International Law

INTERNATIONAL
PB Rathod
INTERNATIONAL LAW
(Theory and Practice)
DR. P.B. RATHOD
Commonwealth
CONTENTS
Foreword Preface Chapter 1. General Premises of International Law 2. Evolution of Intenlationa aW (v) (vii) Pages 1 23 45 87 142 168
3. Subjects of Intunational Lev 4. 5. Important Aspects of International Law Basic Concepts of Internktional Law Index
GENERAL PREMISES OF INTERNATIONAL LAW

MEANING OF INTERNATIONAL LAW International law is nothing but the 'Law of Nations'. Sometimes, they are used interchangeably. They are synonymous and are equivalent terms. The former was introduced by Jeremy Bentham in theeai _y:1E39. Prior to it, International Law was known by the name 'Law of Nations.'1 Thus, until the middle of the 17th century, it was known as the 'Law of Nations'. Thus, the term International Law was first coined by Bentham.2 Bentham was a great reformer. Bentham touched all aspects of life-social, political, economic, moral etc. He expounded the theory of pleasure and painwealth, skill, good name, power, piety, memory, imagination, expectation and relief are simple pleasures and ill-repute, enmity are the pains. Thus, Bentham was a political philosopher of England.3 He preached the 'greatest good of the greatest number'. Bentham wrote 22 books, but his main interest was in law. From the very beginning, he was scholarly.4 At present International Law consists of those rules written or unwritten, which the state observe in their mutual dealings. Each nation has its own laws which are generally called as 'Principal Laws'.5 International law are the laws which govern the relations between the states. Generally, it is applicable to the states. Most of the classical
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jurists laid down that International Law regulates the relations of states with one another and they therefore, have defined the term in this sense only. 6 According to Oppenheim, Law of Nations or International Law is the name for the body of customary and treaty rules which are considered legally binding by states in their intercourse with each other.? The above definition contains three important elements. Firstly, International Law consists of a body of rules governing the relations between states. By the term `relations' is meant that official intercourse which is maintained by states through their foreign offices or department of external affairs. Secondly, states regard these rules as being binding on them in their relations with one another and thirdly, such rules derive from custom and treaties.8 The above definition was given by Oppenheim in the Eighth Edition of his book 'International Law' published in 1955. Since then drastic changes occurred in International Law, and therefore, the definition has become too narrow and is static.9 The definition does not stand correct at the present day International Law. The definition takes into account of the relations of states only. In fact, International Law is a dynamic and living law. Its rules have been changing with the passage of time out of experiences and necessities of situations. In the Ninth Edition of his book published in 1992 he defined the term International Law differently after taking into account of the new developments. According to him :10 "International Law is the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relations of states, but states are not the only subjects of International Law. International organizations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by International Law".11
General Premises of International Law
-Strake's defined International Law as "that body of law which is composed of the principles and rules of conduct which states themselves bound to observe in their relations with each other."12 Henry Maine defined International Law 'generally consists of principles of lights, justice, collection of usages, customs and opinions.'13 Schwarzenberger has, defines "International Law as the body of legal rules which apply between Sovereign states and such other entities as have been granted international personality."14 In simple language, those recognised principles and rules which are observed by the states in their dealings with one another have been given the name of International Law. International Law not only defines the rights of states but also prescribes the procedure by which these rights may be protected. Thus, it is the law of the states and not a law for individuals.15 IMPLICATIONS Firstly, International Law is a body of different rules. International Law is a different types of moral principles like those onatural justice, traditions, customs, conventions and the principles of different treaties or agreements among nations, verdicts or decisions of international tribunals or courts or declarations international institutions of League of Nations and the U.N.0.18 Thus, rules are of different types. Some of them are moral principles, traditional principles or practices or legal decisions. These numerous rules are broadly called as International Law.17 Secondly, it lays down the rights and obligations of different types of states, i.e., states at peace, states at war and neutral states.18 These rights and obligations are relates to the recognition of states or governments, successions of states or governments, territorial limits, treatment of aliens, diplomats and consular privileges and immunities, treaties, war arbitration and so on.19
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Thirdly, its acceptance and observance are optional and not compulsory. It is a law among nations. It's laws are not imposed or enforced by some kind of supernatural authority.2 All the nations may not accept and observe all of International Law. Some nations may not accept or observe some aspects or provisions of International Law.21 This optional aspect of International Law distinguishes it from natural law. The acceptance and observance of Municipal or National Law are compulsory.22 Fourthly, though International Law is optional in its acceptance and observance, it does not mean that it is useless or undependable in international dealings. It lacks sanction of force.23 Most of the nations accept and observe International Law. Most of the time, because it is based on moral principles, traditions, customs and conventions and it is found useful and necessary by nations in their dealings with one another despites its lack of the sanction of force.24 Fifthly, it is a code of conduct for nations. Nations settles the disputes through the common code of conduct instead of seeking to solve their problems by the troublesome and problematic method of force.25 Sixthly, International Law as it is accepted and observed helps to define, regulate and control the behaviour of states or nations. Diplomacy, balance of power, collective security and International Law goes a long way in settling the disputes. Different nations struggle to realise different goals.26 Thus, International Law is a product of long evolution. It was first used by Jeremy Bentham, Kautilya and others. The Arthasastra of Kautilya laid down rules for the guidance of kings in their foreign affairs.27 It's rules have not grown in a particular day or a particular period. They are the result of centuries and centuries of experience. BASIS AND SANCTIONS OF INTERNATIONAL LAW Views of the Jurists differ on the question as to what is the basis of International Law. The difference of opinion has
led to the emergence of the following three importance theories.

1. Naturalist Theory
Most of the Jurists of sixteenth and seventeenth century were of the view that International Law is based on the law of nature. According to them, there exists a system of law which emanates from God or reason or morals. International Law, according to them, is based on this very system prominent writers of this view are Grotius, Pufendorf and Vattel. Writings of these Jurists were influenced greatly by the works of religiously oriented scholars such as St. Augustine, Vitoria and Suarez.28 These publicists argued that all law is derived from God, and they called God's superior law as divine law. By natural law is, therefore, meant the application of divine law. Rules of natural law contain fundamental and unchangeable principles that transcend the will and the consent of the rulers as well as the ruled in human societies.29 Thus, all laws including International Law, according to them, are based on natural and inturn divine law. The view has been greatly criticised by the writers of the nineteenth century on the ground that it is too vague. The meaning of the law of nature is not precisely clear.3 Different Jurists have given different meaning to it such as reason, justice and moral. In fact, it is such a hazy concept that, if sought to be enforced, it can only result in confusion.31 However, it has to be admitted that the law of nature has greatly influenced the growth of International Law. There appears to be truth in saying that International Law developed in the initial stage on the basis that its rules derive from the law of nature.32
2. Positivists Theory
The view that International Law is based on the law of nature has been condemned by the followers of another school which is known by the name of `positivists'.33 According to them only those principles may be deemed as
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law which have been adopted with the consent of the states. The rules of law are binding upon states, therefore, emanate from their own free will. Bynkershoek was the exponent who was of the view that the basis of International Law is the consent of the states. The consent may be given by states either expressly or impliedly.34 While express consent may be given by the conclusion of treaties er the acknowledged concurrence of governments, consent may be implied in the case of established usage, i.e. custom. Thus, custom and treaties by which consent of a state is achieved are the basis of International Law.35 Until and unless a state has given its consent to a particular rule of International Law, it cannot be regarded as binding on it. Martens and Anzilotti also share the above view. The consent theory has been criticised by many writers on several grounds. Firstly, all the rules of International Law have not derived from customs and treaties.36 Some of them derive from the general principles of law recognised by civilized nations. Secondly, a state remains bound by certain rules of International Law even if it has not given its consent. Thirdly, states in some cases are bound by general International Law even against their will. The above criticisms show that the consent theory as propounded by positivists is not totally correct.37
3._Ecclectie Theory
The views taken by the naturalists and positivists are extreme views. The Jurists belonging to ecciectic school have preferred to adopt a middle a course in the positivist naturalist debate. Ecclectics such as Vattel accepted the simultaneous existence of two tiers of lawone at the natural level and another at the positivist level. 38 Thus, according to them, International Law derive from both natural law as well as voluntary law (laws made with the consent of the states). This view appears to be appropriate than taken by the Jurists of naturalist and positivist schools, and therefore, it may be concluded that International Law
is based solely neither on the law of nature nor on the consent of the states. While most of the rules are based on the basis of the consent of the states; a few of them have, of course, derived from the law of nature.39 Sanctions in the modern International Law are quite different from those which existed in the classical International Law. The latter provided the sanction generally in the form of war and reprisals. War waged by its own armed forces was the Supreme Sanction of International Law. However, at present, War as well as reprisals in most of the cases have become unlawful.41 Sanctions applied by the aggrieved state are required to be lawful and they must conform to the provisions of the U.N. Charter.42 Sanctions which are provided in International Law at present may be applied by the states individually or collectively by international organisations.43 1. Sanctions by States Individually, a state may apply sanction by means of selfhelp. Self-help is a right of state which is available to the victim of a wrong. The primitive legal technique is called the principle of self-help. In classical International Law there was practically no limit in the action which could be taken by a state in self-help." However, at present the character of the United Nations has put restraint on a state to take action in self-help. The action taken in self-help is required to be in strict compliance with the provisions of the charter and within due limits of the powers vested in each of them. Further, it should be applied with the observance of the principle of proportionately.45 Use of armed forces in self-help in response to international wrongful acts not evolving armed attack is forbidden. 2. Collective Sanctions International organisation which states themselves have established have been empowered to take collective sanctions against a state which violates the rules. Notable amongst them is the United Nations organisation. The UN
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Charter postulates economic, financial and military sanctions under chapter WI. In addition to them, the United Nations may also apply political sanction although the term `political' has not been mentioned expressly in the Charter." Economic and financial sanctions may be applied against a state under the authority of the security council. They include the complete or partial severance of economic relations against a state or the application of embargo. The main purpose of economic sanctions is to hurt the economy of a state which has violated the rule.47 In the past, it has been applied, for instance, against South Rhodesia (1966), South Africa (1977), Iraq (1990), Libya (1992), Yugoslavia (Serbia and Montengro) (1992), Combodia (1991), Liberia (1992), Haiti (1993), Angola (1993), Rwanda (1994), Syria (1996), and Sierra Leone (1997).48 Military sanctions includes use of air, sea or land forces as may be necessary to maintain or restore international peace and secularity. Such action may include demonstrations, blockade and other operations by air, sea or land forces of the members of the United Nations.49 It is to be noted that military sanction may be applied against a state only for a definite objective, that is, in order to maintain or restore international peace and security. Military action has been by the security council in Korean Crisis in 1950, Gulf crisis in 1990-91, Somalia in 1992, Rwanda and Haiti in 1994.5 Political sanctions which has not been expressly mentioned in the charter by name exists and includes appeal to a state to do or not to do certain acts, suspension of an exercise of the rights and privileges of the membership of the United Nations, and expulsion from the membership of the Organisation or from the specialised agencies thereof. Political measures are applied mainly to hurt the prestige of a state. Public opinion becomes adverse with the application of political sanction.5' Perhaps, it was the World public opinion which forced the United Kingdom and France
to pull out their troops from the Suez Canal in 1956. The sanction of public opinion, no doubt is attached to the principles of purely moral obligation, its importance at the present day International Law cannot be denied.52 SOURCES OF INTERNATIONAL LAW Following are the sources of International Law. 1. Custom Custom is the original and the oldest source of International Law, and it was the most important amongst all the sources. It was so because a large part of International Law consisted of customary rules. Customary rules are referred to those rules which are practised by most of the states through ages by way of habit.53 West lake defines custom as that line of conduct which the society has consented to regard as obligatory. The obligation is based upon the common consent of nations extending over a period of time of sufficient duration.54 Thus, custom is not merely a habit or usage. A usage is a general practice which does not reflect a legal obligation. But custom is more than mere practice. Custom is referred to those habits which are regarded as binding upon the states.55 Thus, when a habit or usage becomes obligatory on a state to practice, it is known as custom. The obligation arises from the fear of enforcement before the courts. Custom begins where the usage ends. Usage is an international habit of action. Usage may be conflicting, customs must be unified and self-consistent. Custom has obtained the force of law.56 Thus, customs and conventions are practised by nations over a long period of time acquire the status of International Law. In fact, customs are the most important source of International Law. International custom is accepted by all nations and hence, it has become an International Law.57 Several customs practised by nations have become International Laws. If International Law is based upon custom, it is known as customary International Law. Laws
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relating to diplomacy, commerce, alliances, laws in respect of those aspects are not at all written down in codes or treaties. But they are considered as laws, because they have been observed for centuries.58 Laws which is based on custom is very difficult to prove. It must be proved only with the presentation of evidences. Thus, vast body of customs constitute International Law. 2. Treaties At present, international treaties are the most important source of International Law. Treaties are the agreements between two or more states or between other subjects of International Law by which they create or intend to create a relationship between themselves.59 Such agreements are sometimes referred to convention, protocol, accord etc. The terminology varies but the substance is the same. Treaties embody the express consent of the parties to the rule or rules laid therein.60 They imply number of agreements made between states from time to time. Sometimes, treaties are bilateral and multilateral. They are the dominant source of International Law. This source has gained importance in recent times. Treaties formulate new rules.61 General and particular TreatiesGeneral treaties are those wherein most of the states of the World community are parties thereof. In course of time, they transform or crystalise into rules of universal International Law, which are binding on all the member states of the world community, be they parties to them or not. General treaties may also be referred to as law making treaties which create general norms for the future conduct of the parties interns of legal propositions, and the obligations are basically the same for all parTies. Examples of such treaties areHague conventions of 1899 and 1907, Geneva protocol of 1925, Treaty of West Phalia 1648, the Congress Vienna of 1815, the Declaration of Paris of 1856 the Geneva Red Cross Convention of 1864, the Peace Treaty of 1919, the Geneva Conventions of 1949, the General Treaty for the
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Renunciation of War of 1928 and so on. It is to be noted that even the law-making treaties are binding only to the parties thereof.62 They do not bind states which are not parties to them. Particular treaties are generally referred to bilateral treaties, or pluriateral treaties or ordinary treaties wherein number of parties is two or more than two. They are also known as contractual type of treaties or 'treaty contracts'.63 Treaty contracts deals with special matter between contracting states only. Such treaties create law for two or more states, and therefore, they have been distinguished from law-making treaties which create law for most of the states.64 It is to be noted that there is no clear distinction between the two. No doubt, ordinary treaties normally do not establish rule of general law, but they are of immense importance. Most of the rules on extradition have evolved through the conclusion of bilateral treaties. It is to be noted that all the treatiesgeneral as well as particular, are binding on the contracting parties.65 However, their role in international relations varies. Further, their actual significance is determined by the issues to which they relate and by their actual effective. 3. General Principles of Law General principles of law are recognised by the civilized nations. These principles are the principles of equity, justice and good conscience. These principles are applied by the Municipal courts. Thus, general principles of law include justice, right, reason and commonsense. In fact, justice, right and common sense are mostly subjective.66 But in particular cases, they may be applied objectively. They also include morality. They form the distinct source of International Law. For example, laws relating to war, peace and neutrality. They are all based on this source. But these General principles must be recognised by the civilised nations. So, General principles of law constitute an important source of International Law.67 Examples of such principles which have
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been recognised are good faith, reciprocity, presumpfion and estoppel. It is significant to note that the principles of law recognised by many states do not become principles of International Law autmatically.68 They are required to be recognised by the World Court. Before any such principle is applied by the court, certain considerations are taken into account. Firstly, a rule is a general principle of law, that is, it is not limited in scope. Secondly, the rule is recognised by the states. The word recognised presupposes the existence of the rule ii a he municipal law. Thirdly, the rule is recognised by idost of the states of the world community.69 When the above three elements are present in any principle of law, the World Court may apply it in international disputes as well., General principles of law recognised by civilised nations has been recognised in a most authoritative international instrument as a source of International Law. This source has been increasingly used at present by the court. 7o A question arises as to what are the general principles which have been recognised by most of the states. The answer of this question not simple. A wide research is required to be made in this regard. It is desirable that International Law Commission should make a study and prepare a list of such principles. It would be of immense help to the International Court of Justice in applying them. The parties in a particular case would also come to know about them.71 4. Judicial Decisions Previous judicial decisions also constitute important source of International Law. Judicial decisions are the subsidiary means for the determination of rules of law and they therefore are the subsidiary and indirect source of International Law.72 They include the decisions of the eminent courts and tribunals. Judicial decisions of the international courts or tribunals constitute a good source of International Law. International Court of Justice at present is the main international Judicial tribunal. However, its decisions are binding only to the parties to the case.73
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Awards of the international tribunals such as the permanent court of Arbitration and other tribunals such as the British American Mixed claims Tribunal and others have contributed a lot of the development of International Law.74 It has been asserted that the awards of the tribunals are not judicial but merely quasi diplomatic compromise and they therefore, cannot be regarded as a source of International Law. It may be noted that the view cannot be applied in all the cases.75 Awards of a number of arbitrations are based on strictly legal considerations in form and substance. Decisions of the Municipal Courts form an important part of the basis of International Law. Similarly, the creation of the regional international courts for settling the disputes in a particular area is a recent development of International Law.76 Instances of such courts are the court of Justice of the European communities, the European Court of Human Rights and the Inter-American Court of Human Rights. They have contributed immensely to the development of International Law in particular cases. 5. Writings of Jurists Similarly the teaching of eminent scholars and international jurists also constitute an important source of International Law. Because such views of eminent scholars and international jurists are put on par with International Law. The statute of International Court of Justice lays down that the teachings of the most highly qualified publicists of the various nations are a subsidiary means for the determination of rules of law." It postulates the evidentiary character of teachings, of the most highly qualified' publicists. The above may mean that the teachings of any publicist (a writer on international law) will not be taken into consideration. However, the highly qualified publicists may be of any nation.78 Highly qualified publicists is a relative term and not an absolute one, and therefore, standard may differ from state to state. While a publicist or a writer is a highly qualified or not will perhaps be determined by the tribunals before whom the teachings
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(writings) will be placed as an evidence for the determination of rules of law.79 Although Juristic works are not an 'independent source' of law, sometimes juristic opinion does lead to the formation of International Law. Juristic opinion, very often, throws light on the rules of International Law and their writings make it easier to frame a particular rule.8 The value of the juristic writings carries more weight particularly in those fields of International Law where treaty or customary rules do not exist.81 It is to be noted that the writings of qualified jurists are very often cited in the decisions of the courts. For instance, Grotius, Vattel and Bynkershoek are amongst those whose writings have been quoted by the International Court of Justice and other international tribunals. Such cases, for example, are South West Africa Case (1950), Interpretation of Peace Treaties Case (1950), Asylum Case (1950), Reservations to the Genocide Convention (1951) and Aeriel Incident Case (1959). Moreover, many rules have been framed on the basis of the writings of the Jurists.82 Calvo clause and Drago Doctrine are the instances of such rules in International Law. This source may be resorted to as final resort, i.e., only when all other sources listed Article 38 (1) (d) of the statute of the International Court of Justice have failed to resolve the dispute before the court.83 In addition to the writings of jurists and publicists, collective work done by the International Law Commission, reports and Secretariat memoranda prepared by the Commission, Harvard Research drafts, the bases of discussion of the Hague Codification Conference of 1930 and the resolutions of the Institute of International Law and other similar bodies are also of considerable value.84 6. International Legislation International Legislation is one of the important source of International Law. International legislation is the term used for international conventions. At international conventions
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number of states establish common rules and they act as the source of International Law. A number of conventions relating to labour laws, labour standards, health, fisheries and control of dangerous drugs are held from time to time.85 In the same way, the conventions of the Hague peace conferences are held and a number of resolutions are passed. Those resolutions take the form of International Law. The decisions of the General Assembly of the U.N.O. may also constitute an important source of International Law, because General Assembly is in-charge of international legislation.86 So, international legislation provides for the growth of International Law. So, International Legislation is also an important source of International Law.87 7. International Comity International Comity influences the growth of International Law. The states in their relations came to observe such rules which are not legally binding, but are the rules of politeness, convenience and good will such rules may be given the name of comity. Commity is nothing but reciprocal courtesy which a number of family nations owes to each other.88 It presupposes friendship. It assumes the importance of equity and justice. 'We do justice so that justice may be done in return'. The privileges and immunities of diplomats are based on the principle of international ommity. Equity is nothing but fairness and reasonableness, and good faith.89 SUBJECT MATTER OF INTERNATIONAL LAW Is International Law a true law? Some writers doubt, because International Law is not the commands given by the superior, there is no machinery to enforce it. They says International Law contains only moral rules and have no binding force.9 However, Oppenheim disagree with this view of International Law. In the International Law there is a community which may be called as family of nations. There are body of rules in the form of customs, conventions, agreements etc., but only enforcing authority is absent in
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International Law. For this reason, we should not dismiss International Law as not law at al1.91 1. There must be a community, 2. Rules regulating human conduct within the community, 3. These rules are enforced by the external law. All these three conditions are present in the International Law.92 All this is the nature and content of International Law. International Law is commonly divided into the law of war and the law of peace. Hugo Grotious the greatest pioneering work is "on the law of war and peace". The law of war and peace constitute the scope of International Law.93 1. Subjects International Law determines the membership of international community, how it is acquired and how it is lost. It also includes the rights and obligations which the members possess under International Law. 2. Objects International Law is mainly concerned with the territory of the state, how it may be acquired and lost. It includes the distribution of the land, water, air of the globe among the various states. It also deals with the question of citizenship, immigration etc. 3. Inter-Course of the State This includes the rights and duties of the diplomatic agents and consuls, the nature and methods of treaty, agreements and procedure of internal conferences. 4. Settlement of International Disputes Under this head fall the various methods by which international differences and disputes may be solved or settled by peaceful means. Serious quarrels may arise among the nations. Such situations may lead to tensions among nations.94 Such tensions may lead to serious or severe consequences. To minimise tensions and to avoid other severe consequences pacific settlement of international
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disputes becomes very useful. Nations follow peaceful means and methods to settle the disputes. Those methods are---good offices and Mediation, Negotiation, i.e., Diplomacy, Commission of Enquiry and Conciliation, Arbitration and Judicial settlement.95 5. Law of War This includes nature of war, its legal effects. International war is a type of group conflicts in which hostile states employ armed forces against one another. 6. Laws of Neutrality International law is the study of neutral states, their rights and obligations. IMPORTANCE OF INTERNATIONAL LAW 1. It is one of the aspect in the total international relations. Most of the issues of the states are usually political issues hence, they fall outside the scope of International Law. It is still in a primitive stage of development and has been a "Jungle Law". Inspite of these defects, International Law attempts to build a world legal order, without which peace in the world will be in a greater danger. 2. There are two disputes among the nations1. Political disputes, and 2. Legal disputes. Legal disputes are solved with reference to International Law, while political disputes are solved at the U.N. level or the diplomatic level. International Law atleast, solve legal disputes between States. It reduces political tension in the world.96 3. The study of International Law is more widespread and more popular throughout the world. International Law schools have been opened in all parts of the world. To study International Law, a vast amount of literature on the subject is developed today. Foreign Ministers of all countries maintain experts on International Law.97 United Nations is helping in the teaching and research in International Law. International Law Commission is an agency of the United Nations is doing much work in this field.
