PUBLIC INTERNATIONAL LAW
PUBLIC
INTERNATIONAL LAW
Guess Paper
Unit - 1
Question:-
i) Discuss the nature and basis
of International Law which source has contributed to the development of
International Law? OR
ii) Whether the International Law is law in the proper sense of the term.
Give reasons for your answer. OR
iii) International Law is the
vanishing point of jurisprudences. Explain.
iv) Discuss the weaknesses of International Law. Or
International Law is a weak Law.
v) International Law and Municipal Laws are
same or not. Explain.
Unit-II
Question :-2.(i) What do you understand by recognition of a state?
What are the theories of recognition?
What are the legal effects of recognition and consequences of
non-recognition of a state? Discuss.
(ii) What is the difference
between de facto and de jure recognition.
(iii) Discuss the
conditional recognition.
(iv) What is meant by
Intervention? Under what circumstances intervention by one state in the affairs
of another state considered justified?
Unit-III
Question:-3 (i) What are the categories of diplomatic agents
? What immunities do diplomat enjoy and how the immunities are lost?
(ii) Define Treaty. What do
you understand by ratification of a Treaty? Explain? (iii) Define Extradition?
Explain the essential conditions for extradition? For which crime extradition
cannot be claimed. Discussed
(iv) Define Asylum, its
essentials and types of asylum. What are the differences between extra territorial
asylum and territorial asylum?
Unit- IV
Question :-4 (i) (v)
Critically examine the various amicable and force-able means of settlement of
International disputes between the states.
(ii) Define war. What are
the legal characteristics and effects of a War?
(iii) Discuss the rights and
duties of neutral state and belligerent states.
(iv) Define Prize Court.
(v) Distinguish between
Neutrality and Neutralization.
(vi) Discuss Blockade and
right of Angry.
Write short note on the followings:-
1.
What
do you mean by ex acquo ET bonod.
2.
What
is ‘double veto’.
3.
Write
about ‘jus cogens ‘.
4.
Difference
between Retorsion and Reprisal.
5.
What
do you mean by Blockade?
6.
What
is meant by contraband?
7.
Explain
the doctrine of Pacta sunt servanda.
8.
What
is drago Doctrine?
9.
Explain
Political crime in respect of extradition.
10.
Discuss
Monroe Doctrine.
11.
Write
a short note on Hijacking.
Discuss the sources of
International Law Explain them.
Introduction:-The
term sources refer to methods or procedure by which international law is
created. A distinction is made between the formal sources and material sources
of law. The formal, legal and direct sources consist of the acts or thing which
gives that the content its binding character as law. The material sources
provide evidence of the existence. The sources of international law may be
classified into five categories:- 1.International
Conventions: - In the modern period international treaties are the most
important source of international law. This is because the reason that states
have found in this sources. Article 2
of the Vienna Convention on the law
of treaties 1969, a treaty is agreements whereby two or more states establish
or seek to establish relationship between them govern by international law. Prof. Schwarzenbergr, “Treaties are
agreements between subjects of international law creating a binding obligation
in international law.” International
treaties may be of the two types: - a)
Law making treaties:- these are the direct source of international law and
the development of these treaties was changing of the circumstances. Law making
treaties perform the same functions in the international field as legislation
does in the state field. b) Treaty
contracts:-As compared to law making treaties treaty contracts are entered
into by two or more States. This may happen when a similar rule is incorporated
in a number of treaty contracts.
2.International
Customs:-International customs have been regarded as one of
the prominent sources of international law for a long time. However even today
it is regarded as one of the important sources of international law. Usage is
an international habit which has yet not received the force of law. STRAKE
Says, “Usage represents the twilight stage of custom, custom begins where
usage ends. Usage is an international habit of action that has yet not received
full legal attestation.” A custom in the intendment of law is such usage as
that obtained the Force of law
i.e.:- It is not necessary that the usage should always precede a custom. ii) In certain cases usage gives rise to
international customary law. iii)
When a usage is combined with a rule of customary law exists. iv) It is an important matter to see as
to how international custom will be applied in international law. Refer a case
of West Rand Central Gold Mining
Compy.v/s R-1905, court held that for a valid international customs it is
necessary that it should be roved by satisfactory evidence that the custom is
of such nature which may receive general consent of the States and no civilized
state shall oppose it. Porugal v/s India-1960, ICJ pointed out that when in
regard to any matter or practice, two states follow it repeatedly for a long
time, it becomes a binding customary rule. Still other resolutions amount to an
interpretation of the rules and principles which he charter already contains
and which are in binding upon States.
3.
General Principles of Law recognised by civilized States: -
Art.38 of ICJ provides that the
Statute of International Court of Justice lists general principles of law
recognised by civilised States as the third source of international law. In the
modern period it has become an important source. This source helps
international law o adapt itself in accordance with the changing time and
circumstances. On the basis of this view the general principle of law
recognised by civilized States have emerged as a result of transformation of
broad universal principles of law applicable to all the mankind. Following are
some important cases relating to the general principles of law recognised by
civilized States:-1.R. v/s Keyn-1876,
that I. Law is based on justice,
equality and conscience which have been accepted by practice of States. 2. U.S
v/s Schooner-held that I. Law should be based on general principles.
4.
Decisions of Judicial or Arbitral Tribunals and Juristic Works:- i)
International judicial Decisions:-In
the modern period international court of justice is the main international judicial
tribunal. It was established as a successor of the permanent court of I. justice.
Art.59 of the statute of ICJ makes it clear that the decisions
of the court will have no binding force except between the parties and in
respect of that particular case. While in principle it does not follow the
doctrine of precedent. Thus judicial decisions unlike customs and treaties are
not direct sources of law; they are subsidiary and indirect sources of
international law. State judicial
decisions:- These decisions may become rules of international law in the
following two ways:-1. State judicial decisions are treated
as weighty precedents. 2. Decisions
of the state courts may become the customary rule of I. Law in the same way as
customs are. Decisions of International
Arbitral Tribunals:- Jurists have rightly too pointed out that in most of
the arbitral cases arbitrators act like mediators and diplomats rather than as
judges as in Kutch Award-1968. Juristic Works. Juristic Works:- Art.38 of ICJ, the work of high qualified jurists
are subsidiary means for the determination of the rules of I. Law. In Paquete
Habana and Lola fishing vessels with Spanish flags on them in 1898 during war
between America & Spain, held that they could not be seized or apprehended during
the state of blockade.
5.
Decisions or determinations of the organs of international institutions:-Art.38 of ICJ incorporated these sources and also introduced one new
source namely general principles of law. In view of the strong reasons the
decisions and determination of organs are now recognised as an important source
of I. Law. The resolutions of the organs may be binding on the members in
regard to the internal matters. Organs of international institution can decide
the limits of their competence. 6. Some
other sources of International Law:- Besides the above sources of I. Law,
following are some of the other sources of international law: - 1. International Comity: mean mutual
relations of nations. 2. State Paper:-In modern period
diplomats send letters to each others for good relations are also the sources
of I. Law. 3. State guidance for their
officers: Numbers of matters are resolved on the advice of their legal
advises. 4. Reasons: has a special
position in all the ages.5. Equity & Justice: I t may play a dramatic role
in supplementing the law or appear unobtrusively as a part of judicial
reasoning.
What
do you mean by subjects of International Law? Can an Individual be a subject of
International Law? If so in what circumstances.
INTRODUCTION:-A subject
of rules is a being upon which the rules confer rights, capacity and imposes
duties and responsibility. Generally it is the State who enters into treaties
with each other and is thus bound by its provisions. This does not however mean
that other entities or individuals ar outside the scope of international law.
International law applies upon individuals and certain non-state entities in
addition to states. In the modern era the international law has expanded a lot.
Now this law is applied besides States and individuals also.
THEORIS REGARDING SUBJECTS OF
INTERNATIONAL LAW:- Following are the three main theories prevalent
in regard to the subjects of international law:-1. Only States are the subject-matters of I. Law:- Certain jurists
have expressed the view that only International law regulates the behaviour of
states hence states are its subject matters. Percy E.Corbett says, “The triumph
of positivism in the late eighteenth century made the individual an object not
a subject of international law.
CRITCISM:
- The jurists have bitterly criticised as this theory fails to explain the case
of slaves and pirates. The pirates are regarded enemy of humanity and they can
be punished by the State for piracy. In international arena by some ordinary
treaties community of states have granted certain rights. But those jurists who
say that states are the only subject-matter of international law but are object
of it. To say that individuals are not the subject but object of the
International law seems to be incorrect. Prof.
Schwarzenberger, has aptly remarked that this view is controversial. He asserts that he individual who is
the base of the society is only an object of the I. Law is not justified.
2.
Only individual are the subjects of International law: - Just contrary
to the above theory there are certain jurists who have expressed the view that
in the ultimate analysis of international law it will be evident that only
individuals are the subject of International Law. The main supporter of this
theory is Professor Kelson. Before keelson this view was expressed by Westlae,
who opined, the duties and rights of the States are only the duties and rights
of men who compose them. Kelson has
analysed the concept of State and according to him it is a legal concept which
as a mixture of legal rules applicable to all the people living in certain area
hence the obligations of a State in international law in the last resort are
the duties of individuals of which state consists.
In fact there is no
difference between international law and state law. In his view both laws apply
on the individuals and they are for the individuals. However he admits that the
difference is only this that the state law applies on individuals
intermediately whereas international law applies upon the individuals
mediately.
Criticism:-So
far as logic is concerned the view of Kelson seems to be correct. An example is
the Convention on the settlement of invest Disputes between States and
Nationals of the other states, 1965. By this treaty provision is made to settle
the disputes which arise by investment of capital by nationals of one state in
other states. So it is clear that the view of Kelsen that international law is
made applicable through the medium of a State seems justified.
3. States individuals and certain
non-state Entities are Subjects: - This view seems to be
justified as against the above views. In support of this, the following reasons
may be advanced: - i) in modern
times many treaties grants rights and duties to individuals. ii) In case Danzing Railway PCIJ-1928,
in case the State Parties of a treaty intended to grant rights to individuals then
International Law would recognise such rights and International Court will
enforce them. iii). Geneva
Convention of Prisoners of War-1949 has also accorded certain rights o
prisoners of war. iv) According to Nuremberg Court since crimes against
International Law are committed by individuals the provisions of International
Law can be enforced. vi) Genocide convention- 1948:- In the convention also
individuals have been assigned directly certain duties. By article 4 of this
convention those individuals who commit international crime of genocide should
be punished whether they are public servants or ordinary person.
By
the above description it is clear that only states are not subject matter of
Internationals Law but in modern times individuals international Institutions,
Non-state entities minorities are
also the subject-matter of International Law.
PLACE
OF INDIVIDUALS IN INTERNATIONAL LAW: - As pointed out earlier
individuals are also treated to the subjects of international law although they
enjoy lesser rights than states under international law. In the beginning they
were accepted as subjects of international law as an exception of the general
rule and number of jurists treated them as objects rather than the subject. In
the recent times several treaties concluded wherein rights have been conferred
and duties have been imposed upon the individuals. Some of the provisions are
as under:-
1.
Pirates:
Under I. Law pirates are treated as enemies of mankind. Hence every state is
entitled to punish them.
2. Harmful acts of individuals:
- For the amicable and cordial relation of the state it is necessary that the
individuals should not be involved in such acts as may prove detrimental for
the good relations among states. A leading case ex parte Petroff-1971, wherein two persons who were found guilty of
throwing explosive substances on the Soviet Chancery were convicted.
3. Foreigners:
to some extent international law also regulates the conduct of the
foreigners. According to international
law it is the duty of each state to give to them that right which it confers
upon its own citizens.4.War criminals:
can be punished under international law. 5. Under some treaties individuals
have been conferred upon some rights whereby they can claim compensation or
damages.
4.
3.
Discuss the basis and nature of International Law. Or
Whether
the International Law is law in the proper sense of the term? Give reasons for your
answer.
