not applied to the UK declaration under Art.

36(2) of the Statute of the ICJ, because it did not require ratification, see Harris, op. cit. 4, p. 644.37 Holloway, op. cit. 4, p. 156; C.G. Raghavan, Treaty-making power under the Constitution of India, in Agarwala, op. cit. 4, p. 217 at 218.38 Cf. A.G. for Canada v. A.G. for Ontario [1937] AC 326.

Page 350 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW on behalf of the Government.39 To be effective at the international plane, the treaty does not require approval or ratification by the Parliament unless it is subject to that requirement or it is of an important nature, such as the treaty of cession which may require the amendment of the Constitution.40Thus, generally speaking, treaty is an executive act, and in the absence of any provision in the Constitution to the contrary, the treaty-making power resides in the head of a State. The making of treaties involves various steps: consultation, negotiation and adoption of the text, commencement of treaty, ratification, accession, adhesion, etc.

A. Negotiation and Adoption of the TextAs a first step towards the conclusion of treaty is the negotiation and adoption of the text. Once the State decides to enter into a treaty relationship, it appoints the representatives to negotiate the text of the treaty. These representatives should be duly empowered through "full powers".41 Before the start of the formal negotiations of a treaty, normally there is a reciprocal examination of the full powers in order to avoid any trouble resulting from negotiation with a representative, not duly authorised to negotiate. The practice of production of full powers by States is now increasingly dispensed with through the conclusion of less formal agreements between the departments of two governments.Heads of States, heads of governments, ministers for foreign affairs, heads of diplomatic missions and representatives accredited to international conferences or organisations are considered to represent the State ex officio and have not to produce full powers (Art. 7(2) of the Vienna Convention). Acts performed by a person who does not have the full powers, or exceeds full powers relating to the conclusion of a treaty, are without legal effect unless confirmed by that State subsequently (Art. 8). The confirmation is considered to be done by implication if the State invokes the provisions of the treaty or otherwise acts in such a way as to appear to treat the act of its representative as effective.42After consultation and negotiation, the treaty text is normally adopted by the unanimous consent of the parties (Art. 9(1)). When a treaty is drawn up by an international conference, the text may be adopted by two-thirds of the States present and voting, unless by the same majority they decide to apply a different rule (Art. 9(2)), including the rule of unanimity. The rule of unanimity is easier to follow in bilateral treaties or for treaties drawn up between few States._________________39 See UN Compilation, Laws and Practices Concerning the Conclusion of Treaties, op. cit. 35, p. 63.40 Cf. Berubari Union case, AIR 1960 SC, p. 845.41 "Full powers" is a formal document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty, see Art. 2(1)(c) of the Vienna Convention.42 McNair, op. cit. 8, at p. 121. In a diplomatic conference, to conclude a multilateral treaty, the full powers are examined by the Committee of Full Powers, who reports to the

Conference on the nature of the full powers of each representative. In 1908, the US Minister to Rumania signed a convention without having any authority to do so, see, G.Y. Hackworth, Digest of International Law, Vol. IV (Govt. Printing Press, USA), p. 467 (1942). In 1951, a convention was signed at Stressa by a delegate on behalf of both Norway and Sweden, while he had authority to do so on behalf of Norway only, 61 AJIL 300 (1967).

Page 351 LAW AND PRACTICE OF TREATIES When a treaty is drawn-up within an international organisation, the voting rule for adopting the text of the treaty has to be in consonance with the voting rule of that organisation (cf. Art. 5 of the Convention).43Authentication of the text, after its adoption, is done in a manner as agreed by the parties amongst themselves. It can be done according to the procedure provided in the text of the treaty, or by signature, initialling or signature ad referendum (Art. 10). Unless there is an agreement to dispense with signature, this is essential for a treaty, principally because it serves to authenticate the text.44 In the case of initialling, formal signature in proper form takes place later. Initialing also occurs where a representative, without authority or clear instructions to sign, prefers not to sign the text.45 On the other hand, signature ad referendum are deferred signatures, which generally denotes that the negotiated text was not definitively acceptable to the signatory State at the time of authentication and unless confirmed subsequently by the State, they are without any legal effect.46

B. Commencement of the TreatyThe question as to when a treaty becomes binding on parties and creates a legal relationship between them is an important one^ A State may express its consent to be bound by a treaty by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means agreed between the parties (Art. 11).

1. Effect of signatureThe signing of a treaty may be merely an authentication of its text, but if the treaty so provides or the parties otherwise agree, the signature of their representatives will signify their consent to_________________43 Op. cit. 11, at p. 194. Art. XIV (1) and (2) of the FAO and Art. 19 of the ILO Constitution follow the rule of two-thirds majority for the adoption of the conventions and agreements. In the treaties concluded under the aegis of the UN, such as the 1948 Genocide Convention, the 1958 Law of the Sea Conventions, the 1952 Convention on the Political Rights of Women, the texts were adopted by the votes of two-thirds States participating in the conference.44 It is a common practice to open a convention for signature by parties until a certain date after the date of formal session of signature is over (e.g., Art. 81 of the Vienna Convention, 1969) where all the delegates are required to sign at the same time and place. Normally, the date of the treaty is usually taken to be the date on which it was signed.45 Initialling may merely indicate an agreement on the text of the treaty, which is to be referred to the government for consideration. According to O'Connell, initialling is "merely an indication of approval of the text for subsequent signature", whereas signature of a treaty is a "formal indication of agreement with its content". See D.P. O'Connell, International Law, Vol. I (Stevens & Sons Ltd., London) 1965, p. 230. But in certain cases, initialling amounts to full signature, if the parties indicate by their action during negotiations or at the time of initialling, the treaty would be deemed to have been

concluded by mere initialling. Thus, initialling may amount to the conclusion of a treaty if the parties so desire (Art. 12(2)(a)).46 Signature ad referendum also occurs when the plenipotentiary did not have the definite instructions to sign and had no time to consult his government. Signature, if confirmed, conveys the full signature of the treaty, binding on the State (Art. 12(2)(b)).

Page 352 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW be bound by the treaty. A large number of treaties are expressly made operative upon signature.47 Where the treaty is silent on ratification, accession and approval, better view seems to be that it will be binding upon signature. There are also numerous treaties which have to enter into force upon ratification or approval, but are made applicable provisionally from the date of signature or from the date specified for the purpose. The General Agreement on Tariffs and Trade (GATT) of October 30, 1947, had come into effect provisionally from January 1, 1948, till the Charter of the International Trade Organisation (Havana Charter) was ratified. Montreaux Straits Convention of July 20, 1936 also comes under this category. Treaties concluded by exchange of letters, with valid signatures of the representatives, become effective upon the receipt by one party of the acceptance of the other party.If the treaty is subject to ratification, acceptance, approval or accession, signature signifies no more than the fact that the delegates have agreed upon a text which will be referred to their governments for further action in the acceptance of the treaty. So long as the States do not make their intention clear of not becoming parties, they are under an obligation to act in good faith and to refrain from acts which would defeat the object and purpose of the treaty. After becoming party to the treaty, they are similarly obliged to refrain from such acts, pending the entry into force of the treaty, provided the entry has not been unduly delayed.For a treaty which is only to become binding upon ratification, mere signature would not constitute any legal relationship between the parties. In the North Sea Continental Shelf cases, the Federal Republic of Germany was a signatory to the 1958 Geneva Convention on Continental Shelf but had not ratified it. Hence, the Convention was not binding on it. Judge Nervo pointed out that Germany's signature had only been a "preliminary step", as it "did not ratify the Convention, is not a party to it and therefore cannot be contractually bound by its provisions".48

2. RatificationRatification is "the international act ... whereby a State establishes on the international plane its consent to be bound by a treaty" (Art. 2(1 )(b) of the Vienna Convention).49 Ratification is an act of government to approve the treaty in question and becomes bound by it. In a majority of cases, ratification is a mode of submitting the treaty-making power of the executive to parliamentary control. Ratification presupposes signing of a treaty by the duly appointed plenipotentiary. A State can also ratify a treaty which has been signed by an unauthorised delegate or by one who has acted ultra vires of his authority. Generally, there is no prescribed time limit for ratification and States usually take many years before ratifying the treaty. The Vienna_________________47 The Indo-Sikkim Treaty, 1950, and the Tashkant Pact, 1966, between India and Pakistan came into effect on signature. The Indo-Nepalese Extradition Treaty of 1953 also provided that the treaty shall enter into force from the date of signature. Article 6 of the Anglo-Japanese Alliance of 1902 provided that the agreement "shall come into effect immediately after the date of signature". In British practice, treaty comes into force upon

signature unless there is a provision as to ratification. See McNair, op. cit. 8, p. 137; R.C. Hingorani, Commencement of Treaty, in Agarwala, op. cit. 4, p. 13, at p. 16. 48 (1969) ICJ Rep., p. 3, at p. 95.49 McNair defines ratification as an "act of appropriate organ of the State and signifies willingness of a State to be bound by a treaty", McNair, op. cit. 8, at p. 129.

Page 353 LAW AND PRACTICE OF TREATIES Convention on Law of Treaties itself was signed on May 23, 1969, but came into effect only on January 27, 1980, after 35 ratifications were deposited with the Secretary-General of the United Nations (Art. 84).Ratification provides a breathing time to State functionaries after the authentication of the text, during which they can consider its implications or prepare the public opinion in its favour. The procedure of ratification is governed by the constitutional provisions and practice of States, which vary. Normally, the act of ratification is executed by the head of the State, but in the inter-governmental form of treaties or inter-departmental agreements, the government itself may ratify the treaty. International law is mainly concerned with any act (signature or ratification) signifying the consent of the State in relation to treaty at the international plane, and not with the question of whether a State had complied with the provisions of its constitution.50

However, there is no duty on a State to ratify a treaty. Similarly, the State is not obliged to give reasons for its refusal to ratify and inform other States. Ratification generally does not have the retroactive effect, so as to make the treaty obligatory from the date of signature. In the case of bilateral treaties, the States, as a matter of practice, exchange instruments of ratification, and where there are few States, one State acts as a depository, which is generally the State where the treaty is signed, whose task is to notify all signatories upon the receipt of ratifications. In the multilateral treaties, or treaties concluded under the auspices of the United Nations, the Secretary-General often acts as a depository.51 The act of deposit establishes the legal nexus between the parties.The practice and procedure relating to conditions under which ratification becomes necessary is totally unsettled. It is not dependent on the form and type of treaties requiring ratification. Sometimes even the less formal types of international agreements, such as exchange of notes, which usually become binding merely by signature, are also made subject to ratification because of the constitutional requirement in one or the other of the contracting parties. With more formal types of instruments, express provisions on the subject of ratification are generally included. Total silence on the subject is exceptional.52 It is only very few, less formal type of treaties, that may not contain any provision on the subject. In such cases, the better view seems to be that a treaty will only require ratification if it is clearly contemplated by the parties. Ratification may also be required if the negotiating States so intended or the representative of a State has signed the treaty subject to ratification, or the provision to this effect was contained in the full powers of its representative (Art. 14(1)).

3. AccessionAccession, adhesion or adherence is a method by which a State becomes a party to a treaty of which it is not a signatory. Regarding the timing of accession, under the earlier practice_________________50 This, however, needs to be evaluated in the context of Art. 46 of the Vienna Convention.51 Articles 76-80 of the Vienna Convention set out the functions of the depository.

52 Op. cit. 11, pp. 197-198. In recent years, acceptance and approval have become new modes for becoming party to a treaty. They are no more than signatures subject to ratification. Similarly, the terminology "signature subject to acceptance" has come into vogue, which is a simplified form of ratification. This allows the State to ratify the treaty without going through the constitutional procedure, see ibid.

Page 354 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW it could be made only after the treaty had come into force. According to present practice, however, a non-signatory State may accede before or after the treaty has come into force, though the State parties may expressly stipulate that accession can be made only after the coming into force of the treaty. Multilateral treaties quite often provide the number of ratifications and accessions for their coming into force, viz., Art. XIII of the Genocide Convention provided 20 ratifications or accessions for its coming into effect. On the other hand, the 1928 General Act for Pacific Settlement of International Disputes and the 1946 Convention on the Privileges and Immunities of the United Nations were to come into force by accession only. Accession can only be made to multilateral treaties which allow accession to a specified category of State or States.A State may accede to a treaty only with the consent of the parties or signatories to the treaty. This consent may be given in advance by specifying in the treaty or it may be otherwise established (Art. 15(a) and (b)), for example, the 1958 Geneva Convention on the Law of the Sea, and the 1961 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Narcotic Drugs Convention Art. 28) or it can be given subsequently, with the unanimous consent of all the parties if the treaty does not contain any provision (Art. 15(c)). The important illustrations of subsequent consent can be found in the field of international organisations, laying down the specific procedure under their constituent instruments for the admission of new members (e.g., Art. 4 of the United Nations Charter).Accession is normally a final act of a State to be bound by a treaty and does not require ratification unless so provided in the instrument of accession. The State practice also does not support accession subject to ratification. The rationale of this rule is that the government has the prior access to treaty to deliberate, before it finally decides about the accession. Accession would become effective according to the provisions of the treaty or by exchange of instruments. In its absence, it will be complete when the instrument of accession has been filed with the depository, who would communicate it to the parties to the treaty (Art. 16). However, international law does not specify any form of an instrument of accession. A simple notification of intention to participate in a treaty may be enough. After the accession has been validly made, the acceding State becomes the equal member of the treaty alongwith the negotiating States.

C. Entry into Force of a TreatyEntry into force of a treaty is entirely dependent upon the agreement between negotiating States (Art. 24(1)). They may prescribe the manner and the date for its coming into force. For example, they may agree that the treaty shall be effective immediately after signature, or at some fixed time, i.e., 30, 60 or 90 days after the prescribed number of ratifications or accessions is deposited, or on the happening of a certain event.53 In the absence of any agreement between the parties, or a provision in the treaty, it will enter into force only after all the negotiating States have consented to be bound (Art. 24(2)). For a State becoming party to the treaty after its entry into_________________53 For entry into force, the Genocide Convention provided 90 days after 20 ratifications or accessions were deposited; the 1982 Law of the Sea Convention provided one year

after the 60 ratifications or accessions were deposited, and the Locarno Treaty of Mutual Guarantee, 1925, was to enter into force only after Germany's admission to the League of Nations, see Starke, op. cit. 10, p. 459.

Page 355 LAW AND PRACTICE OF TREATIES force, the treaty will become operative from the date when its consent is established (Art. 24(3)).The provisional application of treaties, pending ratification, is permissible if the treaty so provides or if the negotiating States have so agreed (Art. 25). The 1936 Montreax Straits Convention provided for provisional application; Protocol of February 8, 1965, adding Part IV to the GATT, came into effect provisionally; ceasefire agreements between commanders are also under this category. The provisional application can be brought to an end by a State after notifying the other States to this effect (Art. 25(2)). After ratification, it is, however, the duty of a State to refrain from any act prejudicial to the object and purpose of the treaty prior to its entry into force.

IV. RESERVATIONSA reservation is a unilateral statement made by a State at the time of signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State (Art. 2(1)(d) of the Vienna Convention).54 The object of a State making the reservation is to alter its obligations with regard to other parties. A declaration by a signatory in the nature of interpretation of the provisions in a particular way, which does not vary the obligations of that signatory vis-a-vis other signatories, is not a true reservation.55 The rationale behind reservation is that a State is unable to fulfil its obligations under the treaty in totality because of certain constraints and instead of excluding it altogether from participating in the treaty, the State should be allowed to do so, even if in a limited way, provided that the reservation does not materially affect the basic provisions of the treaty. The privilege to make reservation is regarded as an incident of sovereignty and perfect equality of States. However, the right to make reservation to multilateral treaties which do not have any specific provision on reservation, has always remained controversial. There have been three principal approaches in this regard: the traditional approach, the Pan American approach and the modern approach.According to the traditional view, based on a positivist approach that the consent is the basis of all international obligations, a State making reservation (reserving State) can do so_________________54 Reservation is different from a case where a State wishes to become bound by a specific part of a treaty only. In that case, the State can do so if it is permitted under the treaty or it has been otherwise agreed by the contracting States. Where a treaty allows a contracting State to choose between differing provisions, it will be effective only if it is made clear to which of the provisions the consent relates (Art. 17). The contracting State is "a State which has consented to be bound by the treaty, whether or not the treaty has entered into force" (Art. 2(1 )(b)).55 The controversy about the true nature of a declaration did arise in the different organs of the UN. In 1959, India's accession to the Convention on Inter-Governmental Maritime Consultative Organisation, 1948 (IMCO—renamed as the International Maritime Organisation since May 1982), subject to "conditions" and declaration, reserving the right to adopt measures aimed at developing her maritime industries, was

stated to be not a reservation but a declaration of policy. In 1964-65, similar problem arose with Cuba's declaration while acceding to IMCO Convention, that it would not consider itself bound by the Convention if IMCO's recommendations would be at variance with Cuban domestic law. There was a division of opinion amongst IMCO members whether the Cuban declaration was a statement of policy or a reservation not permitted under the Convention, see Starke, op. cit. 10, p. 463, n. 6.


only with the consent of other contracting parties. In the case of bilateral treaty, the application of this principle is not difficult, where a proposed reservation is, in effect, a counter-offer which the other party can accept or reject. Similarly, the principle can easily be applied in treaties with limited membership.56 But its application to multilateral treaties, increasingly drafted under the auspices of the United Nations and its specialised agencies, is not without its attendant problems. The practice of the League of Nations, nevertheless, was based on the traditional view. For example, in relation to Austria's reservation to Opium Convention, 1925, the Subcommittee of the League's Codification Committee, in its report, clearly stated that for a reservation to be effective, "it is essential that this reservation should be accepted by all the contracting parties, as would have been the case if it had been put forward in the course of the negotiations. If not, the reservation ... is null and void".57Under the Pan American Union approach, adopted in 1932, the reservations are permissible but the juridical status of treaties ratified with reservations will be affected in the following manner:1. The treaty shall be in force, in the form in which it was signed, as between those countries which ratify it without reservations.2. It shall be in force between the governments which ratify it with reservations and the signatory States which accept the reservations in the form in which the treaty may be modified by said reservations.3. It shall not be in force between a government which may have ratified with reservations and another which may have already ratified and does not accept the said reservations.58The United Nations Secretariat followed the League of Nations approach until 1950 in this matter. However, in 1950, reservations made by some countries to the Genocide Convention on the Prevention and Punishment of the Crime of Genocide (which had no reservation clause), put the whole issue of making reservations to a multilateral treaty in a new perspective.59 The General Assembly, while referring the matter to the International Law Commission (ILC) for consideration and preparing a report, also sought the advisory opinion of the International Court of Justice. It put three questions for the Court's deliberation. In the first question, the Court was asked whether the reserving State could be regarded as being a party to the Convention if the reservation was objected to by one or more of the parties to the Convention. The Court opined that a State which has made and maintained a reservation that has been_________________56 Article 20(2) of the Vienna Convention reflects this approach. It states that when "it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties". 57 See McNair, op. cit. 8, pp. 162-163.58 Reservations to Multilateral Conventions, UN Doc. A/'1372, p. 11.59 The reservations were appended by a number of States mainly to Art. IX of the Convention, which provided for the compulsory jurisdiction of the ICJ in disputes arising

under the Convention. Objection to reservations were registered by many States, see UN Doc. ST/LEG/SER.E/8, pp. 98 et seq.

Page 357 LAW AND PRACTICE OF TREATIES objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention only if the reservation is compatible with the object and purpose of the Convention, otherwise that State cannot be regarded as being a party to the Convention.In the second question, the Court was asked about the effect of a reservation as between the reserving State and (a) the parties which object to the reservation, and (b) those which accept it. The Court stated that: (a) if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact, consider that the reserving State is not a party to the Convention, and (b) if a party accepts the reservation as being compatible with the object and purpose of the Convention, it can, in fact, consider that the reserving State is a party to the Convention.The third question was related to the legal consequences of the objection to a reservation by: (a) a signatory State, who has not yet ratified the Convention, and (b) a State entitled to sign or accede. The Court replied that: (a) an objection to the reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to the first question only upon ratification. Until that moment, it merely serves as a notice to the reserving State of the eventual attitude of the signatory State; and (b) an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without any legal effect.60The Court, in its opinion, followed the Pan-American Union approach. However, it circumscribed the area of reservation by laying down the criterion of "compatibility with the object and purpose of the treaty" for making the reservation and that of objecting to it.61 The Court was guided by this approach because of the nature of the Convention which was intended by the General Assembly to be universal in operation, and with the principle of "integrity" of the instrument.62 The opinion of the Court, though primarily relating to and emphasising on the Genocide Convention, was stated in more general terms, thus leaving the law on reservations unclear. The confusion was further deepened with the ILC's report of 1951 on the subject. The Commission did not follow the Court's test of "compatibility", but supported the traditional principle of consent of all contracting parties to reservations, which was considered to be more important for the "integrity" of the treaty than the aim of widest possible participation.63 However, the General Assembly in its resolution of January 12, 1952, recommended the States to be guided by the Court's advisory opinion. The Secretary-General's role as a depository in respect to future conventions was only confined to passing on the documents relating to reservations to the interested States which would draw legal consequences from such communications. This "flexible" approach was further reaffirmed in the General Assembly resolution of December 7, 1959, and extended_________________60 Reservations to the Genocide Convention (1951) ICJ Rep., p. 15. The Court's opinion was given by a seven to five majority judgment.61 Ibid., at p. 24.62 Ibid., at p. 26.63 Report of the Commission on the Work of its 3rd Session, (1951), pp. 5-7; Report (A/1858) of July 11, 1951.


to all conventions concluded under the auspices of the United Nations, unless they contained contrary provisions.64The Court's opinion clearly tilted the law towards the "compatibility approach", which was subsequently adopted and incorporated by the ILC in the Vienna Convention in Art. 19(c). The Commission was motivated by its concern for the development of international law, which was hampered by the failure of the negotiating States to become parties to multilateral treaties. In its report, the Commission stated, "What is essential to ensure both the effectiveness and integrity of the treaty is that a sufficient number of States should become parties to it, accepting the great bulk of its provisions".65 This, however, does not affect the basic principle, according to which a State making the reservation can do so only with the consent of other contracting parties, otherwise the whole object of the treaty might be impaired. The States may consent to the reservation by expressly providing so in the treaty or authorising for the same (Arts. 19, 20(1) and (2)). Thus, a State cannot make a reservation if the treaty prohibits the reservation (e.g., Art. 39 of the Rome Convention, 1952), or prohibits a certain kind of reservation (e.g., Art. 64 of the European Convention on Human Rights, 1950). Nor can a State make a reservation to a particular provision if it is prohibited by the treaty, viz., Art. 11 of the 1958 Continental Shelf Convention prohibited reservations to Arts. 1-3 of the Convention. Sometimes, only certain kinds of reservations are permitted,66 or a special procedure for the admissibility of the reservation is provided, for example, Art. 20 of the Racial Discrimination Convention, 1966 provides that a reservation is "incompatible" if at least two-thirds of the contracting parties object to it.If a treaty is the constituent instrument of an international organisation, a reservation requires the acceptance of the competent organ of that organisation, unless it otherwise provides (Art. 20(3)).67 Objection to the reservation has to be filed within a period of 12 months after it was notified, and failure to object within this time will be treated as acceptance (Art. 20(5))._________________64 This reaffirmation came out of the controversy which followed after India's accession to the IMCO Convention "subject" to certain "conditions" in January 1959 (UN Doc. A/4235, Annex. I). India considered these "conditions" consistent with purposes of the IMCO under Art. 1 (b) of the Convention, but France and Germany objected to it. The IMCO Convention did not contain any clause on reservation. Matter was referred to the IMCO Assembly. Since it was a question of interpretation, IMCO referred it to the ICJ under Art. 56 of the Convention. The UN Secretary General submitted India's accession subject to "conditions" which "seemed to be in the nature of a reservation" for the consideration of the IMCO Assembly, and refused to accept in definitive, India's instrument of accession until such time as States had expressed, tacitly or expressly, their consent. He implicitly drew the legal consequences of a reservation which he was precluded to do under the 1952 Resolution of the General Assembly, see, Holloway, op. cit. 4, p. 519; Oscar Schachter, The question of treaty reservation at the 1959 General Assembly, 54 AJIL 372 (1960).65 Op. cit. 11, at pp. 205-206.

66 Article 75 of the American Convention on Human Rights, 1969, provides that the Convention "shall be subject to reservation only in conformity with" the Vienna Convention on the Law of Treaties. In the Effect of Reservations case, the Court held that Art. 75 incorporated by reference Art. 19(c) of the Vienna Convention and has expressly permitted reservations that are not "incompatible with the object and purpose" of the American Convention, see 22 ILM 37 at p. 44 (1982).67 These provisions reflect the decision taken by the General Assembly in the controversy which arose out of India's accession to IMCO Convention in 1959, see op. cit. 64.

Page 359 LAW AND PRACTICE OF TREATIES Once the right of making reservation is established in accordance with the Vienna Convention, the effect of reservation on the reserving State's legal position vis-a-vis other parties closely follows the Court's approach in the Genocide Convention. Acceptance of a reservation by another State makes the reserving State a party in relation to the accepting State. But objection to reservation does not preclude the entry into force of the treaty as between the reserving State and the objecting State unless a definite intention to this effect had been expressed by the objecting State (Arts. 20(4)(b) and 21). This is at variance with the Court's approach, which precluded the entry into force of the treaty between the objecting and the reserving States.68 By virtue of reservation, the treaty stands modified to the extent of reservation in relation to other States accepting the reservation or objecting, but not precluding the entry into force of the treaty between themselves and the reserving State (Art. 21(1) and (4)).69 The reservation does not modify the provisions of the treaty for the other parties to the treaty inter-se (Art. 21(2)).The making of reservations and acceptance or objections must be in writing and must be duly communicated. Reservations made at the time of signing a treaty subject to ratification, acceptance or approval, must be confirmed in the subsequent instrument of ratification, acceptance or approval (Art. 23). A reservation or an objection to it may be withdrawn at any time by giving a notice which will become effective when the notice is received by the other State which has accepted the reservation or formulated the reservation, as the case may be (Art. 22).70The law on reservations as enshrined in the Vienna Convention has a flexible approach towards reservations. The rules allow States, who are unable to accept certain provisions of the treaty, to be parties, though in a limited way, rather than be totally excluded from participating. An approach, where there is an agreement on the basic provisions, with digression allowed in relation to less important provisions, will facilitate the wider participation of States in multilateral treaties. But it is also open to serious theoretical and practical objections. It sacrifices the fundamental aspects of the law of treaties, i.e., the integrity and identity of the parties. It brings in the subjectivity of the parties to decide the "compatibility" of the reservation with the object and purpose of the treaty and to recognise the reserving State as a party. There would be no certain means of deciding whether the reserving State has or has not become a party to the treaty. This will also leave unclear the extent of the applicability of the actual treaty rule. Moreover, it will lead to a cluster of bilateral agreements under a_________________68 The contrary approach was adopted at the behest of the USSR, which argued for the complete freedom for States to make reservations, see Treaty Conference Records, 1969, pp. 30-35. 69 It works on the principle of reciprocity. It was successfully applied and enforced by UK in the Libyan People's Bureau Incident (1984). Libya made a reservation to the Vienna Convention on Diplomatic Relations, which permitted Libya to open a diplomatic bag if it entertained strong doubts about the legitimacy of its contents, and thus modified the rule in the Convention on Diplomatic Relations not to open the diplomatic bag to the extent of reservation. This would not have prevented UK from opening the Libyan bag, see Foreign Affairs Committee Report (UK), 1984-85, House of Commons, p. xxxi.

70 In the Armed Activities (New Application: 2002) case (2006) ICJ Rep. p. 6, although Rwanda, while acceding to the Genocide Convention made a reservation to Art. IX of the Convention, had subsequently by law withdrew its reservations to all the treaties, the withdrawal did not become operative as no action was taken, particularly through the UN depository to notify other States, as Art. 22(3) required.

Page 360 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW multilateral umbrella. The problem may further be complicated in the "law-making treaties" or the treaty embodying the customary rule, where the basic question may be related to whether a particular rule is binding upon a contracting party if it has appended a reservation. It will also create difficulty in the emergence of a normative rule of international law or will lead to dilution of the customary rule.Nevertheless, this flexible approach of the Vienna Convention is working fairly well. The multilateral treaties of importance generally contain provisions on the subject of reservations. Any conflict relating to the "incompatibility" can be resolved by a majority rule which is followed at all foras of the United Nations.71

V. TREATIES AND THIRD PARTIESAs a general rule, a treaty primarily binds the parties to it and may not confer rights or impose obligations on third parties without their consent. This general rule, known as pacta tertiis nec nocent nee prosunt, reflects the customary international law, which is supported by the State and judicial practice and is incorporated in the Vienna Convention (Arts. 34-38). It is akin to private law of contract, providing corresponding rule against imposing obligations or creating rights in favour of a non-party.The Convention states that "a treaty does not create either obligations or rights for a third State without its consent" (Art. 34). However, "an obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing" (Art. 35). This is to give expression to the fundamental principle of international law that a State cannot be bound by a treaty provision without its consent. Similarly, the obligation accepted by a State in writing can be revoked or modified only with the consent of the parties to the treaties and of the third State, unless it is established that they had agreed otherwise (Art. 37(1)).The rule finds expression in the jurisprudence of the international tribunals. In the case of the Free Zones of Upper Savoy and the District of Gex,72 the Permanent Court of International Justice held that Art. 435 of the Treaty of Versailles, which provided that zones were "no longer consistent with present conditions, and that it is for France and Switzerland to come to an agreement" about the status of these territories, was "not binding upon Switzerland who is not a party to that Treaty, except to the extent to which that country accepted it". The case had its genesis in the 1815 Congress of Vienna (where Switzerland did not participate), which declared Switzerland's neutrality and created free zones of Gex and Upper Savoy for trade purposes in favour of Switzerland. In pursuance of Art. 435 of the Treaty of Versailles (to which France was a party but not Switzerland), France and Switzerland negotiated a treaty for the abolition of these zones, but the treaty ultimately failed because it was rejected in a plebiscite by the Swiss people. France purported to abolish the zones unilaterally, pleading that Art. 435 had abrogated the zones or had created an obligation for Switzerland to abrogate_________________71 See Brownlie, Principles of Public International Law, 7th ed. (2008), p. 612, D.W. Greig, International Law, 2nd ed. (Buttersworth, London), 1976, p. 468. For a contrary

view, see G. Schwarzenberger, International Law, 5th ed. (Stevens & Sons Ltd., London), 1967, p. 88.72 PCIJ Rep., Series A/B, No. 46, p. 141 (1932).

Page 361 LAW AND PRACTICE OF TREATIES them. The Court rejected these arguments of France. In the North Sea Continental Shelf cases, Art. 6 of the 1958 Continental Shelf Convention relating to the delimitation of the continental shelf was held to be non-applicable to the Federal Republic of Germany, which was a signatory to the Convention but bad not ratified it.73 From these it may be concluded that the treaties do not impose legally binding rules upon a dissenting State or a non-party. Even in the cases of "legislative" treaties with a large number of parties, there is no process to bind third States without their consent.The requirement of consent in the case of obligations is very strict and amounts to a collateral agreement between the parties to the treaty, on the one hand, and the third State on the other. According to ILC, "judicial basis of the latter's obligation is not the treaty itself but the collateral agreement".74 Certain kinds of treaties, however, bind or produce effects for third States without their consent, such as "dispositive" and "constitutive" treaties. The permanent arrangement set up by such treaties would not be extinguished by war.75 Treaties creating or affecting rights, such as treaties of cession, boundary treaties, treaties relating to international settlements or arrangement, such as those guaranteeing neutrality of Switzerland and passage through the Suez canal, as well as treaties establishing special regimes, such as de-fortification of Aaland Islands or States (for example, Belgium), or international institutions endowing them with legal personality valid erga omnes cannot be ignored by non-parties.76Apart from "legislative" or "constitutive" treaties, there are treaties which expressly bind the third parties. Article 2(6) of the United Nations Charter states: "The Organisation shall ensure that States which are not Members ... act in accordance" with the principles of the Charter "so far as may be necessary for the maintenance of international peace and security". In pursuance of its duty to maintain international peace and security, Art. 33(2) empowers the Security Council to call upon the parties (to the disputes, not necessarily the members of the UN) to settle their disputes through peaceful means enumerated in Art. 33(1). Read along with Arts. 37(2), 40, 41 and 42, Art. 2(6) empowers the Security Council to control their conduct with regard to an essential aspect of their relations and the right to intervene.77 This may lead to a situation when conformity with the terms of such treaties will be expected as a matter of right and not as a matter of courtesy from a third State. Certain multilateral conventions with intended universal application or of public law character, may create enforceable obligations against non-parties._________________73 See op. cit. 48 at p. 25. It was similarly held in the Island of Palmes case, RIAA, Vol. II, p. 831 (1928); Status of Eastern Carelia case, PCIJ Rep., Series B, No. 5, pp. 27-28 (1923); the Territorial Jurisdiction of the International Commission of the River Oder case, PCIJ Rep., Series A, No. 23, pp. 19-22 (1929). 74 See op. cit. 11, at p. 227.75 Julius Stone, Legal Controls of International Conflict (Stevens & Sons Ltd., London), 1954, p. 448. In the International Status of South-West Africa case (1950) ICJ Rep., p.128, at p.154, Judge McNair observed that mandate constituted "more than a purely contractual basis", territories subjected to it were "impressed with a special legal status".76 In the Reparation case (1949) ICJ Rep. 124 at p. 185, the objective status of international organisation, with a large membership, has been recognised under

international law, which is binding on non-parties. The opinion has established the binding character of the UN Charter in relation to non-members, and in that sense, it is of legislative character. See, for different view held by the ILC, op. cit. 11, at p. 231. 77 L. Oppenheim, International Law, Vol. 1, 9th ed. (Jennings and Watts (Ed.), Longman, London), 1955, p. 1264.

Page 362 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW For example, Single Convention on Narcotic Drugs, 1961, which replaced the Geneva Drugs Convention, 1936, empowers the parties to the Convention to impose an embargo against the imports of a non-party in the same way as against parties to the Convention, if it exceeds its estimated narcotic drug requirements.78Where a treaty creates rights, the rule, however, is less absolute for conveying assent, which can be inferred from the circumstances. The Convention provides, "A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right ... and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated".... (Art. 36(1)). It means that the assent of a third State can also be inferred from mere acquiescence. The third State will have to comply with the conditions for its exercise provided for in the treaty or established in conformity with it (Art. 36(2)). There are numerous examples where the treaties have created rights in favour of third parties, such as treaties creating international waterways, like Art. 1 of the Convention Respecting Free Navigation of the Suez Canal, 1888, Art. 380 of the Treaty of Versailles, 1919, and Hay-Pauncefote Treaty, 1901, which guaranteed right of passage through Suez, Kiel and Panama canals respectively. These treaties are dispositive or "real" in nature, i.e., they create rights in others (non-parties) of a permanent nature in pursuance of the treaty. Such treaties bestow rights in rem, erga omnes (valid against all the world).The operation of the third-party right, nevertheless, should not be lightly presumed. In the Free Zones case,79 the Court observed that it must be ascertained that the States which stipulated in favour of a third State meant to create an actual right which the latter has accepted as such. But a closer analysis of the judgment, however, suggests that the Court affirmed the possibility of the creation of rights in favour of third parties irrespective of their prior formal assent.80 The Aaland Islands case between Sweden and Finland, on the other hand, establishes that the beneficiary State can enforce the right. The Committee of Jurists, appointed by the League of Nations had to decide whether Finland, as successor State to Russia was bound by the 1856 Convention made by Russia with France and Great Britain, under which Russia had agreed to the permanent demilitarisation of the islands. The Committee reported that the 1856 Convention created "objective law whose effect extend beyond the circle of the contracting parties" and a "special international status" for the islands. It observed that "every State interested has the right to insist upon compliance with them and any State in possession of the Islands must conform to the obligations binding upon it". Sweden, though not a party to the Convention, but "as a power directly interested" could insist upon compliance with the Convention in so far as the contracting parties have not cancelled it.81Unlike obligation, the acceptance of the right by a third party is not conditional upon any specific act or the conclusion of a collateral agreement between it and the parties to the treaty. Further, any right so created, which has been claimed and enjoyed by third parties cannot be revoked or modified without their consent, when it is established that the right was intended_________________78 The 1961 Convention has been supplemented by the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

79 Supra note 72 at p. 147.80 L.N. Mathur, Treaties and Third States, in Agarwala, op. cit. 4, 41 at p. 48.81 LNOJ (1920), Sp. Supp. No. 3, p. 3.


not to be revocable or subject to modification (Art. 37(2)). In the Free Zones case, the Court held that the free customs zone created in favour of Switzerland by the Congress of Vienna could not be revoked without her consent.The treaties, declaratory of established customary rule of international law, will apply to non-parties, which will be bound not by the treaty but by the customary rule, though treaty might have given the rule a precise formulation. Similarly, a treaty leading to the formulation of customary rule of international law, becomes binding upon a third-State as such (Art. 38). The treaty may become an evidence of a general international law, the accepted practice of nations.82

VI. OBSERVANCE AND VALIDITY OF TREATIESThe principle pacta sunt servanda (treaties must be observed) has long been recognised as a fundamental principle of international law, which makes the treaties binding. Once entered, a State must observe the treaty obligations in good faith. The Vienna Convention provides, "Every treaty in force is binding upon the parties to it and must be performed by them in goodfaith" (Art. 26). But the customary law of treaties provides certain situations when treaty cannot be enforced because of its invalidity. Articles 45-52 of the Vienna Convention also refer to the grounds on which a treaty may be rendered invalid and put in doubt the enforceability of the rule of pacta sunt servanda.

A. Violation of Domestic Law on Treaty-MakingThere are three different opinions regarding whether or not non-compliance with a requirement of municipal law on treaty-making affects the validity of a State's consent. According to one view, a treaty becomes voidable in contravention of constitutional limitations. Another view is that a State contesting the validity of a treaty on constitutional grounds may invoke only those provisions of the constitution which are notorious. The third view holds that once the State has expressed its consent to be bound by the treaty through one of the established procedures under its constitutional law, the State is bound by the treaty in international law.83 Article 46 of the Convention, however, incorporates the second view when it provides that a "State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law ... as invalidating its consent", unless the violation was (a) manifest, i.e., objectively evident to the other negotiating State acting in accordance with normal practice; and (b) concerned a rule of internal law of fundamental importance.Failure by the State representative to observe specific restriction on his authority to express the consent of the State may not be invoked as a ground for invalidating the consent, unless the restriction was brought to the knowledge of the other negotiating States beforehand (Art. 47). If a treaty is subject to ratification, the incapacity of the representative can be rectified_________________82 The Nuremberg Tribunal applied the regulations attached to the 1907 Hague Convention on Rules of Land Warfare to determine crimes against the laws of war. The Convention was considered to be declaratory of general international law and as such binding against non-parties.

83 Op. cit. 11, pp. 240-241.

Page 364 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW by the very act of ratification by the State (cf. Art. 8). The provisions of the Convention (Arts. 46 and 47) are formulated in negative and restrictive terms, i.e., a State cannot invoke the noncompliance with internal law as a ground of invalidity unless such provisions are manifest and of fundamental importance. Further, it cannot invoke the provisions of its internal law to justify its failure to perform a treaty (Art. 27). A treaty has to be performed in good faith (pacta sunt servanda) even if it creates difficulties under internal law. These provisions reflect the supremacy of international law over internal law, when a treaty has been validly concluded. Failure to do so will entail the international responsibility of the State. The judicial practice also supports the same position. In the Eastern Greenland case, Norway argued that M. Ihlen was not competent under Norway's Constitution to bind it on a matter covered by the Ihlen Declaration. The Court rejected it and found it irrelevant as far as international law was concerned.84

B. ErrorThe Vienna Convention includes a specific provision (Art. 48) on error or mistake as a reason to avoid the treaty. The State practice, however, is scanty in this regard. The ILC points out that almost all the recorded instances in which errors have been alleged to invalidate treaties concerned with "geographical errors, mostly errors in maps".85 Both the International Court of Justice and the Permanent Court of International Justice have had the occasion to consider the pleas of error, which were rejected. In the Temple of Preah Vihear case, the boundary between Cambodia (then a French Protectorate) and Thailand (then Siam) was determined as a water-shed line by a treaty between France and Siam in 1904. The details for the demarcation were to be worked out by a Mixed Franco-Siamese Commission. However, a map was prepared by French experts who placed the Temple in Cambodia, which did not follow the watershed line. This map was never approved by the Commission. It was sent in 1908 to Siam, which far from protesting the error, thanked the French and requested 15 more copies. Furthermore, in 1930, a Siamese Prince paid a State visit to the disputed area and was officially received there by the French Resident at a ceremony at which the French flag was flown. Thus, there was no error in the treaty but the error had been in the subsequent acceptance of the delimitation of the boundary contained in a map, which misapplied the terms of the treaty. In 1947, Thailand discovered the error and claimed sovereignty over the area, and in 1954, it put armed guards and removed the sculptures and other objects from the temple. The Court rejected Thailand's plea of error in the map and observed that "the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it, or if the circumstances were such as to put that party on notice of a possible error".86_________________84 See op. cit., 17, pp. 566-568. In Spanish Zones of Morocco Claims (Great Britain v. Spain), 2 RIAA 615 at p. 724 (1925), arbitrator Huber rejected the Spanish contention relating to Rio-Martin claim that the treaty was not binding on Spain because of the non-observance of Moroccan law in its approval. In LaGrand case (Germany v. United States) (2001) ICJ rep., p. 466; and Avena and other Mexican Nationals case (Mexico v. United

States) (2004) ICJ Rep., p. 12, the United States was found to be in breach of its international obligations under the Vienna convention on Consular Relations, 1963. 85 Op. cit. 11, at p. 243.86 (1962) ICJ Rep., p. 6, at p. 22. The border dispute, involving the Preah Vihear has again resurfaced since July 2008, after the UNESCO decided to declare the Temple as World Heritage Site.


In the Mavrommatis case,87 the concessions granted in Palestine by the Turkish authorities to Mavrommatis, a Greek national, were withdrawn by Great Britain on the ground that the alleged concessions were granted by mistake. If the Turkish authorities had realised that Mavrommatis was not a Turkish subject, concessions would not have been granted. The Court observed that, since Mavrommatis' identity was never in any doubt, the error related only to his attributes. It held that the grant of concessions was not based on his nationality and therefore, in no way invalidated the agreement.Error, to be a ground of invalidity, must be one related to a fact or situation assumed by the State concerned and which formed an essential basis of its consent to the treaty. If the State has contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error, or the error related only to the wording of the text of the treaty, it cannot become a ground for the invalidation of the treaty (Art. 48). The provision embodied in the Vienna Convention does not make a distinction between mutual and unilateral error, or between error of fact or of law, though it mentions about error relating to a "situation" and a "fact".

C. Fraud and Corruption of the State RepresentativeThe fraudulent conduct of a contracting party and the corruption of its representative have been included as reasons for invalidity of a treaty (Arts. 49 and 50), although they are not important in the treaty law and practice. Fraud is a ground for the avoidance of contractual obligations in most legal systems, but there is a recognisable lack of judicial precedents under international law about the scope of the concept. The term "fraud" is undefined in the Vienna Convention. For "corruption", acts meant to exercise a substantial influence on the disposition of the representative to conclude a treaty may become a ground for invalidating the treaty. However, the precise scope of both these grounds would be determined by the future State practice.88

D. CoercionA treaty becomes void if its conclusion was procured by the threat or use of force in violation of the principles of the Charter of the United Nations. This coercion can be of a State's representative or of a State. However, the coercion of the representative is rare. Article 51 of the Vienna Convention is aimed at the coercion of a representative personally. The use of coercion against the representative of a State for the purposes of procuring the conclusion of a treaty would be a serious matter, which is sufficient to declare the treaty devoid of any legal consequence. In practice, sometimes it becomes difficult to make a distinction between the coercion directed at a State or its representative.89_________________87 PCIJ Rep., Series A, No. 2 (1924).88 Op. cit. 11, at p. 245.89 The only example of the exercise of both has been that of threat of use of force given to President Hacka of Czechoslovakia on March 15, 1939, in Berlin, to sign a treaty with Germany, creating German protectorate over Bohemia and Moravia.

Page 366 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW The scope of the provision on coercion remained very controversial at the ILC, and many members wanted to include any form of coercion, including economic and political pressure, but this was strongly opposed by Western representatives. It ultimately led to the adoption of a separate Declaration by the Conference on the Law of Treaties, condemning the use of military, political and economic coercion in concluding a treaty, with a resolution requesting the widest dissemination of the Declaration. It became part of the Final Act of the Conference.90 This understanding may amount to recognition of something akin to "economic coercion" as a ground of invalidity of treaties but it falls short of declaring them void per se. Its non-inclusion in Art. 52 of the Vienna Convention as a ground of invalidity does not make it legally binding on the parties. Nevertheless, it recognises the "unequal treaties", i.e., those not concluded on the basis of equality, and which may affect the validity aspect. The rule stated in Art. 52 is related to the invalidity of a treaty that was concluded under coercion.91 A treaty which is signed as a matter of choice, such as the 1979 Egyptian-Israeli Treaty of Peace (Camp-David Pact), is not invalid under Art. 52, even though it might have been influenced by a prior use of force. The rule has been made non-retroactive in its operation (cf. Art. 4). The only reported case where the charge of coercion was unsuccessfully made was the Fisheries Jurisdiction cases (Jurisdiction).92 The Iceland, relying on Art. 52, contended that the Exchange of Notes between itself and Great Britain in 1961, were void ab initio since they took place under difficult situations as the British Navy had been using force to oppose the 12-mile fishery limit established by the Iceland in 1958. The Court failed to find any duress and observed that the Exchange of Notes was negotiated under circumstances revealing perfect freedom and equality of both the parties.

E. Conflict with a Norm of Jus CogensA treaty is void ab initio if at the time of its conclusion, it conflicts with a peremptory norm of general international law, i.e., jus cogens (Art. 53). An existing treaty which is in conflict with a new peremptory norm becomes void and terminates (Art. 64). Thus, a treaty is void if it is in contravention with the existing or new jus cogens. The provisions on jus cogens in the Vienna Convention are in the nature of de lege ferenda. No precise definition of jus cogens is given in the Convention, but it is stated to be "a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". Jus cogens is opposed to jus dispositivum, i.e., rules which yield to the will of the parties. In case of contrary disposition of the parties, one can contract out of jus dispositivum but not out of jus cogens.93_________________90 UN Docs. A/CONF. 39/C, 1/SR, 48-51 and 57; A/CONF. 39/SR, 19.91 The exception to the rule has been provided for "any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's aggression" (Art. 75).92 (1974) ICJ Rep., p. 3.

93 R.P. Dhokalia, Problems relating to jus cogens in the law of treaties, in Agarwala, op. cit. 4, p. 150.

Page 367 LAW AND PRACTICE OF TREATIES However, this concept, which draws its parallel with public policy or ordre public of municipal law, but not entirely synonymous,94 has been the subject of serious controversy among the jurists. Those who support the concept assert certain principles of law fundamental to the international legal order, which cannot be derogated from a treaty, but these jurists are in doubt and are divided as to the content and application of jus cogens. Others deny the existence of such a concept under international law. They doubt whether the international legal order is sufficiently developed to support similar notions of public policy, and argue that it may be resorted to as a means of avoiding onerous treaty obligations.95 This controversy was seriously echoed in the adoption of the provisions on jus cogens, which led to vagueness in the formulation of these provisions.The Convention does not specify the organs and procedures through which the norms in the nature of jus cogens would be identified; will it be by the parties to the treaties, and will it evolve through the process by which a customary rule of international law emerges? However, Art. 64 provides that if "a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates". This clearly contemplates that a norm of jus cogens could be one of customary international law.96 The norms in the nature of jus cogens are mainly derived from customs and treaties in the character of international law. Whether they can be derived from other sources, remains a moot question.The requirement in Art. 53, for the acceptance of the rule of jus cogens by States as a whole seems ambiguous, but the acceptance by a large majority of nations has been considered as sufficient.97 However, this should invariably include the States whose acceptance matters for the formulation of a particular rule. The anomaly is further complicated by the fact that a norm in the nature of jus cogens from which no derogation is allowed in the first instance, can be modified by a subsequent norm of general international law of the same character. This creates a contradiction of a sort. How can a new norm of the same character emerge when no derogation from the original norm is permitted? It is also a moot question whether Art. 53 would be retroactive in operation, thereby making all treaties which are in conflict with jus cogens, void ab initio.98 But Art. 64, which is to be read along with Art. 53, does not make a treaty void ab initio, but invalidity is attached from the time of the establishment of a new jus cogens. The Convention also does not enlist any norms of jus cogens. However, the prohibition against the threat or use of force as enshrined in Art. 2(4) of the United Nations_________________94 B.S. Murty, Jus cogens in the Law of Treaties, Proceedings of Indian Society of International Law (5th Annual Conference, 1968), p. 10.95 Jurists like Verdross, Rosenne, McNair, Kelsen, Guggenheim support the concept; Schwarzenberger, Brierly deny its existence.96 See Starke, op. cit. 10, p. 56.97 UN Conf. on the Law of Treaties, Official Records, 80th Meeting, p. 472; UN Doc A/CONF. 39/11.98 In the Aloeboetoe case (1994) 1-2 I H.R.R. 208, the Inter-American court of Human Rights ruled that a 1762 treaty that imposed an obligation to sell prisoners as slaves

"would today be null and void because it contradicts the norms of jus cogens superveniens."

Page 368 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW Charter, slave trade, genocide99 or piracy jure gentium, have come to be accepted as examples of peremptory norm.100To avoid any unscrupulous use of jus cogens as a ground for avoiding treaty obligations, the Convention tried to eliminate the chances of unilateral denunciation of treaties on the ground of conflict with jus cogens (Arts. 65 and 66). If parties fail to arrive at a solution, any party can approach to the International Court of Justice, which will have the compulsory jurisdiction in disputes related to Arts. 53 and 64.101 However, these rules on jus cogens are limited only to the parties to the Convention. But if they are important and fundamental to international public order, they should be equally binding on the States that are interested in the maintenance of public order.There has not been any judicial precedent on the invocation and application of this principle before any international tribunal so far, except its reference in the North Sea Continental Shelf cases.102

VII. TERMINATION AND SUSPENSION OF TREATIESTreaties are liable to be terminated or suspended either in accordance with the will of the parties or by the operation of any rule of law.

A. Termination and Suspension by the Will of PartiesThe termination of a treaty or withdrawal by a party may be in accordance with the terms of the treaty or at any time by the consent of all the parties (Art. 54 of the Vienna Convention). The operation of a treaty may be suspended for all the parties or for a particular party according to the express stipulations of the treaty or by mutual consent of all the parties at any time (Art. 57). Most treaties contain clauses limiting the duration of the treaty after which it comes to an end. Some give reference to a specific purpose or event, and when the purpose is accomplished or that event has occurred, the treaty comes to an end, like most IBRD agreements with States. Similarly, a treaty may allow withdrawal to a State at any time after giving requisite notice, e.g., the Chicago Convention, 1944; or withdrawal is possible only in certain circumstances,_________________99 In the Armed Activities (New Application: 2002) case, op. cit. 70, the Court accepted the erga omnes character of the norm, i.e., a rule of jus cogen is a part of customary international law, but rejected an argument of Democratic Republic of Congo that the Rwandan reservation to Art. IX to the Genocide Convention was invalid as contrary to jus cogens.100 The view has also been expressed that Art. 103 of the UN Charter is in the nature of jus cogens, which gives supremacy to Charter obligations over obligations under any other international agreement of the members and thus places limitation on the treaty-making power of the members in conflict with the Charter. However, a closer analysis of the Charter reveals that only Art. 2(4) bears that character, and the principle against use of force is also part of customary international law. According to Soviet view, every treaty is in the nature of peremptory norm imposing binding obligation. The rule of pacta sunt servanda has also been considered as peremptory norm.

101 Precisely for this reason and partly because of the doubt about the provisions on jus cogens that France voted against the adoption of the Convention, see op. cit. 2. 102 See op. cit. 48 in para. 72.

Page 369 LAW AND PRACTICE OF TREATIES e.g., Art. 3 of the Nuclear Test Ban Treaty of 1963 allows withdrawal after serving three months' notice, if due to the extraordinary events related to the subject matter of the treaty, its supreme national interest has been jeopardised. When a multilateral treaty expressly stipulates a fixed number of parties for its entry into force, generally the treaty does not terminate if subsequently the number falls below the stipulated number, unless there is a specific provision to this effect. For example, the Air Transport Agreement, 1944, which required five ratifications for coming into force, had three States parties at one time and remained in force (it has eleven members at present). On the other hand, the 1957 Convention on the Nationality of Married Women provides six ratifications for its coming into force and if the number falls below six it will cease to be in force.

1. Treaties without a provision on termination or denunciationWhere a treaty is silent on the matter of termination, withdrawal or denunciation, normally no denunciation or withdrawal is possible. This is also in accordance with the basic tenet of pacta sunt servanda of international law and a State cannot get rid of its obligations under a treaty without the consent of all the parties to the treaty, expressly or by implication. Unless it is established that the parties intended to admit the possibility of denunciation or withdrawal, or the right of denunciation or withdrawal may be implied by the nature of the treaty, it is not permissible (Art. 56). Treaties creating permanent regimes cannot be denounced. On the other hand, because of their subject matter, treaties of alliance and commerce are susceptible of denunciation, even without containing any express provision to that effect. However, a State exercising such a right must give at least 12 months' notice to other States parties about its intention of withdrawal from the treaty (Art. 56(2)).103 In practice, treaties contain a clause to this effect.It is generally observed that whenever a State denounces a treaty, it gives legal reasons to do so, even though the legality of denunciation has remained a doubtful issue. A notorious example of it is found in Hitler's denunciation of Treaty of Versailles in 1936, pronouncing it as a diktat, i.e., the peace treaty was imposed on Germany, and therefore, not binding.

2. Conclusion of a subsequent treatyA treaty may be "impliedly repealed" if all the parties to it conclude a new treaty relating to the same subject matter and it appears from the later treaty or is otherwise established that the parties intended that the matter be governed by the new treaty, or its provisions are incompatible with the earlier treaty and the two are not capable of being applied at the same_________________103 The rule enunciated in Art. 56 is applicable to the whole treaty and not to a particular provision of the treaty. However, if the ground relates to particular clauses, it may be invoked with respect to those clauses which are separable from the remainder of the treaty and do not form the essential basis of the consent of other parties, and the remainder of the treaty would not be affected unjustly in its operation, see Art. 44(3).

Page 370 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW time (Art. 59).104 To make this rule applicable, however, all the parties to an earlier multilateral treaty should be parties to the new treaty. In the absence of that, the presumptive rule is that the subsequent treaty does not amend or cannot terminate the earlier multilateral treaty unless the intention for termination or amendment is express or the effect is clear. Judge Castro in the Nuclear Tests cases observed that the tacit abrogation of treaties would "introduce confusion into the international system".105 In response to the Australian claim that the Court can exercise jurisdiction on the basis of the 1928 General Act for the Pacific Settlement of International Disputes and the French counter-argument that the Act was terminated by the Revised General Act adopted by the General Assembly in 1949, the Court observed that in the absence of an unequivocal evidence, the basic principle is "that the amending treaty exist side by side with the original treaty, the latter remaining in force unamended as between those of its parties which have not established their consent to be bound by the amending treaty".106 This rule enunciated by the Court finds its mention in Art. 30(4)(b) of the Vienna Convention. Article 30(3) specifically mentions:When all the parties to the earlier treaty are parties also to the later treaty, but the earlier treaty is not terminated or suspended in operation under Art. 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.However, in the absence of anything to the contrary in the treaties themselves, the rule is that it is the later in time that prevails in the case of incompatibility between the two. A treaty may come to an end by the conduct of the parties also.

B. Termination and Suspension by Operation of LawSometimes it becomes difficult for the parties to fulfil their obligations under a treaty because of certain happenings which may lead to its termination or denunciation by a party.

1. Breach of treaty by a partyWhere a treaty is silent, it is a commonly held opinion of the jurists that a violation of a treaty by one party may vest the other party with a right to abrogate or suspend the performance of its obligations under the treaty. The differences among the parties generally arise not on the right to denounce the treaty when serious violations have taken place, but over the onesided and arbitrary pronouncements of the denouncing State. States quite often use it as a pretext for withdrawing from an inconvenient treaty. However, under the Vienna Convention, it is only a "material breach" that entitles a party to withdraw from a treaty. A "material breach" consists in "the violation of a provision essential to the accomplishment to the object and purpose of a treaty" (Art. 60(3)(b)). Support for the view that only a material, as opposed_________________104 As an example of repeal of a bilateral treaty, see Union of India v. Sukumar Sengupta (Tin Bigha case), AIR 1990 SC 1692 at p. 1703, the conclusion of the 1974 and 1982 agreements between India and Bangladesh was found to supersede the 1958 agreement between India and Pakistan on the same subject-matter.105 (1974) ICJ Rep., p. 253, at p. 381.

106 Ibid., at p. 336

Page 371 LAW AND PRACTICE OF TREATIES to any breach justifies the termination or suspension of the treaty is found in the Tacna-Arica Arbitration107 between Chile and Peru. Article 3 of the Treaty of Ancon, 1883, provided that the disputed provinces of Tacna and Arica should remain in the possession of Chile, which had obtained their possession by force, for 10 years from the date of ratification of the treaty, after which their future was to be determined through plebiscite. After the end of this period in 1922, Peru was not willing to abide by Art. 3 of the Treaty The arbitrator did not accept the Peruvian contention that by her policy of "Chileanization" of the provinces, introduction of Chilean nationals, and closing down of Peruvian schools, Chile had prevented the holding of the plebiscite as envisaged in Art. 3 of the Treaty, and thereby discharged Peru from her obligations. The arbitrator observed that administrative abuses, to have the effect of terminating such an agreement, should manifest in such serious conditions "as would operate to frustrate the purpose of agreement", and "a situation of such gravity" had not been shown to have existed in this case.108A material breach of a bilateral treaty by a party entitles the other to repudiate or suspend the operation of the treaty.109 In a multilateral treaty, a breach by one party tends to undermine . the whole regime of the treaty as between all the parties, which entitles the other parties by unanimous agreement to suspend or terminate the treaty between the defaulting State and themselves or for all. If a party is specifically affected by the breach, it may suspend the operation of the treaty between itself and the defaulting State. If the breach radically changes the position of every party with respect to the further performance of its obligations under the treaty, performance can be suspended (Art. 60(2)). Disarmament treaties fall under this category, where a breach by one party entitles the others to suspend the operation of the treaty without the prior agreement of other parties.The rule enunciated in Art. 60 is not applicable to provisions relating to the protection of the human persons in treaties of humanitarian character (Art. 60(5)). The rule will also not apply to the constitutional treaty of an international organisation, which would not be suspended or terminated by the withdrawal or suspension by one of the parties (cf. Art. 5 of the Vienna Convention). Denunciation of a treaty, however, would not affect the conditional validity of the jurisdictional clause contained in a treaty, which by virtue of its effectiveness would allow the tribunal to decide about the operativeness of the treaty between the parties.In the case of Appeal Relating to the Jurisdiction of the ICAO Council,110 which arose out of the hijacking and diversion of an Indian aircraft to Pakistan, on February 4, 1971, which was burnt in the Pakistani territory, and the subsequent suspension by India of overflights of Pakistani aircrafts through its airspace, India alleged the breach of two conventions by Pakistan, i.e., the Chicago Convention and the Transit Agreement of 1944, which established the principle of freedom of overflight between the contracting parties. India contended that as "specifically affected" by the "material breach", it was entitled to suspend the two conventions_________________107 2 RIAA 921 (1925).108 Ibid., at p. 944.

109 If a party, which is a victim of the breach itself, has committed a prior breach of the treaty, it would not be entitled to suspend or repudiate the treaty, see the case concerning Gabcikovo-Negymaros Project (Hungary/Slovakia), (1997) ICJ Rep., p. 7, para. 105.110 ICAO Jurisdiction case (1972) ICJ Rep., p. 46.


with Pakistan. Pakistan's conduct was also alleged to be contrary to international law, custom, usage, and principles and objectives of the two agreements. The Court observed that the Chicago Convention being the constituent treaty of the ICAO, endowed the ICAO with a legal personality, and it was not governed disjunctively by an accumulation of bilateral treaties. The members of the organisation are governed by its constitution. The Chicago Convention (Art. 95) does not recognise "the possibility of denunciation vis-a-vis a single member State". Therefore, a State which is in breach of its obligations or duties under the constitution towards a member is not in breach of a single bilateral treaty, but in breach of the constitution of the organisation. The treaties creating international organisations "are subject to special rules and not to the rule laid down in Art. 60 of the [Vienna] Convention". The rules of the Chicago Convention "do not recognise the possibility of a State declaring the Convention at an end vis-a-vis one other State".111Where the treaty is silent and contains no provision for termination, withdrawal or denunciation, it is generally subject to the rule contained in Art. 56(1), i.e., it "is not subject to denunciation or withdrawal". But the International Court of Justice's opinion in the Namibia case purported to overrule this position. The Court laid down that where a treaty is silent, it cannot be interpreted as implying the exclusion of such a right which is a part of general international law. The South African argument that neither the Covenant of the League nor the Mandate, bestowed upon the League Council the power to terminate a mandate for the misconduct of the mandatory, hence the United Nations, as the successor of the League has no power to terminate the Mandate Agreement. The Court dismissed this argument by observing that South Africa's failure to fulfil its obligations under the Agreement gives the right to the United Nations to terminate the Agreement. To succeed, South Africa must show that the "Mandate system ... excluded the application of the general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties". Such a power is presumed to exist in any agreement.112 Thus, Art. 60 is an exception which takes precedence over the rule contained in Art. 56(1).

2. Supervening impossibility of performanceThis rule is akin to the common law principle of "frustration of contract" known to private law of contract of many countries. A party to a treaty may be discharged from its obligations, or a treaty may be terminated due to a supervening impossibility resulting from "the permanent disappearance or destruction of an object indispensable for the execution of the treaty" (Art. 61(1)). The ILC illustrates these circumstances as the submergence of an island, the drying up of a river or the destruction of a dam or hydro-electric installation indispensable for the execution of a treaty. The impossibility of performance may be due to the total disappearance of a State party either by its annexation to another State or its disappearance because of conquest, or the cession of part of its territory to another State, which was vital for the performance of the treaty._________________111 Ibid., pp. 130-131.112 See op. cit. 3, at pp. 47-48.

Page 373 LAW AND PRACTICE OF TREATIES If the impossibility is not permanent, it may be invoked only as a ground for suspending the operation of the treaty. If the impossibility is the result of some default of the invoking party (due to breach of the treaty or any other international obligation owed to any other party to the treaty), it will not be a ground for termination, suspension of, or withdrawal from the treaty (Art. 61(2))."3 The effect of impossibility is not automatic, and the party must invoke the ground for termination.

3. Fundamental change of circumstances (rebus sic stantibus)Treaties which are perpetual in nature and silent on the termination and withdrawal may be revoked because of vital change in circumstances. Almost all modern jurists accept that a party may be justified in demanding to be released from the obligations of a treaty intended to set up an everlasting state of things. This is based on the principle, traditionally known as conventio omnis intelligitur rebus sic stantibus and assent, i.e., the treaties are concluded under the tacit condition rebus sic stantibus (literally means "things remaining as they are"). The principle is an express or implied term in every treaty, conditioning its validity upon the continuance of the circumstances existing at the time when it was made. This implies that the vital change in those circumstances provides a right to demand to be released from the obligations of the treaty concerned, and the treaty may be brought to an end.However, the doctrine of rebus sic stantibus has always remained controversial. Critics of the doctrine dislike it because it is against the principle of pacta sunt servanda, which is the basic tenet of international legal system and brings in insecurity in treaty obligations. Those who support the doctrine fear its abuse and its proneness to subjective interpretation. They like its restrictive application with an objective criterion. The ILC, in an attempt to reconcile the different views, rejected the implied term of "clausula" rebus sic stantibus in every treaty by operation of law, (which would automatically dissolve the treaty) and formulated an objective rule of law. It has also dispensed with the appellation "rebus sic stantibus". Thus, Art. 62 of the Vienna Convention provides:1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from a treaty unless:a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty, and b. the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty.a. if the treaty establishes a boundary; or_________________113 Case concerning Gabcikovo-Negymaros Project, op. cit. 109, paras. 102-103.


b. if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty....A party may also invoke the fundamental change of circumstances as a ground for the suspension of the operation of a treaty (Art. 62(3)).Though claimed by the ILC as an objective rule of law, the formulation in Art. 62 involves two tests for its application: subjective and objective. The subjective test requires the determination by the parties that the original state of circumstances surrounding the conclusion of the treaty, which were necessary for the continuance of the treaty, has disappeared. According to the objective test, the change in circumstances is so fundamental as to radically transform the obligations of the parties. In order to guard against its unrestricted use by the States, the rule has been negatively formulated and can only be invoked if it fulfils both the subjective and objective tests.In Gabcikovo-Negymaros Project Case, the ICJ has seemed to apply both the tests. In this case, in 1989 Hungary unilaterally suspended and abandoned the work on the project under a 1977 bilateral treaty with Czechoslovakia to construct a system of locks diverting a stretch of the river Danube along a new channel on their territories to produce hydroelectricity, improve navigation and protect against flooding, on the ground of its adverse environment impact. Czechoslovakia thereupon devised a plan (variant C) that deviated from the treaty and involved the diversion of Danube into a bypass canal into its territory. In May 1992 Hungry terminated the treaty citing as Variant C in breach of the treaty. In 1993, Hungry and Czechoslovakia referred the case to the ICJ to decide on Hungary's abandonment of the work on the project; Czechoslovakia's adoption and implementation of Variant C; and Hungary's termination of the treaty. Hungary relied on the principles of impossibility of performance (Art. 61) and fundamental change of circumstances (Art. 62) for non-compliance with and termination of the treaty. The Court, while rejecting the plea of Hungary, observed that the, "changed circumstances advanced by Hungary [developments in the environmental law and law] are... not of such a nature, either individually or collectively, that their effect would radically transform the extent of obligations still to be performed in order to accomplish the Project. A fundamental change must have been unforeseen; the existence of the circumstances at the time of the Treaty's conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty."The change of circumstances may not become a ground for terminating or withdrawing from boundary treaties for the obvious reason to maintain international peace, and where the party invoking it is at fault. This provision does not give the automatic or unilateral right of denouncing the treaty but is subject to the procedure laid down in Arts. 65 and 66, which envisage a notice and determination of the change in circumstances before a party gets the right to withdraw from the treaty.The States have frequently invoked the doctrine before international tribunals, but it never became the basis for decision in any case. In the Free Zones case, the Permanent Court of International Justice accepted its existence, but did not lay down its precise extent and mode of application. The Court did not accept its application in that case

because France failed to show that the constituent treaty for free zones (i.e., the Congress of Vienna, 1815) terminated

Page 375 LAW AND PRACTICE OF TREATIES because of change of circumstances due to the creation of a Federal customs unit by Switzerland in 1849, as the pre-existing circumstances affected by the new customs unit were not proved to be the basis of the creation of free zones.114 In the Fisheries Jurisdiction case, the Iceland argued that the Anglo-Icelandic agreement of 1961, which established a 12 mile fishing zone for Iceland, is no more binding because of changes in international law which had recognised the right of a coastal State to establish fishing zones without special agreements with States directly affected, and there has been fundamental change in the fishing techniques in the waters around Iceland. The Court, in rejecting the Iceland's contention, invoked Art. 62 of the Vienna Convention which stated to be a rule of customary international law. The Iceland's alleged change of circumstances could not be said to have "transformed radically" the extent of the jurisdictional obligations imposed by the 1961 agreement.115 The doctrine has also not found favour with the political organs of the United Nations.116Thus, though there is a wide acceptance of the doctrine for the termination of a treaty but there is a strong disposition against its unilateral invocation and unscrupulous use.