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4. International Law helped in many ways to solve disputes among the nations. Only one thing is that these have not been publicised. But whenever a war is resorted to, it is shown as a failure of International Law and is published much.98 5. It is immensely useful to maintain world peace. It played a very important role to keep world peace after Second World War. 6. International Law does not have force behind it. The nations of the world should willingly submit themselves to International Law. Alternative to this is brutal war. All the nations show effective obedience to International Law in order to ensure peace in the world.99 7. In future, even in setting a 'World Government' there is a great necessity of strengthening and expanding International Law. World government is impossible without world law. Therefore, all states must willingly obey to it.100 REFERENCES
1. Bentham Count the term in 'Principles of Morals and Legislation', first published in 1789, as appropriate to the mutual transactions of sovereign as such. The term 'law of nations' is still preserved in German as Volkerrecht. 2. For instance, according to Hall 'International Law consists of certain rules of conduct which modern civilised states regard as being binding on them in their relations with one another'. (The Law of Nations, Sixth Edition, p. 1). 3. Oppenheim, 'International Law', Vol. I, Eighth Edition (1955), pp. 4-5. 4. For detail see chapter 'International Organisations'. 5. For detail see chapter 'Place of Individuals Under International Law'. 6. For detail see Sources of International Law. 7. International Law, Vol. I, Ninth Edition (1992), p. 3. 8. The book has been edited by Sir Robert Jennings and Sir Arthur Watts.
General Premises of International Law 9. Starke's International Law, Eleventh Edition, (1994), p. 3. 10. 'A Manual of International Law', Vol. 1, 4th Edition, p. 1.
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11. See "Transnational Law" (1956). Jenks prefers to Call International Law by the name of 'Common Law of Mankind.' See 'Common Law of Mankind' (1958). 12. 'Transnational Law', p. 2. 13. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 6. 14. Ibid., p. 7. 15. Ibid., p. 4. 16. Mid. 17. Mid. 18. Ibid. 19. 'First Book of Jurisprudence', 6th Edition (1923), p. 23. 20. 'Studies in History and Jurisprudence' (1904), p. 44. 21. 'International Law', Vol. I, Ninth Edition (1992), p. 9. 22. 'International Law', Vol. I, Ninth Edition (1992), p. 9. 23. International Law, Part I (1910), p. 6. 24. Mid., p. 7. 25. Mid. 26. Ibid., p. 9. 27. (1900) 175 US Reports 677. 28. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 14. 29. See Starke, op. cit., p. 19. 30. Ibid. 31. For detail See Chapter International Court of Justice'. 32. Oppenheim, op. cit., pp. 75-80. 33. General Assembly Resolution 44/23, November 17, 1989. 34. See General Assembly Resolutions 45/40, 46/53, 47/32, 48/30 and 49/50. 35. See General Assembly Resolution, 50/44. 36. 'The Elements of Jurisprudence', Thirteenth Edition, p. 392. 37. Ibid., p. 133. 38. Ibid., p. 138.
20 39. See chapter 'War'.
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40. For detail see chapter "Settlement of Disputes". 41. 'Principles of International Law', p. 8. 42. For detail see chapter "Security Council." 43. See Article 41. 44. See Article 42. 45. See Article 5. 46. See Article 6. 47. The 'Law of Nations', Sixth Edition, p. 10. 48. See Year Book of the International Law Commission, 1949, p. 36. 49. Oppenheim, International Law, Vol. I, Ninth Edition (1992), p. 25. 50. According to Oppenheim : A custom is a clear and continuous habit of doing certain actions which has grown up under the aegis of the conviction that these actions are, according to International Law, Obligatory or Right. op. cit., p. 27. 51. Westlake, 'International Law', Part I, Second Edition, p. 14. 52. 'Starke's International Law', Eleventh Edition (1994), p. 31. In earlier editions he had stated that usage represents the twilight stage of custom, custom therefore, 'begins where wage ends'. (Introduction to International Law, Tenth Edition, p. 36). 53. ICJ Reports (1950) p. 26. Also see Lotus Case, P.C.I.J. Series A, No. 10, (1927), p. 28. 54. Ibid., pp. 276-277. 55. IC Rob_ 19 (1798). 56. I.C.J. Reports (1969), p. 39, Para 63. Also see the case concerning the continental Shelf, ICJ Reports (1982), Para 42. 57. I.C.J. Reports (1969), p. 43. 58. I.C.J. Reports (1951), p. 116, at p. 131. 59. I.C.J. Reports (1950), p. 71 at pp. 276-277. 60. (1905) 2KB 391. 61. See Fisheries Jurisdiction (United Kingdom V. Ireland) Merits, ICJ Reports 1974, p. 119-120. 62. Brierly, 'The Law of Nations', Sixth Edition, p. 61. Brownlie. Principles of Public International Law', Fourth Edition, p. 7. The
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International Court of Justice, in North Sea Continental Shelf Case ICJ Reports (1969), p. 3 was Strict in requiring proof of Opinio Juris. 63. I.C.J. Reports (1952), p. 200. 64. ICJ Reports (1960), p. 99. 65. Karol Wolfke, 'Custom in Present International Law', Second Edition (1993), pp. 92-93. 66. ICJ Reports (1951), pp. 130-1. 67. For details see Chapter 'Treaties'. 68. Brownlie, op. cit., p. 12. 69. Brierly, op. cit., p. 58. 70. Ibid., op. cit., p. 60. 71. Oppenheim, op. cit., pp. 32-33. 72. ICJ Reports (1951), p. 424. 73. ICJ Reports (1969), p. 39. 74. ICJ Reports (1986), p. 98. Also see the Case Concerning Continental Shelf (Libya V. Malta), ICJ Reports (1985), pp. 29-30. 75. Oppenhiem, op. cit., p. 37. 76. PCIJ Series A/B (1937) Case No. 70. 77. PCIJ Series No. 9, p. 31. Also see Mosul Boundary Case (1925) PCIJ, Ser. B.N. 12, p. 32. 78. The Word Publicists means 'Learned Writers'. 79. PCIJ Series A/B (1937) Case No. 70. Also see the Eastern Greenland Case (1933), PCIJ A/B No. 53. 80. ICJ Reports (1970), at pp. 35. 81. ICJ Reports (1962), p. 6. 82. ICJ Reports (1949), p. 248. 83. PCIJ Series A, No 6, p. 20. 84. Lauterpacht, 'The Development of International Law by the International Court' (1958), pp. 5-6. 85. 'International Law', Vol. I, Ninth Edition (1992), p. 41. 86. ICJ Reports (1970), p. 3 at pp. 33-34. 87. 175 US (1900), p. 677 at p. 700. 88. Brownlie, c)p. cit., 26.
22 89. ICJ Reports (1985), p. 246. 90. (1937) PCIJ Ser. A/B, X/0, 70, p. 77. 91. ICJ Reports (1969), p. 3 at pp. 46-52. 92. Ibid. (1970), p. 3 at pp. 48-50. 93. ICJ Reports (1985), p. 246 at p. 305. 94. Ibid. (1985), p. 13. 95. Ibid. (1985), p. 554. 96. Ibid. (1982) Para 71.
International Law
97. The Development of International Law through the Political Organs of the United Nations, p. 5. 98. Ibid., Also See S.K. Agarwala, The Role of General Assembly Resolutions As Trend Setters of State Practice', IJIZ, Vol. 21, (1981), p. 513. 99. See Declaration on Friendly Relations, Definition of Aggression Formulated by General Assembly on December 14, 1974, 100. See the Declaration on the Granting of Independence to Colonial Countries and peoples of 1960.
EVOLUTION OF INTERNATIONAL LAW

International Law is a product of long evolution. It was first used by Jeremy Bentham, Kautilya and others.1 The Arthasastra' of Kautilya laid down rules for the guidance of kings in their foreign affairs. It's rules have not grown in a particular day or a particular period. They are the result of centuries and centuries of experience. Although rules of International Law have developed systematically and scientifically only in last five centuries or sd, some of them have roots in antiquity.2 Mutual relations of states during ancient period were governed by certain rules based on the law of natured Jews, Greeks, Ranans and Hindus had practised rules regarding war and peace! Greeks, whose civilisation was quite advanced, set an example to the future that independent states can live in a community in which their international relations are governed by certain rules and customs based on the common consent of the members of that community.3 1. ANCIENT PERIOD During the ancient period, International Relations among the states were not regulated one. Each state followed its own will. The states started war without declaration and followed their own rules of war. The neighbouring states were usually regarded as hostile or opposite or rival or enemies.4 Those who were defeated in the wars were regarded as slaves and they could be exchanged or let off
24
International Law
on payment. But the Greeks never engaged in war without declaration. Greeks recognised some rules of mankind. Greek states were sovereign and independent states.5 Declared wars was the hallmarks of Greeks. In this period, there was no geographical units, no state. The people were held together by the tie of kingship. Th kings were styled as kings of tribes and not of the states.6 In the ancient periodVedic as well as post-vedic, India was divided into a large number of states known as `Rajyas or Kingdoms'. These states possessed for all practical purposed the characteristics and faculties of international persons. They observed the rules of `Desk Dharam' which were legally the product of a common religion, culture and civilisation which they possessed as their common heritage. Ancient Indian literature, particularly, Manusmriti, Kautilya's Arthasastra, Ramayan and Mahabharat laid down various rules which are akin to modern International Law, and they were followed by the (Rajyas' in practice. For instance, foreign relations of the kingdoms were governed by Dutas' (Ambassadors).7 Manusmriti and Kautilya's Arthaihastra expressly laid down the qualifications and functions of Rajdoots. In the age of Ramayan, and later in the age of Mahabharat, the post of 'Ambassador' was reserved for persons of the highest ability, character and status as today.8 In the Ramayan, it was provided that the sovereign should appoint an ambassador one who has expert knowledge of all the laws, who has the ability to divine men's motive from their deeds, reactions and gestures, who has wisdom and character of the highest integrity.9 The Tuta' was required to perform many functions which are identical to the modern International Law. He had to communicate with the host state, maintain treaties, issue ultimatums, make friends, seek informations, break peace treaties, seek favours from enemy states and maintain good relations with high ranking officers.1 The Dutas' were also assigned to the job of gathering informations regarding the movements of
Evolution of International Law
25
armed forces. Ambassadors, in ancient India, enjoyed immunities and privileges, as are provided under modern International Law. In the Ramayan, the principle of inviolability of the person of the envoy was affirmed and enforced on many occasions.11 Acquisition of territory through annexation was very common in ancient India. In addition to annexation, territory through dana (gift) was also prevalent. In postvedic period, merger of kingdoms into larger units was also prevalent. Annexation by conquest was the most common form of succession of state in ancient India. The conquerors used to follow the natural law principles of Justice prescribed in the form of divine law in the Vedas and other Hindu sacred books. In relation to succession to rights and duties, only a few rules were provided and brought into practice by the kingdom.12 Manu said that the conqueror was bound to respect to local laws and customs and religious freedoms of the people of the conquered territory. However, other rights and obligations of the extinguished kingdoms used to go along with power. It appears that as soon as a king has been conquered, most of his obligations might also lapse.13 The rules of war were also laid down in the ancient Indian literature. Wars could be either just or unjust. According to Manu, to fight and to die in a just war was a good deed indeed. While just war was called cdharam yudh', unjust war was called adharam yudh.14 Declaration of war before its commmencement was essential. War was resorted to only when other means to settle the dispute had failed. Emperor Ashoka renounced war as an instrument of national policy during his rule. Further, use of poisonous weapons was prohibited in the war king Rama instructed his brother Lakshman not to use weapons of mass destruction. Arjun did not use to use pashupathashtra Ca hyper-destruction weapon) during the Mahabharat war. Prisoners of war were treated with huinanity.15 It shows that certain rules of modern International Law existed in the ancient India. The contention of Western
26
International Law
Jurists such as Oppenheim that International Law is a `product of modern christian civilisation is falsified by a study of the ancient Indian literature. However, it must be conceded that the practice of those rules in ancient India was neither uniform nor general. One cannot say with certainty that a particular rule was followed by all the kingdoms and by all the kings. It may be submitted that the topic of the practice of the rules of International Law by the kingdoms and by the kings in relations with others in ancient India has remained neglected.16 Neither the Indian researchers and Jurists, barring a few, nor Western Jurists have taken it seriously for their work. At present, intensive research is required to be done regarding the practice of the rules of International Law in ancient India. It is very likely that the research may prove that a number of rules of modern International Law were originate and practised in ancient India.17 2. MEDIEVAL PERIOD In the middle ages, International Law developed in Europe mainly because of its disintegration into a greater number of states after the breakup of Roman Empire. Necessity of law arose to deal with the international relations of these sovereign states. They carried on trade and commerce with each other which led to contribute many rules relating to sea. Since most of these states had their own maritime rules, customary rules of maritime evolved or developed.18 These rules gained international recognition. Further, in order to protect the trade and trading citizens, leagues and associations were established. Thpse leagues stipulated for arbitration on controversies between their members. It became customary by that time to send and receive diplomatic agents in other countries and to establish permanent legation. Thus, states began to discuss matters of common interest through the agents.19 Rules concerning inviolability and extra-territoriality of foreign envoys gradually grew up. Many interests knitted these states
27 Evolution of International Law together into community of states. These and many other factors to develop International Law in the middle ages." GROTIUS It is important to note that many jurists in the field of law of nations also came to be known by that time. The most important amongst them was Grotius. Hugo Grotius (15831645) was born in Holland on April 10, 1583. He acquired reputation for learning even when he was young. He studied mathematics, philosophy and law and was admitted to the practice of law at the age of 15.21 He was conferred to the degree of Doctor of Laws at Orleans in France. Later, he was involved in a political dispute and was kept in prison for over two years. However, he managed to flee to France. Later he was shifted to Sweden and became ambassador of Sweden in France. He died in 1645. At the age of 22, Grotius wrote a book De Jure Praedae commentarius in 1605. In 1609, he wrote Mare Librum and in 1625 he wrote his famous book De Jure Belli ac Pacis, libri III. In the later book he laid the foundaticns of International Law.22 Grotius infused the idea of natural law, i.e., the law of reasoning in the law of nations because he considered that they are eternal and no changeable. Although, he did not deny that there existed in his time a good many customary rules for the international conduct of the states, he expressly kept them apart from those rules which he considered were the outcome of the law of nature.23 He distinguished therefore, between the Jus Gentium, the customary law of nations, and the Jus Nature, which later on came to be known as the natural law of nations. According to him, customary law of nations are of minor importance and therefore he concentrated more upon the natural law of nation.24 In his writings he advocated for the freedom of sea. He formulated the rule that the prisoners of war should be maintained adequately by the captor. He also pointed out that the prisoners of war were entitled to their religious
28
International Law
rights as well.25 He introduced the concept of 'Just War' and Ùnjust war'. According to him, a just war is one which is fought for a just cause. He also laid down rules of neutrality. The distinction between just and unjust warled him to develop the doctrine of qualified neutrality. He emphasized that it is a duty of all the states to give assistance to a state which has been fighting for a just cause. He also stated that the diplomatic premises are immune on the fiction of extra7Zights and duties of individuals and of states, territoriality.26 the law of Lin versal state succession and the concepts of good faith of treaties and of the admissibility of avoidance of treaty obligations consequent upon drastic changes in the original circumstances are some of the principles which he advocated in his writings. He was of the view that International Law regulates the relations between the sovereign states not only in time of peace but also in time of war.27 Perhaps, no one would deny that De Jure Belli ac Pacis was the first adequate comprehensive book on International Law. Because of his immense contribution Grotius is called father of the law of nations. Although Belli (1502-1575), Vitoria (1480-1546), Gentilis (1552-1608) and a few other Jurists had worked in certain fields of International Law, Grotius was the first writer who systematically wrote a comprehensive book on the subject.28 It is said that since his book De Jure belli ac Pacis was not primarily or exclusively treaties on International Law, and since his writing was influenced by many earlier writers, it is incorrect to call him father of the law of nations. The view does not appear to be correct. The book obtained such a world-wide influence that he is correctly styled the 'Father of the Law of Nations'. Grotius influence was soon enormous and reached over the whole of Europe. His influence was so enormous that his followers in the seventeenth and eighteenth centuries were known as Grotiansa school of different thought in the field of the International Law. Even today, his work is
29
being relied as an authority in the decisions of the courts and tribunals.29 THE SCHOOLS OF INTERNATIONAL LAW After Grotius in seventeenth and eighteenth centuries, three schools relating to science of International Law emerged. They wereNaturalists', Postivists', and Grotians'. 1. Naturalists Authors who believed that International Law is based on the law of nature, i.e., on reason, were known as naturalists. They were of the view that law of nations is only a part of the law of nature. They ampletely identified International Law with natural law, and therefore, according to them, the rules of natural law was the only source of International Law. They denied that there is any positive law of nations, and therefore they were different even from Grotius. The leader of the Naturalists was a German Jurist-Pufendorf (1632-1694). Thomasius (1655-1728) was the noted Jurist who was the follower of Pufendorf.3 The view taken by Naturalists has been criticised on the ground that the expression 'natural' is too vague, and therefore, it is practically meaningless. Different Jurists have given different meanings. To some, it means religion, and to others it is reason, and to others it is justice. In fact, the view has not been practised by states in their relations with each other. However, it must be conceded that the Naturalist school laid down the foundations of the law of nations. 2. Positivists Positivists are the antipodes of the Naturalists. According to them, rules of International Law derive from customs and international treaties. Thus, law of nations is not the creation of natural law. It is based on the consent of the states which may be given either expressly, as in a treaty or it may be implied by a state acquiescing in a customary rule. The doctrine of positivism teaches that International
30
International Law
Law is the sum of the rules by which states have consented to be bound.3' Thus, positivists completely denied the notion of natural law as a part of International Law in their writings. Bynkershoek (1673-1743), Moser (1701-1785) and George Friedrich Von Martens (1756-1821) are the leading positivists. Their writings have considerably influenced the writers of 19th and 20th centuries. However, they have been criticised on a number of grounds. For instance, to say that all the rules of International Law are based on the consent of the states is erroneous. There are certain rules which are binding on states even if they have not given their consent. Statute of the International Court of Justice has laid down under Article 38 (1) (c) that apart from custom and treaties, `general principles of law recognised by civilised nations' is also a source of International Law.32
3. Grotians
Authors who were of the view the rules of International Law derived from positive law as well as from the law of nature were known as Grotians.33 They gave equal importance to both, and therefore, they stood midway between the Naturalists and the positivists. Since the view was initiated by Grotius, his followers were known as Grotians. Majority of the authors of the 17th and 18th century became Grotians. Main exponents of the school were Wolff (16791754) and Vattel (1714-1767). The chief deficiency of the school lies in its arbitrariness.34 The followers of the school selected from natural law legal maxims, incidents of state practice and the decisions of the courts what appears to fit into their a 'priori' images of International Law. The proponents of this school have adopted a middle position between the extremes of the Naturalists and positivists schools of International Law. Since they follow the middle path they have been designated as the 'ecclectics'. They followed the notion of Grotius and have accepted bothstate practice and natural law as the sources of International Law.35 However, unlike Grotius, the Grotians attributed
31
equal importance to bothstate practices and natural law as sources of International Law. In the nineteenth century, though the three schools existed positivists had upper hand. A number of jurists including Westtake, Phillimord, Maine and Twiss were of the view that International Law is based largely on the consent of the states. They gave little importance to the law of nature. The importance of natural law therefore receded by the end of the 19th century.36 In the 19th century, International Law developed rapidly. International Law which was confined only to Europe and Christian states in earlier centuries, extended to other parts of the world due to emergence of a number of states.37 Outside Europe, America was the most important states which entered into the family of nations. With the reception of Turkey into the family of nations in 1856, International Law ceased to be a law between Christian states only. Modernisation of world transport and communication enabled these states to contact with each other easily. It immensely helped to the development of International Law.38 Other factors which contributed to its development in the 19th century areFirstly, states began to negotiate with others on issues which were of importance to all the states of international community. The congress of Vienna was the landmarks event in this respect. It was an important conference where many rules or International Law were formulated, for instance, rules relating to classifications of diplomatic agents and international rivers. Secondly, many new methods of warfare were introduced due to scientific developments. They were likely to cause more harm to human beings. This led to states to conclude multilateral treaties rules and regulations on war.39 For example, Declaration of Paris (1856) was adopted wherein rules relating to naval warfare were laid down. Geneva Convention (1864) provided rules relating to the wounded and sick members of the armed forces during the land warfare. Hague Conventions of 1899 and 1907 also
32
International Law
stipulated various rules of warfare and neutrality. Thirdly, states began to submit their disputes for arbitration whose awards were regarded by them as binding Alabama Claims Arbitration (1872) was perhaps the most important arbitration wherein the award of the arbitration was in favour of America, and ruled that Britain should pay 1,55,00,000 dollars in gold to America as compensation.4 Lastly the works of Jurists belonging to a number of different nations contributed significantly to the development of International Law. Among them were Kent, Wheaton, De Martens, Kluber, Phillimore, Calvo and Hal1.41 3. Modern Period In the modern period, writers stressed that the consent of states is the basis of International Law. They emphasized that the rules of International Law derive from custom and treaties. However, they also recognised that reason and justice are also important at least in those cases where practice of the states was not available. International courts and tribunals recognised these factors in their decisions. Thus, the Grotian School revived in the present century to some extent. Oppenheim has rightly asserted that it is now generally admitted that, in the absence of rules of law based on the practice of states, International Law may be fittingly supplemented and fertilised by recourse to rules of Justice and to general principles of law, it being immaterial whether these rules are defined as a Law of Nature in the sense used by Grotius, or a modern Law of Nature with a variable content or as flowing from the 'initial hypothesis' of International Law, or from the fundamental assumption of the social nature of states as members of the international community, or, in short, form reason.42 He has rightly concluded that the Grotian School' comes nearest to expressing correctly the present legal position. In the twentieth century, factors which contributed largely to the development of International Law further are firstly, for the first time, organisations of universal character were set up. League of Nations (1919) and thereafter, U.N.O.