INTRODUCTION:
- Austin in his definition of law
has given more importance to sanction and fear in compliance of law. In case of International law there is neither
sanction nor fear for its compliance hence it is not law in proper sense of the
term. But now the concept has changed and International Law is considered as
law. There is no consideration of fear or sanction as essential part of law. If
fear and sanction are considered necessary then there are sufficient provisions
in UNO charter for compliance of the International Law as Law :-
According
to Bentham’s classic definition international law is
a collection of rules governing relations between states. Two of the most
dynamic and vital elements of modern international law.
1.
In its broadest sense, International law
provides normative guidelines as well as methods, mechanisms, and a common
conceptual language to international actors i.e. primarily sovereign states but
also increasingly international organizations and some individuals.
2. Although
international law is a legal order and not an ethical one it has been
influenced significantly by ethical principles and concerns, particularly in
the sphere of human rights. International is distinct from international
comity, which comprises legally nonbinding practices adopted by states for
reasons of courtesy. e.g. the saluting of the flags of foreign warships at
sea.)
INTERNATIONAL LAW AS REALLY LAW
According to Oppenheim,
International Law is law in proper sense because:-
· In
practice International Law is considered as law, therefore the states are bound
to follow them not only from moral point of view but from legal point of view
also.
· When
states violate international law then they do deny the existence of
international law but they interpret them in such a way so that they can prove
their conduct is as per international law.
· Starke while
accepting International Law as Law has said, “that in various communities
law is in existence without any sanction and legal force or fear and such law
has got the same acceptance as the law framed and enacted by state Legislative
Assemblies.
· With
the result of international treaties and conventions International Law is in
existence.
· U.N.O.
is based on the legality of International Law. According to Prof.Briely, “To deny the existence and
legal character of International Law is not only inconvenient in practice but
it is also against legal thoughts and principles.”
·
The states who are maintaining the
international relations not only accept International Law as code of conduct
but has also accepted its legal sanction and force. Prof. Hart, “There are many rules in practice which are honoured by
states and they are also bund by them, now the State Government accept the
existence of International Law.” According
to Jus Cojens, “International Law may now properly be regarded as a
complete system.”
It
is pertinent to mention here that from the above noted contents it is clear
that the following grounds are
supportive for accepting the International Law as law:-
· Now
so many disputes are settled not on the basis of moral arguments but on the
basis of International Treaties, precedents, opinions of specialists and
conventions.
· States
do not deny the existence of International Law. On the contrary they interpret
International Law so to justify their conduct.
· In
some states like USA and UK international Law is treated as part of their own
law. A leading case on the point is the, Paqueta
v/s Habanna-1900. Justice Gray
observed that the international law is a part of our law and must be
administered by courts of justice.”
· As
per statutes of the International Court of Justice, the international court of
Justice has to decide disputes as are submitted to it in accordance with
International Law.
· International
conventions and conferences also treat international Law as Law in its true
sense.
· The
United Nations is based on the true legality of International Law.
· That
according to article 94 of UNO charter,
the decisions of the International Court of Justice are binding on all Parties
(States).
· Customary
rules of International Law are now being replaced by law making treaties and
conventions. The bulk of International
Law comprises of rules laid down by various law-making treaties such as, Geneva and Hague conventions.
On the basis of above mentioned
facts and arguments, the International Law is law in true sense of the term.
United States and U.K., treat International Law as part of their law. In a case of West Rand Central Gold Mining Company Ltd., v/s Kind- 1905, the
court held the International Law has considered it as a part of their law. From
the above analysis it is revealed that the International Law is law. The International Law is law but the question
arises as to what are the basis of International Law. There are two theories which support it as
real law:-
1. Naturalist Theory:-
The Jurists who adhere to this theory are of the view that International Law is
a part of the Law of the Nature. Starke
has written, “States submitted to International Law because their relations
were regulated by higher law, the law of Nature of which International Law was
but a part.” Law of nature was connected
with religion. It was regarded as the divine Law. Natural Laws are original and
fundamental. They incorporate the will
of the Governor and governed and advance their consent or will. That is why international law is also based
on natural law.
Vattel
Furfendorf, Christain, Thamasius, Vitona are the main supporters of this
theory.It was viewed that natural law is uncertain and
doubtful but it is accepted that Natural Law has greatly influenced the growth
and has given the birth to International Law and its development. Most of its laws are framed from Natural Law.
2. Positivist Theory:- This theory is based on Positivism i.e. law
which is in the fact as contrasted with law which ought to be. The positivists base their views
on the actual practice of the states. In
their view customs and treaties are the main sources of International Law. According
to German economist, Heagal, “International Law is the natural consent of
states. Without the consent of states,
no law can bind the states. This consent may be express or implied.” As pointed out by Starke, “ International Law can in logic be reduced to a system
of rules depending for their validity only on the fact that state have
consented to them.” As also pointed by Brierly, “The doctrine of positivism
teaches that International Law is the sum of rules by which states have
consented to be bound.” As said by
Bynkeshock, “The basis of International Law is the natural consent of the
states. Without the consent of states no law can bind the states.”
The critics of the above views say
that consent is not always necessary for all laws. There are some laws which are binding on
states irrespective of their consent e.g. Vienna Convention on the Law of
Treaties. Article 36 of the Treaty says
that the provisions of the Treaty may be binding on third parties even if they
have not consented to it.
CONCLUSION:
- Gossil Hurst says, “That
International Law is in fact binding on states, because they are states.” This
is very much correct because every state in the world wants peace, Law and
order and that is possible only through existence of International Law.
Therefore it is in natural interest of States to accept the existence of
International Law.
2.
International Law is the vanishing point of Jurisprudence. Explain.
INTRODUCTION:-
Holland has remarked that International Law is the
vanishing point of jurisprudence in his view , rules of international law are
followed by courtesy and hence they should not be kept in the category of law.
The international Law is not enacted by a sovereign King. It has also no
sanctions for its enforcement which is the essential element of municipal law.
Holland further say that International Law ass the vanishing point of
Jurisprudence because in his view there is no judge or arbiter to decide
International disputes and that the rules of the I. Law are followed by States
by courtesy.
Austin
also
subscribes to this view, Justice
V.R.Krishna Iyer formally member of Indian Law Commission has also
remarked, “It is a sad truism that international law is still the vanishing
point of jurisprudence. This view is not correct. It is now generally agreed that Holland’s
view that international law is the vanishing
point of jurisprudence is not correct.
But now it is well settled that
International Law is law. It is true
that International Law is not enacted by sovereign and has no agency for its
enforcement. But it is true that it is a
weak law. A majority of International
lawyers not subscribe to this view is based on the proposition that there are
no sanctions behind international Law are much weaker than their counterparts
in the municipal law, yet it cannot be successfully contended that there are no
sanctions at all behind international law.
The jurists who do-not consider
international law as the vanishing point of jurisprudence say that there is
difference between state law and International Law. International Law cannot be enacted by the
state but still there is agency for its enforcement. According to Dias, “International Law is obeyed and complied with
by the states because it is in the interests of states themselves.”
For this object they
give the following arguments:-
1. The judgements of International court of
Justice are binding on States.
2.
If any state does not honour the
order/judgement of International court of justice, the Security Council may
give its recommendation against that state for action.
3.
The judicial powers of International
Court of justice (Voluntarily and compulsory) have been accepted by the States.
4. The
judgement of International court of Justice has been followed till date.
5. The
system of enforcement i.e. sanctions and fear, has been developed.
For
example :- If there is a threat to international peace and
security, under chapter VII of the U.N. Charter, the security council can take
necessary action to maintain or restore international peace and security. Besides this the decisions of the
International Court of Justice are final and binding upon the parties to a
dispute.
The
gulf war 1991 Iraq trespassed and acquired the whole
territory of Quait in her possession by violation of International Law. The Security Council passed a resolution
against Iraq and asked her to liberate Quait. But Iraq did not honour the
resolution of Security Council; hence therefore may economic and political restrictions
were composed against Iraq. But all in
vain. Then USA and her allies were permitted to compel Iraq to honour
resolution of Security Council. Consequently USA and her allies used force
against Iraq and freed Quait.
The same action was taken against
North Korea and Cango during the year l948 and 1961. The Security Council
imposed penalty against Libya for shooting down American Plane in Lockerbie (Scotland)
in 1992, consequently two citizens were also killed. The Security Council forced Libyan Government
to surrender two terrorists who were involved in this mishap and Libya obeyed
the order of S. Council.
The greatest proof of its utility
and importance is the fact that its successor the International Court of
Justice established under the United Nations charter is based on the Statute of
the Permanent Court of International Justice, the United Nations & Security
Council Charter possess wide powers to declare sanctions against the states who
are guilty of violence of the provisions of the same under chapter-VII
Thus International Law is in fact a
body of rules and principles which are considered to be binding by the members
of International Community in their intercourse with other. The legal character of International Law has
also been recognized in 1970 Declaration on the Principle of International Law
Concerning Friendly relation and Cooperation among states.
Conclusion:-
On the basis of above discussion it may
be concluded that the International Law is in fact law and it is wrong to say
that it the vanishing point of Jurisprudence.
3.
Discuss
the weaknesses of International Law. What are the suggestions for
removing/improving the International Law?
INTRODUCTION:
- International Law is said to be a
“weak Law.” The weaknesses of
International Law become evident when we compare it with Municipal Law. Its weaknesses reflected in most of cases
when these are compared with the state law.
The following are some of the weaknesses of International Law:-
WEAKN ESSES
l.
The greatest shortcoming of
International Law is that it lacks an effective executive authority to enforce
its rues.
2. Lacks Of effective legislative machinery:- Since the International Laws are based on
international treaties and conventions. Therefore these are interpreted by the
states according to their self interest.
3. The International court of Justice lacks compulsory jurisdiction in the
true sense of the term :- The
International court of Justice which is situated in Hague (Netherland) is not
authorised to take cases of all states. The cases can be filed in this court
with the mutual consent of concerned states.
4.
Due lack of effective sanctions, rules of
International Law are frequently violated:- There is no sense or fear of sanction in the
International Law with the results the laws are violated frequently by the
States.
5. Lack in right to intervene in Internal Affairs :- As per article
2(7) of UNO Charter, UNO is not competent to interfere in the domestic matters
of states. International law cannot
interfere in the domestic matters. Keeping in view these facts in several cases
International Law proves to be ineffective and weak.
6. UNCERTAINTY:- There is one
more reason behind the weakness of International Law is its uncertainty. It is
not certain as the laws of states as well as Municipal law. In addition to this it has not been able to
maintain international peace and order.
It is now very much clear from the
above facts that International Law is weak.
Paton says that , “ from
institutional point of view International Law is a weak. It has no legislative
support though there is international court of justice but that functions or
takes case on the basis of mutual consent of states. It has no power to get the decisions
implemented.”
According
to Karbet, “The main
course of weakness of International Law is the lack of social solidarity among
highly civilised states.
A
case of Queen v/s Ken – 1876 :- There is no such
institution or body which can enact laws for sovereign states and there is no
court also which can enforce its decision and to bind the states.”
SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW
Despite the above mentioned
weaknesses, it has to be noted that International Law is constantly developing
and its scope is expanding. It is a
dynamic concept for it always endeavours to adopt itself to the needs of the
day. As compared to Municipal Law the
International Law is works in a decentralised system. This is because of the facts that the
International policies, Inter-dependence of states and the continuous growth of
the concept of International or world community. However the weaknesses of the International
Law may be improved in following ways:-
l. The International Court of
Justice should be given compulsory jurisdiction, in the true sense of term
overall international disputes.
2.An International Criminal Court
should be established to adjudicate cases relating to international crimes.
3.
International Laws should be properly codified.
4.
The machinery to enforce the decisions of the International Court of Justice
should be strengthened.
5. An International Police system
should be established to check international crimes and to enforce the rules
& principles of International Law.
6. An international Bureau of
Investigation and prosecution should be established for investigation of
matters relating to International crimes and the prosecution of International criminals.
7.
The U.N.O. should be authorised to intervene in the internal matters of states.
8.
For settlement of international disputes the use of judicial precedents must be
encouraged.
9.
There must be constant review of International Law.
10. Last but not the least there
must be basic recognition of the interest which the whole international society
has in the observance of its laws.