VIII. TREATY INTERPRETATIONWhen parties ascribe different meanings to the same term, or are unable to give any meaning thereof and the meaning of the term is obscure or ambiguous, it is through the technique of interpretation that the term of the treaty is elucidated.117 Whenever a question of interpretation comes before a tribunal, it becomes its duty to ascertain and give effect to the intention of the parties as expressed in the words used by them in the surrounding circumstances. The judges or arbitrators quite often borrow private law rules of interpretation of a statute or a legal document for the purposes of interpretation of treaties.

A. The Plain Meaning or "Textual Approach"The starting point of any approach to the interpretation of a particular provision, whether of a municipal statute or a treaty, is invariably the words actually used. If the words used are clear and unambiguous, then the judicial tribunal will give effect to the provisions of_________________114 See op. cit. 72. This is in line with Art. 62(1) of the Vienna Convention, envisaging the continuance of earlier circumstances for the validity of the treaty.115 Op. cit. 92 at p. 21; see also, the Gabcikovo-Negymaros Project case, op. cit. 107, para. 104.116 A case in point is of the Egyptian demand in 1947 in the Security Council for the withdrawal of British troops from Egyptian territory and to terminate the British administration over Sudan on account of change of circumstances, which the Security Council did not accept, see 43 AJIL762 (1949).117 Interpretation differs from "application of treaties", which almost invariably involves some measure of "interpretation". Interpretation is the process of determining the meaning of the text; application is the process of determining the consequences, which according to the text, should follow in a given situation.

Both are interdependent since differences over interpretation of a treaty invariably arise in connection with its application, disputes related to its application practically always involve a question of interpretation. On treaty interpretation, see generally, McNaii; op. cit. 8, Chs. XX-XXVI1I; ibid., 28 BYblL, pp. 1-28 (1951); G. Fitzmaurice, BYblL, pp. 203-238 (1957). Dharm Pratap, Interpretation of Treaties: Use of intrinsic and extrinsic materials, in Agarwala, op. cit. 4, p. 55; S.P. Sharma, The ILC draft and treaty-interpretation with special reference to preparatory works, 8 IJIL 368 (1968).


the treaty in accordance with that sense. In the jurisprudence of the International Court (PCIJ and ICJ), the textual approach to treaty interpretation is regarded as an established law. If that leads to ambiguous or unreasonable results, the Court will resort to other methods.118 In the Competence of the General Assembly case, the Court was asked whether the General Assembly could decide to admit a new State to the United Nations without the recommendation of the Security Council. The Court answered in the negative, basing its opinion on the clear and obvious meaning of Art. 4(2) of the Charter, which provided the new admission to "be effected by a decision of the General Assembly upon the recommendation of the Security Council". In so doing, the Court proceeded on the principle that it ought to give effect to the provisions of a treaty "in their natural and ordinary meaning in the context in which they appear".119 By qualifying the "natural and ordinary meaning" by the words "in the context in which they appear", the Court has removed the element of undue rigidity or restriction which might otherwise be attached to the concept, and provided it the required flexibility.120 The significance of the "context" was demonstrated by the Court in the Competence of the ILO with respect to Agricultural Labour case121 and the Free Zones case122In the Competence of the ILO case, the Court was asked various questions: whether the ILO had the competence to draft regulations dealing with agricultural workers?; was the term "industry" used in many provisions of the ILO constitution limited to the manufacturing industry?; the provision that the Governing Body of the ILO should include representatives from States of "chief industrial importance" be restrictively construed? The Court held that the Treaty must be read as a whole, and that the use of the term "industry" or "industrial" should not be given the restricted meaning to limit the competence of the Organisation. Accordingly, the ILO's competence extends to agricultural workers.In the Free Zones case, the Court was asked to decide whether the customs free zones created in favour of Switzerland by the peace settlement of 1815 and later instruments, stand terminated by Art. 435(2) of the Treaty of Versailles, which found them "no longer consistent with present conditions". In the Court's view, para. 2 could not be read in isolation from para. 1, which made the abrogation of free zones dependent upon "the agreement reached between the French Government and the Swiss Government for the abrogation of the stipulations" relating to the free zones. As the agreement, drafted at the time of the Treaty of Versailles, was not ratified by Switzerland later, the customs free zones still existed. The Vienna Convention reflects this judicial position in Art. 31(1) which states:A treaty shall be interpreted in goodfaith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose._________________118 Op. cit. 11, at p. 220.119 (1950) ICJ Rep., p. 4, at p. 8. The Court also took this approach in Polish Postal Service in Danzig, PCIJ Rep., Series B, No. 11, pp. 16 and 19 (1925); Employment of Women at Night, PCIJ Rep., Ser. A/B, No. 50, p. 373 (1932); Admissions case (1948) ICJ Rep., p. 57. On the limits of the "purely grammatical" approach, see the Aegean Sea Continental Shelf case, op. cit. 15.

120 Here "context" appears to be indistinguishable from the "text of a treaty", see, Dharm Pratap, op. cit. 117, at p. 59, n. 10.121 PCIJ Rep., Series B, No. 2, pp. 39-40 (1922).122 See op. cit. 72.

Page 377 LAW AND PRACTICE OF TREATIES The "context" has been used in a wider sense including the background of the treaty and not confined merely to the text of the treaty.123 Where the "natural and ordinary meaning" of the text of the treaty is clear enough, no tribunal would be prepared to ignore it even if it will produce anomalous consequences or make the treaty ineffective. In the Peace Treaties case,124 where the issue was related to the formation of a commission to hear disputes concerning the "interpretation or execution" of peace treaties concluded between Allied Powers and Bulgaria, Hungary and Rumania in 1947, the Court observed:The breach of a treaty obligation cannot be remedied by creating a Commission which is not the kind of commission contemplated by the Treaties. It is the duty of the Court to interpret the Treaties, not to revise them. The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties, a meaning which ... would be contrary to their letter and spirit.Thus, the Court refused to apply the principle of effectiveness in the face of clear and unambiguous meaning of the text.

B. The Principle of EffectivenessThe Court will resort to other methods of interpretation when the ordinary and natural meaning leads to an ambiguous or unreasonable result. Article 31(1) of the Vienna Convention allows the tribunal to interpret the treaty according to its object and purpose, as a part of its general rule of interpretation for obtaining the ordinary meaning of the term, and taking into account number of factual evidence or legal presumptions of what the parties intended. This is in accordance with the principle of effectiveness, expressed in the maxim ut res magis valeat quam pereat, which requires that the treaty should be given an interpretation which "on the whole" will render the treaty "most effective and useful". When a treaty is open to two interpretations, one of which does and the other does not enable the treaty to have appropriate effects, then goodfaith and the object and purpose of the treaty demand that the former interpretation should be adopted.125 The principle has been most strikingly applied by the International Court in the interpretation of the constitutions of international organisations. In the Free City of Danzig and the ILO case,126 the Court, in order to attain the universality of the ILO membership, discarded the restrictive interpretation of Art. 387 of the Treaty of Versailles that seemed to link membership of the ILO to the membership of the League of Nations. In the Reparation case,127 the Court upheld the capacity of the United Nations, on the basis of duties entrusted upon it by the Charter, to sue a State responsible for causing death or injury to its agent, in the absence of any clear provision to this effect in the Charter._________________123 See Administrative Tribunal of the ILO case, (1956) ICJ Rep., p. 77, at p. 98, where the Court did not confine itself to provisions of the Statute, but also took note of the staff regulations to decide a dispute between the UNESCO and its officials.124 (1950) ICJ Rep., p. 221, at p. 229.125 Op. cit. 11, at p. 219.126 PCIJ Rep., Series B, No. 18 (1930).127 (1949) ICJ Rep., p. 174, at p. 168.

Page 378 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW Similarly, in the Certain Expenses case,128 sending of United Nations Emergency Forces (UNEF) in the Middle East and the United Nations Operations in the Congo (ONUC) by the General Assembly were not found by the Court as ultra vires of the Charter, under which the primary responsibility for the maintenance of international peace and security lies with the Security Council. However, an interpretation which works as a revision of the treaty or leads to any result contrary to the letter and spirit of the treaty does not come within the purview of the principle.129For the application of the principle, circumstances surrounding its conclusion and subsequent practice are relevant. Article 31(3)(b) of the Vienna Convention instructs to take into account, together with the context, "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". The "preparatory work", however, has been relegated to Art. 32, as a supplementary means of interpretation and has thus restricted its import in treaty interpretation and curtailed subjectivity.130

1. Subsequent practiceSubsequent practice has considerable probative value. It is the best and most reliable evidence as to the correct interpretation of the treaty. Its significance was vividly demonstrated in the Competence of the ILO case131 by the Court's decision that "if there was any ambiguity, the Court might for the purpose of arriving at the true meaning, consider the action which has been taken under treaty". The Court took note of the fact that between June 1919 (when the Convention was signed) and October 1921, the subject of agriculture had repeatedly been discussed and had been dealt with in one form or another, and suggested that "this might suffice to turn the scale in favour of the inclusion of agriculture, if there were any ambiguity".The subsequent practice of probative value must be of both or all or, in the case of multilateral conventions, of great majority of parties, jointly or separately to the same effect. The value of practice of just one or few of the parties, however, is less certain. In the view of the ILO, only the practice which establishes the understanding of "the parties as a whole" should be used.132 Acquiescence is also relevant and the practice of one party about which the other has or deemed to have knowledge can, through lack of protest, establish the common interpretation of the treaty.133If the subsequent practice is totally at variance with the clear meaning of the text of the treaty, and in effect, revises the treaty informally, this may amount to the termination of the_________________128 (1962) ICJ Rep., p. 151. The principle has also been applied in the Ambatielos case (1952) ICJ Rep., p.28; South-West Africa case (1950) ICJ Rep., at p. 135s and the Aerial Incident case (1959) ICJ Rep., p.139. The Court also seemed to apply the principle in the US Diplomatic and Consular Staff in Tehran case (1980) ICJ Rep., p. 3 in para. 40.129 South-West Africa cases (2nd phase), (1966) ICJ Rep., p. 6, at p. 48.130 However, Art. 19(a) of the Harvard Draft on the Law of Treaties, 29 AJIL Supp., 655 (1935) emphasized on both the "preparatory work" and subsequent practice to reinforce the principle of "effectiveness", see Dharm Pratap, op. cit. 117, at pp. 60-61.

131 Supra note 121, pp. 39-41.132 Op. cit. 11, at p. 222.133 On acquiescence, see Anglo-Iranian Oil Company case (1952), ICJ Rep., p. 92, at p. 107.

Page 379 LAW AND PRACTICE OF TREATIES original treaty. It is only the subsequent agreement or practice that effects the meaning and operation of the. treaty, is relevant for the purposes of Art. 31(3)(a) and (b). The mention of "any relevant rules of international law applicable in the relations between the parties" (sub-para, (c) of Art. 31(3)) are similarly related to the rules occurring subsequent to the making of the treaty and shall be taken into account for interpretation.

2. Preparatory workThe preparatory work or travaux preparatories is, in general terms, the record of the drafting of a treaty, including records of negotiations between the participating States and, in some cases, records of the work of independent bodies of experts. The unilateral statements by governments prior to or at the time of the negotiations may also be considered as part of preparatory work, though there is a strong opinion against their inclusion.134 Preparatory work may be a manifestation of the common intention of the parties to the treaty.The significance of preparatory work has never been clearly identified in international jurisprudence. The International Court has quite often referred to preparatory work indicating that the sense of the term was not clear according to its natural and ordinary meaning.135 If the relevant provision of the treaty was clear and unambiguous, the Court has excluded the preparatory work.136 But its use has not been authorised without restriction, nor has it been considered as an independent means of interpretation. In the European Commission of the Danube case,137 the Court after stating the principle that the preparatory work could not be referred if the text of the treaty was sufficiently clear in itself, pointed out that if doubt still existed as to the true meaning of the words used, the preparatory work may be referred to confirm the conclusion reached by the Court. In the Employment of Women at Night case,138 the Court referred to the preparatory work of a treaty to confirm the clear meaning of its text. In the River Oder case,139 the Court refused to accept the preparatory work of the Treaty of Versailles, 1919, because all the parties to the case had not participated in the drafting of the Treaty. The Vienna Convention, however, does not contain such a limitation on the use of the preparatory work and the presumption is that a State wishing to join the treaty may request to see it before acceding.Article 32 of the Convention, thus recast the traditional standpoint on preparatory work as reflected in the Court's jurisprudence, but in a different form. It reads:_________________134 McNair, op. cit. 8, p. 421.135 The Court allowed the travaux preparatoires in the cases of the Exchange of Greek and Turkish Populations, PCIJ Rep., Series B, No. 10, p. 9 (1925); Turkey-Iraq Frontier, PCIJ Rep., Series B, No. 12, p. 22; S. W. Africa cases (1962) ICJ Rep., p. 338; and Aerial Incident case, (1959) ICJ Rep., p. 127. See Sharma, op. cit. 117, p. 13, n. 1.136 The Court did not take into account the preparatory work in the following cases: Admissions case, (1948) ICJ Rep., p. 51, at p. 61; Competence of the General Assembly (1950) ICJ Rep., pp. 6-7; AdministrativeTribunal case (1954) ICJ Rep., p. 92; and the S.S. Lotus case, PCIJ Rep., Series A, No. 10, at p. 16 (1927).

137 PCIJ Rep., Series B, No. 14, p. 25 (1927).138 PCIJ Rep., Series A/B, No. 50 (1932).139 PCIJ Rep., Series A, No. 23, p. 40 (1929).

Page 380 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Art. 31, or to determine the meaning when the interpretation according to Art. 31:a. leaves the meaning ambiguous or obscure; orb. leads to a result which is manifestly absurd or unreasonable.The article refers to the "circumstances of the "conclusion" of a treaty, like preparatory work, as a supplementary means of interpretation, which refers to "both the contemporary circumstances and the historical context in which the treaty was concluded".140 According to Art. 32, these supplementary means can be referred to confirm a particular interpretation. However, one can hardly confirm a particular interpretation unless one has recourse to it first. Similarly, what would a court do if the preparatory work, or other supplementary means, resorted to for purposes of confirmation contradicts the clear meaning of the text.The Vienna Convention, by laying down the "General rule of interpretation" (Art. 31) and the "supplementary means of interpretation" (Art. 32), has relegated the preparatory work to a secondary position and lessened its authentic character. It has laid down a hierarchy of a sort, but the application of the means of interpretation would, in fact, be a single combined operation. However, the ILC in this formulation, was motivated by considerations of logic.141

C. Multilingual TreatiesA treaty drawn up in more than one language may, or may not, accord different status to a version in a particular language for the purposes of interpretation. Unless the treaty itself provides or parties agree that a particular language version is authentic, the text is equally authoritative in each language and the terms of the treaty are presumed to have the same meaning in each text (Art. 33(a) and (b)). Nevertheless, sometimes due to the absence of complete consensus ad idem or the different genius of the languages, some discrepancy may result in the meaning of the texts. In that case, the plurality of the texts may be a serious additional source of ambiguity or obscurity of the treaty.In case when the meaning of the terms is clear in one language but ambiguous in the other, plurality of versions helps in facilitating the interpretation by ascertaining the intention of the parties. But where there is a conflict between the two versions, the construction "which best reconciles the texts having regard to the object and purpose of the treaty" should be given (Art. 33(c)).142

IX. AMENDMENT AND MODIFICATION OF TREATIESThe terms amendment, revision, and modification connote the process of altering the provisions of treaties. The term "amendment" is related to the individual provisions of the treaty, whereas_________________140 Op. cit. 11, at p. 59.141 Ibid., at p. 60.

142 In the Mavrommatis Palestine Concessions case, PCIJ Rep., Series A, No. 2 (1926), the French and English version of the Palestine Mandate had a conflict and the Court adopted the more limited interpretation to reconcile both versions according to the "common intention of the Parties".

Page 381 LAW AND PRACTICE OF TREATIES "revision" concerns with the general review of the whole treaty. The ILC has applied the term "amendment" to cover alteration of particular provisions and the general review of the whole treaty, thus covering the "revision" also. On the other hand, "modification" relates to inter-se agreements concluded between certain of the parties, to vary the provisions of the treaty in their mutual relations.The Vienna Convention contains three provisions on the subject. Articles 39 and 40 deal with amendment and Art. 41 deals with the modification of treaties. However, the law enshrined there has its main relevance in multilateral treaties, though the general rule contained in Art. 39, i.e., that a "treaty may be amended by agreement between the parties", is equally applicable to bilateral treaties. This rule is generally applicable, irrespective of a specific provision to this effect in the treaty, except when a treaty creates rights in favour of a third State whose consent may be required for modification or revocation (Art. 37(2)), apart from the cases where the right was intended to be revocable or subject to modification.

A. Procedure for Amending Multilateral TreatiesTreaties are governed by the express provisions for amendment which also prescribe the procedure for amendment. For example, Art. 109 of the United Nations Charter delineates the method for its amendment at a General Conference of the members convened "for the purposes of reviewing" the Charter. The 1968 Nuclear Non-Proliferation Treaty (NPT) similarly provides for review and amendment at the end of 25 years of its coming into force by the parties (Art. 10). Where there is no "express provision", the normal method of amending a treaty is by a unanimous agreement of the parties. The trend, since 1945, is towards allowing amendment of multilateral treaties by a majority vote.Article 40(1) of the Vienna Convention provides that a proposal to amend a multilateral treaty "must be notified to all the contracting States" and each of them has the right to take part in the decision in this regard (Art. 40(2)). "A State entitled to become a patty to the treaty shall be entitled to become a party to the treaty as amended" (Art. 40(3)). However, a State already a party to the treaty, does not become a party to the amending agreement ipso facto. In general, an amendment will bind the parties that have agreed to it, and does not bind the States who have not become parties. As a consequence, between States that have agreed to the amendment and States that have not agreed, the terms of the original treaty remain operative.143 Between the States parties to both the treaty and the amending agreement, the amending agreement would be applicable. However, the constitutions of a number of international organisations contain provisions, according to which the amending agreement, adopted by a majority (of two-thirds members), becomes binding on all the States parties. Article 108 of the United Nations Charter lays down that amendments come into force for "all members" when they have been adopted_________________143 The same principle is applicable, whereby a subsequent agreement a limited number of parties to the original treaty have agreed to modify their legal position inter se. The subsequent agreement cannot modify their rights and duties vis-a-vis States not becoming parties to the amending agreement, see Art. 30(4)(b) of the Vienna Convention.


by two-thirds votes of the members of the United Nations, including all the permanent members of the Security Council.144A State which accedes to the treaty after coming into force of the amending agreement, in the absence of express intention, will be considered to be a party to the treaty as amended, but will be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement (Art. 40(5)).

B. Modification of Multilateral TreatiesTwo or more parties to a multilateral treaty, subject to the provisions of the treaty itself and by giving notice to other parties, can conclude an agreement to modify the treaty as between themselves alone (Art. 41). If the modification in question is prohibited by the treaty and affects the enjoyment by the other parties of their rights under the treaty or performance of their obligations, as well as it relates to a provision derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole (Art. 41(l)(b)), the agreement in question is not permitted.The parties may also modify the treaty by their subsequent practice which is an authoritative evidence of the meaning attributed to its provisions by the parties. For example, Art. 27(3) of the United Nations Charter, by the practice of the members of the Security Council followed since the Korean conflict in June 1950, has been modified to the extent that the abstention by a permanent member is not considered to be a negative vote.145 Modification of the treaty by subsequent practice became relevant in the decision of the Temple of Preah Vihear case.146_________________144 Similar provisions are contained in the constitutions of WHO (Art. 73), ILO (Art. 36), IAEA (Art. 18), UNESCO (Art. 13), Universal Postal Union (Art. 30), Chicago Convention (Art. 94). 145 The Court has accepted this modification in the Namibia case, op. cit. 3, at p. 22. 146 See op. cit. 86. In an arbitral decision between France and the United States as to air routes, which the United States was entitled to use under the Air Transport Services Agreement, 1946, between the two countries, the tribunal said that subsequent practice "is a possible source of a subsequent modification ...having a bearing on the juridical situation of the parties...." The tribunal found that the agreement had been modified in certain respect by subsequent practice (1963-64) 38 ILR 182, at p. 249.

Page 383

CHAPTER 14The Law of the Sea

I. INTRODUCTIONThe law of the sea1 regulates the relations of States, coastal and landlocked, and/or international organisations in respect of areas that are subject to the jurisdiction of the coastal State and those areas of the sea and the sea-bed beyond national jurisdiction. The law governing the sea exists in the codified form at present, which is the outcome of a historical process, started with Grotius in the seventeenth century. Before Grotius, powerful States laid extensive claims of sovereignty over specific portions of the open sea. Grotius championed the doctrine of the "freedom of the seas" because it is impossible for any nation to effectively possess them. They are res gentium or res extra commercium, i.e., they belong to all nations. During this period, the law developed out of well-settled usages culminated into customary law. The hallmark of this law, which was followed up to the middle of the twentieth century, was essentially that of no-regulation and laissez faire and except for territorial waters, the law essentially endorsed the doctrine of "open sea". However, the declaration by the United States President Truman's proclaiming jurisdiction over the continental shelf in 1945 gave a new direction to the law of the sea. Many nations made sweeping claims (sometimes up to 200 nautical miles as their territorial sea) to protect their economic and military interests. These developments stressed the urgency for codification of the law in order to strive uniformity and resolve maritime conflicts among nations.2 The matter was put on the agenda of the International Law Commission (ILC) in 1949.On the basis of the drafts prepared by the ILC, in 1958, the First United Nations Conference on the Law of the Sea took place at Geneva,3 which adopted four conventions, viz., the Geneva Conventions on the Territorial Sea and the Contiguous Zone (Territorial Sea Convention), on the_________________1 See, generally, K.R. Simmonds (Ed.), New Directions in the Law of the Sea (Oceana Publications, New York), 1983; R.P. Anand, Origin and Development of the Law of the Sea (M. Nijhoff, Leyden), 1983; Nordquist (Ed.), United Nations Conventions on the Law of the Sea, 1982: A Commentary (Oceana Publications, New York), 1985; S.P. Jagota, Maritime Boundary (M. Nijhoff, Dordrecht), 1985; J.V.R. Prescott, The Maritime Political Boundaries of the World (Methuen, London), 1985; K. Kittichaisarce, The Law of the Sea and Maritime Boundary Delimitation in South East Asia (Oxford University Press, Oxford), 1987; R.R. Churchill and A.V. Lowe, The Law of the Sea, 2nd ed. (Manchester University Press), 1988; David Anderson, Modern Law of the Sea: Selected Essays (Martinus Nijhoff Publishers) 2007; UN office for Ocean Affairs and the Law of the Sea, Law of the Sea Bulletin. 2 An unsuccessful attempt to codify the law of the sea was made by The Hague Codification Conference in 1930, under the auspices of the League of Nations. 3 The Conference was held between Feb. 24 and April 27, 1958, and 86 nations participated in it.


High Seas (High Seas Convention), on the Continental Shelf (Continental Shelf Convention), and the Fishing and Conservation of the Living Resources of the High Seas (Fisheries Convention).4But the important issues related to the breadth of the territorial sea and the fishing rights of the coastal States beyond their territorial sea were left undecided. A Second Conference on the Law of the Sea was held on March 17-April 27, 1960, at Geneva, but again no agreement could be found on these issues.Together, both these conferences on the Law of the Sea left many matters unsettled, particularly: (i) the precise breadth of the territorial sea; (ii) the question of innocent passage for warships through straits constituting an international maritime highway, and consisting wholly of territorial sea waters; (iii) the right of passage and over-flight in relation to the waters of archipelagos; and (iv) the problem of protection and conservation of certain species. Further, the interests of the land-locked States were also not adequately protected, except the High Seas Convention, which in Art. 3 specifically dealt with their problem of access to the sea.5 It was soon being realised that these conventions were inadequate to meet the new challenges put up by science and technology, which made it possible for States with sufficient resources and know-how to explore and exploit the underwater mineral resources at greater depths of the sea, and the consequential need to prevent the increasing pollution, and the conservation of the fishing resources of the seas. An increasing number of States started proclaiming wider area of the sea as their maritime zone with its attendant problems of innocent passage and over-flight. The land-locked and archipelagic States along with the new Afro-Asian States started clamouring for better deal for them. This made it imperative to reformulate the law of the sea in a composite form to make it conducive to the new interests and demands of all concerned and paved the way to hold the Third Law of the Sea Conference (UNCLOS-III).6The initiative to hold a new conference came from Malta's representative to the United Nations, Arvid Pardo, at whose behest the General Assembly in its XXII Session considered the item concerning the exploitation and uses of the seabed and ocean floor beyond the limits of the present national jurisdiction. He also pressed for the United Nations endorsement that deep seabed resources are the "common heritage of mankind" and the same should be developed in the interests of all nations, with special regard to the needs of developing countries. The move was to secure the mineral wealth of the oceans as well as to avoid the militarisation of the deep seabed.7 This led to the formation of a 42-member Ad hoc Seabed Committee_________________4 For the text of these Conventions, see 52 AJIL pp. 834-865 (1958). All four Geneva Conventions are in force and have been ratified by a large number of States. There are 51 parties to the Territorial Sea Convention, and in force from Sept. 10, 1964; the High Seas Convention has 62 parties, in force from Sep. 30, 1962; the Continental Shelf Convention, with 57 parties, in force from June 10, 1962; the Fisheries Convention has 37 parties, in force from March 20, 1966. India is a party to all these conventions.The Conference also adopted an Optional Protocol concerning the Compulsory Settlement of Disputes by the International Court of Justice, or, if the parties so prefer,

for submission of the dispute to arbitration or conciliation. There are 37 parties to the Protocol and is in force.5 At the behest of 1964 UNCTAD I resolution, the UN Conference on the Transit Trade of Land-Locked Countries was convened at New York from June 7 to July 8, 1965, which led to the adoption of the Convention on the Transit-Trade of Land-Locked States (Transit Trade Convention), 58 States participated in it.6 Over 150 countries participated in the UNCLOS-III.7 See UN Doc. A/6695 (1969).

Page 385 THE LAW OF THE SEA (later enlarged to an 86-member body) to consider all aspects of the law of the sea. On December 17, 1970, the General Assembly adopted a Declaration of Principles Governing the Seabed and Ocean floor, and the Sub-soil thereof, beyond the limits of National Jurisdiction,8 which proclaimed that the exploitation of these areas should be carried out for the benefit of the mankind as a whole. After extensive preparatory work, the first session of UNCLOS-III was held in December 1973 at New York. At the end of nine years in 12 sessions, the Conference adopted the Law of the Sea Convention in 1982.9 Though it was agreed in its second session at Caracus (Venezuela) that all the provisions as well as the complete text of the Convention would be accepted by consensus with a view to increase their acceptability and "there shall be no voting ... until all efforts at consensus have been exhausted",10 the draft text of the Convention was adopted through voting in the eleventh session of the Conference.11 The Convention was signed at the twelfth session held at Montego Bay (Jamaica) on December 10, 1982.12 The Convention entered into force on November 16, 1994, in accordance with Art. 308(1), twelve months after 60 ratifications and accessions were deposited.The Convention consists of 320 Articles spread Over 17 parts and nine annexes. Apart from these, there are four resolutions13 and the Statement of Understanding Concerning a Specific Method to be used in Establishing the Outer Edge of the Continental Margin, adopted by the Conference, and contained in the Final Act. Together, the Convention comprises the ground covered by the four Geneva Conventions of 1958, and creates some new regimes. In fact, many of the provisions repeat verbatim or in essence the provisions of the Geneva Conventions, or give more detailed rules on matters covered by them. It contains provisions on those matters on which I and II Law of the Sea Conferences failed and created the new legal regimes of Exclusive Economic Zone (EEZ) and the deep seabed. It has laid down a 12-nautical mile limit for the territorial sea; provision for transit passage through international straits; increased rights for_________________8 See GA Res. 2749(XXX) Dec. 17, 1970.9 UN Doc. A/CONF. 62/122; 21 ILM 1261 (1982). Conference also adopted a Final Act, along with a resolution and a Statement of Understanding, see Doc. A/CONF. 62/121, and Corr. 1 to 8.10 See Final Act of the Conference, ibid., pp. 13-14. On consensus rule at UNCLOS-III, see Daniel Vignes, 69 AJIL 119 (1975); Barry Buzan, 75 AJIL 324 (1981).11 The text was adopted with 130 States voting in favour, four against it (the United States, Israel, Turkey and Venezuela) and 17 States, including seven West European States: Britain, Germany, Belgium, Italy, Spain, Luxemburg, the Netherlands, eight East European States including the Soviet Union as well as Mongolia and Thailand abstained. Voting was the result of the US Government's complete volte-face, which asked for more time to review the draft text at the 10th Session, and after being-unable to get through with the desired changes in the draft, demanded vote.12 119 States (including USSR) signed it and 22 States, including USA, UK, West Germany did not sign it. However, in the permitted period up to Dec. 9, 1984, 159 States and entities signed it. Out of the 159 States, 155 signatories were the members of the UN while four others: Cook Islands, EEC, Namibia and Niue were not. Presently, there are

158 States and the European Community parties to the Convention. The USA has not yet ratified it.13 Res. I established the Preparatory Commission for the Seabed Authority and the Law of the Sea Tribunal; Res. II governs preparatory investment in pioneer activities by States and private consortia relating to polymetallic nodules (popularly known as manganese nodules in the deep sea areas); Res. III deals with the rights and interests of the non-self-governing territories; and Res. IV grants the right to sign the Final Act to recognised national liberation movements as observers.

Page 386 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW archipelagic and landlocked States; wider control of the coastal State over marine pollution, marine environment, and fisheries conservation; delineation of 200 nautical miles EEZ for coastal States; and provisions for the exploitation of the deep seabed mineral resources. Further, the Convention contains detailed machinery for the settlement of disputes, including an International Tribunal for the Law of the Sea with its seat at Hamburg (Art. 287 and Annex VI). It also provides for the compulsory judicial settlement of most of the disputes that may arise under the Convention, at the request of one of the parties to the dispute (Art. 286).14 The 1958 Conventions, on the other hand, do not have such a provision, and merely have the Optional Protocol, that was adopted along with these Conventions.15The Convention, even before formally coming into force, was accepted as a part of general international law, barring its disputed provisions relating to deep seabed regime. In the Gulf of Maine case,16 the Chamber of the International Court of Justice noted that though the Convention has not yet come into force and many States do not appear inclined to ratify it but "certain provisions of the Convention concerning the Continental Shelf and the Exclusive Economic Zone ... were adopted without any objections ... these provisions, even if in some respects they bear the mark of the compromise surrounding their adoption, may nevertheless be regarded as consonant at present with general international law on the question". In the case Concerning the Continental Shelf between Libya and Malta,17 the Court observed that "the 1982 Convention is of major importance, having been adopted by an overwhelming majority of States; hence it is clearly the duty of the Court... to consider in what degree any of its relevant provisions are binding upon the parties as a rule of customary international law", and noted that the provisions on the continental shelf (Arts. 76 to 83) reflect the customary law of the continental shelf.18The Convention lays down the machinery for the settlement of disputes, including an International Tribunal for the Law of the Sea, with its seat at Hamburg, Germany (Art. 287 and Annex VI). In 1994, the New York Implementing Agreement was adopted, which amended Part XI of the Convention, to meet the objections of developed countries against the Convention regime on the deep sea-bed. The Agreement addresses the concerns of developed countries, particularly of the United States on mining the deep seabed resources.The Convention is a major achievement in the codification of the law of the sea and its ambit is very wide. The significant aspects of the Convention will be dealt with here in a condensed manner, along with the 1958 Geneva Conventions and customary rules will also be referred._________________14 Disputes concerning the exercise by a coastal State of its sovereign rights, powers and jurisdiction are expressly excluded from compulsory jurisdiction (Art. 297). A contracting State may also exclude from compulsory jurisdiction disputes pertaining to territorial sea, continental shelf, EEZ, boundary disputes, disputes concerning military activities and disputes before the Security Council by making a declaration to this effect, and, thus, virtually leaving a very small area for compulsory judicial settlement under theConvention.

15 See op. cit. 4; 52 AJIL 862 (1958). See also G. Fitzmaurice, 8 ICLQ 73 (1959).16 (1984) ICJ Rep., p. 246, at p. 294.17 (1985) ICJ Rep., p. 13, at p. 30.18 In the Nicaragua case (1986) ICJ Rep. p. 14 at p. III, the Court stated that the Convention codifies the rule of right of innocent passage.

Page 387 THE LAW OF THE SEA II. MARITIME BELT OR TERRITORIAL SEA19Maritime belt or territorial sea is that part of the sea which is adjacent to the coastal State and which is bounded by the high seas on its outer edge. The coastal State exercises its sovereignty over this area as it exercises over its internal waters. The sovereignty extends to the airspace over the territorial sea as well as to its bed and sub-soil.20 This sovereignty accrues to a State under customary international law which no State can refuse.21 However, the generally held view which finds expression in the 1982 Law of the Sea Convention (herein referred as 1982 Sea Convention) and the 1958 Territorial Sea Convention is that the sovereignty over this area has to be exercised subject to the provisions of the conventions and "to other rules of international law",22 which provide certain rights to other States, particularly right of "innocent passage" in the territorial waters of a State. Nonetheless, though these rights are well-established under the customary international law, the delimitation of the territorial sea remained a principal subject of controversy prior to the 1982 Sea Convention. Even though delimitation is necessarily a unilateral act of a coastal State, it has an international aspect and its validity with regard to other States depends upon international law.23

A. Breadth of the Territorial SeaUnder customary international law, the breadth of the territorial sea has remained a thorny issue. It is a generally held view that at the turn of the century, there existed a three-mile limit as a rule of general application, which is said to be propounded by the Dutch Jurist Bynkershoek. The three-mile rule, popularly known as "canon-shot" rule, had a rationale that a State's sovereignty extends to the sea as far as a canon could reach or fire (and hence protects the State's sovereignty). The three-mile limit represented roughly the maximum range of a canon in the eighteenth century. However, in 1930, at the Hague Codification Conference, the three-mile rule was clearly rejected, though no agreement could be achieved on any alternative rule.24 At the 1958 Geneva Conference on the law of the sea also, divergent positions were taken by the States. Many States wanted to extend it up to six nautical miles from the coast, which led to no agreement on this issue.25 Before the 1982 Sea Convention was concluded, States proclaimed varying breadth of the territorial sea, generally ranging from 3 to 12 miles,_________________19 The ILC, in its fourth session, while in the process of codifying the law on the sea, expressed a preference for the term "territorial sea", in place of the term "maritime belt" or "territorial waters" to denote the coastal strip of the sea subject to the sovereignty of the littoral State.20 See Art. 2 of the 1982 Sea Convention and Arts. 1-2 of the 1958 Territorial Sea Convention.21 See Judge McNair's dissenting opinion in the Anglo-Norwegian Fisheries case (1951), ICJ Rep., p. 116 at p. 160; see also Grisbidarna case (Norway v. Sweden), in A.W. Scott, Hague Court Reports, p. 121 at p. 127 (1909).22 Article 2(3) of the 1982 Sea Convention and Art. 1(2) of the 1958 Territorial Sea Convention. 23 See Anglo-Norwegian Fisheries case, op. cit. 21.

24 The Conference also did not favour the concept of "contiguous zone", but this was endorsed by subsequent conferences on the law of the sea.25 At the time of II Law of the Sea Conference in 1960, 22 States claimed three miles, 18 claimed 4-10 miles, 11 claimed 12 miles, and two claimed more than 12 miles.


though in certain cases they had proclaimed wider areas than that, and in few cases up to 200 nautical miles.26 But at the UNCLOS-III, claims wider than 12 miles did not find favour and the 12-mile rule was accepted by the Conference, which may be considered the present customary international law position.27Article 3 of the 1982 Sea Convention limits the breadth of the territorial sea to 12 nautical miles "measured from baselines determined in accordance with this Convention" (i.e., Arts. 4-7). Two methods have been laid down for measuring the breadth of the territorial sea: the low-water line and the straight baseline. The normal method used is the low-water line as marked on large scale charts officially recognised by the coastal State.28 However, in the case of islands situated on atolls or in islands having fringe reefs, the baseline is the seaward low-water mark of the reef as shown by the appropriate symbol on charts officially recognised by the coastal State29 But where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the straight baseline method joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.30 No objective tests provided of what constitutes a "deeply indented and cut into" coastline, how is a "fringe" of islands defined and at what distance offshore is in such a fringe of islands in the coastline's immediate vicinity? In fact, the imprecise language of Article 7 made it possible any coastal country to draw straight baselines along its coast.The method of straight baseline was enunciated by the Anglo-Norwegian Fisheries case1' {Fisheries case), which had a decisive effect on the baseline issue. In this case, Norway, which has a fringe coastline, by its 1935 Decree proclaimed exclusive fishery zone (meant territorial sea) along almost 1000 miles of its coastline north of certain latitude (66° 28.8' North). The zone, which was four miles wide, measured not from the low-water mark but from straight baselines linking some 48 outermost points of islands and lands or "Skjaergaard" (i.e., rock-ramparts), at a considerable distance from the coast. By using the straight baselines, some of which were 30 miles long and the longest was 44 miles, Norway could enclose waters within its territorial sea that would have been the high seas, and hence open to foreign fishing. The United Kingdom, whose fishing interests were affected by this Decree, challenged the legality of the straight baseline system adopted by Norway and the choice of certain baselines used in applying it. The Court upheld the method applied by Norway in drawing the baselines and it also did not reject the criterion of low-water mark. But the application of straight baselines is "dictated by geographical realities".It was propounded by the judgment that where a State has a rugged coastline, deeply indented, or if there is a fringe of islands in the immediate vicinity, the straight baseline, joining the low_________________26 200 miles maritime belt was proclaimed by five African and eight Latin American States, including Chile, Peru and Ecuador, see 6 ILM 663 (1967).27 On the basis of information, by the end of 2003, 182 States and territories, including India, claimed the 12-miles limit of territorial sea, 15 States/territories claimed three miles; 4 claimed between 4-6 miles, one up to 30 miles and 6 claimed more than that.

28 See Art. 5 of the 1982 Sea Convention and Art. 3 of the 1958 Territorial Sea Convention.29 Article 6 of the 1982 Sea Convention.30 Article 7 of the 1982 Sea Convention and Art. 4 of the Territorial Sea Convention.31 Op. cit. 21.

Page 389 THE LAW OF THE SEA water at appropriate points, is admissible, provided: (i) the drawing of baseline must not depart to any appreciate extent from the "general direction" of the coast; (ii) the areas lying within the baselines are sufficiently closely linked to the adjacent land domain; and (iii) the economic interests as evidenced by long established usage, peculiar to a particular region concerned, must be taken into account, before the straight baseline method is allowed to be followed by a coastal State.32The waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. But where the effect of implementing straight baseline has been enclosing internal water areas which previously had been considered as part of the territorial sea or of the high seas, there shall exist right of innocent passage in such waters.33The principles laid down in the Fisheries case relating to straight baselines are to be followed in drawing baselines except those of low-tide elevations, unless the lines drawn in such circumstances have received "general international recognition".34 Where, because of the presence of a delta and other natural conditions, the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water mark. The system of straight baselines is not to be applied in a manner as to cut off the territorial sea or an EEZ of another State from the high seas. The straight baselines followed by a State would have to be duly notified and marked on charts.The coastal State is free to determine its baselines by any of the methods to suit different conditions.35 In the Maritime Delimitation in the Black Sea case, the ICJ stated that "the coastal State, in conformity with the provisions of Articles 1,9, 10, 12 and 15, UNCLOS may determine the relevant base points" although it is nevertheless an exercise that always has an international aspect.36 The Convention has laid down specific rules for the territorial waters of the bays, archipelago and islands.1. BaysThe 1982 Sea Convention and the 1958 Territorial Sea Convention have specific provisions on the territorial waters of bays. Article 10 of the 1982 Convention and Art. 7 of the 1958 Territorial_________________32 Ibid., at pp. 128-130.33 Article 8 of the 1982 Sea Convention corresponding to Art. 5 of the 1958 Territorial Sea Convention.34 "Low tide" elevation is a "naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide", Art. 13 of the 1982 Sea Convention.35 The straight baselines method is now increasingly being used by nations, 92 out of the 151 coastal and archipelagic States have claimed straight or archipelagic baselines along all or part of their coasts, without observing the limitations as to their use in Art. 7 of the 1982 Sea Convention (Art. 4 of the 1958 Convention). This method has been the subject of criticism due to its abuse as it is now possible to draw a straight baseline along any section of a coast in the world and cite an existing baseline as a precedent, see J.N.R. Prescott, Maritime Boundaries and Ocean Resources (G. Blake, (Ed.)), Croom Helm London), 1987, p. 38, at pp. 38-39; Harris, Cases and Materials on International Law, 7th

ed. (Sweet & Maxwell) 2010, p. 335. However, the exceptional character of straight baselines was stressed by the ICJ in Qatar v. Bahrain case (2001) ICJ Rep., p. 40, and the Court did not allow Behrain to apply the method of straight baselines.36 Maritime Delimitation in the Black Sea case (Romania v. Ukraine) (2009) ICJ Rep., para 137.


Sea Convention deal with bays the coasts of which belong to a single State. This obviously leaves out the historic bays37 (Art. 7(6)) and those bordered by more than one State.38 For the purposes of the Convention, a bay is defined as "a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast" and the area of the curvature should be "as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation" (Art. 7(2)). Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths; islands within an indentation shall be included as if they were part of the water area of the indentation (Art. 7(3)). If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 miles, a closing line may be drawn between these two low-water marks so as to render enclosed waters as internal waters and consequently there is no right of innocent passage through it. But where the distance between the two marks exceeds 24 miles, a straight baseline of 24 miles within the bay shall be drawn so as to enclose the maximum area of water that is possible with such a line (Art. 7(5)).In the Fisheries case, Great Britain contended that straight baselines could not be drawn across bays and, under customary international law, the length of straight lines must not exceed 10 miles. The Court discounted these arguments and observed that State practice does not justify the formulation of any general rule in this matter and "apart from any question of limiting the lines to 10 miles, it may be that several lines can be envisaged. In such cases, the coastal State would seem to be in the best position to appraise the local conditions dictating the selection".39

2. ArchipelagosThe 1982 Sea Convention has created the new regime of an archipelagic State (Arts. 46-54), which is defined as "a State constituted wholly by one or more archipelagos and may include other islands" (Art. 46(a)). The "archipelago" is "a group of islands, including parts of islands, interconnecting waters, and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such".40 In their case, the method of straight baselines is adopted to measure the territorial sea. These lines would be drawn by joining the outermost points of the outermost islands and drying reefs of the archipelagos and may "not exceed 100 nautical miles, except up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum of 125 nautical miles." They are_________________37 For example, Gulf of Foncesa in South America, surrounded by Nicaragua, Honduras and El Salvador, which is about 19 miles wide across its mouth is a "historic" bay possessed by the characteristics of a closed sea, see El Salavador v. Nicaragua, 11 AJIL674 (1917). The case was decided by the Central American Court of Justice.38 For example, Gulf of Aqaba in the Red Sea is bordered by Egypt, Jordan, Saudi Arabia and Israel.

39 See Fisheries case, op. cit. 21, at p. 131.40 Excluding UK and Japan, who are not entitled to be treated as archipelagic States because they are not "mid ocean" States but have "off-lying archipelagos", there are about 30 such States, principal ones are: Indonesia, Philippines, Bahamas, Fiji, Maldives, Mauritius, Papua-New Guinea, and Cape Verde.

Page 391 THE LAW OF THE SEA subject to certain conditions, i.e., (i) the baselines should not depart to any appreciable extent from the general configuration of the archipelago; and (ii) if part of the archipelagic waters lie between two parts of an immediately adjacent neighbouring State, the traditionally exercised rights and legitimate interests of such later State in the waters, and all rights stipulated by agreement between the two States shall continue and be respected (Art. 47).In "archipelagic waters" thus formed, the archipelagic State has sovereign rights (Art. 49) with the right of innocent passage (Art. 52), the right of sea-lanes passage and air-routes above these lanes for other States (Art. 53).41 However, the right of innocent passage may be suspended for security reasons (Art. 52(2)), but it is doubtful whether the right of archipelagic sea-lanes can be suspended. Further, the archipelagic State is under an obligation to respect the existing agreements, "recognise traditional fishing rights" and "respect existing submarine cables" (Art. 51(1) and (2)).

3. IslandsAn island has been defined as a "naturally-formed area of land, surrounded by water, which is above water at high tide",42 and thus excludes artificial islands, installations and structures.43 The territorial sea of an island is decided in the same manner as the territorial sea of mainland territories and the system of straight baselines as envisaged in the Fisheries case would be followed, particularly when they have fringed reefs. Article 6 of the 1982 Sea Convention states, "in the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea, is the seaward low water line of the reef as shown by the appropriate symbol on charts officially recognised by the coastal State".

B. Delimitation of the Territorial SeaThe delimitation of the territorial sea between two States opposite or adjacent to each other can take place in accordance with an agreement between them, failing which the median line, every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. This rule is not applicable in the cases of "historic title" or other special circumstances.44However, for the purposes of delimitation of the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast, but artificial islands, off-shore installations or structures are not to be considered as part of permanent harbour works.45 Roadsteads, normally used for the loading, unloading and_________________41 At the time of signing the 1982 Sea Convention, Philippines equated archipelagic waters to internal waters. This declaration was objected by Australia, USSR, Ukranian SSR and Byelorussia. See UN Doc. ST/LEG. E/7, p. 764.42 See Art. 10 of the 1958 Territorial Sea Convention and Art. 121 of the 1982 Sea Convention.43 Article 60(8) of the 1982 Sea Convention states: "artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their

own, and their presence does not affect the delimitation of the territorial sea, the Exclusive Economic Zone or the continental shelf."44 See Art. 15 of the 1982 Sea Convention and Art. 12 of the Territorial Sea Convention.45 See Art. 11 of the 1982 Convention and Art. 8 of the 1958 Territorial Sea Convention.

Page 392 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW anchoring of ships, and which might be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.46 In the case of low-tide elevation, if situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. Where it is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.47

C. Rights of other States in Territorial SeaIn the territorial sea, the coastal State enjoys all the rights and duties inherent in sovereignty, and the right to regulate this regime. Other States also enjoy certain privileges associated with the right of innocent passage.The customary international law recognises the right of innocent passage for ships of all States through the territorial waters of a State but no such right exists for aircrafts in the airspace over the territorial waters. Article 17 of the 1982 Sea Convention gives effect to this rule and provides that "ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea".48 No right of innocent passage exists through internal waters.49

1. Innocent passageThe term "passage" has been defined in Art. 18 of the 1982 Convention as follows:1. Passage means navigation through the territorial sea for the purpose of:a. traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; orb. proceeding to or from internal waters or a call at such roadstead or port facility.2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.50These provisions correspond to the customary international law.51_________________46 See Art. 12 of the 1982 Convention and Art. 9 of the 1958 Territorial Sea Convention.47 See Art. 13 of the 1982 Convention and Art. 11 of the 1958 Territorial Sea Convention.48 For the rules regulating the innocent passage, see Arts. 14-23 of the 1958 Territorial Sea Convention and Arts. 17-32 of the 1982 Sea Convention.49 In the Nicaragua case (Merits) (1986) ICJ Rep. 14 at p. 111, the Court stated that by "virtue of its sovereignty ... a coastal State may regulate access to the ports". On the other hand, in Saudi Arabia v. Aramco, 27 ILR 117 at p. 212 (1963), the arbitrator asserted that "the ports of every State must be open to foreign vessels and only be closed when the vital interests of the State so require". O'Connell denies this right for the access to the ports, see D.P. O'Connell, International Law of the Sea, Vol. I (Clarendon Press, Oxford), 1982, p. 347.

50 Compare Arts. 14(2) and 14(3) of the 1958 Territorial Sea Convention.51 In Nicaragua case, op. cit. 48, the Court observed that "foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters...."

Page 393 THE LAW OF THE SEA

Passage to be "innocent" must not be prejudicial to the peace, good order or security of the coastal State and should be in conformity with the Convention and other rules of international law (Art. 19(1) of the 1982 Convention). The passage to be considered innocent, of foreign fishing vessels, their conduct should be according to the laws and regulations made by the coastal State for fishing purposes in territorial sea.52 The Convention elaborates the acts which are considered to be prejudicial to the security, good order and peace of a coastal States. They are:a. any threat or use of force against the sovereignty, territorial integrity or political independenceof the coastal State...;b. any exercise or practice with weapons of any kind;c. any act aimed at collecting information prejudicial to the defence of the coastal State;d. any act of propaganda aimed at affecting the defence or security of the coastal State;e. the launching, landing or taking on board of any aircraft;f. the launching, landing or taking on board of any military device;g. the loading or unloading of any commodity, currency, or person contrary to the custom, fiscal, immigration or sanitary laws and regulations of the coastal State;h. any act of wilful and serious pollution ...;i. any fishing activities;j. the carrying out of research or survey activities;k. any act aimed at interfering with any systems of communication or any other facilities orinstallations of the coastal State; l. any other activity not having a bearing on passage (Art. 19(2)).If compliance by a foreign vessel with the requirements of the right of passage is in doubt, logically the burden of proving non-innocence seems to rest with the coastal State.53

2. Passage of warships54The right of passage of warships through territorial waters has always remained controversial though majority of States require prior authorisation for the warships. The 1982 Convention and the 1958 Territorial Sea Convention also do not help in solving this problem. Under these conventions, vessels entitled to innocent passage are "ships of all States" without making a distinction between merchant, public or warships. Consequently, it is doubtful whether this right is available to warships ipso facto, or only on prior authorisation of or notification to the coastal State. The submarines, however, are required to navigate on the surface.55 Warships have the_________________52 See Art. 14(5) of the 1958 Territorial Sea Convention. This provision has been omitted from the 1982 Convention, but "fishing activities" would render the passage non-innocent (Art. 19(2)(i)).53 O'Connell, op. cit. 49, at p. 273.

54 "Warship" means a ship belonging to armed forces of a State bearing the external marks distinguishing such a ship of its nationality, under the command of an officer commissioned by the government of the State, and manned by a crew which is under regular armed forces discipline, Art. 29 of the 1982 Sea Convention.55 See Art. 20 of the 1982 Sea Convention.

Page 394 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW right of passage through international straits, as decided in the Corfu Channel case.56 The 1982 Sea Convention has accorded warships the "transit passage" in straits (Art. 38).The only provision in the 1958 Territorial Sea Convention, Art. 23 entitled "Rule applicable to warships", provides that "[i]f any warship does not comply with the regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea". It merely makes the warships subject to local laws and regulations of the coastal State. The 1982 Convention does not contain any provision expressly allowing or denying a right of innocent passage to warships. A provision (Art. 23) on nuclear powered ships is incorporated which states that "foreign nuclear powered ships and ships carrying nuclear or other inherently dangerous or noxious substances, shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements".57 Thus, this is not innocent in itself.

3. Passage through straitsUnder customary international law, foreign ships have the right of passage through international straits. This right cannot be suspended on grounds of security in a part of territorial sea that is an international strait used for navigation from one part of the high seas to another. This rule was recognised in the Corfu Channel case58 and Art. 16(4) of the 1958 Territorial Sea Convention. The 1982 Convention, instead, recognises the right of "transit passage"59 through straits used for international navigation between one part of the high seas or an EEZ and another part of the high seas or EEZ (Art. 37), except when the strait is formed by an island of a State bordering the strait and its mainland, and there exists seaward of the island a route through the high seas or through an EEZ with respect to navigational and hydrographical characteristics. In such circumstances, the right of innocent passage would exist, which cannot be suspended (Art. 45).The right of "transit passage" through international straits is available to "all ... aircraft" (Art. 38(1)) including military and State aircrafts as well as to warships, as is established under the customary international law and the Corfu Channel case. It appears to allow underwater transit by submarines, though there is no express provision to this effect in the 1982 Convention.In "transit passage", the ships and aircraft are required to comply with certain conditions, akin to those pertaining to territorial sea, viz., to proceed without delay through or over the strait; to refrain from the use or threat of force against States bordering the strait, and from non-transit activities, unless rendered necessary by force majeure or by distress, and should comply with international safety standards at sea or in the air. But, on the whole, the coastal State is given fewer powers than in the case of territorial sea (Arts. 41-42 of the 1982 Sea_________________56 (1949) ICJ Rep., p. 4.57 Compare Art. 17 of the 1958 Territorial Sea Convention.58 See op. cit. 56.

59 "Transit passage" means the exercise of the freedom of navigation and over-flight solely for the purpose of continuous and expeditious transit of the strait, which does not preclude passage through the strait for the purpose of entering, leaving or returning from a bordering country (Art. 38).


Convention). States bordering straits are to cooperate for the regulation and improvements of straits, including curbing pollution from ships. The bordering States are under a duty not to hamper or suspend transit passage, and are required to give due publicity to any danger to sea or air navigation of which they have knowledge.60

D. Rights and Duties of the Coastal State in Territorial SeaThe coastal State has the right to make laws to regulate the territorial waters. It can adopt laws and regulations governing innocent passage, and to prevent passage which is not innocent. This may be related to the safety of navigation; protection of navigational aids, cables and pipelines; conservation of living resources of the seas; prevention of illegal fisheries; prevention of customs, fiscal, immigration and health offences; preservation of the coastal State's environment, and marine scientific research. Foreign ships in innocent passage are required to comply with all such laws and regulations, framed by the coastal State, and other common international regulations for the prevention of collisions at sea.61 In the interest of navigational safety, a coastal State may designate sea lanes and prescribe traffic separation schemes, particularly for tankers, nuclear-powered vessels and ships carrying hazardous substances (Art. 22 of the 1982 Convention), which must carry documents and observe precautionary measures laid down for them by international agreements (Art. 23).The coastal State is required not to hamper or impair innocent passage or to apply rules and regulations in this regard in a discriminatory manner.62 Nevertheless, the coastal State is empowered to "take the necessary steps" to prevent non-innocent passage.63 But these "necessary steps" have not been defined except that of suspending the passage temporarily in specified areas of the territorial sea, if such suspension is essential for the security of the coastal State. However, such suspension will take effect only after being duly published. Such steps may include the use of reasonable force as a last resort,64 and this is particularly so against warships.65The coastal State may not levy any charge upon foreign ships by reason only of their passage through the territorial sea, except non-discriminatory charges for specific services rendered to the ship.66

E. Criminal and Civil Jurisdiction of the Coastal StateThe coastal State's criminal and civil jurisdiction extends to the territorial sea. The extent to which this can be exercised on board a foreign merchant or public (governmental) ship, operated commercially, passing through the territorial sea has been defined in the Convention.67_________________60 See Art. 44 of the 1982 Sea Convention. It is in line with Corfu Channel case, op. cit. 55. 61 See Art. 21 of the 1982 Sea Convention and Art. 17 of the 1958 Territorial Sea Convention. 62 See Art. 24 of the 1982 Sea Convention, and Art. 15(1) of the 1958 Territorial Sea Convention. 63 See Art. 25(1) of the 1982 Sea Convention and Art. 16(1) of the 1958 Convention.

64 Cf. I'm Alone case (Canada v. US) 29 AJIL326 (1935). 65 See, O'Connell, op. cit. 49, Vol. II (1984), p. 297.66 See Art. 26 of the 1982 Sea Convention and Art. 18 of the 1958 Territorial Sea Convention. 67 Articles 27-28, and Arts. 19-20 of the 1982 and 1958 Conventions respectively.


1. Criminal jurisdictionThe coastal State is not empowered to exercise criminal jurisdiction on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, except in the following cases:a. if the consequences of the crime extend to the coastal State;68b. if the crime is of a kind to disturb the peace of the country or the good order of theterritorial sea;c. if the assistance of the local authorities has been requested by the master of the ship,or by a diplomatic agent or consular officer of the ship's flag State; ord. if such measures are necessary for the suppression of the illicit traffic in narcotic drugs or psychotropic substances.69 The coastal State, in the above cases, may exercise the right of arrest or investigation on board a foreign ship passing through the territorial sea, even if the ship has left the internal waters (Arts. 27(2) and 19(2) of the 1982 and 1958 conventions respectively). This provision presumably accepts the jurisdiction of the coastal State.While the ship is in the internal waters, or docked in the port of the coastal State, the same rules applies and the coastal State cannot exercise its jurisdiction unless "the offence leads to a disturbance of the peace of the port" or "of a character to disturb the peace and tranquility of the country".70The coastal State, however, may not exercise criminal process or undertake any criminal, investigation on board a foreign ship in the territorial sea relating to a crime committed before its entry there, except that when the coastal State is dealing with the EEZ or the protection of the marine environment. Regard must be paid to the interests of navigation in determining the arrest and its manner.

2. Civil jurisdictionIn the matter of civil jurisdiction, the coastal State is not to stop or direct a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. Nor may it levy execution or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the coastal State's waters. These prohibitions, however, are not prejudicial to the coastal State's right to take measures of civil process against a foreign ship in the territorial sea after leaving internal waters.71These rules relating to civil and criminal jurisdiction over foreign vessels, as mentioned above, are not applicable to warships. A warship not complying with the coastal State's laws_________________68 The examples of consequences of the crime extending to the coastal State are of smuggling, illegal immigration, pollution and violation of security laws.69 See Pianka v. The Queen (1979) AC 107 (PC), where the ship was found carrying drug Ganja.

70 See R. v. Anderson, 11 Cox's Criminal Cases 198 (1868); Wildenhaus case 120 US 1 (1887).71 See Art. 28 and Art. 20 of the 1982 and 1958 Conventions respectively.


and regulations concerning passage through the territorial sea and disregarding a request for compliance thereto, may be required to leave the territorial sea immediately.72 If any damage occurs to the coastal State due to the non-compliance with laws or regulations or due to the breach of the Convention or other rules of international law by a warship or other governmental ship operated for non-commercial purposes, the flag State is to bear the "international responsibility" for the same. (Art. 31 of the 1982 Sea Convention). Barring these provisions in the Convention (Arts. 17-26 and 30-31 in the 1982 Convention), the immunities of the warships are not to be affected otherwise.

F. Indian Position on Territorial WatersIndia has a 4000 mile long coastline, with over 1280 islands and islets, including the archipelagos of Andaman, Nicobar and Lakshadweep. India's position in relation to the law of the sea is generally governed by Art. 297 of the Constitution of India, and the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (The Maritime Zones Act). In 1955, the President of India proclaimed the Continental Shelf of India and Art. 297 was amended in 1963 (Constitution (15th Amendment) Act) to this effect, which was further amended by the 40th Amendment in 1976, which inter alia provides that:1. All lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union of India and be held for the purposes of the Union.2. All other resources of the exclusive economic zone of India shall also vest in the Union and be held for the purposes of the Union.3. The limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime zones of India shall be such as may be specified, from time to time, by or under any law made by Parliament.This led to the enactment of the Maritime Zones Act, 1976.Till 1956, the limit of territorial waters of India was upto three miles and in that year, it was extended to six miles by a Presidential Proclamation. It was further extended to 12 miles in 1967, through another Proclamation.The Maritime Zones Act proclaims the sovereignty of India over the territorial waters of India and the seabed and sub-soil underlying and the airspace over such waters (Sec. 3(1)). The limit of the territorial waters is the line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate baseline (Sec. 3(2)). All foreign ships (other than warships including submarines and other underwater vehicles) are given the right of innocent passage through the territorial waters (Art. 4(1)). Passage is innocent so long as it is not prejudicial to the peace, good order or security of India. However, foreign warships, including submarines and other underwater vehicles, may enter or pass through the territorial waters by giving prior notification to the Central Government. Submarines and other underwater vehicles are to navigate on the surface and show their flags when passing through such waters. The Central Government, if satisfied that it is necessary in the interests of peace, good order_________________72 Cf. Art. 23 of the 1958 Territorial Sea Convention.

Page 398 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW or security of India or any part thereof, may suspend the innocent passage, absolutely or subject to certain exceptions or modifications, by notification made in the official gazette. The position of India in this regard is thus in accordance with the 1982 Convention.

III. CONTIGUOUS ZONEContiguous zone is a belt of sea beyond and adjacent to the limits of the territorial sea of the coastal State. It is not subject to the sovereignty of the littoral State but within which the littoral State could exercise certain rights of jurisdiction and policy. According to Art. 33 of the 1982 Sea Convention (Art. 24 of the 1958 Territorial Sea Convention), a coastal State may exercise control in its contiguous zone "necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b) punish infringement of the above regulations committed within the territory or territorial sea”.73The contiguous zone may not extend beyond 24 miles from the baselines from which the breadth of the territorial sea is measured (Art. 33(2)). However, contiguous zone is not appurtenant as in the case of the territorial sea, it must be claimed by the State. There is a little State practice relating to such zones and me standard works do not contain any reference to them. The contiguous zone found its mention for the first time in the 1930 Hague Codification Conference.India's position on contiguous zone is in conformity with the above provisions. Section 5 of the Maritime Zones Act proclaims 24 miles from the baselines, as the extent of contiguous zone and the Government of India is authorised to take such measures in the contiguous zone as it may consider necessary for the security of India, and immigration, sanitation, customs and other fiscal matters (Sec. 5(4)).

IV. THE EXCLUSIVE ECONOMIC ZONE74The most significant contribution of the UNCLOS-III was the creation of the new regime of EEZ, which is also a piece of "progressive development" of international law.75 The zone, in fact, has its roots in the concept of the Exclusive Fishing Zone (EFZ) and the doctrine of the continental shelf. It combines and develops the two (cf. Art. 56 of the 1982 Convention). It was actuated by the developments that had taken place after the Second World War, when many nations (particularly from Latin America) started proclaiming 200 miles as their fishery zone._________________73 The contiguous zone can also be used to control traffic in archaeological and historical objects found at sea, Art. 303(2) of the 1982 Sea Convention.74 See, generally, R. Khan, 16 IJIL pp. 169-86 (1976); L. Juda, 16 ODIL 1-58 (1986), ibid., 18 ODIL 305-31 (1987); D. Attard, The Exclusive Economic Zone in International Law (Clarendon Press, Oxford), 1987; R. Smith, Exclusive Economic Zones Claim (M. Nijhoff, Dordrecht), 1986; W. Extavour, The Exclusive Economic Zone, 2nd ed. (Institut Universitaire de Hantes E'tudes Internationales Geneva), 1981; J. Symonides, 14 Pol. YIL 43 (1985); S. Oda, Max Planck Institute, Encyclopedia of International Law, Vol. II (Elsevier Science Publishers, Amsterdam), 1989, pp. 102-109.

75 The concept of EEZ or patrimonial sea was first introduced by Kenya in the Afro-Asian Consultative Committee in 1971, and subsequently submitted a draft at the 1972 Geneva Session of the UN Seabed Committee, see E. Osieke, The contribution of States from the third world to the development of the law of the continental shelf and the concept of the economic zone, 15 IJIL 313 at pp. 328-29 (1975).