33
(1945) were established primarily for the maintenance of world peace. Secondly, setting up of international courts was again an unprecedented event. By the creation of the permanent court of International Justice (1921), and thereafter International Court of Justice (1946) many legal disputes of the states have been resolved.43 Thirdly, handling of social, cultural, and economic problems of the states by the international organisations is an important event of the present century. Specialised Agencies and functional agencies of the United Nations Organisation are trying to improve an all round conditions of the human beings. Fourthly, rules of International Law have been made by the conclusion of treaties in many frontiers which had never been imagined in the earlier centuries. For instance, at present, space, moon, and deep sea, are governed in accordance with the rules framed through multilateral treaties." Fifthly, codification of International Law has been an important feature of International Law in the 20th century. Rules of International Law which were hitherto were ambiguous and uncertain have been made systematically in written form which are applied uniformly to all the states or most of the states, and lastly, International Law has not only remained limited on1' to the relations of states. International Organisations and individuals have also been regarded as subjects of International Law. Further, it is significant that individuals have been given a right to make petitions before a few international forums .45 All these factors have led International Law to reach at a stage which is much ahead from the time when it was originated. A number of new rules have been formulated to meet innumerable new situations. At present, international community has legislation, a court, whose decisions are regarded binding on the parties.46 Sanctions may also be applied against a state which violates the rules of International Law. However, International Law is still a weak law due to its limited effectiveness. One may hope that
34
International Law
in future it would develop in such a way so that it may become strong and effective. Effective system of law would not only help in curbing the breaches of the rules by the states, but it would also enable the states to live in peace resulting in the prosperity of all human beings.47 INTERNATIONAL LAW AND MUNICIPAL LAW (While International Law is applied in the relations of the states and to other subjects of International Law, Wational or state law which is called 'Municipal Law' is applied within a state to the individuals and corporate entities which are the bearers of rights and duties thereunder. Apparently, it might be looking that there is hardly any relationship between the two systems as they constitute two different legal systems each of which is designed to operate in its own sphere and they are applied distinctly to their subjects by different courts, but it is not so.48 The problem of relationship bet'ween the rules of International Law and municipal law is one of the most controversial questions of legal thesy Originally, the relationship between the two laws was a matter of theoretical importance i.e., whether International Law and municipal law are parts of a universal legal order or they form two distinct systems of law. But at present the question has acquired practical significance as well. When there exists a conflict between the rules of International Law and municipal law, a court is faced with the difficulty to arriving at a decision.49) tt question l is one of Before an international tribunal the primacywhether International Law lakes primacy over municipal law, or vice versa. If the conflict arises before a municipal court, the answer depends on how far the constitutional of the state allows International Law to be applied directly by the courts.5 Almost every case, in a municipal court, in which a rule of International Law is asserted to govern, the decision raises the problems. For example, diplomatic immunities granted by International
35
Law would become meaningless unless they are recognised by municipal law. Further, customary rules of extradition are interpreted and applied by municipal courts _only.51 nfact, International Law cannot work without the cooperation and support of the national legal systems. The question of relationship of the two systems has acquired importance in modern International Law also because very large part of it is directly concerned with the activities of individuals who come under the jurisdiction of municipal courts. Thus, it is in the municipal courts an increasing part of International Law is enforced.52 The above has necessitated to ascertain the relationship of the two systems of law, and the primacy of the two laws, when they contradict to each other. The views of the jurists on the question of relationship of International Law and municipal law are divergent which have led to the emergence of different theories. Prominent among them are as follows : 1. Dualistic Theory According to dualistic theory, International Law and municipal laws of the several states are two distinct, separate and self-contained legal systems. Being separate systems, International Law would not as such form part of the internal law of a state, to the extent that in particular instance rules of International Law may apply within a state they do so by virtue of their adoption by the internal law of the state, and apply as part of that internal law and not as International Law. Such a view avoids any question of the supremacy of the one system of law over the other since they share no common field of application, each is supreme in its own sphere.53 Dualist view developed by a prominent German Scholar 44 Triepel in 1899. The theory was later on followed by Italian Jurist Anzilotti Starke says that the theory represents two entirely distinct legal systems, International Law having an intrinsically different character from that of state law.54 The
36
International Law
above authors are of the view that the two systems of law differ from each other on the following grounds : 1. Regarding Sources : According to dualistic, while the sources of municipal laws are custom grown up within the boundaries of the state concerned and the statutes enacted by the sovereign, the sources of International Law are custom grown up among the states and law-making treaties concluded by them. 2. Regarding Subjects : Dualists are of the view that the subjects of international and municipal law are different from each other. While municipal law regulates the relations between the individuals and corporate entities and also the relations between the state and the individuals, International Law regulates primarily the relations between states.55 3. Regarding Substance of Law : Substance of the laws of the two systems are also different. While municipal law is a law of a sovereign over individuals, International Law is a law not above, but between sovereign states. Its norms are created by its subjects themselves, i.e., by the states through agreements where essence is a concordance of the will of states or by other subjects of International Law. Thus, Municipal law addresses itself to the subjects of the sovereigns, International Law to the sovereigns themsleves .56 4. Regarding Principles : Anzilotti is'of the view that while municipal laws in a state are obeyed because they are the principles of state legislatures, International Law is obeyed because of the principle of Pacta Sunt Servanda. Thus, while in municipal law, there is a legal sanctity, International Law is followed because states are morally bound to observe them.57 5. Regarding Dynamism of the Subject- Matter : Subjectmatter of the two systems are also different. While the subject-matter of the International Law is limited. Starke has observed that since 1945 International Law has
37
expanded to so great an extent into many different areas while domestic laws have continued to be concerned with a more limited range of subject-matters. These are the points of differences between the two systems, and therefore, they are applied distinctly in different areas. Anzilotti states that the two systems are so distinct that no conflicts between them are possible. However, it does not mean that rules of International Law can never be applied by the municipal courts. Municipal courts would certainly apply them as and when rules of International Law are considered to be part of the law of the land.58 It can occur when International Law, that is, customary rules as well as treaty rules become the rules of municipal law through the process of specific adoption, which means that a rule of International Law cannot be enforced within the realm of the state unless that state adopts such a law as an integral part of its own system. As for treaty rules, there must be a transformation of the treaty into state law.59 As long as transformation of International Law does not take place in the municipal law, former cannot be applied by the municipal courts. Transformation of International Law into municipal law may take place according to the constitutional provisions of the states, and therefore, the procedure may be different from state to state. Specific adoption and transformation are therefore, the "theories concerning the application of the International Law within the municipal sphere".6 They are, in no way be called the theories of relationship of the two systems. Thus, each state is delegated to determine as to how international treaties will become applicable in a municipal law. Contacts between the two legal systems are possible but they require express or tacit implementation of the rules of International Law by the state and vice versa. According to dualists, municipal courts shall apply municipal law in case of a conflict between International
38
International Law
Law and municipal law. Thus, municipal law shall have primacy over International Law according to this view. Further, when a case comes before the international court or tribunal, it applies International Law rather than to municipal law in case of a conflict between them.6' Dualist theory is subject to many criticisms. Firstly, the view that International Law and municipal law differ from each other implies that International Law cannot be a part of municipal law and can never operate as the law of the land unless they are specifically adopted or transformed through municipal custom or statutory enactment. It is not correct because there are certain fundamental principles of International Law which are binding upon a state, even against its own will. Secondly, it is not correct to say that International Law regulates the relations of states only. At present, it regulates certain activities of individuals as well.62 If individuals commit certain wrongs, they can be given punishment in accordance with the rules of International Law. Thirdly, no doubt Pacta Sunt Servanda is an important principle of International Law but it cannot be said that it is the only principle on which International Law rests. There are certain rules which are legally binding on a state.63 2. Monistic Theory Monistic Theory was pronounced in the eighteenth century. It was put forward by two German Scholars Moser (170185) and Martens (1756-1821).64 However, it was not until the nineteenth century that their concepts were elaborated into a full fledged doctrine. According to this doctrine, there exists only one set of legal system, i.e., the domestic legal order. It has been denied by the exponents of this theory that International Law is distinct and autonomous body of law. It followed that there was obviously no need for international rules to be incorporated into municipal legislation, since they have been made by the states themselves. The monistic doctrine was later developed in the early twentieth century by the Austrian Jurist Kelsen.65
39
According to monistic theory, municipal law as well as International Law are parts of one universal legal system, serving the needs of the human community in one way or the other. In the opinion of its theorists, the two together form R single legal order. International Law is therefore, indistinguishable from the internal law of states and is of significance only as part of the universal legal order. Various writers interpret the universal order in different ways.66 These differences stem from the general theoretical concept of International Law as a universal legal system. They both are therefore, species of one genus-law. Monism maintains that all laws are made for individuals only. While municipal law is binding on them directly, International Law is binding on them through states. Since both the laws are meant to solve the problems of human beings in different areas they both are related to each other.67 They believe that the whole legal system is one unified branch in which International Law operates as a part. Neither municipal law nor International Law is therefore above the system nor is separate from the system. The result is that international rules can be applied as such by municipal courts without any need for transformation.68 Exponents of monistic theory rejected the alleged differences between the two systems regarding sources, substance and subjects as laid down by dualists. According to them, subjects of both the systems of law are ultimately individuals.69 If one argues to the exponents of monistic theory that International Law regulates the relations of states and not that of individuals, they ask, what is a state? According to them since a state consists of individuals, rules of Internathnal Law are ultimately binding on them only like municipal law, which concerns with the conduct and welfare of individuals. Secondly, in both the spheres, the law is essentially a command binding upon the subjects of law independently of their will. Thirdly, monistic theory maintains that International Law and municipal law, far from being essentially different, must be regarded as
40
International Law
manifestations of a single conception of law. Monists lay down that International Law is superior even within the municipal sphere.7 The above two theories regarding the relationship of International Law and municipal law have been prevalent since a long time. A question arises as to which of the above theories is correct? It may be said that no theory alone is complete and correct. The practice of state shows that sometimes there has been the primacy of International Law over municipal law, especially when the case is being considered by the international Courts and Tribunals.71 For instance, the permanent court of International Justice in Greco-Bulgarian Communities case, stated that it is generally accepted principle of International Law that in relations between powers who are contracting parties to a treaty, the provisions of the municipal law cannot prevail over the treaty. However, in a number of occasions, there has been the primacy of municipal law over International Law, especially when the matter is being considered by the municipal court and the municipal law conflicts with the rules of International Law.72 It is submitted that both International Law and municipal law, have been made to solve the problems of human beings, and therefore, if contradictions arise between the two, they are required to be harmonised. International Law and municipal law are though autonomous in the sense that they are directed to a specific, and, to some extent, an exclusive area of human conduct, are harmonious in their totality because they aim to a basic human good. Both the systems should therefore, be harmonious and should not allow to exist contradictory rules." However, if contradictory rules infact exist, it does not follow that one of them must be void. It is one of the principal functions of the juristic reasoning to eliminate contradiction by harmonising the points of collision, not by pretending that they do not exist, nor by crushing the one with the other. Hence, Judges of all the courts-municipal as well as international court,
41
should aim at harmonising the systems rather than to treat one system superior than to other. The two systems 'are not like a gear, but like two wheels revolving upon the same axis.'74 The theory of harmonisation assumes that International Law, as a rule or human behaviour, forms part of municipal law, and therefore, is available to a municipal judge. However, in the rare instance, of conflict between the two systems, the view acknowledges that he is obliged by his jurisdictional rules. Thus, neither municipal law nor International Law has supremacy to each other.75 It may be said that while Dualistic and Monistic theories are traditional and most popular and no theory can be said to be appropriate it is required that both should be harmonised because it has regarded that International Law as well as municipal law have been made for human beings, and so, primarily there should not be any contradiction in them, and if contradictory rules appear, they should be harmonised.76 Harmonisation of rules is possible mainly in two ways. Firstly, it is the duty of the judges to eliminate contradiction by their juristic reasoning, and secondly, enactments in the municipal legal system of a state should not be made in such a way so that it is contradictory to the existing rules of International Law, and if contradiction exists, amendment should be made so as to avoid contradiction."
REFERENCES
Oppenheim, 'International Law', Vol. I, Eighth Edition, p. 75. The topic of the Evolution of International Law has not been discussed in the Ninth Edition Published in 1992. After the Vedic Period, there were eighty two republics in India, (See K.P. Jaiswa), Hindu Policy, Edition III (1955), pp. 361-63. See C.J. Chacko, 'International Law in India (1) Ancient India', IJIL, Vol. 1. (1960-61), p. 132. K.P. Jaiswal, op. cit,-,0p. 229. See Manara Dharam Shastra (Institutes of Hindu Law : or, the Ordinances of Manu), Translated by Sir William Jones (1825), Vol. II, Chapter VII-Secs. 201 and 203, pp. 217-218.
2. 3. 4. 5.
42
International Law 6. K.V. Rangaswami Aiyangar Says 'Responsibility goes with Power'. (Aspects of the Social and Political System of Manusmriti, Dr. R.K. Mookerji Endowment Lectures (1946) Lucknow University, p. 177). 7. Op. cit., p. 72. 8. Oppenheim, op. cit., p. 85. 9. Brierly, 'The Law of Nations', Sixth Edition, p. 51. 10. See Article 2 Para 6 of the UN Charter. For detail see Chapter Ùnited Nations Organisation'. 11. See, Oppenheim, op. cit., p. 49. 12. 'International Law', Vol. I, Eighth Edition, p. 107. 13. Ibid. 14. For detail see Chapter on 'United Nations Organisation.' 15. For detail see U.N.O's International Court of Justice Organ. 16. For detail see U.N.O's Specialised Agencies. 17. For detail see Chapter 'Outer Space.' 18, For detail see Section 'Law of the Seal.' 19. For detail see 'Codification of International Law.' 20. For detail see Chapter 'Place of Individuals in International Law.' 21. Westtake, 'International Law', Part I (1910), p. 6. It seems that the name municipal law has been employed for the state law for want of a better term. 22. Oppenheim, International Law, Vol. I, Ninth Edition (1992), p. 65. 23. Ibid., p. 73. 24. Starke's 'International Law', op. cit., 66. 25. PCIJ, (1930) Ser B No. 17, p. 32. 26. Ibid., op. cit., p. 38. 27. (1930) Series B, No. 17. 28. Oconnell, 'International Law', Vol. I., p. 43. 29. Ibid., p. 44. 30. cannel, op. cit., p. 44. 31. Oppenheim, op. cit., p. 56. 32. See Barbuits Case (1773), Triquet V. Bath (1764), Heathfild V. Chilton (1767).
Evolution of International Law 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63.
43
(1876) 2EX D 63, 202, 203. (1905) 2KB 391. (1939) AC 160, 167-168. (1977) QB 529 (Court of Appeal). Starke, op. cit., p. 73. See Malone V. United Kingdom, ECHR (1984), Series, A. No. 82. See Section 2(1) of the European Communities Act of 1972. Oppenheim, op. cit., p. 61. Ibid. Ibid., pp. 74-75. (1900) 175 US 677. (1913) 229 US 461. For instance see the Over the Top (1925), 5F (2d) at 842. 315 US (1942) 203 at p. 230. For instance see Murry V. The Charming Betsey, (1804), The Over the Top (1925). Oppenheim, op. cit., p. 77. Brownlie, 'Principles of Public International Law', p. 50. D.D. Basu, 'Commentary on the Constitution of India' (1956), Vol. II, p. 404. AIR (1954) Calcutta, 591. AIR (1954) Calcutta, p. 591. AIR (1976) Supreme Court, p. 470. AIR (1984) Supreme Court, p. 667. Commentary on the Constitution of India (1956), Vol. II, p. 404. AIR (1951) Rajasthan, p. 127. Also see Nanka V. Government of Rajasthan AIR (1951), Rajasthan, p. 153. AIR (1968), Delhi, p. 64. AIR (1951), Allahabad, 257. AIR (1969), Supreme Court, 783. AIR (1959), Calcutta 606. AIR (1980), Supreme Court, p. 470. AIR (1983), Karnataka, p. 85. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 98.
44
International Law 64. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 99. 65. Fenwick 'International Law', p. 100. 66. Oppenheim, op. cit., 100. 67. General Assembly Resolution 94(1) dated December 10, 1946. 68. General Assembly Resolution (174) (II), dated November 21, 1947. 69. International Law Commission has been abbreviated hereinLli: Thr to as ILC. 70. Article .`.1 1). 71. Article 15. 72. For detail see Chapter, 'International Criminal Court.' 73. See General Assembly Resolution 40/72 dated December 11, 1985. 74. The 'Law of Nations', Sixth Edition, p. 10. 75. See Year Book of the International Law Commission, 1949, p. 36. 76. Oppenheim, op. cit., p. 37. 77. Ibid., op. cit., p. 45-50.
SUBJECTS OF INTERNATIONAL LAW

INTRODUCTION - (Any entity which possesses international personality is called an international person or a subject of International Law.1 Possession of international personality is therefore the determining factor in deciding_ as to which are the subjects of International Law.LIgntity may_be_deenied to possess international personality if it is capable of possessing (international rights)and(duties)and(having the capacity to maintain its rights by bring international claims) Oppenheim says that an international person is one who possesses legal personality in International Law meaning one who is a subject of International Law so as itself to enjoy rights, duties or powers established in International Law, and generally, the capacity to act on the international plane either directly or indirectly through another state (as in the case of a protected state))' concept of international person is thus derived from International Law_ The question as to what are the entities which possess the above three capacities, i.e., rights, duties and camity to maintain its rights by bringing international claims, is solely determined by the rules of International Law.f Thus, International Law itself selects the different entities to which it ,grants international uezvgt,yj2ysaaowinglegal functions.4
.