CONCLUSION:
-
It is pertinent to mentioned here that the
General Assembly of UNO should made fruitful efforts in this direction. The
above suggestions will make International Law equivalent to a Municipal Law to
some extent. With the growth of Internationalism and the feeling of universal
brotherhood international aw will also become effective and powerful.
1.
International Law and Municipal Law are the same. Please discuss. Or
Discuss the various theories
regarding relationship between International Law and Municipal Law.
INTRODUCTION:
- Certain theories have been propounded to explain the relationship between International
Law and Municipal Law. In general it is
notionally accepted that the state municipal law control the conduct of
individuals within the state while International Law controls the relations of
nations. But now this concept has
altogether been changed and the scope of International Law has increased and it
not only determines and controls the relations of states but also the relations
of members of International community.
Both the laws have co-hesion with each other and the relations between
these two are more prominent. These
theories have been put forward to explain the relationship between International
Law and State Law. Of all these theories
as per following details, the most popular are the Monism and dualism and they
are diametrically opposed to each other:-
1.
MONISTIC
THEORY:-It is also known in the name of Monism theory. According to the exponents of this theory
International Law and Municipal Law are intimately connected with each other.
International Law and Municipal Law are the two branches of unified knowledge
of law which are applicable to human community in some or the other way. All Law are made for individuals. The
difference is that municipal law is binding on individual while International
Law is binding on states. Conclusively it can be said that the root of all laws
is individual.
According
to Strake, “International Law is part of state Municipal Law
and therefore decisions can be given by Municipal courts according to the rules
of International Law.”
According
to O.Kornell, “The objective of all laws is human
welfare whether it is state municipal law or International Law.”
2. DUALISTIC THEORY: - In
view of the dualistic theory writers, International Law and state Law are two
separate laws and contained legal systems.
The Monist view of law is part of philosophy according to which totality
is a single structure. But within the
framework of the unitary universe is diversity of phenomenon. International Law cannot become part of state
municipal Law till the principles of International Law are applied under State
Municipal Law.
According
to Strake, “The main foundation of the proponents of
dualistic theory is that state Municipal Law and International Law are two
different legal systems because the nature of International law is
fundamentally different from State Municipal Law.”
Angilotti
has
also recognised both the systems as two different legal systems. According to him the fundamental principle of
State Municipal Law in compliance of law enacted by state legislature while
principle of International Law is Pacta
Sunt Servanda i.e. to honour the agreements executed between the states.”
The
main basis of separation of these two systems is as follows:-
· The
main source of International Law is customs and treaties while in case of
Municipal Law are an enactment by sovereign power.
· International
Law controls the relations between state while state law controls the relations
between state and individuals.
· The
main cause of compliance of state law is fear of sanction while the basis of
compliance of International Law is the moral liability and vested interests of
states.
3. THEORY OF SPECIFIC ADOPTION:
- International Law cannot be directly enforced in the field of State Law. In order to enforce it in the field of
Municipal Law it is necessary to make its specific adoption. The theory of adoption is based on Hague convention-1970, Vienna Convention-1972
and Tokyo Convention-1975. In case of Jolly George v/s Bank of Cochin-1980: The court held that any
agreement does not become part of Indian constitution automatically, but the
positive commitment of state parties inspires their legislative action.”
The use of International Law in
different countries like India, Britain, America and Russia. The rules of International Law and treads
have been based in a different ways e.g.
· INDIAN ADOPTION :- The
International Law has been given important place and mention the customary
rules of International Law in Article 51(6) of the Indian constitution with the
following strive :
i)
To increase international peace and
security.
ii)
To maintain just and good relations
among states.
iii)
To increase faith and honour for
use of International Law treaty, obligations in natural relations and conduct
of organised people.
iv)
To act as mediator to encourage for
settlement of international dispute.
Some of the cases in this regard
are : i) Shri Krishna Sharma v/s State
of west Bengal-1964 : It was decided that whenever the court interprets the
domestic Municipal Law, it should be taken into consideration that it does not
go against International Law.
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court
accepted the implementation of Kutch Agreement between India and Pakistan on
the basis of correspondence between them.
Similarly there are two other case viz: Vishakha v/s State of Rajasthan-1997. And Apparel Export Promotion Council v/s A.K.Chopra-1999: In both of
the cases the court held that the right of sex equality of women has assumed
the important rule of International Law and its convention, court said that in
cases of violation of human right the court should always consider international
documents and conventions and should make them binding.
British
Adoption: In Britain International customs are treated as
part of domestic law. British courts
apply international customs subject to the conditions (i) International customary
rules are not inconsistent with British Laws (ii) they are accepted by lower courts when the limit of these
customary rules are fixed by High Court. For use of treaties, the case of
International Tin Council v/s Dep’t., of
Trade and Industry-1900: the Lord Council decided that in England treaties
are not binding automatically. It is binding only when the Parliament makes it
a part of English Law and incorporates in Law by enactment of law in this
regard.
Adoption
in America: In
America the courts interpret the state law in such a way that it does not go
against International Law. The rules of
customary International Law are treated as part of State Law. It has been done in the case of Paqueta Habana Case- 1900: It was held that International
Law is part of our state Law and when any question or case relating
International Law is filed before courts of proper powers then the rights based
on these questions should be determined and enforced.
4.
THEORY OF TRANSFORMATION:-
The exponents of this theory contented that for the application of
International Law in the field of Municipal Law, the rules of international
law have to undergo transformation. Without transformation they cannot be applied
in the field of Municipal Law.
According
to Strake:- “That the
rules of International Law can be applied when they are transformed in to
domestic law, is not necessary in every case.”
5.THEORY
OF DELIGATION:- The theory of transformation has been
criticised by the Jurists with the result of this craterisation it put forward
a new theory called Delegation theory.
The supporters of this theory say that according to the statutory rules
of International Law, the powers have been delegated to the constitution of
different states o ensure that how and what extent according to International
Law. States to determine as to how
International Law will become applicable in the field of Municipal Law in
accordance with the procedure and system prevailing in each state in accordance
with its constitution.
CONCLUSION:- Last but not the least in a recent case
namely, Chairman, Railway Board & others v/s Mrs. Chandrima Das and
others-2000: The supreme Court of India observed that the International
Conventions and Declarations as adopted by the United Nations have to be
respected by all signatory states and meaning given to the words in such
declarations and covenants have to such as would help in effective
implementation of those rights.
UNIT-II
1.
What do you understand by recognition? What are the various kinds of it? Also differentiate between de facto and de
jure recognition. Explain those situations when de facto become de jure
recognition. What are the disabilities of an unrecognised state?
INTRODUCTION:
- It can be said that through
recognition, the recognising state acknowledges that the recognised state
possesses the essential conditions of Statehood, a Government and Sovereignty,
a definite territory and has a complete control over his territory. The community is independent. So recognition has an important place in
International Law. By recognition only
the state is accepted as a member of International community.
DEFINITION:-
Many of the Jurists has define
‘Recognition’ in different ways. Some of them have opined as under:
Prof.L.Oppenheim
:- “In recognising a State as member of
International community, the existing states declare that in their opinion the
new state fulfils the conditions of statehood as required by International
Law.”
Fenwick: - “That through recognition
the members of the International community formally acknowledge that the new
state has acquired international personality.”
In the words of Phillip C Jessup: -
By recognition is such a function of a state by which she accepts that any political
unit contains the essential elements of nationality.”
According to Prof. Schwarzenberger:- “ Recognition can be absorbed easily by a
procedure developing International aw by which the state have accepted the
negative sovereignty of each other and willing to develop their legal relations
on the basis of their natural relations.”
According to Kelson:
“A community to be recognised as an
International person must fulfil the following conditions:-
i)
The community must be politically
organised.
ii)
It should have control over a definite
territory.
iii)
This definite control should tend
towards performance.
iv)
The community thus constituted must be
independent.
Thus
the conditions of statehood are, People, a territory, a government and
sovereignty.”
TYPES OF RECOGNITION
Recognition
is of two types, De facto and de
jure recognition. The practice of States
shows that in first stage the State generally give de facto recognition. Later
on when they are satisfied that the recognised state is capable of fulfilling International
obligations, they confer de jure recognition on it, that is why sometimes it is
said that de facto recognition of state is a step towards de jure recognition.
The detail of de facto and de jure recognition is as under:-
DE FACTO RECOGNITION:
- According to Prof.G.Schwarzenberger:-
“When a state wants to delay the de jure recognition of any state, it may, in
first stage grant de facto recognition.”
The reason for granting de facto
recognition is that it is doubted that the state recognized may be stable or it
may be able and willing to fulfil its obligations under International Law. Besides this it is also possible that the
State recognised may refuse to solve its
main problems.
De facto recognition means that the
state recognized possesses the essentials elements of statehood and is fit to
be a subject of International Law.
According to Prof.L.Oppenheim
:- “The de facto recognition of a State
or government takes place when the said State is free state and enjoys control
over a certain fixed land but she is not enjoying the stability at a deserved
level and lacking the competence to bear the responsibility of International
Law.”
For example
:- De jure recognition had not been given to Russia by America and other
countries for a long time because Russia was not having competence and
willingness to bear responsibility of International Law. The same position was
with China.
In view of the Judge Phillips C
Jessup, “De facto recognition is a term which has been
used without precision when properly used to mean the recognition of the de
facto character of a government; it is objectionable and indeed could be
identical with the practice suggested of extended recognition without resuming
diplomatic relations.”
The
de facto recognition is conditional and provisional. If the state to which De
Facto recognition is being given is not able to fulfil all conditions of
recognition then that recognition is withdrawn.
DE JURE RECOGNITION
De
jure recognition is granted when in the opinion of recognizing State, the
recognized State or its Government possesses all the essential requirements of
statehood and it is capable of being a member of the International
Community.
According to Prof.H.A.Smith
:- “ The British practiced shows that three conditions precedent are required
for the grant of de jure recognition of a new State or a new Government. The
three conditions are as under:-
i)
A reasonable assurance of stability and
performance.
ii)
The government should command the
general support of the population.
iii)
It should be able and willing to fulfil
its international obligations.
Further
Recognition de jure results from an expressed declaration or from a positive
act indicating clearly the intention to grant this recognition such as the
establishment of diplomatic relations.
According to Phillips Marshall Brown:
- “De
jure recognition is final and once given cannot be withdrawn, said intention
should be declared expressly and the willingness is expressed to establish
political relations.”
DISTINCTION BETWEEN DE FACTO AND DE
JURE RECOGNITION
As observed by Prof.G.Schwarznbeer,
“De jure recognition is by nature provisional and may be made dependent on
conditions with which the new entity has to comply. It differs from de jure
recognition in that there is not yet a formal exchange of diplomatic
representatives. De jure recognition is
complete implying full and normal diplomatic relations.”
De
facto recognition
1.
De facto recognition is conditional and
Provisional.
2.
If the conditions are not fulfilled by the
concerned state then it is withdrawn.
3.
To maintain political relation in this recognition
is not necessary.
4.
De facto recognition is the first step towards de
jure recognition.
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De jure recognition
De
jure recognition is final.
De
jure recognition cannot be withdrawn once given it is final.
The
willingness is to be expressed for maintenance of political relations.
De
jure recognition is the final step towards recognition.
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In Luther v/s Sagor-1921:-
“It was held that there is no distinction between de facto and de jure
recognition for the purpose of giving effect to the internal acts of the
recognized authority.”
Bank of Ethopia v/s National Bank
of Egypt and Liquori- 1937:- The court held that in view of
the fact that the British government granted recognition to the Italian
Government as being the de facto government of the area of Abyssinia which was
under Italian control, effect must be given to an Italian decree in Abyssinia
dissolving the plaintiff bank appointing liquidator.”
But
in the case of Luther v/s Sagore-1921
the court held that as far as internal affairs of a state is concerned De
facto recognition is interim and it can be withdrawn.”
CONSEQUENCES OF RECOGNITION
There
are many political and legal advantages of getting recognition and many
disadvantages of not getting recognition.