Page 399 THE LAW OF THE SEA Such claims were motivated by a concern for the conservation of living sea resources and other considerations. Failure by the 1958 and 1960 Conferences on the Law of the Sea to accept the breadth of the territorial sea wider than the traditional three-miles zone, further motivated the trend of proclaiming wider exclusive fishing zones. The Fisheries Jurisdiction cases (Merits) accepted the legality of such claims.76200-miles EFZ or EEZ became quite common in the late 1970s, with 23 States claiming 200 EFZ and 38 claiming EEZ.77 The concept was finally incorporated in the 1982 Convention as Part V (Arts. 55-75), and it has since become part of the customary law of the sea.78 By the end of 1993, there were 91 States that had made claims to 200 nautical miles EEZ in accordance with the Convention, and 19 States had claimed 200 nautical miles EFZ.79The EEZ is an area beyond and adjacent to the territorial sea extending upto 200 nautical miles from the baselines from which the breadth of the territorial sea is measured (Art. 57). The zone is an intermediate area between the high seas and the territorial sea with a distinct regime of its own which a State can specifically claim. The zone comprises the area which was previously part of the high seas, and is not under the sovereignty of the coastal State, but has 'sovereign rights'. Though the Convention refrains from describing EEZ as a part of the high seas, other States generally continue to exercise the freedoms of the high seas in the EEZ, in particular, freedoms of navigation and over-flight, laying of submarine cables and pipelines and other internationally lawful uses of the sea related to these freedoms. But they do not have the freedom to fish. However, the Convention does not specify whether foreign warships, which enjoy freedom of navigation through EEZ, can conduct naval exercises in the EEZ as they can on the high seas.80

A. Rights of the Coastal State in the Exclusive Economic ZoneThe regime of EEZ accords certain rights to the coastal State. One, it has the sovereign rights81 for the purpose of exploring, exploiting, conserving and managing the natural resources, whether_________________76 (1974) ICJ Rep., p. 3, and p. 175, UK v. Iceland and FRG v. Iceland respectively. Icelandic legislation at these lines began in 1948. Similar claims were made by India (100-mile zone, 1956), Pakistan (100-mile zone 1966), and Sri Lanka (100-mile zone, 1957), in each case measured from the outer limit of the territorial sea.77 The United Kingdom, which was a party to the Fisheries Jurisdiction case proclaimed 200 EFZ in 1977. 78 See the ICJ's observation in Continental Shelf (Libya v. Malta) case (1985) ICJ Rep., p. 13 at p.33: and Continental Shelf (Tunisia v. Libya) case (1982) ICJ Rep., p. 18, at p. 74.79 See UN (Division of Ocean Affairs and the Law of the Sea Office of Legal Affairs), The Law of the Sea: Practice of States (United Nations, New York), 1994, p. 10.80 The UNCLOS-III President (Mr. Koh) had stated that there was a general understanding at UNCLOS- III that military activities in the EEZ would not require the coastal State's permission. Several States, however, at the time of signing the 1982 Convention made declarations, disallowing such exercises, see in V. Van Dyke ed.,

Consensus and Confrontation: The US and the Law of the Sea Convention (Oxford University Press, Oxford), 1985, pp. 303-304.81 The expression "sovereign rights" signifies the exclusivity of the rights of the coastal State over resources of the EEZ and does not give sovereignty or the right of appropriation of the zone to the coastal State. No State can take away these rights of the coastal State except with its consent.

Page 400 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW living or non-living, of the waters superjacent to the seabed and of the seabed and sub-soil, and with regard to "other activities", such as the production of energy from the water, currents and winds. Two, the coastal State has the exclusive jurisdiction with respect to the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment (Art. 56(1)).While exercising its rights and performing its duties in relation to this zone, the coastal State has to give due regard to the rights and duties of other States. However, coastal State's rights and duties pertaining to the seabed and sub-soil of the EEZ would be exercised in accordance with Part VI (relating to continental shelf) of the 1982 Convention (Art. 56(3)).To give effect to its "sovereign rights" and jurisdiction in the EEZ, the coastal State may take such measures, including boarding, inspection, arrest and judicial proceedings, as to ensure compliance with its laws and regulations. Foreign ships are required to respect these laws and abstain from illegal fishing. But imprisonment or any other corporal punishment for violation of fisheries legislation is excluded (Art. 73). However, foreign ships would be subject to the enforcement jurisdiction of the coastal State for illegal fishing and violation of laws to control pollution (Art. 220). In cases of arrest or detention of foreign vessels, the coastal State would promptly notify the flag State (Art. 73(4)).In the EEZ, the coastal State has the exclusive right to construct and to authorise and regulate the construction, operation and use of artificial islands, installations and structures where it will have exclusive jurisdiction regarding customs, fiscal, health, safety and immigration laws and regulations. However, these artificial islands, installations and structures and the safety zones around them should not interfere with the international navigation (Art. 60).The coastal State, which has been given the exclusive fishing right in the EEZ (Art. 56(1)), while exercising this right, is obliged to conserve and manage the living resources of the EEZ, and to determine the level of exploitation taking into account the environmental and economic factors, and special needs of developing States (Art. 61). The coastal State is to achieve the optimum utilisation of the living resources of the EEZ and is entitled to reserve all of the allowable catch to its fishermen if they are capable of exploiting it (Art. 62). Where the coastal State is unable to harvest the entire allowable catch, other States, including landlocked and geographically disadvantaged States,82 can have access to this surplus by "agreements and other arrangements" on an equitable basis (Art. 62(2)). The developing landlocked States and geographically disadvantaged States get priority in the exploitation of the surplus of the living resources. However, this rule relating to sharing of resources with landlocked States and geographically disadvantaged States (Arts. 69-70) is not applicable where the coastal State's "economy is overwhelmingly dependent on the exploitation of the living resources" of the EEZ (Art. 71). Since the application of this rule depends upon the agreements between the parties, it remains to be seen how effective they will prove. Other States may also conduct marine scientific research with the consent of the coastal State, which should be done exclusively for peaceful purposes.

Any conflict on the unregulated uses of the EEZ between a coastal State and other States should be resolved on the basis of equity and in the light of all the relevant circumstances_________________82 The term "Geographically Disadvantaged States" refers to States with small continental shelf (shelf-locked), States with narrow coastlines and small EEZs, States with indications of limited resource potential in their prospective economic zones, see Art. 70(2) of the 1982 Convention.


(Art. 59). Disputes relating to the rights over the living resources of the EEZ are not subject to compulsory arbitration or adjudication; serious cases are subject to compulsory but non-binding conciliation (Art. 297(3)). Thus, in the absence of binding, third-party procedures makes it difficult to enforce conservation, sharing of resources and other limitations laid down in Art. 62 on a coastal State, leaving the landlocked and geographically disadvantaged States without any effective enforceable rights.

B. Delimitation of the Exclusive Economic ZoneThe delimitation of the EEZ between States with opposite or adjacent coasts is to be effected "by agreement on the basis of international law ... in order to achieve an equitable solution". If no agreement can be reached within a reasonable time, the States concerned may resort to the procedures provided in Part XV (on the Settlement of Disputes) of the Convention. Pending the final delimitation, the concerned States may enter into provisional arrangements (Art. 74).

C. Indian PositionSection 7 of the Maritime Zones Act, 1976, is in compliance with Part V (on the EEZ) of the 1982 Convention, which prescribes 200 nautical miles as the limit of the EEZ, measured from the baselines from where the breadth of the territorial waters is measured. This limit may be altered by the Central Government, giving due regard to international law and State practice, through a notification in the Official Gazette to this effect. The notification should have the approval of both the Houses of Parliament before issuance. In the EEZ, the Indian Union enjoys the sovereign rights and jurisdiction as specified in Art. 56 of the 1982 Convention (Sec. 7, para. 4). No person, including a foreign government, can explore or exploit this area without an agreement with the Central Government or an authority granted by the Central Government. This provision, however, shall not apply to fishing by an Indian citizen (para. 5).The Central Government, by notification, may declare any area as a designated area and makes laws with respect to matters specified in para. 4, and also for the protection of the marine environment, or customs or other fiscal matters in relation to such designated area. While declaring any area of the EEZ a designated area, the government will ensure freedom of navigation, by taking into account the interests of India (para. 6). The government may extend any law, imposing restrictions and modifications, temporarily on the EEZ or part thereof, and may make any provision for the enforcement of such a law. The effect of this extension of the enactment to the EEZ, tantamount to that EEZ or part thereof, is a part of the territory of India. With the consent of the government, the foreign States are entitled to lay or maintain the submarine cables or pipelines on the seabed of the EEZ (para. 8). In the waters of the EEZ and the airspace over it, ships and aircrafts of all nations have the freedom of navigation and over-flight (para. 9).The provisions relating to the EEZ came into force on January 15, 1977, by a government notification in accordance with Section 1(2) of the Maritime Zones Act.83 In addition to Maritime_________________83 For the text of the notification, see 16 IJIL, pp. 557-562, 1976.


Zones Act, in 1981, the Parliament enacted the Maritime Zones (Regulation of Fishing by Foreign Vessels) Act. The Act is specifically related to the regulation of fishing by foreign vessels in the maritime zones of India, i.e., in the territorial waters and the EEZ of India.

V. CONTINENTAL SHELF84One of the important developments after the Second World War in relation to the law of the sea was the evolution and acceptance of the concept of continental shelf. On September 28, 1945, the President of the United States, Harry Truman proclaimed that the natural resources of the continental shelf were "beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States [and] subject to its jurisdiction and control".85 The continental shelf was regarded "as an extension of the land mass of the coastal nation". Further, the Proclamation stated that the "character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation" were in no way to be affected. The main reason for this action of the United States was to reserve for itself the oil and mineral resources in the seabed which had become technologically possible to drill by 1945. The Truman Proclamation was concerned with mineral resources only and not with the exploitation of living resources, which under customary international law depend upon occupation. The Proclamation, however, did not define continental shelf, which was separately stated, in a State Department's press release as "submarine land which is contiguous to the continent and which is covered by no more than 100 fathoms (600 fist) of water", which was approximately 200 metres.86 The Truman Proclamation soon became the trend setter and was immediately followed by similar unilateral declarations by many maritime nations which laid claims of exclusive jurisdiction, control or sovereign rights over the resources of the continental shelf and associated offshore areas during 1945-51.87 These declarations led to the formation of customary international law giving coastal States jurisdictional rights over their shelves.88 These rights over the resources of the continental shelf were universally accepted by the 1958 Geneva Convention on the Continental Shelf._________________84 See generally, O'Connell, op. cit. 49; M. McDoughal and W. Burke, The Public Order of the Oceans (Yale University Press, Connecticut), 1962, pp. 630-729; E. Brown, Seabed Energy and Mineral Resources and the Law of the Sea, Vol. I (Stevens & Sons Ltd., London), 1984; M.L. Jawett, 22 Canad. YbIL 153-93 (1984); Ibid., 23 Canad. YbIL 201-25 (1985); J.N.D. Anderson, 6 Jour. Energy and Natural Resources Law 95 (1988).85 4 Whiteman 756; 40 AJIL, Supp., 45 (1946); Harris, op. cit. 35, p.399.86 Thus, the legal basis for the right over continental shelf was not based on res nullius, but for the reason that continental shelf was the submarine extension of the coastal State, over which it has the reasonable right to have jurisdiction, see North Sea Continental Shelf cases (1969) ICJ Rep., 3 at p. 29.87 However, there was qualitative difference between these declarations and the Truman Proclamation. These States, particularly some Latin American countries like Chile, Peru, Argentina and Mexico claimed national sovereignty over the waters of the

shelf and the natural resources of this area, whereas the Truman Proclamation claimed jurisdiction and control over the natural resources, leaving the waters as a part of the high seas. These claims were protested, see 4 Whiteman 794-799; Brown, op. cit. 84. 88 In Abu Dhabi Arbitration in 1951, however, Lord Asquith denied the existence of such a rule, 1 ICLQ 247 (1952); 18 ILR 144 (1951).

Page 403 THE LAW OF THE SEA A. Definition of the Continental ShelfGeomorphologically, the continental shelf may be defined as the zone around the continent extending from the low-water line to the depth, at which there is usually a marked increase of declivity to greater depth.89 What is commonly understood by the "continental shelf is a gently sloping platform of submerged land surrounding the continents and islands. It is a submerged bed of the sea, contiguous to a continental land mass, and found in such a manner as to be really an extension of, or appurtenant to this land mass. Normally, it extends to a depth of approximately 200 metres, at which point the first substantial "fall off” of the seabed occurs. At certain places it continues beyond a depth of 200 metres. Beyond that declivity of the continental shelf, there lays the further "fall off of the seabed, known as "continental slope" and the "continental rise", before sinking into the deep seabed ocean floor or "abyssal plain". The continental shelf, slope and continental rise, together comprise the "continental margin". The "continental slope" is the steep slope with which the shelf proper terminates and extends from the "shelf-edge" to the depth of 1200-3500 metres; the "continental rise" is the less sharply sloping area between the slope and the deep seabed, and goes to the depth of 3500-5500 metres. The "continental margin" comprises approximately 23 per cent of the total ocean floor.The 1958 Continental Shelf Convention used the term "continental shelf as referring "to the seabed and sub-soil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas" (Art. 1). Thus, the shelf has been defined in terms of "exploitability" and the depth of the sea. It means that if the exploitation of the resources could be made beyond the limit of 200 metres depth, that area could be claimed by the coastal State as its continental shelf. The requirement of the phrase "adjacent to the coast" is not solely confined to the proximity, but provided the legal basis for the coastal State to claim jurisdiction over the continental shelf.In the North Sea Continental Shelf cases, the Court explained the juridical basis of this claim of the coastal State over the continental shelf as follows:What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion - in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under water.90In the light of the technical developments after 1958, which made it possible for States to exploit the resources of the sea at depths greater than 200 metres, the definition in the 1958 Continental Shelf Convention was found to be inadequate.The 1982 Convention applies to the shelf resources of States that have made an EEZ claim and those that have not done so. It also applies to resources lying beyond the 200 miles limit. In an attempt to have a uniform rule and taking into account the possibility of exploitation_________________89 W. Friedman, The Future of the Oceans (George Braziller, USA) 1971, p. 9; see also the North Sea Continental Shelf cases, op. cit. 86, pp. 30-31.

90 Ibid., at p. 31.

Page 404 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW of the resources at greater depths, the Convention gives a wider definition which, in fact, deals not only with the continental shelf, but with the continental margin also. According to Art. 76:The continental shelf of a coastal State comprises the seabed and sub-soil of the submarine areas that extends beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend upto that distance.The 1982 Convention has thus replaced the "exploitability" criterion with the "distance" criterion of 200 nautical miles, and where a State's shelf extends beyond that distance, to the "outer edge" of the continental margin if geologically that point is more than 200 nautical miles. Accordingly, the continental shelf now extends upto 200 nautical miles or the edge of the continental margin, whichever is longer. Where the shelf extends beyond 200 nautical miles, it is measured either by the Irish method or the Biscuit method. According to the Irish method, the limit is the point where the thickness of the sedimentary rocks is less than one per cent from the shortest distance to the floor of the continental slope or 60 nautical miles from the slope. According to the Biscuit method, the limit is either 350 nautical miles or 100 miles from 2500 metres isobeth. The Convention in Art. 76(5) has incorporated the Biscuit method.The Convention, however, does not accord any territorial sovereignty to the coastal State over continental shelf, but only limited rights.

B. Delineation of the Continental ShelfPara. (7) of Art. 76 lays the procedure to delineate the shelf's outer limit, i.e., by straight lines not exceeding 60 nautical miles in length, connecting fixed points defined by coordinates of latitude and longitude. Where the continental margin extends beyond 200 nautical miles from the territorial sea, a different procedure with reference to the outermost "fixed points" of the outer edge of the margin will be followed. But if a State's continental shelf is shorter than 200 nautical miles, or is the natural prolongation of its territory ends before that, the State will have a continental shelf upto 200 nautical miles. The geological or geophysical features within that distance do not play any role either in verifying the legal title of the States concerned or in establishing their claims in the delimitation of the shelf.It is the duty of the coastal State to establish the limits of continental shelf beyond the 200 mile belt on the basis of the recommendation of the Commission on the Limits of the Continent Shelf.91 Further, the coastal State is to make "payments or contributions in kind" in respect of the exploitation of shelf resources beyond the 200 mile belt (Art. 82(1)). These payments or contributions go to the International Seabed Authority (Seabed Authority), which will be distributed among States "on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and landlocked among them" (Art. 82(4)). Payments to the Seabed Authority commence after five years of production and increase from one percent to 7 percent in the following years (Art. 82(2))._________________

91 The Commission is set up under Annex. II of the Sea Convention, based on the equitable representation.


C. Rights of the Coastal State in the Continental ShelfThe coastal State enjoys limited sovereign rights over the continental shelf for the purpose of exploring and exploiting its "natural resources", and not sovereignty.92 These rights are exclusive in the sense that no one can undertake these activities without the express consent of the coastal State or make a claim to the continental shelf. They also do not depend on occupation, effective or notional, or any express proclamation.The "natural resources" of the continental shelf consist of minerals and other non-living resources of the seabed and sub-soil, together with living organisms belonging to sedentary species, i.e., organisms, which at the harvestable stage, either are immobile on or under the seabed, or are unable to move except in constant physical contact with the seabed or subsoil.93The coastal State also has the exclusive right to authorise and regulate drilling of the sub-soil for all purposes (Art. 81). This right to exploit the sub-soil of the continental shelf by means of tunnelling is not affected by the depth of waters above.94 Like the EEZ, the coastal State has the exclusive right to construct, maintain or operate the artificial islands, installations and structures on the shelf, and the provisions of Art. 60 (on the EEZ) are to apply mutatis mutandis in respect to them.95The above rights of the coastal State, however, are not to affect the legal status of the superjacent waters, or the airspace above those waters. The exercise of these rights by the coastal State is not to impair navigation or other rights and freedoms of States, such as the laying of submarine cables and pipelines, but the course of the pipeline will be delineated with the consent of the coastal State (Art. 78(2), 1982 Sea Convention).

D. Delimitation of Continental Shelf Boundaries between StatesThe delimitation of continental shelf between nations has generated a lot of litigation because of its economic importance. Rules relating to delimitation are provided in Art. 6 of the 1958 Continental Shelf Convention and Art. 83 of the 1982 Convention. Article 6 has been much referred in the judgments of the International Court. It reads as follows:1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equivalent from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured._________________92 See Art. 2 of the 1958 Continental Shelf Convention and Art. 77 of the 1982 Convention.93 They are said to include, inter alia, "coral, sponges, oysters, including pearl oysters, pearl shell, the sacred chank of India and Ceylon, the trocus and plants", 1958 Sea Conference Records, Vol. VI, p. 57. The free-swimming fish or lobsters (which swim) are not covered by it.94 See Art. 85 of the 1982 Convention and Art. 7 of the 1958 Continental Shelf Convention.

95 Ibid., Art. 80 and Art. 5 of the 1982 Convention and the 1958 Continental Shelf Convention respectively.


2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (emphasis added).The delimitation of boundaries remained more contentious between the adjacent States as opposed to the opposite States where the median line was to be followed. In the case of adjacent States, "equidistance principle", stated in Art. 6(2) of the 1958 Convention, was not found to be adequate to demarcate the continental shelf, nor did it represent the customary international law. The International Court of Justice, for the first time had the occasion to determine the adequacy of the "equidistance principle" in the North Sea Continental Shelf cases.96 In the two separate cases against West Germany filed by the Netherlands and Denmark, the Court was asked to decide about the "applicable" principles and rules of international law "to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary" already determined under the 1964 (between the Netherlands and Federal Republic of Germany) and 1965 (between Denmark and Federal Republic of Germany) agreements, which merely drew dividing lines for a short distance from the coast.The two cases were joined by the Court. Denmark and the Netherlands argued that the "equidistance/special circumstances rule" in Art. 6(2) would be applied. Germany, instead proposed "the doctrine of the just and equitable share". Germany's opposition to the "equidistance rule" was based on the fact that the rule, if applied on a concave coastline, such as that of North Sea, shared by all the three States concerned, would result into giving the State in the middle, and in this case Germany, a smaller continental shelf than it might otherwise obtain. The Court rejected both these contentions and held that applying the equidistance principle will lead to inequitable results because of the peculiar coastline of the States concerned and opined that the notion of equidistance could not be logically and compulsorily applied in all situations. It is not consonant with certain basic legal notions, "those principles being that delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles".97 The Court identified the "equitable principles", that will be applicable in the absence of an agreement, as follows:A. The use of the equidistance method of delimitation not being obligatory as between the Parties;B. There being no other single method of delimitation, the use of which is in all circumstances obligatory;C. The principles and rules of international law applicable to delimitation as between the Parties of the areas of the continental shelf in the North Sea ... are as follows;1. delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural

prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other;_________________96 Op. cit. 86.97 Ibid., p. 47, para. 85


2. if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or exploitation for the zones of overlap or any part of them;D. In the course of the negotiations, the factors to be taken into account include:1. the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features;2. so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved;3. the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region".98Thus, in following the "equitable principles", the factors to be taken into account are: the relevant circumstances, i.e., the geographical situation of the parties and natural configuration of the coast; proportionality, i.e., the extent of the continental shelf areas appertaining to coastal State and the length of the coast measured in the general direction of the coastline; and the concept of natural prolongation, i.e., shelf is an appurtenant to the land territory. These equitable principles are a part of general international law, and their application is to be distinguished from the principle of ex aequo et bono."The approach taken by the International Court of Justice on the "equidistance principle" in the North Sea Continental Shelf cases has been followed by the Court in the subsequent cases also. In the Continental Shelf (Tunisia v. Libya) case,100 the Court was asked to specify principles and rules of international law which were applicable to the delimitation of continental shelf between Tunisia and Libyan Arab Jamahiriya. They have a single continental shelf as the natural prolongation of their land territory, and hence no principle of "natural prolongation" as such could be applied. The Court observed that since the two countries abutted on a common continental shelf, physical criterion was of no assistance for the purpose of delimitation. The application of the equidistance method could not, in the particular circumstances of the case, lead to an equitable result, and in such a case, the delimitation can be effected on the basis of "equitable principles", taking into account all the relevant circumstances. The rule of "equidistance" was once again rejected in the Guinea-Guinea Bissau Arbitration.101 Similar to Germany's position in North Sea Continental Shelf cases, Guinea was the middle State with Guinea Bissau and Sierra Leone on either side, and would have suffered inequitably by the application of the equidistance principle.The 1982 Convention, however, does not mention the "equidistance rule". Article 83(1) declares:_________________98 Ibid., pp. 53-54, para. 101.99 Ibid., pp. 46-47, paras. 83 and 85.100 (1982) ICJ Rep., p. 18, at p. 59.

101 77 ILR 635 (1985).

Page 408 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW The delimitation of the continental shelf between States with opposite or adjacent coast shall be effected by agreement on the basis of international law ... in order to achieve an equitable solution.The 1982 Convention thus emphasises upon the agreement between the parties for delimitation. Nevertheless, in order to achieve an equitable solution, parties may take into account the principle of equidistance in concluding the agreement.The Continental Shelf (Libya v. Malta) case102 was the first case decided by the Court after signing of the 1982 Convention. Though both the States were signatories to that Convention, they agreed for the dispute to be governed by customary international law. The Court, however, looked into the provisions of the Convention as rules of customary international law, and observed that "the principles and rules, applicable to the delimitation of continental shelf areas are those which are appropriate to bring about an equitable result". In deciding the dispute, the Court placed great reliance on the "equidistance principle". But to achieve an equitable result, it will be necessary to first draw a line, every point of which should be equidistant from the coast of the two opposite States concerned and then to make adjustments in the light of all the relevant circumstances. The Court once again discounted the "natural prolongation" factor propounded in the North Sea Continental Shelf cases, which was subservient to the equitable principle. In fact, this factor has no role to play in all cases within the 200-miles limit, i.e., the geological or geophysical factors have no role either in verifying the title or as factors of delimitation within the distance of 200 miles from either of the coasts of the parties involved.103The "equitable principle" also found expression in the Anglo-French Continental Shelf case.104 Here, the Court of Arbitration was asked to delimit the continental shelf of the United Kingdom and France in the English Channel (West of Selsey Bill) and the South Western Approaches. Both the States were parties to the 1958 Continental Shelf Convention. The Court observed that the "equidistance rule" and "special circumstances" in Art. 6 are not two separate principles but a single rule of "equidistance special circumstances rule" as a part of customary international law. Failing agreement, the rule gives expression to the general norm that "the boundary abutting on the same continental shelf is to be determined on equitable principles". In the Court's view, choice of the method of delimitation in any given case has to be determined in the light of geographical and other relevant circumstances and of the fundamental norm that the delimitation must be in accordance with equitable principles.105 It was similarly held in the Gulf of Maine case,106 where the Chamber of the International Court of Justice was called upon to determine a "single maritime boundary" for the continental shelves and the exclusive fishing zones in the Gulf of Maine between Canada and the United States. Canada based its claim on geographic adjacency, which the Chamber rejected by stating that the "boundary results from a rule of law and not from any intrinsic merit of the purely physical fact". According to the Chamber, the equidistance rule has not become a rule of general international law. In delimiting the maritime boundaries between neighbouring States, in the absence of an agreement between the parties, the delimitation is to be effected by the application of equitable criteria, which should_________________

102 (1985) ICJ Rep., p. 13, at p. 57.103 Ibid., pp. 32-37.104 54 ILR 6 (1979); 18 ILM 421 (1979).105 18 ILM, ibid., at pp. 426-427.106 United States and Canada (1984) ICJ Rep., p. 246.


take into account the geographical configuration of the area, length of coastline, size of zone and other relevant circumstances to ensure equitable results.In the subsequent case of Maritime Delimitation and Territorial Questions between Qatar and Behrain, the Parties requested the Court to decide any matter of territorial right or other title or interest which may be a matter of difference between them and to draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters.107 The Court opined that the 'concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and ... finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various, partially coincidental zones'.In the Land and Maritime Boundary between Cameroon and Nigeria,108 the Court was asked to delimit a 'single maritime boundary' beyond the limits of the territorial sea that would divide both the continental shelves and the EEZs of the two States. Both the States were parties to the 1982 Convention and wanted the delimitation between the maritime areas by a single line. The Court, while referring to its earlier decisions noted that 'in disputes relating to maritime delimitation, equity is not a method of delimitation, but solely an aim that should be borne in mind in effecting the delimitation'.109 In the case Concerning Maritime Delimitation in the Black Sea, the Court applied the 1982 Convention and indicated that "once provisional equidistance line has been drawn, it shall then [consider] whether there are factors calling for the adjustment or shifting of that line in order to achieve an "equitable result" ... Such factors have usually been referred in the jurisprudence of the Court ... as the relevant circumstances."110The judicial practice has thus predominantly established that equidistance is not an applicable rule in all cases of delimitation between adjacent States. The "natural prolongation" criterion has similarly given way to distance criterion (i.e., 200 nautical miles from the coast). The emphasis on "equitable solution" in the 1982 Convention, however, is without any accompanying procedure to be followed to achieve it. According to Bowett, since States differ on what equity requires, the application of equitable principles reduces the chances of settling boundary disputes without litigation.111_________________107 Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, (Qatar v. Bahrain) (Jurisdiction and Admissibility) (1995) see (1994) ICJ Rep., p. 112, During the decade-long Qatar v. Bahrain proceedings, the International Court of Justice rendered two Judgments on jurisdiction and admissibility (1994-1995), followed by its decision not to rely on the 82 Qatar documents challenged by Bahrain (1999), and by Judgment on the merits (2001).108 (1998) ICJ Rep., p. 275 (Preliminary Objections); (2002) ICJ Rep, 303. The dispute was related essentially to the question of sovereignty over the Bakassi Peninsula, which was later extended to the question of sovereignty over Cameroonian territory in the area of Lake Chad and the frontier between Cameroon and Nigeria from Lake Chad to the sea.109 Ibid., para 294.110 See op. cit. 36, para 155.

111 See Bowett, 49 BYbIL 1 at p. 6 (1978). The Court currently has two cases concerning the delimitation of the maritime zones: Maritime Delimitation in the Black Sea (Romania v. Ukraine) [Rejoinder 8 June 2007]; and Maritime Dispute (Peru v. Chile) - 16 January 2008 for the delimitation of the boundary between the maritime zones of the two States in the Pacific Ocean. Peru has requested the Court to determine the boundary in accordance with international law and to adjudge and declare that Peru possesses exclusive sovereign rights in the maritime area situated within the limit of 200 nautical miles from its coast but outside Chile's exclusive economic zone or continental shelf.

Page 410 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW E. IslandsIslands too have the continental shelf of their own, unless they are just "rocks which cannot sustain human habitation or economic life of their own" (Art. 121(3), 1982 Convention). This has not been fully explained and State practice has yet to elaborate it. However, islands may constitute a relevant circumstance for the purpose of delimiting the EEZ or continental shelf between adjacent or opposite States.112

F. Indian PositionIndia proclaimed its continental shelf in August 1955, and by the Fifteenth Constitution Amendment Act, 1963, it was inserted in Art. 297 of the Constitution. The Maritime Zones Act, 1976, states the Indian position in Sec. 6. India has proclaimed 200 nautical miles from the baselines as its continental shelf on January 15, 1977, in accordance with Sec. 1(2) of the Act. The rights and duties of India in this regime are similar to other States, as specified in the international Conventions. However, the government can declare any area of continental shelf and its superjacent waters as designated area and make provisions to regulate it.

G. Continental Shelf and Exclusive Economic Zone DistinguishedThe regimes of continental shelf and EEZ co-exist under the customary international law and the 1982 Convention. They contain few significant similarities and over-lappings. The coastal State enjoys sovereign rights over the resources of the EEZ and the continental shelf. These rights are primarily of economic kind and the area otherwise pertains to the high seas. The traditional freedoms of the high seas under the customary international law, i.e., freedoms of navigation, overflight and immersion are available to other nations in these zones.However, they are different in many ways: (1) Whereas the coastal State gets rights over the continental shelf because of its land territory, i.e., continental shelf accrues to it under customary international law ipso-facto, the EEZ is optional, i.e., it needs to be "proclaimed" by the coastal State (Art. 77(3) of the 1982 Convention). In other words, the EEZ is a concept of law, whereas continental shelf is a concept of geography. (2) Whereas the rights of continental shelf can exist beyond the limit of 200 miles from the coast where shelf and margin extend beyond that limit, it is not so with the EEZ. (3) The resources of the EEZ are subject to the rule of sharing the surplus of the living resources of the EEZ with other nations, particularly with landlocked and geographically disadvantaged States (Arts. 69-70 of the 1982 Convention), but the resources of the continental shelf are immuned from this requirement and if the coastal State does not exploit them, no other State has a right to do so. (4) The continental regime applies to shelf resources (including sedimentary species) of States that have claimed an EEZ (Art. 56(3)) as well as States that have not done so, and applies to the shelf resources beyond the 200-mile limit. Thus, under the 1982 Convention, a continental shelf can exist without EEZ, but there cannot be an EEZ without a corresponding continental shelf._________________

112 See Anglo-French Continental Shelf case, op. cit. 104; Gulf of Maine case, op. cit. 106; Tunisia-Libya case, op. cit. 100; Land and Maritime Boundary between Cameroon and Nigeria, op. cit. 108, para. 299.


In the Libya v. Malta case,113 the Court was of the view that both the regimes are linked together, "since the rights enjoyed by a State over its continental shelf would also be possessed by it over the seabed and sub-soil of any exclusive economic zone which it might proclaim".

VI. HIGH SEAS114The 1958 Geneva Convention on the High Seas defined the term "high seas" as all parts of the sea, not included in the territorial sea or in the internal waters of a State (Art. 1). But, taking into account the emergence of the concept of EEZ and the regime of archipelagic States, Art. 86 of the 1982 Convention describes the area of "high seas" as "all parts of the sea that are not included in the exclusive economic zone, or in the archipelagic waters of an archipelagic State". Thus, the area pertaining to high seas under customary international law has been substantially reduced. However, the concept of "freedom of open sea", so jealously propounded by Grotius in his study Mare Librum and guarded under the customary international law, had found place in Art. 2 of the 1958 High Seas Convention and has been further developed and amended by Art. 87 of the 1982 Convention.

A. Freedoms of the High SeasArticle 2 of the High Seas Convention provides:The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:1. Freedom of navigation;2. Freedom of fishing;3. Freedom to lay submarine cables and pipelines;4. Freedom to fly over the high seas.These freedoms and others which are recognised by the general principles of international law shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.The 1982 Convention (Art. 87(1)) has added two additional freedoms, viz.,(d) Freedom to construct artificial islands and other installations permitted under international law, subject to Part VI of the present Convention;(f) Freedom of scientific research, subject to Parts VI and XIII115 of the present Convention._________________113 Op. cit. 102, paras. 33-34.114 See, generally, D.P. O'Connell, The International Law of the Sea, Vol. II (Clarenden Press, Oxford), 1984, pp. 792-830; I. Brownlie, Principles of Public International Law, 7th ed. (2008), pp. 223-246; L. Oppenheim, International Law, Vol. I, 9th ed. (Jennings & Watts (Ed.), Longman) 1996, pp. 719-764; McDoughal and Burke, op. cit. 84, p. 730.

115 Parts VI and XIII respectively, deal with continental shelf and marine scientific research in general.

Page 412 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW The freedom of fishing is subject to the conditions for conservation and management of the living resources of the high seas (Arts. 116-120).In exercising these freedoms, due regard must be given to the interests of other States and activities in the Area.''6 Other freedoms recognised by the "general principles of international law" referred to in Art. 2 of the High Seas Convention include the freedoms to use the high seas for weapon testing and naval exercises. However, the 1982 Convention limits the use of the high seas to peaceful purposes (Art. 88).The Convention further lays down certain fundamental propositions in relation to this area. Accordingly, no part of the high seas be subjected to State sovereignty (Art. 89; Art. 29 of the 1958 Convention); every State is under a duty "to effectively exercise its jurisdiction and control in administrative technical and social matters over ships flying its flag" (Art. 94); ships are to sail under the flag of one State only where it is registered and with which existed a "genuine link" (Art. 91)117 and are to be subject to the exclusive jurisdiction of that State on the high seas (Art. 92).118 Thus, this provision endorses the doctrine of "floating island", long accepted under the customary international law.119 Further, a ship sailing under the flags of two or more States and using them according to convenience, may not claim any of the nationalities, and may be assimilated to a ship without nationality (Art. 92). Warships on the high seas are completely immune from the jurisdiction of any State.

B. Jurisdiction in Collision CasesThe question of jurisdiction in collision cases on the high seas was the issue before the Permanent Court of International Justice in the Lotus case.120 In that case, a collision had occurred on the high seas between the French Steamer Lotus and the Turkish steamer Boz-Kourt, resulting in the loss of Boz-Kourt and the death of eight Turkish sailors and passengers. On the arrival of the Lotus at Constantinople, joint criminal proceedings were instituted against the captain of the Turkish steamer and M. Demons, officer of the watch on board the Lotus, and both were sentenced to imprisonment. The French Government protested and the case was submitted to the Permanent Court of International Justice. Before the Court, the French Government argued that the Turkish action was contrary to the principles of international law and its treaty obligations under Art. 15 of the Convention of Lausanne of July 24, 1923. It contended that Turkey had no jurisdiction over an act committed on the high seas by a foreigner on board a foreign vessel, and it is the flag State (in this case, France) who had the exclusive jurisdiction on board a foreign vessel. The Court held that Turkey had not acted_________________116 "Area" has been defined as "the seabed and ocean floor and sub-soil thereof beyond the limits of national jurisdiction", Art. 1(1) of the 1982 Convention.117 The M/V SAIGA (No. 2) Case (St. Vincent and the Grenadines v. Guinea), Int'l Tribunal for the Law of the Sea (1999) 120 ILR 143. The case was, among others, related to the nationality of ships and the 'genuine' link requirement.118 This is the negation of the judgement and doctrine laid down by the PCIJ in the S.S. Lotus case, PCIJ Rep., Series A, No. 10 (1927).

119 See Art. 23 of the 1952 Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on theSurface, which endorses this doctrine for aircrafts.120 See op. cit. 118.


contrary to the principles of international law because the offence committed on board the Lotus had produced its effects on the Turkish vessel and consequently, in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners. There is no rule of international law, prohibiting a State from exercising jurisdiction over a foreigner in respect of an offence committed outside its territory.The Court concluded that, except for warships, there is no rule of international law which reserves exclusively to the flag State the right to exercise jurisdiction in collision cases.121 However, Art. 11 of the 1958 High Seas Convention lays down that in the event of collision or of any incident of navigation on the high seas, no penal or disciplinary proceedings may be instituted against the persons responsible, except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. This provision overrules the principles of the Lotus case. Article 97 of the 1982 Convention reproduces verbatim the rule of Art. 11. Further, in disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them (Art. 97(2)). Only the authorities of the flag State can order arrest or detention of the ship. No other State can do so even as a measure of investigation (Art. 97(3)). These provisions, in effect, restate the customary law.

C. Rights and Duties of States on the High SeasThe States have certain rights and duties in relation to high seas. Warships on the high seas enjoy complete immunity from the jurisdiction of any State other than the flag State (Art. 95). Both the 1958 High Seas Convention, and the 1982 Sea Convention, accord to a State the right to take effective measures to prevent and punish the transport of slaves in ships authorised to fly its flag, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.122

1. Right to visit a foreign merchant vesselA warship can exercise the right of visit to a foreign ship if there are reasonable grounds to suspect that the ship is without a nationality, or though flying a foreign flag or refusing to show its flag, is of the same nationality as the warship; or the ship is operating a private radio station; or it is engaged in piracy; or in the slave trade (Art. 22 of the 1958 Convention). This right to visit has been further extended to a ship stationed in, or installed in the high seas, suspected to be operating a private radio station or is without a nationality by the 1982 Convention. But_________________121 The decision in the Lotus case aroused a lot of skepticism among a number of bodies, e.g., International Maritime Committee, and Montevideo Conference. The decision was stated to lead to double prosecution of the masters of the ships.122 See Art. 99 of the 1982 Convention and Art. 13 of the High Seas Convention. Customary international law does not accord such powers in this regard over foreign

ships on the high seas. See H.A. Smith, The Law and Custom of the Sea, 3rd ed. (Stevens & Sons Ltd., London), 1959, cited in Harris, op. cit. 35, p. 380.

Page 414 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW the right can be exercised by a "military aircraft" or "any other duly authorised ship or aircraft clearly marked and identifiable as being on government service" (Art. 110(4) and (5)). The 1982 Convention enjoins a duty on every State to cooperate in the suppression of such unauthorised broadcasting,123 and any person engaged therein may be arrested and prosecuted by the ship's flag State, State of the registry of the installation, State of the person's nationality, State where the transmissions can be received, or State whose authorised radio transmission is suffering interference (Art. 109).

2. PiracyOppenheim defines piracy as an unauthorised act of violence against persons or goods committed on the open sea, either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel.124 Under customary international law, murder or robbery on the high seas or intent to plunder the ship was considered essential to constitute the act of piracy. Article 15 of the 1958 Convention on the High Seas and Art. 101 of the 1982 Convention have widened the scope of the offence of piracy. This definition is now widely accepted. According to it, piracy consists of any of the following acts:(a) Any illegal acts of violence or detention, or any act of depredation committed forprivate ends by the crew or the passengers of a private ship or a private aircraft, anddirected:(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;(b) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;(c) Any act of inciting or of intentionally facilitating an act described in sub-paragraph (a) and (b).Accordingly, piracy requires two ships or a ship and an aircraft and any "private ends" are sufficient.125 Thus, the hijacking of an aircraft by the passengers or crew of the hijacked aircraft does not amount to piracy because the act is not directed against another ship or aircraft, it is against the persons or property on board. The crime of piracy can be committed only by private vessels or aircraft. But if the crew of a warship, government ship or aircraft has mutinied_________________123 "Unauthorised broadcasting" is defined as "the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls" (Art. 109(2)). See European Agreement for the Prevention of Broadcasting from Stations Outside National Waters, 1965, 634 UNTS 239. The European Convention grants the right to exercise criminal jurisdiction but does not give the right to visit. 124 Oppenheim, op. cit. 114, Vol. I, pp. 746-747, para. 272.125 Politically motivated acts of organised groups or insurgents from a ship against the ships of other States though unlawful, are difficult to term as piracy.

Page 415 THE LAW OF THE SEA and taken control of the ship or aircraft, it may be treated as a pirate ship (Art. 102 of the 1982 Convention; Art. 16 of the 1958 Convention).A ship or aircraft is considered a pirate ship or aircraft if it is intended to be used for committing any of the acts referred in Art. 101, by the persons in dominant control (Art. 103: 1982 Convention; Art. 17: 1958 Convention). A ship or an aircraft may retain its nationality even after becoming a pirate ship or aircraft. The retention or loss of nationality is determined by the flag State (Art. 104: 1982 Convention; Art. 18: 1958 Convention).Piracy is considered to be a crime against humanity and a pirate as an enemy of mankind, hence subject to arrest, trial and punishment by any State. A State can exercise criminal jurisdiction over pirates under its municipal law, on the basis of universal principle on acts constituting piracy jure gentium. Universality of the crime of piracy jure gentium has been accepted in Art. 105 of the 1982 Convention (Art. 19 of the 1958 Convention), which provides that every State on the high seas, or in any other place outside the jurisdiction of any State,126 may seize the pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board, and the courts of the State which carried out the seizure, may try them. Such a seizure may be carried out only by warships or military aircraft, or other ship or aircraft authorised to that effect (Art. 107: 1982 Convention; Art. 21: 1958 Convention).

3. Hot pursuitInternational law recognises the right of coastal State to pursue and seize a foreign vessel which has infringed its laws and regulations while passing through its territorial waters even on the high seas. The reason is not to allow the foreign ship to evade the jurisdiction of the coastal State by escaping into the high seas. The right of hot pursuit can be validly exercised if the following essentials are present:1. The pursuit commences immediately while the alleged infringing vessel or any of its accessory boats is still within the internal or territorial waters of the coastal State. Under Art. 23 of the 1958 High Seas Convention, the pursuit may commence in the contiguous zone if there has been a violation of the rights for the protection of which the zone was established. The right has been further extended it archipelagic waters for commencement and applies mutatis mutandis to the EEZ and continental shelf, including safety zone around continental shelf installations under the 1982 Convention (Article 111(2)).2. The pursuit is continuous and uninterrupted (Article 111(1)).3. A visual or auditory signal to stop has been given from such a distance as to be seen or heard by the fugitive ship (Article 111(4)). It is not necessary that at the time when the_________________126 The 1988 IMO convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation makes it an offence to seize control of a ship by the use or threat of force where the ship "is navigating ... through ... waters beyond the limit of territorial sea." (Art. 3-4). With a wide scale piracy off the coast of Somalia since 2008, the Security Council passed a string of resolutions -1816 (2008); 1828 (2008); 1846 (2008);

and 1851 (2008). The latter authorising to enter into Somalia's land territory with the consent of the Transitional Federal Government of Somalia.

Page 416 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW vessel within the territorial sea or contiguous zone or EEZ receives the order to stop that the signalling ship should also be within those waters. "Signal" to stop by radio was not considered sufficient, but under 1982 Convention, it is interpreted to be sufficient.1274. The pursuers are warships, military aircraft, or other government ships or aircrafts specially authorised to that effect, although the craft making the arrest need not actually be the one which commenced the pursuit (Article 111(5-6)).5. The right ceases as soon as the vessel enters the territorial sea of its own country, or of a third State (Article 111(3)).1286. Where a ship has been stopped or arrested on the high seas in circumstances not justifying the exercise of the right of hot pursuit, the coastal State has to compensate for any loss or damage that may have been thereby sustained (Art. 111(8): 1982 Convention; Art. 23(7): 1958 Convention).The use of force to effect the arrest of a fugitive ship has not been considered in the 1958 High Seas Convention or in the 1982 Convention. However, the rule of "necessary and reasonable force", laid down in the I'm Alone case,129 seems to be the rule of customary international law.130In 1929, at the time of Prohibition in the United States, I'm Alone, a British Schooner registered in Canada, was ordered to stop by a United States coastguard vessel, Walcott, on suspicion of smuggling liquor while it was 10 miles off the Louisiana coast. It fled and was pursued by the Walcott, and after its guns had jammed, by the Dexter, the other United States coastguard, which caught up with I'm Alone on the high seas (more than 200 miles off the coast of the United States). When I'm Alone refused to stop, it was fired upon by the Dexter and sunk. On protest by Britain, the United States justified its action under the Convention of 1924 between them, which authorised the United States authorities to board a private vessel under the British flag outside the limits of territorial waters which could be traversed in an hour from the United States' coast, to check liquor smuggling. The two Commissioners appointed under the 1924 Convention held that the United States might use "necessary and reasonable force" for the purpose of effecting the objects of boarding, searching, seizing and bringing into port the suspected vessel, and if sinking should occur incidentally, as a result of the necessary and reasonable force for such purpose, the pursuing vessel might be entirely blameless. But the intentional sinking of the suspected vessel was not justified, it was an unlawful act and awarded $25,000 compensation to the Canadian Government._________________127 The ILC declined to admit orders given by wireless, as those could be given at any distance. See Commentary on Art. 23 of the 1958 Convention, YbILC, Vol. II (1956), p. 285.128 See, Granville L. Williams, The juridical basis of hot pursuit, 12 BYblL 92-93 (1939). According to Poulantzas, the two most important elements of a valid hot pursuit are its immediate commencement and conduct without interruption, N.M. Poulantzas, The Right of Hot Pursuit in International Law (A.W. Sijthoff Leyden), 1969, p. 43.129 3 RIAA 1609; 29 AJIL 326 (1935).

130 More recently, the M/V Saiga's has dealt with the "reasonable and necessary in the circumstances" rule, stated to be the customary international law applicable in 'hot pursuit' and other lawful arrests at high sea as well, op. cit. 117 paras 132-135.

Page 417 THE LAW OF THE SEA The principle of "necessary and reasonable force" was also endorsed in the Red Crusador case131 in which a Scottish trawler was arrested for fishing in an unauthorised area by a Danish fisheries inspection vessel. When it tried to escape and did not stop on order, it was fired at directly with solid shots and damaged, but did not sink. The Anglo-Danish Enquiry Commission found the use of force excessive, firing solid shot gun without warning, and creating danger to human life on board the Red Crusador without their proved necessity.

D. Indian PositionThe Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981, provides, "Where in pursuance of the commission of any offence under this Act, any foreign vessel is pursued beyond the limits of the exclusive economic zone of India, the powers conferred on an authorised officer by this section may be exercised beyond such limits in the circumstances and to the extent recognised by international law and State practice" (Sec. 9(5)). Consequently, the right of hot pursuit, as mentioned in Sec. 9(5) is exercisable according to the above mentioned principles of international law. Foreign vessels found indulging in unauthorised fishing in any maritime zone of India are subject to confiscation and heavy penalties, including imprisonment (Sees. 10-17).

VII. ENCLOSED OR SEMI-ENCLOSED SEAThe concept of "enclosed or semi-enclosed sea", introduced by the 1982 Convention (Part IX), has been defined as:i. a gulf, basin, or sea surrounded by two or more States and connected to another seaor ocean by a narrow outlet; or ii. consisting entirely or primarily of the territorial seas and EEZs of two or more coastal States (Art. 122). The States bordering on such a sea should cooperate with each other in the exercise of their rights and duties under the Convention, and to invite, as appropriate, other interested States or international organisations to cooperate with them in furtherance of their rights, duties and scientific research policies (Art. 123).

VIII. LAND LOCKED STATESArticle 124(1)(a) of the 1982 Convention defines land-locked State as "a State which has no sea-coast".132 There are about 30 land-locked States in the world. They have been given certain rights and privileges under international law. The 1958 High Seas Convention (Art. 3) and the 1982 Convention (Part X, Arts. 124-132) relate to these rights and privileges. These States have been provided the right of access to and from the sea on equal terms with coastal States, in order to enjoy the freedoms of the sea, and other related privileges of transit passage through_________________131 35 ILR 485 (1962).132 The 1965 Convention on Transit Trade of Land-Locked States also gives the similar definition in Art. 1(a).


"transit States".133 Freedom of transit traffic and means of transport are granted. Such freedom of transit and right of access are to be exercised according to the terms and modalities, settled by agreement between the transit State and land-locked State, but the transit States are entitled to ensure that this freedom of passage shall in no way infringe their legitimate interests.134 Thus, the Convention does not bestow any definite right on the land-locked States in relation to freedom of transit and right of access to and from sea, they are merely recommendatory rather than being mandatory.135 Any special agreements relating to the right of access and freedom of transit are excluded from the application of the most-favoured-nation clause (Art. 126).The 1982 Convention also confers certain other privileges, which were also mentioned in the 1965 Convention on Transit Trade of Land-Locked States. Their transit trade is not to be subjected to any customs duties, taxes or other charges except for specific services rendered (Art. 127(1); Art. 3 of the 1965 Convention); or subjected to discriminatory charges or taxes vis-a-vis local transport (Art. 127(2), Art. 4 of the 1965 Convention). Free zones or other customs facilities may be provided by agreement with transit States (Art. 128). The transit State and land-locked State may cooperate in making provision for adequate means of transport (Art. 129); transit States should take all appropriate measures to avoid delays or technical difficulties for transit traffic (Art. 130). Ships flying the flag of a land-locked State are to enjoy treatment equal to that accorded to other foreign ships in maritime ports (Art. 131). A transit State may provide better facilities than those provided under the Convention (Art. 132).

The case of NepalNepal and Afghanistan are land-locked States of South-Central Asia. Nepal is situated between India and China, in the Southern slope of the Himalayas. India, being a transit State, has provided Nepal access to sea under treaties, concluded in accordance with international law. Earlier this right was regulated by the Treaty on Trade and Transit of July 31, 1950. The Treaty provided, among other things, transit facilities on reciprocal basis and re-export of goods to and from Nepal through the Indian territory, besides providing Nepal access to sea (Sees. 2, 3, and 4). India provided 15 entry points to Nepal as against the required two transit points. This treaty expired on March 1989, and transit facilities provided to Nepal were stopped.136 However, on December 6, 1991, as desired by Nepal, two separate treaties on trade and transit were concluded: the Treaty on Trade for a period of five years, and Treaty for Transit for seven years,137 which came into force immediately. The conclusion of the Transit Treaty between Nepal and India clearly establishes that the right of transit of land-locked States is not mandatory, but merely recommendatory in nature for the transit trade._________________133 States lying between the land-locked States and the coast are transit States, Art. 124(l)(b).134 Articles 125(2) and (3) of the 1982 Convention, and Art. 2 of the 1965 Transit Trade Convention.135 See V.C. Govindraj, "Land-locked States and their right of access to the sea", 14 IJIL p. 190, at p. 204 (1974).

136 Because of the political differences which arose between the two countries in 1987 and persisted for some time, the Treaty of 1950 was not renewed after its expiry in March 1989.137 The Times of India, Dec. 8, 1991, p.1. The Treaties have since been extended from time to time.


IX. SEABED AREAThe area of deep ocean floor lying beyond the continental margin is rich in mineral and hydrocarbon resources,138 such as manganese, nickel, cobalt, copper, sulphur, petroleum etc [resources when recovered from the Area are referred to as 'minerals']. Exploitation of the Area has become possible due to advances in science and technology by the industrialised nations. In order to regulate the activities of the States in the "seabed and ocean floor and the sub-soil thereof beyond the limits of national jurisdiction", referred to as "Area" (Art. (1) para. 1(1)), the United Nations General Assembly adopted two resolutions before the UNCLOS-III: Resolutions 2574 and 2749 declaring the resources of the Area as the "common heritage of mankind", which shall be governed by a proposed international regime.139The 1982 Convention in Part XI incorporates the customary international law principles about the legal status of the waters superjacent to the Area and the airspace above those waters, where the freedom of the high seas applies and no part of it can be appropriated (Arts. 135 and 137(1)). It establishes an international regime referred in the above-mentioned two General Assembly resolutions. Resources of the Area are declared to be the "common heritage of mankind" (Art. 136). This has been made an over-riding principle in Art. 311(6) by stating, "States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in Art. 136 and that they shall not be party to any agreement in derogation thereof. Though there was a general agreement on the concept, sharp differences prevailed over devising a system for the exploitation of the resources of the Area, which had put the fate of the Convention in jeopardy. On the matter of exploitation of the resources, developing States sought for a system by which exploitation would be conducted by an international body, i.e., the International Seabed Authority (referred here as "Authority"), which would establish an Enterprise for that purpose, and not by States or national undertakings.140 On the other hand, developed States preferred the regime under which exploitation would be by States or national undertakings subject to a system of registration or licensing by an international authority, thereby giving minimum powers to the Authority.The Convention, however, provided a system of "parallel access" as a compromise between the two approaches. Though giving wider powers to the Authority, the activities in the Area shall be carried out by the Enterprise, and in association with the Authority, by the State parties or their entities according to the requirements laid down in Annex. III. All the activities in the Area are to be regulated by the Authority in accordance with the provisions of the Convention (Art. 153(1)). The national entities of State parties which fulfil the: (a) nationality or control,_________________138 The definition of "resources" in Art. 133 is generally phrased to allow for the future discovery of resources on commercial scale other than manganese (polymetallic) nodules.139 Resolution 2574 (XXIV) of Dec. 15, 1969, called the Moratorium Resolution, was adopted by 62 votes with 28 against (including the United States) and 28 abstentions, and declared moratorium on the exploitation of the resources of the Area pending the establishment of an international regime, Res. 2749 (XXV) of Dec. 17, 1970, declared the resources of the Area the "common heritage of mankind".

140 R.P. Anand, Legal Regime of the Seabed and the Developing Countries (Thomson Press, New Delhi), 1975; C. Joyner, 35 ICLQ 190-199 (1986), Churchill and Lowe, op. cit. 1; P. Kirsch and D. Fraser, 26 Canad. YbIL 119-153 (1988).


and (b) sponsorship requirements provided in Art. 153(2)(b) and Annex, are eligible for a contract with the Authority and to carry out activities in the Area.According to the "parallel system", States parties or their entities are required to specify a mining site for exploration and/or exploitation covering "a total area, which need not be a single continuous area, sufficiently large and of sufficient estimated commercial value to allow two mining operations" (Art. 8 of Annex. III). The Authority designates half of the "site" as a "reserved site" to carry out activities through the Enterprise or in association with developing States. Joint ventures between the Enterprise and a State or its entity are also possible. The remaining half is then allocated to an applicant who will work under the close control of its activities by the Authority and undertakes to transfer technology to the Enterprise (Art. 144 of the Convention; Art. 5, Annex. III). The obligation to transfer technology, which shall be included in each contract, will remain until 10 years after the Enterprise has begun commercial production of mineral resources of the Area. Contracts may not be terminated except for serious breach of a fundamental term (Art. 18, Annex. III). A detailed provision has been made for the financial terms of the contract. The contractor is to make payment to the Authority, which will be distributed to States parties on a "non-discriminatory basis", taking into account the special interests of developing countries (Art. 13, Annex. III). The Authority will also control the overall production levels, keeping in view the interests of the land-based metal producers, especially their effects on the economies of developing countries which are producers of such minerals (Arts. 151[paras. 1-7, 9] & 162 of the Convention and Art. 6(5) & 7, Annex. III).

A. International Seabed AuthorityAn independent International Seabed Authority has been created under the Convention with an overall responsibility for the operation of the system (Arts. 156-188). All States parties to the Convention are members of the Authority, which has been established in 1994 after the entry into force of the Convention. It has three principal organs: the Assembly, the Council and the Secretariat (Art. 158(1)). The Assembly, a policy-making body consisting of all the members of the Authority, takes decisions by a two-third majority, each member having one vote (Art. 159). The Council, the executive organ of the Authority, is composed of 36 members elected by the Assembly, representing various interest groups (Art. 161). The Council works through an Economic Planning Commission, and a Legal and Technical Commission. The Secretariat is headed by a Secretary-General, elected for four years by the Assembly and may be re-elected (Art. 166). The 1994 Implementation Agreement provides that most decisions of the Assembly shall be "based on the recommendation of the Council." This has shifted the balance of political power in the Authority towards the Council, thereby increasing the influence of developed countries in decision-making.141The Authority carries out the exploitation of the Area through a separate body, called the Enterprise, which has its principal place of business, i.e., Jamaica, at the seat of the Authority (Art. 170). The Authority is financed mainly by contributions from its members on the basis_________________141 Annex to the Agreement, sec. 3, paras 1, 4.


of their contributions to the United Nations, and funds generated by the activities of the Enterprise and receipts of the Authority arising from activities in the Area. Furthermore, provision is made for the establishment of the Seabed Disputes Chamber of the Law of the Sea Tribunal for the compulsory settlement of disputes relating to the Area (Part XV, Arts. 286 and 287).

B. Preparatory CommissionAt the time of adoption of the Final Act of the UNCLOS-III, by Resolution I, the Preparatory Commission for the Authority and for the International Tribunal for the Law of the Sea was created, consisting of all States which had signed the Convention. Its main tasks were to draw detailed rules and procedures for the deep seabed mining under the Authority and tackle issues concerning mining, such as the arrangements for pioneer investors, the transfer of technology and the treatment of land-based producers. It was also to draft rules related to the International Tribunal for the Law of the Sea to make it functional. The Commission started its work from March 1983 after 50 States had signed or acceded to the Convention. It created four special commissions of equal status to carry out its functions.

C. Developments after 1982The United States, though in principle supported the regime at the UNCLOS III, was totally dissatisfied with the provisions of the deep seabed mining It objected to the system envisaged on mining on a number of counts, including the funding of the Authority, where it would be asked to pay large contribution in proportion to the United Nations budget, and the activities of the Enterprise which will be in conflict with American mining interests, and the obligation to transfer technology. Due to its dissatisfaction with the deep sea-bed regime in Part XI of the Convention, the United States, along with certain developed countries refused to sign the Convention, the United States even voted against the adoption of the Convention. Because of this, during the 1980s and 1990s, the Convention was ratified/acceded mainly by developing countries.On August 3, 1984, a "Provisional Understanding Regarding Deep Seabed Matters" (creating 'Reciprocating States Regime'), was signed between the United States, the United Kingdom, France, Germany, Japan, the Netherlands, Italy and Belgium to avoid possible overlapping and to coordinate their activities in the exploitation of deep seabed, while issuing licences.142 Other States may accede to this regime with the consent of all the parties. This Agreement operates outside the regime of the 1982 Convention, though it is intended not to affect parties' position or their obligation under the Convention.143 The Preparatory_________________142 See also Agreement on the Resolution of Practical Problems with Respect to Deep Seabed Mining Areas dated Aug. 14, 1987 in 26 ILM 1502 (1987); Law of the Sea Bulletin No. 11 (July 1988), pp. 28-45. 143 France, Japan, Italy and Belgium were signatories to the 1982 Convention, hence they were under an obligation to refrain from any act contrary to the objects of the treaty. See, 1969 Vienna Convention on Law of Treaties, Art. 18.


Commission for the Authority, however, declared the agreement as incompatible with the Convention, which should not be recognised.144 In 1988, the United Nations General Assembly also called upon States to desist from taking actions which undermine the Convention or defeat its object and purpose.145However, in order to secure the financial viability of the operations of the Convention and of the Seabed Authority, steps were initiated within the United Nations in early 1990s, which ultimately led to the adoption of the 1994 New York Agreement Relating to the Implementation of Part XI, to the satisfaction of the developed countries.146 The Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it becomes a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would initiate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus. Article 2 of the Agreement provides that the Agreement and Part XI of the Convention shall be interpreted and applied together as a single instrument, and in the event of any inconsistency between the Agreement and Part XI of the Convention, the provisions of the Agreement shall prevail. In effect the Agreement modifies Part XI to meet the objections of developed countries to the original seabed regime of the Convention and paved the way for the ratification of the Convention by them.147The Convention entered into force on November 16, 1994, one year after 60 States acceded or ratified it. This was almost after 12 years of its adoption in December 1982.148

Pioneer investorsOne of the objections of the United States against the 1982 deep seabed regime was the absence of any protection for a pre-Convention investment. For this, Resolution II of the Final Act of UNCLOS-III permitted the States and national undertakings to qualify for registration with_________________144 Declaration of Aug. 30, 1985, Law of the Sea Bulletin, No. 6 (Oct., 1985), p. 85; UN Doc. LOS/PCN/72.145 GA Res. 43/8. In 1980, the United States enacted the Hard Mineral Resources Act to regulate deep seabed mining, see 19 ILM 1003 (1980). Similar legislation was enacted by many developed countries, viz., Germany in 1981, France in 1982, USSR in 1982, Japan in 1983, Italy in 1985, and the United Kingdom in 1981.146 The Agreement was adopted in the 48th Session of the General Assembly by a vote of 121 in favour, none against and seven abstentions, see GA Res. 48/263, July 28, 1994. By the end of 1994, more than 50States had signed the Agreement, including the US and all the industrialised countries.

147 The 1994 Agreement entered into force in 1996. For more details on the Agreement, see Bernard H. Oxman, The 1994 Agreement and the Convention, 88 AJIL 687 (1994), No. 4.148 Presently 158 States and the European Community are its members. The United States, which helped in giving shape to the Convention and was behind the adoption of the 1994 Agreement, has not yet ratified the Convention, though it has signed it.


the Preparatory Commission as "pioneer" investors, if they have spent $30 million on seabed activities by January 1, 1983, and for developing countries, by January 1, 1985.149 "Pioneer" investors have the right to explore, and not exploit, the deep seabed till the entry into force of the Convention, and have the guaranteed priority over other applicants, other than the Enterprise, in the allocation of mining contracts. Once the pioneer area is allocated, the investors would have to make $1 million annual fee and train personnel for the Enterprise. Only pioneers from "certified States" (signatories to the Convention), which have ratified the Convention would be entitled to have plans of work (mining contracts) approved.150 Initially, France, India, Japan and the USSR, acting on behalf of their private or public entities, were registered as "pioneer investors".151 The four western consortia that were eligible, did not apply for registration.Under the Convention, the 'Enterprise' is an independent commercial mining arm of the International Seabed Authority, but under the 1994 Agreement, the 'Enterprise' has a considerably reduced role. Initially it can only engage in joint ventures but if it does not undertake the mining of a reserved site within fifteen years, the original applicant may do so. However, if it decides not to mine the site, the original applicant will be offered the chance to participate in the joint venture. The 'Enterprise' has yet to be established as an entity and will only be established once the seabed mining becomes commercially feasible. In the meantime, the Authority has entered into seven contracts with pioneer investors, including a range of governments, government entities and commercial consortia, whose activities are largely focused on exploration and research presently for a period of 15 years152.The Authority, which meets for just two sessions a year, is currently engaged in drafting regulations on polymetallic sulphides and cobalt rich crusts and in the formulation of the Central Data Repository. 153_________________149 According to this criterion, the number of pioneer investors was confined to eight, plus an unspecified number from developing States. They were grouped into three. The first group comprised of France, Japan, India and the USSR (now Russia), including their State enterprises and corporations. The second consisted of four western consortia, having the nationality of or controlled by the companies of any one or more of the following: Belgium, Canada, France, Germany, Italy, Japan, the Netherlands and US. The third group has developing countries or their private or public enterprises. To register as a pioneer investor, a State must be a signatory to this Convention. While all the countries from the first group were signatories, from the second group, only Japan, Canada, France and the Netherlands had signed the Convention.150 UN Chronicle, Vol. XIX, No. 6 (1982), pp. 9-120.151 India was registered with the Preparatory Commission in 1987, as the first "pioneer investor" by virtue of its investment which gave India an exclusive right to explore an area of 1,50,000 square kilometers in the Indian ocean. India relinquished a total of 50% allocated area by March 2002 - 20% in July 1994, 10% in October 1996, and 20% in March 2002. For the Preparatory Commission's decision of Aug. 17, 1987, see 28 IJIL 127 (1988). France, Japan and USSR were registered as "pioneer investors" in 1988, in the North-Eastern Pacific Ocean.

152 See Malcolm D. Evans, The law of the Sea, in Malcolm D. Evans (Ed.) 'International Law, Ch. 21, at p. 646 (2nd ed. 2006 Oxford University Press)'.153 See www.isa.org.jm

http://www.isa.org.jm/

Page 424 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW X. PROTECTION AND PRESERVATION OF THE MARIN ENVIRONMENT154The 1982 Convention has laid down elaborate provisions in Part XII on the protection and preservation of the marine environment. With 46 Articles (Arts. 192-237), it is one of the longest parts in the Convention, containing 11 sections and incorporates generally agreed provisions on this aspect. The Convention declares that the States have the obligation to protect and preserve the marine environment (Art. 192) while pursuing their sovereign right to exploit their natural resources (Art. 193). States are under a duty to prevent, reduce, and control pollution of marine environment individually and jointly at a global, and, as appropriate, on regional levels (Arts. 194-201).The Convention provides for detailed international rules and national legislation to control pollution from land-based sources, seabed activities subject to national jurisdiction, activities in the Area, the adoption by States of laws and regulations to prevent, minimise and control pollution from vessels, and pollution from or through the atmosphere (Arts. 207-212). The laws and regulations of a State must meet the generally accepted international standards in the case of its own ships (Art. 211(2)). This has an obvious reference to standards laid down by the then existing marine environment treaties in the area of dumping at sea and vessel source pollution in particular. The 1958 High Seas Convention also has two provisions (Arts. 24 and 25) with the similar object of prevention of pollution of the seas. Article 24 imposes a duty upon a State to draw up "regulations to prevent pollution by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its sub-soil, taking into account of existing treaty provisions on the subject". Article 25 deals with the prevention of pollution of seas from the dumping of radioactive waste by States. They must take into account international standards and regulations framed by competent international organisation in this regard.The "existing treaty provisions" in Art. 24 of the 1958 Convention and "generally accepted international standards" in Art. 211(2) of the 1982 Convention have reference to international conventions to prevent pollution from oil spillage in the sea and other sources of pollution of the sea. This has clearly a reference to the 1954 International Convention for the Prevention of Pollution of the Sea by Oil, and two other conventions adopted at Brussels after the massive oil spillage from Liberian Tanker Torry Canyon in 1967, to deal with oil pollution causalities of Torry Canyon genre: the International Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties (referred to as the Intervention Convention) and the International Convention on Civil Liability for Oil Pollution Damage (referred to as the Liability Convention).155 There are numerous other relevant multilateral conventions on marine environment,_________________154 See J. Barros and D.M. Johnston, The International Law of Pollution (Macmillan, London), 1974, pp.200-293; D.M. Johnston (Ed.), The Environmental Law of the Sea (1981); J.W. Kindt, Marine Pollution and the Law of the Sea (1986), R. Soni, Control of Marine Pollution in International Law (1985); R.A. Malviya, Environmental Pollution and its Control under International Law (Chugh Publications), 1987.

155 The Intervention Convention was of limited scope, giving certain rights to States parties to take certain defensive measures against pollution or threatened pollution only by oil. The Liability Convention applied to pollutants and hazardous or injurious products other than oil, which may cause injury and harm to humans and marine resources, damage to amenities and interference with the use of the sea. It was subsequently supplemented by a Protocol relating to Intervention on the High Seas in Cases of MarinePollution by Substances other than Oil, 1973.