,
(It is significant to note that it is not 'necessary for an entity to_possess all the rights and duties recognised by
46
International Law
International Law.5 If an entity is competent to perform only a few acts or even a single act as provided by the rules of International Law that entity would be regarded as to have possessed capacity to_ become a subject of International Law At the most it can be said that such entities possess restricted or limited capacity in contrast to unlimited or full capacity which is possessed by those entities which have been endowed most of the rights and duties, if not all, by the rules of International Law.6 It would be improper to say that the former does not possess personality in International Law at all, since it lacks the capacity to perform totality of rights and duties recognised by International Law. International Law being dynamic, has at present granted international personality to certain entities, which at a time did not possess it.7 In future, a few other entities may be granted personality, as and when they acquire capacity, which at present do not possess it., (Views ofJurists differ on the question as to what entities are deemed to_,,Je subjects_ of International Law. The difference of opinion has led to the emergence of three popular theories.) IV 1. Realist Theory According to one view 'states only are subjects of International Law'. This is the traditional concept of International Law wherein states alone, as sovereign political entities, were regarcleflas the subjects of International Law. According to this:theory, states alone are the bearers of rights and obligations under International Law. The theory is called `realist' whose propounders assumed that the states as an entity js legally distinguishable from the human beings who compose them. While the former are the ad _ 2j_Ws of International Law, latter are the objects of International Law. According to this view, individuals law and Juridical personality because they possess neither rights nor duties under International Law. If they have any rights at all, that be claimed only through the states.8
Subjects of International Law
47
The above view has been criticised mainly by modern International Law Jurists on the ground that certain rights and obligations have been endowed to entities other than states by the rules of International Law, and therefore, they also possess international personality.9 To say, that states only are the subjects of International Law is no longer tenable. Now doubt, the view held by 'realists' was correct as long as other entities were not accorded capacity to be a bearer of rights and' duties under International Law. However, at present, International Law is not confined to states only. The expansion of International Law into the economic and social welfare has stimulated an increasing number of participants in the international legal order. The theory is therefore, stands inadequate.') 2. This theory is opposite to realist theory. According to it, individuals only are the subjects of International Law like 1,111. 111S.322ilTI712 It is so because states do nothaysssuLancl they have no capacity to form and express an autonomous will. They are abstract structures acting through individuals elsen is of the view that rules of municipal law as well as those of International Law are meant for human beings. While the former is bindiLg on_lhean directly, the -idjuitly,tlagiLthr.augh-states. The theory hilterisainclingA are is based on a: only duties and rights of men who compcqe them, and therefore, it is ultimately individuals who are the subjects .of International Law. The theory is called àctianarlheszy__ since according to it the state has been regarded as a fiction) 3. Functional Theory In lipth.the above theories extreme views have been taken. While in the realist theory only states have been regarded as subjects_of Jnternational Law, in fictional theory, only individuals have been treated as its subjects. In the latter case individuals have been deemed as bjects not beuxse Igternatiosiall,aw endows Tights and duties to tam, but
48
International Law
due to the fiction that duties and rights of the states are the duties and rights of the individuals who compose them.13 The view again...implies that states alone are capable of having rjghts _and duties. It ls_onlybecause of the fiction, individuals have been regarded as subjects cf. International .,..,........,.. .._. Law,14 It is submitted that both the views do not stand correct if they are analysed at the present time.)
I., Nrea asvi R -,7 . , , .-
( It is true that International Law addresses most of the rigtaaLs1 -1 ...cludealQ_ the states. However, in the last fifty five changes have taken place in it.15 _ _ so, _, substantial ., . .._ Y.. or There is a proliferation of newpailicionts in international relations. International organisations distinct from states, have been endowed zightsancl, ,duties, in addition to states. International organisations perform certain legal functions and they have 4istinct legal personality in International Law separate from that of the member states.16 ACTIVE AND PASSIVE SUBJECTS It is true that other entities, for instance, individuals and international organisations have been granted rights and duties in most of the cases by the states themselves, and they therefore, are the instruments in the hands of states.17 They would cease to exist as the subjects of International Law on the day of states decide to get rid of them. It follows that International Organisations and individuals are derivative subjects or passive subjects in the sense that they draw their existence from the formal decisions of other subject Le., states who may be called active subjects because law is created exclusively by them.18 Thus, active members poz. --zess the monopoly of the creation of International Law, the merely passive members of the community of states are simply creatures of International Law. States may be called original subjects because they are independent of any formal decision of existing subjects. However, it does not matter much as to who gave them rights and duties.19 The material point is that if they are capable of performing rights and duties under International Law, they would be regarded as
49 Subjects of International Law subjects of International Law. Such rights and duties may be in their possession either because of the customary rules of International Law or because of the conclusion of international conventions.2 It is significant to note that International Organisations as subjects of International Law differ from other subjects of International Law such as states. International organisations do not possess territory and population, and therefore, they do not exercise territoria supremacy and sovereignty. However, it is not necessary that in a given system of law, all the entities should be identical in their nature. They may differ in nature from one to another.21 It is apparent from the above discussion that the position of subjects of International Law has greately changed o.ith the passage of time. Originally, sovereign states were the only actors in the international community, but in the present century, new non-state entities such as International organisations and institutions and individuals have been given the status and rank of international legal subjects .22
is sjiAFr
Introduction (States are the primary subjects of International Law. _ ifficult to define the term 'state' since it may However, it is d have different meanings. In constitutional law, it may mean something quite different from what it means in International Law. It is therefore _difficult to lay down an appropriate definition: 23.From the International Law point of view, the term is relevant because those communities which are not states, are excluded from having capabilities in International Law. For the purpose of International Law a state may, therefore, be defined is a society of men occupying a territory, the members of which are -bound together by the -tie of common subjection to a government and which has capacity to enter into relations with other entities,Any entity which possesses even the smallest measure of these attributes may be termed a state.24 (Montevideo Convention on thee Rights and Dutie,s,A)Latatees
.
50
International Law
afja53 did not define the term 'state.' Instead, it laid down certain `cualficatialszji states which are more or less identical with the definition given above. The cOn ven tiOri under Article 1, stipulated that X/P. ,The state as a_person of:jiitarzatianalidaz should possess the following qualificationsOla permanent population, 2..a defined ,territory, 3. a government, and 4.capacity to enter into relations with other states.' 1. Population I' By the term population is meant people. A people is an aggregate of individuals who live together as a community though they may belong to different races or creed or cultures, or be of different colour. A territory where people have not settled down, that is, where there exists a haphazard aggregation of individuals, that would not be regarded as a state.25 A wandering people is not a state. Population must form itself into an organised society. Permanent population instead of population as one of the qualifications of a statqPopulation of a state includes those who are staying in other states ag_ well as foreign nations permanently residing in a state.26 2. Territory t" .
A state _must have a territory. It is immaterial whether the

territory where the people have settled down is small or large. There is no _lower limit to_ the size, of a state's population. Naura, for example, has less than 10,000 inhabitalits. There are many other states which have exceptionally small population, And are sometimes called micro state or mini-states, but_they are states.27 They are eligible for membership of the United Nations if they satisfy the conditionalaid down under Article 4 of the U.N. Charter. . .n only;4It may consist, as in the cassofsitutates, of one tow It is to be noted that International Law always insists that a state should have possession and control over a territory. However, in exceptional cases, if a state has lOst control over the territory for a short time, it will still be
51
deemed to possess territory. For instance, if the territory of a state has been forcibly occupied by a foreign state the occupant is not entitled to treat the occupied territory as its own territory. The ousted sovereign still retains all the residue of legal authority not attributed to the occupant. On this proposition, Palestine (declared by PLO in 1988), whose territory has remained under occupation of Israel, would be called to have possessed territory.28 The territory was given to it by the United Nations through the adoption of a resolution in 1947, on which the existence of the state of Israel is based. The resolution had mentioned the creation of an Arab state undoubtedly, Palestine state. It was only the reality of 1947 that has been given on institutional form by the declaration of statehood in 1988.29 3. Government The people the terrilou should be governed by a Government.. A state, always acts as a government. A state which does not have a government for to say an archistic community) is not regarded as a state. It is significant to note that the government should not necessarily be an elfssijavgaigolffal3- Although the traditional International Law a stabled and effective government was regarded as an essential element of statehood, at present this requirement has been obsolete in view of its rigidity. ivezosernment_is against the principle Tkeson of self-determination, and therefore, it has ceased to be an attribute of statehood. There may be different types of government. A De Jure government whose origin or existence is in conformity with the constitutional law of the state represented, and whose legality is uncontested in international law. 2. A De Facto government is a government whose. origin and existence is contrary to the constitutional' ' law of the state concerned and legality is challenged in International Law.32
52
International Law It may be of a local nature when it controls only part of the population and territory of a state and of a general nature when it has reached complete control, especially after revering the de Jure governmcnt.33 In respect, it can be regarded as an interim government if it is defeated, and as a provisional government if it become the'new defuse government. 3. A military government is the authority by which an occupying power exercises control over a foreign state. 4. A government in exile which has been forced to leave the territory of its state due to enemy occupation or civil war and which claims governmental powers with the consent of the state of residence and possibly other states, as long as there exists a genuine chance to return.34
Capacity to Enter into Relations with other states
( A state must have the capacity to enter into relations with other states in order to call it a 'state' in International Law. raitaiialifisation distinguishesthe_p9sition of the Central Government of a federal state and the position of the governments of the various parts of the federation. Thus, in those states, for instance in India, Are federated states do not possess a capacity to enter into relations with other states, are not regarded as states when looked from the International Law point of view.35 Similar is the case of the states of the United States of America and of the Commonwealth of Australia. However, if the national constitution allows federated states the right to conduct their own external relations, as it was with the Soviet Republics, their status under International Law bessunes similar to that of the status of a sovereign state.36 It is significant to note that even a very small principality may be a state for general purposes of International Law provided the criteria of statehood is satisfied. Micro-states or mini-states are those which are "exceptionally small in area, population and human and
... s
53 economic resources", but they are independent and are called in International Law. An entity is treated as a state if the above attributes of statehood are possessed by it. However, if a state possesses them by affending fundamental norms of the international legal order, its stateshood may be denied by the United Nations. A claimant new state emerging as a result of aggression, the application of a system of racial discrimination, or the denial of the right of selfdetermination is condemned by the United Nations. When territory is acquired by the use of force contrary to the U.N. Charter, it is also condemned.37 RIGHTS AND DUTIES OF STATES States are the primary subjects of International Law. It is so because they have been endowed to totality of rights and duties umder International Law. Nature and character of these_rights are afferent, asmiiherefore, their _importance also varies. Some of the n hts and du ala ag n them. They therefore, 11437.0:wen termed aefuralmattliar or "bpsiglsigli*T" The above impliestligtright,s_onae hstates may .he.,either 'fundamental or nonfundamenianSuch a distinction does not appear to be sound in the sense that all the rights of the states, whether they are fundamental or otherwise, have been recognised by international community and are required to be respected.39 The basis of the rights and duties of the states, according to the naturalist school is the natural law. This theory was dominant throughout the seventeenth and eighteenth centuries. The writers of the above period were of the view that International LaW derives from the natural law, and therefore, rights and duties of the states which have been conferred to them by the rules of International Law are also based on the law of nature. However, the writers of the present century do not agree with the above view. They are of the opinion that rights and duties have been conferred to the states through custom and treaties. Any act may be
54
International Law
regarded, by the conclusion of a treaty as a right of a state. It follows that states themselves have decided as to what are their rights and duties.4 States do posses certain rights and duties, but their exact enumeration cannot be possibly given. In the past, a few attempts have been made to codify these rights and duties by the international conferences. For instance, Institute of International Law in 1916, the Montevideo Convention of 1933 on the Rights and Duties of states have attempted to enumerate the various rights and duties of states but their attempts have failed to produce any precise rule in this regard mainly because they were not acceptable to all the participating states.41 When the United Nations was established, the General Assembly on November 21, 1947 adopted a resolution by which it instructed the International Law Commission, "to prepare a draft declaration on the rights and duties of states presented by Panama and taking into consideration other documents and drafts on this subject.42" In conformity with the above resolution, the Draft Declaration on the Rights and Duties of the states was prepared by the Commission. The preamble of the Declaration inter al is stated thatit is therefore, desirable to formulate certain basic rights and duties of states in the light of new developments in International Law." Following rights and duties of the states are set forth in the Draft Declaration. RIGHTS OF THE STATES 1. Right to Independence Article 1 of the Draft Declaration lays down that every state has the right to independence and hence to exercise freely, without dictation by any other state, all its legal powers, including the choice of its own form of Government. 2. Right to Territorial Jurisdiction Article 2 provides that every state has the right to exercise jurisdiction over its territory and over all persons and things
55
therein, subject to the immunities recognised by International Law.43 3. Right to Equality Article 5 of the Declaration provides that every state has the right to equality in law with every state. 4. Right to Self-Defence Article 12 states that every state has the right of individual or collective self-defence against armed attack. The above language is based upon that employed in Article 51 of the Charter of the United Nations. DUTIES OF STATES 1. Duty to Refrain from Intervention Article 3 provides that every state has the duty to refrain from intervention in the internal or external affairs of any other state. 2. Duty to Refrain from Fomenting Civil Strife Article 4 says that every state has the duty to refrain from fomenting civil strife in the territory of another state, and to prevent the organisation within its territory of activities calculated to foment such civil strife." 3. Duty to Respect for Human Rights and Fundamental Freedoms Article 6 lays down that every state has the duty to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms, without distinction as to race, sex, language, or religion. It is to be noted that reference to the duty of a state to respect for human rights and fundamental freedom was inspired by Article 1(3), article 13(1) (b), Article 55(c) and Article 76(c) of the Charter of the United Nations and by the Universal Declaration of Human Rights.45 4. Duty to Ensure International Peace Article 7 of the Declaration lays down that every state has the duty to ensure that conditions prevailing in its territory do not menance international peace and order.46
56
International Law
5. Duty to Settle Disputes by Peaceful Means Article 8 of the Declaration provides that every state has the duty to settle its duties with other states by peaceful means in such a manner that international peace, security and justice, are not endangered. The above language follows closely Article 2(3) of the Charter of the United Nations.' 6. Duty to Refrain from Resorting to War Article 9 lays down that every state has the duty to refrain from resorting to war as an instrument of national policy, and to refrain from the threat or use of force against the territorial integrity or political independence of another state, or in any other manner inconsistent with International Law and order. It is to be noted that while the first phrase of Article 9 is fashioned upon the provision in the Treaty of Paris for the Renunciation of War of 1928, the second phrase follows closely the provision of Article 2(4) of the Charter of the United Nations.48 7. Duty to Refrain from Giving Assistance Article 10 provides that every state has the duty to refrain from giving assistance to any state which is acting in violation of Article 39, i.e., violation of the duty to refrain from resorting to war, or against which the United Nations is taking preventive or enforcement action. The second phrase follows closely the language employed in the latter part of Article 2(5) of the Charter of United Nations.49 S. Duty to Refrain from Recognising Territorial Acquisition Article 11 lays down that every state has the duty to refrain from recognising the territorial acquisition by another state acting in violation of Article 9 which lays down if any state acquires territory of another state by resorting to war, that:-,,, acquisition shall not be recognized.5 9. Duty to Carryout Obligations in Good Faith Article 13 lays down that every state has the duty to carry out in good faith its obligations arising from treaties and
57
other sources of International Law, and it may not invoke provision in its constitution or its laws as an excuse for failure to perform this duty. The phrase Treaties and other sources of International Law has been borrowed from the preamble of the Charter of the United Nations. The first phrase is a reinstatement of the fundamental principle of International Law Pacta Sunt Servanda.51 The concluding phrase reproduces the substance of the pronouncement by the permanent court of International Justice in the advisory opinion given in the Treatment of Polish Nationals and other persons of Polish Origin. 10. Duty to Conduct Relations with Other States Article 14 lays down that every state has the duty to conduct its relations with other states in accordance with International Law and with the principle that the sovereignty of each state is subject to the supremacy of International Law.52 ECONOMIC RIGHTS AND DUTIES OF STATES ,---The 1970s could be called the decade of international economic diplomacy. It was a period in which economic issues were given top priority at the highest levels of government and at the United Nations.53 It is to be noted that the Declaration and the programme of Action was adopted without vote at the United Nations Conference on Trade and Development. On December 12, 1974, the General Assembly at its 29th session adopted a resolution which is known as the Charter of Economic Rights and Duties. They are as follows : 1. Right to Choose its Econothic System Article 1 of the Charter says that every state has a right to choose its economic system as well as its political, social and cultural system in accordance with the will of its people without outside interference, coercion or threat in any form whatsoever.54
58
International Law
2. Permanent Sovereignty Over Natural Resources Article 2 of the Charter lays down that every state has and shall exercise full permanent sovereignty including possession, use and disposal over all its wealth, natural resources and economic activities. The Article also deals with permanent sovereignty of a' state over foreign investment, nationalisation and transnational corporation.55 3. Right to Engage in International Trade Article 4 provides that every state has the right to engage in international trade and other forms of economic cooperation irrespective of any differences in political, economic and social system, and that no state shall be subjected to discrimination of any kind based solely on such differences .56 4. Right to Associate with Producer Organisations Article 5 deals with the right of all states to associate in organisations of primary commodity producers so that they may develop their national economics. 5. Right to Participate in International Decisionmaking Process Article 10 lays down that all states being juridically equal, have the right to participate fully and effectively in the international decision-making process in the solution of world economic, financial and monetary problems, and to share equitably in the benefits resulting therefrom.57 6. Transfer of Technology Article 13 recognises the right of every state to benefit from the advances and developments in science and technology for the acceleration of its economic and social development. ECONOMIC DUTIES OF STATES 1. Duty of Promotion Expansion and Liberalisation of World Trade Article 14 provides that every state has the duty to cooperate in promoting a steady and increasing expansion and
59
liberalisation of world trade and an improvement in the welfare and living standard of all peoples, in particular of developing countries. 2. Duty of Utilisation of Resources released by Disarmament Article 15 of the Charter says that every state has a duty to promote the achievement of general and complete disarmament under effective international control and utilise the resources freed by effective disarmament measures for the economic and social development of countries allocating a substantial position of such resources as additional means for the development needs of developing countries. 3. Duty of Most-favoured Nation Treatment Article 26 of the Charter provides that all states have the duty to co-exist to tolerate and live together in peace, irrespecting of differences in political economic, social and cultural systems and to facilitate trade between states having different economic and social systems.58 4. Duty of Indexation of Prices Article 28 of the Charter recognises that all states shall cooperate in achieving adjustments in the prices of exports of developing countries in relation to prices of their imports so as to promote just and equitable terms of trade for them, in manner which is remunerative for produces and equitable for producers and consumers.59 5. Duty of World-Wide Commodity Agreements Article 6 of the Charter provides that it is the duty of states to contribute to the development of international trade of goods, particularly by means of arrangements and by the conclusion of long-term multilateral commodity agreements.69 The above list of economic rights and duties of states is not exhaustive. However, they are fundamental for the economic development of the states.
60
International Law
2. STATE RECOGNITION The topic of recognition may be broadly divided into recognition of states, recognition of government, recognition of belligerency and recognition of insurgency. RECOGNITION OF STATES An entity in orcter to be called a state should possess essential attributes of statehood such as population, territory, a government and the capacity to enter into relations with .1ther states. When possession of these attributes in a state is acknowledged by other existing states, it is known as recognition of states i Recognition may therefore, be defined as a formal acknowledgement by the existing members of the international community of the international personality of a new state.) 10 Oppenheim lays down that the grant of recognition estab ishes that the new state, in the opinion of existing recognising states, fulfils the conditions of statehood required by International Law, so that the new state can be regarded, quoad the recognising states, as an international person possessing the rights and duties which International Law attributes to states.62 Practice of states suggests that on many occasions a new state is not recognised by other states even if the former fulfills the essential conditions of statehood and on some occasions recognition is granted even if the new state does not passess all the attributes of statehood. It is said, therefore, that the acknowledgment of the possession of the attributes of statehood in a state depends upon the discretion of the existing states. The discretionary and unilateral power is exercised in accordance with the policy of a state.63 For instance, although Israel was established in 1948, some Arab states have with held recognition of Israel. The discretionary power implies therefore, that recognition of states is a political act of a state. Consequently, withholding of recognition is not to be taken necessarily as the denial of the existence of a state. Recognition therefore, is not the conclusive proof of the existence of a state."