They may be said as disabilities of a state of not getting
recognition. The following are the
advantages of getting recognition and disadvantages of not getting recognition.
ADVANTAGES
1.
Can establish diplomatic and commercial relation with the states granting
recognition.
2.
Recognised states can institute a suit in the courts of states granting
recognition.
3.
Can institute suit relating to property situated in the courts of state
granting recognition.
4.
The representatives of recognised states are entitled to enjoy diplomatic and
political communities in the territories of state granting such recognition.
5.
The recognised states can execute treaty agreement with states granting such
recognition.
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DISADVANTAGES
The
states who did not get such recognition cannot establish such relations.
The
state which does not get recognition cannot do so.
Unrecognised
states cannot institute suit relating to property.
The
representatives of unrecognised states cannot enjoy such relations.
The
unrecognised states cannot sign any treaty agreement with any states.
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CONCLUSION
Recognition of any state means, that state
become a member of International community and acquires International
entity. The state becomes entitled to
all rights and special rights as a member of the International community. In the absence of recognition any state
cannot establish her diplomatic and political relations with any states and
also unable to sign any treaty agreement with any state.
2.
Define intervention? Under what
circumstances intervention by one state in the affairs of another state
considered justified.
INTRODUCTION:
-
Intervention in fact principally prohibited under the provisions of
International Law. According to
International Law no state has the right to intervene in the affairs of another
state for the purpose of maintaining or altering the actual condition of thing.
All members shall retrain in their international relations from the threat or
use of force, against the territorial integrity or political independence of
any state or in any other manner inconsistent with the purposes of the United
Nations. So in this way when any state
interferes in the internal and external affairs of other state, then as per
International Law, it becomes a matter of intervention.
DEFINITION
OF INTERVENTION: - In simple words intervention means to
interfere directly or indirectly by one or more states in the internal or
external affairs of another state.
Prof.L.Oppenheim
: “Intervention is dictatorial interference by a state in the affairs of
another state or the purpose of maintaining or altering the actual condition of
things. Interference pure and simple is
no intervention.” Hans Kelson pointed
out that, “International Law does not prohibit intervention in all
circumstances. He further says that when one state intervenes in the affairs of
another state through force, then as a reaction against this violation
International Law permits intervention.”
TYPES
OF INTERVENTIONS:- It can be accessed from the above view
of different Jurists regarding types of intervention that there are so many
types of Interventions. However some of
them are as under:-
1.
Military interference: It is done with military force.2. Political
Interference: is done by giving threatening information.3. Dictatorial Interference:
Is done in threatening tone.4. Interference without right: It is done without
any purpose & right. 5. Internal Interference: is done in interfering in
the internal affairs. 6. External
Interference: It is also done in interfering in external affairs. 7. Penal
Intervention; 8. Subversive Intervention: is done by another state through
exciting the people against the state.9. Economic Intervention: is done by
creating obstacles in the trade.
BASES
OF INTERVENTION: - It is very much pertinent to mention
here that what is the basis of doing of intervention and what type of
interventions are valid under UNO Charter.
However the following have been considered as the main basis of
intervention:-
i.
On the basis of self defence ii) On
the basis of humanity iii) for
application of treaty rights iv) to
stop illegal intervention v) to
maintain balance of power vi) to
protect individuals and their property vii)
collective intervention viii) to
protect International Law ix) at the
time internal war.
All above basis of intervention
have been recognised by the UNO except the followings :- i) for application of treaty rights. ii)
to stop illegal intervention iii) to
maintain balance of power IV) to
protect individuals and their property. V) to protect International Law.
Despite
all these the following types of intervention are in use and recognised:-
i) Intervention for self defence and
self protection: - Self defence and self protection is
main traditional basis of intervention. The intervention for self defence is
rather limited as compared to that self protection. Oppenhein
says that the use of power of intervention should have been made when it
becomes necessary for self protection.” A
famous case, The Caroline-1841: In this case Mr. Webster declared that the
necessity of self defence should be instant overwhelming and leaving no choice
of means and no moment for deliberation. Art. 51 of UN Charter provide that the
right of intervention is still available.
Under this the state has the right to individual and collectively
protection. But this right is available only when: - i. There has been attack on any state. ii) No step has been taken by the Security Council for
international peace and security.
1. Intervention on the basis of humanity:- Every person on this earth has a right to
live with human dignity. The state cannot devoid her of this right. It the
state behaves her citizens with cruelty then it is violation of International
Law of human rights. The action for intervention by UNO can be taken only in
case when the degree of violation of human rights is such that if created
danger for maintenance of International peace and security. The best example of such intervention is by
UNO in 1991 in Iraq for the protection of Kurds.
2.
Collective
Intervention:-
In Chapter 7 of UNO Charter the Security Council is empowered to take
action of collective intervention. The collective intervention means just and
legal base of Modern times. UNO can intervene for maintenance of world peace
and security and to stop or avoid attack on the following conditions:-
i)
When there is actual danger or
possibility of danger for international peace and security. ii) Actual attack has been made by the
concerned state.
The
use of such right was made by UNO in Korea in 1950, Kango in 1961 and Iraq in
1991. 3. Intervention in case of internal war:- When in any state there is possibilities of
Internal war, the intervention is considered as legal and just basis because
there are strong apprehensions of breach of International peace. Under this situation the Security Council can
decision to take collective action under Chapter 7 of UNO Charter. The
action taken by UNO in 1961 in Kango is the best example of intervention. This action was taken to stop internal war. CONCLUSION:
- It is absolutely fact that every state is entitled to manage willingly
her own internal and external affairs and does not like interfere of another
state. Similarly it is also the duty of
the other state not to interfere in the internal and external affairs of any
state. International Law also like this.
The main motto of the Security Council is maintaining peace in all the
member states.
6. Detail note on Acquisition and
loss of territory.
INTRODUCTION:-The
act of appropriation by a State by which it internationally acquires
sovereignty over such territory as it is at the time not under the sovereignty
of another state. Further it is therefore an original mode or acquisition is
that the sovereignty is not derived from another State. Occupation can only
take place by and for a State. The leading case on the point is Island of Palmas Arbitrations, as regards the sovereignty over
the Island of Palmas there was a dispute between America and Netherlands.
The
following are the modes of acquisition of territory: In International Law a
territory may be acquired by the following means:-
1.
Occupation:
- Oppenheim said that, “Occupation
is such an action by which any State may obtain sovereignty on that territory
over which there is no sovereignty of any other state.” According to Starke, “Occupation consists in establishing
sovereignty over a territory not under the authority of any other State,
whether newly discovered or an un-likely case abandoned by the State formerly
in control.”
To
decide whether on a territory occupation of a particular state exists or not,
it is seen whether that State has an effective authority and control over that
territory or not. A leading case on this topic Island of Palmas Arbitration, AJIl-1928.
2.
Accretion:-A
territory by accretion may be obtained by a State. Sometimes by natural
calamities also a territory comes within the jurisdiction of a State through
the same was previously a portion of another State. For this here is no need of
any formal action or declaration.
3.
Prescription:
- By prescription a territory comes within a State when by continuous
occupation and control of that territory for a long time creates a vested
authority in the controlling State and by passage of time that State becomes
the actual and real sovereign over that territory. Reference, J.G.Strake Introduction to International
Law-1989.
4.
Cession:
- By
cession also a territory comes within the authority of a State. The cession may
occur as a result of a war through pressure or it may be voluntary. The Cession
will be valid only when the sovereignty over the territory is transferred from
one state to another with the territory.
while in accretion only one party may act. Under article 368 Parliament
may make a law to give effect to an implement the agreement in question
covering Cession of a part of Berubari Union NO.12 as well as some of the
Cooch-Behar Enclaves.
5.
Conquest:
When a state gets victory over the other State then the sovereignty over the
conquered state is not established only by victory. For sovereignty it is
necessary that the victor State establishes an effective authority over the
territory of the conquered state through annexation. The importance of this means is more or less
extinct because of the Charter of the U.N.O. by which intervention of one state
on the affairs of another is prohibited.
6.
Lease:
- The territory may also be acquired through lease. A state may give its
territory o another state under lease for a certain period. For the said
certain period some rights of sovereignty are transferred to another. A good
example of this type of lease is transfer of certain Islands on lease by Malta
to Great Britain for some years. Recently India had also leased three Bigha to Bangladesh. Case Union of India v/s Sukumar
Sengupta-1990, it was held that the concessions given to Bangladesh over
the said area amounted to servitude.
7.
Pledge:-Sometimes
there arise certain circumstances under which a State becomes compelled to
pledge a part of its territory in return of some amount of money for which it
is in dire need. In this case also a
part of sovereignty over the territory concerned is transferred. For example in 1768 the Republic of Geneva had pledged
the Island of Corsica to France.
8.
Plebiscite:-Some
writers of the view that through plebiscite also new State may be acquired.
Although in International Law there is no such rule but some modern writers
have expressed the view that by plebiscite also a new territory can be acquired
by a State. An example to this concern is of West Irian, Netherland and Indonesia both had put their claims on the
territory of West Irian. UNO decided
for voting of the residents of west Irian. Irians voted in favour of Indonesia.
Now Irian is a part of the Indonesia.
Example of Kashmir, Govt. Of india have taken the position that since the
merger of J&K with India several elections have taken place and the people
have voted.
9.
Through
Independence obtaining of territorial sovereignty:-those
States which were colonies after attaining independence get sovereignty over
the territory which consisted within the colonial setup. The difficulty in this
context is that nationality and sovereignty in the concerned colonial territory
comes only after it attains independence.
Mode of loss of State
Territory:-1.According
to Oppenheim, “A territory
of a State is lost through cession means if one state gets some territory the
same territory is lost by the other state. 2. National Calamity: By operation of nature also sometimes
territory of a state is lost e.g. floods, by volcanic events. 3.Defeat in War: if by conquering a
State gets some territory the same is lost by the defeated state. 4. Prescription: by occupation
of a territory for a long time state gets that territory through prescription. Original
States loses that very territory by prescription. 5. Revolution: through revolution a new state comes into
being so it may be said that the state against which revolt occurred had lost
its territory in the shape of a new state. Example: Netherland revolted against
Spain. & in 1971Bangladesh was born by revolution. 6. Dereliction:- When any state abandons a territory
completely or relaxes its authority over it then it loses that territory. In
history there are lesser examples of this kind.
7.
Short notes on Non State entities or State Succession.
INTRODUCTION: - State
is the main subject of International Law and it is very difficult to define the
term State. In principle all States are equal and this equality is due to their
international personality. All states as international persons are equal.
According to Oppenheim when any
question is to be decided by consent each state is entitled to have one vote.
Several efforts have been made to formulate and codify rights and duties of
States. Declaration of Rights and Duties of Nations proclaimed by the American
Institute of International Law.
Different kinds of Non State
entities:- Here are some different kinds of Non-State
entities:-
1. Confederation: - It
is formed by independent States. Under International Law confederation has no
international personality. The aim and objective of confederation is to
establish a sort of co-ordination among the States.
2. Federal State:- Generally
a federal state is formed by the merger of two or more than two sovereign
states. Under international law a federal state is an international person. In
a Federal State generally there is a division of powers between the central
authority and states through a contribution. The main difference between a
confederation and a Federal State is that while the Federal State in an
International person under international law and Confederation is not an
international person.
3. Condominium:-
When two or more states exercise rights over a territory it is called
condominium. It exists when over a
particular territory joint dominion is exercised by two or more external
powers. New Hebrides is a good example of a condominium. Both England and
France exercised control and had rights over the territory of New Hebrides
between 1914 &1980.
4. Vassal States:-A
state which is under the suzerainty of another State is called a Vassal State.
Its independence is so restricted that it has no importance under international
law. According to Starke, “Vassal
State is one which is completely under the suzerainty of another State.
Internationally its independence is so restricted as scarcely to exist at all.”
5.
Protectorate
State: - Starke, “Although not completely independent a
Protectorate State may enjoy a sufficient measure of sovereignty to claim
jurisdictional immunity in the territory of another state. In the Lonian Ship Case-1855: the court held
that a State may remain international person even though it is dependent upon
some other State.