Page 425 THE LAW OF THE SEA viz., (i) Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 1972, confined to North Sea and North East Atlantic;156 (ii) London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972;157 (iii) International Convention for the Prevention of Pollution from Ships, 1973; (iv) Paris Convention for the Prevention of Pollution from Land-based Sources, 1974 (related to pollution of the sea from rivers, etc.);158 (v) the Convention for the Protection of the Mediterranean Sea against Pollution, 1976.159The 1978 case of Amoco Cadiz, a Liberian registered tanker owned by a United States company, which was wrecked on the Brittany coast and lost most of its 230,000 tons of cargo of crude oil, greatly influenced the provisions on marine pollution in the 1982 Convention. The 1982 Convention takes into account the rules, regulations and standards set in other conventions to protect the marine environment, but the provisions of the 1982 Convention are without prejudice to the special obligations of States under those conventions (Art. 237). The 1982 Convention is not confined only to pollution caused from land-based sources or activities in the sea or dumping of wastes, but has extended to pollution from or through the atmosphere. According to the source of pollution, States are under a duty to enforce anti-pollution or anti-dumping regulations (Arts. 213-222).Responsibility has been fixed upon States for the fulfilment of their international obligations as to the marine environment. They shall be liable, in accordance with international law, for the non-fulfilment of their responsibility. Further, States are to ensure that their legal systems provide prompt and adequate remedies for damage caused by pollution of the marine environment by persons under their jurisdiction (Art. 235)._________________156 11 ILM 262 (1972).157 11 ILM 1291 (1972).158 13 ILM 352 (1974).159 15 ILM 290 (1976).

Page 426

CHAPTER 15International Criminal Law

I. GENERAL INTRODUCTIONInternational criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious and to make perpetrators of such conduct criminally accountable for their perpetration by States. States are under obligation to prosecute and punish perpetrators of some of those crimes. International criminal law also regulates international proceedings for prosecuting persons accused of such crimes. Principally, it deals with genocide, war crimes, crimes against humanity, and war of aggression. International law provides with set of rules indicating what acts amount to international crimes and the procedural rules governing the prosecution of persons accused of such crimes.1Even though criminal law generally deals with prohibitions addressed to individuals and penal sanctions for violation of those prohibitions imposed by individual States, but in contrast to municipal law, international criminal law comprises elements of both in that although its sources are those of international law, its consequences are penal sanctions imposed on individuals. International criminal law has emanated from sources of public international law, like treaties, customs and general principles of law recognised by nations, etc. Hence, it is governed by the same rules of interpretation as of other principles of international law.

A. HistoryInternational criminal law is a relatively new branch of international law. Classical international law did not focus much attention on international crimes as individuals were considered as objects of international law rather than its subjects. Individuals were not endowed with any rights or duties with the exception of piracy under international law, which could be punished by any State under its municipal law. Nevertheless, some precedents in international criminal law can be found before the First World War, where the trials were held in specially constituted tribunals. During the nineteenth century and before the First World War, only war crimes were punishable for which the vanquished State was held guilty. However, it was only after the War that a truly international criminal tribunal was envisaged to try perpetrators of crimes_________________1 See, generally, Antonio Cassese, International Criminal Law (Oxford University Press, Oxford), 2003; Gabrielle Kirk-McDonald, and Olivia Swaak-Goldman, (Eds.), Substantive and Procedural Aspects of International Criminal Law (Kluwer, The Hague), 2000; G. Robertson, Crimes against humanity - The Struggle for Global Justice (Penguin Books, London), 2000; Y. Dinstein, International Criminal law (1975) 5 Israel YbHR 55-87.

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committed during War. The Treaty of Versailles concluded after the First World War contained certain provisions on the subject (Arts. 227-230), according to which the Head of State and armed personnel could be tried for launching an aggressive war. Defence of superior orders was not available. After the Second World War, revolutionary changes came in this area when Allied powers set up two International Military Tribunals at Nuremberg and Tokyo in 1945 and 1946 respectively to try war criminals not only for war crimes, but crimes against humanity, crimes against peace and conspiracy to commit these crimes. The trials of perpetrators of these crimes not only helped in enunciating clear principles on the subject, but added new categories of crimes.2This was further expanded in 1948 by the Genocide Convention. The four Geneva Conventions and the two Additional Protocols to these Conventions also enlist "grave breaches" of these Conventions, which, if committed, are regarded as war crimes The conclusion of numerous other treaties such as the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft; 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; 1973 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; 1994 Convention on the Safety of United Nations and Associated Personnel, etc. have made aircraft hijacking, unlawful acts against the safety of civil aviation, trafficking in women, children, narcotic drugs, counterfeiting of currency, kidnapping of diplomats and taking of hostages as international crimes. The most recent addition to this increasing list of international crimes is international terrorism. But in the absence of any judicial tribunal to try the perpetrators of these crimes left the matter to the States concerned to prosecute and punish them, which did not see any uniformity in the substantive and procedural rules in this regard and also with no guarantee of their prosecution. Moreover, these treaties focus upon prohibiting certain acts, rather than the consequences of these crimes and the procedure for conviction.Following on the judgments of the International Military Tribunals after the Second World War, in pursuance of the General Assembly resolution, the International Law Commission (ILC), in 1950, formulated a Draft Code of Principles Recognised in the Charter of the Tribunals and the Judgments of the Tribunal.3 The Code made reference to "persons" as guilty of crimes against the peace and security of mankind, to prevent guilty individuals sheltering behind the abstract entity of State. In 1954, the General Assembly adopted a Draft Code of Offences against the Peace and Security of Mankind, embodying the principles of the Nuremberg trial.4 In 1967, the General Assembly adopted a Declaration on Territorial Asylum asking States not to grant asylum to persons against whom serious charges of committing war crimes exist.5 Again, in November 1967, the General Assembly adopted an important Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which paved the way_________________2 For more on these Tribunals, see Ch. 17 infra.3 GA Res. 177 (II).

4 The work on the said Draft stopped in 1954, which could be re-started only in 1988. The International Law Commission work ultimately led to the adoption of the Statute of Rome, establishing the International Criminal Court (ICC) in 2001.5 GA Res. 2312 (XXII) of Dec. 4, 1967.


for the trial of war criminals who could not be tried earlier. In 1996, the ILC adopted twenty draft articles constituting a Code of Crimes against the Peace and Security of Mankind.6 The Code is related to the responsibility of individuals for the relevant crimes.7These developments together helped in creating substantive law related to some categories of crimes, such as war crimes, crimes against humanity, though the procedural aspects are still in the process of development, viz., the objective and subjective elements of the crime, the actus reus and mens rea. Furthermore, international rules developed so far do not lay down any scale of penalties.8 This is partly attributable to the fact that under most of the treaties, prosecution and punishment of the perpetrators of these crimes has been left to the national courts of a State.The 1990's saw the establishment of international criminal tribunals. In 1993, the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY)9 and thereafter the International Criminal Tribunal for Rwanda (ICTR) in 1994.10 These are the most important ad hoc tribunals created to try the perpetrators of crimes, followed by the establishment of the International Criminal Court (ICC), a permanent institution created under the Rome Statute adopted in 1998. The ICC is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression). The need for a separate court arose out of the fact that the International Court of Justice does not have the competence to try individuals.'' Other notable ad hoc tribunals with both national and international judges that have also been created during this time are: Special Court for Sierra Leone,12 (investigating the crimes committed during the Sierra Leone Civil War); Extraordinary Chambers in the Courts of Cambodia,13 (investigating the crimes of the Red Khmer era); and the Special Tribunal for Lebanon, (investigating the assassination of Rafik Hariri).14

B. SourcesInternational criminal law is a subset of international law. As such, its sources are the same as those that comprise international law. The classical enumeration of those sources is in Article_________________6 YbILC, Vol. II (pt. ii), 15-56.7 The draft articles have become redundant in the light of the adoption of the Rome Statute in 1998.8 See A. Cassese, International Criminal law, in Malcolm D. Evans (Ed.) International Law, 2nd ed. (Oxford University Press) 2006, 719, at 720.9 SC Res. 827, 25 May 1993.10 SC Res. 955, 8 Nov. 1994.11 Art. 34(1) of the Statute of the ICJ reads, "Only states may be parties in cases before the Court."12 SC Res. 1315, 10 Aug. 2000. On 16 January 2002, the UN and Government of Sierra Leone signed anagreement establishing the Court.

13 GA Res. A/RES/57/228B, 22 May 2003, http://unakrt-online.org/Docs/GA%20Documents/A-Res-57-228B.pdf.On the request of the Prime Minister of Cambodia, a lengthy negotiations between the Royal Government of Cambodia and the United Nations led to an agreement, signed on 6 June 2003, which was later endorsed by the General Assembly. 14 The court was established by an agreement between the United Nations and the Lebanese Republic; see SC Res. 1664, 29 March 2006. The UN Security Council, acting under Chapter VII of the Charter endorsed the agreement on 30 May 2007, SC Res. 1757, 30 May 2007.

Page 429 INTERNATIONAL CRIMINAL LAW 38(1) of the 1946 Statute of the International Court of Justice and comprises: treaties, customary international law, general principles of law; and as a subsidiary measures judicial decisions and the most highly qualified juristic writings. The ICC Statute contains an analogous, though not identical, set of sources that the ICC may rely on.15There is, however, a strong interface between the international human rights law and national criminal law. Whereas the international human rights law is based on international treaties and conventions and the law as developed by the regional and municipal courts in laying down the criminal law norms pertaining to the fundamental rights of suspects and accused persons, rights of the victims and witnesses and the requirements of a fair trial, the municipal law has contributed towards the content of international crimes and the procedure for the trial of these crimes. Together, they have helped in evolving a body of international criminal law.

II. INTERNATIONAL CRIMINAL TRIBUNALSAlthough the end of the Second World War for the first time saw the constitution of two International Military Tribunals at Nuremberg and Tokyo by the Allied Powers, primarily to try war related crimes, but it is the end of Cold War in the 1990's that saw the establishment of international criminal tribunals to deal with crimes that resulted mainly from internal armed conflicts. These conflicts, fed on nationalism and fundamentalism, saw the disintegration of multi-ethnic societies with serious violations of international humanitarian law and basic human rights on a large scale. With a serious sense of protecting human dignity and to punish those assaulting such dignity the international community tried to seek for international criminal justice by establishing international institution with authority to prosecute and punish those involved in serious violations of international humanitarian law. The process started first with the establishment of ad hoc tribunals followed by the permanent International Criminal Court.

A. Establishment of ad hoc Tribunals for Former Yugoslavia and RwandaIn 1991 civil war erupted in the Socialist Federal Republic of Yugoslavia (SFRY), which led to the wide scale of killings of the civilians, systematic detention and rape of women and 'ethnic cleansing' resorted by different groups in the six republics of Yugoslavia, particularly, in Bosnia-Herzegovina. Alarmed at the scale of violations of international humanitarian law, the UN Security Council determined that the situation continued to pose a threat to international peace and security. To ensure that these atrocities against civilians are halted and effectively redressed, the Security Council, acting under Chapter VII of the Charter, in May 1993, established the first International Criminal Tribunal for the former Yugoslavia.16 The Tribunal was empowered to exercise jurisdiction over grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide, and crimes against humanity allegedly perpetrated in the former Yugoslavia since January 1991. The tribunal is located in The Hague, the Netherlands._________________15 Art. 21, Rome Statute.16 SC Res. 827, 25 May 1993.

Page 430 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW The key objective of the ICTY is to try those individuals most responsible for appalling acts such as murder, torture, rape, enslavement, destruction of property and other crimes listed in the Tribunal's Statute. By bringing perpetrators to trial, the ICTY aims to deter future crimes and render justice to thousands of victims and their families, thus contributing to a lasting peace in the former Yugoslavia. The Tribunal, since its first hearing in the Tadic case on 8 November 1994, has indicted 161 individuals, and has already completed proceedings with regard to 100 of them: five have been acquitted, 48 sentenced (seven are awaiting transfer, 24 have been transferred, 16 have served their term, and one died while serving his sentence), 11 have had their cases transferred to local courts. Another 36 cases have been terminated, either because indictments were withdrawn or because the accused died, before or after transfer to the Tribunal.17 Those indicted included common soldiers, generals, police commanders, head of the State and head of government (Prime Minister. Slobodan Milosevic was the first sitting head of State indicted for war crimes).18The Tribunal has been criticised, among others, for the following reasons: (a) the Tribunal manifest the failure of the Security Council and the Great powers to find a swift and viable solution to the conflict, reflecting on the failure of diplomacy and politics, it is alleged to be created with a specialised political campaign to destabilize the multi-ethnic State of Yugoslavia, with the aim of bringing about "regime change' in Serbia, (b) There was no indictments of NATO officials (guilty of attacks on Serbia in 1999) - even though the ICTY indicted and convicted individuals from every nation involved in the Yugoslav Wars- which amounted to selective justice, and relatedly, the Tribunal manifested anti-Serb bias, as 68% those tried were Serbians, (c) The Tribunal has awarded too mild sentences, (d) Some of the defendants, such as Slobodan Milosevic, claimed that the Court has no legal authority because it was established by the UN Security Council instead of the UN General Assembly, therefore it had not been created on a broad international basis. The Tribunal was established on the basis of Chapter VII of the United Nations Charter; the relevant portion of which reads "the Security Council can take measures to maintain or restore international peace and security", and here the dispute was internal; in other words, it was ultra vires of the Charter. The Tribunal has been claimed to be anti-democratic and in violation of national sovereignty and formed part of coercive order created by the Security Council, (e) There has also been failure to provide a complete separation of the prosecutorial and judicial work. Two key indictees, Ratko Mladic and Goran Hadzic have been charged but are still not apprehended, which reflects badly on its image. These criticisms, however, are not supported by the deliberations and the judgements rendered by the Tribunal.Closely on the heels of ICTY, the Security Council, acting under Chapter VII of the UN Charter, established the International Criminal Court for Rwanda (ICTR). The Tribunal___________________17 As of November 2008, there were eight ongoing trials and four cases were in the pre-trial stage. Ten further cases are at the appeals stage and two accused, Ratko Mladic and Goran Hadzic, are still at large. On 21 July 2010, the cases of UCK (Kosovo Liberation Army) commanders Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj were re-opened for re-trial. See www.icty.org/action/cases/4

18 en.wikipedia.org/.../International_Criminal_Tribunal_for_the_former_Yugoslavia


was established in the background of civil war in Rwanda between Tutzi and Hotu tribes that started in 1991 and in which the death toll has been estimated to be of 800,000. The ICTR was called upon to adjudicate crime of genocide, crimes against humanity, violations of Art. 3 common to the Geneva Conventions and of the II Additional Protocol to these Conventions, allegedly perpetrated in Rwanda or by Rwandan citizens in the territory of nearby States, between 1 January and 31 December 1994. The Resolution defined the acts amounting to genocide (annexed to the Resolution) and made the following acts as punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct or public incitement to commit genocide; (d) attempt to commit genocide; and (e) complicity in genocide. Art. 1 of the Statute of the ICTR provides that the ICTR 'shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of neighbouring States, between 1 January 1994 to 31 December 1994, in accordance with the provisions of the present Statute. The Tribunal is consisted of a Chamber, two trial chambers and an Appellate Chamber; the Prosecutor; and the Registry.At the end of April, 2011, the ICTR has indicted 92 individuals. One case is in the pretrial stage, 20 individuals are currently on trial, nine are appealing their sentences, and eight have been acquitted and released from detention. Proceedings against four individuals were terminated after two died and indictments against two were withdrawn. Additionally, the cases of two accused were transferred to national jurisdictions. The Tribunal has finished proceedings against 28 accused who are currently serving prison sentences and seven have finished their sentences and have been released. Ten accused remain at large as fugitives.Through several resolutions, the Security Council called on both the Tribunals to complete their investigations by the end of 2004, complete all trial activities by the end of 2008, and complete all work in 2012. According to the ICTR's Completion Strategy, in accordance with Security Council Resolution 1503,19 all first-instance cases were to have completed trial by the end of 2008 and all work is to be completed by 2010.20 But it is feared that the work of the ICTR may not be complete by then. On the other hand, the last indictment by the ICTY was issued on 15 March 2004. The Tribunal aims to complete all trials by the middle of 2011 and all appeals by 2013, with the exception of Radovan Karadzic whose trial is expected to end in 2012 and the appeal to be heard by February 2014.Although both the Tribunals have been created under separate Statutes, but they share a common Prosecutor and a common Appellate Chamber, which demonstrates the need to ensure some uniformity in the administration of international criminal justice. Compared to the magnitude of the crimes, the number of cases handled by the two tribunals and the convictions handed-down are not very impressive, but the range of crimes, viz., war crimes, genocide and crimes against humanity have helped in creating some relevant jurisprudence in this regard, particularly, for the newly created International Criminal Court.___________________19 SC Res. 1503, 29 July 2008. The date was later extended to the end of 2009.

20 SC Res. 1534, 26 March 2004, the Council called on the ICTY and ICTR to complete all trial activities by the end of 2008.


B. International Criminal Court (ICC)211. Creation of the CourtThe early attempts to establish an international criminal court started by the Committee of Jurists in 1920 to try crimes against international public order and the universal law of nations. The League of Nations drafted a Convention for the Establishment of an International Criminal Court in 1937 (along with the Convention on the Prevention and Punishment of Terrorism), consisting of five judges and five deputies to be elected by the Permanent Court of International Justice. The Convention could not come into force due to lack of ratifications, hence the attempt to establish the Court failed.After the coming into force of the United Nations, on the request of the General Assembly, the International Law Commission (ILC) drafted two statutes by the early 1950s and concluded that the establishment of the court was both desirable and possible. In 1950, the General assembly created a Committee on International Criminal Jurisdiction (the Geneva Committee) to prepare a draft. The report and the draft statute of the Court were discussed by the General assembly in its seventh session but no decision was taken and once again a new Committee of seventeen members was created. The Committee prepared a draft statute of the Court, which would be consisted of nine judges elected by the parties to the Statute from a list prepared by the Secretary-General. The Court would apply international law and where appropriate the national law. The report of the Committee along with the draft Statute were sent to the States for their comments, but few responded. In 1952, again a new Committee consisting of seventeen members was assigned the task and its report was placed before the General Assembly in 1954. But the Cold War conditions made the establishment of an international criminal court politically unrealistic,22 and the matter was finally postponed by the General Assembly in 1957. Along with this, in 1954, the ILC adopted a draft Code of Offences against the Peace and Security of Mankind, but it was never incorporated in a treaty, and the 1974 definition of aggression by the General Assembly in Resolution 3314 (XXIX) was widely seen as insufficient for determining individual criminal responsibility. The ILC resumed work on the draft code in the 1980s, but did not complete its work on a Draft Code of Crimes against the Peace and Security of Mankind (1996 Draft Code of Crimes) until 1996.23The idea to establish a court again revived in 1989, when the General Assembly requested the ILC, at the proposal of the then Prime Minister of Trinidad and Tobago to deal with the illegal drug trade, to address the issue of establishing an international criminal court.24 In 1992 and again in 1993, the General Assembly requested the Commission to elaborate draft for such___________________21 On the ICC, see A. Cassese, International Criminal Law (Oxford University Press: Oxford) 2003; Cassese, P. Gaeta and JRHJ Jones ed., The Rome Statute of the International Criminal Court (Oxford University Press) 2002; Lee, ed., International Criminal Court (2000); W. Schabas, An Introduction to the International Criminal Court 2nd ed. (Cambridge University Press: Cambridge) 2005; Triffterer ed., Commentary on the Rome Statute of the International Criminal Court (1999).

22 Gary T. Dempsey, Reasonable Doubt: The Case Against the Proposed International Criminal Court, Cato Institute (16 July 1998), www.cato.org/pub display.php?pub_id=l 17023 See op. cit. 6 & 7 above.24 GA Res. 44/39, 4 Dec. 1989.

Page 433 INTERNATIONAL CRIMINAL LAW a court as a matter of priority.25 This urgency arose partly because of the developments in former Yugoslavia and Rwanda for which the Security Council established ad hoc tribunals to try war crimes and crime of genocide in 1993 and 1994, which further highlighted the need for a permanent international criminal court with global jurisdiction. The Commission completed a comprehensive draft statute in 1994 and submitted it to the General Assembly, which constituted an ad hoc committee consisting of all members to review the administrative and substantive issues arising out of the draft Statute. This was followed by the establishment of the Preparatory Committee on the Establishment of an International Criminal Court (PrepCom).26 The Committee held a series of meetings in 1996 and 1997, and prepared the draft convention on the establishment of the international criminal court which it submitted to the Diplomatic Conference of Plenipotentiary held in Rome from 15 June-17 July 1998. This resulted into the adoption of the Rome Statute on the International Criminal Court.27 India abstained in the vote and has since neither ratified nor signed the Rome Statute. It has consistently opposed the constitution of the Court, objecting to the broad definition adopted of crimes against humanity; right given to the Security Council to refer cases, delay investigations and to bind non-State Parties; and the use of nuclear weapons or other weapons of mass destruction not being explicitly outlawed. Other anxieties of India about the Court are: how the principle of complementarity would be applied to the Indian criminal justice system; the inclusion of non-international conflicts (as Kashmir and other disputes within India) in the category of war crimes; and the power of the prosecutor to initiate prosecutions.28The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached sixty. The Statute came into force on 1 July 2002 and its first judges were elected in February 2003. The ICC can only prosecute crimes committed after that date. The Court's official seat is in The Hague, the Netherlands, but its proceedings may take place anywhere.29 Currently there are 114 States parties to the Court.30 The Statute consists of 128 Articles divided into 13 parts besides the Preamble. Art. 1 declares that an International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern. The Court shall be complementary to national criminal jurisdictions. The ICC issued its first arrest warrants in 2005.31___________________25 See GA Res. 47/33, 25 Nov. 1992 and Res. 48/31, 9 Dec. 1993.26 GA Res. 50/46, 11 Dec. 1995.27 Statute was adopted by 120 to seven (USA, Libya, Israel, Iraq, China, Sudan and Syria) with 20 abstentions.28 Usha Ramanathan, India and the ICC, 3 Journal of International Criminal Law, 627-634 (2005). India expressed concern that the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime.29 Art. 3, Rome Statute.30 This includes all of Europe and Latin America and roughly half the countries in Africa. A further 34 countries, including Russia, have signed but not ratified the Rome

Statute, out of which Israel, Sudan and the United States have "unsigned" the Rome Statute. 45 States have neither signed nor ratified the Rome Statute; some of them, including China and India, are considered by some to be critical to the success of the Court.31 As of March 2011, the Court has indicted 23 persons; proceedings are going on against 21 out of which 8 remain fugitives (one is presumed dead), 5 are in custody, 2 have appeared and six are expected to appear voluntarily before the Court.


2. Organisation of the ICCArt. 36 of the Rome Statute of the Court outlines the qualifications and procedure of election of the judges of the Court. The ICC consists of 18 judges. The number may be increased on a proposal of the Presidency, indicating the reasons for the increase. Judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. Every candidate for election to the Court should have the proven competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or proven competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court; and the candidate should have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Nominations of candidates for election to the Court may be made by any State Party to the Statute.The judges shall be elected by secret ballot at a meeting of the Assembly of States parties convened for this purpose. No two judges shall be nationals of the same State. In the selection of judges, the States Parties shall take into account the need for (i) the representation of the principal legal systems of the world; (ii) equitable geographical representation; and (iii) a fair representation of female and male judges.32 Judges shall hold office for a term of nine years and shall not be eligible for re-election. In the event of a vacancy, an election shall be held and an elected judge shall serve for the remainder of the predecessor's term and if that period is three years or less then he/she shall be eligible for re-election for a full term (Art. 37). A judge is independent in the performance of his functions. A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case if that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of procedure and evidence (Art. 41).

3. Composition of the ICCThe Court is composed of the following organs: (a) the Presidency; (b) an Appeals Division, a Trial Division and a Pre-Trial Division; (c) the Office of the Prosecutor; and (d) the Registry. (Art. 34). The President, together with the First and Second Vice-Presidents, constitute the Presidency, which shall be responsible for: (a) the proper administration of the Court, with the exception of the Office of the Prosecutor; and (b) the other functions conferred upon it in accordance with this Statute. In discharging this responsibility, the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern. The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of___________________32 At the time of ICC's inauguration in March 2003, it had 11 male and 7 female judges.


their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once.33

a. ChambersThe Court is organised into three Divisions: (a) the Appeals Division which is composed of the President and four other judges, (b) the Trial Division of not less than six judges and (c) the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience. The judicial functions of the Court are to be carried out in each division by Chambers. The Appeals Chamber shall be composed of all the judges of the Appeals Division. The functions of the Trial Chamber shall be carried out by three judges of the Trial Division. The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge of that division in accordance with the Rome Statute and the Rules of Procedure and Evidence. Judges assigned to the Trial and Pre-Trial Divisions serve in those divisions for a period of three years and thereafter until the completion of any case the hearing of which had already commenced in the division concerned (Art. 39).

b. The Office of the ProsecutorThe Office is headed by the Prosecutor, which is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office will not seek or act on instructions from any external source. The Prosecutor has full authority over the management and administration of the Office, including the staff, facilities and other resources thereof. The Prosecutor is to be assisted by one or more Deputy Prosecutors, who will be entitled to carry out any of the acts required of the Prosecutor under the Statute. The Prosecutor and the Deputy Prosecutors have to be of different nationalities and persons of high moral character with an extensive experience in the prosecution or trial of criminal cases. They are elected through secret ballot by an absolute majority of the Assembly of States parties. They serve on a full-time basis. The functions of prosecutor are defined in Art. 42.

c. The RegistryThe Registry of the Court is headed by a Registrar, who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registrar is elected by the judges by absolute majority through secret ballot, taking into account any recommendation by the Assembly of States parties. If the need___________________33 Art. 38, Rome Statute.


arises and upon the recommendation of the Registrar, a Deputy Registrar can be elected in the same manner by the judges. The term of office of the Registrar is five years, and he is eligible for re-election once and serves on a full-time basis (Art. 43).

4. Jurisdiction of the ICCThe ICC has been created with an avid aim that the most serious crimes of concern to the international community as a whole must not go unpunished (Preamble, para 4), which according to Art. 5 (1) of the Statute are: the crime of genocide; crimes against humanity; war crimes; and the crime of aggression. Whereas the Statute defines the other crimes, the ICC will exercise jurisdiction over the crime of aggression after it has been defined by the Review Conference to amend the Statute under Arts. 121 and 123.34 A Review Conference held in Kampala from 31 May and 11 June 2010 has adopted by consensus amendments to the Rome Statute which include a definition of the crime of aggression and a regime establishing how the Court will exercise its jurisdiction over this crime.35Article 8bis of the Definition adopted at Kampala, defines the crime of aggression, as "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations." Thus, the crime of aggression has the following essential: (a) a leadership crime; (b) flowing from an act of aggression; and (c) subject to U.N. Charter constraints. The definition furthermore follows the "differentiated approach" whereby the means of perpetration and the element of mens rea are not included in the definition but are dealt with separately in other sections of the ICC Statute (Articles 25(3) and 30, respectively). By virtue of the fact that aggression is a leadership crime, perpetration as an accessory (Article 25(3) (c)), attempt to commit the crime (Article 25(3) (d)), and vicarious liability for a crime committed by others (Article 28), will not be feasible in cases of aggression.36 An act of aggression is defined as the use of armed force by one State against another State without the justification of self-defence or authorisation by the Security Council. The definition of the act of aggression, as well as the actions qualifying as acts of aggression contained in the amendments (for example, invasion by armed forces, bombardment and blockade), are influenced by the UN General Assembly Resolution 3314 (XXIX) of 14 December 1974 on the definition of Aggression.37Conditions under which the jurisdiction of the ICC in the crime of aggression can be invoked have been stated in Art. 15ter and Art. 15bis, which establish a unique jurisdictional regime. In the case of Security Council referrals (Art. 15ter), the Prosecutor may proceed_____________________34 During the Review Conference of the ICC Statute in Kampala, two amendments to the Rome Statute were adopted on June 10 and June 11, 2010. The second amendment concerns the definition of the crime of aggression. See Resolution RC/Res.6, 11 June 2010, available at http://treaties.un.org35 Review Conference expanded the term of war crimes for the use of certain weapons in an armed conflict not of an international character.

36 See Johan D. van der Vyver, Prosecuting the Crime of Aggression in the International Criminal Court, U. Miami Nat'l Security & Armed Conflict L. Rev., Vol. 1, 2010-201137 See Ch. 17 infra.


with an investigation into the commission of the crime of aggression without any further requirement. In 'situations' where investigations are triggered by State Party referrals or by the Prosecutor acting proprio motu (Art. 15bis), the Prosecutor must first establish whether the Security Council has made a determination of an act of aggression (under Art. 39 of the UN Charter). If it has, the Prosecutor may proceed with the investigation; if it has not done so within a period of six months after having been notified by the Prosecutor, a Pre-Trial Chamber of the ICC may authorise the investigation to proceed. In both instances, however, a determination of an act of aggression by the Security Council is not binding to the ICC's own finding in this regard.In the case of State Party referrals and investigations proprio motu, the crime of aggression cannot be prosecuted in the ICC (a) if the State guilty of the act of aggression is not a State Party to the ICC Statute, in which event the ICC cannot exercise its jurisdiction over the crime of aggression committed by a national or on the territory on the non-party State; or (b) if the State concerned, being a State Party, has lodged a prior declaration to the Registrar of the ICC that it does not accept the jurisdiction of the ICC over the crime of aggression (Art. 15bis). These constraints do not apply in the case of Security Council referrals, irrespective of whether the State concerned has accepted the Court's jurisdiction in this regard.38The amendments to the ICC Statute approved by the Review Conference will enter into force following ratification of the amendments by thirty States Parties. Furthermore, the Court shall exercise jurisdiction over the crime of aggression in accordance with Article 15bis and 15ter, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the ICC Statute.39The definition of genocide as stated in Art. 6 of the Statute is similar to Art. 2 of the 1948 Genocide Convention. The Genocide Convention has been rarely invoked or enforced at the international level. In 1993, for the first time the case was brought before the ICJ by Bosnia and Herzegovina against Yugoslavia.40 Under the Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; and (e) forcibly transferring children of the group to another group."Crimes against humanity" are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack and include the following acts: (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty in violation of_____________________38 Acting under Chapter VII of the UN Charter, the Security Council has referred the ongoing violent repression of civilians in Libya to the ICC, vide its Res. 1970 of 26 February 2011, even though Libya is not a party to the Rome Statute, considering the repression of civilians as crimes against humanity.

39 www.iccnow.org/?mod=aggression, visited on May 4, 2011.40 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, (1993) ICJ Rep. p. 3. See also Preliminary Objections, Judgement, (1996) ICJ Rep., p. 595.

Page 438 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violences of comparable gravity; (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender grounds that are universally recognised as impermissible under international law; (i) enforced disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health (Art. 7(1)).The Court has the jurisdiction in respect of "war crimes" in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. They relate to acts committed in violation of humanitarian law. They constitute the grave breaches of the Geneva Conventions of 12 August 1949, if directed against persons or property protected under the provisions of the relevant Geneva Convention (Art. 8).41 The elements of these crimes must be consistent with the Statute and are to aid the Court in interpreting definitions of crimes (Art. 9), and Rules of Procedure and Evidence, which also must be consistent with the Statute (Art. 51).The State that becomes a party to the Statute thereby accepts the jurisdiction of the Court with respect to the above crimes. According to Art. 12(2), the Court may exercise jurisdiction only in cases where (a) the alleged crime is committed on the territory of a State party to the Statute, including on board a vessel or aircraft, the State of registration of that vessel or aircraft; or (b) the State of which the person accused of the crime is a national of a State party to the Statute. Thus, the Court can exercise jurisdiction over nationals of a State which is not a party to the Statute. If the acceptance of a State which is not a Party to this Statute is required under Art. 12(2), that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. However, exercise of jurisdiction is subject to other important conditions, which try to balance out the interests of the State whose nationals are accused, the State where the alleged offence has taken place, and the proper application of international criminal law and justice.There is the so-called 'trigger mechanisms' to invoke the jurisdiction of the Court. According to Art. 13, the Court can exercise the jurisdiction falling within the scope of the Statute only when the situation has been referred to the Prosecutor by (a) a State party to the Statute; (b) by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) the Prosecutor has himself/herself initiated an investigation in respect of such a crime.42_____________________41 Art. 8 also deal with the standards applicable "in the case of an armed conflict not of an international character" based upon Art. 3 common to the four Geneva Conventions, see Art. 8(2) (c), (d), (e), and (f) of the Statute of the ICC.42 So far, the Court has opened investigations into six situations, all of them in Africa: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic, Darfur (Sudan), the Republic of Kenya and Libya. Out of these six, three were referred to the Court by the States parties (Uganda, Democratic Republic of the Congo and Central African Republic), two were referred by the United Nations Security Council (Darfur and

Libya) and only one (Kenya) began proprio motu by the Prosecutor. See, en.wikipedia.org/wiki/International_Criminal_Court Most recently, on May 16, 2011 chief prosecutor Luis Moreno-Ocampo of the ICC has requested the Court to issue arrest warrants for war crimes against Colonel Muammar Gaddafi, his son Saif al-Islam, and the head of Libya's intelligence service, Abdullah al-Senussi.

Page 439 INTERNATIONAL CRIMINAL LAW The Court has jurisdiction only with respect to crimes committed after the entry into force of the ICC Statute unless that State has made a declaration accepting the jurisdiction in respect to the crime in question (Art. 11). The Court has jurisdiction only over natural persons (Art. 25). A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment under the Statute if that person: (a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (e) be in respect of the crime of genocide, directly and publicly incites others to commit genocide; (f) attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. The Court will exercise jurisdiction over persons who shall be responsible for their crime.43The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations (Art. 29). A person shall not be criminally responsible if, at the time of that person's conduct: (a) he/she was suffering from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct; (b) the person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct; (c) the person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person; (d) the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress (Art. 31).The official position/capacity, in particular, as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official is not a ground to exempt a person from criminal responsibility or in reduction of sentence. The Statute clearly lays down that the immunities or special procedural rules available to such persons under national or international law will not be a ground to bar the Court from exercising its jurisdiction over such a person (Art. 27). This position under the Statute is at variance with the judgement of the ICJ in the Arrest Warrant of 11 April 2000 case (Democratic Republic of Congo v. Belgium). The Court, by thirteen votes to three, decided that the issue of the arrest warrant of 11 April 2000 against Mr. Abdulaye Yerodia Ndombasi by Belgium and its international circulation, constituted violations of a legal obligation by Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law.44 On the other hand, some higher municipal courts have not accepted the defence of immunity for the international criminal acts of the former

head of State or government. In the Pinochet case,45 the House of Lords, in the second appeal_____________________43 Art. 31 of the Statute lays down the exceptions, excluding criminal responsibility of persons.44 (2002) ICJ Rep., p. 3; www.icj-cij.org/docket/index.php?pl=3; (2002) 41 ILM 536.45 [1999] 2 WLR 827.


dealt with the charges of torture brought against the former Head of State of Chile by the Spanish Government. Majority of the judges held that the standard of whether torture was lawful or not has been set by international law, and not by domestic law, and thus torture cannot constitute acts committed in performance of official function of a Head of State. Pinochet was held guilty and benefit of immunity was not accorded to him.The important aspect in the exercise of jurisdiction by the ICC is that it is complimentary to the national criminal justice systems. It does not replace the national courts; on the contrary, national courts enjoy priority over the ICC. According to Art. 17 of the Statute, a case is to be declared inadmissible if it is being investigated or prosecuted by national authorities, unless the State in question is unable or unwilling genuinely to carry out the investigation or prosecution. Primary responsibility to investigate and punish crimes is therefore left to individual States. This leaves the ICC jurisdiction as residual in nature. The other grounds of inadmissibility are: the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; the person concerned has already been tried for conduct which is the subject of the complaint; and the case is not of sufficient gravity to justify further action by the Court. Admissibility of a case is decided by the Court itself.Jurisdiction of the Court may be challenged by: (a) an accused or a person for whom a warrant of arrest or a summons to appear has been issued; (b) a State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) a State from which acceptance of jurisdiction is required. The Court shall not exercise its jurisdiction on a person with respect to conduct which formed the basis of crimes for which the person has already been tried by it (ne bis in idem).46Article 21 of the Statute of the Court lays down the law applicable to a case, in a hierarchical manner, as follows: (a) in the first place, the Statute of the ICC, elements of crime and its Rules of Procedure and Evidence; (b) in the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the ICC Statute and with international law and internationally recognised norms and standards. The Court may apply principles and rules of law as interpreted in its previous decisions. However, the application and interpretation of law should be consistent with internationally recognised human rights, and be in accordance with the principle of nondiscrimination. Thus, the decisions of the Court have precedential value.The Court, while deciding a case shall apply the general principles of criminal law such as nullum crimen sine lege, i.e., a person shall not be criminally responsible under the Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court, and nulla poena sine lege (no punishment without law), i.e., a person convicted by the Court may be punished only in accordance with the Statute. Similarly, no person shall

_____________________46 Art. 20, Rome Statute

Page 441 INTERNATIONAL CRIMINAL LAW be criminally responsible under this Statute for conduct prior to the entry into force of the Statute (non-retroactivity ratione personae).47 Superior order, as such, is not a ground of exonerating a person from criminal responsibility, unless the person was under a legal obligation to obey orders of the Government or the superior in question; the person did not know that the order was unlawful; and the order was not manifestly unlawful (Art. 33).Penalties for a convicted person, as prescribed under the Statute, are: (a) imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. In addition to imprisonment, the Court may also order: (i) a fine under the criteria provided for in the rules of procedure and evidence; (b) forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties (Art. 77).

III. CATEGORIES OF INTERNATIONAL CRIMESAs opposed to the State responsibility, international crimes that are breaches of international rules entailing personal responsibility of the individuals are war crimes, crimes against humanity, genocide, torture, aggression, terrorism - State-sponsored or State-tolerated terrorism.48 The cantours of war crimes, crimes against humanity, war crimes, crimes against humanity and genocide have been discussed in the Nuremberg and Tokyo Trials and subsequently in the context of two ad hoc tribunals for Yugoslavia and Rwanda. These have been further elaborated under Articles 6 (genocide), 7 (crimes against humanity) and 8 (war crimes) of the Rome Statute. The definition of the crime of aggression has been adopted by the Review Conference of the Rome Statute in June 2010.49 The crime of torture has been defined in the 1984 UN Convention against Torture (Art. 1(1)). Torture committed on a large scale is considered as one of the crimes against humanity.50 The terrorist attacks on September 11, 2011 have brought the crime of terrorism to the centre stage and it has become a major concern of the international community since the last two decades.

A. TerrorismTerror comes from the Latin verb terrere meaning "to frighten". In modern times "terrorism" usually refers to the killing of innocent people by a private group usually to achieve some political goals. Terrorism has been on the international agenda since 1934, when the League of Nations began the elaboration of a convention for the prevention and punishment of terrorism. The_____________________47 Articles 21, 22 and 23, Rome Statute.48 According to Cassese, piracy or illicit traffic in narcotic drugs and psychotropic substance, the unlawful arms trade, smuggling of nuclear and other potentially deadly materials or money laundering are not international crimes (they are regulated by other treaty provisions). See, A. Cassese, International Criminal law, in Malcolm D. Evans Ed. International Law, 2nd ed. (Oxford University Press) 2006, 719, at 735.49 See above, pp. 436-437.

50 See the Pinochet case, [1999] 2 WLR 827, 841.


Convention was eventually adopted in 1937, along with the Convention for the Establishment of an International Criminal Court, but it never came into force.Not all acts of terrorism amount to international crime, which should have an international element, that is, it should involve two or more States. Terrorist activities carried out within a State are criminal offences punishable under the relevant laws of the State concerned. On the other hand, terrorist acts amount to an international crime when: (a) they are not limited to one particular State but spill over to other States in their effects; (b) they are carried out with the support or acquiescence of the State where the terrorist organisation is located, or they are State-sponsored terrorist acts; (c) they are carried out on a large scale and are serious in nature, hence they are the concern of international community and a threat to international peace.51

1. Definition of TerrorismThere is no universally agreed, legally binding, criminal law definition of terrorism.52 Various legal systems and government agencies use different definitions of terrorism in their national legislation. The international community has been slow to formulate a universally agreed, legally binding definition of this crime partly due to different perceptions of 'terrorism' held by States. Common definition of terrorism refer only to those violent acts which are intended to create fear (terror) and intimidation, and are perpetrated for a religious, political or ideological goal, deliberately target or disregard the safety of civilians, and are committed by non-government agencies or groups.53 Victims of terrorist acts may be both civilians and public officers, including law enforcement agencies and military personnel.In the absence of an agreed definition, scholars generally feel that it is difficult to criminalise terrorism under international law. Under customary international law also, terrorism per se is not a discrete crime. At present, there are 27 global or regional instruments pertaining to the subject of international terrorism, dating back to 1963,54 which prohibit and criminalise individual terrorist acts without definition, viz., hijacking of aircraft, terrorist acts against internally protected persons including diplomatic agents, the taking of hostages, terrorist acts against the safety of maritime navigation, terrorist bombing, financing of terrorism. The 1999 International Convention for the Suppression of the Financing of Terrorism does provide a definition, which in the first place refer to acts that have been prohibited under other nine_____________________51 See UN Security Council Res. 1368, 12 Sept. 2001. The Resolution condemned the terrorist attacks in New York, Washington D.C. and Pennsylvania on 11 September 2001 and termed them as a threat to international peace and security. The GA Res. 56/1, 12 September 2001 also called upon all States to work together to bring the perpetrators, organisers and sponsors of these crimes to justice. 52 Angus Martyn, The Right of Self-Defence under International Law - the Response to the Terrorist Attacks of 11 September, Australian Law and Bills Digest Group, Parliament of Australia Web Site, 12 February 2002; Thalif Deen. POLITICS: U.N. Member States Struggle to Define Terrorism, http://ipsnews.net

http://ipsnews.net/

53 Webster Dictionary defines terrorism as "the systematic use of terror esp. as a means of coercion". Terror is defined as 'a state of intense fear.54 UNGA Doc. A/60/228, 12 August 2005.


treaties listed in the Annex55 and then it provides a formula to enlist a terrorist act and provides that terrorism is:Any ...act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act. (Art. 2(1) (b)).Certain regional conventions also define terrorism on the similar lines, viz., the 1998 Arab Convention on the Suppression of Terrorism; the 1999 Convention of the Organisation of the Islamic Conference on Combating International Terrorism; and the 1999 OAU Convention on the Prevention and Combating of Terrorism. However, all these conventions keep an important exception whereby peoples' struggles against foreign occupation and aggression for liberation and self-determination 'shall not be considered a terrorist crime.' In fact, the violent acts by 'freedom fighters' have been a greatest stumbling block in adopting a widely acceptable definition of 'terrorism', which has so far proved to be a hurdle in reaching an agreement in the United Nations on the text of a Comprehensive Convention on Terrorism. But lack of definition has resulted into keeping terrorism out of the ICC Statute. Nevertheless, the terrorism as an international crime has the following elements:56— the act must constitute a criminal offence under most national legal systems, such as murder, kidnapping, hostage-taking, bombing, torture, etc.;— the act must be aimed at compelling a State, an international organisation, or a non State entity (e.g., a MNC) to do or to abstain from doing any act, either by spreading terror among the population or by means of violent action or threat thereof directed against a State, a State official, an intergovernmental organisation, a public or private body (like a MNC);— the act must be motivated by political, religious, or otherwise ideological reasons and not by private motives.Since terrorism may manifest in many forms, it may fall into variety of categories of crimes and may be tried for war crimes, crimes against humanity or as a distinct crime in its own right. Whereas the war crimes and crimes against humanity have been vividly defined in the Rome Statute, the terrorism, as a distinct crime must also exhibit the general features of the other two crimes and also have all the elements stated above and it should have an international element,_____________________55 These are: 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft; 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,; 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; 1979 International Convention against the Taking of Hostages; 1980 Convention on the Physical Protection of Nuclear Material; 1988 Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation; 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime

Navigation; 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf; and 1997 International Convention forthe Suppression of Terrorist Bombings. 56 A. Cassese, op. cit. 48, p. 748.

Page 444 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW that is, the act should not be confined to the territory of one State but must spill over and jeopardise the security of other States in a significant way.

2. Anti-Terrorism Efforts of the United NationsThe United Nations has long been active in the fight against international terrorism. The General Assembly, since 1972 under the agenda item 'Measures to eliminate international terrorism' has been active in this regard. Reflecting the determination of the international community to eliminate this threat, the United Nations and its agencies have developed a wide range of international legal agreements that enable the international community to take action to suppress terrorism and bring those responsible to justice. Sixteen universal instruments (thirteen instruments and three amendments) against international terrorism have been elaborated within the framework of the United Nations system relating to specific terrorist activities. Among the notables are: 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention, against hijacking- safety of aviation); 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention); 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention); 1979 Convention on the Physical Protection of Nuclear Material (Nuclear Materials Convention); 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation; 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation; 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf; 1991 Convention on the Marking of Plastic Explosives for the Purpose of Identification; 1997 International Convention for the Suppression of Terrorist Bombings; 1999 International Convention for the Suppression of the Financing of Terrorism; and 2005 International Convention for the Suppression of Acts of Nuclear Terrorism (it entered into force on 7 July 2007).At its 60th session, the General Assembly in resolution 60/43 "condemned all acts, methods and practices of terrorism in all its forms and manifestations as criminal and unjustifiable". In addition, the Assembly decided that the Ad Hoc Committee of its Sixth Committee, established by resolution 51/210 of 17 December 1996, continue to elaborate the draft Comprehensive Convention on International Terrorism on an expedited basis. The draft of the proposed convention is currently under negotiations. On 8 September 2006, the UN General Assembly adopted a "Global Counter-Terrorism Strategy." The Strategy is significant that for the first time all Member States of the United Nations have agreed to a common strategic and operational framework to fight terrorism. The Strategy forms a basis for a concrete plan of action: to address the conditions conducive to the spread of terrorism; to prevent and combat terrorism; to take measures to build state capacity to fight terrorism; to strengthen the role of the United Nations in combating terrorism; and to ensure respect of human rights while countering terrorism.57On 8 September 2010, the General Assembly conducted the second biennial review of the United Nations Global Counter-Terrorism Strategy. In a resolution adopted by consensus, the Member States reiterated strong and unequivocal condemnation of terrorism in all its forms and manifestations, "by whomever, wherever, and for whatever purposes." The resolution

_____________________57 www.un.org/terrorism/

Page 445 INTERNATIONAL CRIMINAL LAW reaffirmed the primary responsibility of Member States in implementing the Strategy, which was adopted in 2006 and remains the strategic framework and practical guidance on joint international efforts to counter terrorism. It further recognised the need to enhance the important role the United Nations, including the Counter-Terrorism Implementation Task Force, played, along with other international and regional organisations, in facilitating and promoting coordination and coherence to that end at national, regional and global levels.The Security Council has also been active in countering terrorism through resolutions and by establishing several subsidiary bodies. It has adopted a string of resolutions on terrorism prior to 11 September 2001 when the terrorists attacks took place in New York, Washington and Pennsylvania in the United States: Resolution 731 (January 21, 1992); Resolution 748 (March 31, 1992); Resolution 883 (November 11, 1993); and Resolution 1269 (19 October 1999).58 Resolution 1373 (September 28, 2001) adopted under Chapter VII of the United Nations Charter, which makes it legally binding on member States, is the cornerstone of the United Nations' counter-terrorism efforts. Among other provisions, it favoured the exchange of intelligence between member States and legislative reforms. It established the United Nations Security Council Counter-Terrorism Committee (CTC), consisting of all the members of the Council, to monitor state compliance with its provisions. The main thrust of the resolution was on the financing of terrorist operations and to stop providing safe haven to anyone supporting terrorists or their organisations. But the resolution failed to provide any sanction against States acting in violation of the resolution, nor did it define terrorism. It also failed to identify 'terrorist groups', thus leaving it up to the States to do so. By Resolution 1963 (20 December 2010), the Security Council extended the term of CTC.Later resolutions concerning terrorism are: UNSC resolutions 1390 (16 January 2002), 1456 (20 January 2003), 1535 (which restructured the CTC, 26 March 2004), 1566 (8 October 2004), and 1624 (14 September 2005). Other Security Council resolutions are: 1390, 1452 (20 December 2002), 1455 (17 January 2003), 1456 (14 Sept. 05), 1617 (29 July 2005), 1566 (8 Oct. 2004), 1526 (30 Jan. 2004), 1377 (14 Nov. 2001), 1378 (12 Nov. 2001), 1333 (19 Dec. 2000), 1267 (15 Oct. 99). By resolution 1617 (29 July 2005), the Security Council condemned Al Qaida, Osama bin Laden,59 the Taliban and associated individuals, groups, undertakings and entities, for ongoing terrorists acts. It also decided that all States shall freeze their assets; prevent the entry into or transit of these individuals through their territories; prevent the direct or indirect supply, sale or transfer of arms, ammunition, military or para-military equipments.

3. Regional Efforts against TerrorismAlong with the international efforts, in a spirit of cooperation to curb terrorism, regional efforts have also been made and conventions have been adopted. Noticeable among them are the: 1977 European Convention on the Suppression of Terrorism; 2006 Council of Europe Convention on the Prevention of Terrorism; 1971 OAS Convention to Prevent and Punish Acts of Terrorism_____________________

58 Res. 1269, adopted at the initiative of Russia, was the first comprehensive anti-terror resolution, which laid down the groundwork for cooperation and coordination among States to counter terrorism, articulated its key principles and defined the areas for collective efforts.59 Osama bin Laden has been killed by the US commandoes on May 1, 2011 in Abbottabad in Pakistan.


Taking the Form of Crimes against Persons and Related Extortion that are of International Significance; 2002 Inter-American Convention Against Terrorism; 1998 Arab Convention on the Suppression of Terrorism; 1999 Convention of the Organisation of the Islamic Conference on Combating International Terrorism; 1999 OAU Convention on the Prevention and Combating of Terrorism; 1999 Treaty on Cooperation among States Members of the Commonwealth of Independent States in Combating Terrorism; 1987 SAARC Regional Convention on Suppression of Terrorism, and the 2004 Additional Protocol to the Convention; and the 2007 ASEAN Convention on Counter Terrorism.

4. Terrorism and IndiaMany countries have framed laws against terrorism and to prosecute and punish persons indulging in these activities. India is facing multifarious challenges in the management of its internal security. It has been subjected to many terrorist attacks frequently since 1980s. There is an upsurge of terrorist activities, intensification of cross border terrorist activities and insurgent groups in different parts of the country. To deal with this situation, the government of India, in 1985 enacted the Terrorist and Disruptive Activities (Prevention) Act (TADA). The Act was repealed in 1995. In 2002, the Parliament enacted the Prevention of Terrorist Activities Act (POTA). The Act was severely criticised, particularly by the human rights activists who thought that it violates the fundamental rights guaranteed in the Indian Constitution. Because of its wide criticism, POTA was rescinded in 2004. In its place, the government kept in place all of India's criminal laws and also enacted an amendment to the Unlawful Activities Act, 1967, which increased punishment for committing acts of terrorism and for harbouring terrorists or financing them, enhanced police powers of seizures, made communications intercepts admissible as evidence, and increased the period of detention without charges to 90 days from the existing 30 days.After the November 26, 2008 terrorists attacks in Mumbai in which about 200 persons were killed, need was felt to have stringent anti-terror legislation. The Parliament, on December 18, 2008 approved new anti-terror legislation, which gave wider powers to security forces: the National Investigation Agency (NIA) Act, and the Unlawful Activities (Prevention) Amendment (UAPA) Act, The NIA Act seeks to establish a new police organisation - National Investigating Agency - to investigate acts or terrorism and other statutory offences. The Unlawful Activities (Prevention) Amendment (UAPA) Act, radically changes procedures for trying those accused of terrorism, extends the periods of police custody to six months without charges, denies bail to foreigners, and the reverses the burden of proof in many instances. The new laws have been severely criticised by the civil liberties activists as being draconian and excessive in relation to the measures India really needs to take to fight terrorism.

Page 447

CHAPTER 16

Settlement of International Disputes

I. GENERALThe expression "dispute" is stated to mean "a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons".1 The term "international disputes" has a wider connotation, that covers within its ambit inter-State disputes as well as disputes between States and individuals, corporate bodies and non-State entities which are also subject to international regulations.2 But the discussion here is confined primarily to inter-State disputes. If remain unresolved, they may threaten international peace and security. To settle these disputes, international law embodies certain rules and procedures springing partly out of customs or usages and partly out of treaties or conventions such as the Hague Conventions of 1899 and 1907 for the Pacific Settlement of International Disputes, Covenant of the League of Nations and the Charter of the United Nations. But, before embarking on the discussion of the various modes of settlement of disputes, it is important to know the distinction between legal and political disputes.

II. LEGAL AND POLITICAL DISPUTESThe disputes between States have been categorised as "legal" or "justiciable", and "political" or "non-justiciable". Though international lawyers generally agree that this distinction exists, they do not agree on its content. Nevertheless, it is a commonly held view that legal disputes are those which are capable of judicial settlement by the application of existing and ascertainable rules of international law, in which the parties to the dispute base their respective claims and contentions on grounds recognised by international law, while disputes which are concerned with a claim for a change in the existing law are disputes as to "conflicts of interests", and, as such, political and "non-justiciable".3 The disputes that relate to vital interests of States, or their external independence or internal sovereignty, territorial integrity, honour, or any other important interests are non-justiciable. It is certain that many disputes, perhaps most of the serious disputes of States, are of this kind._____________________1 See Mavrommatis Palestine Concessions case, PCIJ, Series A, No. 2, p. 5, at p. 11 (1924).2 For example, the investment disputes between capital receiving States and private foreign investors. In 1965, the World Bank adopted a Convention for the Settlement of Investment Disputes between States and Nationals of other States, under which the International Centre for the Settlement of InvestmentDisputes (ICSID) has been established at Washington. For details, see J.K. Ryans and J.C. Baker, 10JWTL 65 (1976); text of the Convention in 60 AJIL892 (1966).

3 On legal disputes, see H. Lauterpacht, The Function of Law in the International Community (Longman, London) 1933, pp. 156-57, 202-41; L. Oppenheim, International Law, Vol. II, 7th ed. (Longman, London), 1952, pp. 3-6.

Page 448 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW The objective validity of the distinction, however, has been challenged by many writers, who maintain that in the final analysis it is the attitude of the parties to a dispute that determines its justiciability. Their attitude is determined by their interests and expectations rather than by legal theory or universally valid objective criteria. If they are willing to accept the decision of an international tribunal solving the dispute, it is "justiciable", otherwise not. In certain cases, an international dispute on legal issues is perceived by the parties as relating to conflict of power or interest which they regard as affecting their vital interests. Some disputes become prestige issues between the States, which neither of them can afford to loose by submitting to third-party adjudication, like the Kashmir issue between India and Pakistan or many matters between Greece and Turkey, including Cyprus.The reluctance of States to submit disputes to third-party settlement on the basis of international law may be for many reasons and not due to any difficulty in predicting the result of such a submission. In fact, when the law clearly supports one of the parties to the dispute, there is less likelihood that the dispute will be settled in accordance with that law, because in such a situation, one of the parties is seeking a change in the existing law or the status quo and not willing to accept the existing law as a basis for the resolution of the dispute. Furthermore, though all disputes are theoretically capable of settlement according to the rule of law, there is no international legal duty for States to settle their differences through third-party adjudication or to settle them at all. The Permanent Court of International Justice in the Eastern Carelia case observed:It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement. Such consent can be given once and for all in the form of an obligation freely undertaken, but it can, on the contrary, also be given in a special case apart from any existing obligation.4Thus, international law has a limited relevance to disputes arising among States. Moreover, parties are always free to agree to submit a dispute to some tribunal for deciding on the basis of ex aequo et bono if they believe that it cannot be satisfactorily settled by the application of existing legal rules. Consequently, in theory all disputes are "justiciable". Further, the distinction between legal and political disputes becomes of doubtful scientific value when forming part of treaties of obligatory arbitral or judicial settlement.The distinction, however, has now become a part of positive international law as embodied in various instruments of pacific settlement. It is recognised in the Charter of the United Nations (Art. 33), the Statute of the International Court of Justice (Art. 36), and in most treaties of obligatory arbitration and judicial settlement.Legal and political disputes can be settled either by amicable or compulsive means.

III. AMICABLE MEANS OF SETTLEMENTThe United Nations Charter in Art. 2(3) enjoins the members "to settle their international disputes by peaceful means". These peaceful means are enumerated in Art. 33 of the Charter as "negotiation,_____________________

4 See the Status of Eastern Carelia case, PCIJ, Series B, No. 5. at p. 27 (1923).

Page 449 SETTLEMENT OF INTERNATIONAL DISPUTES

enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means". Article 33(2) of the Charter also emphasises that the "Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such means". The Covenant of the League of Nations similarly accepted the importance of these means and provided in Art. 13(1) for submission to arbitration or judicial settlement of disputes "which cannot be satisfactorily settled by diplomacy".In the Nicaragua case,5 the International Court of Justice accepted the importance of peaceful settlement of disputes and observed that the principle of settlement of a dispute through peaceful means, as enshrined in Art. 33 of the Charter, has "the status of customary law". The General Assembly in its Resolution of December 12, 1974, drew the attention of the United Nations members to the existing machinery for resolving disputes, and called upon member States "to make full use and seek improved implementation" of such machinery. The Resolution also contained reference to the good offices of the Secretary-General of the United Nations.6 The Manila Declaration, approved by the General Assembly in 1982, re-affirmed many of these principles contained in the United Nations Charter.7The General Assembly in its Resolution of October 24, 1970 (Res. 2625(XXV)), on Declaration of Principles of Friendly Relations and Cooperation among States also requires States to settle their international disputes by peaceful means.The principal means of amicable settlement are the following:a. negotiation, good offices, mediation, conciliation and inquiry;b. arbitration;c. judicial settlement; andd. settlement under the auspices of the United Nations Organisation.The means listed under the first category are, broadly speaking, diplomatic means. There is no hard and fast line demarcating one from the other. They may be used in combination with each other. Arbitration and judicial settlement form the adjudicative means by following the adjudicative procedure of an international tribunal. Settlement by the political organs of the United Nations follows the deliberative procedure of that organ, i.e., the Security Council and the General Assembly. Most of the inter-State disputes are resolved through diplomatic means, following the diplomatic channels. They are, however, less formal means of settlement.

A. Diplomatic Means1. NegotiationThe great majority of treaties on pacific settlement recognise negotiation as the first step towards the settlement of international disputes. It is the simplest and first means resorted to by States_____________________5 (1986) ICJ Rep. 14, at p. 145, para. 290.6 GA Res. 3283 (XXIX), Dec. 12, 1974. See also, GA Res. 2734 (XXV), Dec. 16, 1970.

7 In 1984, the General Assembly adopted a resolution urging all States to observe and promote in good faith the provisions of the 1982 Manila Declaration, Res. 39/79, Dec. 13, 1984. See also, GA Res. 44/31, adopted on Dec. 4, 1989.


for settling the vast majority of cases and for forestalling the rise of potential disputes. But it suffers from certain drawbacks, viz., absence and difficulty in ascertaining the facts of a dispute objectively; absence of third-party influence, leading to high claims by the negotiators in the process of bargaining; and the powerful State influencing the outcome of the negotiation to the detriment of the weaker State. Nevertheless, States resort to negotiation very frequently, because it enables them to retain control over the decision of a dispute till the very end. The negotiating mechanism is flexible and relatively informal, which helps in solving difficult disputes. However, negotiation does not imply an obligation to actually reach an agreement.In spite of its drawbacks, in most cases, negotiation is a necessary preliminary to recourse to other procedures, such as good offices and mediation.

2. Good offices and mediationIn cases where parties fail to settle their disputes or are not inclined to settle them through negotiation, a friendly third-party may procure a settlement through its good offices or mediation. The intervention of a third-party, aims not at deciding the dispute for the disputing parties, but at inducing them to decide it for themselves. But there is no obligation on either the third-party or the disputants to offer or accept good offices or mediation. But such a duty for disputing parties can be created under a treaty.8 Assistance of the third-party may be asked by either or both the parties or it may be offered spontaneously. This may be either by States, eminent citizens of a third State, or through the United Nations or other regional organisations.9The Charter of the United Nations gives to every member State and the Secretary-General the right to invoke collective mediation of the United Nations (Arts. 34 and 35) by bringing to the attention of the Security Council or the General Assembly any dispute, or any situation which might lead to international conflict or give rise to a dispute, and these bodies will act upon them. An illustration of tendering good offices by the Security Council was seen in the dispute between Holland and the Republic of Indonesia.10 Similarly, in the Palestine dispute, the General Assembly, by its Resolution of May 15, 1948, entrusted the United Nations Mediator with the functions of promoting a "peaceful adjustment of the future situation of Palestine."A theoretical distinction exists between good offices and mediation, which is a matter of degree. In the traditional sense, good offices stop where mediation begins. In good offices, the third-party brings the disputing parties together and induces them to negotiate or provides the occasion for negotiations between them to proceed without its participating in the negotiations. In mediation, on the other hand, the mediatory party has a more active role. It participates in the negotiations, directs them and can suggest a solution, though the suggestions made are not_____________________8 Articles 2-8 of the 1907 Hague Convention endeavoured the signatory powers to have recourse to good offices and mediation and giving third States a right to tender such an assistance.

9 The Inter-American Treaty on Good Offices and Mediation of 1936 provided (Arts. 9 and 11) for mediation and good offices by an eminent citizen of another American State. See Documents on International Affairs (1936), p. 586.10 The Security Council, by its Res. of Aug. 25, 1947, resolved to tender its good offices to the parties. A Good Offices Committee of the Council, consisting of Belgium, Australia and the US was appointed, which was to help in settling the dispute between the parties, see SCOR, II year, No. 103.

Page 451 SETTLEMENT OF INTERNATIONAL DISPUTES binding upon the parties.11 However, in actual practice both tend to merge with each other and many a times, it is difficult to distinguish between the two. Thus, the initiative of the Soviet Union after the Indo-Pakistan war in 1965, to bring representatives of India and Pakistan together at Tashkent at the end of 1965, in an attempt to settle the conflict between them and creating a favourable atmosphere for a settlement, seems to have been somewhere between good offices and mediation. Likewise, the role of the Government of Algeria in the settlement of dispute between the United States and Iran in 1981, over the detention of American diplomatic and consular staff cannot be categorised simply as conciliation or good offices or mediation. Nevertheless, it was effective in achieving a settlement, involving, among other issues, the release of the detained hostages.12In the United Nations practice also, the distinction between good offices and mediation has not been strictly followed. For example, the Good Offices Committee in the Indonesian case was also asked to make recommendations as to developments in Indonesia during 1947-48; the United Nations Mediator in Palestine in 1948 was entrusted with the task of reporting on developments, promoting the welfare of the inhabitants of Palestine, and assuring the protection of the holy places. The Good Offices Committee for the Korean hostilities appointed by the General Assembly in 1951, was set up not merely to bring about negotiations between the contending parties, but also to propose ways and means for effecting cessation of hostilities.13These methods are of considerable value in settling the disputes but suffer from a lack of any procedure for conducting a thorough investigation into the facts or the law. Hence, their utility is limited and they are mainly confined to as steps preliminary or ancillary to conciliation, inquiry or other techniques adopted by the United Nations.

3. Conciliation and inquiryConciliation is the process of settling a dispute by referring it to a commission of persons whose task is to elucidate the facts and to make a report containing proposals for a settlement, but which does not have the binding character of an arbitral award or judgment.14 In conciliation, parties are under no legal obligation to adopt the proposals for a settlement suggested to them; in case of arbitration and judicial settlement such a legal obligation exists for the award or judgment of a duly constituted tribunal. It also differs from a commission of inquiry whose main task is confined to the elucidation of the facts, in the hope that once that difficulty has been overcome, the parties will be able to settle the dispute of their own accord._____________________11 See Art. 2 of the Hague Convention, 1899; see also, L.B. Sohn, Cases and Materials on World Law (Brooklyn Foundation Press, Brooklyn), 1950, p. 433.12 In the relevant documents, it was stated that the Algerian Government had been requested by the disputant parties "to serve as an intermediary in seeking a mutually acceptable resolution", and that it had "consulted extensively with the two governments as to the commitments which each is willing to make in order to resolve the crisis", 75 AJIL, 418 (1981). The Algerian Government also established two International Arbitral Tribunals to decide claims of nationals of each State against the other State.

13 GA Res. 348(V) of Feb. 1, 1951; GAOR., 5th Session, Supp. 20A, p. 1. The Good Offices Committee on South-West Africa, appointed in 1957, was also to discuss the basis of agreement with the South African Government and to report to the General Assembly.14 L. Oppenheim, op. cit. 3, at p. 12.