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LAW ON RECOGNITION OF STATES Recognition is granted to a state mainly on political considerations. It was therefore, thought that regulation of this topic by means of international convention is neither desirable nor feasible. The International Law Commission, after realising the importance of the topic, in its first session held in 1949 included 'Recognition of States and Government' as one of the topics in the provisional list of fourteen topics considered suitable for codification. Later on, the topic was removed from the programme of the commission on the ground that the 'questions of recognition pertain to the province- of politics rather than of laws.'65 Thus, at present rules regarding recognition are not well settled. In the absence of any codified rules, the topic .of recognition is governed by the state practice and judicial decisions. THEORIES OF RECOGNITION The legal significance of recognition is controversial. This has led to emerge different theories which are as follows : 1. Constitutive Theory According to this theory, personality of a state is created not by fact but through recognition by other states.: In other words, an entity does not become a state by possessing essential attributes. of sta.tehood. It becomes so, when it is recognised by other _states.66 It implies that other states constitute the personality of a state by granting recognition. This theory has been advocated by Anzilotti and Holland. According to them, a new entity cannot become a state ipso facto. It has to be recogniaed by other states so as to become an international person., The theory attaches great importance to the act of recognition.67 The constitutive theory suffers a number of defects which are as follows : 1. When a state .comes into possession of all the attributes of statehood, it is not necessary that its
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International Law existence is recognised by other states simultaneously. The timing of recognition may be different from one state to another. It therefore, always happens that at a particular time a state has been recognised by some states only For instance, while China was recognised by the United States in the year 192.9, many other states had granted recognition earlier.68 Similarly Bangaladesh was recognised by Pakistan much after the recognition granted by India and some other states. In practice, the situation always arises when a new state comes into existence. The acceptance of the constitutive theory would mean that state exists for some states (which have granted recognition) and does not exist for others (which have not granted recognition). This situation shows that recognition is not a conclusive proof for the existence of a state:6 ,9 2. Recognition is a political act of a state. If this theory is accepted, it would mean that the fate of the new state would be determined by other states. It may be noted that recognition by no means produces subjects of International Law. It is not desirable to give discretionary rights to the existing states, whose acts are guided not by legal norms, to decide the status of the new entity.76 3. Recognition is the acknowledgement of the existence of the attributes of statehood in an entity. It implies that a state always exists prior to its recognition. Recognition follows after cognition of facts. Unless and untill a state exists, the question of recognition would never arise.71 4. Recognition has a retrospective effect. In other words, when a new state is recognised by other states, the latter is recognised to have recognised all the acts of the former from the date of its establishment. It follows that a state at the time of granting recognition to a new state accepts that it has come into existence prior to its recognition. For
Subjects of International Law 63 instance, although Bangladesh was recognised by Pakistan two years after it came into existence, it recognised all the acts of Bangladesh from the date of its creation. It implies again that a state exists prior to its recognition.72 The above criticisms show that the constitutive theory is sound neither in principle nor in practice. 2. Declaratory Theory According to this theory, a state comes into existence in International Law as soon as it acquires all the attributes of statehood. By having all the attributes, an entity exists in fact. Recognition by other states supplies the evidence of this fact.73 The act of recognition is therefore, declaration of an existing fact that an entity possesses the essential attributes of statehood. This theory has been advocated by Hall, Brierly and Fishes. According to Hall, a state enters into a family of nations as a right when it has required the essential attributes of statehood.74 Brierly has stated, "A state may exist without being recognised, and if it does exist in fact, then, whether or not it has been formally recognised by other states, it has a right to be treated by them as a state." The advocates of this theory have therefore, reduced the importance of recognition by saying that recognition is necessary only because it enables new state to enter into official intercourse with other states.75 The effect of recognition of a new state by the recognising -Itate according to this theory is to create a relationship between them. The tneory appears to be better than the constitutive theory. However, it still has a defect in the sense that a state although would come into existence by having all the essential attributes a statehood, it would not have legal relationship with other states unless recognised.76 The theory therefore is not strictly declaratory. It has elements of constitutive theory. A question arises as to which of the above two theories is correct. It is submitted that neither of them alone is correct. The practice of states shows that recognition has
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elements of constitutive theory as well as that of declaratory theory. In order to answer the above question, statehood may be distinguished into natural statehood and Juridical statehood. A state comes into existence by possessing all the e3sential attributes of statehood. At this moment, it acquires natural statehood in the sense that it acquires an international personality, and possesses minimum rights of existence.77 For instance, its territory cannot be considered to be no man's land i.e., its territory cannot be invaded or occupied, other states do not have a right to overfly without permission, they must also refrain from subverting its domestic political system. They must also respect the rights of the new state over the high seas and ships flying its flag cannot be considered stateless.78 Institute of International Law in its resolution of April 23, 1936 had correctly stated under Article 1 para 3 that the existence of the new state with all the legal effects connected with that existence is not affected by the refusal of one or more states to recognise.79 Thus, a new state possesses natural statehood even if it has not been recognised by any state. However, it acquires Juridical statehood when it possesses more specific rights. This statehood can be acquired by a state only when it is recognised by other states. Thus, recognition although is declaratory of the existence of the natural statehood, it is constitutive of juridical statehoold. Oppenheim has rightly stated that recognition, while declaratory of an existing fact, is constitutive in its nature at least so far as concerns relations with the recognising state.84 It marks the beginning of the effective enjoyment of the international rights and duties of the recognised community. It follows that recognition is constitutive only of more specific rights and not of the minimum rights of existence. The above view taken by Kelsen may be termed as modified constitutive theory, because the recognition constitutes only one type of statehood, i.e., 'Juridical' statehood. Natural statehood exists in a state from the moment it comes into possession of the essential elements of statehood.81
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FORMS OF RECOGNITION A state may be recognised in two ways. They areexpress recognition and implied recognition. 1. Express Recognition When an existing state recognises the new state by a notification or declaration, announcing the intention of recognition, the recognition is said to be express. In other words, it is granted in express terms. The formal declaration may take the form of public statement, the text of which is sent to the party recognised as a state.82 A state may be recognised also by sending diplomatic note, note verbale, personal message from the head of state or Minister of Foreign Affairs, or by a parliamentary declaration. The Minister concerned may also, by press statement, expressly declare, that an otherwise ambiguous Note or Note verbale constitutes formal recognition.83 Recognition of Bangladesh by India on December 6, 1971 is an example of express recognition. Similarly, recognition accorded to the three Baltic republics, i.e., Lithuania, Estonia and Lativa as Sovereign and Independent States by India on September 7, 1991 was also an example of express recognition.84 The Indian Prime Minister sent the messages to this effect to the presidents of the three states. Express recognition may also be granted by the conclusion of a treaty. This practice has been employed by the United Kingdom in establishing the independence of its colonial or other dependent territories. For example, under the treaty between UK and Burma signed on October 17, 1947, the United Kingdom recognised Burma as a fully independent and sovereign state.85 2. Implied Recognition When the existing states do not make any formal declaration as to recognition of a new state, but at the same time they indicate their intention to recognise the new state by some acts it amounts to recognition. Montevideo convention of 1933 under Article 7 states that the tacit or implied
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recognition results from any act which implies the intention of recognising the new state.86 Recognition of this type is referred to implied recognition. The intention may be indicated by the states unilaterally or collectively, (a) Unilateral Acts : When a state enters into a bilateral treaty, or establishes diplomatic relations with an unorganised state, it may be inferred that the former has granted recognition to the latter.87 Similarly, intention may also be inferred by sending representatives to attend ceremonial functions in an unorganised state. The exchange of consuls, i.e., despatch and reception of consuls with an unorganised state also indicates an intention to recognise the new state.88 (b) Collective Acts : A new state may be recognised collectively by the existing states. It occurs when an unorganised state participates in a multilateral conference or in a multilateral treaty, the other participants of the conference or parties to the treaty are regarded to have recognised the new state of the intention has been indicated. Indication of the intention is therefore, the determining point in granting recognition in the above cases.89
3. De-facto Recognition
(When an existing state considers that the new state has not it may grant recognition to the a cquired latter provisionally which is termed de facto recognition. De, facto recognition is granted normally when_the recognising state considers that the new state although has a legitimate governmentits effectiveness and continuance to govern the territory is dolibtful.6 The grant of de facto recognition sh9ws willingness on the part of the recognising state to establish relationship with the new state, but the willingness is given provisionally, i.e., subject to the fulfilment of all the_ attributea_of statehood with sufficient stability. This may be regarded as a preliminary step towards de Jure recognition.9' Further, de facto recognition of a state enables it to protect the interests of its citizens. Further, it also enables the recognising state to acknowledge
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the external facts of political power, and protect its interest and trade on the de facto recognised state. However, the effect of the de facto recognition is not the same as that of de Jure recognition. Normally, diplomatic relations are not established with a de facto recognised state.92 Further, representatives of the de facto recognised states do not enjoy diplomatic immunities within the territory of the recognising state. However, practice of the states in this regard is not uniform. According to the practice of the United States, representatives of a government recognised de facto enjoy diplomatic immunities.93 4. De-Jure Recognition When an existing state considers the new state is capable of possessing all the essential attributes of statehood with stability and permanency, the recognition granted is known as de Jure recognition. In other words, de Jure recognition is final. De Jure recognition may be given, with or without prior to de facto recognition. When a new state comes into existence peacefully and constitutionally, de Jure recognition may be granted directly. However, when it is not so, to say when the new state is formed through revolt, recognition may be granted after granting the de facto recognition." Differences Following are the difference between the two : I.- De facto recognition being provisional can be with ---/ drawn on many grounds other than those justifying withdrawal of a de Jure recognition.95 2. While full diplomatic relations cannot be established with a de facto recognised state, it can be done so when a state is recognised de Jure. According to the practice of some countries, including the United Kingdom, de facto recognition does not, as a rule, bring about full diplomatic intercourse.96 3 While full diplomatic immunities are not granted to the representatives of the de facto recognised
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state, the representatives of the de Jure recognised state are granted such immunities.97 4. While the de Jure recognised state can claim to receive the property situated in the territory of the recognising state, de facto recognised state cannot make such claim.98 The Soviet Government could get possession of Ts r_arist Archives and other property in England only when the latter accorded de Jure recognition to the former in 1924. 5. Where a certain property situated within the territory of another state has been claimed both by the de facto and de-Jure government, the claim of the de facto government may normally bejgaured.99 6. Official visits to and official dealings with the state in relation to its additional territory which has been recognised de facto may be kept to a minimum or avoided altogether.100 The above differences between de facto and de Jure recognition make it clear that the distinction between the two is of a purely political nature. 5. Pre-mature or Precipitate Recognition Recognition is granted to a new state when it possesses all the attributes of statehood. However, since it is a political act, sometimes it is granted to an entity even if it does not possess them.101 Such recognition is termed as pre-mature recognition or precipitate recognition. It is to be noted that premature recognition given to a state amounts to an unwarranted and illegal intervention in the affairs of the existing state. When some of the African states recognised Biafra as a new state, it amounted to illegal intervention in the internal affairs of Nigeria.12 Later, when Biafra was defeated, Nigeria might claim damages from those states for having granted premature recognition. Similarly, the recognition of Israel by the United States on May 14, 1948 has been regarded as precipitate recognition. It was granted on the same day the Israeli Act of Independence became
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effective, notwithstanding that the existence of the state of Israel was not by then firmly established.13 6. Conditional Recognition The expression conditional recognition implies that the recognition is granted subject to the fulfilment of certain stipulation by the recognised state in addition to the normal requirements of statehood. The concept of conditional recognition was introduced with the protocol of June 28, 1878 signed on behalf of Great Britain, France, Italy and Germany for the recognition of Serbia.14 The protocol stated that they recognise serbia under the condition that it should not impose any religious inabilities on any of its subjects. Conditions are imposed wherein the recognising state obtains, as the price of recognition, promises, and undertakings given for its particular advantages. Oppenheim rightly says that recognition, in its various aspects, is neither a contractual arrangement nor a political concession. It is a declaration of the existence of certain facts. Any condition attached at the time of granting recognition is contrary to the true function of recognition.w5 Once a state has granted recognition to. a new state, it implies that in the opinion of the former, latter possess all the attributes of statehood. The recognised state possess the distinguishing marks of a state.16 It implies that laying down a condition for the recognition is meaningless. If the condition is not fulfilled by the recognised state, it will not annual the recognition, though the relationship between the recognised and recognising state is likely to become unfriendly. Consequently, it will open to the recognising state to sever diplomatic relations or to take some other forms of sanction.17 However, as far as recognition is concerned it shall have no real effect. Perhaps, because of this reason, conditional recognition has disappeared from contemporary priffice. 7. Recognition of Belligerency When the civil war takes place in a state in such a dimension that other states start treating it as a real war
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between the rival powers, it is said that the state of belligerency exists.18 When the rebels are recognised, it is known as recognition of belligerency. The recognition of belligerency shows that the recognising state considers that the rebels are in a position to exercise authority over the territory in their possession. Starke says that before belligerency is recognised by other states, certain conditions must exist.19 They areFirstly, hostilities should be of a general character. It should not be confined to only a part of the state. In other words, it should not be of a purely local nature. Secondly, the rebels or insurgents must be in control of a substantial part of national territory. This would justify the inference that they represent a rival power of some magnitude. Thirdly, both parties must act in accordance with the laws of war, and Fourthly, rebels must have organised force under a proper command. If these conditions are present in the rebels, they may be recognised by other states which in International Law is called recognition of belligerency.11 Once the rebels are recognised by other states, certain consequences follow. Recognising state can declare its attitude of impartiality in the conflict i.e., it may opt for the attitude of neutrality. This attitude would enable the recognising state to possess all the rights which the neutral states are normally granted in International Law. Such rights are required to be respected by rival parties involved in a conflict.111 Likewise, recognising state is also bound to accord the rights of belligerents to the warring parties such as, right of admission of their ships into its port, the right to visit and search at sea. 8. Recognition of Insurgency When in a civil war, rebels or insurgent forces start operating in such a way that they occupy a large part of the territory formerly governed by the parent government, and they constitute de facto authority over it, the rebels or insurgents may claim some measure of international subjectivity. After the Second World War, a number of cases of internal conflicts occurred. Instance of some of them are-
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in Greece (1946-49), in Northern Ireland and in Hungry (1956), in Czechoslovakia (1968), in Congo (1960-61) Yemen (1962-69), Nigeria (1967-70), Nicaragua (1978-79) and the Elsalvador (1979-83).112 When the insurgents or rebels are recognised by other existing states, it is known as recognition of insurgency. Before insurgency is recognised, recognising state is required to satisfy the following conditions. Firstly, insurgents have occupied control over a considerable part of the territory. Secondly, insurgents have a support from the majority of the people inhabiting the territory.113 Thirdly, when the rebel forces do not act under the command of an organised authority in possession of considerable territory or when they do not by their conduct offer the necessary guarantees of complying with the accepted rules of war. If the rebels are defeated, or to say, if they fail in their attempt to secede or in the seizure of power, recognition granted to them falls to the ground. However, if the rebels aim at secession, come out successfully in the civil war, the recognition of insurgency is deemed as the first step on the road to recognising them as a new state.114 As a general rule, when a civil war takes place in a country, other states are not required to interfere in it as it is a domestic affair of a state. Any interference from the international community is bound to bolster insurgents and make them even more dangerous. It is an unlawful act.115 However, in some cases, it becomes impossible to remain aloof in such a state of affair, and therefore, recognition is granted so as to protect the interest of nationals, property and also for securing commercial intercourse. Further, some states may be inclined to recognise the insurgents on account of political religious or ideological affinities or because of military or strategic considerations.116 When the insurgency is recognised by a state, latter protects the insurgents from being treated by it as Pirates. It is to be noted that the recognising state itself acquires no new rights so far as its relations with the insurgents are concerned. De facto recognition of insurgents by the Great Britain in the
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Spanish Civil War (1936-39) in regard to the territory under their control is an example of recognition of insurgency.117 A question arises whether a state of insurgency where rebels are fighting without an organised force and without a commander and without following the rules of warfare and where the nature of hostility is almost localised can justifiably be recognised by other states.118 It has been stated that such an affair should not be recognised. It is significant to note that the political situation in the state of insurgency remains uncertain and confusing, and if this would begin to be recognised by other states, it would lead to greater tension and conflict in the international relations.119 The recognition of the state of insurgency should be discouraged also because sometimes it may amount to intervention which is illegal and contrary to the principle of the Charter of the United Nations.12 3. STATE. SUCCESSION Introduction By 'State Succession' is meant the substitution of one state by another over a territory. It signifies transfer of rights and duties from one international person to another in consequence of a territorial change.121 Oppenheim lays down that 'a succession of international persons occurs when one or more international persons take the place of another international person, in consequence of certain changes in the latter's condition.122 The Vienna convention on succession of states in Respect of Treaties of 1978 defines state succession likewise by stating under Article 2(1)(a) as the replacement of one state by another in the responsibility for the international relations of territory. Thus, a case of succession arises only when one subject of International Law enters into rights of another. Succession can only take place between at least two states of International Law.123 The definition applies to all the cases of state succession except to that of mandate or trust territory when it is not sovereignty but a special type of legal competence is