KINDS OF STATE SUCCESSION:- State
succession is of two types:-
i)
Universal
succession ii) Partial succession.
If the legal identity of a community is completely
destroyed there is said to be a total succession of States. If the territory is lost while personality
and legal responsibility remain unimpaired the process is described as partial
succession. This does not imply a total or partial succession respectively to
the legal relation of the previous sovereign but is merely an abbreviated way
of defining the extent of the change.
The
following are the different kinds of state succession:-
1.
Universal
Succession: - i) Universal succession occurs when one
state occupies or annexes the State completely or amalgamates fully whether
voluntarily or through winning of war.
ii)
When a state is divided into two or more parts or limits and every such unit
becomes a separate international entity or a state.
2.
Partial
Succession: - i) Partial succession occurs when any
portion of a state revolts and separates itself and attains independence and
becomes an international person or state. Example
of Bangladesh who revolted against Pakistan and became independent separate
state is a good illustration of partial succession.
ii)
Or when a state gets some portion of
another state through Cession.
iii)
When a sovereign state amalgamates itself with
some Union of States and loses some portion of its independence or comes within
the sovereignty or protection of any other state.
8.
State Jurisdiction. What are the
exemptions to the territorial Jurisdiction of state?
INTRODUCTION:-State
jurisdiction is the power of a state under international Law to govern persons
and property by its municipal law. It
includes both the power to prescribe rules and the power to enforce them. The
rules of State jurisdiction identity the persons and the property within the
permissible range of a state’s law and its procedures for enforcing the law. A
State may regulate its jurisdiction by legislation through its courts or by
taking executive or administrative action. Thus the jurisdiction of a State is
not always a co-incident with its territory Case of KTMS
Abdul Cader and others v/s Union of India-1977, the court held that act has
no extra-territorial application and hence the State government has no power
under the Act to pass orders of detention against persons who at the time when
the orders were made were not within India but were out-side its territorial
limits.
STATE JURISDICTION
In general every State has
exclusive jurisdiction within its own territory but this jurisdiction is not
absolute because it is subject to certain limitations imposed by international
law. Thus in practice it is not always necessary that a State may exercise
jurisdiction in its territory on the other hand in some circumstances may
exercise jurisdiction outside its territory. Though the relationship between
jurisdiction and sovereignty is close jurisdiction is not co-extensive with
State Sovereignty. Each state has normally jurisdiction over all persons and
things within its territory.
Illustration:-A French armed public
ship flying the flag of France was in the British territorial waters when M,
the Cabin boy of the ship committed the offence of murder by shooting dead D
the captain of ship. Both M &D were British nationals. During the trial
that took place that the British courts had no jurisdiction to try him for the
murder committed on board a French cruiser flying French flag. The defence
cannot succeed because he theory that the pubic ship of a state should be
treated to be a floating portion of that state has long been discarded. Secondly
the offence was committed within the territory of Britain. Thirdly seeking good
office of British police and medical aid amounted to a waiver of the immunity.
Thus M could be tried by British court.
EXEMPTION TO THE TERRITORIAL JURISDICTION
There are some exceptions of the
exercise of jurisdiction which definitely recognizes the protective
jurisdiction of one state to deal with foreign nationals acting in their
country against its security and integrity:-
1.
DIPLOMATIC
AGENTS:- Diplomatic agents enjoy certain privileges and
immunities. They are immune from the jurisdiction of the civil and criminal
courts of the receiving State. In this connection the old view was tha the
diplomatic agents enjoy these immunities and privileges because they were
deemed to be outside the jurisdiction of receiving State. In the present time
this theory has been discarded. Modern view diplomatic agents enjoy certain
immunities and privileges because of the special functions they perform. This
was affirmed in a case Ex-parte
Petroff-1971 by the Supreme Court of Australia.
2.
Foreign
Embassies: - Foreign embassies are often considered
to be outside the jurisdiction of the State in which they are situated. For
sake of convenience embassies are to be treated a part of their home States.
The correct view however is that though not part of their home States embassies
enjoys certain immunities because of the special functions performed by the
diplomatic agents.
3.
Foreign
Sovereigns:-Foreign sovereigns are often treated to
be outside the jurisdiction of other states and possess many privileges and
immunities. In the case of Christina-1938,
Lord Wright observed that 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 principle of
immunity of immunity of Foreign Sovereign was developed in the early years of
the nineteenth century. In the case of the Schooner
Exchange v/s McFaddon-1812, A French Naval Vessel stayed in Philadelphia
for repairs after a storm. Some persons sought possession of the ship on the
ground that in reality the ship Schooner Exchange. An American ship which they
owned and was seized by French on the High
Seas in 1810 in pursuance of a Napoleonic Decree. The U.S. Govt. however
requested the court to refuse jurisdiction on the ground of sovereign immunity.
Court held that the vessel was exempt from U.S. Jurisdiction.
The jurisdiction
of the nation within its own territory is necessary exclusive and
absolute. It is susceptible of no
limitation not imposed by it. In another case of Vavasseur v/s Krupp-1878,
the plaintiff contended that the Japanese Govt., has violated his patent rights
and therefore he demanded that the delivery of the goods by it be stopped. But
the court had that it had no jurisdiction over the property of the foreign
sovereigns more especially with what we call the public property of the State
of which he is sovereign.
UNIT-III
9.
what is Nationality? What are the various modes of acquiring and losing
nationality? Is there any difference between nationality and citizenship in
India?
INTRODUCTION:-
Starke, “Nationality has been defined as the status of
membership of the collectively of individual whose acts decision and policy are
vouch safed through the legal concept of the State representing these individuals.”
Prof.
Oppenheim, “Nationality of an individual the quality of being
a subject of a certain State and therefore its citizens.”
Fenwick:-“Nationality
is such a bond which binds an individual with a state and makes him a member of
that specific State and provides for right of protection from that State with
an obligation to abide the laws promulgated by that State,”
Kelson:-
“Citizenship or Nationality is the status of an individual who is legally an
member of a state and ornamentally he can be called a member of that
community.”
IMPORTANCE OF NATIONALITY:
- i) The right of protection of diplomatic representatives are available
because of nationality.
ii) If any state does not restrain
a person of its nationality from such disadvantageous action which are
affecting other States then the fist State shall be responsible to other states
for such actions of its nationals.
iii)
Ordinarily states do not refuse to accept its nationals in extradition.
iv) One of the effects of the
nationality is that the state has a right to refuse extradition of own
national.
vi) By the practice of many States,
at the time of war the Enemy character is determined on the basis of
nationality.
MODES OF ACQUISITION OF
NATIONALITY:- According to International Law
nationality can be obtained by following means :-
1. By Birth:
- In the country in which a person is born he obtains the nationality of that
country by birth or at the time of birth person gets the same nationality which
his parents are having.
2.
By
Naturalization: - By naturalization also nationality can
be obtained. When an alien living in a country obtains the nationality of that
country it is called naturalization. In Nottebohm
case-1955, it was held that a State has no obligation in granting
nationality to a person through naturalization if that person has no relations
with that state. The court propounded the real and effective nationality
doctrine. If any person obtains nationality of two states then in case of
controversy between the two nationalities the nationality of that state shall
be accepted with which the person fundamentally has real and effective
relationship.
3.
By
Resumption:-Sometimes it so happens that a person
may lose his nationality because of certain reasons subsequently he may resume
his nationality after fulfilling certain conditions.
4.
By
Subjugation:-When a State is defeated or conquered
all the citizens acquire the nationality of the conquering State.
5.
Cession:-When
a state has been ceded in another State all the people of the territory acquire
nationality of the State in which their territory has been merged.
LOSS OF NATIONALITY
1.
By Release:-In some states there are such legal provisions are
available by which they grant permission to release their nationals from its
nationality. For this type of release an application is necessary. If the application
for release is accepted then the applicant is released from the nationality of
that state.
2. By Deprivation:-Often
in many states such legal provisions are available by which if a national of
that state enters into service of another state without the permission of home
state. He would loss nationality.
3. By long residence abroad:-
The loss of nationality may take place on the ground that the individual stayed
abroad beyond a certain time limit. Many states have such type of legal
provisions which terminates the nationality for the stay of beyond limit.
4.By Renunciation:-
It may also be the cause of loss of nationality, when a person is having
nationality of two or more states, he has to choose the nationality of one
& has to renounce the nationality of other state.
5. By Substitution:-In
some states the nationality is terminated by substitution. A person gets
nationality of one state in place of other states.
DIFFERNCE BETWEEN NATIONALITY & CITIZENSHIP
NATIONALITY
The
legal relationship which exists between the nation & Individual.
Through
Nationality the civil & natural rights of a person may come.
All
citizens may possess the nationality of a particular state.
A
person who possesses only nationality in a particular state may not possess
all political rights.
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CITIZENSHIP
Denotes
the relations between the person and the state law.
The
rights of citizenship are the sole concern of state law.
It
is not necessary that all the nationals may be the citizens of that
particular state
Citizens
are those persons who possess full political rights in the state.
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10. What do you mean by Treaty? How it is
signed and what is the procedure of ratification.
INTRODUCTION:-In
the modern period International treaties have been the first and foremost
source of international law. Whenever an international court has to decide an
international dispute its first endeavour is to find out whether there is an
international treaty on the point or not. In case there is an international
treaty governing the matter under dispute the decision of the court is based on
the provisions of the treaty. International treaties occupy the same
significant position in the field of international law as the legislation
occupies in the municipal law.
DEFINITION
OF TREATY: - International treaty is an agreement between two
or more states under the international law to create mutual relationships.
According to Oppenheim,
“International treaties are those agreements between the states which are of contractual
nature and produce legal rights and obligations.”
According
to Starke, “Usually in all cases, the purpose of treaties is
to create binding nature of obligations on the parties to the treaties.”
According to Vienna Convention on treaties-1969, “Treaties and contracts are
document under which two or more states under international law establish or
try to establish their relations.”
CLASSIFICATION
OF TREATIES:- One of famous jurist Mc Nair has
classified treaties in the following manner:-
1. Treaties
having the character of conveyance.
2. Treaty
contracts.
3. Law
making treaties: a) Treaties creating constitutional law just as charter of
ICJ. b) Pure law making treaties e.g.
labour conventions negotiated by ILO.
4. Treaties
akin to charter of incorporation e.g. treaty by which International Posta Union
-1874 came into existence.
5.
Vattel
has classified treaties into four
categories i.e. equal, unequal, real and
personal.
6.
Prof.Oppenheim
has
classified the treaties into two categories:-
1.
Law making treaties. 2. Treaties made for other purposes.
HOW THE TREATIES ARE SIGNED
FORMULATION
OF TREATIES: - For making the treaty of binding
nature, the following conditions are to be fulfilled:
1.
Accreditation
of persons on behalf of contracting parties:- The intending
parties of treaties should appoint persons as their representatives to
negotiate on their behalf authoritatively for arriving at terms and conditions
of a treaty.
2. Negotiations and adoption:-
After due negotiations the terms and conditions of a treaty are clunched and
for its adoption a decision is made by both the parties.
3. Signature: -
The representatives sign on each and every terms of a treaty to make it
enforceable. A treaty becomes enforceable against a party only after the
signature of the party or its representative is obtained on the treaty papers.
4. Accession and Adhesion: -
The practices of the States show that by the process of accession and adhesion
a state which is not a party to a treaty may become a party to it by signing it
afterwards.
5. Enforcement of a treaty:-
Usually the enforcement of a treaty depends and begins according to the terms
and provisions as laid down in the treaty itself. Many treaties commence after the signature is
affixed by the authorised person while those which need ratification by the
other states in certain number begin after the required number of states have
ratified. The general rule of International Law is that a treaty is enforceable
against the parties only which have entered and signed a treaty.
6. Registration & Publication:-
It is necessary after the treaty comes into force, it may be got registered and
published. Under the provisions of
article 102 of UNO charter. If it is not registered with the UNO that in case
of any dispute comes into existence for its settlement through the organs of
UNO the treaty which is not registered cannot be referred to for the settlement
of that dispute.
7.