Page 452 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW Reference of conciliation commissions is found in the Hague Conventions of 1899 and 1907 for the Pacific Settlement of International Disputes (Title III and Part III of these Conventions respectively). These commissions could be set up by special agreement between the parties, which would investigate and report on situations of fact, but the report was not binding upon the parties to the dispute. The commission was to be constituted for each occasion by agreement between the parties. However, the cases involving honour or vital interests of the parties were excluded, but such disputes could be referred to an International Commission of Inquiry.15 The machinery provided under the 1899 Convention was successfully used in the Dogger Bank case between Great Britain and Russia, where a five-member Commission of Inquiry, consisting of five naval officers from Britain, Russia, America, France and Australia, was constituted to look into the damage suffered by Britain due to the wrongful act of the Russian Baltic Fleet during the Russo-Japanese war.16 Under the Second Hague Conference of 1907, the duty of the commission was to investigate the circumstances of the case and to issue a report "limited to a statement of facts" and having in no way "the character of an award". The parties were free regarding the effect to be given to it.After the Hague Conventions, the Bryan Arbitration Treaties, which were concluded by the United States with a great number of States in 1914, constituted the Permanent Commissions of Inquiry. No dispute was excluded from the purview of these treaties. Unlike under the Hague Conventions, where the commission was constituted on an ad-hoc basis when the need arose, these commissions were permanent. They were consisted of five members - each party nominating two members, out of which one was its own subject, and the fifth member was chosen by common agreement between the parties. They were not to resort to hostilities before the report was submitted, but after receiving the report, the parties were at liberty to take such action as they thought fit.17The importance of conciliation was also accepted by the League of Nations (Arts. 15 and 17 of the Covenant). The Resolution of September 22, 1922, by the League's Third Assembly provided for a five-member commission. The system devised by the League was very flexible. Generally, a small committee, or a person known as a rapporteur, was appointed to establish the facts and suggest a method of resolving the differences between the parties.18 The United Nations General Assembly has also adopted a similar approach and has made various recommendations in the matter of appointment of rapporteurs and conciliators, even though the Charter does not have any explicit provision on conciliation akin to the Covenant of the League.States also attach great value to the procedure of conciliation as reflected from several hundred treaties for conciliation concluded after the First World War and more than over a hundred permanent conciliation commissions were set up. It found an increased mention in numerous_____________________15 The Hague Convention, 1899, had only six Arts. (9-14) on the subject.16 For more details see, Oppenheim, op. cit. 3, at p. 14, citing N.R.G. Martens, 2nd Series, 33, pp. 641-716.

17 Most of these treaties are still in operation. In 1928 and 1929, US concluded a series of these treaties. A number of them, namely, those with South Africa, Canada, Australia and New Zealand, were brought upto date in 1940.18 See the Records of the Third Assembly, Plenary Meeting, Sept. 22, 1922, pp. 196-201.

Page 453 SETTLEMENT OF INTERNATIONAL DISPUTES treaties concluded after the Second World War. For example, American Treaty of Pacific Settlement (Pact of Bagota) of April 30, 1948, provided for Commissions of Investigation and Conciliation. The Inter-American Treaty for Reciprocal Assistance, 1947 and the Treaty of Brussels between Great Britain, France, Belgium, Holland and Luxembourg, 1948 also have the provisions for conciliation. More recently, the Vienna Convention on the Law of Treaties, 1969, the Vienna Convention on Succession of States in respect of Treaties, 1978, and the 1982 Law of the Sea Convention provide for conciliation.19 The Covenant on Civil and Political Rights and the 1965 World Bank Convention on the Settlement of Investment Disputes between States and Nationals of other States also lay great emphasis on the value of conciliation and inquiry. However, there are only a few recorded instances of actual recourse to the machinery established by these treaties, mostly under the Law of the Sea Convention. But its significance in dispute resolution is self-evident. It helps in ascertaining the facts of a dispute without making specific recommendations, which paves the way for a negotiated settlement.The importance of a fact-finding commission in settling the boundary disputes is particularly significant. The commission may inquire into the historical and geographical facts which are the subject of controversy and thus clarify the issues for a boundary agreement. Such commissions also help in the preliminary elucidation of certain special facts, crucial in the settlement of a particular dispute. In the case of the United Nations also, they may prove useful when the Security Council is not in a position to act effectively because of the veto.Significance of fact-finding is self-evident in dispute settlement through any of the diplomatic modes. In April 1949, the United Nations set up a Panel for Inquiry and Conciliation to help in fact-finding. In December 1948, the United Nations General Assembly adopted a resolution in which it emphasised the usefulness of impartial fact-finding as a mode of peaceful settlement and urged the member States to make more effective use of fact-finding methods. The Secretary-General was requested to prepare a register of experts whose services could be used by agreement for fact-finding in relation to a dispute.20

B. ArbitrationThe International Law Commission defines arbitration as "a procedure for the settlement of disputes between States by a binding award on the basis of law and as a result of an undertaking voluntarily accepted".21 The parties to a dispute, by way of a treaty, agree to settle their disputes through arbitration and lay down the procedure and rules for the same. The treaty may be concluded prior to or after the dispute has arisen. The treaty can be in the form of a general treaty of arbitration between the parties providing for all present and future disputes amongst them to be settled through arbitration; or a treaty may be concluded for reference to arbitration after the dispute has arisen; or there can be an arbitration clause in a treaty which is not primarily_____________________19 See R.D. Kearney and R.E. Dalton, The Treaty on treaties, 64 AJIL 495 at 553-555 (1970); R.V. Lavalle, The dispute settlement provisions of the Vienna Convention on

succession of States in respect of treaties, 73 AJIL 407 (1979); and Annex I of the Law of the Sea Convention.20 In accordance with the resolution, the nomination of the experts is received by the Secretary-General who transmits the lists of such experts to member nations each year.21 II YblLC 202 (1953).


an arbitration treaty, for example, a treaty of commerce, providing that differences related to matters within the purview of the treaty shall be determined by arbitration.Arbitration is essentially a consensual procedure. In essence, it is a third-party decision, but the role of the disputing parties is all-pervasive, which affects the whole procedure of arbitration. The fact that each State is the exclusive judge in its own suit is persistence much stronger in arbitration than in judicial settlement. On the other hand, the essential element of arbitration, as opposed to good offices and mediation, is that it necessarily implies the duty of the parties to abide by the award that is made. Arbitration, in contrast to conciliation, leads to a binding settlement of a dispute on the basis of law. The arbitral body is composed of judges, normally appointed by the parties. This body may be established ad hoc by the parties or it may be a continuing body set-up to handle certain categories of disputes. Arbitration differs from judicial settlement also in that, as a rule, the parties have the competence to appoint arbitrators, to determine the procedure and, to a certain extent, to indicate the applicable law.It is now a normal practice among States to provide in a treaty for the settlement of "legal disputes" through an award of an arbitral organ settled on a legal basis or a judicial decision of the International Court of Justice. A large number of treaties provide for submission of "legal disputes" to the International Court of Justice, unless the parties specifically agree to refer to arbitration.

1. Development of international arbitrationThe arbitration is an old institution, but in its present form, it started with the Mixed Claims Commissions established under the Jay Treaty of 1794, between Great Britain and the United States.22 The successful conclusion of Alabama Claims Arbitration23 of 1872, also held between Great Britain and the United States, gave it a further impetus. The Hague Convention of 1899 for the Pacific Settlement of Disputes contained a number of articles on international arbitration. According to Art. XV, the object of arbitration is "the settlement of differences between States by judges of their own choice, and on the basis of respect for law". Article XVIII specified that an agreement to arbitrate implies the legal obligation to submit to the terms of the award. The Convention did not impose any specific obligation to arbitrate, it merely attempted to set up institutions and procedures for the purpose, and the so-called Permanent Court of Arbitration was established. The 1907 Hague Convention contained 54 articles (out of the total of 97 articles) dealing specifically with arbitration. It had separate chapters on arbitral justice, Permanent Court of Arbitration, arbitral procedure and arbitration by summary procedure.After the First World War, the Permanent Court of International Justice was established, which did not make arbitration superfluous. Article 1 of the Statute declared that the new institution was to serve "in addition to the Court of Arbitration" and the Special Tribunals of Arbitration to which States "are always at liberty to submit their disputes for settlement". Alongside, a great number of bilateral and multilateral arbitral treaties were concluded and the Mixed Arbitral Tribunals were set up in Europe to deal with various claims arising out of the territorial_____________________

22 1 Mailoy 590.23 B. Moore, International Arbitration, Vol. I, p. 495.

Page 455 SETTLEMENT OF INTERNATIONAL DISPUTES redistribution effected by the Treaty of Versailles, 1919. However, after the Second World War, compulsory arbitration has been less favoured in the general multilateral treaties, though it is still a preferred means of adjudication among States. A number of treaties have provisions to this effect, such as the 1982 Law of the Sea Convention, and the 1969 Vienna Convention on the Law of Treaties. States also quite often resort to arbitration on an ad hoc basis.24 In some cases, arbitration has been used even when hostilities between the parties had broken out, as in the case of Rann of Kutch between India and Pakistan, involving a territorial dispute which was decided by arbitration in 1968.25

The Permanent Court of ArbitrationThe Court of Arbitration, which was established in the year 1900 in accordance with the 1899, and later, the 1907 Hague Conventions, had the solemn effect on the development of international arbitration.26 It had three organs: (i) Panel of Experts; (ii) Administrative Council; and (iii) International Bureau. It was an institution of a peculiar nature which was permanent only in name and had no characteristics of a court. According to Judge Manly O. Hudson, the Permanent Court of Arbitration was hardly more than a method and a procedure.27 It was not in itself a deciding tribunal, but contained only a list of names, out of which the parties in each case could select and constitute the court. Since the arbitrators were to be selected by the parties on each occasion, there was no continuity in the administration of justice. Each party to either Conventions was to appoint upto four persons "of known competence on questions of international law" and "of the highest moral competence" to serve for a renewable period of six years as members of the Court.28 Thus, the members of the Permanent Court of Arbitration never met as a tribunal. Their sole function was to be available for service as members of tribunals which could be created when they were required.In the establishment of the tribunal, in the absence of any agreement to the contrary, the following procedure was followed: Each party would appoint two arbitrators, of whom only one could be its national or chosen from the persons nominated by it on the Court's panel. These arbitrators together choose an umpire who would preside over the tribunal. In case there was a deadlock in the selection of the umpire, a third power(s) would choose the umpire. The tribunal so created was to act according to a compromis or a special arbitration agreement. The compromis specified the subject of the dispute, appointment of the members of the tribunal,_____________________24 See D.N.W. Johnson, 34 Yb. of World Affairs 305 (1980), for an account of increased resort to arbitration by States. Important cases decided through arbitration in the recent past are the English Channel Arbitration (England v. France) 18 ILM 7, 91 (1979), and the 1977, Beagle Channel Arbitration (Argentina v. Chile) 17 ILM 634 (1978).25 J.G. Wetter, The International Arbitral Process, Vol. I (A.W. Sijthoff, Leyden), pp. 250-275; for the text of the award, see 7 ILM 633 (1968).26 The 1899 Convention entered into force in 1900. The 1907 Convention revised the 1899 Convention in the light of the experience of the Court in the early years. As of

August 2009, 109 countries were party to one or both of these founding Conventions of the PCA.27 M.O. Hudson, International Tribunals: Past and Future (Carnegie Endowments & Brookings Institute, Washington), 1944, p. 8.28 Article 23, 1899 Convention; Art. 44, 1907 Convention.


its jurisdiction, procedure, law and principles to be applied in rendering its award. The tribunal was to give its award by majority vote. The Court itself had no specific jurisdiction as such. In the history of the Court, approximately 40 cases have been referred to the arbitral tribunals established through its machinery, out of which only two were referred from 1945 to 1990. In recent years, there has been increased use of the Court with 19 cases pending in 2006. In its history, it has rendered several important awards, such as Atlantic Coast Fisheries case of 1910 between the United States and Great Britain, the Savarkar case of 1911 between Great Britain and France. Court's hearings are generally not open to the public and its decisions are also kept confidential at the instance of the parties.

2. General principles governing jurisdiction and procedure of international arbitral tribunalsSince arbitration is a consensual procedure which is held according to the terms of the compromis or special agreement, the compromis or special agreement governs the constitution, jurisdiction and procedure of the tribunal.The constitution of arbitral tribunals has in practice revealed numerous anomalies. Occasionally, a dispute is adjudicated by a single arbitrator, or by a joint commission or a mixed commission, normally consists the representatives of disputing parties with an additional member selected according to an agreed manner, who acts as an umpire. The State's representatives are generally its own nationals - a practice which is objectionable, inter alia, on the grounds of propriety and objectivity.The jurisdiction of the tribunal is traceable to the compromis but it is evident in other ways also. If it is defective, the parties, with knowledge of the defect, may still proceed with arbitration without raising any objection. However, the requirement of consent remains fundamental and where it cannot be met, the arbitrator's action becomes a nullity.As in the case of constitution and jurisdiction, the procedure and evidence are governed by the consent of the parties. In the absence of an agreement, general practice in this respect is very vague due to the divergent legal training of agents and counsels, as well as of members of tribunals. Nevertheless, tribunals generally follow the rules of natural justice.

Finality of Arbitral VerdictAn arbitral award is final if the arbitration treaty does not stipulate to the contrary, and is binding upon the parties. The Hague Conventions of 1899 and 1907 provide that the award settle the dispute "definitively and without appeal".29 Difficulty, however, arises when a State refuses to abide by the award. Even though refusals to execute arbitral decisions or repudiations of awards are remarkably few, actual or alleged excess of jurisdiction, or the fact that the arbitrators have not been able to arrive at their award in perfect independence, have been the principal causes of refusal to recognise the award as binding by the parties. If the arbitrators have acted ultra-vires of the compromis, or have been bribed, coerced, or have been intentionally and maliciously misled by one of the parties into a fundamental error, the award looses its binding_____________________

29 Articles 54 and 81 respectively.


force. Excess of power was alleged in the North-Eastern Boundary Dispute, 1831, between Great Britain and the United States.30 Alleged mistakes, misinterpretation of evidence, fraud, collusion and suppression of evidence were alleged in the case of United States of America on behalf of Lehigh Valley Railroad Co. and others v. Germany in 1933, which led to the reopening of the case by the Mixed Claims Commission.31 In 1909, Bolivia refused to abide by the award given by the President of Argentina in her boundary dispute with Peru. In a dispute between Guinea-Bissau and Senegal about the maritime delimitation, the arbitral award of July 31, 1989, was not implemented because Guinea-Bissau alleged that one of the arbitrators' remarks were contradictory. There was also insufficiency of evidence, which made it difficult to delimit the maritime areas. The case was subsequently submitted to the International Court of Justice concerning the "award".32Customary international law or arbitral treaties do not provide any rules of general nature for the solution of controversies arising out of allegation of excess of power or misuse of power by the arbitrators. The only express provision in the Hague Convention of 1907, Art. 83, provides for revision of awards based on discovery of new facts. The excess of power merely becomes a ground for requesting for submission to arbitration, a request which the other party may always refuse. Without the consent of both the parties, no further action can be taken in this regard. Consequently, under international law, the individual judgment of States rather than the judgment of a court determines questions of nullity. This, together with the absence of any international forum with jurisdiction to determine the plea of nullity independently of the parties' consent, leaves the door wide open to escape from the binding force of an arbitral award, freely undertaken by the parties.

3. Evaluation of arbitration as a means of settlementArbitration occupies an important place in containing disputes among States. It is very effective in resolving disputes on wide range of legal issues, including disputes over territorial and maritime boundaries, sovereignty, international investment, and matters concerning international and regional trade. Article 16 of the 1899 Hague Convention and Art. 38 of the 1907 Hague Convention recognise arbitration as the most efficacious and equitable means of settlement of disputes of legal character, and in differences regarding the interpretation or application of treaties. It can easily be combined with the fact-finding processes. It is a useful supplement to the International Court of Justice to decide disputes requiring a purely legal solution. However, States quite often exclude from arbitration, disputes affecting "vital interests" or matters concerning "domestic jurisdiction" by special clauses in arbitration treaties. These disputes are considered to be "nonjusticiable" and are open for settlement through other peaceful means.Even though arbitration still occurs,33 it is not a very popular mode of settling disputes with States now, because of certain drawbacks in its procedure, viz., lack of agreement to establish_____________________30 www.upperstjohn.com/history/northeastborder.htm

31 See H. Lauterpacht, The Function of Law, op. cit. 3, pp. 127-130; 34 AJIL 154 (1940).32 See Maritime Delimitation between Guinea-Bissau and Senegal case (1991) ICJ Rep., p. 53; see also 31 ILM 32 (1992).33 See, for example, Eritrea v. Yemen (Phase two: Maritime Delimitation) (1999) 119 I.L.R. 417; Anglo-French Continental Shelf case (1979) 18 I.L.M. 397.

Page 458 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW the tribunal, constitution of the tribunal, disagreement on the terms of the compromis, power of the tribunal, revision of the award, etc. To overcome these difficulties, the ILC prepared a Draft Convention on Arbitral Procedure, which was submitted to the General Assembly in 1953. The General Assembly transmitted the Draft to the States for their comments. On the basis of the replies from the governments, in 1958 the Commission adopted a set of model Draft Articles on Arbitral Procedure which the States could follow while concluding an agreement for arbitration. The General Assembly brought the Draft Articles to the attention of the States.34 Procedure for the arbitration of investment disputes has been introduced by the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which establishes an International Centre for the settlement of investment disputes for the parties to the Convention.35

C. Judicial SettlementIn judicial settlement, the dispute is settled by an international judicial tribunal on the basis of rules of law. The World Court, the name commonly given to the Permanent Court of International Justice (PCIJ) and the present International Court of Justice (ICJ), is by far the most important international organ available to the international community for judicial settlement.36 It differs from arbitration on many aspects, though both are judicial means of settlement of disputes yielding third-party decisions binding on the parties. Schwarzenberger states: "The only difference between arbitration and judicial settlement lies in the method of_____________________34 For the 1953 Draft Convention, see the Report of the Commission on the work of its 5th Session (1953). For the 1958 Draft Articles, see the Report of the Commission on the work of its 10th Session (1958). Attempts had also been made by States outside the United Nations, see Art. 21 of the European Convention for the Peaceful Settlement of Disputes, 1957. In 1993, the Permanent Court of Arbitration adopted a series of Optional Rules for Arbitrating Disputes between Two Parties of which only one is a State. But they are more suited for commercial arbitration.35 (1965) 4 I.L.M. 532, entered into force in 1966 and has 109 States parties.36 The other international courts with regional and limited jurisdiction are the American Court of Human Rights (created under the American Convention on Human Rights, 1970); the European Court of Human Rights (created under the European Convention on Human Rights, 1950); the European Court of Justice of the European Communities; the African Court on Human and Peoples' Rights; and the InternationalCriminal Court. All these are competent to adjudicate upon inter-State claims brought under the treaties establishing them. There are also International Tribunals for the Former Yugoslavia and Rwanda constituted under the Security Council resolutions. In 2002, the International Criminal Court came into force, created under the Rome Statute 1998. On the International Tribunal for the Law of the Sea, see Art. 287 and Annex VI of the 1982 Convention on the Law of the Sea, UN Doc. A/CONF.62/122, reproduced in 21 ILM 1261 (1982). The standard works on the World Court are, S. Rosenne, The Law and Practice of the International Court, 3rd ed. (M. Nijhoff, Dordrecht), 1997; T.O. Elias, The International Court of Justice and Some Contemporary Problems (M. Nijhoff,

Dordrecht), 1983; L.F. Damrosch (Ed.), The International Court of Justice at Crossroads (Transnational Publishers, New York), 1987; E. McWhinney, The InternationalCourt of Justice and the Western Tradition of International Law (M. Nijhoff, Dordrecht), 1987; R.P. Anand, International Courts and Contemporary Conflicts (Asia Publishing House, Bombay), 1974; L. Cross (Ed.), The Future of the International Court of Justice, 2 Vols. (Oceana Publications, Inc.), 1976; Gardner and Wickremasinghe (Ed), The International Court of Justice: Process, Practice and Procedure (London, BIICL) 1997.

Page 459 SETTLEMENT OF INTERNATIONAL DISPUTES selecting the members of these judicial organs. While in arbitration proceedings, this is done by agreement between the parties, judicial settlement pre-supposes the existence of a standing tribunal with its own bench of judges and its own rules of procedure which parties to a dispute must accept".37 The following differences between the two are obvious in the practice of States:First, a court of law, meant for judicial settlement, is usually a permanent body, consisting of judges with a fixed tenure. Arbitral tribunal, on the other hand, consists of persons, appointed ad hoc to deal with a defined dispute or class of disputes, and ceases to exist when that is disposed of. Second, the judges of the court of law are generally appointed independently of the will of the parties in dispute, but in the case of arbitration, the fundamental principle has been that the parties appoint arbitrators of their own choice. Third, the court of law renders its judgment on the legal rights of the parties by applying the legal principles, while the arbitral award need not be related to legal rights, which may be given by applying the principles of justice, equity, good conscience or expediency. But in the light of Art. 38(2) of the Statute of the International Court of Justice, which allows the Court to decide on the basis of ex aequo et bono by an agreement between the parties, this distinction between the two is merely academic. Fourth, in consequence of these above-mentioned factors and due to the continuity of the court as a judicial organ, the court, while applying the existing rules, not only extends them but even creates new rules where no applicable rule or only conflicting rules can be found. Arbitral tribunal's contribution is less significant in this respect due to its ad hoc character. Fifth, proceedings of the court are generally public, whereas arbitration can be conducted without making the proceedings public and award may be published at the will of the parties.Even though the court of law helps in enriching and developing the international jurisprudence and in bringing legal changes to meet changing needs, yet, in practice, States are reluctant to entrust a court of law with legislative power and a right to decide about a dispute without their express consent. This is very much reflected in the practice of the World Court.

1. The creation of the International Court of JusticeAfter the First World War, the Permanent Court of International Justice was created in pursuance of Art. 14 of the Covenant of the League of Nations. The Court, which came into existence in 1920, was not an organ of the League. It rested on the distinct legal basis of the Statute and the Protocol. It was competent to hear and determine international disputes submitted to it, and to give advisory opinions on matters referred by the Council or by the Assembly of the League.After the Second World War, the International Court of Justice was established in 1946, in place of the Permanent Court of International Justice, which held its last formal session in October 1945. However, the new Court was made an integral part of the United Nations Charter (Arts. 92-96) in contrast to the loose association of the Permanent Court of International Justice with the League of Nations. The International Court of Justice is one of the six principal organs (Art. 7) and "the principal judicial organ of the United Nations" (Art. 92). This relationship between the Court and the United Nations has been

further emphasised in Art. 93 of the Charter, which declares that all Members of the United Nations are ipso facto parties to the Statute of_____________________37 G. Schwarzenberger, Manual of International Law, 6th ed. (Stevens and Sons Ltd., London), 1976, p 196.

Page 460 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW the International Court of Justice. Other provisions of the Charter, i.e., Arts. 94-96, relating to the enforcement of judgments of the Court and its advisory jurisdiction, and conditions under which non-Members of the United Nations may become parties to the Statute of the Court (Art. 93(2)),38 give added emphasis to the association of the Court with the United Nations.The new Court is not only the successor of the old, but is' in continuation of it. This fact is reflected in Art. 92 of the Charter that states that the Court shall function in accordance with the Statute "which is based upon the Statute of the Permanent Court of International Justice". The International Court of Justice is bound by the purposes and principles of the United Nations as expressed in Arts. 1 and 2 of the Charter and the context of the Charter is a controlling factor in the interpretation of the provisions of the Statute.The Statute of the Court embodies the basic rules concerning the organisation, jurisdiction and procedure of the Court, and is supplemented by two sets of rules adopted by the Court, framed under Art. 30 of the Statute. The first set deals with the functioning of the Court and its Registry. The Revised Rules of the Court which amended the prior Rules of 1946, based on corresponding Rules of 1936, were framed in 1972, and were adopted in 1978. The second set is incorporated in the Resolution of April 12, 1976, which was a revised version of the Resolution of July 5, 1968. It sets out the practice to be followed by the Court in respect of deliberations among the judges after the oral hearings come to an end.39If the procedural rules, which are found both in the Statute and in the Rules of the Court, are mutually conflicting, the rules under the Statute will prevail since it is the higher law. Whereas the Rules of the Court can be amended by the judges, the Statute, on the other hand, can be amended only by the General Assembly under Art. 70 of the Statute.

2. Organisation of the CourtThe Court is composed of a body of independent judges. It consists of 15 judges who are "elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognised competence in international law" (Art. 2). The system of election is based on the "Root-Phillimore plan" devised in 1920. According to the plan, the candidates are first nominated by the national groups in the Permanent Court of Arbitration. Additional national groups are formed to include members of the United Nations not represented on the Court of Arbitration under the same conditions as those laid down in the 1907 Hague Convention (Art. 4). No group can "nominate more than four persons, not more than two of whom shall be of their own nationality" (Art. 5(2))._____________________38 The conditions upon which the Court is open to States which are not parties to the Statute are laid down in the Security Council Res. 9 of Oct. 15, 1946, adopted pursuant to Art. 35(2) of the Statute, see, 1 SCOR, 2nd Series, No. 19, at 467-68. The conditions in each case have been the acceptance of the provisions of the Statute, acceptance of the obligations under Art. 94 of the Charter, and an undertaking to contribute to the expenses of the Court (Statute Art. 35(3)). Previously some States non-members of the UN have

been parties to the Statute, but they later joined the UN - Japan (1953-1956), Liechtenstein (1949-1990), San Marino (1953-1992), Switzerland (1946-2002), and Nauru (1987-1999).39 Prior to 1968, the internal judicial practice of the Court was governed by the PCIJ Res. of Feb. 20, 1931 (as amended on March 17, 1936), adopted provisionally by the ICJ in 1946.


After the list of candidates has been thus prepared, the General Assembly and the Security Council proceed "independently of one another", but simultaneously, to elect the members of the Court (Art. 8). Judges are elected after securing absolute majority. This procedure of simultaneous election by the Assembly and the Council is also followed to fill casual vacancies caused by the death or retirement of a judge (Art. 14).40 A member so elected holds office for the remainder of his predecessor's term.The Statute of the Court emphasises on maintaining the independence of judges who are to be elected "regardless of their nationality", but there is some inconsistency with this position. Article 3 states that no two members of the Court may be nationals of the same State. Further, Art. 9 provides that the electors shall bear in mind that "in the body as a whole the representation of the main forms of civilisation and of the principal legal systems of the world should be assured". This, however, does not rule out the political nature of the appointment. Under a kind of "gentlemen's agreement", currently regional distribution of judges to be elected is: Africa, 3; Latin America, 2; Asia, 3; Western Europe and other countries, 4; Eastern Europe, 2; and the United States.41The judges are required to discharge their powers impartially and conscientiously while performing their duties in the Court. They may not exercise any political or administrative function or engage in any other occupation of a professional nature. They shall enjoy diplomatic privileges and immunities. The judges of the Court are elected for nine years, and may be re-elected (Art. 13).The Court normally sits as a full court of 15 judges. But the Statute also provides for the formation of three types of chambers: the chambers of summary procedure; chambers for dealing with particular categories of cases, like labour or environment or transit and communications; and chambers for dealing with particular cases (Arts. 26-29 and 31(4)). These chambers can consist of three or more judges (maximum number can be seven), and in some cases their number will be determined by the Court with the approval of the parties (Art. 26).42 The judgments of the chambers are considered to be rendered by the Court._____________________40 Should a judge die in office, the practice has generally been to elect a judge of the same nationality to complete the term. For example, after the death of Judge Baxter (USA), Judge Salah Tarazi (Syria), Judge Nagendra Singh (India) in 1980 and 1988, Judge Schwebel (USA), Judge El-Khani (Syria) and Judge R.S. Pathak (India) were elected to fill the vacancies.41 The 15 seats of the Court are normally distributed in terms of nationalities and power blocs in the same manner as membership of the Security Council. This means that the five permanent members of the Security Council shall have one of their nationals on the Court, and this has been the case since 1945, except that there was no Chinese judge between 1967 and 1985. Now Judge Xue Hanqin from China is there.42 The chamber procedure which was created in 1978 under the Rules of Court was used for the first time in the Gulf of Maine case (US-Canada) (1984) ICJ Rep., p. 246 where the parties were actively involved in the composition of the chamber. Since then the chamber procedure has been followed in five cases, viz., Burkina Faso-Mali (1986) ICJ Rep., p. 554; Land, Island and Maritime Frontier Dispute (El Salvador-Honduras) (1987)

ICJ Rep., p. 10; (1990) ICJ Rep. p. 92; the case concerning Electtronica Sicula S.p.A. (ELS I)( 1987) ICJ Rep., p. 3; Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening), (1992) ICJ Rep, p. 351; Frontier Dispute (Benin v. Niger), (2005) ICJ Rep. p. 90.

Page 462 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW The Statute also makes the provision for the appointment of ad hoc judges when the party to a case does not have a judge of its nationality on the Court (person so appointed can be of some other nationality). The ad hoc judges can be appointed in contentious cases (Art. 31) and in advisory proceedings (Arts. 68 of the Statute and 89 of the revised Rules of the Court, 1972). In the advisory proceedings on Western Sahara, Morocco appointed ad hoc judge by the order of the Court. The ad hoc judges must fulfil the general conditions for judges. In the advisory proceedings, the appointment of ad hoc judges is restricted only to matters involving legal questions pending between two or more States.The institution of ad hoc judges, however, is a major departure from the notion of impartiality and independence of the Court. It is a matter of controversy and cannot be easily justified. While they sit and participate in the decision "on terms of complete equality" with their colleagues (Art. 31(6)), their vote is generally predictable. Whenever they have been appointed, they have invariably given judgment in favour of the State making their appointment (this is also the tendency among the national judges already on the Court when their own State is a party to a case). If both the parties appoint ad hoc judges, their votes cancel each other out. In litigation, where only one party appoints an ad hoc judge and the other party has a national as a titular judge, his vote can make a difference in marginal cases, but there have been no such cases because they vote in favour of the State appointing them. On the other hand, the presence of a judge of one's own choice fulfils a useful function in supplying local knowledge and national point of view, besides being an incentive to States to submit to the jurisdiction of the Court by enhancing confidence in it. Nevertheless, the system is a reminiscent of the basic idea of arbitration in international adjudication.

3. Individuals and bodies other than States in relation to the CourtArticle 34(1) of the Statute provides that "only States may be parties before the Court". This principle obviously excludes international organisations and individuals as parties before the Court. But the international organisations may be requested to provide information relevant to cases before the Court, and it is bound to receive such information presented by such organisations on their own initiative (Art. 34(2)).International organisations may invoke the advisory jurisdiction of the Court if, in accordance with the United Nations Charter, they are authorised (Statute Art. 65(1)). Thus, the United Nations, through the General Assembly or the Security Council, may request the Court to give an advisory opinion on any legal question, but it cannot bring a claim in contentious litigation before the Court. It implies the inadequacy of Art. 34, which generates inherent contradictions, by not allowing the United Nations - an international person, to pursue the case before the Court.43_____________________43 In the case of Reparation for Certain Injuries Suffered in the Service of the United Nations (1949) ICJ Rep., p. 174, the Court held that the UN is a subject of international law and can put forward an international claim, but it has been deprived from exercising this right before its own principal judicial organ.

Page 463 SETTLEMENT OF INTERNATIONAL DISPUTES Individuals and corporations, on the other hand, totally lack any locus standi as parties before the Court.44 The individuals can bring claims only through their own governments. To allow access to international organisations, individuals and corporations in contentious cases before the Court, the scope of Art. 34 needs to be widened.

4. Jurisdiction of the CourtThe Court has two-fold jurisdiction: "contentious" and "advisory". But its jurisdiction is subject to the fundamental principle of international law that no State can be compelled to submit its disputes with other States to any kind of pacific settlement. Therefore, the basis of jurisdiction of the Court is the consent of the litigants, given either generally and in advance, or ad hoc upon the occurrence of the dispute. However, the principle of consent is less significant in the context of Court's advisory jurisdiction.

(a) Contentious jurisdictionIn contentious cases, the Court's jurisdiction may be classified under three categories: conventional, i.e., by express agreement between the parties; under the principle of forum prorogation, i.e., by tacit agreement; and compulsory, i.e., by declaration, accepting the Court's jurisdiction vis-a-vis any other State accepting the same obligation.

(i) Conventional jurisdictionUnder Art. 36(1) of the Statute, the Court has jurisdiction over all cases "which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force". Reference of a matter to the Court can be made by a special agreement or compromis. There are two generic types of special agreement. The classic method is of a special agreement known as compromis, whereby two or more States agree to refer a particular and defined matter to the Court for a decision. The distinguishing feature of the special agreement is that jurisdiction is conferred and the Court is seized with the case by the mere notification to the Court of the agreement (Art. 40). During the tenure of the Permanent Court of International Justice, 11 cases were instituted by special agreement. Before the International Court of Justice, Minquiers and Ecrehos45 and Frontier Land46 cases were instituted in this manner. In the Corfu Channel (Preliminary Objection) case47 also, the subsequent special agreement between Albania and the United Kingdom replaced the Court's prorogated jurisdiction.The more usual method of conferring jurisdiction is by inserting a compromissory clause in a bilateral or multilateral treaty in force.48 The treaty may be one specifically providing for_____________________44 See Anglo-Iranian Oil Co. case (1952) ICJ Rep., p. 93.45 (1953) ICJ Rep., p. 47.46 (1959) ICJ Rep., p. 209.47 (1948) ICJ Rep., p. 15.48 The expression "in force" has a particular significance in the context of transfer of jurisdiction from the PCIJ to the ICJ under Art. 37 of the Statute.


the reference of a given dispute to the Court,49 a general treaty of peaceful settlement of disputes,50 or a treaty regulating some other topic and containing a compromissory clause.51 In all cases other than those instituted by notification of a special agreement, proceedings are commenced by the unilateral application of one of the parties to the Court (Art. 35(2) and (3) of the Rules of the court).

(ii) Forum prorogationThe principle of forum prorogatum (prorogated jurisdiction consented to by the conduct of parties) is a special form of conventional jurisdiction conferred on the Court where the consent is based on the successive acts of the parties to the case. Instead of a special agreement or compromis to refer the dispute to the Court, a unilateral reference of a dispute by one party is sufficient to bestow jurisdiction upon the Court if the other party or parties to the dispute tacitly consent to the reference, then or subsequently. It is enough if there is a voluntary submission to the jurisdiction.52In this type of jurisdiction, the respondent State usually refrains from contesting the Court's jurisdiction once the proceedings have been instituted.53 In considering whether jurisdiction has been conferred by the conduct (i.e., by the tacit consent) of the respondent, the Court will have regard to the whole of its conduct. Assent by conduct can scarcely be established if the respondent State consistently denies that the Court has jurisdiction.54 Where the respondent State is not subject to the Court's jurisdiction at all, i.e., it is not a member of the United Nations, it would seem that some positive act is required in order to create jurisdiction, for example, by pleading to the merits, including filing a counter-claim. The doctrine is implicit in Art. 40(1) of the Statute of the Court and Rule 38(2) of the 1978 Rules of the Court._____________________49 In the Asylum case (1950) ICJ Rep., p. 266, the jurisdiction of the Court was based on the so-called Agreement of Lima, and the parties (Peru and Columbia) agreed that '"proceedings before the recognized jurisdiction of the Court may be instituted on the application of either of the parties".50 In the case of Electricity Company of Sofia, PCD, Ser. A/B, No. 77 (1939), Belgium based its claim against Bulgaria on the Treaty of Conciliation, Arbitration and Judicial Settlement between them, beside relying on the two States' acceptance of the Court's compulsory jurisdiction. In the Nuclear Tests case (1974) ICJ Rep., p. 253, Australia founded its application to the Court on the General Act of 1928. See also the Application of the Genocide Convention case (Provisional Measures), (1993) ICJ Rep., p. 3; the case of Aerial Incident of 10 August 1999 (Pakistan v. India) (2002) ICJ Rep., p. 12.51 There are numerous treaties of this type and a number of cases have been deliberated by the Court under the terms of such treaties, e.g., Northern Cameroons case (1963) ICJ Rep., p. 15, and Fisheries Jurisdiction case (Jurisdiction) (1973) ICJ Rep., p. 14.52 Corfu Channel case (Preliminary objection) (1948) ICJ Rep., p. 15. In its letter of July 2, 1947, Albania agreed to appear before the Court in the action brought by the United Kingdom. In the Gabcikovo-Nagymaros Project (Hungary v. Slovenia) case, (1997) ICJ Rep., p. 7, Slovakia did not respond to the Hungary's application. Later the case was submitted to the Court by special agreement between the two States.

53 See Rights of Minorities in Polish Upper Silesia case, PCIJ Rep., Series A, No. 15, p. 24 (1928).54 In the Anglo-Iranian Oil Co. (Pleadings) (1952) ICJ Rep., p. 17, Iran's refusal to accept the United Kingdom invitation to appear before the Court led to the conclusion that it refused to confer jurisdiction based on forum prorogatum. In the Monetary Gold case (1954) ICJ Rep., p. 19 at p. 31, the Court's jurisdiction was established on this basis.

Page 465 SETTLEMENT OF INTERNATIONAL DISPUTES The principle of forum prorogatum is subject to certain limitations:1. Any condition or conditions set by the respondent State for accepting jurisdiction must be acceded by the complainant State. If the complainant State does not accept the condition or conditions, the principle of forum prorogatum does not apply.2. If the complainant State has substantially modified its claim by successive steps in the pleadings, the consent given by the respondent State on the basis of the original claim would not reasonably be held to apply to the modified claim in which case the principle will not apply.55 Where there is no consent and no submission by the other party to the dispute, such cases are removed from the Court's list.56 In the absence of a materially interested party also, the Court cannot decide a case on this basis.57The procedure underlying the principle of forum prorogatum would seem to be potentially useful as a means in which a State can submit to the jurisdiction by avoiding the formal procedural requirements of its internal law for entering into a treaty or making a declaration under Art. 36(2) of the Statute to accept the Court's jurisdiction. It also extends the jurisdiction of the Court. In spite of this, however, the principle has not become a prolific source of jurisdiction.

(iii) Compulsory jurisdiction under the optional clauseThe important source of the Court's jurisdiction is Art. 36(2), commonly referred to as the optional clause, which provides:The State parties to the present Statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:a. the interpretation of a treaty;b. any question of international law;c. the existence of any fact which, if established, would constitute a breach of an internationalobligation; andd. the nature or extent of the reparation to be made for the breach of an international obligation.The jurisdiction of the Court is accepted by making a unilateral declaration by a State with the Secretary-General of the United Nations. This declaration will be operative against any other declarant State accepting the obligation of the Court under this clause and in this respect, it is always conditional. The Court's jurisdiction becomes "compulsory" under the declaration so made, if the dispute is of legal character, and it falls within the categories specified and within the limits of the State's declaration. As there is no obligation on a State to make such a declaration, there is nothing like truly "compulsory" jurisdiction._____________________55 See S. Rosenne, The Law and Practice of the International Court, Vol. I (A.W. Sijthoff, Leyden), 1965, pp. 358-359.56 In the past this has been done in the Treatment in Hungary of Aircraft of the USA cases (1954) ICJ Rep., p. 99 (US v. Hungary) and p. 103 (US v. USSR); three Aerial

Incidents cases (1956) ICJ Rep., pp. 6, 9 (US v. Czechoslovakia) and (1959) ICJ Rep., p. 276 (US v. USSR); and in Antarctica cases (1956) ICJ Rep., pp. 12, 15, brought by UK against Argentina and Chile separately concerning Antarctica.57 See Monetary Gold case, op. cit. 54.

Page 466 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW A State may withdraw its declaration, if it contains a clause to this effect or if due notice is being given and all other declarant States do not object to it. As a matter of fact, a large number of States in their declaration have included a right of unilateral determination.58 Where a State has denounced its declaration in contravention of its terms, it can still be made respondent on the strength of the declaration.59 If a matter has properly come before the Court under Art. 36(2), the Court is not divested of its jurisdiction by the unilateral act of the respondent State in terminating its declaration. In the Right of Passage case, India raised objection to the Court's jurisdiction, among others, on the wording of Portugal's declaration to terminate "by notifying the Secretary-General of the United Nations and with effect from the moment of such notification". The Court observed that such a notification would not have retroactive effect, but "once the Court has been seized of a dispute, unilateral action by the respondent State in terminating its Declaration, in whole or in part, cannot divest the Court of jurisdiction".60 In the Nottebohm case, the Court observed that an "extrinsic fact such as the subsequent lapse of the Declaration, by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established".61The declarations made under the "optional clause" operate on certain postulates.

i. ReciprocityThe majority of the present declarations in force are subject to the condition of reciprocity.62 Article 36(3) of the Statute provides that a State may make a declaration under para. 2 of Art. 36: (i) unconditionally, or (ii) on condition of reciprocity on the part of several or certain States, or (iii) for a certain time only. The principle of reciprocity also follows from the wording "in relation to any other State accepting the same obligation" in Art. 36(2). Though both of them have been treated alike, Art. 36(3) talks about the condition of reciprocity, while Art. 36(2) incorporates the principle of reciprocity.Under the reciprocity principle, a State accepts the Court's jurisdiction vis-a-vis any other State only in so far as that State has also accepted it. For example, if State A makes a declaration_____________________58 See, for example, the UK declaration of July 5, 2004, and the USA's declaration of Aug. 1946. The USA terminated its declaration in 1985, after it gave one year's notice in accordance with its declaration as a consequence of the Court's decision in Nicaragua's case (Jurisdiction and Admissibility) (1984) ICJ Rep., p. 392, which became effective in 1986. France terminated its declaration in 1974 in consequence of the Nuclear Tests cases (1974) ICJ Rep., pp. 253 and 457. India's new Declaration can also be terminated by simple notification without any obligatory period of notice. India terminated her previous Declaration on Jan.7, 1956, after Portugal filed a case against India.59 See Right of Passage over Indian Territory (Preliminary objections) (1957) ICJ Rep., p. 125, at p. 146. 60 Ibid., at pp. 133-134. In this case, Portugal made its declaration on December 19, 1955 for a period of one year and which was terminable upon notice. It brought the case against India on December 22, 1955. The U.K.'s 2004 declaration guards against such

cases. In the Land and Maritime Boundary between Cameroon and Nigeria case (Preliminary Objections), (1998) ICJ Rep., p. 275, the Court rejected Nigeria's objection based on the Cameroon's declaration which was deposited on March 3, 1994 and case was filed against Nigeria on March 29, 1994. The declaration was not transmitted to the parties to the Statute until 11 months later.61 (1953) ICJ Rep., p. 119, at pp. 120-123.62 As of June 2011, sixty-six states had a declaration in force under the "Optional Clause". Presently UK is the only permanent member of the Security Council, bound by the Optional Clause.


subject to reservation X, and State B makes reservation Y in its declaration, the Court will have jurisdiction to hear disputes between these two States only in so far as they are not covered by reservations X and Y. Jurisdiction is conferred on the Court to the extent to which the two declarations coincide in conferring it, that is to say that jurisdiction is restricted to those classes of disputes that have not been excluded by any of the parties.63 In the Interhandel case, the Court stated that reciprocity "in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration".64 In the Norwegian Loans case, the reservation contained in the French Declaration, excluding disputes "relating to matters which are essentially within the national jurisdiction as understood by the government of the French Republic", could entitle Norway to except itself from the compulsory jurisdiction of the Court disputes understood by Norway to be essentially within its national jurisdiction. Norwegian declaration did not contain any such reservation.65 But this bilateral effect does not apply if the respondent State elects to waive expressly any objection to jurisdiction. There are, however, certain limits of reciprocity. In case where there is a temporal limitation in the earlier declaration of one Party, it cannot be invoked against the subsequent and unconditional declaration of the other Party.66 Reciprocity enables a Party to rely upon a restriction contained in the declaration of the other Party, but not on a restriction not contained therein.67

ii. ReservationsWith minor exceptions, all the declarations that are filed with the Court contain more or less wide reservations, excluding certain kinds of disputes from compulsory jurisdiction of the Court. Though there are wide variations, these reservations to some extent are standardised, generally related to and exclude inter alia: (i) past disputes, or disputes relating to prior situations or facts; (ii) disputes for which other methods of settlement are available; (iii) disputes related to questions within the domestic or national jurisdiction of the declaring State; (iv) disputes arising out of war or hostilities; (v) disputes between member States of the British Commonwealth; and (vi) specific disputes.68 These reservations are generally not opposed. Many of them are, in fact, merely escape clauses or consciously designed loopholes. However,_____________________63 In the Norwegian Loans case (1957) ICJ Rep., p. 9, the French acceptance was narrower than the Norwegian, the "common will" of the parties which was the basis of the Court's jurisdiction, existed within the narrower limits indicated by the French declaration, ibid., at p. 23.64 (1959) ICJ Rep., p. 6, at 23. The principle was successfully invoked in the Aegean Sea Continental Shelf case (1978) ICJ Rep., p. 3. Turkey was allowed to rely upon a Greek reservation to the Act to exclude the Court's jurisdiction.65 See op. cit. 63, at p. 24.66 See the Interhandel case, op. cit. 61, in which the US could not invoke its ratione temporis reservation against the Swiss Government which accepted the Court's jurisdiction on July 28, 1948.

67 See the Norwegian Loans case, op. cit. 63.68 See J.G. Starke, Introduction to International Law, 10th ed. (Butterworth International Ed.), 1989, p. 499. Indian declaration of Sept. 18, 1974, practically contains all these reservations. India invoked successfully its reservation excluding disputes with a "Member of the Commonwealth" to bar the Court's jurisdiction in the Aerial Incident of 10 August 1999 case {Pakistan v. India) (2000) ICJ Rep. p. 12.

Page 468 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW sometimes they verge on absurdity. The United States declaration of August 14, 1946, was such an example, which it terminated on April 7, 1986, in the course of the Nicaragua case (of June 27, 1986).69 This type of reservation has always remained a subject of controversy.The United States declaration contained two far-reaching reservations. In the first instance, it incorporated the so-called "automatic" or "self-judging" form of reservation, excluding "disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America". Often referred to as the "Connally amendment", the reservation purported to reserve the issue of applicability of the declaration to the sole determination of the reserving State. Similar reservation was attached in the French declaration of 1947 (which was replaced in 1966), and the United Kingdom declaration of 1957 (later declarations of 1969 and of 5 July 2004 excluded this). India's earlier declaration also contained a similar reservation, which it terminated on January 7, 1956, immediately after Portugal brought a case against India in the International Court of Justice on the issue of Right of Passage over Indian Territory on December 22, 1955.70 India withdrew this reservation from its declaration of September 14, 1959. The latest declaration of India of September 15, 1974 also does not have a "self-judging" clause.The validity of such a reservation is seriously in doubt. It amounts to an absolute bar to the jurisdiction of the Court and consequently inconsistent with Art. 36(2). Such a view was endorsed by the Court in the Norwegian Loans case where Norway took the advantage of the "self-judging" clause in the French declaration to oust the Court's jurisdiction.71 In the Interhandel case (preliminary objections),72 the United States invoked this reservation. The Court declared the Swiss application inadmissible on the ground of non-exhaustion of local remedies and left the objection based on the "Connally amendment" undecided. Such a reservation is also in conflict with Art. 36(6) of the Statute, which empowers the Court to settle the extent of its jurisdiction in a dispute submitted to it. In the "automatic" reservation, the reserving State will have the power, in the first place, to decide whether the Court has the jurisdiction. In the Aerial Incident case (US v. Bulgaria) when Bulgaria, on the principle of reciprocity, invoked the Connally amendment, the United States accepted that a determination under this reservation constitutes an absolute bar to the Court's jurisdiction irrespective of the arbitrariness or propriety of the determination.73 On the other hand, if a dispute pertains to matters exclusively within the domestic jurisdiction of the respondent State, it would not be within the category of "legal disputes" referred to in Art. 36(2).74By another reservation in its declaration, the United States excluded disputes arising under_____________________69 Military and Paramilitary Activities in and against Nicaragua case {Nicaragua v. USA) (1986), ICJ Rep., p. 14.70 See op. cit. 59.71 See op. cit. 63.72 See. op. cit. 64.

73 (1959) ICJ Rep., p. 127. See the dissenting opinion of Judge Lauterpacht in the Interhandel case, pointing out the invalidity of the Connally amendment, op. cit. 64, at p.95. He held the similar view in the Norwegian Loans case for the French reservation. Currently, there are five declarations in force with the "self judging" or "automatic" kind of domestic jurisdiction reservations of Liberia, Malawi, Mexico, Philippines and Sudan.74 See the Right of Passage over Indian Territory case, op. cit. 59, at pp. 133-134.

Page 469 SETTLEMENT OF INTERNATIONAL DISPUTES a multilateral treaty unless "(1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction".75 The effect of such a reservation is that if, for instance, there are 20 States parties to a treaty alongwith the United States, there is no obligation upon the United States to submit to the jurisdiction of the Court unless it waives the reservation, or all 20 States participate in the proceedings. The United States invoked this reservation in the Nicaragua case (Jurisdiction) in which Nicaragua invoked the United Nations Charter and the Charter of the Organisation of American States. In its judgment of November 26, 1984, on the jurisdiction and admissibility, the Court joined this issue with merits and observed that "the determination of the States 'affected' could not be left to the parties but must be made by the Court". The claim "would not in any event be barred by the multilateral treaty reservation".76Under optional clause, States make declarations for a specified period "and thereafter until terminated". The declarations also contain temporal limitations (ratione temporis), i.e., jurisdiction is restricted to disputes arising after a specified date or from the date of making the declaration (e.g., the US declaration), or to disputes arising after the specified date "with regard to situations or facts subsequent to that date" (e.g., the UK and Canadian declarations). These types of temporal limitations raise complex jurisdictional issues which can normally be decided only after a careful examination of the circumstances of the case. It is not always easy to precisely specify when a dispute arose, and even less easy to determine when situations or facts out of which a dispute had arisen, occurred.The Court, in general, is reluctant to entertain the time limitations to impede its jurisdiction. Before the Permanent Court of International Justice, in the cases of Phosphates in Morocco77 and the Electricity Company of Sophia,78 ratione temporis reservations in declarations were raised to exclude the Court's jurisdiction. In the former case, the Court did not exercise jurisdiction because the facts and situations which gave rise to the dispute were anterior to the period covered by the French declaration. In the Electricity Company of Sophia case, dispute arose only after 1926, subsequent to the period accepted in terms of the Belgian declaration. In the Interhandel case79 the present Court held that the dispute did not arise before August 26, 1946, the date on which the United States made its declaration. On the seizure of the property of the Interhandel, a Swiss company in the United States, the Swiss Government made a claim to the United States for the restitution of Interhandel's property. On July 26, 1948, the United States refused to do so and objected to the Court's jurisdiction on the basis of ratione temporis reservation in its declaration. The Court, while rejecting the United States objection, observed that the Swiss claim for restitution did not become a defined issue between the parties until July 1948, when the Swiss request made in May was rejected by the United States.In spite of the reservations, the "optional clause" constitutes the most comprehensive and most important instrument of obligatory judicial settlement. On the other hand, even if a case_____________________

75 Indian Declaration of Sept. 18, 1974, in para. 7 also contains the similar provision.76 See op. cit. 58, at pp. 425-426.77 PCIJ Rep., Series A/B, No. 74 (1938).78 PCIJ Rep., Series A/B, No. 77 (1939).79 See op. cit. 64.

Page 470 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW is covered by a reservation in the declaration made under "optional clause", that does not affect the possibility of the Court having jurisdiction on some other basis, like an obligatory judicial settlement clause in a treaty between the parties.80In order to preserve continuity with the Permanent Court of International Justice, Art. 36(5) of the present Statute provides that declarations made under Art. 36, i.e., the "optional clause" of the Statute of the Permanent Court of International Justice and which are still in force are deemed, as between parties to the Statute, to be acceptances of the compulsory jurisdiction of the present Court for the period for which they still have to run and in accordance with their terms. But, for the application of this provision, it is necessary that the State should be a party to the 1945 Statute (ICJ's Statute) prior to the dissolution of the Permanent Court of International Justice and not at a later date, as was observed in the Aerial Incident case.81 There, Bulgaria joined the United Nations in 1955, and hence became a party to the present Statute from that time and not in 1945; the Court could not exercise jurisdiction under this provision. Further, Art. 37 provides, "whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice". For its operation, treaty or convention should be "in force" between all the parties to the dispute, who are also parties to the Statute of the International Court of Justice. The Court based its jurisdiction on this provision in the Ambatielos case (Preliminary objection),82 the South-West Africa cases (Preliminary objections),83 and the Barcelona Traction case (Preliminary objection).84

(b) Procedure of the court in contentious casesThe normal procedure for initiating proceedings in the cases of compulsory jurisdiction is by a written application addressed to the Registrar of the Court, indicating the subject and the other party or parties to the dispute. The Registrar notifies the application to the other party or parties and any State entitled to appear before the Court (Art. 40 of the Statute). The Court cannot exercise jurisdiction on its own motion. The parties at any stage of the case remain free to settle their dispute by an agreement without the approval of the Court which should, nevertheless, be notified so that the case be removed from the Court's list. The complainant State may also discontinue the proceedings by giving a written notice, as Nicaragua did on August 12, 1987, in a case brought by it against Costa Rica in July 1986. After recording its statement, the Registrar may remove the case from the list (Arts. 88 and 89 of the Rules of Court, 1978)._____________________80 See Appeal Relating to the Jurisdiction of the ICAO Council case (1972) ICJ Rep., p. 46, at p. 53. The recent cases in which the Court exercised jurisdiction on the basis of "optional clause" are the Temple of Preah Vihear case (Preliminary objections) (1961) ICJ Rep., p.17; the Nicaragua case, op. cit. 69; Certain Phosphate Lands in Nauru (1993) ICJ Rep., p. 322; Land and Maritime Boundary between Cameroon and Nigeria case (preliminary Objections), (1998) ICJ Rep., p. 275; and the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Congo), (2002) ICJ Rep., p. 3.81 (1959) ICJ Rep., p. 127.

82 [Greece v. United Kingdom] (1952) ICJ Rep., p. 28.83 (1962) ICJ Rep., p. 319.84 (1964) ICJ Rep., p. 6.

Page 471 SETTLEMENT OF INTERNATIONAL DISPUTES The procedure in contentious cases is partly written and partly oral (Art. 43 of the Statute). The hearings are in public unless the Court decides otherwise or the parties demand a hearing in camera (Art. 46), but the deliberations of the Court take place in private and remain secret (Art. 54). The claimants in the same interest may be joined together.Under Art. 41 (and Arts. 73-78 of the 1978 Court Rules) of its Statute, the Court may, when necessary, indicate both to the parties and to the Security Council "any provisional measures which ought to be taken to preserve the respective rights of either party". Such an action of the Court depends upon the likelihood of an action being taken by one of the parties that will adversely affect the rights of the other party or could exacerbate the situation. The provisional or interim measures may be indicated even though the Court's jurisdiction in the dispute has been challenged.85 They will not be indicated where there is no risk of irreparable damage to the State requesting for such measures or where the case involves the due performance of the obligations under the United Nations Charter, and it is clearly established from the circumstances that the parties will not fail to observe their obligations.86The provisional measures may be mandatory as well as injunctive or restraining in nature.87 Such measures, however, are "indicated", they are not required and are not binding in law. In fact, these measures were not observed by the defendant State in any of the cases where the Court had indicated such measures.The parties may raise preliminary objections to the jurisdiction of the Court. But it is within the competence of the Court to decide about its jurisdiction (Art. 36(6)) as a part of general principle of law that "in the absence of any agreement to the contrary, the international tribunal has the right to decide as to its own jurisdiction".88 Objections to the Court's jurisdiction are commonly related to the facts that the matter falls exclusively within the domestic jurisdiction of the respondent State or that the controversy has not reached the stage of a dispute between the parties. In a majority of cases, it is possible for the Court to determine its jurisdiction before hearing the case on merits, but in certain cases, it is not possible to decide the jurisdictional issue without hearing the case in full. In such cases, the Court under its pre-1972 practice, was joining the objections to the jurisdiction to the merits of the case without prejudice to the position of the party making the objection.89 However, under the revised Rules of 1978 (Art. 79), it is now mandatory for the Court to give its decision in the form of a judgment upon the preliminary objections either by upholding them, rejecting them, or declaring that they do not possess "in the circumstances of the case, an exclusively preliminary_____________________85 See, for example, the interim measures indicated by the Court on July 5, 1951, in the Anglo-Iranian Oil Co. case (1951) ICJ Rep., p. 89; on June 22, 1973, in the Nuclear Tests cases (1973) ICJ Rep., p. 99; on May 10, 1984, in the Military and Paramilitary Activities in and against Nicaragua case (1984) ICJ Rep., p. 169. However, in the Fisheries Jurisdiction cases (1972) ICJ Rep., p. 12, the Court, while indicating provisional measures, stated that although it need not satisfy itself that it had jurisdiction, "it ought not to act under Art. 41 ... if the absence of jurisdiction on the merits is manifest".86 Aegean Sea Continental Shelf case (Interim Protection Order) (1976) ICJ Rep., p. 3.

87 See, for example, Nuclear Tests cases (Interim Protection), (1973 ICJ Rep. p. 99; US Diplomatic and Consular Staff in Tehran (Provisional Measures) of Dec. 15, 1979, (1979) ICJ Rep., p. 7; Nicaragua case, op. cit. 85; The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (1993) ICJ Rep., p. 3 of April 8, 1993; LaGrand (Germany v. USA) case (Provisional Measures), (1999) ICJ Rep., p. 9.88 See Nottebohm case, op. cit. 61 at pp. 119-120.89 See Right of Passage case, op. cit. 59; South-West Africa cases, op. cit. 83.

Page 472 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW character".90 In the latter case, the respondent State has to file a defence on the merits related to that ground if it wishes to rely thereon. On the other hand, parties may also agree that preliminary objections be heard and determined in the context of merits and the Court gives effect to such an agreement (Art. 79(8) of the Rules).In the contentious cases, while exercising its judicial functions, the Court has laid down certain significant limitations on its jurisdiction and the rights of States to advance a claim. First, as staled in the Northern Cameroons case, the particular dispute submitted to the Court should be related to an existing controversy between the parties, involving a conflict of legal interests, and the judgment must affect existing rights or obligations of the parties.91 Mere difference of opinion between the parties, without substantially affecting their legal rights or interests, cannot be termed as a "dispute". This principle became the basis of the Court's decision in the Nuclear Tests cases, where the Court declared that "the existence of a dispute is the primary condition for the Court to exercise its judicial function" and the dispute must continue to exist at the time when the Court makes its decision.92 Since the assurance sought by Australia and New Zealand, the applicant States, for the cessation of the tests was given by France on its own accord, the object of the claim or dispute disappeared, hence the Court did not give a decision.Second, the claimant State should have the locus standi to present the claim, i.e., the claimant State must establish a legal right or interest in the subject-matter of its claim. This rule was applied in the Barcelona Traction case and the South-West Africa cases (Second phase). In the Barcelona Traction case (Preliminary objections), the claim of the Belgian Government against the Spanish Government was rejected.93 In the South-West Africa cases, where Ethiopia and Liberia, being the original members of the League of Nations brought individual cases against South Africa for the violation of its mandate over South-West Africa, the Court ruled that both Ethiopia and Liberia have no locus standi in the matter. The Court opined that the legal right or interest in the subject matter of a dispute "must be clearly vested in those who claim them by some text or instrument or rule of law"94 and no such justiciable rights or interests were found to be vested in individual members of the League of Nations.On the other hand, the Court does not decline to resolve a legal issue if it otherwise has jurisdiction in a dispute even though it may be only one aspect of a political dispute. Similarly, the fact that the United Nations Security Council is seized with a dispute or situation or is competent to take cognizance of it, would not debar the Court from exercising its jurisdiction to resolve a particular legal issue of that dispute or situation. In the Nicaragua case, the contention raised by the United States that the subject matter of the dispute, i.e., an "ongoing armed conflict" involving the use of armed force contrary to the United Nations Charter, is specifically allocated to the political organs of the United Nations and hence, the Court is debarred from exercising its jurisdiction, was rejected by the Court.95_____________________90 See, for example, the Nicaragua case, op. cit. 58.91 Northern Cameroons case (1963) ICJ Rep., p. 15, at 33-34.92 (1974) ICJ Rep., p. 253 at 270-272.93 (1964) ICJ Rep., p. 6, at p. 41.

94 (1966) ICJ Rep., p. 6, at p. 32.95 (1984) ICJ Rep., p. 392, at pp. 431-436. In the United States Diplomatic and Consular Staff in Tehran case (1980) ICJ Rep., p. 3, the Court rejected both these arguments, see paras. 37 and 40 respectively. The Court held similarly in the Palestinian Wall case (Advisory opinion), (2004) ICJ Rep., p. 136.

Page 473 SETTLEMENT OF INTERNATIONAL DISPUTES A third State may intervene in the proceedings already instituted before the Court, if it considers "that it has an interest of a legal nature which may be affected by the decision in the case", and is allowed by the Court to intervene (Art. 62 of the Statute).96 Where the construction of a convention is in question before the Court, every State which is a party to the convention is to be notified by the Registrar. But if it exercises this right of intervention, the construction given by the judgment will be equally binding upon it (Art. 63).97 The Court's jurisdiction under these articles is incidental to, and dependent on, its jurisdiction between the original parties.The Statute of the Court does not contain any provision on the enforcement of its judgments. Under Art. 94 of the Charter, each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. This provision is merely declaratory and in a case where a State becomes an unwilling party to litigation, it is less likely to abide by a decision inimical to its interests. If a party fails to perform its obligations under a judgment rendered by the Court, the other party may have recourse to the Security Council which may make recommendations or decide upon measures to be taken to give effect to the Court's decision. Given the fact that the Security Council may be motivated by numerous considerations and veto, besides it being the long-drawn and tardy procedure, execution of the judgments of a Court remains a serious weakness of the United Nations system.

(c) Advisory jurisdiction of the CourtThe Court is empowered to "give an advisory opinion on any legal question" at the request of a body authorised by or in accordance with the Charter of the United Nations to make such a request (Statute Art. 65(1)). The General Assembly and the Security Council are authorised by the United Nations Charter to request opinions (Art. 96(1)). Other organs of the United Nations and the specialised agencies, if authorised by the General Assembly, may also seek advisory opinions of the Court on legal questions arising within the scope of their activities (Art. 96(2)). In practice, all the principal organs—Economic and Social Council, the Trusteeship Council, and 15 out of 17 specialised agencies (the exceptions are the Universal Postal Union and the Multilateral Investment Guarantee Agency) have been authorised to request opinions, beside the International Atomic Energy Agency (which is not a specialised agency). The advisory function of the Court is designed primarily to assist the General Assembly and the Security Council in the discharge of their duties of conciliation over disputes submitted to them, by rendering them an authoritative legal opinion on law points._____________________96 In the Wimbeldon case, Poland was allowed to intervene, PCIJ Rep., Series A, No. 1, p. 25 (1923). In the case concerning the Acquisition of Polish Nationality, the Court refused to allow intervention by Romania, PCIJ Rep., Series C, No. 3, Vol. 3, p. 1089. In the Nicaragua case, op. cit. 66, El Salvador, Honduras and Costa Rica were allowed to intervene. More recently, in the Land, Island and Maritime Frontier Dispute case (El Slavador v. Honduras) (1990) ICJ Rep. p. 92, Nicaragua was allowed to intervene. See also Land and Maritime Boundary (Cameroon v. Nigeria), (1999) ICJ Rep. p. 1029 in which Equatorial Guinea successfully intervened.

97 In the Haya de la Torre case (1951) ICJ Rep., p. 71, Cuba was allowed to intervene in the Oral hearings on the ground that it would be dealing with a new aspect of the Havana Convention, to which it was a party.

Page 474 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW Strictly speaking, the Court's opinion is not given to States,98 but only to organs entitled to do so. However, States are permitted, alongwith international organisations, to participate in proceedings before the Court (Art. 66 of the Statute). Individuals and other non-State entities have no locus standi. Advisory jurisdiction of the Court is confined only to "legal questions", concrete or abstract. The Court may refrain from giving an advisory opinion on a purely academic question, but if the opinion sought may ultimately assist the concerned international organisation in discharging its functions, the questions are not to be deemed purely academic.99 Similarly, the Court should not decide upon the merits of a dispute between States by way of an advisory opinion. However, the consensual basis of its advisory jurisdiction has been recognised to an extent. In the Eastern Carelia case, the dispute between Finland and Russia was referred for an advisory opinion to the Court by the League of Nations. Russia, a non-member of the League, declined to appear before the Court. The Court refused to give an opinion on the ground that "answering the question (put to them) would be substantially equivalent to deciding the dispute between the parties", and made an observation that "no State can, without its consent, be compelled to submit its disputes with other States... to any other kind of pacific settlement".100 In the Western Sahara case also the Court stated that the "consent of an interested State continues to be relevant, not for the Court's competence, but for the appreciation of the propriety of giving an opinion".101The absence of consent of a State or States, however, does not prevent the Court from giving an advisory opinion on a legal question, the solution of which may clarify a factor in a dispute between States or between a State and an international institution, without affecting the substance of the dispute. The Court will also give the opinion which may provide guidance to an international organ in matters of procedure under a multilateral convention or to give effect to the convention.102 The Court is not debarred from acceding to a request by a United Nations organ for legal advice on the consequences of decisions of that organ, even though it may require the Court to pronounce on legal questions upon which there is a difference of opinion between a particular member State and the United Nations.103 Further, the non-cooperation and absence of consent of a party or parties to a dispute does not prevent the Court in giving an opinion if: (i) the question is related to the competence of the organ;104 (ii) the question concerns the procedure of settlement and not the substance of the dispute.105The Court, being the principal judicial organ of the United Nations, should participate in the activities of the Organisation and, in principle, should not refuse to answer the questions_____________________98 They may obtain a declaratory judgment in contentious case if the Court has jurisdiction under Art. 36 of its Statute.99 See the Advisory Opinion on the Western Sahara (1975) ICJ Rep., p. 12.100 See op. cit. 4, at pp. 27 and 29.101 See op. cit. 99.102 See the advisory opinions in the Interpretation of the Peace Treaties (1950) ICJ Rep., p. 65, and on the Reservations to the Genocide Convention (1951) ICJ Rep., p. 15.

103 Ibid., see also the advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) (1971) ICJ Rep., p. 16, at pp. 23-25.104 See Frontier between Turkey and Iraq case, PCIJ Rep., Series B, No. 12. 105 See Peace Treaties case, op. cit. 102.


submitted to it.106 It may not refuse to give an advisory opinion where the interpretation of treaty provisions is concerned, even though such a question and request are of political nature107 or there is a political pressure.108 But it may refuse to do so if the question submitted is embarrassing.An advisory opinion lacks the binding force of a judgment in a contentious case. However, they have been usually accepted and acted upon by the requesting body and State concerned. But the compliance with opinions has declined over the years. The striking examples are the failure of the Soviet Union and France to comply with the Certain Expenses case109 and the steadfast refusal of South Africa to abide by the opinions on South-West Africa/Namibia. Occasionally, States make provision in a treaty or agreement in advance for an opinion to be binding.110 Even in the absence of any such provisions, advisory opinions have a strong persuasive value.