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replaced. A state which has replaced another is called the `successor state', or in some cases 'new state'. However, the expressions 'successor state', and 'new state' are not synonymous. The former is wider in application. The term `new state'124 signifies a state which has arisen from succession where a territory, which previously formed part of an existing state, has become an independent state. This includes succession of a part of the metropolitan territory of an existing state, and the succession or emergence to independence of a former dependent territory. The state which has been replaced is known as 'parent' or 'predecessor _ state'. TAT1 State succession may occur n t.---ways-; i.e., universal succession and partial succession. 1. Universal Succession In cases where the personality of the predecessor state is completely destroyed, and is absorbed by another international person, the succession is termed 'universal' or total. It may take place either through voluntary merger, or through annexation or through subjugation. Thus, it was total succession when prussia annexed Hanover in 1866 or the South African Republic was annexed by Great Britain in 1901, Korea by Japan in 1910, Austria by Germany in 1938.125 Universal succession also takes place when a state voluntarily merges with another state. Unification of Germany with the result of the merger of German Democratic Republic with the Federal Republic of Germany in 1990 is an instance of universal succession.126 It may be noted that in some cases, the succession which takes place cannot be called universal because, here, the successor states succeed not to all the rights and obligations of its predecessor, but only to a part thereof. The remaining part passes to other successor state or states. Where substitution is not complete but partial, it cannot be apathy termed universal succession.127
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2. Partial Succession When a part of the territory is severed from the present state, and personality is affected only to the extent by which the territory is transferred, what results partial succession. Partial succession takes place, for instance, either by secession, i.e., separation from the parent state, or by cession, or by conquest and annexation of a part, or by dismemberment i.e., when a state is replaced by two or more states. Succession of Estonia, Lativia and Lithuania in 1991 from the U.S.S.R. and of Slovania and Croatia from Yugoslavia in 1992 are the examples of partial succession.128 Further, replacement of the Soviet Union by 12 sovereign states in December 1991 and the replacement of Czechoslovakia by Czech Republic and Slovak Republic on January 1, 1993 are the examples of the partial succession. However, in those cases of succession where the loss of the territory is considerable or where a state loses certain essential portion of the territory is considerable, or where a state loses certain essential portion of the territory is considerable or where a state loses certain essential portion of the territory, it may mean the dissolution or end of the state.129 For instance, following the succession of Slovania, Macedonia and Croatia, and later, of Bosinia and Herzegonina in 1992, the Federation Republic of Yugoslavia lost a considerable part of its territories. It was regarded that the Federation of Yugoslavia has come to an end. It was not permitted to be seated as a continuing member of the United Nations. Those cases are also referred to partial succession where a full sovereign state looses part of its independence through entering into a federal state, or coming under Suzeranity or under a protectorate, or when a not fully sovereign state becomes fully sovereign. 130 Universal as well as partial succession may take place either voluntarily or by revolt. When the replacement is peaceful, disruption of legal continuity is minimised by mutual adjustment. One of such methods is the conclusion of 'inheritance' or 'devolution' agreement which is concluded between the precedessor state and the successor state. Such
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agreements have been concluded between Burma, Ceylon, Cyprus, Ghana, Jordon etc.131 But where the change occurs through revolt, as in the case of Bangladesh, the gap between the predecessor state and the successor state is not bridged. The result is that the transferred territory 'quickly becomes a prey to chaos and anarchy.132 THEORIES OF STATE SUCCESSION 1. Universal Succession Theory The earliest doctrine of state succession treats the process as the substitution of one state for another. According to this view, the successor state enjoys all the rights and discharges all obligations of its predecessor. The new state is regarded as a direct heir of its predecessor's personality in the same way as the heirs continued the personality and legal relations of the deceased in private law.133 This theory may be described as the doctrine of Universal Succession because all the rights and duties of the predecessor pass ipso Jure to the successor as elements of the estate. The idea of the succession in this sense has been derived from Roman Law, but the field of state succession in International Law was first introduced by Grotius and was adopted by Pufendorf and Vattel. However, the theory of Universal succession suffers from a number of defects. It has been assailed by many writers on several grounds. Firstly, the analogy of the succession of private law has been characterised as inaccurate. Secondly, the rights and duties of the individuals and that of the states cannot be compared.134 2. Continuity Theory Suffering as it did from such short comings, the Roman Law theory of state succession did not find acceptance and could not be expected to become transformed into practice by the state.135 These defects have led Max Huber to contribute another theory which he has referred to continuity or universal succession theory. His theory is, infact, modification of the universal theory. According to him, the
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notion of succession is a general one in law, and belongs exclusively neither to private nor to public law. Succession is substitution plus continuation.136 The successor steps into the place of the predecessor and continues his rights and obligations so far the succession of private and public law agree. Thus, the successor state firstly, substitutes the personality of its predecessor and secondly, takes all the rights and obligations of the predecessor as a bundle of Jura. All the benefif lnd burdens of the predecessor pass to the successor state However, the new state does not discharge those obligations of the predecessor which are essentially political in character. This doctrine was followed by Westlake in Toto."7 The theory has been criticised on several grounds. Firstly, in cases of cession, this doctrine becomes quite inapplicale. Secondly, this theory appears to be quite inconsistent with the practice of the states. Rights and obligations of the predecessor state are not transferred unless there is a treaty agreement. Thus, conquering states act on the basis of taking the utmost that they can acquire by conquest and admitting the minimum of obligations. Thirdly, whatever succession the successor states admit is not as of any right but ex-gratia.138 3. Negative Theory The lack of correspondence between the universal succession theory and international practice gave rise to another theory which is altogether different from the above theories. According to this view, the successor state does not succeed to the personality of the predecessor.139 It is contended that the sovereignty of the predecessor state over the absorbed territory is abandoned. The succeeding state is in no way bound to respect the rights and obligations of the state which has ceased to exist.140 The theory has also evoked criticism. Although according to this theory, succession involves a replacement of sovereignty, this should not mean that International Law
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imposes no obligations upon the new sovereign. The change of sovereignty does not mean an automatic collapse of the legal system.141 There are- certain rights as well as obligations which are discharged by the successor state on the basis of equity, justice and reasonableness. It becomes the duty of the state to discharge the obligations since it accepts the benefits attached with it. This is a rule which appeals to human conscience.142 Moreover, negative theory does not solve any of the problems which are bound to arise on change of sovereignty. CONCLUSION It appears, therefore, that no theory can provide solution to all the problems of state succession. While the universal succession theory is impracticable from the point of view of the successor state the 'negative' theory refuses to admit any general principle. It would leave the new state's discretion to apply any rule which conforms to its interest. It may apply different theories in different cases or at different times after taking an account of all the special features presented by the succession itself.'43 Hence, each category of legal events should be considered separately and no single theory can fulfil the need of all occasions. CONSEQUENCES OF STATE SUCCESSION Some of the consequences of a succession of states are as follows : 1. Theaties The effect of change of sovereignty in relation to treaties has always been a matter of controversy, bacause of its different varieties, and of the different circumstances under which they are concluded. No single answer could possibly be given to all the categories of treaties.144 The effect of succession of states on different kinds of treaties are as follows : (a) Personal Treaties (or Political Treaties) : Treaties which are concluded due to the personal influence of the contracting parties such as those relating to peace, alliance,
International Law 78 mutual assistance and friendship, neutrality, guarantee, non-aggression and of pacific settlement are not binding on the successor states. Oppenheim says that no succession takes place with regard to rights and duties of the extinct state arising from its political treaties.145 Formerely, they were regarded as ending with the extinction of the personality of a state, however, at present, this rule has been considerably modified. The successor state, generally, continues all those treaties which conform with its interest and suits to it in the changed circumstances. The continuance or termination of a treaty depends upon the relations between the successor state and the other contracting parties. Thus, it is left open to the discretion of the successor state to pick and choose from amongst those which it inherits.146 (b) Commercial Treaties : Commercial treaties, like the political treaties are also not binding on the successor state. Only those commercial treaties are assumed which can be reconciled with the new order of things, otherwise, they are generally extinguished. (c)Administrative Treaties : Administrative treaties such as treaties of judicial assistance, avoidance of double taxation and extradition treaties do contain political elements, but they are different from political treaties Stricto Sensu. The conclusion of administrative treaties is motivated by the desire of having proper administration of justice and in some cases for the suppression of crime.147 The continuation of such treaties depends upon the discretion of the successor states. Practice of states regarding succession to extradition treaties is not uniform. However, it is desirable, in order to have an effective international judicial administrative system and in order to suppress crime that such treaties are continued by the successor state.148 (d) Dispositive Treaties : Dispositive Treaties or real treaties create rights in rem. Such treaties create rights
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which are of permanent nature and are independent of the personality of the state exercising sovereignty. There is an essential difference between a personal and a real treaty.149 While the former is in the nature of a contract, the latter is in the nature of conveyance. (e) Boundary Treaties : Demarcation of boundary is another important type of treaties. State practice and writings of the jurists show that they are also considered as binding on the successor state. If a boundary is demarcated through a treaty concluded for a specific period, the boundary shall be binding on the parties even after the expiry of the treaty. The boundary between Libya and Chad was defined by the Treaty of Friendship and Neighbourliness concluded in 1955 for a period of 20 years. A boundary established by treaty achieves a permanence which the treaty itself does not necessarily enjoy.15 When the boundary has been the subject of agreement, the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed.151 (f) Multilateral Treaties : Multilateral Treaties are generally continued by the successor state, because they are concluded mostly on general subjects which are beneficial to almost all the states of the international community. However, the successor state is not bound to continue such treaties in all the cases.152 If a multilateral treaty is not compatible with the interest of new state, it may be extinguished. When the successor state chooses to continue any multilateral treaty, it has to notify in writing to the depository to the treaty or, if there is no depository to the parties or the contracting states.153 2. Membership of International Organisations Constitutions of most of the international organisations exclude the possibility of succession, and therefore, the question of succession of membership does not arise. Each and every state is required to apply a fresh in order to
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become a member of such organisation irrespective of the fact that its predecessor was a member of that particular organisation.154 This practice was followed by the United Nations when the United Arab Republic in 1958 assumed membership of Egypt and Syria. India and Pakistan became member of the United Nations after their partition.155 3, Public Property and Public Rights It is an established principle of International Law that the successor state takes over all the public and proprietary rights of its predecessor stL',,e. State property, state railways, fiscal funds, state funds, funds invested abroad and movable an immovable property pass on to the successor state.156 4. Public Debts Normally, no state considers itself to remain bound by the debts and liabilities of the predecessor state. In several cases of state succession, the above principle appears to have been complied with. However, if the successor state accepts the benefits of the predecessor state, it becomes a moral obligation to accept its burden as well. On this basis, where the succession takes place peacefully, successor state assumes public debts on the basis of proportionality of benefits received.157 Such an arrangement made usually in the treaties concluded between them. The private creditors do not acquire any right under International Law against the successor state.158 5. Contracts Law relating to contract on succession of a state is not well established. State practice on this pint is also not uniform. State practice suggests that succession of contracts depend upon the discretion of the successor state. 6. Laws It is a recognised principle of International Law that law once enforced are not changed merely by the change of sovereignty over a territory. They are continued by the successor state even if they are inconsistent with the newly
81
acquired status of a state, unless new laws are enacted by
the successor state.'59 7. Nationality Nationals of the predecessor state lose their nationality at the extinction of the state. They become the nationals of the successor state. However, it is desirable to give an opportunity to them to decide within a reasonable period as to whether they wish to be the nationals of the new state or of the predecessor state keeping in view of the recent developments in the rights of self-determination, in international humanitarian law and human rights. '00 REFERENCES
1. Oppenheim, 'International Law', Vol. 1, Ninth Edition, p. 121. 2. Ibid., op. cit., p. 132. 3. Ibid., op. cit., p. 140. 4. Brownlie, 'Principles of Public International Law', For Edition (1990), p. 73. 5. Brownlie, op. cit., p. 75. 6. Ibid., p. 78. 7. Ibid., p. 80. 8. Ibid., p. 81. 9. Ibid., p. 95. 10. Ibid., p. 100. 11. Westlake, 'International Law', Ed. II, Vol. 1, p. 21. 12. Ibid., op. cit., p. 75. 13. Oppenheim, op. cit., p. 122. 14. Ibid. 15. See AJIL, Vol. 22 (1928), p. 875. 16. See Free Zones Case (1932) PCIJ AfB No. 46, p. 167. 17. Starke's 'International Law', Eleventh Edition (1994), p. 91. 18. Ibid., op. cit., p. 100. 19. Ibid., op. cit., p. 125. 20. Ibid., op. cit., p. 130. 21. Ibid., op. cit., p. 145.
82 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53.
International Law Oppenheim, op. cit., p. 123. Ibid., p. 128. Ibid., p, 130. Ibid., p. 135. Ibid., p. 140. PCIJ Series B, No. 4, p. 27. ICJ Reports (1952), p. 188. For detail See Chapter 'State Succession'. Annual Digest, 1929-30, Case No. 11. For the Text of the Treary See H.O. Agarwal, op. cit., p. 111. Oppenheim, 'International Law', Vol. I, Eighth Edition, p. 28. Ibid. See H.O. Agarwal, 'Kashmir Problem-Its Legal Aspects.' Op. cit., p. 190. See Lawrence, 'A Handbook of Public International Law' Tenth Edition, p. 25. For Detail see H.O. Agarwal, 'State Succession. A Study of Indian Cases', op. cit., pp. 75 to 79. Oppenheim, op. cit., p. 317. 0 Connell, 'International Law', Vol. I, p. 369. Societa A.B.C. V. ILR 1955, p. 76. 0 Connell, op. cit., p. 369. Oppenheim, International Law, Vol. I, Ninth Edition (1992), p. 328. Ibid., p. 319. Ibid. U.N. Doc. S/7795 of February 28, 1967. See General Assembly Resolution 178 (II), Dated November 21, 1947. PCIJ, Series A/B, No. 44, p. 24. PCIJ, Series A/B, No. 44, p. 26. Brownlie, Principles of Public International Law', p. 50. Ibid., op. cit., p. 55. Ibid., op. cit., p. 60. Ibid., op. cit., p. 62. Ibid., op. cit., p. 68.
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54. Ibid., op. cit., p. 70. 55. D.D. Basu, 'Commentary on the Constitution of India' (1956), Vol. IL, p. 404. 56. AIR (1954), Calcutta, 591. 57. MR (1954), Calcutta, p. 59L 59. AIR (1976), Calcutta, p. 470. 59. AIR (1984), Supreme Court, p. 667. 60. Commentary on the Constitution of India (1956), Vol. II, p. 404. 61. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 130-131. 62. Ibid., op. cit., p. 135-140. 63. Ibid., op. cit., p. 145-150. 64. See Year Book of the International Law Commission (1949), p. 289, para 50. 65. Oppenheim in Eighth Edition (1955), p. 125. 66. Ibid., op. cit., p. 130. 67. Ibid., op. cit., p. 135. 68. Ibid., op. cit., p. 140. 69. Ibid., op. cit., p. 145. 70. Ibid., op. cit., p. 148. 71. Brierly, 'The Law of Nations', Sixth Edition, p. 139. 72. Op. cit., p. 139. 73. Op. cit., p. 140. 74. Op. cit., p. 145. 75. Op. cit., p. 150. 76. Recognition in 'International Law', AJIL, Vol. 35 (1941), p. 605. 77. Oppenheim, op. cit., p. 170. 78. Op. cit., p. 178. 79. See General Assembly Resolution 396(V). 80. UN Doc. S/1446. 81. Op. cit., p. 155. 82. Op. cit., p. 156. 83. Oppenheim, op. cit., p. 156. 84. (1921), 310 532. 85. (1937), Ch. 513.
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International Law 86. Oppenheim, op. cit., 157. 87. (1939), AC 256. Also See Gagara (1919), p. 95. 88. 1921 3KB, p. 53. 89. 1939 AC 256. 90. Oppenheim, op. cit., p. 157. 91_ Oppenheim, op. cit., p. 146. 92. Ibid., p. 157. 93. Ibid., p. 180. 94. Ibid., p. 181. 95. Ibid., p. 183. 96. Ibid., p. 185. 97. Ibid., p. 190. 98. Ibid., p. 191. 99. Ibid., p. 199. 100. Ibid., p. 200. 101. Oppenheim, International Law, Vo. I, Ninth Edition (1992), p. 175. 102. Oppenheim, op. cit., p. 180. 103. Ibid., op. cit., p. 185. 104. Ibid. 105. Baty, So called de facto Recognition, Yale Law Journal, Vol. 31 (1922), p. 469.
106. Baty, op. cit., p. 470. 107. Baty, op. cit., p. 472. 108. Baty, op. cit., p. 479. 109. Baty, op. cit., p. 500. 110. 'Recognition in International Law', p. 6. 111. 'Starke's International Law', Eleventh Edition, (1994), p. 122. 112. Ibid., p. 125. 113. Ibid., p. 130. 114. 0 Connell, p. 135.
115. 0 Connell, 'International Law', Vol. I, p. 173.
116. Oppenheim, op. cit., p. 176. 117. Oppenheim, op. cit., p. 161. 118. Oppenheim, p. 161. 119. Starke, op. cit., p. 138.
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120. See Starke, op. cit., p. 127: 121. Op. cit., p. 139. Also See Jessup 'A Modern Law of Nations', p. 53 122. Starke's 'International Law', op. cit., (1994), p. 139. 123. Oppenheim, op. cit., p. 166. 124. Oppenheim, op. cit., p. 143. 125. Oppenheim, op. cit., pp. 166-167. 126. R.C. Hingorani, 'Modern International Law', Second Edition, p. 89. 127. Ibid. 128. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 563. 129. Ibid., p. 661. 130. Ibid., p. 575. 131. Ibid., p. 585. 132. Ibid., p. 897. 133. (1923) Series A. No. 1. 134. See ICJ Reports (1949), p. 4 at pp. 28-29. 135. Oppenheim, op. cit., 589. 136. Ibid., p. 590. 137. Ibid., p. 591. 138. International Law, Vol. I, Eighth Edition, pp. 462-463. 139. Ibid., p. 464. 140. Ibid., p. 465. 141. See Oppenheim, 'International Law', Vol. I, Ninth Edition, (1992), p. 208. 142. Brownlie, 'Principles of Public International Law', Second Edition, p. 630. 143. H.O. Agarwal, State Succession-A Study of Indian Cases, P. 3 144. Op. cit., p. 209. 145. See Hall 'International Law', Edition VIII, p. 25. 146. Oppenheim, op. cit., 209. 147. Westlake, 'International Law', Vol. I, Second Edition, p. 58. 148. Lawrence, op. cit., p. 89. 149. Wheaton, 'Elements of International Law', Vol. I, Sixth Edition, p. 124, p. 62.
86 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160.
International Law Op. cit., p. 69. Wheaton, op. cit., p. 63. Ibid., p. 62. H.O. Agarwal, op. cit., p. 11. 0 Connell, 'The Law of State Succession', p. 268. See General Assembly Resolution 1686 XVI, December 18, 1961 For the Text of the Convention, See IJIL Vol. 18, (1978), p 393. For the Text of the Convention See ILM 22 (1983), p. 298. Op. cit., p. 211. Oppenheim, op. cit., p. 670-71. Also see Starke's International Law, Eleventh Edition (1994), p. 179. Ibid., p. 180.
IMPORTANT ASPECTS OF INTERNATIONAL LAW

1. NATIONALITY Individuals of a particular nation are supposed to owe allegiance to their states. Such individuals who owe allegiance to a state are known as nationals of a state. Nationality may therefore, be defined as the 'states' of a natural person who is attached to a state by the tie of allegiance. Thus, the term 'nationality' signifies the legal tie between individuals and the state. Oppenheim has rightly said that nationality of an individual is his quality of being a subject of a certain state.' Nationality of a person is determined in accordance with the rules of municipal law. It implies that within the limitations of International Law, a state is free to choose as to whom it may select and to whom it may reject as its nationals.2 The limitations were prescribed by International Law not in the interest of the individuals but in the interest of other states. Nationality is the medium through which an individui,!. can enjoy the benefits from International Law. A state exercises jurisdiction over its nationals travelling or residing abroad, remain under its personal supremacy.3 International Law permits the exercise of such jurisdiction, and sets the limits within which it can be exercised. Further, if a national of a state is expelled from a foreign state, it
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becomes the duty of the former to receive hack its nationals. The refusal to receive and the expulsion of a state's own nationals are inconsistent with International Law as they may involve burden on other states which they are not bound to undertake.4 Thus, in dealing with any international legal problems involving an individual, it is always essential to know his nationality, the legal bond which ties him personally to a given state for many purposes. It is, therefore, inconvenient for International Law to permit the individuals to have multiple nationalities or no nationality. It is a goal of International Law that each individual possesses a single nationality. The Universal Declaration of Human Rights of 1948 provides under Article 15, para 1 that "everyone has the right to nationality".5 MODES OF ACQUISITION OF NATIONALITY A person may acquire the nationality of a state in accordance with the rules of municipal law. It implies that municipal law determines as to who may be a national of a particular state. Modes of acquisition of nationality are therefore, not uniform. They differ from state to state. Following are the modes by which nationality may be acquired. 1. By Birth Nationality is conferred to a person by many states on the basis of birth. All those persons whose birth take place within territorial limits of a state acquire the nationality of that state. The above principle is called `Jus Soli'. The United Kingdom, the United States and many states of Latin America follow the principle of Jus Soli.6 The Indian Citizenship Act of 1955 under section 3 had provided nationality on the basis of birth. Merely birth in the territory of India, on or after the 26th January 1950 even though both the parents are foreigners, would make a person an Indian citizen.?