Basis
of binding force of the International treaties:-According
to Angilotti, “Binding force of International treaty gains its binding force.
PROCEDURE
OF RATIFICATION:- Ratification is a very important processes
ordinarily the terms and conditions of a treaty. Treaty does not become
enforceable without ratification. The
President of a State or Chief of the Govt. Ratify the signatures of its representatives
who negotiated for arriving at the agreed terms and conditions of a treaty.
11.
What do you understand from the term of Extradition? Is it different from
Asylum? Difference between Extra Territorial & territorial Asylum.
INTRODUCTION:
- Each State exercises complete jurisdiction over all the persons within its
territory. But sometimes there may be cases when a person after committing
crime runs away to another country. In such a situation the country affected
finds itself helpless to exercise jurisdiction to punish the guilty person.
This situation is undoubtedly very detrimental for peace and order. There is a
social need to punish such criminals and in order to fulfil this social
necessity the principle of extradition
has been recognised.
Meaning
& Definition of Extradition:- Extradition is the
delivery of an accused or a convicted individual to the State on whose
territory he is alleged to have committed or to have been convicted of a crime.
According
to Starke, “The term extradition denotes the process whereby
under treaty or upon a basis of reciprocity one state surrenders to another at
its request a person accused or convicted of a criminal offence committed
against the laws of the requesting state.
According
to Grotius:- “It is the duty of each state either to punish the criminals or
to return them to the States where they have committed crime.”
Under International Law extradition
is mostly a matter of bilateral treaty.
In principle each state considers it a right to give asylum to a foreign
national, thus there is no universal rule of customary international law in
existence imposing the duty of extradition. A famous case Music director Nadeem who was accused of the murder of
Gulshan kumar. Nadeem fled to Britain. Lack of providing sufficient evidence
England refused to extradite Nadeem.
IS EXTRADITION IS DIFFERENT FROM ASYLUM
There is a great difference in
between extradition and Asylum. Extradition means delivery of an accused or
a convicted individual to the state on whose territory he is alleged to have
committed or have been convicted of a crime whereas in Asylum the active protection
extended to a political refugee from another state by a state which admits
him on his request.
DIFFERENCE BETWEEN EXTRA
TERRITORIAL & TERRITORIAL ASYLUM:- In the asylum case Colombia v/s Peris-
ICJ-1950.
Extra territorial Asylum
In
case of diplomatic asylum the refugee is within the territory of the state
where the offence was committed.
Grant
of 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
competency of the state.
Grant
of extra territorial asylum is rather a derogation from the sovereignty.
Right
to grant extra-territorial asylum is exceptional and must be established in
each case.
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Territorial Asylum
The
refugee is within the territory of the state of refuge
Territorial
asylum is granted by a State in its own territory.
Every
state has right in the exercise of its sovereignty to admit into the
territory such persons as it deems advisable without exercising the
Declaration of Asylum.
The
grant of territorial asylum is an incident of territorial sovereignty itself.
Each
state has a plenary right to grant territorial asylum unless it has accepted
some particular restriction in this regard.
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12.
What are the different classes of Diplomatic Agents? Describe briefly their
privileges & Immunities.
INTRODUCTION:
- During
the Ramayana and Mahabharata period some aspects of International Law were in
their developed stage. Examples of international law relating to diplomatic
agents may be cited in this connection. The permanent appointment of diplomatic
envoys began from the seventeenth centaury.
The rights, duties, immunities and privileges etc., of the diplomatic in
18th. &19th. Centaury was mostly in the term of
customary rules. The first great landmark was the Congress of Vienna in 1815,
wherein the customary law regarding diplomatic agents was clarified and
codified. The contents of Vienna
Convention were adopted finally in 1961. The Indian Parliament passed the
Diplomatic Relations on the basis of Vienna
Convention-1972 to give effect to this convention. This law relating to the
diplomatic and consular affairs remains the strongest section of International
Law. DIFFERENT CLASSES OF DIPLOMATIC AGENTS:-The diplomatic agents have
been classified according to their status and functions. The first
classification of diplomatic agent was made in the Congress of Vienna in- 1815
under which diplomatic agents were classified under the following categories:-
1.Ambassadors
and Legates:-These are the first category of
diplomatic agents and are the complete representatives of the sovereignty
states. Their designation is Ambassadors or Permanent Representatives of their
respective countries of U.N. They are appointed by POP.
2.Ministers Pleni-potentiary and
Envoys extraordinary:- Are the diplomatic agents of second
category and as compared to the diplomatic agents of the first category. They
enjoy less privileges and immunities.
3.Charge-d
affairs: - They are the diplomatic agents of the last
category. The main reason for this is that they are not appointed by the head
of State but are appointed by the Foreign Minister of the State. Their status
is considered below the Minister Resident.
4.Minister
Resident: - In the congress of Aix-la-Chappele-1818, this category was added at category No.3, but
it was again dropped by 1961 Convention.
PRIVIEGES
& IMMUNITIES OF DIPLOMATIC AGENS:-As observed by the
International Court of Justice on 15.12.79 in a case of United States
Diplomatic and Consular Staff in Tehran: For enabling states irrespective of
their differing constitutional and social systems to achieve mutual
understanding. One of the pillars of modern International Law is the diplomatic
immunities of the Ambassadors. However the following are the immunities and
privileges of the diplomatic agents:-
1.
Inviolability of the person as envoys: - The diplomatic
agents are extended personal safety and security. If an envoy is attacked it is
deemed that attack was on the country to which the envoy is belonging.
2.
Immunity from criminal jurisdiction of the court:
- The courts of the state where the envoy is posted do not treat the envoys
within its criminal jurisdiction. It ordinarily believed that envoys will not
violate the laws of the host country. But
there are certain circumstances when the envoys lose their immunity for example
when they indulge in conspiracy against the host state.
3. Immunity from civil jurisdiction:- the envoys also enjoy the
immunities of civil nature also no suit is filed in the civil court of the host
state against envoys. As per Vienna convention three exceptions when immunity
is not available: i) for any immovable property within the jurisdiction of host
state he has. ii) in a matter of inheritance where the envoy is a successor or
executor in his personal capacity. iii) The commercial activities of the envoy
in personal capacity.
4. Immunity regarding residence:-His premises are inviolable and no
search is allowed in his residence. If any person intrudes the premises of
envoy to avoid arrest, it is the duty of envoy to deliver such person to the
host government to decide.
5. Immunity from presence in a court as a witness:- Any envoy cannot
be compelled to give an evidence in any Court but he himself can waive this privilege and appear before a
court.
6. Immunity from Taxes:-Vienna convention provides this immunity to
envoys for payment of local taxes. But water, electricity, telephones etc. not
included.
a.
Right to worship:-Within the premises of their embassy,
envoys are free to follow according to their choice the mode of worship. B) Right to exercise jurisdiction over the
staff and family in the embassy:- Envoys are free to exercise their
jurisdiction over the subordinate staff & family in the Embassy to keep the
embassy going on.
c. Right to travel freely in the
territory of receiving state:-Vienna convention has
provided a new right to envoys, they can travel freely within the territory of
host state and go anywhere.
d. Freedom of communication for
official purposes:- Vienna convention-1961 the envoys have
freedom to communicate with his own state in context to their official work.
e.
Immunity from Military and other local obligations :-
Vienna convention granted the immunity to envoys from military and other local
obligations of the host state. BASIS OF
IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS:- Theory of extra territoriality:
- According to Grotius diplomatic agents though physically present upon the
soil of the country to which they are accredited. It is justified base when
they are treated to remain for all purposes upon the soil of the country to
which they represent. Functional Theory:
- the reasons for granting privileges and immunities to the diplomatic
agents are that they perform special type of functions that is why they are
called functional and in modern times this theory is accepted as correct.
UNIT-IV
13:
Discuss the various compulsive means of settlement of International disputes.
OR write notes on Retorsion, Reprisal as compulsive means of settlement of
International disputes.
Introduction:-
The
primary purpose of the United Nation is that there should be complete peace and
security in all the members of UNO. First of all to seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement or other
peaceful means of their own choice. In
the other meaning when it deems necessary call upon the parties to settle their
dispute by such mean which shall be convenient to them. Compulsive or coercive
means of settlement of International disputes are as under:-
1. Retorsion:- Retorsion
is the technical term for retaliation. If any state behaves in unequal or in
courteous way with the other State, then the other state under the
International Law gets the right of retorsion.
In this way the meaning of Retorsion is retaliation. But in connection with Retorsion the State
can initiate only that proceeding which is permitted by the International Law.
For example in retorsion the diplomatice channels can be terminated and
immunities and privileges of the diplomat can be withdrawn together with the
existing economic subsidies. In the past
Pakistan declared the diplomat of Iraq as persona non grata and that diplomat
had to leave Pakistan. Pakistan took
this action because in the Embassy of Iraq a lot of arms and ammunition was
stored.
2. Reprisal:-
If the problem is not solved by Retorsion the States have the right under the
International Law to resort to Reprisal that is, in Retaliation the state can
initiate such a proceeding that violator of the problem may be solved. The
reprisal can be resorted against a State when it has indulged in some illegal
or inappropriate activity. For example
Israel has resorted to Reprisal many times against Lebnon and has bombarded
those regions of Lebnon where from Arab Terrorists attacked on the territories
of Israel. The members of UN cannot indulge in Reprisals of such a type which
endangers the international peace and security. It is commonly accepted that
Reprisal becomes justified and legal when the other country has committed an
international tort or violated the norms of International Law. In the
provocative action and Reprisal there must be adequate proportion i.e. in
proportion to the violation, the damage should be caused. The Reprisal is valid
only when demand for reparation was made and this was not fulfilled.
3. Embargo:-
Embargo is also a kind of Reprisal. If the ship belongs to a State which has committed
international tort or has committed some other international wrong and is
available in the territorial waters of the State against which tort or wrong
has been committed then such vessels can be restrained from travelling through
that area as a matter of right by the other State.
4. Pacific Blockade: -
By this method the outer boundary of a State is blocked peacefully. It is resorted during the peace time against
a State. The coming and going ship is
stopped. By blockade of Ports of a country compelled that state to solve the
problem.
5. Intervention:
- Under article 2(4) of the U.N. Charter,
the principle of non-intervention in the internal affairs of a State has been
propounded. But according to Kelson,
he has asserted that International Law does not prohibit intervention in all
circumstances, meaning thereby that in certain circumstances intervention is
valid and legal.
14. Explain the purpose and principles of
United Nation. How for United Nation has been successful in achieving its
object?
INTRODUCTION:-In
the 20th. Century two world wars of highly destructive nature were
fought. After the First World War the
league of Nation was established. The main objects of the League of Nations
were established and maintain world peace and security. The League of Nations failed in its mission. The
large scale destructive effects of the second World War forced the Nations of
the world once again to establish some institution of International Statute
which may solve peacefully the disputes amongst them and establish peace and
security world over. On 26th.anuary, 1945 at Sanfransisco different
Nations buttressed the establishment of U.N.O. and after it’s the membership of
the UNO increased substantially and now it stands at 192.
PURPOSES
OF UNO: - The purposes and objects for which the UNO has
been established are laid down in Article 1 of the Charter:-
1.
To
maintain international peace and security:- In the
preamble of the charter it is resolved to save the succeeding generations from
the scourge of war and be united to achieve these ends. To achieve the target
the Organisation shall prevent or remove threat to the peace, breach of peace
and acts of aggression by taking effective and collective measures. The
international problems were to be solved by peaceful means under the norms provided
in the International Law and canons of justice.
2.
To
develop friendly relations among nations:- The friendship
should be prosper on the basis of respect for the norms of equal rights and
equality in self determination of people. So this thought which developed
friendly relations & universal peace among the nations was set-up by UNO.
3.
For
removal of social, economic, cultural and human problems soliciting of
international co-operation:- In the preamble of the charter
of UNO it has been resolved to energize the International machinery for the
development of economic and social status of the people. A belief is to b
developed in promoting and encouraging the respect for human rights and
fundamental freedom for all without distinction to race, sex, language or
religion.
4.