Procedure of the Court in Advisory OpinionsIn the practice of the Court, the procedure in the advisory opinions is closely assimilated to the procedure in the contentious cases (Art. 68 of the Statute). A written request is made to the Court with an exact statement of the question upon which an opinion is sought, and accompanied by all documents likely to throw light upon the question (Art. 65). The Registrar thereafter notifies about the request for an advisory opinion to all States entitled to appear before the Court. He shall also, by direct communication, notify any State or international organisation considered by the Court as likely to be able to furnish information on the subject-matter of the request and receive written or oral statements thereto. States and international organisations, so presenting their written or oral statements, are permitted to comment on the statements made by other States or organisations (Art. 66). The advisory opinion is delivered in open court (Art. 67).

5. Evaluation of the role of the Court in dispute settlementThe World Court was created after the First World War with the belief that judicial settlement could be a more attractive alternative to the use of force. The United Nations Charter, while prohibiting the use of force (Art. 2(4)), requires the member nations to decide their disputes by peaceful means of their choice, including the judicial settlement (Art. 33). But the International Court of Justice, the only principal judicial organ of the United Nations, was long ignored and_____________________106 Advisory opinion concerning the Conditions of Admission of a State to Membership of the United Nations (1948) ICJ Rep., p. 57.107 See Advisory opinion in Certain Expenses of the United Nations (1962) ICJ Rep., p. 151.108 See the Namibia case, op. cit. 103.109 See op. cit. 107.110 See, for example, Art. 30 of the 1946 General Convention on the Privileges and Immunities of the United Nations, and Art. 32 of the 1947 Convention on the Privileges and Immunities of the Specialised Agencies. It may also be part of the request forwarded to the Court, for example, Judgment No. 2867 of the Administrative Tribunal of the

International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion), submitted to the Court on 5 May 2010 by the IFAD.

Page 476 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW neglected by members nations, particularly during 1960s to 1980s after the Soulh-West Africa cases'", in which the political approach of the Court became very evident. The developing countries were reluctant to come before the Court or to accept the compulsory jurisdiction.Although the "clientele" of the present Court is much larger (some 193 States are parties to the Statute) than that of its predecessor, the Permanent Court of International Justice, there has been no proportionate increase in the work of the Court. Whereas, in the period from 1922 to 1946, the Permanent Court dealt with 33 contentious cases and 28 requests for advisory opinions, the present Court dealt with 103 contentious cases and 25 requests for advisory opinions since 1946. Currently 16 contentious cases and one request for advisory opinion are pending before the Court. There were times when the Court did not have any case. Further, while 42 States out of 68 members of the international community were bound by the "optional clause" of the Statute of the Permanent Court of International Justice, there are only 66 States that are presently parties to the 'clause' and have accepted the compulsory jurisdiction of the Court with their wide and far-reaching reservations, which in many cases leave the States virtually free to accept or decline jurisdiction when an actual dispute arises. The States have also been reluctant in invoking clauses in a large number of bilateral or multilateral treaties providing for reference of disputes to the Court. The Court's role in the development of an effective international legal order is very significant, which can only be fulfilled if it is meaningfully put into use. The negative factors responsible for the lack of effectiveness of the Court in the dispute settlement and the reluctance of the States to resort to the Court are: the lack of confidence in international adjudication on the part of governments because of absence of enforcement machinery and non-confidence in the impartiality of the Court; the comparative lack of representation of Afro-Asian States on the Court; the general conditions of international relations,"2 and preference for other more flexible methods of settlement like arbitration, so as to retain their unilateral freedom of action, and sometimes to save themselves from the agony of an unfavourable decision. States also prefer to settle their controversy by collective political action through organs like the Security Council or the General Assembly rather than convincing the Court of their legal claims.The present Court is credited with more instances of non-compliance with its judgments and orders compared to the Permanent Court, whose judgments and orders in contentious cases were all complied with. The judgments in the Corfu Channel case,113 the Fisheries Jurisdiction cases,114 the US Diplomatic and Consular Staff in Tehran case115 and the Nicaragua case,116 have not been followed and orders for interim measures in none of the cases were followed. The judgment in the Nicaragua case was declared to be non-binding even before it was decided by the Court.117 A more problematical aspect has been visible in the contentious_____________________111 (1966) ICJ Rep. p. 6. In this case Court reversed its earlier decision, see South-West Africa cases(Preliminary Objections) (1962) ICJ Rep. p. 330.

112 I. Brownlie, Principles of Public International Law, 7th ed. (Oxford University Press, Oxford), 2008, p.723.113 (1949) ICJ Rep., p. 4.114 (1974) ICJ Rep., p. 3.115 Op. cit. 95.116 See op. cit. 69.117 See US Statement, 24 ILM 246 (1985).


cases since 1970. In an increasing number of cases, States have refused to take part in the proceedings where the applicant State has invoked the jurisdiction of the Court under Art. 36(2). They include the Nuclear Tests cases,118 the Aegean Shelf case,119 Fisheries Jurisdiction cases,120 and the Nicaragua case.121 This deprives the Court to access all the evidence to decide the case.These facts do not enhance the credibility of the judicial settlement as a means of dispute resolution, even though in recent years, States have shown an increased confidence in the Court. There is no meaningful mechanism to enforce the judgements of the Court, except the procedure provided under Art. 94(2) of the Charter, which vests the power in the Security Council in this regard. In the absence of any meaningful international machinery to enforce the judgments of the Court and the obligation for compulsory settlement of international disputes, the situation will not significantly improve. States should be encouraged to use the chamber system created under the 1978 Rules of the Court to settle the special categories of disputes.122

D. Settlement of Disputes under the Auspices of United Nations OrganisationArt. 1 of the Charter of the United Nations, among others, provides the maintenance of international peace and security as one of its purposes. Towards this end, the settlement of disputes is a central function of the United Nations. In this regard, Art. 2 contains two obligations for its members: to "settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered" (para. 3); and to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations" (para. 4). One of the basic purposes of the United Nations is "to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace" (Art. 1(1)). Numerous provisions of the Charter have been devoted to the fulfilment of this purpose. Important responsibilities have been devolved upon the General Assembly and the Security Council in this regard. Since the Security Council has the primary responsibility of maintaining international peace and security (Art. 24), it has been given wide powers.The Security Council's powers are related to two kinds of disputes: (a) disputes which may endanger international peace and security; (b) cases of threats to the peace, or breaches of peace, or acts of aggression. While in the former category, the power of the Council relates to the peaceful settlement of disputes, in the latter category, it is in the nature of enforcement action or collective measures. The Council is empowered to make recommendations, in the nature of decisions, and take any enforcement measures, including the use of force, which the Council_____________________118 Australia v. France, and New Zealand v. France (1974) ICJ Rep., pp. 253, 457.119 Greece v. Turkey, op. cit. 64.120 See op. cit 114.121 Nicaragua v. US (1986), op. cit. 69.122 For the list of cases where chamber system has been used, see op. cit. 42.

Page 478 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW may consider necessary. These actions are authorised under Chapter VII of the Charter.123 In respect of disputes pertaining to the former category, the parties have a duty to seek, first of all, a solution "by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice". The Charter, recognises the freedom of the parties to resort to any procedure of their choice for securing peaceful resolution of their differences. However, the Security Council may, when it deems necessary, call upon the parties to settle their disputes by such means (Art. 33(2)). The Council may investigate any dispute or situation which might lead to international friction or give rise to a dispute (Art. 34).The Security Council may, at any stage of a dispute or situation, the continuation of which is likely to endanger international peace and security, recommend "appropriate procedures or methods of adjustment", taking into consideration "any procedures for the settlement of the dispute which have already been adopted by the parties", and bearing in mind that legal disputes should, as a general rule, be referred to the International Court of Justice (Art. 36).124 If the parties fail to settle their dispute by the means indicated in Art. 33, the Council may "recommend such terms of settlement as it may consider appropriate" or shall decide whether to take action under Art. 36 (Art. 37(2)). The Council's powers to make recommendation under Arts. 36 and 37(2) are so wide that the creation of a force with a peace-keeping role can conveniently be brought within its compass as well as to seek the advisory opinion of the Court. The Council, while creating a force in March 1964 to prevent civil strife between the Greek and Turkish communities in Cyprus (UNFICYP), spelt out the connection with Chapter VI of the Charter by describing the situation as "likely to threaten international peace and security", and by "recommending" the creation of the force.125 However, this whole procedure, laid down in Arts. 33-37, may be avoided, "if all the parties to any dispute so request" to the Security Council, which may make recommendations "to the parties with a view to a pacific settlement of a dispute" (Art. 38). This power would seem to extend to "any dispute" even if it is not likely to endanger international peace.While most of Chapter VI describes the role of the Security Council in the settlement of disputes, the Charter confers parallel jurisdiction, albeit not equivalent, on the General Assembly, and allows a State to bring a dispute before it (Arts. 11(2) and 35). However, the General Assembly is not authorised to make any recommendations with regard to a dispute which is being dealt with by the Security Council, unless the Council itself so requests (Art. 12). The General Assembly is given the authority, subject to the peace enforcement powers of the Security Council, to recommend measures for the peaceful adjustment of any situation which is likely to impair general welfare or friendly relations among nations (Art. 14). But the General Assembly's powers in this direction are merely recommendatory. It has been maintained that Art. 14 empowers the General Assembly to initiate a process of peaceful settlement by readjusting the final settlements (e.g., related to territory or frontiers) under the treaties since the word "situation" is referable to "situation" under executed and executory treaties, and this helps in the peaceful change of treaties. But in view_____________________

123 For detailed discussion of these actions, see Ch. 19 infra.124 The Court's power to exercise jurisdiction over a dispute between the parties, of course, is subject to other requirements necessary for this purpose.125 SC Res. S/5575; reproduced in 3 ILM 371 (1964).


of the Assembly's recommendatory power in the matter, no binding action in the direction of peaceful change or revision of treaties can be effected.The role of the United Nations in the peaceful settlement under Chapter VI, however, is very limited. First, unless a dispute is of an international character, and likely to threaten the maintenance of international peace and security under the terms of the Charter, the dispute is within the exclusive jurisdiction of the parties. Second, even if there is a probable threat to international peace and security, a party, particularly the stronger one, may assert the claim of domestic jurisdiction. The plea of ''domestic jurisdiction" remains a formidable defence for the side unwilling to let the Organisation help in achieving a peaceful settlement. Third, though any dispute threatening international peace and security is the "United Nations concern", the United Nations is restricted from acting in the matter unless both sides in the conflict agree to utilise its assistance. In other words, unless a situation is of such an intensity as to pose a threat to international peace and security, in which case it may be subjected to enforcement action under Chapter VII, the Organisation may not take any initiative during the incipiency of a dispute.126

IV. COMPULSIVE OR COERCIVE MEANS OF SETTLEMENTStates resort to compulsive means of settlement when they cannot agree to or fail to settle their disputes by peaceful means. Such means involve some amount of compulsion or coercion, and if necessary, also the use of force to make the reluctant State to agree to a settlement. Where use of force is involved, their legality is questionable under Art. 2(4), of the United Nations Charter, but due to the weaknesses of the present international law without any centralised machinery to settle international disputes, these measures continue to have their relevance in international relations. Broadly speaking, they are the forms of self-help. These measures include retorsion, reprisals, embargo, pacific blockade and intervention. These measures are short of a state of war. War is also one of the compulsive means. But there is difference between war and other means as follows:1. In measures other than war, the relations of peace (diplomatic and others) are maintained, in war they may come to an end.2. The compulsive means are confined to certain harmful measures only, in war any amount and any kind of force can be used, subject to humanitarian law.3. As soon as the other State is willing to settle the difference, the measure must cease, but it is not so in war, which comes to an end with the defeat of one of them.

A. RetorsionRetorsion is a retaliatory measure, resorted by a State against unfriendly, discourteous or inequitable acts of another State.127 These acts are of the similar nature as those taken by the offending_____________________126 L. Henkin, R.C. Pugh, O. Schachter, and H. Smit, International Law: Cases and Materials, 2nd ed. (West Publishing Co., Minnesota), 1987, p. 837.127 Cassese defines retortion as 'any act by which a State responds, by an unfriendly act not amounting to a violation of international law, to either (a) a breach of international

law or (b) an unfriendly act, by another State'. See A. Cassese, International Law, 2nd ed. (Oxford University Press, Oxford) 2005 p. 310.

Page 480 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW State. For example, if a State imposes restrictions on the entry of citizens of a particular country in its territory, that country may also impose similar restrictions, or if State A declares persona non grata the ambassador of State B, that can declare similarly in respect of the ambassador of State A. There are no precise conditions when retorsion can be resorted to. Retaliatory actions may take the form of severance of diplomatic or economic ties, or withdrawal of diplomatic or consular privileges or withdrawal of fiscal concessions but does not involve the suspension of international obligations owed by the victim State to the offending State. They are the forms of unfriendly acts, which are seemingly legal and are not circumscribed by the international law. But if they endanger "international peace and security, and justice", such acts would not be justiciable under the United Nations Charter which requires members to settle their disputes by peaceful means (Art. 2(3)).

B. ReprisalsReprisals are retributive or punitive in nature. They are adopted by a State to seek redress from another State for its illegal or unjustified acts. The aim of reprisal is to punish the recalcitrant State, and to compel the delinquent State to discontinue the wrongful act and compensate the State wronged. Reprisals are injurious or otherwise internationally illegal acts of one State against another and are exceptionally permitted for the purpose of compelling the latter to consent to a satisfactory settlement of a dispute created by its own international delinquency. The delinquent act may be the violation of the dignity of a foreign State, or its territorial supremacy, or the non-compliance with treaty obligations.Reprisals differ from retortion, i.e., whereas in retortion action taken by the aggrieved State is apparently legal to which no objection can be taken, in reprisals, it is not always true and they may be contrary to international law and illegal. Reprisal is actuated by the illegal act of the delinquent State, and retortion is resorted against the inequitable and unfriendly act of another State. Reprisals may be performed against anything and everything that belongs to or is due to the delinquent State or its citizens. Earlier, reprisal involved the seizing of property or persons but later it included any coercive measure adopted by a State to seek redress from the offending State. Reprisals may take various forms, viz., an embargo of the offending State's ships, seizure of its property on the high seas, economic sanction or boycott of its goods (which may amount to economic aggression), bombardment or even pacific blockade. But the peace-time reprisals are different from reprisal actions taken by a State during war, whose object is generally to force an opponent State to stop breaking the laws of war. Since reprisal generally involves the use of force, its legality is questionable under international law.The right to resort to forcible reprisals has always remained controversial, and though the law is unsettled in this respect, but to be valid, such acts must satisfy certain conditions. The most authoritative law, specifying the conditions for reprisals, was laid down in the Naulilaa incident by the Special Arbitral Tribunal in 1928. The incident occurred in 1915, while Portugal was still neutral in the First World War. A German group entered Naulilaa, a Portuguese post on the frontier of Angola and the then German South-West Africa. Due to misunderstanding, three Germans were killed. As a measure of reprisal,

the Governor of South-West Africa sent a military expedition to the Portuguese territory, which attacked several Portuguese posts and

Page 481 SETTLEMENT OF INTERNATIONAL DISPUTES drove out the garrison from Naulilaa. In the regions which Portuguese were forced to vacate, a local uprising took place after the Germans returned to South-West Africa. The suppression of the local uprising caused great harm to Portugal which expelled the German consul from its country as a reprisal and demanded compensation. Before the tribunal, Germany took the plea of legitimate reprisal. The tribunal observed that "reprisals are acts of self-help'" and they "seek to impose on the offending State reparation for the offence, the return to legality and the avoidance of new offences". They are "limited by considerations of humanity and the rules of good faith, applicable in the relations between States".The tribunal laid down three conditions of legitimacy of reprisals:a. Reprisals are illegal unless they are based upon a previous act contrary to international law.b. They must be preceded by an unsuccessful demand of redress. In fact, the necessity of resorting to force is justified if the possibility of obtaining redress by other means fails.c. The measure adopted should be proportionate in relation to the injury suffered orprovocation received.128The Tribunal found Germany guilty of using excessive force, without first requesting for a redressal, and the Portuguese act not contrary to international law. Germany was held liable to pay compensation for its unjustified act.There have been several occasions when States have resorted to reprisals. The recent example of its use has been the Israeli action on several occasions in bombing certain areas of Lebanon, targeting the Arab guerillas based there for their violent acts directed against Israelis over a period of time. But the legality of such measures is very much in suspect in the context of the United Nations law, which prohibits the unilateral use of force against the territorial integrity or political independence of any State (Art. 2(4)). The Charter also obligates States to settle their disputes by peaceful means so as to preserve international peace and security, and justice. They are also against the principles and purposes of the Charter which mandate States to seek, first of all, a solution of their disputes likely to endanger international peace and security through peaceful means (Art. 2(3)). Similarly, the General Assembly Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States of October 24, 1970, declares that, "States have a duty to refrain from acts of reprisal involving the use of force".129 Thus use of force as a part of retaliatory action is illegal under the modern international law. Such actions can be justified only if their objective is to satisfactorily settle the international disputes. But in the cases of collective reprisals or action under the United Nations Charter,_____________________128 Naulilaa case (1928) 2 RIAA, p. 1012, at p. 1019. For the full award of the Special Tribunal, see Revue de droit Internationale (1929), p. 255. The US termed its bombing of Libyan targets on April 15, 1986, as reprisals for alleged Libyan involvement for the attack on Americans in a German discotheque, frequented by American soldiers, wounding over 50 Americans. The legality of the American action has been questioned; see the Case Western Reserve Journal of International Law (Spring 1987).

129 GA Res. 2625 (XXV),' Oct. 24, 1970.


their justiciability has different considerations. They are resorted to make the recalcitrant State to comply with the United Nations Charter or the rules of international law and stop acts which threaten international peace and security.130In 1978, in the case of Air Services Agreement case (France v. United States), the arbitral tribunal coined the term countermeasures.131 Since then the term has been used to indicate non-forcible measures, but that has not clarified the place of retortion and reprisals in international law. The International Law Commission's [ILC] draft articles on State Responsibility in Chapter III have defined the term countermeasures as non-forcible measures taken by an injured State in response to a breach of international law in order to secure the end of the breach and, if necessary, reparation.132 Non-forcible measures may be taken by an injured State in breach of an internationally wrongful act against the State responsible for that act. In this sense, countermeasures are somewhere between retortion and reprisals. The codification by ILC is an indication of the acceptance of State practice on the use of these measures, and these measures, retorsion and reprisals continue to exist in international relations, even though their legality remains an issue. It is nevertheless important to note that so long under international law no obligation exists to submit disputes to obligatory judicial settlement, and as long as there is no agency enforcing compliance with that obligation, retorsion and reprisals remain relevant as a means of settlement of international disputes and enforcing international law.

C. EmbargoEmbargo is yet another kind of coercive method for the settlement of international disputes. It literally means detention of commercial ships by a State in its ports. Under international law, embargo means the detention of ships of the offending State found in the territorial waters and ports of the aggrieved State.133 The other forms of embargo are: embargo arret de prince, i.e., detention of foreign ships to prevent the spread of politically important news; and embargo jus angariae, i.e., the right of the belligerent State to seize, and make use of neutral property, in case of necessity, under the obligation to compensate the neutral owner. The vessels are detained to seek redress from the offending State and in that sense, embargo is a form of reprisal. Embargo can be applied by a State individually or collectively, under the authority_____________________130 During the course of Korean hostilities, the UN General Assembly, by Res. of May 18, 1951, recommended for collective embargo by States against the People's Republic of China and North Korea on their shipment of arms, ammunition and implements of war. Many members nations acted upon this recommendation. Similarly, under the Inter-American Treaty of Reciprocal Assistance, 1947, the decision was taken by the Foreign Ministers of American States in January 1962, to suspend trade with Cuba in arms and implements of war of any kind. Cuba challenged the validity of the decision, alleging that it was an enforcement action devoid of the Security Council's authorisation under Ch. VII of the Charter, but the objection was denied; see Starke, op. oil. 68, p. 521, n. 10.131 54 ILR 303.

132 See Report of the International Law Commission on the work of its 53rd Session, UN Doc. A/56/10, adopted 9 August 2001.133 This is termed as "hostile" embargo. On the other hand, there is also "civil" or "pacific" embargo in which a State detains its own vessels to terminate its trade and economic relations with offending State in order to exert financial or economic pressure on that State. The legality of pacific embargo cannot be challenged unless it amounts to economic aggression.

Page 483 SETTLEMENT OF INTERNATIONAL DISPUTES of the United Nations.134 However, this measure is clearly against the fiat of Art. 2(3) of the United Nations Charter.

D. Pacific BlockadeThrough pacific blockade, which is used during peace-time, the ingress and egress of the vessels of other nations are prevented to and from the ports of the blockaded State. It is often resorted to as a reprisal action to coerce the offending State to settle the dispute to the satisfaction of the blockading State(s). The United Nations Charter in Art. 42 endorse its use as a mean to "maintain or restore international peace and security". The latest example of its use has been against Iraq in 1990, after it annexed Kuwait. The Security Council called upon all the United Nations members, deploying maritime forces to the area, to use such measures as may be necessary to halt all inward and outward shipping for the purposes of inspecting and verifying their cargoes and destination.135The pacific blockade is different from blockade used as a part of war operations by a belligerent State against another. It is less violent than that used during war, and is more elastic. Furthermore, it is generally confined to the ships of the blockaded State and the third States are not bound to respect such a blockade. Their vessels are exempted from blockade, i.e., they cannot be searched, seized and sequestrated for the violation of blockade, unless the actual war exists between the blockading and blockaded States. The ships of the third States cannot be subjected to prize court or to the obligations and inconveniences of neutrality in the absence of actual war. Generally, it is adopted by the powerful maritime nations against their weak counterparts, making it a war-like operation without bearing the burdens of war.All cases of pacific blockade are either a case of intervention or of reprisals. For example, in 1916, Allied Powers blockaded the coasts of Greece for attacks on Allied forces in Athens. In the first illustration of a successful operation of pacific blockade, in 1827, Britain, France and Russia collectively blockaded the Greek coast in the interest of the independence of Greece, occupied by Turkish'troops. The recent examples of its application are of the United States' blockade of Cuba in 1962, and the United Kingdom's declaration of a 200-mile Total Exclusion Zone (TEZ) around the Falkland Islands on April 28, 1982 (it was extended to 12 miles from the coast of Argentina on May 7, 1982). In both these cases, the naval operations were not confined only to the vessels of the blockaded State, but to the ships and aircrafts of third States also. A third State's ships could enter the zone with specific permission of the blockading State. Thus, they were clearly different from a pacific blockade.136The legality of pacific blockade, however, is questionable under the United Nations Charter and contemporary international law, which prohibit the use of force unless resorted to in pursuance of the United Nations action in the fulfilment of its purposes and principles to maintain international peace and security._____________________134 For collective embargo, see op. cit. 130.135 See SC Res. 661 of Aug. 6, 1990, and Res. 665 of Aug. 25, 1990.

136 For more details of these incidents, see Henkin, Pugh, Schachter and Smit, op. cit. 126, pp. 702-704, 794-795; James J. McHugh, Forcible self-help in international law, 62 Naval War College International Law Studies, 139 at pp. 154-156 (1980).

Page 484 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW E. InterventionIntervention generally denotes an act of interference by one State in the affairs of another.137 In a special sense, it is the dictatorial interference in the internal and external affairs of another State, subverting thereby that State's sovereignty and independence. Intervention as a means of settlement is the form of communication to one or both of the conflicting States with a dictatorial request for the settlement of the conflict in a certain manner, for instance, by the acceptance of certain terms. Intervention may be by a State alone, or by several States collectively, such as in 1895 by Russia, France and Germany against Japan, to force it to return the Chinese territory that Japan had ceded under the Treaty of Shimonoseki. As a result of this intervention, Japan returned the territory.In a difference between two States, intervention can take place at any time from the moment a conflict arises till it is settled, and even immediately after the settlement. In many cases, intervention has taken place before the outbreak of war between the disputing States, to prevent the war. In other cases, third States have intervened during a war which had broken out in consequence of a conflict.Apart from dictatorial intervention, there are following kinds of intervention:1. "Internal" intervention, i.e., a State interfering between the disputing parties of another State, in favour either of the legitimate government or of the insurgents.2. "External" intervention, i.e., a State interfering in the relations, generally of hostile nature, of other States.3. "Punitive" intervention, i.e., resorted to by a State as a measure of reprisal against the offending state.These acts of intervention amount to subversion of the State's sovereignty and, hence, contrary to international law. Customary international law forbids intervention. Dictatorial intervention for the settlement of a dispute is stronger than mediation or diplomatic suggestion and is accompanied by a threat or use of force. This makes it questionable under the United Nations Charter.On December 21, 1965, in Resolution 2131, the General Assembly adopted a Declaration on the inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. It asserted that "no State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State".138 The General Assembly reiterated this principle of non-intervention in its Declaration on Principles of International Law on Friendly Relations and Cooperation among States. Acts directed "against the personality of the State or against its political, economic and cultural elements", declared_____________________137 To constitute intervention, the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question. See R. Jennings & A. Watts (ed.) L. Oppenheim, International Law, Vol. I, 9th ed. (Pearson Education (Singapore) Pvt. Ltd.), 1996, para. 129. Intervention in a dispute consists of dictatorial interference of a third State for the purpose of settling the difference in the way demanded by the intervening State, ibid., Vol. II, 7th ed. (1952), pp. 150-51.138 GA Res. 2131 (XX), Dec. 21, 1965.

Page 485 SETTLEMENT OF INTERNATIONAL DISPUTES to be "in violation of international law".139 Thus, every State is under a duty not to foment, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State. The International Court of Justice further endorsed this position in the Nicaragua case by stating that any act of intervention serving by design or implication to impinge the political independence, economic system or influence the foreign policy by methods of coercion, especially by force, is prohibited.140The Monroe Doctrine, proclaimed by the United States President in 1823, though primarily aimed at non-intervention, had political aspects rather than legal. It contained three distinct principles: (a) the principle of "non-colonisation", i.e., that no part of the American continent would be subjected to future colonisation by any European Power; (b) the principle of "non-intervention", i.e., the American States would not interfere in European wars or European affairs; (c) the United States would regard any attempt by the European Powers to extend their system to any part of the American continent as dangerous to its peace and safety. The last one has become the guiding principle of the United States policy since the nineteenth century and used by the United States as a pretext to intervene in the affairs of American States. The unilateral declaration in the form of Monroe Doctrine has been used by the United States to conclude treaties to strengthen its inter-American security arrangements,141 which have given it a free hand to intervene. This is evident from the Cuban "quarantine" in 1962, the United States troops landing in Dominican Republic in 1965 to ward off the establishment of a communist government there, or helping the "contras" in the Nicaragua civil strife to oust the Sandinista Government in 1981.There are, however, the following exceptions to the principle of non-intervention under international law and the United Nations Charter:1. A State can intervene in the affairs of a protectorate under its dominion in accordance with the terms of the treaty. Technically, however, it cannot be termed as intervention because it is done with the consent of the State, as evidenced by the treaty.2. A State can intervene to protect the life, rights and interests of its citizens abroad. This right of intervention, used as a measure of self-help under customary international law, is relied upon by nations even now. The landing of the multinational force led by the United States in Grenada in 1983 was justified on this ground.142 In 1956, Britain and France justified their intervention in the Suez canal crisis (primarily between Egypt and Israel) on the plea that "intervention was designed to protect the lives of our nationals and to safeguard the Suez canal". The action was criticised by the international community. Under modern international law such a right is very controversial and it may be an instance of forcible intervention. The Israeli action at the Entebbe airport of July 3, 1976, to secure the rescue of its citizens from a hijacked French aircraft on June 27, 1976 was widely criticised.143_____________________139 GA Res. 2625 (XXV), Oct. 24, 1970.140 See op. cit. 69, at p.111, para. 205.141 See the Inter-American Treaty of Reciprocal Assistance of Rio de Janeiro, 1947, and Pact of Bogota of the Organisation of American States, 1948.

142 The United States intervened in Panama in the 1989 on the same ground, the action was criticized by the General Assembly, see GA Res. 44/240 of Dec. 29, 1989.143 See The Entebbe Incident, UN Docs. S/PV, 1939, pp. 27, 51-59, and S/PV 1941, pp. 31-32, reprinted in 15 ILM 1224 (1976).


3. A State has a right to intervene in self-defence if intervention is necessary to contain the danger of actual armed attack, leaving no choice of means, and no moment for deliberation for the State concerned, as was laid down in the Caroline case.144 Under the United Nations Charter, the right of self-defence has been accepted as an "inherent right" of a State which can be invoked only if the State is subjected to an "armed attack"145 and until the Security Council has taken measures necessary to maintain international peace and security (Art. 51).4. Intervention in the form of collective action is permitted if done in pursuance of enforcement action under Chapter VII of the Charter or sanctioned by the General Assembly as a peacekeeping measure taken under the Uniting for Peace Resolution of November 3, 1950. Otherwise, Art. 2, para. 7 categorically prohibits intervention "in matters which are essentially within the domestic jurisdiction of any State". The Security Council authorised such intervention in Iraq,146 Bosnia and Herzogovina,147 and Somalia.148 The NATO bombing of Federal Republic of Yugoslavia (Operation Allied Force) and intervention in Kosovo in March 1999 was not approved by the Security Council and the action was considered as illegal.1495. Under customary international law intervention is justified as an act of reprisal or if it is authorised under a treaty with the State concerned. India's act of sending Indian peacekeeping forces (IPKF) to Sri Lanka under the Indo-Sri Lanka Agreement concluded on July 29, 1987, does not amount to intervention. The United States justified its intervention in the Vietnam War on the basis of SEATO and the invitation from South Vietnam. Similarly, if a State makes a specific request to send the forces such as the President of Maldives requested the Government of India to send armed forces in 1987 to quell the attempted coup against his regime will not amount to intervention.1506. Customary international law also allows intervention on the humanitarian grounds to prevent a State from committing atrocities against its own subjects or suppress their religious freedoms, even though the treatment of its own subjects is a matter pertained exclusively to_____________________144 The Caroline case, 28 BFSP, 1137-1138; 30 BFSP 195-196. See also Jennings, 32 AJIL 82 (1938). In this case, it was laid down that for exercising the right to intervene, a State must show "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation".145 In Nicaragua case, the ICJ observed that "an armed attack" must be understood "as including not merely action by regular armed forces across an international border, but also the sending by or on behalf of a State of armed bands, groups, irregular or mercenaries" whose acts are of such gravity as to amount to an actual, armed attack carried by regular forces, op. cit. 69, at pp. 103-104.146 S.C. Res. 688, April 3, 1991.147 S.C. Res. 770, August 13, 1992; S.C. Res. 776, September 14, 1992.148 S.C. Res. 794, December 3, 1992.149 See UN Doc. S/PV 3988, March 24, 1999. The bombing lasted from March 24. 1999 to June 10, 1999. The legality of the NATO aerial bombing was challenged by the

FRY against 10 NATO members before the ICJ. The ICJ refused to pass any provisional measures as requested by the FRY against the NATO nations.150 In Nicaragua case, op. cit. 69, the ICJ made a distinction between assistance to the government of a State and assistance to an opposition forcibly to overthrow the government. The former is allowed, the latter is forbidden.

Page 487 SETTLEMENT OF INTERNATIONAL DISPUTES its domestic jurisdiction. However, it is difficult to say whether intervention on the grounds of violation of human rights is allowed in the light of the United Nations obligations contained in Art. 2, paras. (3) and (4).151 The NATO's 78-day air campaign over Kosovo in 1999 as humanitarian intervention became very controversial as it was alleged to be in violation of Art. 2(4) of the Charter.152Under customary international law, intervention is subject to the condition that the action taken should be proportionate to the wrong alleged to be in need of remedying. But in the practice of the United Nations no exception has been created in favour of the human rights under Art. 2(7). Their violation will not justify the intervention per se. Nevertheless, the cases like the occupation of East Pakistan by Indian forces in December 1971, following an attack by Pakistan on Indian forces call for fresh re-evaluation of the United Nations law on intervention and the violation of human rights. The political developments in Pakistan after the December 1970 elections there, in which Awami League won the elections, led to a widespread repression by the Pakistan Government to crush the secessionist movement in East Pakistan, forcing millions of people to seek refuge in India. With the moral support of India, guerilla warfare was resorted to by refugees in East Pakistan against the Pakistan army. The State of Bangladesh Government-in-exile was established in India. Pakistan attacked India on December 3, 1971, on the western border, which led to a full-fledged war at the East and West fronts between the two countries. It finally led to the creation of a new State of Bangladesh, after the Pakistan army surrendered on December 16, 1971 in Dacca. Indian intervention in this conflict, which started as a civil war could be justifiable under Art. 1(3) of the Charter in promoting and encouraging respect for human rights and fundamental freedoms for all. It can also be justified in furtherance of the right of self-determination (to exist in a non-colonialist situation). India did not invoke the doctrine of humanitarian intervention to justify its action in Bangladesh war.In the practice of States, providing humanitarian assistance to the people or the forces of a State to prevent human sufferings is also not justified if done without the express consent of the State concerned. Further, such assistance should be for a specific purpose, otherwise it may amount to illegal intervention153 and contrary to the sovereignty of the State.Intervention in the civil war at the instance and the request of the government, i.e., "intervention by invitation" is not ipso facto an illegal act, though before intervening, a State must act carefully, particularly where the outcome is uncertain. But if there is no actual threat to the State's security or in the absence of any civil strife, such an act is of doubtful validity._____________________151 In the Nicaragua case, ibid., paras. 242-243, the ICJ viewed that humanitarian assistance, whether financial or otherwise (blankets, food, etc.), is perfectly lawful, provided that it is given equally to rebels and others in the community in need.152 Legality of Use of Force (Yugoslavia v. Belgium), (Provisional Measures), Order of 2 June 1999, (1999) ICJ Rep. p. 124. Most of the States arguing in the present case did not rely on humanitarian intervention as an autonomous justification for the use of force.

The plea of humanitarian intervention has not been supported by the majority of the countries.153 In June 1987, India sent relief supplies for the people of Jaffna under the Indian Red Cross flag, which was refused by Sri Lanka. India later sent them through transport planes escorted by mirage 2000 fighters which dropped the relief supplies. The legality of this assistance is doubtful under international law without the consent of Sri Lanka.

Page 488 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW Beirut landing of the United States forces in July 1958, at the invitation of the President of Lebanon to assist against an alleged threat of insurrection and to protect the lives and property of Americans or the British troops landing in Jordan on the similar basis, is not justifiable under the international law. In the Vietnam war between 1961-72, the United States pleaded in support of its act of intervention, the request being made by the South Vietnamese Government and its obligation arising out of the South-East Asia Collective Defence Treaty (SEATO) of September 1954, to which South Vietnam and the United States were parties, and also as a right of collective self-defence under Art. 51 of the Charter. The United States incursion of Cambodia (now Kampuchea) in 1970 to uproot North Vietnamese and Vietcong military sanctuaries are blatant examples of violation of the principle of non-intervention. But on the other hand, Tanzania's intervention to overthrow the Idi Amin's regime in Uganda (1979) and Vietnam's use of force against the murderous regime of Pol Pot in Cambodia (1978) have been justified on the ground of self-defence. Law is however unclear regarding the conflict if it amounts to a civil war rather than mere internal disturbance, as it is evident in Kosovo conflict where NATO forces intervened. It is not clear whether there is a duty not to intervene in the absence of United Nations or regional authorisation.

Page 489

CHAPTER 17War and the Use of Force by States

I. GENERALRight of States to have recourse to use of force or war as a last resort to protect their vital interests or settle disputes has increasingly become a limited option. But the decentralised character of the international society, the absence of centralised machinery to settle international disputes, and the politico-legal conditions allow States the right to use force. Even if used as a last resort, this necessitates the legal framework within which the war-time relations among States can be regulated. War was considered as a natural function of a State and a prerogative of its uncontrolled sovereignty up till the time of the League of Nations. Resorting to war was the unrestricted right of every State when it considered that its vital interests were threatened or as a means of settlement of disputes. W.E. Hall explains this customary position by stating that:International law has no alternative but to accept war, independently of the justice of its origin, as a relation which the parties to it may set up if they choose, and to busy itself only in regulating the effects of the relation.1This view, which was widely held during the nineteenth century abandoned the distinction between the just (bellum justum) and unjust war (bellum injustum) drawn by the classical jurists like Grotius. There was a general trend towards regarding any use of force (pacific blockade, reprisals, or any act of intervention) and war as identical.Under customary international law, war has been defined in the widest terms. According to Wheaton, "war is essentially a struggle between States, involving the application of force".2 In the opinion of Vattel, war is the condition in which nations prosecute their rights by force.3 War had two functions to play, which were contradictory to each other, (i) war was considered as a means of self-help, which was obviously a legal objective; and (ii) it was recognised as a legally admissible instrument for attacking and altering the existing rights of States independently of the objective merits of the attempted change, this was the political objective. As a means of changing the law, its legality under the existing system was questionable. War was not considered inconsistent with international law, but a condition regulated by it._____________________1. W.E. Hall, International Law, 8th ed. (Clarendon Press, Oxford), 1924, p. 82.2. H. Wheaton, Elements of International Law, 7th ed. (Stevens & Sons Ltd., London), 1944, p. 68.3. E. de Vattel, The Law of Nations (Text of 1758), in Classics of International Law (Oceana Publications, New York), 1964, p. 235.

Page 490 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW War as a conceptAccording to Oppenheim, war is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases. This definition, which is widely acclaimed, has four salient features.4 First, war is a contention, i.e., a violent struggle through the application of armed force, including other measures incidental to it, such as blockade, prohibition of contraband. Second, the contention must be between two or more States. This requirement distinguishes it from a civil war which exists (i) when two opposing parties within a State have recourse to arms for the purpose of obtaining power in the State, or (ii) when a large segment of the population of a State rises in arms against the legitimate government. But where the civil war turns into belligerency, it amounts to war, for example, the United States war of secession between Northern and Southern States during 1861-64 was a real war. Third, war is a contention between States through their armed forces. Hence, the civilians of belligerents, not associated with war, should not be attacked. Fourth, the purpose of war is to overpower the opponent. For this purpose, all kinds of force can be used by a State.This conceptualisation of war, which is entrenched in the traditional international law, is also upheld by others.5 Though this conceptualisation offers an objective criterion for war, it is not adequate in the context of developments that have taken place since the First World War. There are instances where a state of war has existed without all these elements being present. States may declare war on each other without the employment of armed forces, for example, in the Second World War, out of nearly 50 States which declared war against Axis Powers, only 20 actually used armed forces. Also, it does not take into account factors such as the growth of the number of combatants and non-combatants in war preparations, the development of aerial warfare and economic measures, which affect the distinction between combatants (i.e., armed forces) and non-combatants (i.e., civilians). The use of nuclear weapons has further narrowed down this distinction.This view also fails to explain the distinction between war and armed conflicts short of war. The Korean conflict of 1950-53; the fighting in Indo-China, 1947-48; conflict over Suez, involving Egypt, Israel, Britain and France, 1956; India-China border conflict, 1962; Congo conflict, 1960-63; Indo-Pakistan armed conflicts of September 1965 and December 1971; hostilities in Lebanon in 1982-83; or the Falklands crisis of April-June 1982, though involving the use of armed force between States, did not receive the general recognition of a state of war, although the States involved in conflict often called it so.On the other hand, it is contended that it is the intention of the parties, i.e., animus belligerendi that determines the nature of the contention as war or not. In favour of this intent theory or subjective approach and on the question of what amounts to war, McNair and Watts state, "War may begin, first, by a declaration of war.... In the second place, a state of war will arise upon the commission of an act of force, under the authority of a State, which is done animo belligerendi, or which being done sine animo belligerendi, the State against which_____________________

4 L. Oppenheim, International Law, Vol. II, 7th ed. (Longman, London), 1952, p. 202.5 See, for example, J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 527.

Page 491 WAR AND THE USE OF FORCE BY STATES

it is directed expressly or impliedly elects to regard as creating a state of war"....6 Hence, the existence of a state of war depends upon the determination of the parties to the conflict, and can arise where only one of the parties to the conflict asserts the existence of a state of war, even if the other denies it or keeps silence. State practice has, by and large, accepted that for war to exist one contender at least must assert so.7 If the contesting States fail to do so, third States are free to interpret at their discretion whether the contention between the States with armed forces has created a status of war or not and regulate their relations with the contesting States accordingly.The subjective approach was also favoured in the 1927 Report of the Secretary General of the League of Nations which laid down that from the legal point of view, the existence of a state of war between States depends upon their intention and not upon the nature of their acts. The term state of war denotes primarily the status of the parties rather than the actual application of violence by one against the other. Thus, this conception of war excludes armed hostilities from the scope of war and appears to be more realistic. Nevertheless, it is not always easy to gather the "intention" which may be deduced from the circumstances such as from the declaration of war either absolute or conditional (by way of ultimatum) if made by any of the belligerents.The question whether a state of war exists is of great significance under international law (for example, for the purposes of law of neutrality) and municipal law (for example, to determine the enemy character), but States generally refrain from regarding themselves as legally at war. In the Falklands crisis, both the United Kingdom and Argentina did not make any formal proclamation of war or any statement indicating that they regarded the conflict as war. But, on the other hand, in the Indo-Pakistan conflicts, both the parties considered themselves at war though none of them had declared war. The Vietnam hostilities, which started as a non-armed conflict but soon escalated into a major armed conflict from 1965, was described decisively as war by the Paris Agreement on Ending the War and Restoring Peace in Vietnam of January 27, 1973.Under the modern international law, no distinction exists between war and armed conflicts short of war. For example, the Charter of the United Nations, which prohibits the use of force, does not draw any such distinction. Similarly, the four Geneva Conventions of the Red Cross, 1949, and the two Protocols, additional to the Geneva Conventions, 1977, also do not maintain any distinction.

II. ATTEMPTS TO LIMIT THE RIGHT TO WAGE WARThe right to wage war or use force by States has been substantially curtailed under the existing legal order by different international legal instruments and the Charter of the United Nations. Attempts to limit the right of a State to resort to war started with the Hague Convention, 1907,_____________________6 Lord McNair and A.D. Watts, The Legal Effects of War, 4th ed. (Cambridge University Press, Cambridge), 1966, pp. 7-8.7 See Julius Stone, Legal Controls of International Conflict, revised with supp. (Stevens & Sons Ltd., London), 1959, pp. 304-305. See also, G. Schwarzenberger, Frontiers of International Law (Stevens & Sons Ltd., London), 1962, p. 248.

Page 492 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW which provided for the "Limitation of the Employment of Force for the Recovery of Contract Debts". The Bryan treaties concluded by the United States on bilateral basis before the First World War also made it mandatory for the parties to the treaty not to resort to war prior to the report of the Permanent Conciliation Commission.8

A. War and the Covenant of the League of NationsThe League of Nations made the first concerted effort to limit the right of States to resort to use of force and provided a forum to settle their disputes by peaceful means. The members undertook "to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League" (Art. 10). Towards this end, they agreed that if there arose between them a dispute likely to lead to a rupture, they would submit the matter either to arbitration or judicial settlement, or to enquiry by the Council. They agreed not to resort to war until three months after the award by the arbitrator, or the judicial decision, or the report by the Council (Art. 12). The three-month "cooling period" was provided to avoid "accidental" outbreak of hostilities, started out of misunderstanding and without proper discussion. If a State had resorted to war without following the above procedure, that would be deemed as "an act of war against all other Members of the League" (Art. 16). But these limitations imposed by the League Covenant on a State's right to wage war did not totally abolish the war. They were confined only to the members of the League. Furthermore, it is highly doubtful whether under the Covenant, measures short of war, such as armed intervention or reprisals, were permissible without first having recourse to pacific means of settlement of disputes.

B. The Pact of Paris and State Practice on WarThe Covenant of the League in no sense abolished war. But the General Treaty for the Renunciation of War, also known as Kellogg-Briand Pact or Pact of Paris, signed on August 27, 1928, between the United States and France,9 laid down a comprehensive prohibition on war and renounced it "as an instrument of national policy in their relations with one another" (Art. I). Some 63 States (i.e., virtually all of the international community at that time) were parties to the Treaty before the start of the Second World War. The Treaty was never terminated (presently there are 66 parties to it) and became the basis of the trial of war crimes after the Second World War. The signatories to the Treaty renounced war both as a legal instrument of self-help against an international wrong and as an act of national sovereignty for the purpose of changing existing rights.The Treaty, containing only two articles and the Preamble, made the war illegal, but it did not abolish war as an institution, which was still regulated in its major aspects by the accepted rules of warfare. It only outlawed the "aggressive war" among its signatories in their mutual relations. Theoretically, recourse to war was lawful under the Pact (1) as a permissible means of self-help or self-defence, (2) as a collective action for enforcing international obligation by_____________________8 On the procedure under the Bryan treaties, see supra Ch. 16, p. 452.9 94 LNTS 57


virtue of existing instruments, (3) between signatories and non-signatories, or (4) against a signatory who had violated the Pact.The Treaty also suffered from few shortcomings, viz., (i) uncertainty as to how far the prohibition against waging war included measures of force short of war;10 (ii) absence of any provision for the authoritative ascertainment of breaches of the Treaty, and any effective machinery to decide whether war has been resorted to or not; (iii) failure to provide for collective enforcement of its obligations; and (iv) absence of a duty under the Pact to submit disputes between its signatories to a binding settlement. Nevertheless, in spite of these weaknesses, the Treaty was an important instrument which considerably restricted the right of the signatories to resort to war.During the inter-war period, right to wage war was also limited by a few other instruments, such as the Draft Treaty of Mutual Assistance, 1923 (Art. I - declaring aggressive war as an international crime); Protocol for the Pacific Settlement of International Controversies, 1924 (Geneva Protocol, Art. II); and the Lacarno Treaty, 1925. The Anti-War Treaty of Non-aggression and Conciliation, 1933, signed at Rio de Janeiro stated that "the High Contracting Parties do solemnly declare that they condemn war of aggression in their mutual relations or with other States" (Art. I).

C. United Nations Charter and the Use of ForceThe Kellogg-Briand Pact outlawed the waging of "aggressive war" but when the United Nations Charter was adopted in 1945, it not only-outlawed "aggressive war" but also prohibited any use of force or threat thereof. It covered both war and non-war armed conflicts. Article 2(4) of the Charter provided that all members of the Organisation "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations". The purposes of the Organisation are set out in Art. 1, which inter alia are to maintain international peace and security and to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. Any use of force by a State directed against another State would be contrary to these purposes. The Charter avoids using the word "war". In the opinion of the International Court of Justice in the Nicaragua case, Art. 2(4) only reiterates the rule of customary international law against the use of force with an expanded ambit applying to all States.11The extent of the prohibition against the use of force in Art. 2(4) is not clear from the text. But the use of force is clearly allowed in pursuance of a decision taken under Art. 39 by the Security Council for collective measures. Article 39 of the Charter empowers the Security Council to determine "the existence of any threat to the peace, breach of the peace, or act of aggression" and "make recommendations, or decide what measures shall be taken ... to maintain_____________________10 In 1934, the International Law Association (ILA) stated that "[a] signatory State which threatens to resort to armed force for the solution of an international dispute or conflict is guilty of a violation of the Pact". Report of the 38th Conference of the ILA, Budapest (1934), p. 67.

11 See the Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v. United States of America) (Merits), 1986, ICJ Rep. 14, para. 188, p. 103.


or restore international peace and security". The measures that are contemplated, once such a determination has been made by the Security Council, are economic sanctions and severance of diplomatic relations (Art. 41) which may be carried out without the use of force. If these measures prove ineffective, the use of force, including blockade can be resorted, to maintain or restore international peace and security (Art. 42). Thus, the States can use force with the authority of the Security Council or under the Uniting for Peace Resolution of the General Assembly. Resolutions of the Security Council in this regard are binding on the members of the United Nations.Use of force is also allowed under Art. 51 of the Charter (right of self-defence) to a State as its "inherent right of individual or collective self-defence". But for an action under Art. 51, a decision under Art. 39 is necessary, i.e., that there is a threat of force, use of force, or act of aggression. "Force" is confined to actual use of armed force. "Economic measures", or threat thereof, or political coercion, though may often be threats to peace, have not been considered to be within the purview of Art. 2(4) of the Charter.12

1. Definition of aggressionFor the effective application of the collective security system against aggression as envisaged in Chapter VII (Arts. 39-51) of the Charter, and to make a determination of whether or not any threat to peace, breach of the peace, or act of aggression exists, an objective criterion, free of political factors, is required when armed hostilities constitute an "act of aggression". In 1952, the United Nations took up the task of defining "aggression" in the context of Art. 2(4) and a Special Committee on the Question of Defining Aggression was appointed in 1952, and again in 1954, by the General Assembly.13 A third committee was appointed under a General Assembly Resolution of December 18, 1967. The deliberations of the Committee ultimately led to the adoption of the definition of aggression by the General Assembly on December 14, 1974.14 In its resolution, the General Assembly drew the attention of the Security Council to the Definition which can be taken into account while determining the existence of an act of aggression for_____________________12 The proposal to include economic measures during the drafting of Art. 2(4) was rejected at the time of drafting of the Charter, see 6 UNCIO Docs 335. It was similarly not supported during the drafting of the 1970 Declaration on Friendly Relations and Cooperation among States. The western nations, which all along opposed their inclusion, after the 1973-74 oil embargo by the Arab countries, were prepared to admit that economic and political pressures threaten the territorial integrity and political independence of States, and they might even constitute illegal intervention. But in the Nicaragua case, the ICJ found that the US economic sanctions against Nicaragua, as complained by Nicaragua, were not in breach of the principle of non-intervention, see op. cit. 11, para. 245.13 In 1947, the ILC was requested to prepare a code based on the principles recognised by the Nuremberg Tribunal and in the various war crime trials based upon those principles. The ILC prepared a Draft Code of Offences against the Peace and Security of Mankind and submitted it to the General Assembly in 1951. But the Draft did

not define aggression and only referred to certain acts as aggression. The ILC's work was discontinued in 1954, in the absence of an authoritative definition of aggression, see GA Res. 897 (IX) of Dec. 4, 1954. The ILC again started work on the subject in 1987, which ultimately led to the adoption of the Rome Statute establishing the International Criminal Court on 17 July 1998 that came into force on 1 July 2002.14 GA Res. 3314 (XXIX) Dec. 14, 1974, 29th Sess. Supp. 31, p. 147; 69 AJIL 480 (1975).


the purposes of Art. 39. The Definition contains eight articles and leaves with the Security Council overriding power to characterize any action not corresponding to any enumerated acts in the definition. Article 1 provides:Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.The word "State" is used without prejudice to the questions of recognition or to whether it is a member of the United Nations, and it also includes a group of States, where appropriate (Explanatory note).The first use of armed force, in contravention of the Charter, by a State constitutes prima facie evidence of an act of aggression, even though the Security Council may decide otherwise, by taking into account other relevant circumstances, gravity of the conduct of that State or the consequences of such conduct (Art. 2). Article 3 enumerates the specific acts of aggression, which include: (a) invasion of, or attack on the territory of another State, military occupation resulting from such an invasion or attack, or any annexation by the use of force of the territory of another State; (b) bombardment or the use of weapons against the territory of another State; (c) blockade of ports or coasts; (d) an attack on the land, sea or air forces of another State; (e) the use of armed forces on the territory of another State with the agreement of the receiving State, but acting in contravention of the terms of that agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) the action of a State in allowing its territory to be used for an act of aggression by another State against a third State; (g) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries which carry out acts against another State of such gravity as amounting to acts of invasion, attack etc., or the substantial involvement therein of the sending State. The acts enumerated in Art. 3, however, are not exhaustive, and the Security Council may determine other acts constituting aggression under the provisions of the Charter (Art. 4).Article 5 provides that no consideration "of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression". A war of aggression is declared as a crime against international peace, with aggression giving rise to international responsibility. No territorial acquisition or special advantage resulting from aggression is to be recognised as lawful. This gives expression to the established principles of international law in this regard. But the use of force, as permitted under the United Nations Charter, is still admissible as Arts. 6 and 7 contain certain saving provisions. The Definition in no way prejudices the right to self-determination, freedom and independence of peoples forcibly deprived of that right, nor the right of such peoples to struggle and to seek and receive support to realise their goal in accordance with the General Assembly's Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States adopted in 1970 (Art. 7). Article 8 declares that the provisions of Arts. 1-7 are, in their interpretation and application, interrelated and each of them is to be construed in the context of other provisions.The definition clearly leaves out the economic aggression, which was already left out of the purview of Art. 2(4) in the Declaration on the Principles of Friendly Relations among States. The Definition, though falling short of legal perfection, is of immense importance

to the Security Council and the General Assembly, which have the responsibility of maintaining international


peace and security under the Charter. It has received a general acceptance of States and international organs, for which criteria and tests laid down in the Definition are more valuable than the definition in the strict sense. After its adoption, the first finding of aggression was made by the Security Council in 1976, when South Africa was condemned for its aggression against Angola.15 A similar finding was also made against Israel,16 and later against Iraq in 1990.

2. Right of self-defenceThe right of self-defence or self-help is well-recognised under international law and Art. 51 of the Charter talks about this "inherent right" of a State. This right becomes more important where law preserving agencies operating within the system are ineffective. Self-defence operates to protect essential rights from irreparable damage, and its function is to preserve or restore the legal status quo, and not to take the form of a remedial or repressive character in order to enforce legal rights (this latter aspect is in the nature of self-help).17Under customary international law, a State enjoys a wide and largely ill-defined right to employ force in self-defence. It is, however, subject to requirements, as laid down in the Caroline case,18 of "necessity and proportionality", and the need to act being instant, overwhelming, leaving no choice of means and no moment of deliberation, and not unreasonable and excessive. It is available to a State to protect certain "essential rights", viz., territorial integrity, political independence, freedom of navigation for its ships, the protection of its economic welfare, the protection of its nationals abroad, and as a measure of anticipatory self-defence, though the extent of the last two grounds have remained very controversial. In the matter of protection of its nationals abroad, it has always remained as a pretext of intervention on foreign territory.Customary international law, however, does not make a distinction between self-defence against the acts of war when the State is subjected to hostile acts against its territorial integrity, and other coercive acts short of war, like reprisals to retaliate against previous acts as a deterrent for the future.Article 51 of the Charter, though accepting this "inherent right" of self-defence, restricts the freedom of States to resort to self-defence. It reads as follows:Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council....Thus, the right of self-defence is available to a member as long as the Security Council does not act or determine the legality of the action. A member cannot unilaterally determine the legality_____________________15 SC Res. 387 (1976), SCOR, 20th yr., Resolutions and Decisions, p. 11.16 SC Res. 573, ibid., p. 870, n. 79.17 D.W. Bowett, Self-Defence in International Law (Manchester University Press), 1958, p. 11.

18 29 BFSP 1137-1138; 30 BFSP 195-196; Moore Digest, Vol. 7, p. 919 et seq. See in D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell, London), 2010, p.921; see also D.W. Greig, International Law, 2nd ed. (Butterworths, London), 1976, p. 883- et seq.


of its action. Once the Security Council is seized of the matter and takes action against the attacking State, the right of the State which is the victim of the attack comes to an end.The Article, however, is riddled with few ambiguities. It does not make a clear distinction between measures of self-defence and reprisals. Whereas use of force in pursuance of self-defence is permissible, but as a retributive step or retaliation, it is not permissible under the Charter. In 1964, a British aircraft attacked a small fort situated in Yemen's territory to retaliate against the Yemeni attack on the South Arabian Federation territory, for whose protection Britain was obliged under a treaty. The British action was termed as reprisal which is "incompatible with the purposes and principles of the United Nations" and the Security Council members deplored the British action.19 Similarly, the Israeli attack on Lebanon on December 28, 1968, was in retaliation of an attack which took place two days earlier on its El Al airliner at Athens airport by two members of the Popular Front for the Liberation of Palestine. In the Israeli attack, 13 aircrafts belonging to various Arab airlines were destroyed. The Israeli action was condemned by the Security Council, which was also found to be out of proportion to the incident prompting such action.20The action taken in self-defence remains subject to the Caroline's requirements of necessity and proportionality against an armed attack.21

(a) Anticipatory self-defenceArticle 51, which guarantees to States "inherent right" of self-defence "if an armed attack occurs",22 has been argued to put limit on this right. In its ordinary meaning, the phrase has been understood to preclude any action which is preventive in character, i.e., anticipatory self-defence.23 On the other hand, it has been argued that Art. 51 retains the "inherent right of self-defence" independently of other provisions of the Charter, and it does not restrict that right. A restriction on anticipatory self-defence may not bear any relation with the actual realities which may call for self-defence immediately if it is to be of any avail at all.24However, granting the right of anticipatory self-defence cannot rule out the misuse of the right and also it's resulting into a breach of international peace. But an objective criterion can be laid down for its use when there is an imminent threat of an armed attack. Such a_____________________19 See H. Lauterpacht (Ed.), British Practice in International Law (The British Institute of International and Comparative Law, London), 1971, pp. 109-113.20 SC Res. 262 (1968); see text in 63 AJIL 681 (1969).21 It was also confirmed in the Nicaragua case, op. cit. 11, para. 194, pp. 106-107. See also the Oil Platforms Case (Merits) [Iran v. United States'] (2003) ICJ Rep. p. <http://www.icj-cij.org> at 1 May 2004; 42 ILM 1334 (2003)22 According to ICJ, the term "armed attack" not merely includes action by regular armed forces across an international border, but also grave acts of armed force carried by armed bands, groups, irregulars or mercenaries, Nicaragua case, ibid., para. 195, pp. 103-104.

23 I. Brownlie, International Law and the Use of Force (Clarendon Press, Oxford), 1963, p. 275; Henkin also argues similarly, see L. Henkin, How Nations Behave, 2nd ed. (Pall Mall Press, London), 1979, pp. 141-142.24 See Bowett, op. cit. 17, pp. 188-192; Greig, op. cit. 18, pp. 892-893. In the Nicaragua case, the Court did not express opinion on the issue of anticipatory self-defence but accepted the right of individual and collective self-defence subject to customary international law, see op. cit. 11, para. 193.

Page 498 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW right was claimed by Israel against its Arab neighbours in June 1967, when the Arab States launched a fierce campaign against Israel, whose ships were denied the right of passage through the Suez Canal. Egypt had also demanded the withdrawal of the United Nations Emergency Force (UNEF) that was supervising the 1956 Egypt-Israel cease-fire. But such an action cannot be justified under the clear language of Art. 51, which grants the right of self-defence to a State only "if an armed attack occurs". This action of Israel could only be justified because the Security Council's resolutions for providing the free passage to Israel's ships had been consistently flouted. However, on the other hand, there was no justification in Israel's attack on an Iraqi nuclear reactor in 1981, which was nearing completion. Israel justified its conduct on the ground of anticipatory self-defence as the reactor could be used to manufacture weapons that would have been used against Israel. The Security Council condemned Israeli action.25 Apparently, this action of Israel did not show any imminent threat of an armed attack against Israel, nor was the matter brought to the Security Council in any form before Israel took this action. Before resorting to the right of anticipatory self-defence, the State should bring the matter to the knowledge of the Security Council. Similarly, in the matter of the United States air raids in Libya in April 1986, the US was criticized for its alleged 'pre-emptive action' against Libya.26

(b) Right of Self-defence against TerrorismSeptember 11, 2001 attacks on the World Trade Center and the Pentagon in the United States gave a new thrust to the right of self defence. The attacks by Al-Qaida activists against the United States were termed as an 'act of war' by the US administration. The American interpretation of the terrorist attacks as armed attacks was largely accepted by other states, and the North Atlantic Council also regarded the terrorist acts as an armed attack. The United States began Operation Enduring Freedom on October 7, 2001 with the aim of thwarting the use of Afghanistan as a terrorist base by Al-Qaida on the ground of right of self-defence. The United Kingdom joined the United States by invoking individual and collective self-defence. Other countries also supported this action. Prior to Operation Enduring Freedom, the Security Council, in its resolution 1368 adopted on September 12, 2001, recognised the right of individual and collective self-defense against terrorism. Subsequently, resolution 1373, adopted on September 28, 2001, also included express reference to individual and collective self-defence. These resolutions, while reaffirm the inherent right of self defence, for the first time recognised this right against terrorist acts.27The resolutions were adopted under Ch. VII of the Charter, and are therefore binding on all UN members States. These resolutions, however, have widened the concept of armed attack. Article 51 originally envisaged self-defence against an attack by a State. But now it is perceivably accepted that a terrorist attack on a State's territory by a non-State actor/terrorist_____________________25 SC Res. 487 (1981), SCOR. 36th yr., Resolutions and Decisions, p. 10. For the Security Council debate, see Doc.S/PV.2280, June 12, 1981, reprinted in 20 ILM 965 (1981).

26 The Security Council resolution condemning the US action was vetoed by US, United Kingdom and France, see S/PV2682, April 21, 1986.27 See Christine Gray, The Use of Force and the International Legal Order, in Malcolm D. Evans (Ed.) International law (Oxford University Press) 2nd ed. 2003, pp. 603-605.

Page 499 WAR AND THE USE OF FORCE BY STATES organisation is an armed attack which justifies a response against the State that harboured or sheltered the terrorists. However, in the November 26, 2011 attacks in Mumbai, India, by terrorists who invaded from Pakistani seawaters, were members of Lashkar-e-Taiba, the Pakistan-based militant organisation, considered a terrorist organisation by many States, including India, Pakistan, the United States, the United Kingdom, and the United Nations. Despite the clear evidence of their Pakistani links, the Indian government did not take recourse to the right of self-defence.The right of self-defence claimed by the United States in response to the terrorist attacks is also pre-emptive or anticipatory to deter further attacks.28 This stand of the United States has widened the scope of right of self-defence by injecting legality to anticipatory self-defence, which was all through rejected by States. But this approach taken by the United States is obviously in conflict with the Security Council resolutions 1368 and 1373 which require the Security Council backing for the right of self defence against terrorism. The Security Council Resolution 1566, adopted on October 8, 2004, provides an internationally recognised definition of terror for the first time and calls on countries to prosecute terrorists who aid and abet terrorists. It 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 organisation to do or to abstain from doing any act." It also created a working group that will expand the list of terrorist entities under sanction beyond the Taliban and Al-Qaida.

(c) Territorial Integrity and Political IndependenceThe United Nations Charter clearly respects the territorial integrity and political independence of a State, and any armed attack mounted against it, entitles a State to resort to its right of self-defence against an aggressor, and Art. 2(4) is no barrier. But it is doubtful whether this right of self-defence is available in cases falling short of an armed attack. However, a State's territorial integrity is not extended to allow it to prepare an invasion against another State. Territorial integrity does not denote the inviolability of a State's act amounting to breach of the peace or act of aggression. Similarly, in furtherance of its right of self-defence, if a State captures the territory of the aggressor, it is prevented to annex it. In the 1967 "June War", the occupied Arab land, i.e., Sinai from Egypt, West Bank of the River Jordon from Jordon, and Golan Heights from Syria, even though remaining in occupation of Israel, was never annexed by Israel. West Bank and Sinai areas have been returned by Israel after the agreements reached with Jordon in July 1994, and Egypt in 1979, after they recognised Israel as an independent State.29 In this matter, the Security Council had also adopted a resolution in 1967, which stated the inadmissibility of the acquisition of the territory by_____________________28 The United States, in September 2002 adopted its National Security Strategy in which it sets out its approach to the threat posed by 9/11 and stated that the US 'has long maintained the option of preemptive actions [or anticipatory self-defence] to counter a

sufficient threat to our national security.' See US National Security Strategy, (2002) 41 ILM 1478; D.J. Harris, op. cit. p. 945. 29 Presently efforts are underway to have a similar agreement between Syria and Israel.

Page 500 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW war, and for the respect of sovereignty, territorial integrity and political independence of every State in the area.30However, the State's right of self-defence to protect the nationals abroad is very controversial in the context of Art. 51 and most of the writers consider it as an unlawful intervention. It may become a ploy to commit the breaches of peace in furtherance of national rather than humanitarian interests.31 The right was not specifically endorsed in the Entebbe Incident of 1976, in which Israel used armed force to free the Jewish passengers of an Air France airliner, taken as hostages after the plane was hijacked to Entebbe airport in Uganda by two German and two Arab passport holders. The transport aircraft and soldiers flown by Israel to Entebbe were without the knowledge and consent of Uganda and use of force led to the death of the hijackers and extensive damage to the Ugandan aircrafts and airport. The Israeli action was clearly not justifiable under the international law. But the humanitarian intervention by the Security Council has now been well established.32It is also now well accepted that as a part of its right of self-defence, a State can resort to stop and search the foreign vessels on the high seas if reasonable grounds exist for suspecting that the ship is carrying arms to the belligerent for use in the conflict. In the Algerian emergency in 1956-62, France resorted to this measure.33 In the Cuban Quarantine, the United States was concerned about the shipment of equipment destined to Cuba that would threaten the United States security in future and there were no on going armed hostilities. The action of the United States is questionable in the context of the right of self-defence and it was also not endorsed by the Security Council.34 Similarly, the United States action in the Gulf of Tonkin, in which it bombed the North Vietnam base, was taken in the absence of any Security Council resolution. The United States justified its action in terms of freedom of the high seas and the right of self-defence, but the Soviet Union termed it as an act of aggression.