Important Aspects of International Law
89
2. By Descent Nationality of a state may also be acquired by a person on the basis of the nationality of either parents. Thus, a child may become a national of that state of which his parents are nationals. The principle is known as `Jus S'anguinis.'8 Germany and France confer nationality on the basis of this principle. The USA and United Kingdom also recognise this principle in addition to the principle of Jus Soli. So is the case with India. Section 4 of the Indian Citizenship Act of 1955 provides that a person may be an Indian national on the basis of the principle of Jus Sanguinis. It may be noted that many states recognise the principle of Jus Soli as well as the principle of Jus Sanguinis. 3. By Naturalisation A person acquires nationality at birth. However, his nationality may, later on, change. When the nationality of a person changes subsequently, and he acquires nationality of some other state, the process of acquisition is known as naturalisation. A person may acquire nationality through naturalisation in different ways. They are through marriage, legitimation, option, acquisition of domicile, appointment as Government official and grant of application. Adoption of children by parents who are nationals of the other states also entitles the children to acquire the nationality of his parents.9 It may be stated that a state has a discretion of confer nationality by naturalisation. It may grant nationality upon the fulfilment of conditions it deems appropriate. A person who wants to acquire nationality through naturalisation is required to give an application and to make request for the acquisition of nationality through naturalisation. Thus, a person may acquire nationality through naturalisation when it is granted by a state. It follows that no person has a claim to become naturalised in a foreign state. The state is entitled to refuse the naturalisation of aliens without indicating any reason.1 On the other hand, it is contrary to the accept principles of
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International Law to impose naturalisation upon individuals against their will. 4. By Resumption A person who has lost his nationality by naturalisation or by an other reasons may acquire the nationality of the same state again. The acquisition of this kind is called reintegration or resumption. Section 8, para 2 of the Indian Citizenship Act of 1955 permits the minor, and not to adults to resume his nationality within one year from the date of attaining the age of majority upon application, if he has lost Indian Citizenship due to their parents.11 5. By Subjugation A person may acquire nationality through subjugation after conquest. When a part of the territory of a state or a state itself is subjugated by another state, all the inhabitants of the territory become the nationals of the latter state. When Austria was annexed by Germany, all the nationals of Austria became the nationals of Germany. Indian Citizenship Act of 1955 under section 7 lays down that if any territory becomes a part of India, those persons from such territory shall automatically become citizens of India from the date specified in the Order which may be issued by the Central Government. Thus, when Goa, Daman and Diu became a part of India, Goa, Daman and Diu (Citizenship) order was issued on 26th March, 1962.12 6. By Cession When a part of the territory of a state is ceded to another state, all the nationals of the former acquires the nationality of the latter state. 7. By Option When a state is partitioned into two or more states, the nationals of the former state have an option to become the nationals of any of the successor states. The same principle applies in the case of exchange of territory. Acquisition of nationality by option was widely used in the latter half of
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nineteenth century to protect the interests of inhabitants as far as possible from the consequences of a partition or exchange effectuated without their assent.13 8. By Registration A person may acquire nationality of a state through registration. The process of registration may be different from one state to another depending upon the laws of that state. For instance, the Indian Citizenship Act of 1955 provides under section 5 that persons of the following categories may acquire Indian Citizenship through registration(a) persons of Indian origin who have been residing in India for atleast five years before making an application for registration, (b) persons of Indian origin residing in any country or place outside undivided India, (c) persons who are or have been married to citizens of India and are ordinarily resident in India and have been so resident for five years immediately before making an application for registration, (d) minor children of persons who are Indian citizens, and (e) persons of full age and capacity who are citizens of a country specified in the first scheduled which provides for Commonwealth countries and the Republic of Ireland.'4 MODES OF LOSS OF NATIONALITY A person may lose the nationality of a state in many ways. They are as follows : 1. By Deprivation A national of a state may be deprived of nationality in case of certain happenings. Legislation of many states recognises numerous grounds of deprivation of nationality. For instance, if a citizen enters into foreign civil or military service without permission, he may be deprived of his nationality. The Indian Citizenship Act of 1955 provides under Article 10 for deprivation of citizenship(a) if registration or certificate of naturalisation has been obtained by means of fraud, false representation or by concealing any material fact, (b) if he has been disloyal or disaffected to the
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Union of India by his act or speech, (c) if he has done by prejudicial act or traded with an enemy while India is at war with that country, (d) if a naturalised or registered citizen has been sentenced in any country to a term of two years within five years from the date of his registration or naturalisation, (e) if he has continuously resided in a foreign country for seven years or more without being a student, Central Government employee or international civil servant in any organisation recognised by India and has also not registered him elf at an Indian consulate.15 In some cases, deprivation results in statelessness, and therefore, it is desirable if it is avoided by the states. Universal Declaration of Human Rights of 1948 under Article 15(2) prohibits arbitrary deprivation of nationality. 2. By Renunciation A person may renounce his nationality of a state. The question of renunciation of nationality arises when a person acquires it of more than one state. In such cases he has an option of retain the nationality of one state and to renounce the other. Indian Citizenship Act of 1955 provides under section 8 that any Indian Citizen of full age and capacity, who is also a citizen, or national of another country, may voluntarily renounce his Indian Citizenship by making a declaration in the prescribed manner.16 3. By Substitution A person may lose the nationality of a state when he acquires nationality in some other state by naturalisation. Indian Citizenship Act of 1955 provides under section 9, para 1 for the automatic termination of Indian citizenship only when an Indian citizen voluntarily acquires the citizenship of another country. Its purpose is to ensure that no citizen have a dual citizenship. In such cases, nationality of a person is substituted from one state to another state. However, the above provision does not apply to a citizen of India who during any war in which Indians may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise provides.17
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4. By Expiration A person may lose nationality of a state by expiration. For example, some states have provided by legislation that citizenship expires in the case of such of their subjects as have left the country and stayed abroad for a certain length of time.18 2. ALIENS The term aliens is referred to those persons who live in a state other than of which they are the nationals. Thus, presence of the nationals of one state in the other state is legally termed as aliens. When a person enters a foreign territory, he becomes the subject to the municipal law of that country unless he is a diplomatic agent or is a recognised official of the foreign government. This rule is based on the principle that a state enjoys territorial sovereignty. Rules relating to admission of aliens, expulsion of aliens, expropriation of alien property and right and duties of aliens derive mainly from state practice, which is quite divergent, and also in certain cases from bilateral treaties.'9 In the past, attempts have been made to codify the topic of aliens, but they have not been successful except that of Havana Convention of the status of Aliens of 1928. ADMISSION OF ALIENS No state is under to admit aliens into its territory. The reception of aliens is a matter of discretion, and every state is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory. Thus, the state has a right either to prohibit the entry of aliens or admit them into its territory. This implies that the nonadmission of an alien is not an internationally wrongful act. Even in cases of an arbitrary decision, non-admission may be assumed only as an unfriendly act. Moreover, the non-admission of an alien cannot be seen as an international offence, merely because factually discrimination has occurred. When a state refuses to admit an alien it is not under an obligation to given grounds for doing so.2 However,
International Law 94 it is desirable that the state should present the reasons for the non-admission of aliens. Although a state has a discretionary power to admit an alien, there are treaties which grant privileges to some persons regarding a right of entry into foreign country. An example is the Vienna Convention on Diplomatic Relations of 1961 which stipulates that not only the members of a diplomatic mission, but also other staff members such as couriers, have an opportunity to enter the receiving state.21 The right to enter foreign territory can also be based on the diplomatic privilege to cross the territory of a third state in order to reach the territory of the state in which the diplomat is accrediated. Similar guarantees are laid down in the Vienna Convention on Consular Relations of 1963. Members of international tribunals for the most part have a similar right as do employees of international organisations at least in so far as their functions required such privileges.22 Admission of aliens may also be conditional. In such cases, the territorial state has a right to impose such conditions as it may deem proper. It is a matter of domestic legislation to lay down the conditions which may be imposed after taking into account the internal economic and foreign policies. Most of the states while admit certain classes of aliens such as students and tourists freely, persons who come as immigrants are subject to severe regulations. Aliens who are physically, morally or socially unfit are generally excluded from admission.23 Likewise, a state has a right to deport from its territory aliens whose presence therein may be regarded by it as undesirable. It is to be noted that the discretionary power of a state to admit as well as to deport an alien is unfettered but in view of the increasing prominence of individuals, the discretionary powers do not conform to the present day International Law. It is desirable that certain rules are made to eliminate or at least minimise the discretion of a state in matters of admission and deportation of aliens.24
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An alien who seeks admission in the territory of a foreign state must carry a valid passport issued by a state to which he belongs. He must also obtain in advance, permission to enter in the state which is granted in the form of visa.25 If an alien is found in a state without its permission he may be treated as residing illegally in that state. He may remain there at the mercy of that state and may be deported to the state to which he belongs. The decision of the United Arab Emirates (UAE) in 1992 to deport a number of Pakistanis and Indians who were found to be residing illegally in that country following their taking part in violence, demonstrations and attacking the places of worship was not contrary to the rules of International Law.26 RIGHTS OF ALIENS Law on the rights of aliens is not well settled. However, in the practice of states they are granted depending on conventions or agreements, rights identical with the rights of their own citizens. The second International American Conference held in Mexico in 1902 prepared a convention relating to Rights of Aliens which in Article 1 adopted a principle that aliens enjoy the same civil rights as citizens of the state. However, the convention was not ratified by the United Sates. Presently, aliens are granted rights in accordance with the petite of states.27 An alien is entitled to certain minimum rights in a state where he resides so that he may enjoy his ordinary private life. While privileges which are granted to an alien may be revoked, the fundamental rights remain. Rights of aliens are normally prescribed in treaties of commerce and establishment. Such treaties, very often, insert 'national treatment clause' which means that aliens can only expect that treatment which is given by a state to its own citizens. They cannot claim to a favoured status. They possess all those procedural rights which are available to the citizens in a state. They also possess substantive rights which are the rights of. the citizens of the country.28
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However, special civil and political rights are denied to them. Thus, right to vote, to hold public office, or to engage in political activities are usually denied to them. Although they are not denied the right to work but, they may be excluded from employment in certain professions, such as master, chief officer or chief engineer of a merchandship.29 His rights of personal security and his personal liberty are as sacred as those of the citizens. His property rights, and rights under contract, limited as they may be, are entitled to the same protection of the law. If his rights are violated or if a wrong is done to him, he has access to the courts of the state for redress which are open to the nationals of that state upon the same footing as if he were a citizen.3 The principle of national treatment was supported by many jurists. While some states favoured it, many states opposed the principle. They supported the 'international minimum standard' or to say, a moral standard for civilised states in the treatment of aliens. A state which fails to measure up to that standard incurs international liability. Many tribunals and claim commissions have also supported the international standard.31 It is to be noted that the concept of national standard appears to be better than international minimum standard in the sense that a state may be put into difficulty in providing privileged treatment to the alien. EXPULSION OF ALIENS Expulsion is the banishment of an alien for violating the law of the state in which he has been residing or for interfering in its internal affairs. An expelled alien is required to leave the territory within a fixed and usually short period of time. However, a reasonable time to settle his personal affairs is required to be given before leaving the country.32 The order of expulsion is generally combined with the announcement that it will be enforced, if necessary, by deportation. Thus, while explosion means the prohibition to remain inside the territory of the ordering state, deportation is the factual
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execution of the expulsion order. It is to be noted that the expulsion of an alien in theory is not a punishment. It is an administrative measure consisting in an of the government directing a foreigner to leave the country. Expulsion must be effected therefore, in a reasonable manner and without unnecessary injury to an alien. Detention prior to expulsion should be avoided unless the alien concerned refuses to leave the state or is likely to escape from control of the state or is authorities .33 The right of a state to expel the aliens is generally recognised. This is regarded as one of the attributes of the territorial sovereignty of a state. A state may exercise the right of expulsion in respect of all the aliens, whether the alien is only on a temporary visit or has settled down for professional business or other purposes on its territory.34 Although a state has a discretionary power to expel an alien the right must not be abused. The nationality of an alien expelled may assets the right to enquire into the reasons for his expulsion and the sufficiency of proof of the charges on which the expulsion is grounded. Normally, an alien is expelled when his presence in the territory of a state becomes 'undesirable'. An alien may be deemed to be undesirable on a number of grounds which is determined by each state by its own criterion. The grounds for which an alien may be expelled may be different in time of war from time of peace. In time war, a belligerent may expel all enemy subjects residing, or temporarily staying within its territory. Such a measure might appear harsh and cruel but it is justified, in general, in International Law.35 On expulsion of an alien in time of peace, opinion of writers and the practice of states differ substantially. Generally, aliens are expelled on grounds such as-1. Conviction for a crime relating to the security of a state, 2. Vagrancy, 3. Spying and political intrigue etc. It is to be noted that the expulsion of an alien in theory is not a punishment. It is an administrative measure
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consisting in an order of the government directing a foreigner to leave the country. Expulsion must be effected therefore, in a reasonable manner and without unnecessary injury to an alien. Detention prior to expulsion should be avoided unless the alien concerned refused to leave the state or is likely to escape from control of the state authorities.36 An expelled alien is required to be given a reasonable time to settle his personal affairs before leaving the country. An alien is not always given a right to challenge the order of the executive before the judiciary. It implies that the judiciary has a power to interfere only in those states where it has been empowered to review the order. Thus, those states which have ratified the covenant shall allow an expelled alien for review of his expulsion except in those cases where the question of national security is involved.37 It is to be noted that the need for judicial review may hold good in those cases in which the determination of the status of the person concerned is involved, that is, when an alien asserts that he is not a foreigner but is the citizen of that country, or is otherwise, entitled to remain in that country alone. However, judicial interference is neither desirable nor feasible where expulsion of the alien is ordered on compelling grounds on national defence or security or in the interest of general public.38 3. EXTRADITION It is quite possible for a person to escape to another state after committing a crime in his home state. Such cases have started occurring more frequently with the result of the development of the air traffic. A question arises as to whether fugitive shall be tried in the country where he has fled away or in the state where the crime has been committed. Normally, a state finds itself in a difficult situation to punish a person who has committed a crime elsewhere primarily because of the lack of jurisdiction, and therefore, such persons are sometimes surrendered to the state where the crime has been committed.39 Surrender of
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an accused or of a convict is referred to extradition. Surrender of a person is opposite to the traditional practice of the states to grant asylum. Thus, in those cases where the tradition of granting asylum is not followed, it was known as extradition. Thus, the surrender of a person is against the established and traditional practice of the states which started since the last quarter of the eighteenth century.40 The term extradition has derived from two Latin words ex and traditum. Ordinarily, it may mean 'delivery of criminals' surrender of fugitives', or liandover of fugitives. Extradition may be defined as surrender of an accused or a convicted person by the state on whose territory he is found to the state on whose territory he is alleged to have committed, or to have been convicted of a crime. According to Oppenheim extradition is the delivery of an accused or a convicted individual to the state where he is accused of, or has been convicted of, a crime, by the state on whose territory he happens for the time to be.41 The above definition makes it clear that in extradition two states are involved. They are firstly, the territorial state, i.e., a state where an accused or a convict is found, and secondly, the requesting state, i.e., a state where the crime has been committed. A state which demands for the surrender is known as requesting state because a person is surrendered by the territorial state only upon a request by another state. Request is made normally through the diplomatic channel.42 The request for extradition from other measures such as banishment, expulsion and deportation where an undesirable person is forcibly removed. PURPOSE OF EXTRADITION A criminal is extradited to the requesting state because of the following reasons : 1. Extradition is a process towards the suppression of crime. Normally a person cannot be punished or prosecuted in a state where he has fled away
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because of lack of jurisdiction or because of some technical rules of criminal law. Criminals are therefore extradited so that their crimes may not go unpunished.43 2. Extradition acts as a warning to the criminals that they cannot escape punishment by fleeing to another state. Extradition therefore, has a deterrent effect. 3. Criminals are surrendered as it safeguards the interest of the territorial state. If a particular state adopts a policy of non-extradition of criminals they would like to flee to that state only. The state, therefore, would become a place for international criminals, which indeed would be dangerous for it, because they may again commit a crime there, if they would be left free." 4. Extradition is based on reciprocity. A state which is requested to surrender the criminal today may have to request for extradition of a criminal on some future date. 5. Extradition is done because it is a step towards the achievement of international co-operation in solving international problems of a social character. Thus, it fulfills one of the purposes of the United Nations as provided under para 3 of Article 1 of the Charter.4 5 6. The state on whose territory the crime has been committed is in a better position to try the offender because the evidence is more freely available in that state only. PRINCIPLES OF EXTRADITION Bilateral treaties, national laws of several states, and the judicial decisions of municipal courts led to develop certain principles regarding extradition which are deemed as general rues of International Law. Important amongst them are as follows :
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1. Extradition Treaties The first and the foremost important condition of extradition is the existence of an extradition treaty between the territorial state and the requesting state. Some states, such as the United States, Belgium and the Netherlands, require a treaty as an absolute pre-condition. The strict requirement of an extradition treaty may be regarded as the most obvious obstacle to international co-operation in the suppression of crimes. Since extradition treaties are politically sensitive and require careful and lengthy negotiation, states have few extradition treaties and the criminal can usually find a safe haventhat is a state which requires a treaty for extradition and has no such treaty with the state within whose jurisdiction the crime was committed. It is therefore, desirable that states conclude extradition treaties to suppress the crimel6 When an offender is returned to another state in the absence of an extradition treaty, the act is called deporation. In practice, a person is deported to the state from which he has arrived in the deporting state. If such a state refuses to accept, a person is deported to the state of his nationality. The home state of such a person has the duty to receive such of its subjects as one deported from abroad. If the deported person expresses to go to a certain state, which is willing to receive him, there should in principle be no reason for the deporting state not to allow him to go there. A person is deported on the basis of reciprocity.47 To deport an alien to a specified state has much the same effect as extraditing him to that state. Normally, a state exercises the discretionary power of deportation of a person where his return is not properly secured under the applicable extradition laws and treaties between the states concerned.48 2. Extradition of Political Offenders It is a customary rule of International Law that political offenders are not extradited. In other words, they are granted asylum by the territorial state.)During the days of
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monarchs, the extradition of political offenders was very common. They used to prefer extradition so as to avoid intervention in the affairs of another state.49 But the practice underwent a complete change with the beginning of French Revolution. Perhaps, for the first time, the French constitution of 1793(under Article 120 made a provision for granting asylum to those foreigners who exiled from their home country for the cause of liberty. Later on, other states followed the principle of non-extradition of the political offenders gradually. At present, non-extradition of the political offenders has become a general rule of International Law and therefore, it is one of the exceptions of extradition.59 Basis for the Non-Extradition of the political offenders. The rule of non-extradition of the political offenders is based on many considerations which are as follows : 1. The rule is based on the elementary consideration of humanity. No state would like to extradite a person if he is not a criminal. If it does, it will not be in compliance with the law of natural justice. 2. If political offenders are extradited, it is fearcd that they would not be treated fairly. It is a duty of the territorial state to ensure safeguards to the surrendered fugitives for a fair trial in the requesting state. Since it is a difficult task, they are not extradited.51 3. The rule also protects the political offender from any measure of extra-legal character which the requesting state might attempt to take against them. 4. The object of the political offenders to take shelter in another country is not the same as those of the ordinary criminals. 5. Political offenders are not dangerous for the territorial state as may be in the case of ordinary criminals.
Important Aspects of International Law tyr
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3 Doctrine of Double Criminality The doctrine of double criminality denotes that a crime must. e an o ence recognised in the territorial as well as in the reques ink state. No person i,.s.e tr_a.tht unless this condition is fulfilled. The doctrineapsearstobuedon, the -consideration tha it would offend the conscience of the territorial state if it ha to extradite a..-person yvileajta...Qwn law does not regard him a criminal. The requestine would a so not as or e surrender of a_Rerson foL.1.1-10,e n32Azhilhartrecognised in its state. 212eApsidue thus satisleAsiguble,purpose It hel,ps the requegingatate t o enforce its criminal law and to the territorial state in the sense that the rule protects i from fugitive criminals, In order to ensure that a crime is recognised in both the states, a list of extraditable offences is attached in the extradition laws of some states. But generally, a list of crimes is embodied in the treaties for which extradition is done. The Indian Extradition Act of 1962 has adopted both the procedures in this regard. The second schedule appended to the Act lays down a list of crimes.53 The rule of double criminality has put a state into a difficult situation when it has to request another state for extradition in respect of those offences which do not find place in the list of crimes embodied in a treaty. In order to overcome the above difficulty it is desirable that instead of laying down the names of various crimes specifically in the treaties, some general criterion should be adopted.54 For instance, any offence punishable with a definite minimum penalty under the laws of both the states should eligible a person for extradition appears to be more appropriate. The extradition treaty concluded between India ard Britain in 1992 also provides that extradition may be made for those crimes carry the sentence of imprisonment for twelve months or more in both the countries.55 4. Rule of Speciality Accordingtothisprinciph, .,a fugitiyejBArie.d bythe reques onlyfor that offence for which he has been
r c 4 4),
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extradited. In other words, the requesting state is under a cjillyncLtolry or punish the fugitive criminal for' any other offence that-Ur:tat for which he has been extradited, unless he haselyenanopporturiitx to return to the territorial te. The rtAe jia&been..magitkproyide safeguard to thejugitaws against fraudulent extradition.51 It is to be noted that the accused can raise this principle when a treaty or the national law provides for this principle. In their absence, his plea cannot be entertained. 5. Prima Facie Evidence There should be a prima facie evidence of the guilt of the accused. Before a person is extradited, the territorial state must satisfy itself that there is a prima facie evidence against the accused for which extradition is demanded. The purpose of laying down the rule of prima facie evidence is to check the fraudulent extradition. The territorial state has to see that the demand is not motivated by any political reasons. The requirement of prima facie evidence is laid down in the national legislation of a state. Indian Extradition Act provides this requirement under section 7(4). In addition to this, states in their treaties incorporate a provision to this effect.57 6. Time-barred Crimes A fugitive criminal shall not be surrendered, if he has been tried and has served sentence for the offence committed in the territorial state. Thus, extradition is not granted if the offence for which extradition has to be made has become time-barred. Rule to this effect is laid down in the national extradition laws. Section 31(b) of the Indian Extradition Act provides that extradition may be refused if prosecution is barred by a lapse of time under the law of the requesting state.58 An important point in this connection is that which date should be considered relevant for determining the issue, i.e., the date of the request of extradition, or the date of receipt of such request by the territorial state, or the date on which the Magistrate submits his report to the
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government recommending the fugitives extradition, or lastly, when the government makes an order for extradition.59 It is to be noted that the date on which the government passes the order for the extradition of fugitive is an important one. If the fugitive can be prosecuted on this date, he may be extradited. Extradition treaties should clearly lay down provisions regarding this point. If it is silent on this question, a problem of the interaction of the two municipal law systems may arise. 7. Extradition of Own Nationals In many cases, a person after committing a crime in a foreign country flees back to his own country. Whether a state would extradite such persons, i.e., its own nationals, to a state where crime has been committed is a controversial point and practice of states considerably differs on it. Many countries such as the Netherlands, Belgium, Italy, Germany, Switzerland and France have adopted a principle for not extraditing their own nationals to a foreign state. Those who support the view give arguments that national Judges are regarded as natural judges.6' Foreign judges cannot be trusted. Moreover, it is not dignified for a state to extradite its nationals for conducting a trial in the foreign country. Again, they do so as a step to protect their own nationals. However, they prefer to inflict punishment to such persons in their own states. On the other hand, Great Britain the United States and India have favoured to practice of extraditing them, if a treaty provides for extradition of such persons.62 Nationals of the states of the former category therefore attempt to flee back in their own country in order to avoid extradition, though they may be punished there for the crimes committed in foreign countries. It is desirable that a person should be given punishment by the state where the crime has been taken place. It remains in a better position to try the offenders in view of the fact that witnesses are readily available in that country alone.63 Extradition or non-extradition of its own nationals depends upon the wordings of the extradition treaties.