To
make the UN an International Centre for harmonization:-
The general purpose of UNO has to be made a centre for co-ordination of
activities executed by different nations in this regards to avoid clashes in
choosing priority, the UNO is to harmonise the different activities of
different nations to achieve the main purpose.
PRINCIPLES OF UNO:-
There are following principles of UNO:-
1. Principle of sovereign equality: -
Principle of Sovereign Equality means that all the members of UNO are equal in
the eye of International Law. No discrimination in dealings with them is
permitted.
2. Principle of honouring of obligations:-
Being member of UNO, they enjoy certain rights and benefits. Members are
required to fulfil in good faith the obligations assured by them in accordance
with the Charter of UNO.
3. All nations shall settle their disputes
through the principals of peaceful settlement:-All the international
disputes are to be settled by peaceful means with the results that peace and
security and justice of any region may not endanger.
4. Principle of non-use of force:-All
members of UNO should refrain from the use of force or threat of force against
the territorial integrity or political independence of any State.
5. Principle of assistance to the UNO:-It
is the essential duty of every members of UNO to support and assist to take
action against the State who is not following the UNO charter.
6. Principle for non-member States: - As provided
in Art.2 of UNO charter that the States which are not members of UN, act in
accordance with the principles of UN for maintaining international peace and
security.
7. Principle of non-interference in domestic
affairs of a state: - Art.2 (7) provides that the UN shall not intervene in
the matters which are essentially within the domestic jurisdiction of any State
or to compel any members to submit such matters settlement.
If all the above principles are
faithfully followed by all the members of UNO, than there will be no doubt at
all that this path will lead to World Peace and the sayings of Kelson that UNO
is World Government will remain in existence.
HOW FOR U.N. HAS BEEN SUCCESSFUL IN
ACHIEVING ITS OBJECTS
The United Nation has performed
important functions in the social, economic and cultural fields as well as in
the fields of human rights. Besides this Uniting for Peace Resolution. There
has been constant development of the powers and functions of UN. United Nations
has become the symbol of democratisation in the world.
Public opinion is an important factor which
comes into play in the new international law. The Gulf War-1991 and the
breaking up of the Soviet Union are likely to bring about the revolutionary
changes in the U.N. in the present Uni-polar world (United State as the super
power), majority of the member-State are now demanding democratization of the
world body. Un-doubtly the United Nations has achieved its objects in
maintaining the peace, security and canons of justice at the International
Level.
15. Short notes on i) Neutrality ii) Blockade.
INTRODUCTION: - The term
neutrality has been derived from the Latin word ‘Neuter’ which means
impartiality. In wider sense by neutrality which can be means an attitude of
impartiality adopted by the States who do not take part in the war. Ordinarily
by neutral States it may be presumed that states which try to keep themselves
aloof from the war of their neighbours. Neutrality
is the attitude of impartiality adopted by third States towards the
belligerents and recognized by belligerents. Such attitude creating rights and
duties between the impartial States and belligerents.
DEFINITION: - According to JG Strake, “Neutrality
denotes the attitude of a state which is not at war with belligerents and does
not participate in hostilities. In its
technical sense however it is more than an attitude denotes a legal status or a
special nature involving a complex of rights and duties and privileges at
International Law which must be respected.
According
to Lawrence:
Neutrality is the status of such States which do not participate in war and
maintain their relations with belligerents. Lawrence has emphasized only on the
point that neutrality is such a position of a state by which they do not
participate in a war and maintain their peaceful transactions and journey with
belligerents.
ESSENTIAL
ELEMENTS OF NEUTRALITY:-Impartial Attitude:-states who do not takes part in
war and remain impartial. Impartiality is an important element of Neutrality.
Recognition
of the attitude of impartiality by the belligerent States: - Impartiality of
Neutrality State is accepted or recognized by the belligerents
Emergence
of certain rights and duties because of impartial attitude and its recognition
by the belligerents.
Development
of the law of Neutrality:-During 18th.Century it began to accept
that the countries which do not participate in war have a right to remain
impartial. During 19th.Century Law of Neutrality get more
development and credit for this goes to America.
Rational basis of Neutrality: - Neutrality
usually because of the following reasons:
1. It helps in
limiting the area of war. 2. It
discourages war. 3. Because of it
the States keep themselves aloof from the war. 4. It regulates the international relations.
Provisions
regarding Neutrality in the Charter of UNO:-1. The right to
commence a was suspended. 2. Wars which are fought even without violating the
conventions/treaties entered into the charter of UNO or where there is lack of
no war treaty then the member States have freedom to solve matters of disputes
either by enquiry through Security Council.3. If any States begins a war after
the violation of Art.12 to 15 of the UN Charter then such war shall be deemed
to be a war against all the members of States of the UNO.
BLOCKADE
DEFINITION:-According
to JG Strake, blockade
occurs when a belligerent bars access to the enemy coast or part of it for
purpose of preventing ingress or egress of vessels or air-crafts of all
Nations.” And according to Oppenheim,
“It is blocking men of war of the approach to the enemy coast or part of it for
the purpose of preventing ingress and egress of vessels or aircrafts of any
nations.” The law as to blockade represents a further restriction on the
freedom of neutral States as to trade with belligerents.
Essential
elements of Blockade:-i) It should be done by men of war. ii) The part of coast or whole coast of the enemy can be blockade. iii) The ingress and egress of the
ships should be prevented through blockade. iv) Blockade is an act of war. v)
Blockade should be such that no discrimination is made between the ships of
different countries.
Besides the
above elements the additional necessary
elements are also to follow :- i)
Declaration and Notification ii) Geographical limits of the blockade
area: It is essential to clarify the areas where the blockade will operate
and vessels and aircrafts shall be prohibited from entering. iii) Exemption to neutral parts: Neutral ports should be exempted from
blockade. iv) Impartiality: There should not be any discrimination with the
vessels of any Nation; the vessels should stop impartially by the country which
has imposed blockade. v) Effectiveness: For making blockade
binding it is necessary that it should be effective. For effectiveness it is
essential to utilize the force and such measures which are fit for stopping the
ingress and egress of the vessels.
TERMINATION
OF BLOCKADE: The
blockade comes to an end in the following:-
1. By termination of war.
2. The country
which has imposed blockade can itself terminate it.
3. When the blockade is continuously
violated and it does not remain effective then it is understood that blockade
has terminated.
4. The blockading State captures and
occupies the blockaded coast or port.
5. When blockading forces are
vanquished by the enemy forces.
6. When the military vessels
blockading area leave the blockaded coast it is understood that blockade has
ended.
16. State briefly the rules of Land
and Aerial warfare.
INTRODUCTION:
-
The law of war consist of the limits set by International Law within which the
force required to over-power the enemy may be used and the principles there
under governing the treatment of individual in the course of war and armed
conflict. The objective of the rules of war is not to govern the war or
regulate it as rules of games.
Law
of Land Warfare:-The Hague Convention-1907 is a
landmark in respect of rules of land warfare. Hague convention clarified the
status of belligerent states and clarified the distinction between combatants
and non-combatants. According to it the
persons in the regular army having specific regiment number etc., are lawful
combatants. Besides this is the guerrilla’s volunteer’s corps etc., may also be
included in the category of combatants provided they fulfil the following three conditions:-
1.
They serve under a definite and specific authority. 2. They have specific emblem which may be recognised from distance.
3. The conduct was in accordance
with the rules and customs of war.
Prohibited
Means in Land Warfare:-War is contest between Armed forces
of two or more States wherein force can be used within certain limits laid down
by Laws and Customs of war. International customs, treaties have prohibited
certain means in land warfare. Hague Convention- 1907, the use of
poisonous weapons, gas, pollute, food material, poison water, projectiles which
cause unnecessary sufferings and pain etc., have been prohibited and it will
also violation of the laws and customs of war. During land war undefended
cities, villages cannot be attacked or destroyed. Killing of wounded and sick
persons of the armed forces during war has also been prohibited. However they
can be made prisoners of war. Ruses of
War or Stratagem : It is a permitted way during land warfare. By ruses of
war or stratagem we mean that for the attainment of its military objectives a
belligerent State can misguide or mislead the enemy. According to modern
concept of war, war is not only the test of physical strength but also intelligence
provided under article 24 of Hague
Convention. Deceit:- Ruses of
war are permitted but in Deceit which is different from stratagem is contrary
to International Law. For example, according to Hague Convention, unauthorised
use of flag or emblem of the armed forces has been prohibited. Flag of peace or
emblem of red- cross cannot be used to deceive the enemy. ESPIONAGE:- The position of Espionage is very peculiar. On one hand
I.Law recognises espionage during land war and on the other hand it also
recognised the punishment can be awarded to those who are caught or apprehended
while spying. Hague Regulation-1907 has defined ‘spy’ as one who under false
pretences obtain information. True spy acting in disguise or under the
pretences is himself responsible.
LAWS OF AERIAL WARFARE
INTRODUCTION:
-
In the modern times the importance of aerial warfare has greatly increased.
Aircrafts were used in large scale for the first time during the First World
War. Since the First World War he aircrafts have been used in all the major
wars that formulation of definite rules of International Law to regulate their
use during war. Bombing by aircrafts causes excessive loss of public and
private property. In order to regulate
use of aerial warfare many conferences have been called for from time to time
and many rules have been formulated.
LAWS
OF AERIALWARFARE: - Brussels
Conference of 1874: laid down the following rules/laws: 1. Bombardments on
undefended cities, villages and towns was prohibited. 2. Bombing of buildings
and works relating to art, science, religion and culture and philanthropic
works was prohibited. 3. It was also laid down that the buildings of public
utility should not be destroyed during aerial warfare.4. Bombing on hospitals
etc., was completely prohibited. Hague
Convention- 1899, approved the rules formulated in Brussels Conference,
1874 and also laid down the following additional rules: - 1.Bombing on civilian people and their property without just and
appropriate cause was prohibited. 2.
Bombardment for the realisation of money or things was declared illegal. 3. Bombardment of those cities and
villages which are away from the war areas was also prohibited. 4. It was also laid down that
bombardment should be made only for the achievement of military objectives.
Washington
Conference-1922: The use of aircrafts during the First
World War had made it clear that the rules of aerial warfare formulated so far
were not in conformity with the changing facts and circumstances. In order to
amend these rules and to frame certain rules a conference was called in Washington in 1922:-1. Aiming of
private aircrafts with weapons for self-defence was prohibited. 2. Bombardment to frighten civilian
population was prohibited.3.villages
and towns and buildings which are unconnected with or are away from war areas
should not be destroyed. 4. Building
connected with religion culture or the philanthropic works cannot be destroyed.
5. Hospitals and other places where
the patients are treated cannot be destroyed.
Further
the main object of The Hague Air warfare Rules was to propose a legal
regulation of the special problems raised air warfare.
· Aerial
Bombardment is legitimate only when directed at military objectives.
· Belligerent
non-military aircraft can be fired upon unless they make the nearest available
landing on the approach of enemy military aircraft.
· Aerial
bombardment for the purpose of terrorising the civilian population of
destroying or damaging private property not of military character of injuring
non-combatants is prohibited.
Unit-V
Intervention
DEFINITION
OF INTERVENTION: - In simple words intervention means to
interfere directly or indirectly by one or more states in the internal or
external affairs of another state.
Prof.L.Oppenheim
: “Intervention is dictatorial interference by a state in the affairs of
another state or the purpose of maintaining or altering the actual condition of
things. Interference pure and simple is
no intervention.” Hans Kelson pointed
out that, “International Law does not prohibit intervention in all
circumstances. He further says that when one state intervenes in the affairs of
another state through force, then as a reaction against this violation
International Law permits intervention.”
TYPES
OF INTERVENTIONS:- It can be accessed from the above view
of different Jurists regarding types of intervention that there are so many
types of Interventions. However some of
them are as under:-
1.
Military interference: It is done with military force.2. Political
Interference: is done by giving threatening information.3. Dictatorial
Interference: Is done in threatening tone.4. Interference without right: It is
done without any purpose & right. 5. Internal Interference: is done in interfering
in the internal affairs. 6. External
Interference: It is also done in interfering in external affairs. 7. Penal
Intervention; 8. Subversive Intervention: is done by another state through
exciting the people against the state.9. Economic Intervention: is done by
creating obstacles in the trade.