(d) Collective Self-defenceArticle 51 talks about the "individual or collective self-defence". In collective self-defence or security, the armed attack against a State will invite the help of another State which in fact is not the subject of any attack or there is no threat to its security. The other State may help the victim of the attack under a treaty or on invitation and cannot stay as neutral. They_____________________30 See Res. 242 of Nov. 22, 1967; see also Res. 338 (1978). In the case of Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (2004) ICJ Rep., p. 136 [Advisory Opinion of 9 July 2004], the Court found the action of Israel as illegal.31 I. Brownlie, Principles of Public international Law, 7th ed. (Oxford University Press, Oxford), 2008, p. 74.32 See the SC Res. 688, April 3, 1991, in the matter of protection of Kurds in Iraq; Res. 770, August 13, 1992 in the matter of humanitarian assistance in Bosnia and Herzegovina; and in the case of Somalia, Res. 794, December 3, 1992. Action by regional security organisation - NATO's military intervention and air-strikes in Kosovo

was not found to be justified on humanitarian grounds, see UN Doc. S/PV 3988, March 24, 1999. The FRY challenged the legality of these strikes before the ICJ, see Legality of Use of Force Case (Provisional Measures) (1999) ICJ Rep., p. 826.33 See 4 Whiteman, pp. 513-515.34 The US imposed quarantine of the Cuban coast on Oct. 23, 1962 after the Security Council failed to take any action. The action, however, was approved by the Council of the OAS.


together or individually take such action as they deem necessary to restore peace and security. Collective defence generally takes the form of regional organisations. Article 51 included this right in order to provide the legal basis to a number of regional security systems and certain international treaties. In Latin America, it started with the United States unilaterally declared Monroe doctrine (in 1823), which has now become the moral justification for the United States to assert its "sphere of interests" policy. The 1940 Declaration only carried forward this policy and any act of a non-American State directed against the political independence; sovereignty of an American State to be considered as an act of aggression against all the signatories. The North-Atlantic Treaty, the Warsaw Pact (now defunct), the South-East Asia Treaty, contain provision of collective self-defence, i.e., attack against one would be deemed to be an attack against all of them. In fact, in the Vietnam conflict (1961-72), one of the arguments given by the United States was the application of the South-East Asia Treaty signed on September 8, 1954.Under Art. 51, the right of self-defence is not impaired until the Security Council has taken the effective action. In practice, because of the "veto" power of the five permanent members, it is not always easy to make Art. 51 operative or to determine the legality of the act and the collective measures required in self-defence, with the result that the Security Council may never act and the right of self-defence may become of an unlimited duration; or it may not take "necessary measures" or measures taken may prove inadequate. To overcome the rigours of veto, the Uniting for Peace Resolution of November 3, 1950,35 empowers the General Assembly to act when the Security Council fails to do so and restore international peace and security through its peacekeeping operations. Nevertheless, this leaves the State's inherent right of self-defence largely unaffected under the present operation of Art. 51. Article 51 does not oblige a member-State to inform the Security Council about such an action, but the regional organisations shall keep the Security Council fully informed of their activities taken for the maintenance of international peace and security (Art. 54).The prohibition against the use of armed force is equally binding upon a non-member of the United Nations who is to act in accordance with the principles of the Charter, necessary to maintain international peace and security (Art. 2(6)). If its acts threaten international peace and security, the Security Council can decide to take necessary action under Arts. 39, 41 and 42. However, there is no explicit provision in the Charter about the right of self-defence of a non-member. But, Art. 51 talks about the "inherent right" of self-defence which is obviously available to a non-member till the Security Council acts. The only case involving a non-member and where the Security Council acted was that of South Korea after it was attacked by North Korea (also a non-member) in June 1950. The Security Council took enforcement action under Chapter VII of the Charter against North Korea.36_____________________35 General Assembly Resolution 377, A/RES/377 (V), November 3, 1950.36 About this case, see infra Ch. 19, pp. 516-511. In the case of border armed conflict between India and the People's Republic of China in Oct-Nov. 1962 (China was not represented on the UN at that time), while the Security Council was seized with the

issue of armed incursion and to decide about the appropriate measure, China declared a unilateral cease fire.

Page 502 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW III. STATE OF WARA. Commencement of WarA condition of war can arise either (i) through a declaration of war, or (ii) through a proclamation and manifesto by a State that it considers itself at war with another State, or (iii) through one State committing hostile acts of force against another State. Hence, a declaration of war is not a must to bring into existence state of war between the parties.If there is a declaration, then war, as between the belligerents is considered to have commenced from the date of its declaration, even though actual hostilities may have commenced much later. Presently, because of the prohibition against the use of force under the Charter, States refrain from proclaiming a declaration of war. In the past also, the practice varied from time to time.In the seventeenth century, Grotius opined its necessity but State practice was otherwise. Between 1700 and 1870, out of 117 cases, only in 10 cases was a declaration of war made. In the later part of the nineteenth century, some sort of preliminary warning by a declaration or ultimatum was required. But in spite of that Japan attacked Russia in Port Arthur in 1904, without prior declaration. Japan justified its action on the grounds of breaking off negotiations with Russia, and notification to Russia of its right to take independent action to protect her interests.In the Second Hague Conference of 1907, Convention III (on the Opening of Hostilities), Art. 1 provided for an explicit warning "which shall take the form either of a declaration of war, giving reasons, or of an ultimatum with a conditional declaration of war" prior to the commencement of the hostilities. An ultimatum could be simple or qualified. Further, neutral States should be notified immediately (even by telegraph) about the existence of war. These States were not to plead absence of such a notification where the knowledge of the state of war was otherwise established. These provisions were largely respected during the First World War, but during the inter-war period and the Second World War they were not followed. Japan's invasion of Manchuria in 1931-32 and the Italian aggression against Abyssinia in 1936-38 were done without any formal declaration.After the Second World War, the parties to the United Nations Charter have not followed this practice in majority of the armed conflicts. But this does not make the procedure of declaration of war altogether obsolete. The reasons for not making a formal declaration of war before the commencement of hostilities are manifold: First, the Charter prohibits the use of force, and the Pact of Paris, which has got the force of customary international law now, also renounces war as a national policy, therefore, declaration of war would amount to a violation of these express provisions. Second, States by non-declaration of war could evade the provisions of the collective action by the Security Council under Chapter VII. Third, by non-declaration of war, States might also evade other obligations of war, such as prize courts, war crime trials, etc.37_____________________37 According to Oppenheim, the deliberate forcible acts of a State directed against another State without formal declaration or qualified ultimatum tantamount to an "international delinquency" but it is nevertheless a war situation; see, op. cit. 4, p. 299.

Page 503 WAR AND THE USE OF FORCE BY STATES B. Effects of Outbreak of WarWith the outbreak of war, the peaceful relations between the belligerent States come to an end. The war, besides affecting the neutrals, effects the belligerents' mutual relations, such as diplomatic, treaty and commercial, in many ways, which are discussed below.

1. Diplomatic and consular relationsAt the outbreak of war, the first to be affected are the diplomatic and consular relations, which come to an end. Diplomats and consulars are recalled by the sending State, who are entitled to diplomatic and consular privileges for leaving the country. Article 44 of the 1961 Vienna Convention on Diplomatic Relations provides that the receiving State must grant necessary facilities, including the necessary means of transport, to enable such persons to leave at the earliest possible time. The archives, if left behind, are placed under seal. Article 31 of the 1963 Vienna Convention on Consular Relations also provides that the consular premises, furnishings and property are immune from requisition. They may be appropriated if prompt, adequate and effective compensation is paid.38

2. Treaties and warThe law relative to the effect of war on treaties is very much unsettled. The subject has been left out of the purview of the 1969 Vienna Convention on the Law of Treaties. State practice also varies considerably and jurists have taken the extreme views. The older authorities held the view that the outbreak of war ipso facto annuls all treaties between the belligerents. But this extreme position has been discounted by the modern authorities. The Institut de Droit Internationale (Institute of International Law) has also held similarly in its 1985 Resolution.39 Modern State practice also does not support this view.40On the outbreak of war, certain classes of treaties are annulled, others remain in force, and some are merely suspended, which become operative on the conclusion of peace accord at the end of war or armed hostilities containing express stipulation to this effect. Automatic abrogation, however, is not generally favoured by courts.41Whether a treaty will remain in operation after the war or armed hostilities have commenced, two tests are operative in this connection: (i) the subjective test, i.e., whether the treaty will remain in force or will be terminated, the intention of the parties is examined in this regard; (ii) the objective test, i.e., whether it is possible to execute the treaty in the context of war.42_____________________38 The 1961 and 1963 Conventions do not talk about the appropriation and the payment of compensation. This rule may be based upon the customary international law.39 See Art. 2 of the Resolution which contains 11 articles.40 In the North Atlantic Coast Fisheries Arbitration, 1910, the Tribunal observed that "international law in its modern development recognises that a great number of treaty obligations are not annulled, but at the most are suspended" during war, cited in Lord McNair, Law of Treaties (Clarendon Press, Oxford), 1961, p. 699.41 For American practice, see S.H. Mclntyre, Legal Effect of World War II on Treaties of the United States (M. Nijhoff, Dordrecht), 1958.42 Starke, op. cit. 5, pp. 544-545.

Page 504 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW On the basis of these tests and considering the State practice, the following conclusions have been drawn in this regard:a. Bilateral treaties of political nature between the belligerent States, such as treaties of mutual assistance or of alliance come to an end;b. Treaties creating permanent situations or executed treaties, and creating rights in rem, such as boundary treaties or treaties of cession are not affected by war and remain in force;c. Commercial and administrative treaties are not annulled but remain suspended, and get revived at the end of war with the signing of the peace accord;d. With regard to other treaties which require continuous good relations between theparties, in the absence of any clear expression of intention to the contrary, they get suspended, for example, extradition treaties;e. Multilateral treaties, in the nature of "law-making", are not annulled but may remain suspended between the belligerents, or may receive partial application during war. But a treaty establishing an international organisation remains unaffected;f. Certain multilateral treaties become operative between the belligerents during wartime, such as the Hague Conventions of 1899 and 1907, and other treaties relating to rules of warfare, for example, the four Geneva Conventions of 1949 and two Additional Protocols of 1977 to these Conventions remain binding;g. Certain treaties contain express provisions to this effect. For example, Art. 38 of the Aerial Navigation Convention, 1919 (the Paris Convention), allow full freedom ofaction to contracting parties, whether belligerents or neutrals, during war, whichmeant that the Convention may remain suspended during wartime. Article 89 of the Chicago Convention lays down similarly and the intention of the parties will determine the operation of the treaty.

3. Commercial relationsAt the outbreak of war, all trading and commercial intercourse between the belligerents comes to an end. This is done through a special legislation on the subject by the belligerent State. Contracts between citizens of the belligerents are similarly regulated by the municipal law. However, the State practice reveals that the executory contracts (i.e., those which have not been completely performed before the war) become void during war. Perhaps it is for this reason that trading or intercourse with the enemy is against public policy because such a relationship may increase the resources of the enemy. But, on the other hand, the executed contracts (those which were executed before the war but some obligations remain to be performed by either side) or liquidated debts remain unaffected, but their enforceability may be suspended until the war comes to an end.


4. Enemy propertyIt can be of two types, i.e., property of public nature, and of private nature (held by private citizens of the enemy State).

(a) Enemy Public PropertyEnemy public property belongs to the enemy State itself. Property situated in the territory of the State can be confiscated. The enemy movable property if located in the enemy occupied territory can be confiscated, but such a property may be appropriated if it is useful for local military purposes. Immovable enemy property may be used but cannot be acquired or seized. Sale of such a property is totally prohibited. In some cases, it can be destroyed if it is necessary for military operations, such as barracks, bridges, roads or forts. Warships and other public and private vessels can also be confiscated except those engaged in discovery, exploration, scientific activity, religious activity or are on hospital duty.

(b) Enemy Private PropertyProperty situated in the territory of a belligerent State can be seized temporarily but cannot be confiscated. Its fate can be decided in accordance with the provisions of the peace treaty concluded after the war. Private property in occupied territory normally should not be interfered unless it is militarily useful. Private property cannot be confiscated for private use of the occupying forces. It can be taken over if it is necessary for the local needs of the army for occupation. But its plunder or seizure is contrary to international law. However, the private enemy ships and enemy cargoes at sea can be confiscated. Neutral ships carrying enemy goods are exempted unless these goods are contrabands or useful in warlike purposes.

5. Enemy characterAt the outset of war, it becomes necessary for the parties to take necessary measures against enemy persons and property to realise the object of the war by prohibiting the trading with the enemy persons (natural and legal) and seize their property. For that matter, the enemy character needs to be determined, which is not always easy. Once it is so determined, the belligerent takes appropriate action under its laws. No conventional rules exist on this matter, but on the basis of State practice certain rules have come to exist to determine the enemy character of the individuals, corporations and goods.

(a) Enemy Character of the IndividualsThe general rule is that subjects of the belligerents bear the enemy character, whereas the subjects of a neutral State do not. However, there is no uniform State practice to determine the nationality of the subjects of the belligerent. Under the Anglo-American practice, the residence or domicile as against the Continental rule of nationality are the determining criteria. But because of the exceptions to these two rules, in practice, hardly any difference exists between the Anglo-American and Continental practice. On the basis of this practice, combatants and residents of an enemy


State, whether its own subjects or neutral residents who have elected to live there, are treated as enemy persons. Even residents of militarily occupied area get the same character so long as military occupation continues. For this purpose, residence must be more than temporary.43 Bui the subjects of the enemy State residing in a neutral State are not deemed to bear the enemy character. On the other hand, if the subjects of a neutral State participate in any activity against the belligerent State, like carrying on business, carrying goods, enrolling their names in the army, or by acting against the interest of the belligerent State, then they may be deemed to have the enemy character.

(b) Enemy Character of the CorporationsEnemy character of the corporations is determined on the basis of: (i) residence or domicile, or (ii) place of registration or incorporation. Under the Anglo-American practice, it is the place of incorporation that determines the nationality of the corporation, i.e., if a corporation is incorporated in an enemy State, it bears the enemy character. In the Continental practice, the principal place of business or residence determines the nationality and if it is in the enemy State, the corporation has the enemy character. However, it is doubtful whether a corporation carrying on business in an enemy country but not incorporated there also possesses enemy character, and, further, whether a corporation neither incorporated nor carrying on business in an enemy country could under any circumstances acquire that character. The law has settled that the enemy character is attached to companies wherever incorporated, if carrying on business in an enemy country. On the latter question, Britain adopted a new approach during the First World War. Instead of the incorporation test, the test of enemy association or enemy control was followed.The House of Lords in the Daimler Co. Ltd. v. Continental Tyre and Rubber Co. (GB) Ltd.44 laid down that if the agents or persons in de facto control of the affairs of the company are resident in an enemy country, or wherever resident, are adhering to the enemy or taking instructions from or acting under the control of the enemy, it has the enemy character. The House of Lords observed "... a company may, however, assume an enemy character ... if its agents or persons in de facto control of its affairs whether authorised or not, are resident in an enemy territory". In this case, Continental Tyre and Rubber Co. was incorporated in England with its registered office in London. But all of its directors were Germans who resided in Germany, and most of the shareholders also resided in Germany. Daimler Co. Ltd. registered in England, owed some money to Continental Tyre and Rubber Co. which filed a case for the recovery of that money. Daimler Co. opposed it on the ground that Continental Tyre and Rubber Co. belonged to the enemy State and therefore, it was not liable to pay the said money.Under the application of the Daimler principle, the Company though acquires the enemy character, but for all other purposes it remains a British company, which is governed by British law, including the trading with the enemy.45 Apart from the Daimler ruling, it is nevertheless, a well-established law that a corporation incorporated in an enemy country has enemy character.46_____________________43 Julius Stone, op. cit. 7, p. 417.

44 (1916) 2 AC 307.45 The principle of the Daimler case was subsequently approved and applied by the House of Lords in the Sovfracht V/O v. Van Udens Scheepvaart (1943) AC 203, and The Glenroy (1945) AC 124.46 See Janson v. Driefontein Consolidated Mines (1902) AC 484, at p. 497.

Page 507 WAR AND THE USE OF FORCE BY STATES (c) Enemy Character of ShipsPrima facie, enemy character of a ship is determined by its flag. A ship sailing under the flag of the enemy will bear enemy character. But, if the enemy-owned vessels sail under the neutral flag, they will lose their neutral character and will be treated as enemy vessels if they take part in the hostilities under the orders of an enemy agent, or are employed by the enemy to transport troops, transmit intelligence, etc., or they resist the valid right of visit, search and seizure. In case such a ship is seized, the goods found on board are presumed to be of the enemy unless and until proved otherwise.The neutral merchantmen acquire enemy character if they are engaged in trade with the enemy in time of war.

(d) Enemy Character of GoodsEnemy character of goods is determined by the enemy character of their owners. As there are no rules on the enemy character of individuals, there are no clear rules on the enemy character of goods. Nevertheless, it is well-established that if the owner of the goods resides in the enemy State, goods will bear the enemy character, and if the owner of the goods is of neutral State but resides in the enemy State, the goods shall also bear the enemy character. On the other hand, if the owner of the goods is residing in a neutral State, the goods will not bear the enemy character. But within this broad framework, States have modified and amended these rules in accordance with their convenience in order to prohibit trading with the enemy.

IV. LAWS OF WAR (INTERNATIONAL HUMANITARIAN LAW)War is aimed at overpowering the enemy, using force and other means available at the disposal of the State. Nevertheless, the State's right is limited in this regard and it is required to follow certain rules or "laws of war" in order to limit the sufferings and pain of the people involved in war and to limit the area of war or armed hostilities.47 These laws are now more commonly referred to as "international humanitarian law"48 and are applicable to all types of armed conflicts. They are binding on the States as well as on individuals, including members of the armed forces, heads of States, ministers and officials. They are equally binding on the United Nations forces if engaged in military operations, because the United Nations is also the subject of international_____________________47 The ILC in 1949 considered the suitability of the "laws of war" as a topic of codification. Due to lack of consensus, it was not taken up. The preponderant opinion among the Commission's members was that once the United Nations has outlawed the war, choosing the topic of laws of war to lay down the rules for the use of armed forces would show the lack of confidence in the UN in maintaining international peace and security. Instead, it favoured the discarding of the term "laws of war". 48 The term found its expression in the "The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts" held at Geneva in 1974-77 to update the Geneva Conventions, 1949. The Conference adopted Protocols I and II. The term "humanitarian law" applies to those rules of international law which aim to protect persons suffering from the evils of armed

conflicts as well as objects not directly serving military purposes, see Stanislaw E. Nahlik, A brief outline of international humanitarian law, International Review of the Red Cross, p. 7 (July-August 1984).


law.49 The law, among others, prohibits the killing of civilians, the ill-treatment of prisoners of war, use of weapons of mass destruction or poisonous gases.The laws of war or jus in bellum are the outcome of the long-standing practices of the belligerents culminating into customary rules and later to be embodied in numerous conventions. They have become part and parcel of the customary international law. Among the most important of these instruments adopted prior to the First World War are: the Declaration of Paris, 1856; the Geneva Convention for the Amelioration of the Condition of Wounded in Armies in the Field, 1864; the Declaration of St. Petersburg, 1868; the Hague Conventions of 1899 and 1907. The inter-war period saw the conclusion of the Geneva Gas and Bacteriological Warfare Protocol, 1925, now supplemented by the 1972 Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and their Destruction; the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction, January 13, 1993 (entered into force on April 29, 1997); the 1929 Geneva Conventions on: (i) the treatment of the sick and wounded in armies in the field, and (ii) the treatment of prisoners of war; the Submarine Rules Protocol, 1937. The experience of the Second World War later resulted into four Geneva Red Cross Conventions, 1949, namely, (1) Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Convention I); (2) Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Convention II); (3) Convention relative to the Treatment of Prisoners of War (Convention III); and (4) Convention relative to the Protection of Civilian Persons in Time of War (Convention IV). In 1977, two additional Protocols to the Geneva Conventions, 1949, were adopted: (a) Protocol Relating to the Protection of Victims of International Armed Conflicts (Protocol I), and (b) Protocol Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). Broadly speaking, the laws of war fall into two categories: those relating to the actual conduct of hostilities and those which provide a minimum protection to the individual (humanitarian law). The former are to be found principally in the two Hague Conventions, while the four Geneva Conventions, along with the two Protocols mainly form the basis of international-humanitarian law at present.Although violations of these rules are quite frequent, they do not affect their binding character. On the contrary, they become very relevant to determine the deviant behaviour leading to war crimes. During war and armed conflict, these laws put restraint on the acts and emotions of the combatants. These laws can be principally classified into the laws of land warfare, sea warfare and air warfare. Unless a treaty or customary rule of international law otherwise provides, military necessity does not justify the breach of these rules.A. Laws of Land WarfareThe Hague Convention IV of 1907, respecting the Laws and Customs of War on Land and the Regulations annexed thereto, set out the rules as to land warfare.50 Since the purpose of war_____________________

49 Cf. Reparations for Injuries Suffered in the Service of the United Nations case (1949) ICJ Rep., p. 174. 50 The Geneva Convention of 1864 (Geneva Convention No. I) also laid down certain rules regarding the conditions of wounded soldiers in land armies, but they were recognised only after being incorporated in the Hague Convention.

Page 509 WAR AND THE USE OF FORCE BY STATES is to overpower the enemy, violence consisting of different sorts of force applied against enemy persons is the chief and decisive means of warfare. The use of violence is aimed at disabling the combatants so that they can no more take part in the fighting. This object can be achieved through killing, wounding or making them prisoners. As a rule, non-combatants should not be subjected to violence, and only minor means of force may be applied against them. This requires a clear distinction between combatants and non-combatants for the purposes of war. The "Hague Rules" or "Hague Regulations", as they are commonly known, define the status of belligerents, i.e., those who will be treated as lawful combatants and subject to the rules laid down in this regard.

1. Combatants and non-combatantsMembers enrolled in the regular forces in the army, navy and air forces having specific regiment number etc. are called combatants. In addition to them, members belonging to irregular forces, including militia, volunteer corps, guerilla troops, and organised resistance movements are also considered combatants, provided they fulfil the following conditions:a. they are commanded by a person responsible for his subordinates;b. they have a fixed distinctive sign or emblem recognisable at a distance;c. they carry arms openly; andd. they conduct their operations in accordance with the laws and customs of war.51The Hague Convention IV of 1907 tried to draw a distinction between combatants and non-combatants, i.e., civilians and armed forces.Under international law, combatants are divided into two classes: lawful and unlawful. The lawful combatants are subject to the laws, duties and rights of war. They may be killed, wounded, captured and made prisoners of war. They are generally in the regular army. But they may only be killed or wounded if they are able and willing to fight or resist capture. But certain categories of lawful combatants, such as spies, suffer from special risks and disabilities, and can be subjected to repressive measures if captured. Though spying is permitted under international law, spies are not entitled to prisoners of war status.52 In the case of levees en masse, i.e., spontaneous or organised uprising of civilian population against the enemy, or those called to arms by the authorities, must also fulfil the four above mentioned conditions to be treated as lawful combatants. Hostile acts of private individuals, not organised as compact movements operating under a responsible authority, are not acts of legitimate_____________________51 See Art. 1, the Hague Regulations relative to the Laws and Customs of War on Land, 1907; Art. 4, the Geneva Convention Relative to the Treatment of Prisoners of War, 1949 (Convention III). 52 See Art. 46 of the 1977 Protocol I additional to the Geneva Conventions, 1949, on International Armed Conflicts. Under the Hague Rules, before awarding punishment to spies, they should first be tried and be given sufficient opportunity to disprove the charges against them. See Art. 29 of the Regulations annexed to the 1907 Hague Convention IV; see also Art. 5 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Convention IV). A member of the armed forces, if in

uniform and found gathering information, would not be Considered as engaging in espionage and would be entitled to the POW status.

Page 510 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW warfare and the offender may be punished according to international law. Those civilians taking up arms spontaneously on the approach of the enemy must fulfil two conditions to be treated as lawful combatants, viz., to carry arms openly, and respecting the laws and customs of war. Article 4 of the III Geneva Convention (on the Treatment of Prisoners of War) includes the troops of organised resistance movements as lawful combatants if they also fulfil the above-mentioned four conditions, even if they operate in the occupied territory. Such a privilege in occupied territory, however, is not given to levees en masse. Unlawful combatants are liable to capture, detention, and trial by military tribunals. They are persons owing allegiance to one belligerent State, but are enlisted as members of the armed forces of the opposing belligerent. If captured by the former belligerent State, they cannot claim or be accorded privileges of lawful combatants. Mercenaries have no right to be treated as combatants or prisoners of war if captured.53As regards non-combatants, the traditional view is that as war is fought through the armed forces of the belligerents, private subjects of belligerents, not involved in armed forces and who do not take part in hostilities, in principle, should not be subjected to any wilful attack. But certain non-combatants, such as merchant sea men, can be captured and made prisoners-of-war. Only enemies as soldiers, not as citizens, should be subjected to belligerency. The Assembly of the League of Nations adopted a resolution in 1938, which declared intentional bombing of civilians as illegal. However, during the Second World War, this distinction was not observed and civilians were made the objects of war with an aim of weakening the military forces of the enemy. The atom-bomb attacks on Nagasaki and Hiroshima caused extensive damage and civilian deaths. The 1949 Geneva Convention IV (Relative to the Protection of Civilian Persons in Time of War) also prohibits attacking certain sections of civilian population.54 In modern "total war", such as the Second World War, where not only armed forces but civilians are also involved, the civilian morale has become a true military objective. The civilian work forces or quasi combatants, who are employed in the manufacture of ammunition or other hardware required by the army to fight the war, are considered equally important and as proper targets as armed forces.A number of developments since the First World War have affected the distinction between the armed forces and civilians. The growth of the number of combatants, number of non-combatants indulged in war preparations, the development of aerial warfare in a big way, economic measures taken during wartime (such as contrabands and blockade), and the advent of totalitarian States, have done away with this distinction. Due to nuclear warfare and aerial bombing, the radius of attack has become very wide, covering the civilians. Because of the increasing complexity of armed conflicts as well as phenomena such as terrorism and asymmetric warfare, little has remained of the traditional distinction between the two. Nevertheless, the fundamental rule of international law still remains that the non-combatants must not be the object of any direct attack by the armed forces, or attack in a wanton or unnecessary manner, or for the purpose unrelated to military operations._____________________53 See Art. 47 of the Protocol I, 1977.

54 See Art. 14 et seq., protecting hospitals, safety and neutralised zones, insulating sick, aged, children, expectant mothers and mothers of young children, and civilians doing non-military duties.

Page 511 WAR AND THE USE OF FORCE BY STATES 2. Guerilla warfareGuerilla warfare is an armed struggle waged by organised groups (levees en masse, volunteer corps and resistance movements) which do not form a part of the regular armed forces of a party to the conflict. They fight mainly in the rear of the enemy in a legitimate (just) war for the defence of the country's freedom and independence as well as for national liberation and social emancipation. For this, they rely upon the mass sympathy and support of the people.55 Their operations are generally clandestine and sporadic. Articles 1 and 2 of the Annex to the 1907 Hague Convention IV prohibit guerrilla warfare, stating that belligerents must be "commanded by a person responsible for his subordinates ... have a fixed distinctive emblem recognisable at a distance... carry arms openly ... and conduct their operations in accordance with the laws and customs of war". If captured, they could be treated as war criminals in occupied area. The Convention permits such activities only outside such an area. The members of the guerilla troops or resistance movements are entitled to the treatment of prisoners of war, if they complied with the above-mentioned four conditions. The position under the Geneva Conventions is also similiar.56 However, since guerillas thrive on surprise attacks on the enemy, because "open guerilla is a dead guerilla", and generally are not in a position to fulfil these conditions, they are mainly left to the mercy of the enemy.The Protocol I of 1977 has accorded them a more humane treatment. They are the lawful combatants, though they do not find specific mention in the definition of "armed forces". Now a guerilla is entitled to prisoner-of-war status if he carries arms openly "(a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate" in order to distinguish himself from the civilian population. Nevertheless, he should be under the command of a person responsible for his subordinates, and subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict (Art. 43). Even if he does not comply with the rules of international law, the combatant will not be deprived of "his right, to be a combatant or a prisoner of war". Further, failure to comply with the requirement of carrying arms openly by a guerilla while he is engaged in military operations, would still entitle him the protection equivalent in all respects to those accorded to prisoners-of-war (Art. 44). Article 45 provides that one who takes part in hostilities and falls into the power of an adverse party shall be presumed to be a prisoner of war, or if he claims such status, or if he appears to be entitled to such status, or if the party on which he depends claims such status on his behalf. But if he is not entitled to prisoner-of-war status in accordance with these conditions, he will still be entitled to humane treatment as provided under Art. 75 of the Protocol. Thus, the Protocol has brought them at par with the regular forces. But the Protocol imposes mutual duties on both the parties to an armed conflict. However, because of their reliance upon mobility for military effectiveness, guerillas in most of the cases are not in a position to meet these requirements, like providing quarters and food to the prisoners-of-war or those who surrender, and they are likely to ignore these._____________________

55 See J.N. Saxena, Guerilla warfare and international humanitarian law, 25 IJIL 621 at p. 622 and footnote et seq. (1985).56 See the Geneva Conventions 1 and II, Art. 13; the Geneva Convention III, Art. 4.

Page 512 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 3. Treatment of prisoners of warPrisoners-of-war (POWs) is a status accorded to persons captured by the belligerent during a war or an armed conflict. The Hague Rules of 1907 contained provisions about the treatment of POWs (Arts. 4-20). A separate Geneva Convention on the treatment of prisoners of war was concluded in 1929 under the auspices of the International Committee of the Red Cross. After the Second World War, this Convention was revised and adopted along with the other three Geneva Conventions in 1949. The 1949 Convention (Geneva Convention III) makes it clear that it applies not only to all cases of declared war but any other armed conflict which may arise between the parties even if the state of war is not recognised by "one of them" (Art. 2). It also applies to cases of partial or total occupation of territory even if such occupation meets with no armed resistance. It is applicable in the case of armed conflict not of an international character occurring in the territory of one of the Contracting Parties. In such a situation, certain minimum standards as contained in the common Art. 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II would be applied and properly observed.The persons who are entitled to POWs status are enumerated in Art. 4 of the Geneva Convention III, the scope of which has been widened by Art. 43 'of the Protocol I of 1977. They include all the lawful combatants. If captured, while in action and performing their normal military duties, they get the POW status. Non-combatants, such as war correspondents, supply contractors, labour, cooks, barbers, engineers if accompanying the arms unit under authority, and members of the crews, including masters, pilots, apprentices, and inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms without having time to form a regular armed units (levees en masse), provided they carry arms openly and respect laws and customs of war, if captured are treated as POWs.The Convention enjoins the members, who have the ultimate responsibility in this regard, to accord humane treatment to POWs (Art. 12). Strict duties are imposed under the Convention on the Parties. POWs should not be exposed to unnecessary brutality. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of the POWs is prohibited. They shall not be subjected to physical mutilation or to medical or scientific experiments and measures of reprisals against them (Art. 13). Their person and honour must be respected in all circumstances. Women should be treated with due regard to their sex and must in no way be treated less favourably than men (Art. 14). The Detaining Power is bound to provide free of charge the maintenance (including food, clothing and other facilities) and the medical attention to the POWs (Art. 15). Except for exceptions based on rank, sex, state of health and professional qualifications, all prisoners are to be treated alike (Art. 16). They should also be provided with the quarter facilities (Art. 25). The captor State has the right to seek information of any kind. But in deriving information, they shall not be subjected to threats, insults or exposed to unpleasant or disadvantageous treatment of any kind (Art. 17). They should not be subjected to any mental or physical torture (Protocol I, Art. 75).The prisoners are required to maintain discipline in the camp and the Detaining Power can take any disciplinary measure to enforce its laws, regulations or orders in this regard. The use of weapons against POWs, especially those who are attempting to escape, is

permitted as an extreme measure, but such a use must be preceded by warnings (Art. 42). No prisoner is to be assigned to work which is humiliating, or which is unhealthy or of dangerous nature.

Page 513 WAR AND THE USE OF FORCE BY STATES They should be released and repatriated without delay after the cessation of active hostilities (Art. 118). They may also be released partially or wholly on parole, or even prior to the cessation of hostilities, particularly where this may contribute to the improvement of their health (Art. 21).Once the hostilities are over, the release and repatriation of the POWs is generally done after the conclusion of an agreement between the belligerents. For example, after the 1965 Indo-Pakistan armed hostilities, the Tashkent Declaration of January 10, 1966, in Art. VII provided for repatriation of the POWs. Again, in the 1971 hostilities between these two countries, which resulted into the emergence of a new State of Bangladesh, India was criticised for detaining, after the cessation of hostilities, about 92,000 Pakistani soldiers as POWs in violation of Art. 118.57 India did not hand them over to Pakistan immediately as it feared the renewal of hostilities and it was also contemplating of holding the war crimes trials. But following an agreement between the two countries in August 1973 at Simla, the prisoners were repatriated. On the other hand, in May 1973, Pakistan filed a case before the International Court of Justice alleging that India was intending to handover 195 POWs to the Government of Bangladesh, which proposed to try them for war crimes, acts of genocide and crimes against humanity. India denied Court's jurisdiction. However, in view of the Simla Agreement and subsequent negotiations between the two countries, these prisoners were also repatriated to Pakistan. As a result, Pakistan did not pursue the case, which was removed from the Court's list on Pakistan's request.58But often peculiar problems may arise in relation to the repatriation of the POWs, as had happened after the Korean conflict in 1951-53, when the United Nations command ascertained that many prisoners were unwilling to be repatriated due to the fear of persecution in North Korea. Though there were strong views for the strict compliance with the provisions of the Geneva Convention III, but the Korean Armistic Agreement of July 27, 1953, gave due emphasis to grounds of humanity.59 In the case of the Vietnam War, the POWs were repatriated after the conclusion of the Paris Agreement of January 27, 1973 (the Four-Party Agreement on Ending the War and Restoring the Peace in Vietnam). But in the case of the Falkland War of April-June 1982, Argentinean POWs were speedily repatriated before and after the cease fire on June 13-14, 1982. Similarly, Iraqi prisoners were repatriated after the Security Council Resolution 687 of April 3, 1991, establishing a formal ceasefire in the Gulf war.Along with the POWs Convention (Geneva Convention III), the other significant Geneva Conventions are: the Convention for the Amelioration of the Conditions of the Wounded and Sick Members of the Armed Forces in the Field (Geneva Convention I);60 the Convention on Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea (Geneva Convention II). The Geneva Convention I has laid down the detail provisions for the protection and care of sick and wounded persons of the armed forces in the field without making any discrimination. Any attempt on their lives, or violence to their persons is strictly prohibited, in particular killing of wounded and sick persons of the armed forces during war is forbidden (Arts. 12 and 50)._____________________57 See Howard S. Levie, 67 AJIL 512 (1973).

58 Pakistani Prisoners of War case, (1973) ICJ Rep., p. 347.59 See Starke, op. cit. 5, at p. 559.60 The Convention replaced the earlier Geneva Conventions of 1864 and 1929 on the same subject.

Page 514 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW It also enjoins the Members to respect the persons like doctors and other personnel, and medical units and establishments engaged in caring for these persons (Arts. 19-21, 24-26). Means of transport engaged for the transportation of such members of the armed forces should also be protected (Arts. 19, 35-36). Protocol I of 1977, in Art. 10 provides that the wounded, sick and shipwrecked persons shall be respected and protected. They shall be treated humanely and shall receive to the fullest extent practicable, the medical care and attention required by them. The Second Geneva Convention is significant for hospital ships which should be spared from any attack (Chapter III, Arts. 22-35). But ships or aircrafts engaged in the task of protecting the wounded and sick of the armed forces must bear the Red Cross emblem (Art. 41).

4. Methods and means of land warfareSection II of the Annex to the Hague Convention IV of 1907 prescribes certain methods and means to be applied in hostilities to lessen the sufferings of warfare. It prohibits the use of poisonous gases, weapons and projectiles which cause unnecessary sufferings and pain.61 The poisoning of water or food material to be used by the enemy is also prohibited, but dodging or ruses of war62 is permissible (Art. 24, Hague Convention). Ruses of war, such as the use of camouflage, decoys, and mock operations are also permitted under Art. 37(2) of the 1977 Protocol I. Undefended towns or open cities cannot be attacked or destroyed (Art. 25, Hague Convention).63In 1925, the Geneva Protocol prohibited gas and bacteriological warfare. It is, however, doubtful whether the Protocol applies to non-lethal gases or other chemical agents, which were applied in the Vietnam War. On December 16, 1969, the General Assembly adopted a resolution which declared as contrary to international law, the use in international armed conflict of (a) chemical agents of warfare with direct toxic effects on man, animals or plants, and (b) biological agents of warfare, intended to cause death or disease in man, animals or plants, and dependent for their effects on their ability to multiply.64 This resolution later led to the adoption of the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and their Destruction. The Convention supplemented the 1925 Geneva Protocol. Each State party to the Convention undertakes to destroy, or to divert to peaceful purposes all agents, toxins, weapons, equipment and means of delivery specified, which are in its possession or under its jurisdiction or control. The_____________________61 The generally accepted test of "unnecessary suffering" is whether the relevant suffering is needless, superfluous, or disproportionate to the military advantage or effectiveness, reasonably to be expected from the use of a particular weapon concerned, see 69 AJIL 399-400 (1975); Canadian YbIL, pp. 233-234 (1981).62 "Ruses of war" or stratagem means dodging or deceiving the enemy for the attainment of its military objectives, a belligerent State can misguide or mislead the enemy.63 An "open city" is completely undefended from all sides so that the opposing forces could enter and take possession of it without fighting or incurring liabilities. This is also done to save the city from possible destruction by attack or bombardment. But a

government declaration is necessary to be treated as "open city". During the Second World War, many European nations declared "open cities", such as Paris, Rome, Belgrade and Brussels. See Whiteman, Digest of International Law, Vol. 10, pp. 415, 433-435 (1968).64 GA Res. 2603 (XXIV), 16 December 1969.

Page 515 WAR AND THE USE OF FORCE BY STATES Convention was supplemented by the Final Declaration adopted in 1986, to strengthen the verification methods. The Convention has been further expanded by the new Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction, January 13, 1993.65 On 18 September 1997, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Ottawa Treaty) was adopted.66 The 1981 Convention on Inhumane Weapons also prohibits the use of toxic and chemical weapons.

B. Laws of Maritime WarfareThe rules relating to maritime warfare were mostly in the form of customary international law before the nineteenth century, but subsequently they were incorporated in a number of instruments. Starting with the Declaration of Paris of 1856, the Hague Conference II of 1907, adopted a series of conventions on naval warfare (Conventions VI to XIII), followed by the London Declaration of 1909, relating to the Laws of Maritime War, including rules concerning blockade and military contraband and the London Submarine Rules Protocol of 1936. The Second Geneva Convention, 1949, dealt with the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Together, these instruments have laid down important rules on naval warfare.

During naval war, the enemy vessels and their property can be seized. Seizure of vessel includes seizure of all the goods thereon. The enemy ship can be sunk during naval warfare, after ensuring the safety of the crew and passengers of the ship. The attacked merchant vessel may defend itself by a counter-attack. After the ship has been sunk, ordering of firing at the crew and passengers who try to save their lives by escaping in boats is a flagrant violation of international law. Enemy merchant shipping, i.e., private merchant vessels can be destroyed when they persistently refuse to stop or resist the search. But before doing so, the safety of the crew, passengers and ship's papers must be definitely assured, which is necessary to satisfy the prize court and to justify the legality of the capture. However, in the modern means of warfare involving missiles directed from the land-based launchers, like those used in the Falkland Crisis in 1982 and the Iran-Iraq war 1980-88, and the use of aircrafts in destroying these ships, the safety of the crew and passengers cannot be assured.When the public enemy vessel is seized, it may be immediately appropriated and persons on board such a ship become POWs. But the private merchant vessels are subjected to prize court. Privateering (commissioning of private merchant vessels) is illegal. But they may be lawfully converted into warships according to the State's law.67 Auxiliary ships also get the character of combatant if forming part of the naval forces.Enemy vessels engaged in religious, scientific and philanthropic missions are exempted from seizure and attack (Art. 4, Hague Convention XI). The Second Geneva Convention, 1949, lays down the inviolability of the hospital ships as well as of cartel ships carrying POWs. The Protocol I also provides that all the wounded, sick and ship-wrecked members, to whichever

_____________________65 The Convention entered into force on April 29, 1997.66 Treaty is in force since 1 March 1999. As of April 2010, there were 156 States Parties to the treaty. 67 Under the British practice, conversion should be effected in a home port and not at sea or in neutral port.


party they belong, shall be treated humanely and shall receive to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition (Art. 23(6)).The Hague Convention IX (on Naval Bombardment) allows the bombarding of military objectives, including military works, military or naval establishments. It prohibits the naval bombardment of undefended ports or cities. But this can be done if the local authorities refuse to comply with the formal demand of food and other essential supplies to the enemy. The Hague Convention VIII (on Laying of Automatic Submarine Contact Mines) prohibits the laying down of floating mines, and the belligerents are obliged to ensure the safety of peaceful navigation, as also to notify the extent of minefields at the earliest, when military considerations permit. However, because of the development of new kinds of mine-laying techniques and mine-launching methods from submarines, the Hague Convention is found to be inadequate to regulate this important area of naval warfare. The developments of nuclear powered vessels and submarines have made many rules unworkable or inadequate, forcing naval commands to limit their areas of operation over which regulation is possible or acceptable. This has led to the practice of creating "exclusion zones" like the Cuban quarantine in 1962, or the total exclusion zone in the Falklands crisis in 1982. There is a need for framing new rules in the area of naval warfare, which should take into account the developments related to increasing importance of intelligence and surveillance in maritime warfare, the role of submarines in these operations, and the role of overhead based system in outer space in detecting and targeting these submarines by their anti-submarine tactics.Certain conventional rules already exist on submarines. Under the 1922 Washington Naval Treaty, the use of submarines to destroy merchant or commercial ships is prohibited. The London Naval Treaty, 1930, (Treaty for the Limitation and Reduction of Naval Armament) between France, Italy, Japan, the United States and the United Kingdom provides that the rules relating to surface vessels would also apply to submarines, especially concerning the attack on merchant vessels, i.e., before sinking the merchant vessels, the safety of the crew, passengers and the papers of the ship should be ensured (Art. 22, Part IV). The London Submarine Protocol, 1936, between the same parties contained the similar provisions (Part IV) of the 1930 Treaty. The Nyon Agreement, 1937, proclaimed that the 1930 Treaty and the Protocol of 1936 were "declaratory of international law". But during the Second World War, these rules were flagrantly violated.In the matter of submarine telegraph cables, Art. 54 of the Hague Convention of 1907, provides that submarine cables in enemy occupied territory, and those cables connecting occupied enemy territory with a neutral territory should not be seized or destroyed. Where it becomes necessary to do so, it must be restored or compensation should be paid when the peace is established. On the other hand, Art. 15 of the 1884 International Convention for the Protection of Submarine Telegraph Cables gives freedom of action to belligerents, but does not lay down precisely the extent to which they can interfere with such cables. The State practice during the two world wars, however, is not very clear.68 This requires a new approach on this subject, possibly through a new treaty._____________________

68 Oppenheim, op. cit. 4, at pp. 514-515.

Page 517 WAR AND THE USE OF FORCE BY STATES C. Laws of Aerial WarfareIn modern times, aerial warfare has gained an increasing importance with its potential to cause maximum damage to the opponent, targeting at ground objectives or at sea. Before the First World War, aerial warfare was in its infancy. The law was equally inadequate. But the First World War saw the use of aircrafts in a substantial way.The rules relating to aerial warfare were first laid down in the Brussels Conference of 1874, which were later approved and expanded in the Hague Conventions IV (Laws and Customs of War on Land) and IX (Bombardment by Naval Forces in Time of War), and the Hague Regulations (Art. 25). The Convention IV restricted the bombardment only for the achievement of military objectives. Bombardment or aerial attack "by any means whatever" of undefended cities, villages and towns was prohibited. Bombing of hospitals was completely prohibited. Buildings of public utility were not to be destroyed during aerial warfare. Buildings connected with religion, culture or the philanthropic works, similarly, could not be destroyed. The protection of cultural property was also emphasised in 1954, under the Convention for the Protection of Cultural Property. The damage caused during aerial warfare was not to be more than that caused during the naval war. But during the First World War (1914-18), these rules were invariably not followed. The war, which soon resulted into a total war, did not make any distinction between "defended" and "undefended" areas and did not spare the civilians or civilian targets.After the war, in an attempt to regulate the aerial warfare, in 1922-23, the Washington Conference on the Limitation of Armaments was held. Besides reiterating the Hague Rules on Air Warfare, the Conference declared the bombardment to frighten civilian population as illegal and, ordinarily, civilian areas could not be bombarded. Factories of military importance could be bombarded. The rules of neutrality and land warfare were also made applicable during aerial warfare. A belligerent State violating these rules was made liable to pay compensation. The Conference also decided to appoint a Commission of Jurists to purpose a Code of Air Warfare Rules. Subsequently, the Commission of Jurists produced a draft Code in 1923 at The Hague, which, however, was never adopted. Nevertheless, it contained important rules. It prohibited aerial bombardment for the purposes of terrorising the civilian population, destroying or damaging private property not of military character, or for injuring non-combatants (Art. 22). It is legitimate if directed at a military objective, an object the destruction or injury of which would constitute a distinct military advantage to the belligerent. The bombardment of cities, towns, villages, dwellings or buildings not in the immediate vicinity of the area of operation of land forces was prohibited. It was totally forbidden when bombardment could not take place without the indiscriminate bombardment of civilians (Art. 24). The non-military aircrafts of the belligerent could be subjected to firing if they refused to land on the approach of enemy military aircraft (Art. 33) or if they were flying within the jurisdiction of the enemy (Art. 34).A resolution of the Assembly of the League of Nations in 1938, while the Spanish Civil War was continuing (1936-38), made intentional bombing of civilians illegal. Earlier, the Geneva Protocol of 1925 had prohibited the use of gas and poisonous substances during the aerial warfare. However, upto the Second World War, the clear-cut State practice on

these rules was absent and there was an absence of overwhelming agreement in support of these rules, with the result that during the war, the civilian objectives were invariably attacked. There


was indiscriminate use of explosive and incendiary bombs and projectiles. Germany destroyed cities and villages and attacked undefended towns. The United States used the atom bomb over the two Japanese cities—Hiroshima and Nagasaki, causing untold miseries to the civilian population.The United States justified its action of bombing the Japanese cities on two grounds, viz., (i) as an act of reprisal against the illegal air bombardments committed by Japan and other Axis Powers; and (ii) as an act of military necessity, i.e., to end the war quickly, and thus containing the further casualties in the war. However, both these grounds are totally unjustified in the light of the customary and conventional international law. The casualties inflicted on the civilian population were totally out of proportion to the illegal bombing of Allied Powers, which dismissed the plea of reprisal (proportionately of the use of force is an essential of reprisal).69 It is similarly disputable whether the use of these bombs had ended the war soon and minimised the casualties.The Second World War was a "total" war, directed at the civilian morale, which has now become a true military objective. In such a situation, it is difficult to maintain the distinction between combatants and non-combatants and also to determine as to what constitutes military objective. The laws on aerial warfare are thus singularly absent, the adoption of which is now more necessary in the context of atomic and nuclear weapons whose use may cause the indiscriminate killings of the civilians.

D. Legality of Atomic or Nuclear WarfareNuclear weapons are considered weapons of mass destruction, and their use and control has been a major focus of international relations policy since the Second World War. At present, there is no international instrument which expressly deals with the use of nuclear weapons in the war. In its absence, the question of the legality of their use has to be judged with reference to (a) existing international instruments relating to the limits of the use of violence in war; (b) the distinction, believed to be fundamental in war, between combatants and non-combatants; and (c) the principles of humanity, which are now regarded as forming part of the laws of war, i.e., as a part of humanitarian law.In relation to ground (a), the existing instruments having relevance to the issue of nuclear weapons do not justify their use. The Declaration of St. Petersburg, 1868, laid down that the "employment of arms which uselessly aggravate the sufferings of disabled men or render their death inevitable" is "contrary to humanity". It also prohibits the employment of any projectiles of a weight below 400 gms, "which is either an explosive or charged with fulminating or inflammable substances". The Hague Declaration of 1899 prohibited the employment of projectiles by the contracting parties, where the object is the diffusion of asphyxiating and deleterious gases. Article 23(a) of the Regulations annexed to the Hague Convention IV, 1907 states that "it is especially forbidden, (a) To employ poison or poisoned weapons" without defining the terms 'poison' and 'poisoned weapons'. The 1925 Geneva Protocol prohibits the use of asphyxiating,_____________________69 On reprisal, see supra Ch. 16. In Shimoda v. The Japanese State (1963), Japanese Annual of International Law (1964), pp. 212-252, the Tokyo District Court held that the attacks on Nagasaki and Hiroshima were contrary to international law.

Page 519 WAR AND THE USE OP FORCE BY STATES

poisonous and other gases as well as "all analogous liquids, materials or devices" and bacteriological warfare.Because of its indirect physical consequences to human beings, it is possible that the use of nuclear weapons on a large scale may be brought within the orbit of biological warfare, which has been condemned by the conscience of mankind and prohibited under international law. Thus, they cannot be used against military or non-military objectives in war. In the war between Iran and Iraq (1980-88), chemical weapons were used by both the States in contravention of their obligations under the 1925 Geneva Protocol to which both are parties.70 The use of chemical weapons, which led to a number of civilian casualties, was condemned by the Security Council.71Regarding (b), the distinction between the combatants and non-combatants will be blurred by the use of these weapons. Their use cannot be ensured to be limited to military objectives proper. In fact, it is becoming more and more difficult in total war to define and distinguish what is not a military objective. "Quasi combatants" and civilian work-forces are as important targets as the armed forces proper. In 1950, the International Committee of the Red Cross requested States to prohibit the use of atomic and indiscriminate use of "blind" weapons. The question was again considered in 1965 at the Twentieth Conference at Vienna, confirming four principles in its resolution which prohibited attacks against the civilian population, and declared that the distinction between the combatants and civilian should be maintained, sparing the latter as much as possible. The principles were later adopted by the General Assembly in 1968.In the case of (c), the use of nuclear weapons causes large-scale destruction and suffering, both immediate and consequential, which puts their legality under suspect, i.e., their use is such as to place them, in the light of the Fourth Geneva Convention on the Protection of Civilian Persons, outside the principles of the law of nations, which have resulted from the laws of humanity and the dictates of public conscience. Apart from the legality of the attack on civilians, use of nuclear weapons can be questioned on the ground of "poisonous substance" and their fall out propensity. Their indiscriminate use could also lead to deforestation by affecting the jungle growth and plantation. Crops may be destroyed by defoliants or other chemical agents, even if these weapons be used to safeguard military operations and personnel, or to prevent crops going to enemy.To control the hazards and dangers involved in the use of nuclear weapons led to the conclusion of number of international instruments, viz., the Nuclear Weapons Test Ban Treaty of 1963, the Outer Space Treaty of 1967, the Nuclear Weapons Non-Proliferation Treaty (NPT) of 1968, and the Treaty of 1971 prohibiting the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Seabed and Ocean Floor. However, the Nuclear Test Ban Treaty and the NPT are particularly significant in checking the further proliferation and control of nuclear weapons. The Outer Space Treaty in Art. 4 enjoins the States parties "not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer_____________________

70 The special mission sent by the UN Secretary-General verified this fact. See Doc. S/20060 of July 1987, Doc. S/20134 of August 19, 1987; and Doc. S/10063 of July 25, 1987.71 SC Res. 612 of May 9, 1988; Res. 629 of August 26, 1988.


space in any other manner". The 1972 Stockholm Conference on Human Environment in a resolution of the plenary session condemned all nuclear weapons tests, particularly those conducted in the atmosphere and called upon the States to refrain from conducting such tests as they may lead to further contamination of the environment. Principle 26 of the Stockholm Declaration stated that: "man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction".The 1963 Nuclear Test Ban Treaty, for the first time banned the nuclear testing in the outer space, though the underground tests were allowed. The treaty, which was originally concluded between the United States, the United Kingdom and the Soviet Union, had 123 States parties till July 2008. France, China and North Korea are not parties to it. In July 1974, the Threshold Test Ban Treaty between the United States and the Soviet Union limited the yield of underground tests of nuclear weapons to 150 kilotons. The treaty entered into force only on December 11, 1990. The 1963 Treaty has now been expanded into the Comprehensive Test Ban Treaty (CTBT) which was adopted by the General Assembly on September 17, 1996. It bans nuclear tests in all environments for military or civilian purposes,72 but it has not yet entered into force. The treaty will enter into force 180 days after the 44 States listed in Annex 2 of the treaty have ratified it. These "Annex 2 States" are States that participated in the CTBT's negotiations between 1994 and 1996 and possessed nuclear power reactors or research reactors at that time. As of April 2009, nine Annex 2 States have not ratified the treaty: China, Egypt, Indonesia, Iran, Israel and the United States have signed but have not yet ratified the Treaty; India, North Korea and Pakistan have not yet signed it.73The 1963 treaty, however, failed to effectively prevent the nuclear tests. India conducted its first nuclear explosion on May 18, 1974, at Pokharan in the Thai Desert of Rajasthan, which was criticised by some nations. But this test of India, which is a party to the Test-Batt Treaty, could not be legally challenged under the treaty because it was underground. Moreover, there was no radioactive fall-out of the explosion. In May 1998, India conducted five nuclear tests at Pokharan (known as Pokharan-II). These nuclear tests resulted in a variety of sanctions against India by a number of major countries, and were quickly followed by nuclear testing under the codename Chagai by Pakistan.The French nuclear tests in 1972-73, conducted in the South Pacific were challenged by Australia and New Zealand before the International Court of Justice74 because the radioactive debris affected the environment of the two pacific countries. But the treaty could not be enforced against France as it was not a party to it. The tests were conducted on the high seas, prohibited under the Test-Ban Treaty. As France declared that it would not conduct further tests, the Court took off the case from its list because it did not have an object any more. The Court also did not declare on the legality of the nuclear weapons. France restarted the tests in 1981, which were opposed by the Green-Peace. France once again resumed nuclear tests from September_____________________72 See GA Res. 50/245, UN Doc. A/RES/50/245 Sept. 17, 1996, reproduced in 35 ILM 1439 (1996). The Resolution was adopted with 158 in favour, 3 against (Bhutan, Libya and India) and 5 abstentions (Cuba, Lebanon, Mauritius, Syria and Tanzania).

73 As of 27 May 2010, 153 states have ratified the CTBT and another 29 states have signed but not yet ratified it.74 Nuclear Tests case, (1974) ICJ Rep., p. 253 (Australia v. France), p. 457 (New Zealand v. France).

Page 521 WAR AND THE USE OF FORCE BY STATES 1995 in Mururoa Atoll in the South Pacific. The French President Jacques Chirac aroused worldwide condemnation of the French decision, and Australia and New Zealand cut off military ties with France.75 On January 30, 1996, however, the French President declared that the tests would be stopped.76 China also conducted the underground testing.

1. Nuclear Non-Proliferation Treaty (NPT)The NPT was concluded in 1968 and came into effect in March 1970. It aims at controlling the further proliferation of nuclear weapons.77 For this purpose it divides the countries into nuclear-weapons countries and non-nuclear-weapons countries. The nuclear weapons countries are prohibited from passing on nuclear material or nuclear explosive devices, weapons or information to manufacture these devices to non-nuclear weapons countries (Art. I). Non-nuclear weapons countries are similarly obliged not to acquire or manufacture any nuclear material devices, weapons (Art. 2). It also enjoins the parties to conclude a comprehensive treaty banning nuclear weapons, towards the goal of complete disarmament (Art. VI).The Treaty imposes severe restrictions on the peaceful uses of the atomic energy which should be done under the supervision of the International Atomic Energy Agency (IAEA) (Art. III). A member country's refusal to do so may lead to a conflict situation as it happened in the case of North Korea which declined to submit its nuclear installations to the inspection of the IAEA. North Korea had ratified the treaty on December 12, 1985, but has ceased to be a party since April 10, 2003 after serving a notice of withdrawal from the Treaty on January 10, 2003 following United States allegations that it had started an illegal enriched uranium weapons programme. This makes North Korea the first State ever to withdraw from the treaty. (North Korea had earlier also given the notice of withdrawal from the NPT in June 1994, which it later withdrew).The NPT, which was reviewed from April 17 to May 12, 1995, at New York after the completion of 25 years of its existence, had been extended unconditionally for an unlimited time. The Review Conference had recognised the four threshold countries, i.e., India, Pakistan, Israel and South Africa, which, barring South Africa, are not bound by the Treaty per se, and with the obligation not to further proliferate nuclear weapons.

2. India and the NPTAll the major countries are parties to the NPT, with a total membership of 189, but India, Pakistan, Israel are not its members, though they are nuclear threshold countries with the capability to make nuclear weapons.78 India's refusal to accede to the Treaty is based on its discriminatory_____________________75 The tests were challenged by Australia and New Zealand before the World Court, but the cases were dismissed by the Court, as they were conducted underground and not in the atmosphere, for which they could come to the Court under the 1974 Nuclear Tests cases, ibid.76 The nuclear powers have conducted more than 2,000 nuclear test explosions so far, see en.wikipedia.org/wiki/Nuclear_weapons_testing77 GA Res. 2373 (XXII) of 1968.

78 South Africa had also developed nuclear weapons but has since disassembled its arsenal in 1979 before joining the NPT.

Page 522 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW character in verification and treatment which allows nuclear-power nations to retain their weapons and control its further proliferation,79 but non-nuclear powers are denied their acquisition. India further wanted that there should be a comprehensive treaty in accordance with Art. VI, banning all tests and dismantling the existing nuclear arsenals. The CTBT has been adopted with the limited goal of prohibiting nuclear weapon testing but does not oblige the States to dismantle their nuclear arsenals,80 in which nuclear weapon countries want to retain their monopoly, though they have given the undertaking not to be the first users of the nuclear weapons. They have also agreed on the draft of a Security Council resolution that would set out "security assurances" to non-nuclear weapon States if subjected to an aggression with nuclear weapons or threat thereof. On the recommendation of the Security Council, the victim State will be given the necessary assistance.81 But the execution of such a resolution is doubtful, because the nuclear weapons nations, who own these weapons, also possess the veto power in the Security Council. However, India is also committed to the 'no first use policy'.82In March 2006, India and the United States finalised an agreement- the 123 Agreement,83 to provide India with US civilian nuclear technology. Under the deal India has committed to classify 14 of its 22 nuclear power plants for civilian use and to place them under IAEA safeguards. In December 2006, United States Congress approved the United States-India Peaceful Atomic Energy Cooperation Act (The Hyde Act). The legislation allows for the transfer of civilian nuclear material to India. Despite its status outside the Nuclear Non-Proliferation Treaty, India was granted these transactions because of its clean non-proliferation record, and its high need for energy due to its rapid industrialisation and a surging population. On August 1, 2008, the IAEA approved the India Safeguards Agreement and on September 6, 2008, India was granted the waiver by consensus at the Nuclear Suppliers Group (NSG) meeting held in Vienna. The consensus could be arrived after overcoming misgivings expressed by Austria, Ireland and New Zealand, which were initially against giving exemption to a country, which is not a party to the NPT and the CTBT. Now India can commence nuclear trade with other willing countries. As of January 2011, Australia, one of the top three producers and home to world's largest known reserves, has refused to export Uranium to India because of its failure to sign the NPT.84_____________________79 From a high of 65,000 active weapons in 1985, there are now nearly 8,000 active nuclear warheads and more than 22,000 total nuclear warheads in the world in 2010.80 Article I (Basic Obligations) of the CTBT provides: "(1) Each State Party undertakes not to carry out any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control. (2) Each State Party undertakes, furthermore, to refrain from causing, encouraging, or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion."81 Such resolution was earlier passed by the Security Council in 1968, see SC Res. 255. China voted in favour of the resolution and France abstained, see United Nations and Disarmament, UN. (NY. 1988), p. 60.82 http://www.indianembassy.org/policy/CTBT/nuclear_doctrine_aug_l 7_1999.html

83 The Agreement refers to Sec. 123 of the U.S. Atomic Energy Act., which bans transfer of nuclear technology to other countries. The Hyde Act was passed by the U.S.A. to make an exception for India, to enable transfer of technology for civil nuclear energy.84 en.wikipedia.org/wiki/Nuclear_Non-Proliferation_Treaty

Page 523 WAR AND THE USE OF FORCE BY STATES But in spite of these treaties, the preponderant view among the western nations and Russia is that nuclear weapons are not prohibited per se. In 1961, the United Nations General Assembly adopted the Declaration on the Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons.85 In another resolution of December 15, 1983, the General Assembly condemned the nuclear war as being contrary to human conscience and the monstrous crime against people and as a violation of the right to life. The resolution called upon all States to unite and redouble their efforts aimed at removing the threat of nuclear war, halting the nuclear arms race and reducing nuclear weapons until they are completely eliminated.86 An important regional treaty between 20 Latin American and Caribbean States, the Treaty of Tlateloco of February 14, 1967, also prohibits the presence of nuclear weapons and conducting of nuclear tests in the territory of the signatories to the Treaty. As a bilateral measure, the United States and the Soviet Union concluded the Intermediate-Range Nuclear Force Treaty (INFT), and the Strategic Arms Reduction Treaty (START I), that came into effect in July 1991, to reduce their long range nuclear arsenals. Now the United States and Russia have concluded the new START (Measures for the Further Reduction and Limitation of Strategic Offensive Arms) on 8 April 2010, which, has become effective on 5 February 2011 (and will expire on 5 February 2021). New START has replaced the Treaty of Moscow (SORT), which was due to expire in December 2012.87 Under the terms of the New START, the number of strategic nuclear missile launchers will be reduced by half. A new inspection and verification regime will be established, replacing the SORT mechanism. It does not limit the number of operationally inactive stockpiled nuclear warheads which are significantly high in both the Russian and United States inventories.President Reagan of the United States, in March 1983, proclaimed the programme of Strategic Defence Initiative (SDI, popularly known as "star war") as a part of its strategic policy from offence-oriented to defence-oriented. It was aimed at replacing the United States policy based on the doctrine of "Mutually Assured Destruction"(MAD). The SDI programme involved a prohibitive cost of about $1 trillion and was abandoned by President Clinton in June 1993. The effectiveness of the MAD doctrine after the September 11, 2001 terrorist attacks has become questionable. The threat of potentially suicidal terrorists possessing nuclear weapons (a form of nuclear terrorism) complicates the decision process. The prospect of mutually assured destruction may not deter an enemy who expects to die in the confrontation. Further, if the initial act is from a rogue group instead of a sovereign nation, there is no fixed nation or fixed military targets to retaliate against. This requires a new nuclear strategy, distinct from the relative stability of the Cold War under the MAD doctrine.Another important instrument on certain conventional weapons with some bearing on nuclear weapons is the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 1981 (commonly known as Convention on "Inhuman Weapons"), adopted at the United Nations Conference held at Geneva in October 1980. The Conference failed to reach any agreement on certain categories of weapons and left them for future study, i.e., small calibre projectiles,_____________________

85 GA Res. 1653 (XVI).86 GA Res. 38/75 of Dec. 15, 1983.87 The New START treaty is the successor to the START I. The START II was signed, but not ratified. The START III negotiating process was not successful.


anti-personal fragmentation warheads, and fuel air explosives. The Convention has three Protocols annexed to it: Protocol I, i.e., the Protocol of Non-Detectable Fragments, that prohibits the use of a weapon whose primary affect is to injure by fragments which in the human body escape detection by X-Rays; Protocol II, i.e., the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-traps and other like devices; Protocol III, i.e., the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, to restrict the use of incendiary weapons against military objectives only and imposing, inter alia, obligations to record locations. At the time of ratifying the Convention, a State must express its consent to be bound by at least two of the annexed Protocols. The Protocols do not list any "grave breach" offences as in the 1977 Protocols I and II or the Geneva Conventions, 1949. The Review Conference of the Parties to the Convention on "Inhuman Weapons" adopted on October 13, 1995 a Protocol on Blinding Laser Weapons, which prohibits deliberate and permanent blinding by lasers on the battlefield. On November 28, 2003 Protocol V was adopted which sets out obligations and best practices for the clearance of explosive remnants of war.88As the laws of war are mainly prohibitive, those weapons which are not caught under the existing prohibitions shall not be legally objectionable. There does not exist any convention on the use of nuclear weapons as such. The numerous international instruments on the laws of war do not expressly prohibit nuclear weapons. Hence, their legality is difficult to be challenged per se under international law. The General Assembly adopted a draft Convention on the Prohibition of the Use of Nuclear Weapons in 1989, which required States parties not to use nuclear weapons under any circumstances.89 The use of nuclear weapons has a bearing on the environmental and humanitarian law.90 The 1976 Convention on the Prohibition of Military or Other Hostile Use of Environmental Modification Techniques (ENMOD Convention) under Art. 1 enjoins the States parties not to engage in "military or any other hostile use of environmental modification techniques having widespread, long lasting or severe effects as the means of destruction, damage or injury to any other State Party". So even if the nuclear weapons are not specifically prohibited under any international convention, their use is not justified under international law.

3. ICJ and the Use of Nuclear WeaponsThe World Health Organisation (WHO) on May 14, 1993, in pursuance of its Assembly's resolution (WHA, 46:40) sought the advisory opinion from the International Court of Justice on the following question:In view of the health and environmental effects, would the use of nuclear weapons by a State in war or armed conflict be a breach of its obligations under international law including the WHO Constitution?In a related development, on December 15, 1994, the UN General Assembly by its Resolution 49/ 75K also requested the Court to render an advisory opinion on the following question:Is the threat or use of nuclear weapons in any circumstances permitted under international law?_____________________

88 Protocol IV entered into force on July 30, 1998.About the Protocol, see B.M. Carnahan & M. Robertson, 90 AJIL 484 (1996). For the text of the 1980 Convention, see 19 ILM 1523 (1980).89 See GA Res. A/RES/44/117C, 15 November 1989.90 See GA Res. 2542 (XXIV) of 1968, and ECOSOC Res. 1983 of May 18, 1983.