BASES
OF INTERVENTION: - It is very much pertinent to mention
here that what is the basis of doing of intervention and what type of
interventions are valid under UNO Charter.
However the following have been considered as the main basis of
intervention: - i. On the basis of
self defence ii) On the basis of
humanity iii) for application of
treaty rights IV) to stop illegal
intervention v) to maintain balance
of power vi) to protect individuals
and their property vii) collective
intervention viii) to protect
International Law ix) at the time
internal war. All above basis of
intervention have been recognised by the UNO except the followings :- i) for application of treaty
rights. ii) to stop illegal intervention iii) to maintain balance of power IV) to protect individuals and their property. V) To protect International
Law.
Relation
between International Law and Municipal Law.
There are certain theories have
been propounded to explain the relationship between International Law and
Municipal Law. In general it is notionally accepted that the state municipal
law control the conduct of individuals within the state while International Law
controls the relations of nations. But
now this concept has altogether been changed and the scope of International Law
has increased and it not only determines and controls the relations of states
but also the relations of members of International community. Both the laws have co-hesion with each other
and the relations between these two are more prominent. These theories have been put forward to
explain the relationship between International Law and State Law. Of all these theories as per following details,
the most popular are the Monism and dualism and they are diametrically opposed
to each other:-
1. MONISTIC THEORY:-It
is also known in the name of Monism theory.
According to the exponents of this theory International Law and
Municipal Law are intimately connected with each other. International Law and
Municipal Law are the two branches of unified knowledge of law which are
applicable to human community in some or the other way. All Law are made for individuals. The
difference is that municipal law is binding on individual while International
Law is binding on states. Conclusively it can be said that the root of all laws
is individual.
According
to Strake, “International Law is part of state Municipal Law
and therefore decisions can be given by Municipal courts according to the rules
of International Law.”
According
to O.Kornell, “The objective of all laws is human
welfare whether it is state municipal law or International Law.”
2. DUALISTIC THEORY: - In
view of the dualistic theory writers, International Law and state Law are two
separate laws and contained legal systems.
The Monist view of law is part of philosophy according to which totality
is a single structure. But within the
framework of the unitary universe is diversity of phenomenon. International Law cannot become part of state
municipal Law till the principles of International Law are applied under State
Municipal Law.
According
to Strake, “The main foundation of the proponents of
dualistic theory is that state Municipal Law and International Law are two
different legal systems because the nature of International law is
fundamentally different from State Municipal Law.”
Angilotti
has
also recognised both the systems as two different legal systems. According to him the fundamental principle of
State Municipal Law in compliance of law enacted by state legislature while
principle of International Law is Pacta
Sunt Servanda i.e. to honour the agreements executed between the states.”
De-Facto-
RECOGNITION
Recognition
are two types, 1. De facto 2. de jure recognition.
The
practice of States shows that in first stage the State generally give de facto
recognition. Later on when they are satisfied that the recognised state is
capable of fulfilling International obligations, they confer de jure
recognition on it, that is why sometimes it is said that de facto recognition
of state is a step towards de jure recognition. The detail of de facto and de
jure recognition is as under:-
DE
FACTO RECOGNITION:- Prof.
G. Schwarzenberger:- “When a state wants to delay the de jure recognition
of any state, it may, in first stage grant de facto recognition.”
The reason for granting de facto
recognition is that it is doubted that the state recognized may be stable or it
may be able and willing to fulfil its obligations under International Law. Besides this it is also possible that the
State recognised may refuse to solve its main problems.
De
facto recognition means that the state recognized possesses the essentials
elements of statehood and is fit to be a subject of International Law.
According
to Prof.L.Oppenheim :-
“The de facto recognition of a State or government takes place when the
said State is free state and enjoys control over a certain fixed land but she
is not enjoying the stability at a deserved level and lacking the competence to
bear the responsibility of International Law.”
For
example: - De jure recognition had not been given to Russia
by America and other countries for a long time because Russia was not having
competence and willingness to bear responsibility of International Law. The
same position was with China.
In
view of the Judge Phillips C Jessup, “De facto recognition is a term which has been used without
precision when properly used to mean the recognition of the de facto character
of a government; it is objectionable and indeed could be identical with the
practice suggested of extended recognition without resuming diplomatic
relations.”
The de facto recognition is
conditional and provisional. If the state to which De Facto recognition is
being given is not able to fulfil all conditions of recognition then that
recognition is withdrawn.
STATE JURISDICTION
State jurisdiction is the power of
a state under international Law to govern persons and property by its municipal
law. It includes both the power to
prescribe rules and the power to enforce them. The rules of State jurisdiction
identity the persons and the property within the permissible range of a state’s
law and its procedures for enforcing the law. A State may regulate its
jurisdiction by legislation through its courts or by taking executive or
administrative action. Thus the jurisdiction of a State is not always a
co-incident with its territory Case of KTMS
Abdul Cader and others v/s Union of India-1977, the court held that act has
no extra-territorial application and hence the State government has no power
under the Act to pass orders of detention against persons who at the time when
the orders were made were not within India but were out-side its territorial
limits.
STATE JURISDICTION
In general every State has
exclusive jurisdiction within its own territory but this jurisdiction is not
absolute because it is subject to certain limitations imposed by international
law. Thus in practice it is not always necessary that a State may exercise
jurisdiction in its territory on the other hand in some circumstances may
exercise jurisdiction outside its territory. Though the relationship between
jurisdiction and sovereignty is close jurisdiction is not co-extensive with
State Sovereignty. Each state has normally jurisdiction over all persons and
things within its territory.
Illustration:-A
French armed public ship flying the flag of France was in the British
territorial waters when M, the Cabin boy of the ship committed the offence of
murder by shooting dead D the captain of ship. Both M &D were British
nationals. During the trial that took place that the British courts had no
jurisdiction to try him for the murder committed on board a French cruiser
flying French flag. The defence cannot succeed because he theory that the pubic
ship of a state should be treated to be a floating portion of that state has
long been discarded. Secondly the offence was committed within the territory of
Britain. Thirdly seeking good office of British police and medical aid amounted
to a waiver of the immunity. Thus M could be tried by British court.
The jurisdiction of the nation
within its own territory is necessary exclusive and absolute. It is susceptible of no limitation not
imposed by it. In another case of Vavasseur
v/s Krupp-1878, the plaintiff contended that the Japanese Govt., has
violated his patent rights and therefore he demanded that the delivery of the
goods by it be stopped. But the court had that it had no jurisdiction over the
property of the foreign sovereigns more especially with what we call the public
property of the State of which he is sovereign.
DIPLOMATIC AGENTS
During the Ramayana and Mahabharata
period some aspects of International Law were in their developed stage.
Examples of international law relating to diplomatic agents may be cited in
this connection. The permanent appointment of diplomatic envoys began from the
seventeenth centaury. The rights,
duties, immunities and privileges etc., of the diplomatic in 18th.
& 19th. Centaury was mostly in the term of customary rules. The
first great landmark was the Congress of Vienna in 1815, wherein the customary
law regarding diplomatic agents was clarified and codified. The contents of Vienna Convention were
adopted finally in 1961. The Indian Parliament passed the Diplomatic Relations
on the basis of Vienna Convention-1972 to give effect to this convention. This
law relating to the diplomatic and consular affairs remains the strongest
section of International Law. DIFFERENT CLASSES OF DIPLOMATIC AGENTS:-The
diplomatic agents have been classified according to their status and functions.
The first classification of diplomatic agent was made in the Congress of Vienna
in- 1815 under which diplomatic agents were classified under the following
categories:-
1.
Ambassadors and Legates:-These are the first category of
diplomatic agents and are the complete representatives of the sovereignty
states. Their designation is Ambassadors or Permanent Representatives of their
respective countries of U.N. They are appointed by POP.
2.
Ministers Pleni-potentiary and Envoys extraordinary:-
Are the diplomatic agents of second category and as compared to the diplomatic
agents of the first category. They enjoy less privileges and immunities.
3.
Charge-d affairs: - They are the diplomatic agents of
the last category. The main reason for this is that they are not appointed by
the head of State but are appointed by the Foreign Minister of the State. Their
status is considered below the Minister Resident.
4.
Minister Resident: - In the congress of Aix-la-Chappele-1818, this category was added at category No.3, but
it was again dropped by 1961 Convention.
PRIVIEGES
& IMMUNITIES OF DIPLOMATIC AGENS:-As observed by the
International Court of Justice on 15.12.79 in a case of United States
Diplomatic and Consular Staff in Tehran: For enabling states irrespective of
their differing constitutional and social systems to achieve mutual
understanding. One of the pillars of modern International Law is the diplomatic
immunities of the Ambassadors. However the
following are the immunities and privileges of the diplomatic agents:-
1. Inviolability of the person as
envoys: - The diplomatic agents are extended personal
safety and security. If an envoy is attacked it is deemed that attack was on
the country to which the envoy is belonging.
2.
2.
Immunity from criminal jurisdiction of the court:-
The courts of the state where the envoy is posted do not treat the envoys
within its criminal jurisdiction.
DEFINE TREATY& ITS RATIFICATION
In case there is an international
treaty governing the matter under dispute the decision of the court is based on
the provisions of the treaty. International treaties occupy the same
significant position in the field of international law as the legislation
occupies in the municipal law.
DEFINITION
OF TREATY: - International treaty is an agreement between two
or more states under the international law to create mutual relationships.
According to Oppenheim,
“International treaties are those agreements between the states which are of
contractual nature and produce legal rights and obligations.”
According
to Starke, “Usually in all cases, the purpose of treaties is
to create binding nature of obligations on the parties to the treaties.”
According to Vienna Convention on treaties-1969, “Treaties and contracts are
document under which two or more states under international law establish or
try to establish their relations.”
CLASSIFICATION
OF TREATIES:- One of famous jurist Mc Nair has
classified treaties in the following manner:-
1. Treaties
having the character of conveyance.
2. Treaty
contracts.
3. Law
making treaties: a) Treaties creating constitutional law just as charter of
ICJ. b) Pure law making treaties e.g.
labour conventions negotiated by ILO.
4. Treaties
akin to charter of incorporation e.g. treaty by which International Posta Union
-1874 came into existence.
5.
Vattel
has classified treaties into four
categories i.e. equal, unequal, real and
personal.
6.
Prof.Oppenheim
has
classified the treaties into two categories:-
2.
Law making treaties. 2. Treaties made for other purposes.
HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES:
- For making the treaty of binding nature, the following conditions are to be
fulfilled:
1.
Accreditation
of persons on behalf of contracting parties:- The intending
parties of treaties should appoint persons as their representatives to
negotiate on their behalf authoritatively for arriving at terms and conditions
of a treaty.
2.
Negotiations
and adoption:- After due negotiations the terms and
conditions of a treaty are clunched and for its adoption a decision is made by
both the parties.
PROCEDURE
OF RATIFICATION
Ratification
is a very important processes ordinarily the terms and conditions of a treaty.
Treaty does not become enforceable without ratification. The President of a State or Chief of the
Govt. Ratify the signatures of its representatives who negotiated for arriving
at the agreed terms and conditions of a treaty.
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Unit 1:
State of succession.
State of Responsibility: introduction, theories and the responsibility for the treatment of alien.
Unit 2nd:law of neutrality
neutrality in historical perspective.
Permanent neutrality and neutralization.
Ryt and duties of neutral states.
Pacific settlement of international disputes Negotiation, mediation, conciliation, arbitration,
Unit 3:the use of Force.
Law before 1945
Article 2(4)of the UN Charter
Enforcement actions under chapter Vii
Self defence.
Unit 4th.law of international institutions:
Convenient of league of nation;an overview.
United Nations:purpose, principal, membership
Gen.assemlbly: composition,nature of powers, scope of jurisdiction.
Security council: composition,nature of power including VETO power, security council and the Gen assembly relationship
International court of justice: composition and jurisdiction
Unit 5 : introduction to international trade law.
International criminal court.
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