On the question submitted by WHO, the Court did not give any opinion as the matter did not pertain to WHO's Constitution and accordingly the Court lacked the jurisdiction in the matter. But on the General Assembly's request, the Court gave an advisory opinion on July 8, 1996 on the Legality of the Threat or Use of Nuclear Weapons. By the casting vote of the President, the Court held that the threat or use of nuclear weapons would be contrary to the law of armed conflict, particularly international humanitarian law, except perhaps in an extreme circumstance of self-defense in which the very survival of a State is at stake. In general, a threat or use of nuclear weapons that is contrary to Arts. 2(4) and 51 of the United Nations Charter is unlawful. There also, the threat or use of nuclear weapons should be compatible with the law of armed conflict, particularly international humanitarian law and specific treaty obligations. The Court also stated that neither customary nor conventional international law specifically authorise or prohibit the threat or use of nuclear weapons.91 Thus, according to the Court's view, except for self-defence, the use or threat of nuclear weapons is not permissible under international law.The prohibition of the use of nuclear weapons is also the part of the United Nations programme on disarmament undertaken by the Conference on Disarmament. The Conference membership of 65 nations includes all the nuclear weapons States. The purpose of disarmament is to abolish the war-making capacity of a State.92

V. TREATMENT OF CIVILIAN PERSONS IN TIME OF WARThe 1949 Geneva Convention Relating to the Treatment of Civilian Persons in Time of War (Geneva Convention IV) and the 1977 Protocol I additional to the Geneva Conventions contain specific provisions for enemy nationals in belligerent territory. Protocol I defines civilian persons as those who are not the combatants (Art. 50). In order to ensure the safety and protection of the civilian population (which comprises all civilian persons), the Protocol enjoins the parties to distinguish between civilian population and combatants, and between civilian and military objectives, and to draw their operations only against military objectives (Art. 48). Civilian population as well as individual civilian, as such, shall not be the object of attack. Acts of threat or violence aimed at spreading terror among the civilian population and indiscriminate attacks against the civilian population are prohibited. Civilian objects shall not be the target of attack or of reprisals. Starvation of civilians as a method of warfare is prohibited (Art. 51).The Geneva Convention IV emphasizes on humane treatment. The enemy nationals not under confinement or in prison may leave the territory of the belligerent State, unless their departure is contrary to the national interests of the State. If the permission is refused, the enemy nationals have the right to bring the matter before a court or administrative board of the detaining power (Art. 35). Those who do not leave the territory will continue to be governed humanely. They cannot be compelled to perform works which are directly related to military_____________________91 See the Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons of July 8, 1996, (1996) ICJ Rep., p. 266; reproduced in 35 ILM 809 (1996).

92 Disarmament is principally aimed at the "arms control", i.e., the regulation (deployment), limitation, reduction and ultimately, the destruction of arms, so that the armed conflicts do not occur.

Page 526 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW activities (Art. 40). If found indulging against the interest of the State, they cannot be subjected to more severe measures than that of assigned residence (house arrest) or internment (Art. 41). No moral or physical coercion should be exercised against them. They cannot be subjected to physical sufferings or extermination. Collective punishment and all measures of intimidation and terrorism are prohibited (Arts. 27-33). The Convention requires the proper treatment of internees who should be accommodated according to their nationality, and families must not be separated (Art. 82).No sentence may be passed or no penalty may be executed on a person found guilty of an offence related to the armed conflict except pursuant to a conviction pronounced by a properly and regularly constituted court by following the principles of law.93 But these rules need not to be observed in the same degree and in all respects in the non-war armed conflicts.

A. Belligerent Occupation of Enemy TerritoryTerritory is considered to be occupied when it is placed as a matter of fact under the authority of the hostile army and it is occupied effectively by the enemy forces (Art. 42 of the Hague Regulations annexed to Convention IV, 1907). Occupation is the form of control and administration of the territory by the occupying power, following cessation of substantial local resistance, which administers the territory during occupation.94 Occupation is of limited and temporary nature, and the sovereignty over the area is not vested in the occupant. Occupation is different from invasion and annexation. Invasion is merely a stage of military operation extended until complete control is established. Annexation is the complete transfer of sovereignty over the territory, which takes place through a treaty. Annexation is different from occupation as the ousted sovereign still retains the residue of legal authority not acceded to the occupant.After the war, the occupied territory is either reverted to the ousted sovereign, or becomes a part of the territory of the occupying power under a treaty. So far as it is in a stage of transient, the occupying power cannot treat the territory as its own nor its inhabitants as its own subjects. The recent example of occupied territory has been that of Israeli occupation of Gaza, West Bank and Golan Heights after the June 1967 war with Arab countries, which had been termed as "prolonged military occupation".95 Israel has since returned some of these territories to Egypt (under the Camp David Agreement, March 26, 1979) and Jordon (by an Agreement of October 26, 1994) in return for Israel's recognition as a State by these nations. In the case of Syria, the Golan Heights came under the Israeli occupation after the war, but Syria rejected the UN Security Council resolution 242 of 22 November 1967, which called for the return of Israeli-occupied territories in exchange for peaceful relations. The Syria accepted the resolution subsequently along with the Security Council resolution 338 (1973), which finally established_____________________93 Article 5 of the Geneva Convention IV and Art. 75 of the Additional Protocol I, 1977.94 See Julius Stone, op. cit. 7, p. 694, n. 4. Oppenheim defines occupation as invasion plus taking possession of enemy territory for the purpose of holding it, at any rate temporarily, see Oppenheim, op. cit. 4, p. 434.

95 See Adams Roberts, Prolonged Military Occupation: the Israeli Occupied Territories since 1967, 84 AJIL 44 (1990).

Page 527 WAR AND THE USE OF FORCE BY STATES a ceasefire to end the 1973 Yom Kippur War.96 In the case of the West Bank that came under Israeli military administration in 1967, Israel began developing infrastructure in Arab villages under its control. In 2000, the Israeli government started to construct the Israeli West Bank barrier, separating Israel and several of its settlements, as well as a significant number of Palestinians, from the remainder of the West Bank. The General Assembly referred the matter to the International Court of Justice,97 asking it about "the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, considering the rules and principles of international law, including the IV Geneva Convention of 1949...." The Court in July 2004 in its advisory opinion treated Gaza as part of the occupied territories.98 The Court ruled that Israel is under an obligation to terminate its breaches of international law; and to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall. The States parties to the Fourth Geneva Convention have an additional obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.The Geneva Convention IV on Civilian Population, 1949 (Part III, Section III, Arts. 47-78), along with the Hague Regulations (Section III, Arts. 42-56), lays down specific provisions for the administration of the occupied territory and the treatment of the civilian population by the belligerent during war or in any other armed conflict, even if it is not recognised as war by a party or parties to it, and applies to all cases of total or partial occupation (Art. 2, Geneva Convention). Protocol I also has some relevance in this regard (Arts. 48-51, 54-55, 75). These rules are primarily aimed at protecting the interests of the inhabitants of the territory while, at the same time, protecting the sovereign rights of the legitimate government of the occupied territory.The Occupant must administer the territory according to the laws of the ousted sovereign, so far as they are not incompatible with the laws of the occupant. But it can impose and collect taxes, dues and tolls for administration and meet the needs of the army of the occupant. Numerous duties are imposed on the occupants towards civilian population, subject to the requirements of internal security and order and necessities of military operations._____________________96 On 14 December 1981, Israel passed the Golan Heights Law, extending Israeli administration and law to the territory. However, the UN Security Council rejected the de facto annexation in a non-binding UNSC Resolution 497, which declared the law as "null and void and without international legal effect", and consequently continuing to regard the Golan Heights as an Israeli-occupied territory. The measure has also been criticised by other countries.97 General Assembly Res. A/RES/ES-10/14(A/ES- 10/L.16), 8 December 2003.98 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (2004) ICJ Rep., p. 136. The Court considered that "Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the

construction of the wall". The Court found that "the construction of the wall, and its associated regime, are contrary to international law". Following an agreement in 2007 between Israel and the Palestinian National Authority (PNA) in which more than 200 Palestinian militants wanted by Israel laid their arms and joined the PNA forces, the construction of the barrier has ceased.

Page 528 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW The civilian population cannot be arrested and taken as hostages,99 and subjected to collective penalties. But if the local inhabitants resort to spying against the Occupant, or interfere with its military activities, they can be punished by the Occupant. But the Occupant cannot claim the loyalty of the local inhabitants who do not owe any allegiance to the Occupant (Arts. 67-68). The Occupant can prohibit certain activities with prior intimation, if that is necessary for the law and order purposes.100 The conduct of local inhabitants, prejudicial to the security and public order, espionage, interference with military operations, would subject them to be penalised.Specifically prohibited measures include the individual or mass forcible transfers or deportations of protected persons (i.e., civilians under the IV Convention) from occupied territory to any other country or to the territory of the occupying power, regardless of the motive (Art. 48). They cannot be compelled to perform works for the armed forces of the occupying power, but adults, above 18 years of age, can be compelled to render public utility services, such as water, gas, electricity, etc. or exclusively for the purpose of supplying the needs of the army of occupation (Art. 51). The food and medical supplies can be requisitioned from the local inhabitants for the armed forces of the Occupant, but not impinging upon the ordinary requirements of the civilian population (Art. 56). The occupying power is also under an obligation to protect the natural environment of the occupied territory (Art. 55 of Protocol I). The Occupant is also under an obligation to maintain old courts and former penal laws, unless they are a threat to the security of the occupying power, as well as the status of public officials or judges, who should not be subject to any coercion (Art. 54 of the IV Convention). The occupying power can only inflict the penalty of simple imprisonment, under the laws enacted by it. Death penalty can be imposed only for espionage, serious acts of sabotage, or intentional killings, on persons above 18 years of age at the time when the crime was committed.The private property, if required for military purposes, can be taken over temporarily, but cannot be confiscated unless compensation is paid. Wholesale plundering of private property is unlawful. Article 91 of the Protocol makes the State party responsible for all acts committed by persons forming part of its armed forces, and liable to pay compensation for breach of its obligations. Public property of military character can be seized and destroyed; otherwise it can be merely seized. These instruments do not provide rules regarding banks, public finance, and maintenance of former currency or coinage of the occupied territory or the introduction of new currency. But in the interest of orderly government, it should safeguard the former economic and financial structure.101Occupation comes to an end on the conclusion of a peace treaty after the end of hostilities. It may terminate with the disappearance of the local sovereign or the annexation of the territory_____________________99 See to the contrary the Hostages case (US v. List) that hostages may be executed to secure obedience of the local population, tried at Nuremberg in 1947-48, where it was held that non-uniformed partisan troops operating in the German-occupied territory in the Second World War were not entitled to the status of lawful combatants, War Crimes Trial Reports, Vol. 8, pp. 39-92.

100 Richard Baxter, The Duty of Obedience to the Belligerent Occupant, XXVII BYblL 236 (1950). 102 See Starke, op. cit. 5 at p. 567.

Page 529 WAR AND THE USE OF FORCE BY STATES by the Occupant, such as East Jerusalem, occupied by Israel in 1967, along with West Bank, Gaza strip, Golan Heights and Sinai Peninsula, formally annexed by Israel on July 30, 1980.However, international law, particularly Art. 5(3) of the Definition of Aggression (GA Res. 3314, 1974) prohibits any territorial acquisition or special advantage resulting from aggression, hence, the occupied territory cannot be annexed. But the present state of international law is not very satisfactory on enemy occupation. In many cases, there has been an undue prolongation of the period of cessation of hostilities and the conclusion of peace treaties, with the ensuing delay in the return of the territory to its lawful sovereign. For example, after the Second World War, hostilities came to an end in 1945, but a Peace Treaty with Japan was signed on September 8, 1951, and no treaty was ever signed with Germany. In the case of Israel, the captured Arab territories in 1967 and 1973 wars have been partly returned by Israel after the conclusion of peace treaties with Egypt (1979) and Jordon (1994), but with Syria, it is still disputed.103 This leaves a situation of uncertainty for the conquered regime, which requires an international solution to the problem.

B. Treatment of Civilians in Civil WarThe State of civil war arises when there is a concerted armed opposition from a large segment of the population against the constitutional government to obtain power in the State. It is an armed conflict between two groups within a State, and unless the rebellious group is being recognised as a belligerent power by outside powers (or by the legitimate government itself), it remains a situation of insurgency, or of civil war. Legally speaking, the insurgents are recognised as a belligerent power when they acquire the ability and willingness to observe the rules of warfare existing under customary and conventional international law. Regardless of the fact that whether such a rebellion is recognised as belligerency or not, the present international law, in the form of four Geneva Conventions, lays down certain principles of humanitarian character. Protocol II, additional to these conventions, entirely deal with non-war international armedconflicts.Article 3, common to all the four Geneva Conventions, 1949, states:In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (i) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat [out of hostilities or incapacitated] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria....In particular, all these Conventions prohibit, with respect to such persons, murder, mutilation, cruel treatment, torture, and generally violence to life and person; taking of hostages; and passing of sentences and carrying out executions without previous judgment pronounced by a regularly_____________________

102 Roberts, op. cit. 95, at p. 59. Israeli law was extended to Golan Heights on Dec. 14, 1981, ibid., at pp. 58-59 Annexation of Golan Heights has not been accepted by the Security Council, see op. cit. 96. Jerusalem (Bethlehem) has been returned to Palestinians on Dec. 22, 1995, after 28 years of occupation.103 See op. cit. 96.

Page 530 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW constituted court affording all judicial guarantees recognised by civilised people. The wounded and sick must be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross (ICRC) may offer its services to the parties to the conflict. The parties to the conflict may conclude special agreements to bring into force the other parts of the Conventions. Nevertheless, the application of these provisions do not affect the legal status of the parties to the conflict (Art. 3), which means that the observance of these rules would not amount to recognition of the belligerency of the insurgents on the part of the legitimate government, and they may remain insurgents. But if the legitimate government recognises the belligerency of the insurgents, the Geneva Conventions will automatically apply if the legitimate government is a party to them, and the insurgents also accept and apply the provisions of these Conventions. In the absence of this, the customary rules of war will apply.Article 3 of the Geneva Conventions has been supplemented and developed further, without modifying its existing conditions of application by the 1977 Protocol II relating to the protection of victims of non-international armed conflicts. The Protocol applies to all armed conflicts which are not covered by Art. 1 of the Protocol I, and which take place within the territory of a contracting party, between its armed forces and dissident armed forces, or other organised armed groups which under responsible command, exercise control over a part of its territory, enabling them to implement the provisions of the Protocol. This means that the insurgents should be in control of a part of territory and capable of implementing the provisions of the Protocol to be entitled to benefit from its provisions.The Protocol II does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature, as not being armed conflicts (Art. 1). The Protocol enjoins the contracting parties to accord humane treatment to all persons who do not take a direct part or who have ceased to take part in hostilities, without any adverse distinction on the grounds of race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. They are entitled to respect to their person, honour and conviction and religious practices.

VI. WAR CRIMESInternational law sets limits concerning the means of warfare or armed conflicts, amount of force required to be used, and lays down principles related to combatants and non-combatants during war and armed conflicts. They are primarily aimed at containing the sufferings of individuals. Human rights rules and standards have also profoundly affected these laws. They cannot be violated except under a treaty or customary rule of international law. Any breach of these rules, constitutes a "grave offence" (i.e., wilful infliction of inhuman treatment, or causing great sufferings) and is punishable as a "war crime". A "war crime" is the violation of recognised rules of warfare by armed persons and other individuals, not the members of armed forces, committing illegitimate hostilities or indulging in espionage.104 For war crimes,_____________________

104 Oppenheim defines war crimes as "such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders", see op. cit. 4, at p. 566.


punishment is given by the victorious State and not by any independent forum.105 Persons who can be subjected to war crimes are the civilians as well as the lawful combatants, persons of enemy affiliations but not of enemy nationality, persons guilty of a gross failure to control their subordinates.Even though the violation of the customs and laws of warfare is wrong, not every violation is a war crime. Acts which are condemned or condemnable by the common conscience of mankind by reason of brutality, inhumanity or wanton disregard of the safety of life and property, which is unrelated to military necessity, will import liability. The State which violates these laws may be subjected to reprisals under customary international law, but now prohibited under the Geneva Conventions.106 Under the Hague Conventions, war crimes punishable for violating the limitations were related to place, instruments, and persons. Under Art. 3 of the Hague Convention II, the State perpetuating or guilty of war crimes was liable to pay compensation at the time of the conclusion of the peace treaty.The Treaty of Versailles concluded after the First World War contained express provisions on the subject (Arts. 227-230). Accordingly, the Head of State and armed personnel could be tried for launching an aggressive war. Defence of superior orders was not available. The Nuremberg and Tokyo trials held at the end of the Second World War (1945-48), however, brought a revolutionary change in the law of war crimes and helped in enunciating clear principles on the subject. By a joint declaration (November 1, 1943) of the Soviet Union, the United States and the United Kingdom, international trial tribunals were set up at Nuremberg and Tokyo. By an agreement of August 8, 1945, the Nuremberg Tribunal was established, consisting of representatives of four powers (France, in addition to the above three). The Tokyo Tribunal was established on January 19, 1946 (by Potsdam Declaration of July 20, 1945), by an agreement between the Soviet Union, the United Kingdom, the United States and China. It had 11 judges, who were not chosen entirely from the victorious nations. India's Dr. Radha Binod Pal also acted as a judge on the Tribunal. The Tokyo trials were conducted against 28 persons, and at the Nuremberg trials, 22 leaders of the Third Reich were tried. The offences for which charges were laid in the Charter of these tribunals were on four counts:1. Crimes against peace, i.e., beginning a war of aggression by planning, preparation or initiation, or in violation of treaties, such as the Hague Conventions of 1899, 1907; the Treaty of Versailles; violation of Mutual Non-aggression Pact by Germany with France, Belgium and Poland; and the 1928 Kellog-Briand Pact._____________________105 However, in the Mai Lai Trial, the tribunal was constituted by the United States when there was severe criticism of the United States at home and abroad for perpetuating war crimes in Vietnam. In Mai Lai, a village in Vietnam, the whole population was killed by American military personnel. The trial was held in Georgia between Nov. 16, 1970, and March 15, 1971. Out of 25 persons charged with war crimes, 19 could not be tried for insufficient evidence. Except Lt. Caley, others were acquitted. Lt. Caley was awarded life imprisonment. More recently, for Mayward District Killings of civilians in Afghanistan, Stac. Jeremy Morlock has been sentenced to 24 years sentence for pre-meditated killing

of civilians along with three other soldiers, including the ring leader Sgt. Calvin Gibbs. Times of India, March 24, 2011 (Delhi ed.), p. 1.106 Article 13 of Geneva Convention on Prisoners of War, and Art. 20 of the Protocol I, together prohibit reprisals against the POWs, and wounded, sick and shipwrecked members.

Page 532 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 2. War crimes, i.e., crimes under the laws of war, which included violation of customary and conventional rules and regulations relating to warfare.3. Crimes against humanity, i.e., inhuman treatment (murder or persecution) on racial or religious grounds during war and in occupied territories.4. Conspiracy to commit these crimes.The tribunals were constituted to punish heads of State, ministers and high military and administrative functionaries responsible for initiating the war and authorising the perpetration of atrocities. Articles 7 and 8 of the Nuremberg Charter made it clear that the official position of the defendants shall not be a factor in freeing them from responsibility or mitigating punishment. Acting under the orders of his government or a superior will not free the defendant from responsibility, but this can be a mitigating factor in the punishment, if the Tribunal determines that justice so demands.The Nuremberg Tribunal, which delivered its judgment on October 1, 1946, imposed death penalty and imprisonment from 10 to 20 years. Out of 22 persons, 12 were given the death sentence, three were given the life imprisonment, four were given imprisonment of various terms, and three were acquitted. The Tokyo Tribunal pronounced its judgment in November 1948, and found all the defendants, except two, guilty of conspiracy to wage aggressive war. It also awarded death penalty and imprisonment. There was no review of the judgment, but the sentence could be confirmed or remitted.Beside these two tribunals, national military tribunals were also set up by the Allied Powers to try war crimes. Though constituted under the municipal law, they dealt with charges similar to the Nuremberg and Tokyo trials. Special national tribunals were also established in Europe, Australia, Asia and South Pacific, which tried persons involved in war conspiracies, such as financiers and industrialists, members of enemy forces and civilians with ordinary offences against the laws of war (ordinary war crimes); and collaborationists, guilty of treason.107 In all, 7100 persons were tried for various war crimes, of which 3700 were convicted.The legality and propriety of these trials and the judgments were criticised by many jurists on the following grounds:1. The trials were in violation of the principle of nullum poena sine lege (no punishment without law). There were no rules of international law declaring such acts as illegal prior to the Second World War, they were not defined or made punishable and were considered the acts of State.2. Trials were conducted under the rule of ex post facto, giving retrospective operation to a crime which was not punishable at the time of its commission. This is contrary to the principles of criminal justice. Defendants were not aware about the illegal nature of their acts under the international law prior to war.3. The tribunals were constituted by the victorious powers, whose impartiality in delivering the judgments is very much doubtful._____________________107 See Eichmann's case, 36 ILR 277 (1962), the trial was held by the Supreme Court of Israel.

Page 533 WAR AND THE USE OF FORCE BY STATES 4. Consisting mainly of judges from the victorious States, they cannot be called international tribunals. This is also in violation of the principle of nemo judex in causa sua (no one can be judge in his own cause).5. The plea of superior orders has great relevance in the discipline of the armed forces, and it was rejected by the Tribunals without any concrete reason.6. One of the arguments of the defendants was that war is waged by States and not by individuals, who are not the subjects of international law. The Nuremberg Tribunal rejected it and pointed out that, "international law imposes duties and liabilities upon individuals as well as upon States".108Prior to these trials, belligerents were generally entitled to try only those members of the armed forces who fell into its hands, or who had committed these crimes within its territorial jurisdiction.These trials made it clear that orders of superiors or obedience to national laws do not constitute a defence but is a factor for the mitigation of punishment. This was the reaffirmation of the decision of the Llandovery Castle case decided in the course of Leipzig Trials.109 It was held that the defence of superior orders would afford no justification where the act was manifestly and indisputably contrary to international law as, for example, in the case of killing of unarmed enemies or of shipwrecked persons who had taken refuge in life-boats during the First World War.110 The German Court, which decided this case, rejected the plea of superior orders if known to be against the law, but said that it could be an extenuating factor. The courts must also take into account the state of mind of the accused who believed the order to be lawful, which could be a defence, unless the order was patently illegal. The Nuremberg Tribunal laid down the test to determine, "whether moral choice was in fact possible on the part of the individual ordered to commit the criminal act" in such cases. The individual is bound to obey only lawful orders.On the other hand, superiors are responsible for the actions of the subordinates. Subordinates cannot be held liable if in obedience to a command, they commit acts which violate the rules of warfare as well as outrage the conscience of mankind. There should also be some dereliction of duty on the part of the superior in such cases. For this purpose, there should be some actual knowledge or grounds for possessing knowledge, i.e., once the wrong doing is brought to his knowledge or he obtains such a knowledge, the commander should take steps to prevent the commission of war crimes. Failing to do so, will make him liable. In the Yamashita Trial case,111 it was laid down that the gross failure to control subordinates responsible for atrocities is almost equivalent to tacit permission for their commission which will involve the commander's responsibility._____________________108 In the Tokyo trial, Sir Radha Binod Pal in his dissenting judgment expressed the view that war is beyond the scope of international law.109 (1921) AD cases, 1923-24, Case No. 235.110 Article 3 of the unratified Treaty of Washington, 1922, relating to submarine warfare, made the violation punishable like acts of piracy whether or not the person was acting under the orders of his superiors.111 4 War Crimes Trial Reports, 1-96.

Page 534 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW Article 86(2) of Protocol I makes the superiors responsible and subject to disciplinary action for the acts committed by subordinates, if they knew or had information based on the "circumstances at the time" that the subordinate is committing or is going to commit a breach and they fail to take all feasible measures to prevent such a breach. Article 87(3) also imposes similar responsibility on the commander who must initiate the necessary steps to prevent such violations and where appropriate, take disciplinary or penal actions against violations thereof.Following on the judgments of the tribunals after the Second World War, in pursuance of the General Assembly resolution, the ILC, in 1950, formulated a Draft Code of Principles Recognised in the Charter of the Tribunals and the Judgments of the Tribunal.112 The Code made reference to "persons" as guilty of crimes against the peace and security of mankind, to prevent guilty individuals sheltering behind the abstract entity of State. In 1954, the General Assembly adopted a Draft Code of Offences against the Peace and Security of Mankind, embodying the principles of the Nuremberg trial.113 In 1967, the General Assembly adopted a Declaration on Territorial Asylum asking States not to grant asylum to persons against whom serious charges of committing war crimes exist.114 Again, in November 1967, the General Assembly adopted an important Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which paved the way for the trial of war criminals who could not be tried earlier.Each of the four Geneva Conventions, 1949, enumerates certain "grave breaches" of these Conventions, which, if committed, are regarded as war crimes, for example, Art. 130 of the III Convention lists grave breaches against POWs as wilful killing, torture or inhuman treatment, causing wilful suffering or serious injury to body or health. The Conventions' list of grave breaches has been further supplemented by Protocol I.115

VII. TERMINATION OF WAR AND ARMED HOSTILITIESThe war and armed hostilities are brought to an end by different modes, though they are not exactly the same in both the cases. When the war results in the complete defeat of a State, the victorious power has the choice to annex the conquered territory. The annexation brings to an end the existence of the annexed territory as an independent State under international law, which automatically terminates the status of war. However, the validity of this mode under the law of the United Nations Charter is questionable, as no territorial changes brought about by the use of force are to be recognised, and if annexed illegally, their independence is sought_____________________112 GA Res. 177 (II).113 The work on the said Draft stopped in 1954, which was re-started in 1988. The Commission work ultimately led to the adoption of the Statute of Rome, establishing the International Criminal Court (ICC) in 2001. For more on the ICC, see supra Ch. 15.114 GA Res. 2312 (XXII) of Dec. 4, 1967.115 See Arts. 11(2) and 85(3)—attacks directed against persons and objects protected under the Convention, wilfully endangering the physical or mental health or integrity of protected persons are "grave breaches" under Protocol I. In the prosecution of Dusko

Tadic and others, the Int. Criminal Tribunal for the Former Yugoslavia has applied the "grave breaches" provisions of the Geneva Conventions, laws of war, and crimes against humanity, see 36 ILM 908 (1997).

Page 535 WAR AND THE USE OF FORCE BY STATES as was done in the case of Kuwait's annexation by Iraq on August 2, 1990, which was rescinded in March 1991.116Generally, the status of war is terminated through a peace treaty transforming the state of war into state of peace. The treaty settles all aspects of the post-war status between the parties, including the evacuation of the occupied territory, repatriation of POWs, boundaries, indemnities, etc., such as the Tashkent Pact of January 10, 1966, between India and Pakistan after the 1965 war, or the Shimla Agreement of 1973 after the 1971 war between the two countries, and the Camp David Agreement of 1979 between Israel and Egypt after the 1967 and 1973 wars. If the treaty is silent about property, the rule of uti possidetis (as you possess, you shall continue to possess) applies, i.e., that a State is entitled to retain such property which was in its actual control at the date of cessation of hostilities. The peace treaty also restores the normal relations between the parties, including diplomatic relations. Distinct from the peace treaty, sometimes there may be agreement to end the war, where not all the parties involved in the war or armed hostilities are States, such as the Four-Party Agreement of January 23, 1973, to End the War and Restoring Peace in Vietnam in which the Vietcong was a non-State entity.But the status of war can be terminated by less formal methods, which are as follows:1. By simple cessation of hostilities without any definite understanding on any aspect. This obviously leaves the future relations between the warring States to be governed by a treaty to be concluded later.2. By armistic agreement, which is aimed primarily to end the hostilities, but which can subsequently operate to terminate the status of war. However, its temporary nature does not rule out the eruption of hostilities again, but the armistic agreement can be succeeded by a peace treaty to terminate the status of war, like the General Armistic Agreement of November 11, 1918, after the First World War succeeded by the Treaty of Versailles.3. By unilateral declaration of the victorious power, as was done by the United States through a Presidential Proclamation in 1951, terminating the war with Germany.117The armed hostilities, short of war, can be terminated through less formal ways:1. The most common mode is through a cease fire, ordered by the United Nations Security Council or the General Assembly, such as the cease fire ordered in the case of Congo and the armed forces of Katanga on October 13, 1961; the Security Council resolution of September 20, 1965, demanding cease fire in the India-Pakistan conflict. The unilateral cease fire can also be declared as China did in the India-China border conflict in October 1962, or the United Kingdom's cease fire of June 13/14, 1982, in the Falklands Conflict of April-June 1982, which ended by surrender of Argentina garrisons. However, the cease fire demanded by the Security Council may not always be operative immediately, as was ordered by Resolution 598 of July 1987, in the Iran-Iraq war (1980-88), but was accepted only in August 1988. The cease fire prohibits the armed hostilities absolutely within a specified area for a stipulated time._____________________116 See SC Res. 686 of March 2, 1991.117 See Starke, op. cit. 5, at pp. 572-573.

Page 536 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 2. Through the conclusion of armistic agreement, the hostilities may be brought to an end temporarily. But unless it is succeeded by a peace treaty, there is always a threat of resumption of hostilities.3. Through a "truce". This method is less definitive than "armistic", and is sometimes used in the United Nations practice as was done in Palestine in May-June 1948.1184. Through an unconditional surrender of the enemy. For example, in the Indo-Pakistan war of 1971, the unconditional surrender of Pakistani armed forces on December 16, 1971 brought to an end the armed hostilities.5. By an Agreement for cessation of hostilities, such as the three Geneva Agreements of July 20, 1954, to end hostilities in Indo-China between the Government and Viet Minh forces involving Vietnam, Laos and Cambodia; suspension of hostilities in the Dominican Republic in May 1965.6. By a Joint Declaration to restore friendly and peaceful relations as in the case of the Tashkent Declaration of January 1966, between India-Pakistan after the 1965 armed hostilities, including the terms of withdrawal and return of the POWs.

Doctrine of postliminiumThe doctrine is imported into international law from Roman Law according to which the territory, person and property under the occupation of the enemy during the war, return either during the war or at its end to its original owner or on its being reconquered by the original sovereign.119 Legal status of the things in the occupied territory that existed originally is re-established. At the end of war, if the peace treaty does not contain any express provision to the contrary, the doctrine of post-liminium governs the rights of the parties other than to property. The property lawfully disposed off by the occupant power cannot be restored to its original position._____________________18 For the UN practice on cease-fires, armistics and truces, see Sydney D. Baily, Cease-fires, truces, and armistics in the practice of the United Nations Security Council, 71 AJIL 461-473 (1977).19 Oppenheim, op. cit. 4, at p. 617.

Page 537

CHAPTER 18

Law of Neutrality and Economic Warfare

I. “NEUTRALITY” IN GENERALThe term neutrality is derived from the Latin word “neuter”, which connotes a status of noninvolvement and impartiality. It is an impartial attitude of a State towards belligerents in a war. According to Oppenheim, neutrality is “the attitude of impartiality adopted by third States towards belligerents and recognised by belligerents, such attitude creating rights and duties between the impartial States and the belligerents”.1 Philip Jessup defines neutrality as “a legal status arising from the abstention of a State from all participation in a war between other States, the maintenance by it of an attitude of impartiality in its dealings with the belligerent States and the recognition of the latter of this abstention”. According to these definitions, the neutrality comprises the following elements: attitude of impartiality, recognition of neutrality by the belligerents, and creation of rights and duties between belligerents and neutrals.(i) The attitude of impartiality, i.e., the neutral State should keep an attitude of impartiality towards the belligerents. However, mere sympathy with a belligerent so long it is not expressed in an action violating the impartiality, or gifts and loans of money by private citizens of the neutral State to a belligerent, are not contrary to neutrality.(ii) Recognition of neutrality by the belligerents, i.e., the neutral’s attitude of impartiality must be recognised by the belligerents, which should acquiescence to neutrality declared by a State. In fact, a State which has declared its neutrality may demand that neither belligerent should force it to war. A belligerent which refuses to recognise a State as neutral violates international law.(iii) Creation of rights and duties between belligerents and neutrals, i.e., neutrality creates a special legal status involving a whole set of rights, duties and privileges for neutrals and belligerents alike under international law, which must be respected by them. This relationship exists so long as the status of war exists and with the termination of war or with the outbreak of war between neutrals and a belligerent. The neutral State may end its neutrality at its will by joining the war, or where the neutral State has been taken over by the belligerent.According to Dinstein, there are two rationales for neutrality: (i) the wish of neutral States to have guarantees that they will sustain minimal injury as a consequence of the hostilities, and (ii) assurance to belligerents that neutral States will not aid or abet any adversary belligerent.2_________________1 L. Oppenheim, International Law, Vol. II, 7th ed. (Longman, London), 1952, p. 653.2 Yoram Dinstein, The laws of neutrality, 14 Israel Yb of Human Rights 80-110, at p. 80 (1984).


Neutrality is different from “neutralisation” which is a permanent status conferred on a State under a treaty or an agreement, for example, the Treaty of 1815, guaranteeing Switzerland’s neutrality and that of Belgium (1831). In “neutralisation”, the big powers guarantee the independence and territorial integrity of the neutralised State permanently, with the condition that the State concerned will never take up arms against another State except to defend itself and will never enter into any treaty of alliance which may compromise its impartiality or lead it into war.It is desirable that a State wishing to remain neutral should make a notification to this effect. At the outbreak of the Second World War, in September 1939, many nations announced and communicated their neutrality to the belligerents. But a special assertion of neutrality is not necessary and the international law does not impose any obligation to do so.Neutrality has been categorised as follows:

Perfect and imperfect neutralityWhen a neutral State, neither actively nor passively, neither directly or indirectly, favours either belligerent, it is a perfect neutrality. Any favour in any form amounts to imperfect neutrality. However, mere sympathy for a belligerent will not affect perfect neutrality.

Absolute and qualified neutralityAbsolute neutrality connotes complete impartiality of a State under which warring States can fight effectively without affecting the territorial integrity and economic activities of the nonbelligerents.3 However, when a State remains neutral on the whole, but has been giving assistance to a belligerent directly or indirectly as a part of a treaty obligation, it is a qualified neutrality.

II. DEVELOPMENT OF THE LAW OF NEUTRALITYThe institution of “neutrality” always existed along with war from the period of antiquity. There were clear rules of conduct to regulate relations between belligerents and neutrals, like the rules of nutrality which existed in India during the Mauryan reign in 400 BC.4 However, their contents were never precisely laid down, and changed according to the political imperatives of States. In the modem sense of the term, the concept of neutrality developed in the middle ages, mainly through bilateral treaties, wherein parties to the treaty would undertake not to side with a belligerent in war against a party to the treaty. These treaties in no way devolved neutral rights and duties on the non-participants as understood in the modem concept of neutrality. However, the concept of “neutrality” could not be developed as an institution until the end of the seventeenth century, but it was still not evolved in a systematic manner. During the eighteenth century, after the writings of Bynkershoek and Vattel, its contents were precisely laid down and the right of States to remain neutral towards belligerents in a war and the belligerents duty to respect neutral’s territory were well recognised._________________3 Gary L. Moris, International Law (Press of America, New York), 1984, p. 332.

4 See K.R.R. Shastry, The concept of neutrality in international law, SCJ, p. 113 (1959). According to the author, in ancient India, three different conditions of international law were clearly recognised, viz., war, peace and neutrality.

Page 539 LAW OF NEUTRALITY AND ECONOMIC WARFARE

Much of the impetus for its growth came in the nineteenth century, in which the United States played an important role. In the Napoleonic Wars (1793-1818), it refused to allow its territory to be used for the equipping or arming of vessels on behalf of the belligerents, and its citizens were not allowed to be recruited in the armed forces of the belligerents. Many judgments rendered by the British Prize Court, under Lord Stowell, also helped in giving content to the emerging law on neutrality. Rules were evolved to regulate commerce between neutrals and belligerents during war. During the American civil war (1862), several disputes pertaining to neutrality also helped in the development of the law on neutrality. Out of these, the pronouncement in the Alabama Claims Arbitration (1872)5 was a landmark, which laid down the Three Rules of Washington on neutrality, and the further development of the law was based on this. The permanent neutralisation of Belgium and Switzerland in the nineteenth century also contributed significantly in its development. The limited wars fought during this period further helped in laying down the rules of neutrality. These rules were also incorporated in certain international instruments. The Paris Declaration, 1856, provided that the neutral goods, not contraband of war, shipped on enemy vessel shall not be appropriated. At the Hague Conference, 1907, two conventions dealt with this subject. While Convention V was related to the Rights and Duties of Neutral Powers and Persons in War on Land, Convention XIII was in relation to Rights and Duties of Neutral Powers in Naval War. Later, the London Declaration of 1909 related to naval war also made important provisions (viz., Arts. 48, 56 and 57) relating to neutrality, but the Declaration could not become operative due to non-ratification by important naval powers.These rules, however, were violated with great impunity during the two world wars, which clearly brought out the inadequacy of these rules and put under doubt their very basis. Neutrality is considered to be justifiable because: (a) it helps in localising the war; (b) it discourages war by enabling States which do not want to be embroiled into war to keep out; and (c) it helps in regularising international relations. During the First World War the United States, which remained neutral till 1917, was forced into war when its neutrality was violated. The Second World War also proved the fallacies of the rational basis of neutrality when one neutral State after another was “rolled up” (like Norway, Denmark, Holland and Belgium) by Germany, and it did not remain localised. Similarly, both the Soviet Union and the United States, which had declared their neutrality, were attacked by the Axis Powers, Germany and Japan respectively, and thus, the war spread into a total war. The traditional concept of neutrality also proved contrary to the rule of law in international relations, as it happened under the Covenant of League of Nations.After Germany overran many West European nations in June 1940, the United States, whichhad declared its neutrality by an Act of Congress in 1937, in an attempt to help Great Britain and her allies in the war, and to halt further victories of Germany and to thwart its ambition to become the world power, passed the Land Lease Act of March 1941 under which it armed the Great Britain and patrolled dangerous sea-lanes from the enemy. This affected the traditional rights and duties of the neutrals profoundly. The disregard to the neutrals’ rights by the United States after becoming the belligerent by bringing in

pressure on European neutrals to withhold supplies from the Axis Powers further affected the traditional concept of neutrality._________________5 See Moore, 1 International Arbitrations, p. 495.


A. Neutrality and the Covenant of the League of NationsThe Covenant of the League of Nations brought about some fundamental changes in the traditional law of neutrality. It envisaged two types of war: (i) those which were permitted under the Covenant and (ii) those which were not so permitted. As to the first kind, after exhausting measures of peaceful settlement in accordance with the Covenant (Arts. 12-15), if a State resorted to war, other members of the League could remain neutral in the traditional sense of the term and the Covenant did not impose any obligation upon them. But the war resorted by a State in disregard of the obligations of the Covenant was considered illegal and the State doing so was “deemed to have committed an act of war against all other Members of the League” (Art. 16(1)). This imposed an obligation upon members to give assistance to the League, and they were thus precluded to adopt an attitude of neutrality. However, even though the concept of neutrality was affected by the Covenant, it was not totally abolished and even in the wars fought in disregard of the Covenant, neutrality remained operative because of the absence of any independent body to determine whether a state of war existed, and the subjective judgment of the States that the war was fought in disregard of the Covenant. States generally adopted an attitude to keep out of war in general, a policy of non-involvement, like France and Great Britain had towards the Spanish civil war in 1936-37, or the declared neutrality of Argentina, Chile and Peru (all members of the League) towards the Chaco war between Bolivia and Paraguay in 1933. The Allied Governments declared their neutrality collectively in the Greco-Turkish war of 1921, and Germany remained neutral in the Russia-Polish war of 1920. Neutrality also remained operative amongst and in relation to non-members, such as the United States, Japan, Germany and Italy, as well as the wars not specifically forbidden under the Covenant.6The 1928 Kellog-Briand Pact, which outlawed the war as a national policy, did not have any specific provision on neutrality. But the States were free to remain neutral in the traditional sense in the wars fought among the parties and non-parties of the Pact, or waged in self-defence. Thus, the United States proclaimed its neutrality in 1937, before the outbreak of the Second World War, but entered the war on December 7, 1941, after an attack on Pearl Harbour. Nevertheless, prior to that it actively sided with Great Britain by providing it all the logistic support to wage war against Germany, by passing the Land Lease Act in March 1941. The “total war” waged could not protect the neutrals’ rights and their territory from the belligerents. But even in this scenario, Sweden, Switzerland and Spain succeeded in keeping their neutrality intact.

B. Neutrality and the United Nations CharterThe United Nations Charter does not distinguish between permissible and impermissible war as was the case under the League Covenant, but it prohibits the use of force absolutely (Art. 2(4)), except for self-defence (Art. 51). Though it does not have any precise provision on neutrality, but the Charter has greatly affected the concept of neutrality.7 The absolute_________________6 J. Stone, Legal Controls of International Conflict (Stevens & Sons Ltd., London), 1959, p. 381.

7 Fenwick opines that the Charter has marked the end of neutrality as a legal system, see C.G. Fenwick, International Law, 3rd ed. (George Allen & Unwin, London), 1948, p. 727. On the subject of neutrality under the Charter, see W.W. Norton in 17 Harvard ILJ, 249-252, 309-311 (1976); Y. Dinstein, op. cit. 2, at p. 81.


right of neutrality does not exist any more. The collective security system as envisaged under Chapter VII of the Charter and the responsibility of the Security Council to deal with all acts of aggression, threats and breaches of peace do not allow a State to take an independent action. The members are bound by the decisions of the Security Council (Art. 25) hence they cannot remain impartial when the Security Council has decided to take an action. The Charter envisages two courses of action for the members in a situation of war: (1) If a State is an aggressor, then the preventive or enforcement action can be taken against it by the United Nations; (2) If it is subjected to aggression, it should be assisted by the United Nations under Art. 51.Article 2(5) enjoins members to give every assistance to the United Nations in any action taken under the Charter, and refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action. Articles 41, 42 and 43 empower the Security Council to decide upon the enforcement measures and ask the members to apply such measures. Thus, theoretically no member of the United Nations can resist the call of the Security Council and opt to remain neutral if the Security Council decides to take action against an aggressor State. Nevertheless, the neutrality has not been completely abolished under the United Nations system. The Charter contains certain “escape clauses” to evade the rigours of enforcement action decisions. Under Art. 48(1), even if the Security Council has decided to take enforcement action, it may call upon only some of the members to carry out the decision. If the carrying out of an enforcement action causes special economic problems to a State, it may be exempted to do so by the Security Council (Art. 50).8 In such an eventuality, members enjoy the qualified neutrality, which means that they are under an obligation not to assist the belligerent subjected to enforcement action, but assist other members in carrying out the measures decided by the Security Council (Art. 49). The State subjected to armed aggression has a right of self-defence till the Security Council acts in the matter (Art. 51), and in the meantime other States may remain neutral.Strictly speaking, a State can exercise neutrality only within the limits of the Charter and for issues and conflicts not covered under the Charter. It does not affect neutrality in wars between members and non-members or between non-members, because these obligations primarily bind the members of the United Nations (Art. 2(2)), although the non-members are also bound to act in accordance with the principles of the Charter so far as necessary to maintain international peace and security (Art. 2 (6)). However, where the Security Council has taken the decision for enforcement action in the case of non-members, the members nations are bound to comply with its decision. The Security Council took such a decision in the case of the Korean conflict (1950-53), even though North Korea and South Korea were not the members of the United Nations. Even the decision for enforcement measure is binding on the non-members (cf. Art. 50), but in the absence of a specific direction to comply with it, they may adopt an attitude of neutrality.If the Security Council is unable to take a decision because of the exercise of “veto” by any permanent member, with the result that no enforcement or preventive action is taken by_________________

8 In the Rhodesia case, Zambia was exempted to carry out Res. 232 (1966) SCOR 21st yr., Resolution and Decisions, p. 7, imposing selective mandatory economic sanctions against the illegal white minority regime. In the case of Iraq-Kuwait conflict, India, Pakistan, Philippines were allowed to provide humanitarian assistance to their nationals, see SC Res. 666 of Sept. 13. 1990, and Res. 669 of Sept. 24, 1990.


the Security Council, in that case, member States may remain absolutely neutral towards the belligerents. Thus, the traditional neutrality still survives under the Charter by force of logic and the compulsion of international politics.There are certain post-war treaties, particularly military pacts, which have also restricted the scope of neutrality, like NATO, 1949, and ANZUS, 1951 (Pacific Security Pact between Australia, New Zealand and the USA), wherein the States have renounced their neutrality for the parties to the treaty, i.e., if one of them is subjected to aggression, other States parties will side with it.

III. RIGHTS AND DUTIES OF NEUTRAL AND BELLIGERENT STATES‘Neutrality’ does not mean merely the non-involvement of States in a war, but it comprises a bundle of rights and duties, correlating with the duties and rights of the belligerents in a war. These rights and duties are incorporated in the Hague Conventions V and XIII of 1907. They are the duties of abstention, prevention and acquiescence.A. Duties of Neutrals1. Duty of abstentionA neutral State must abstain from rendering any assistance, directly or indirectly, to any belligerent State. It must not lend money or sell arms and ammunition to either belligerent. The sale of public ships, if capable of rendering any assistance in war, is forbidden. The sheltering or refuelling of men-of-war beyond what is necessary to get them to their nearest home port is similarly not permitted (Art. 19 of Convention XIII).9 But the gifts or loans of money by private citizens of the neutral State to the belligerent, or other similar transactions, or individual enlistment by private citizens with the belligerent, are not prohibited.102. Duty of preventionIt is the duty of the neutral State to prevent the use of its territory for activities hostile to either belligerent. The activities such as the enlistment of troops in the interest of a belligerent (Art.4 of Convention V), preparation for war-like activities or war measures like installing of wireless station or any apparatus exclusively to be used for military purpose (Art. 3 of Convention V) must be prevented.11_________________9 See Oppenheim, op. cit. 1, at p. 675.10 However, the increasing State controls have affected the distinction between a State and its citizens such as the control of export of arms and ammunition by individuals have consequent bearings on the concept of neutrality.11 The Harvard Draft Convention on Rights and Duties of Neutral State in Naval and Aerial Warfare also provided that the neutral State must prevent the flight from its territory of any aircraft intended to engage in hostile operations against a belligerent or which is intended for services of a military character for a belligerent.


However, to allow passage of men-of-war through the maritime belt does not compromise neutrality (Art. X of Convention XIII). Belligerent’s warships have a right of passage through neutral territorial waters. But the passage through the neutral waters should be innocent and right must not be abused. They cannot use neutral ports or waters as a base for naval operations against the belligerent (Art. 5, Convention XIII). They may, for the purposes of refuelling, repairs, etc., take refuse in neutral ports, (not more than three ships at a time) for not more than 24 hours, except for sufficient reasons, like weather or urgent repairs. If the ships over-stay, the crew can be interned. The Altmark case12 illustrates the limits of the right of the neutral State to permit the passage of belligerent men-of-war through its territorial waters.The Altmark was a German auxiliary vessel, carrying over 300 British officers and sailors taken prisoners from several British merchant vessels sunk by a German armoured ship. On February 14, 1940, it entered Norwegian waters on her way from South America to Germany. The permission to navigate through Norwegian territorial waters was granted by the Norwegian authorities after verifying the vessel. Soon after that, British forces sought permission to search Altmark in order to release the British prisoners, which was refused. On February 16, 1940, the British destroyer, Coseck, entered the Norwegian waters where the Altmark had taken refuse and freed all the prisoners and brought them to England. Norway protested the British action as in violation of Norwegian neutrality. To this, the British Government alleged that Norway acted partially by allowing Altmark a far deeper entrance into her waters to enable it to hide prisoners, forcing Britain to resort to self-help on humanitarian grounds. It also contended that the presence of British prisoners-of-war on board the Altmark exempted it from the rule of free passage through territorial waters because prisoners-of-war become free on neutral territory.In cases like Altmark, a prolonged use of territorial waters of a neutral State, which is not due to force majeure, by the men-of-war or their auxiliaries if not dictated by normal requirements of navigation, but used for war-like preparations or to escape from the forces of other belligerent, constitute illegal use of neutral territory, which a neutral is obliged to prevent under international law by means at its disposal.13 Failing to do so would entitle the other belligerent to resort to self-help.

3. Duty of acquiescenceThe neutral State must acquiesce to the legitimate rights of the belligerent even if it sustains certain incidental damage. For example, the neutral State should not oppose the belligerent’s right of search and seizure of a ship flying its flag if it was carrying contrabands, and adjudicate about it through Prize Courts. The non-acquiescence would be deemed to be violative of neutrality.Any violation of these duties, if it causes damage to the other party, would make the party causing damage liable, who must then pay the compensation to the aggrieved party.14 But these duties are not absolute and a neutral State is only bound to execute them by means at its disposal. A neutral State cannot ensure to perform these duties and in case a powerful belligerent violates_________________

12 Referred in Oppenheim, op.cit. 1, at p. 693.13 Ibid., at pp. 694-695.14 Cf. Alabama Claims Arbitration (1872), op. cit. 5.


its neutrality and thereby causes damage to the other belligerent, the neutral State is not liable to the injured belligerent.B. Duties of Belligerents1. AbstentionIt is the duty of a belligerent not to direct or commit war-like acts against the neutral territory or its air space, or use the neutral territory for war-like preparations, or to interfere with the neutral’s legitimate intercourse with the enemy. There is a corresponding right of neutral State of the inviolability of its territory and its territorial integrity must be respected. Belligerents cannot direct or commit war-like or hostile acts within the neutral territory or jurisdiction. Article 2 of the Hague Convention XIII prohibits acts of hostility involving capture, visit and search in neutral waters. However, where the neutral’s territory is being violated by one of the belligerents and the neutral State does not take any action against that belligerent or it is too weak to take that action, the other belligerent is entitled to intervene in the neutral State.2. PreventionThe belligerent is under a duty to prevent the ill-treatment of neutral subjects or damage to neutral property in occupied territory.3. AcquiescenceA belligerent State must acquiesce in certain acts of the neutral State, such as internment of such members of its armed forces who have taken refuge in neutral territory or granting of temporary asylum to enemy warships for a specific purpose or to carry out necessary repairs. Otherwise, the enemy warship cannot stay for more than 24 hours in the neutral territorial waters, breach of which will be considered an act violative of neutrality,C. Un-neutral ServiceThe doctrine of “unneutral service” relates to the duties of neutral citizens in maritime warfare, which is different from the “doctrine of contraband”. Traditionally, it relates to transport of members of the enemy armed forces (now scientists also), carriage of dispatches to the enemy (intelligence reports, etc.), taking a direct part in hostilities, operating under the enemy’s charter, and the transmission of intelligence in the interests of the enemy.15 These services are rendered by private individuals of a neutral State, which can be used in direct service of the enemy in contrast to the contrabands. Presently, the doctrine is not confined to ships alone, but has been extended to aircrafts as well. Thus, unneutral service consists in carriage by neutral vessels_________________15 See Arts. 45-47 of the Declaration of London, 1909. Under. Art. 11 of the Hague Convention XIII, the licensed pilots of a neutral State can be employed. No transport services are permitted in the context of neutral’s duty of impartiality, but private individuals are permitted.


or aircrafts of certain persons and dispatches for the enemy.16 These acts may advance the interests of one belligerent at the cost of its opponent. This gives the injured State the right to stop the vessel or aircrafts and remove certain persons carried improperly. The State is also empowered to capture the vessel or its cargo and condemn it through the proceedings of the Prize Court.17 It can also visit and search the neutral vessel for this purpose.D. Rights of BelligerentsApart from the above-mentioned duties of the neutrals and the correlative rights of the belligerents, there are certain other rights and privileges of the belligerent States.

1. Right of angaryUnder customary international law, during war, a belligerent enjoys the right of angary or “jus angariae”, i.e., the right to requisition neutral ships for military purposes, and to compel their crew to render services of enemy character, such as transport of troops, munitions and provisions to certain places on payment of freight in advance. Under the modem right of angary, a belligerent can requisition or destroy or lay embargo on neutral ships or seize goods physically present within its jurisdiction (for example, ships anchored in the harbour) for military purposes in case of necessity and subject to the payment of compensation.18 The question of necessity and the amount of compensation are decided by the prize courts. Full compensation will be paid if ships and goods were brought there involuntarily. If they have been brought voluntarily, reasonable compensation will be paid to the owner.19

2. Right to visit and searchA belligerent has the right to visit and search the neutral vessel to ascertain whether it is sailing to perform unneutral service or carrying contraband for the enemy. This right can only be exercised by the military aircrafts and warships in the maritime belt of either belligerent or on the open seas. It cannot be exercised in the territorial waters of neutrals. If the merchantman of a neutral vessel resists this right, the vessel may be captured at once and condemned to the Prize Court. According to Art. 63 of the London Declaration, resistance to the right of visit, search and capture results into confiscation, since it is tantamount to enemy character of the vessel. The prize court decides about the legality of the capture.

IV. ECONOMIC WARFAREDuring war, one of the aims of the belligerent is to weaken its enemy by exerting economic pressure. This can be done by stopping the inflow of all vital goods, helpful to the enemy in_________________16 See Oppenheim, op. cit. 1, at p. 832; Stone, op. cit. 6, at pp. 511-512, Ch. XVIII.17 Stone, ibid., at p. 512.18 Whether the right may be exercised on the high sea or in occupied territory is a disputed issue.

19 See H. Lauterpacht, Angary and requisition of neutral property, 27 BYblL 455 (1950); J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London), 1989, p. 584.


waging the war. This requires stopping or limiting the supply of goods from neutrals. Traditionally, this purpose is achieved through the rules of contraband and blockade, which regulate the neutral shipping and trading relations with belligerents. New dimensions were added to these measures during the two world wars so as to effectively weaken the financial capabilities of the enemy. They were drastically modified and expanded during these wars.

A. ContrabandThe term “contraband” comes from the Italian word “contrabando”, which is derived from the Latin words “contra” and “bannum” or “bandum”, which means “in defiance of an injunction”. During war, a belligerent designates certain goods as prohibited, which cannot be carried to the enemy because they may help the enemy in the war. The essentials of contrabands are two: the kinds of goods and their destination.

1. Kinds of the goodsThe Declaration of London, 1909, from the war point of view, designated goods as absolute contraband, conditional or relative contraband and non-contraband or “free” goods. The articles exclusively used for war or clearly of war-like or military character, are absolute contraband, such as arms and ammunition, gun mountings, military clothing, camp equipment, as well as military stores, naval stores, etc. (Arts. 22 and 23 of the London Declaration). Goods which can be used for war and peace purposes alike are relative or conditional contraband, for example, coal, fuel, gold, silver, food, railway rolling stock. Such articles, if intercepted on their way to the enemy power or its forces, are liable to seizure and will be considered as absolute contraband. The articles which are not susceptible to use in the war should never be declared contraband and they are termed as “free goods”, such as fancy goods, soap, colours, paint, etc.Under the London Declaration, an agreed list pertaining to each category was to be drawn up, but the Declaration remained unratified. Hence, there is no general agreement among States regarding different categories of contrabands. State practice also does not throw any light in the matter of contraband. This leaves States free to bring out their lists of contrabands. Nevertheless, goods which are universally recognised as war-like materials are per se absolute contrabands. But the distinction between absolute and relative contrabands has not been considered of any value in the light of the experience of the two world wars. During these wars, out of expediency and policy, belligerents declared contrabands even those goods which were traditionally recognised as non-contrabands. These wars were total wars and the concept of “total war” hardly leaves any article outside the purview of contraband, because of the range of equipments required for waging a modern war and the scientific and technological developments which have revolutionised the production and use of war materials. The experience from these wars have made the old rules and usages as to contraband obsolete, and States for the sake of self-preservation have been designating every conceivable article or material as contraband for which they make official announcement.20_________________

20 During the Indo-Pak war in December 1971, both India and Pakistan officially announced their list of contrabands. For the text of these declarations, see 66 AJIL 386-387 (1972).


2. Destination of the goodsIrrespective of the nature of the goods, they are not considered contrabands unless they have the enemy destination. The absolute contrabands, if sent to the government of an enemy country or its military forces, or to persons in a neutral country known to supply them to the enemy, have the enemy destination and are liable to seizure. According to Art. 30 of the London Declaration, the goods will be deemed to have hostile destination if sent to enemy territory, or enemy controlled territory, or to armed forces of the enemy. However, such hostile destination is rebuttable (Art. 34). The hostile destination is deemed proved: (i) when the goods are consigned to enemy ports or its armed forces; or (ii) when the vessel calls upon or touches the enemy ports or meets the enemy before reaching the neutral port of the consignment (Art. 31). In such cases, the goods are liable to be captured as contrabands.

B. Doctrine of Continuous Voyage or Continuous TransportationNormally, goods sent to a neutral State are not treated as contrabands. But where their ultimate or ulterior destination is the enemy territory, they are deemed to have the hostile destination and are liable to capture. In certain cases, to avoid interception of goods at sea, the voyage is split into two and goods are first sent to citizens in a neutral State adjacent to enemy territory and then they are resold or transported to the enemy. Apparently, the destination of goods is shown to be neutral port or territory which, in fact, is not the real destination but the intermediate port of the journey where the goods are unloaded and reloaded to be sent to the enemy port or territory, showing it as a separate voyage. However, in such cases, the doctrine of continuous voyage or continuous transportation is made applicable.In continuous voyage, the ship breaks its journey at a neutral port, and after unloading and reloading, proceeds for an enemy territory. In continuous transportation, the goods are unloaded at the neutral port from where they are carried to enemy territory through another ship (or by road or air). In this, the whole voyage, which is ostensibly destined for a neutral port and then directed to some ulterior and hostile destination, i.e., enemy territory is considered to be one transportation from the time the ship leaves its home port, and all the consequences of hostile destination are attached thereto. Accordingly, if the goods are contrabands, they are liable to seizure. The main objective behind this doctrine is to prevent the carriage of contraband goods to enemy State by a belligerent as a measure of self-preservation. This is also consonant with the political and economic changes in the world.The doctrine was systematically applied by the United States Supreme Court and other courts during the American Civil War in cases of breach of blockade or of contraband. But it was expounded in classical terms in the practice of prize courts of Great Britain, particularly by Lord Stowell.21 However, the doctrine did not receive much support from scholars and there was no general agreement or support for it prior to the First World War. Nevertheless, the doctrine was applied in the case of Bundesrath (1900) during the South African war.22 In this case, three German vessels, the Bundesrath, Harzog and General were sailing from German neutral ports to the Portuguese neutral ports when they were intercepted by British cruisers on the suspicion

_________________21 See the case of The Maria (1805) 5 Ch. Rob. 365.22 See Oppenheim, op. cit. I, at pp. 819-820.


of carrying contraband. Germany demanded their release by contending that they were sailing from one neutral port to another, so there was no carriage of contraband. But Great Britain rejected the contention and maintained that the ultimate destination of the goods was an enemy territory, hence they were contraband and could be seized, though they were bound for a neutral port (the vessels were subsequently released after being confirmed that the goods were not contraband).In the unratified London Declaration, 1909, the doctrine was confined to absolute contraband. But during the First World War, the doctrine was made applicable to conditional contraband also as was done in The Kim.23 The ship was carrying rubber (absolute contraband) and hides (conditional contraband) from New York to Copenhagen, a neutral port, along with three Norwegian and one Swedish ships. The ship was seized on the high seas by British ships in November 1914, on the ground that the ultimate destination of the ship and its cargoes was Germany, the enemy State. The Prize Court held that Copenhagen was not the real bona fide place of delivery of the cargoes, but that the ships were on their way, at the time of capture, to German territory as their actual and real destination, and held cargoes as the lawful prize. The doctrine was widely applied by other belligerents also during the War.In the British practice, the doctrine has been made applicable on the following two grounds:1. The contraband goods carried to a neutral country may be seized on their way if their ultimate destination is an enemy territory, after they have been converted into manufactured goods at the neutral territory.2. If the consignee has purchased the goods for delivery to the enemy or is known to have acted as an enemy agent, notwithstanding the shipper’s innocence of the hostile destination, the goods are liable to confiscation.The relevance of the doctrine is more pertinent in the cases of “total war” and is questionable in the context of the UN Charter under which the use of force is authorised as a collective action by the Security Council, and the action against the neutral States does not exist in principle.

1. Confiscation and condemnation of contrabandInternational law permits a belligerent to seize the contraband goods, sometimes along with the vessel carrying the contraband cargo, in the open sea if carried to an enemy destination or the belligerent’s own territorial waters, but it cannot be captured in the territorial waters of third States. However, the right of seizure is not an absolute right but requires confirmation by Prize Court established by that State under its municipal law. International law requires belligerents to set up Prize Courts during war time to decide about the legality of the capture (ship and cargo). If the Prize Court finds the seizure valid, the ship or cargo is declared to be a “good prize” of the war. A decree of condemnation is issued to this effect, which is accompanied by an order of sale, under which the purchaser acquires a right in rem in that property, valid internationally. But the seized goods or ships, while in the custody of Prize Court and before any final decision has been taken as to their condemnation or release, may be_________________

23 [1915], 1 B. and CPC at p. 481.


requisitioned by the State for war purposes by executing an undertaking with the court, subjecting it to the final decision of the Court.The Prize Courts are municipal courts, although they generally apply international law. But if there will be any conflict between the rule of international law and the municipal statute, the statute will prevail.24 Every State is bound to make regulations, statutes or rules to govern the operation of Prize Courts. Their structure differs in various countries. In some countries, they are mixed tribunals consisting of judges and administrative officials, in others they are exclusively judicial bodies.In India, the High Courts of Bombay, Calcutta and Madras, which had the Admiralty jurisdiction, were declared Prize Courts under the Letters of Patent of 1882, in accordance with the Naval Prize Act, 1864. The Prize Courts Act, 1894, governed their procedure, which has been now replaced by the Naval and Aircraft Prize Act, 1971. In accordance with the Act, the Central Government is empowered to constitute Prize Courts. A Prize Court may of consist one or more members and shall have the jurisdiction and power of condemnation in respect of each prize. If a matter is not specifically regulated by the 1971 Act, the Prize Court shall apply the principles of international law (Sec. 4(4)). Once the property captured by the armed forces during war is condemned by the Prize Court as a “good prize”, it becomes the exclusive property of the Central Government (Sec. 13(1)). If a person is aggrieved by the order of the Prize Court, he can make an appeal to the Central Government within 90 days against such an order or decree of the Prize Court (Sec. 6(1)).

C. BlockadeAs a war measure, the belligerent resorts to blockade to restrict the blockaded State’s intercourse with the outside world. It is different from “seize” which is merely to take possession of a place, but blockade is the besieging of the place and all intercourse by sea between the coast and the world at large is intercepted. Under blockade, the approach to the enemy coast or part of it is blockaded by the men-of-war to prevent ingress and egress of vessels or aircrafts of all nations. A legally enforceable blockade has the following essentials:1. It should be carried out by men-of-war during war time; therefore, it is different from pacific blockade.252. It is applied against the whole or part of the coast of the enemy. Only enemy ports and fortified ports can be blockaded. But in doing so, the interests of the neutral States should be protected. An enemy port at the mouth of a river which also gives access to neutral territory may not be blockaded.26 Similarly, enemy ports at the mouth of international rivers, straits and canals cannot be blockaded, except under treaty provisions. Thus, only a national river, strait or canal can be blockaded, which lies wholly from its source to mouth within the territory of an enemy State._________________24 See The Zamora (1916) 2 AC 77, where the Privy Council held that the British Prize Court had to apply international law of prize even though it conflicted with an Order-in-Council, but the Prize Court would be bound by the British statute, ibid., at p. 93.

25 For pacific blockade see supra Chapter 16, p. 483.26 Stone, op. cit. 6, at p. 494.


3. It should prevent ingress and egress of all ships and aircrafts. However, sometimes only ingress or egress is prevented. It is the belligerent’s right to prevent neutral men-of-war from passing through the line of blockade.The aim of blockade is to weaken the enemy economically and financially by stopping supplies of essential items necessary to wage the war. The blockade can be strategic or commercial. It is strategic if directed against the enemy coast and aimed at cutting supplies from enemy forces on shore. It is commercial if directed to cut off the coast of the enemy from trade and intercourse with the outside world. In other words, commercial blockade is peaceful and no military operation takes place on the shore of the enemy.The institution of blockade developed with the law of nations and neutrality. In fact, blockade is a manifestation of restriction on a neutral’s freedom of trade with belligerents. It was successfully applied by Holland against Spain in 1584 and 1630. But no precise rules existed on the matter before the First World War, except the Declaration of Paris, 1856, and the Declaration of London, 1909 (Arts. 1-21). These instruments were declaratory of customary international law which lay down certain conditions for blockade.

(i) Declaration and notificationBlockade is established only after the belligerent government makes a declaration to this effect and notifies the neutral States. The naval commander can also make such a declaration under the authority of its government (Art. 9, London Declaration). In this declaration, the geographical range of the blockaded area must be clearly specified. It must also lay down the grace period for the ships of neutral States, already in that area, to leave. Without specifying such a period, the neutral vessels should be allowed to pass out freely (Art. 16).

(ii) ImpartialityBlockade as a means of warfare should be universal, i.e., it should be applied impartially to the vessels of all nations (Art. 5, London Declaration). A belligerent may licence certain vessels for particular purpose, viz., men-of-war of all neutral nations to proceed to the blockaded area, but it cannot licence traffic in favour of particular neutrals or their allies.

(iii) EffectivenessTo be binding, blockade must be effective. According to Art. 3 of the Declaration of Paris, 1856, blockade is effective if it is maintained by force sufficient to prevent access to the coast. Blockade which is not effective will be merely a “paper blockade”. But the “effectiveness” is a matter of fact and is to be adjudged in each case, which need not to be in absolute terms. It is effective if it renders any violation of blockade, or attempt to ingress or egress risky.27 Hence, it is not dependent on the size of the blockading force and the distance at which it operates from the blockaded coast, provided it fulfils the test of material danger to neutral vessel. About_________________27 Ibid., at p. 496.