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Nationals may therefore, be extradited if there is no bar in the national extradition law or in the treaty. But if the restriction if imposed therein regarding the extradition of its own nationals, it becomes a duty of the territorial state to punish them so that crimes may not go unpunished.64 8. Military Offenders Extradition treaties generally exclude military offences. Broadly, military offences fall into two categories, i.e., those which constitute offences under ordinary criminal law and those which relate specifically to military matters. Only the second category qualify as military offences in respect of which extradition will not apply. Desertion is an example of the second category. However, a military personnel committing war crimes or genocide shall be extradited and shall not be deemed as military offender.65 9. Extradition for an Offence of Fiscal Character Offence of a purely fiscal character may broadly mean the offences relating to revenues, taxes, excise and customs, etc. Such offences generally involve the public interest as opposed to a private interest. Presently, such offences are being committed very often and the offender after committing an offence flees to another state. Can a person committing an offence of fiscal character be extradited? Extradition for a fiscal offence has not been generally practised by the states, despite the fat that there is nothing in international customary law which prohibits it. In different attitude of the states towards the extradition in relation to such offences led the offender to flee to other states in order to escape fiscal liability.66 Dr. Dharam Teja in 1978 escaped from India in order to avoid the recovery of Income-tax arrears amounting to rupees four crore. No extradition proceedings could be initiated against him as there was no criminal charge against him. In order to suppress similar and other economic offences it is desirable that the economic offenders are extradited. Rules of International Law do not prohibit for the extradition for the offences of fiscal character.67
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Sometimes difficulty may be experienced by the states in relation to the extradition for the economic offender regarding the satisfaction of the requirement of the principle of double criminality. However, this has been overcome by those states which extradite for offences which are subject to a definite penalty, both in the requesting and territorial state. It is submitted that in future states in their own interest would include the provisions for the extradition for an offence of fiscal character in their extradition treaties primarily because some of the fiscal offences such as taxation is considered as a necessary governmental activity.68 10. Extradition of Foreign Nationals for Crimes Committed in Foreign Countries Foreigners are not extradited for the offences committed in foreign countries. They may be tried and punished only in that state where the crime has been committed. Their extradition cannot take place even in a state where the crime has grave or immediate consequence. It is so because of the jurisdictional problems.69 However, it is desirable if foreign nationals for their acts committed in foreign countries are extradited to the state whose safety, stability or public order has been threatened by the acts. No doubt, extradition in such cases should be done when it has been thoroughly examined by the state (where the crime has been committed) regarding the impact and consequences of the offence in the requesting state." It is to be noted that extradition of foreigners committing crimes in foreign countries can take place only when the extradition treaties include the provision regarding it. Law on Extradition, at present, is based on the basis of bilateral treaties and national laws. Since they are practised in many countries, they can be regarded as to have become general principles of International Law. However, in no way, they are binding on all the states.71 It is quite possible that an extradition treaty or extradition law of a state, remains silent on any of these points, or they might contain
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provisions otherwise. While in the former case, difficulties are bound to arise, latter would be regarded as violative to the general principles of International Law. Nevertheless they shall be binding on the parties. It is desirable that the International Law Commission take up the topic of extradition for its consideration and codification. The topic once codified is likely to be of great help in the suppression of the crime and in achieving international co-operation in social fields which is one of the purposes of the United Nations as provided under para 3 of the Article I of the Charter.72 U. Extradition and Human Rights Violations A person is not extradited if he is likely to be subjected to human rights violations in the requesting state. Thus, extradition may be refused if the accused is likely to be given torture or cruel, in human or degrading treatment or punishment. EXTRADITION LAW IN INDIA In India for the first time an Extradition Act was enacted in 1902. Before it, extradition in India was regulated on the basis of the British Extradition Act of 1870. The Act of 1870 was a law for whole of the British Empire. The Act of 1903 was supplementary to the above two Acts. The Act of 1903 continued to be in force after India became Independent. All those extradition treaties which were concluded by the (British) India before 1947 were also continued by India. It considered itself to be bound by all the extradition treaties of (British) India. In 1956, India prepared a list of 45 preindependence extradition treaties which were stated to be in force." In 1962 Indian Extradition Act was enacted. The Act stipulated under section 2(d) that all extradition treaties made before August 15, 1947 is binding on India. 4. ASYLUM The word asylum is Latin and derives from the Greek word Àsylia' which means inviolable place. The term is referred
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to those cases where the territorial state declines to surrender a person to the requesting state, and provides shelter and protection in its own territory. Thus, asylum involves two elements. Firstly, shelter, which is more than a temporary refuge, and secondly, a degree of active protection on the part of the authorities in control of the territory of asylum. These two elements distinguish asylum from that of immigration': A person enjoying asylum may be referred to as an asylee.74 He may or may not be a refugee in accordance with the accepted definition in International Law or Municipal Law. Historically, the concept of asylum is very old and traditional, and is opposite to the notion of extradition. Where the traditional hospitality is not offered to an alien, the act is known as extra-tradition.75 Asylum is being practised by the states since a long time either because it is referred to in some extradition treaties or in municipal laws. Sometimes, it is also granted without any formal legal basis. However, the concept of asylum has still not a acquired the necessary clarity. The International Law Commission included the topic of asylum in its provisional list for codification.76 In the absence of any law, the topic at present is governed mainly on the basis of the state practice and judicial decisions. BASIS OF ASYLUM A state has a right to grant asylum to a person on the principle that it has a sovereign right to control over the individuals found on its territory. Thus, the right of territorial asylum has been conferred to a state on the basis of its sovereignty over the territory. This right is exclusive in the .sense, that other states are excluded to exercise the jurisdiction over the same territory. The Draft Convention on Territorial Asylum adopted by the General Assembly in 1974 has recognised under Article 1 that the grant of asylum is a sovereign right of a state. The territorial jurisdictional right extends, by application, to the embassies, legations, vessels, and air crafts.77 The extra-territorial application of
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sovereignty implies the same exclusive control as does the principle of territoriality. However, the source of legal control of a state over its territory and at the places beyond its territory (i.e., extra-territorial) differs. While the territorial asylum finds its basis in municipal law, the extra-territorial asylum is said to have its legal basis in International Law. States have complete freedom to put restrictions on their territorial jurisdictional right by concluding treaties. Thus, if a state concludes treaties for extradition of a fugitive criminal, there arises a legal obligation on its part to surrender them. In such cases, the sovereign right to grant asylum to such persons cannot be exercised. Similarly, restrictions can also be imposed by the states on their sovereign right to grant asylum in respect of other inhuman and heinous crimes. However, the self-impose limitation is a discretionary privilege of a state.78 REASONS FOR ASYLUM A state grants asylum to a person because of many reasons. Firstly, it is granted to save a person from the jurisdiction of the local authorities. It is feared that he would not get fair trial, if extradited, because of the differences in views as to his political or religious activities. Secondly, a person may be granted asylum on extra-legal grounds or to say on humanitarian grounds.79 Thirdly, national security also plays an important role in granting asylum. The offender who may be a rebel today may become the rules in future date. In that case, the relationship would be straineous if he is extradited. Although a state may grant asylum after taking into consideration of any of the above factors, states adopt a cautions approach before doing so. It may be noted that the right to grant asylum vests in the state. It is exercised on the basis of the principle of territorial sovereignty. FORMS OF ASYLUM A state may grant asylum to a person in two ways. They areterritorial asylum and extra-territorial asylum.

1. Thrritorial Asylum
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When asylum is granted by a state on its territory, it is called territorial asylum. The right to grant asylum by a state to a person on its own territory flows from the fact that every state exercises territorial sovereignty over all persons, on its territory, whether they are its subjects or aliens. A state has a right to admit or expel any person found in its territory. The grant of territorial asylum therefore, depends upon the discretion of a state which is not under a legal obligation to grant asylum to a fugitive.8
2. Extra-Territorial Asylum
When asylum is granted by a state at places outside its own territory, it is called extra-territorial asylum. Asylum given at legations, consular premises, and warships are instances of extra-territorial asylum. They have been dealt separately. (a) Asylum in Legation : When asylum is granted by a state within its embassy premises situated in foreign countries, it is known as asylum in legation or diplomatic asylum. The Head of the mission may grant asylum to a person in the premises. 81 (b) Asylum in Consulates Rules regarding asylum in consulates are similar to that of asylum in legation premises. (c) Asylum in Warships : Men of war and public vessels of foreign states, while in ports or internal waters of another state, are expected from the jurisdiction of the flag state. However, such vessels are bound to observe the ordinary laws of the port. As far as asylum in warship is concerned, it may be granted on the ground of humanity, in cases of extreme danger to the individual seeking it.82 (d) Asylum is Merchant Vessels : Merchant vessels are not exempted from the local jurisdiction, and therefore, asylum cannot be granted to an offender. Thus, if a person after committing a crime on shore seeks asylum on board a foreign merchantship he may be arrested by the local police, either before the ship leaves the port or when it comes into
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another port of the same state. There is, therefore, a rule that asylum is not granted on merchant vessels.83 4. DIPLOMATIC AGENTS Diplomatic agents are the persons who reside in foreign countries as representatives of the states by whom they are despatched. They provide an important link between the country who despatch them and the country to which they are accredited. They, therefore, perform the act of diplomacy which in International Law means the methods by which states establish or mainta i n mutual relations, and carryout political or legal transactions based on their foreign policies. Diplomacy may be performed by the head of the state, or by the government, Minister of foreign relations, delegations at international conferences and missions at international organisations and by diplomatic agents." At present, the institution of diplomatic representatives has come to be the principal machinery by which intercourse between states is conducted. The practice of sending and receiving diplomatic agents by states is followed since the ancient time. One can find the practice in the ancient India when doots (messengers) were sent from one Rajya (state) to another Rajya (state). However, neither the practice was uniform nor they were sent to other states permanently. Diplomatic agents were sent temporarily to other states for some specific purpose, and when the purpose was fufilled they used to come back to their own states. That means, they were sent on an ad-hoc basis to other states.85 Even in the fourteenth and fifteenth century the practice was not uniform. The practice of sending to diplomatic agents permanently started from the seventeenth century. By the second half of the seventeenth century, permanent legation became a general institution. Later they were given certain rights, duties and privileges by the states which were almost identical in nature. This led to the development of some customary rues of International Law. The Congress of Vienna of 1815 for
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the first time codified the customary rules of International Law on the ranks of diplomatic representatives. But that was not the end.86 The institution of diplomatic agents continued to develop even after 1815. After the establishment of the United Nations, the task for codifying the law relating to the diplomatic agents was given to the International Law Commission. The commission prepared the draft articles and submitted them to the General Assembly of the United Nations. The Assembly convened a conference which was attended by eighty-four nations at Vienna in 1961. The conference adopted a Convention on April 18, 1961 by the name of Vien-na convention on Diplomatic Relations. The convention came into force on April 24, 1964 when it was ratified by twenty-two states. By the year 1986, 149 states have become parties to the convention.87 The convention codified a significant part of customary International Law concerning diplomatic relations and immunities. However, the convention is not to be considered as the only instrument in existence relating to diplomatic agents. Those matters in respect of which the convention did not make any express provision, they are still governed by the customary rules of International Law.88 CLASSIFICATION OF DIPLOMATIC AGENTS Diplomatic agents appointed to the state differ in class. These classes did not exit in the early stages of International Law. However, during the sixteenth century a distinction between two classes of diplomatic envoys gradually arose, and by about the middle of the seventeenth century, after permanent legations had come into general vogue, two such classes became generally recognisednamely, extraordinary envoys, called ambassadors, and ordinary envoys, called residents. Ambassadors were received with higher honours taking precedence of the other envoys. Disputes arose frequently regarding precedence, and the states tried in vain to avoid them by introducing during the eighteenth century anotherclassnamely, the so called ministers plenipotentiary.89
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Congress of Vienna (1815) had classified diplomatic agents under Article 1 into the above three categories viz., they were firstly, Ambassadors, secondly, Ministers plenipotentiary and envoys extraordinary, and thirdly, Charge Affairs. In the congress of Aix-la-Chapelle (1818), a fourth class was added, Le., Ministers Resident. The Vienna convention under Article 14 divides them into three classes, namely (a) that of ambassadors or nuncios accrediated to heads of state, and other heads of mission of equivalent rank, (b) that of envoys, ministers and internuncious, accrediated to heads of state, and (c) that of charges d' Affairs accrediated to Ministers for Foreign Affairs.9 The convention did not provide for the class of 'Ministers resident' which was added in 1818. Classification under the convention of 1961 has been made according to rights and privileges which are given to them.
1. Ambassadors
Ambassadors are considered to be the personal representatives of the heads of their states and therefore, they enjoy special honours. They can claim the title of excellency. When they are sent by Holy see, they are called Papal Legates or Papal Nuncios. Ambassadors sent within the commonwealth countries are called High Commissioners. When China and U.S.A. established diplomatic relationship, the Head of the Mission was known as the Head of the Liasion Officer. Representatives of this category can claim the title of Excellency.91 Normally, Ambassadors are appointed with the consent of the receiving state. They should therefore be personagrata (acceptable persons). Vienna convention of 1961 under Article 4(1) also lays down that the sending state must certain that the agreement of the receiving state has been given for the person it proposes to accredit as Head of the Mission to that state.92 When the ambassadors arrive in the
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state where they are sent, they present a sealed letter of credence which is given to them by the head of the sending state. They can claim for an interview from the head of the state to whom they are accrediated. However, sometimes they are refused interviews by the head of the state on the ground that a particular envoy is not personally acceptable.93 In such cases, the state declining to accept the diplomat is not compelled to state the reasons for its objections to the accredition or to justify them. In order to avoid any such awkward situation, a state wishing to appoint a particular person as ambassador must ascertain before hand whether he will be persona grata. The acceptance of a proposal to appoint a certain individual as diplomat is called agretion.94 Article 4 of the Vienna Convention of 1961 require the ending state to make certain that the agreement of the receiving state has been given for the person to be appointed as head of the diplomatic mission to that state. Once the assent is obtained, the accrediting state is safe in proceeding with the formal appointment of its diplomat. If the interview is refused by the Head of the state even after obtaining the assent, it may be deemed as discourteous act to the state he belongs.95 2. Ministers Plenipotentiary and Envoys Extraordinary They are not regarded as the personal representatives of the head of their states. They therefore, do not enjoy special honours which are normally enjoyed by the ambassadors. They do not receive the title of 'Excellency.'96 If they are given, it is because of courtesy and not by any right. They also do not enjoy the privileged treatment with the head of the state personally. They have a private audience from the head of the state when they present the letter of credence. In other respects, there is practically no difference between them and the ambassadors. 3. Charges d' Affairs They are accredited not by the head of the state but by the Foreign office to the Foreign office. They therefore, on arrival
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in the accredited state present a letter of credence to the Minister of Foreign Affairs. They do not enjoy honours and titles which are given to other categories of diplomatic representatives. Charges d'Affairs may be appointed either permanently or temporarily.97 However, in practice they are almost never appointed permanently. Charges d' Affairs are sometimes accredited to a newly recognised government after civil war or revolution. Their level of representation is usually upgraded after stabilisation of the situation in the receiving state. STAFF OF A DIPLOMATIC MISSION According to the Vienna Convention of 1961, the staff of a diplomatic mission is divided into diplomatic staff, administrative and technical staff and service staff. Diplomatic staff of the mission consists of, in addition to the head of a mission, all mission personnels, possessing diplomatic rank. The convention does not provide a list of such persons. However, in practice, the diplomatic staff is deemed to consist of military, naval and air attaches or their deputies, first, second and third secretaries, attaches, secretaries in charge of archives. Administrative and technical staff includes heads of offices or clerical, service, accountants, translators administrative assistants and technical assitants.98 Service staff includes drivers, couriers, doormen, elevator operators, janitors and other persons' performing domestic service functions in the mission. In addition to the above three categories, the Vienna Convention provides for another category namely 'private servants'. This refers to persons in the domestic service of the members of the mission. They are not the employees of the mission. It is to be noted that members of the diplomatic staff should be the nationals of the sending state.99 Nationals of the,receiving state or of a third state may be appointed as a member of the diplomatic staff only with the consent of the receiving state. Persons of other categories of mission and private servants may be the nationals of the receiving state.w
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FUNCTIONS OF DIPLOMATIC AGENTS Functions of diplomatic agents are determined by the rules of International Law and the municipal laws of the states. Vienna convention under Article 3(C1) lays down the various functions of the diplomatic agents which are as follows : 1. Representation Diplomatic agents represent the state by which they are sent in the state where they are accredited. Representation is entrusted primarily to the head of the mission, but other diplomatic agents may also participate at the appropriate level. Oppenheim says that 'he is the mouthpiece of the Head of his home state and its Foreign Minister, for communications to be made to the state to which he is accredited.'11 2. Protection Diplomatic agents protect the interests of the sending state and also of its nationals, within the limits permitted by municipal law. The limit is prescribed not by International Law but by the municipal law and regulations of the sending state within which an envoy affords protection.1132 3. Negotiation Negotiation is the most important function which the diplomatic agents perform. They negotiate on various aspects on behalf of the sending state with the state to which they are accredited in order to maintain friendly relationship between the two. They are required to communicate the outcome of the negotiations to the sending state from time to time.13 4. Observation Diplomatic agents are required to observe those happenings and events which may take place in the state where they are accredited, especially those which may have effect in the state by which they are sent. After making observations they are required to make periodical reports as well as special reports thereon to the government of the sending state.14
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5. Promotion of Friendly Relations Diplomatic agents are required to promote friendly relations between the sending state and the receiving state. They also have a function to develop the economic, cultural and social relations between the two states. PRIVILEGES AND IMMUNITIES OF DIPLOMATIC AGENTS Vienna Convention of 1961 lays down the different privileges and immunities which are granted to the diplomatic agents. They are as follows : 1. Inviolability of DiplomaticAgents Diplomatic agents are inviolable. The Vienna Convention under Article 29 lays down that the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person freedom or dignity. The above Article therefore, lays down the corresponding duties of the receiving state. The Government of the receiving state itself is under a duty to abstain from any conduct which may be injurious to the diplomatic agents, and it is also remains under a duty to prevent such injurious conduct if attempted by other persons.105 However, the immunity of inviolability given to the diplomatic agents is not absolute. The receiving state may arrest or detain the diplomatic agents in exceptional cases. For instance, a drunken diplomat with a loaded gun in a public place may be arrested. Further, if a diplomatic agent commits an act of violence which disturb the internal order of the receiving state in such a manner as makes it necessary to put him under restraint for the purpose of similar acts, or if conspires against the receiving state and the conspifacy can be made harmless only by putting him under restraint, he may be arrested for the time being, although he must in due time be safely sent horne.16 The terms of Article 29 of the Vienna Convention on Diplomatic
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relations do not, however, refer to such an exception. It must be emphasized that a diplomatic agent cannot complain if he is injured in consequence of his own unjustifiable behaviour, as for instance, in attacking an individual who in self defence retaliates, or in unreasonably or wilfully placing himself in dangerous or awkward positions, such as in a disorderly crowd.17 2. Inviolability of the Staff of the Mission In addition to the Head of the Mission, immunities are also given to the members of the staff of the mission which are defined in Article 1 of the Vienna Convention as the members of the diplomatic staff, administrative and technical staff and to the service staff. Para 2 of Article 37 of the Vienna Convention lays down about the immunities which are granted to the administrative and technical staff of the mission.1" It states that Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective household, shall if they are not nationals of or permanently resident in the receiving state, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving state specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. The above paragraph makes it clear that the administrative and technical staff shall be given immunities only when they are not nationals or permanent residents of the receiving state. Thus, they enjoy perSonal inviolability, inviolability of their residence, immunity from criminal jurisdiction exemption from taxes, levies and duties and also certain customs privileges.19 Immunity from civil and administrative jurisdiction exists only when they are performing service duties. As to the immunities to the service staff, Vienna to the service staff, Vienna Convention provides under para 3 of Article 37 that members of the service staff of the mission
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who are not nationals or of permanently resident in the receiving state shall enjoy immunity in respect of acts perform in the course of their duties, exemption from duties and taxes on the emoluments they receive by reason of their own employment and exemption from the social security provisions.11 Members of the service staff enjoy the above immunities when two conditions are satisfied i.e., firstly, when they are not nationals of or permanently resident in the receiving state, and secondly, they enjoy immunity with regard to acts performed in the course of their duties.111 Private servants, i.e., those who are in the domestic service of the members of the mission such as domestic servant or house keeper of a member of the mission or a tutor or governess for his children are exempt from taxes, levies and duties on the income, by reason of their employment, if they are not nationals of or permanent residents of the receiving state. In practice, they are locally recruited to reduce costs and because they are familiar with the local scene, and therefore, diplomatic immunities are not granted to them in case they belong to nationals of the receiving state.112 3. Inviolability of the Family Members The question of immunities to the family members of the diplomatic agents and the administrative and technical staff was controversial in view of the divergent state practice of the states. However, they have been resolved by the Vienna Convention which states under Article 37, para 1 that the immunities and privileges to the family members of the diplomatic agents having diplomatic ranks may be given if firstly, they are not nationals of or permanent residents of the receiving state, and secondly, so long as they form part of their household. The first restriction implies that even if the wife or children of the diplomat who happen to be the nationals of the receiving state shall not enjoy the immunities. The second restriction implies that those family members who are not living with the diplomat under the
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same roof and are not dependent shall not be given immunities. The married children of the diplomat who come for a sojourna with their parents cannot enjoy the immunities as they do not form part of the household.113 Divorced or separated daughter of the diplomat shall be entitled to privileges is she has been staying permanently with her parents. However, immunities shall not be provided if she has been living separately, and stays with the diplomat for a temporary period.114 Members of the families of the administrative and technical staff enjoy the same immunities which are given to the members of the administrative and technical staff provided firstly, they are not nationals of or permanently resident in the receiving state. -}nd secondly, they form part of the household. Immunity from civil and administrative Jurisdiction, however, is confined to acts performed in the course of their duties.115 However, all the immunities are not granted to those persons who are in the domestic service of the mission itself, such as drivers and kitchen staff. Immunities are given to them only if they are not nationals of the receiving state. 4. Inviolability of Premises A permanent diplomatic mission needs premises from which to operate, and the receiving state must help the sending state obtain premises for the mission. There is a right to use the flag and emblem of the sending state on the premises of the mission, thus clearly identifying them. Customary International Law has long recognised the inviolability of such premises. Article 30 of the Vienna Convention provides that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.116 The agents of the receiving state may not enter them except with the consent of the head of the mission. Now-a-days the inviolability of diplomatic premises involves their inaccessibility to agents of the receiving state, such as officers of justice, police, or revenue, without the consent of
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the head of the mission. In those cases intervention of police takes place at the request of the ambassador, as where he seeks their assistance in securing the removal of demonstrations who have forced their way into the embassy's premises, no breach of the embassy's inviolability occurs in such circumstances.117 No act of jurisdiction or administration of the receiving state can take place within these premises, except with such consent. The receiving state is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. If a crime is committed inside the house of an envoy by an individual who does not enjoy personally immunity from the local jurisdiction, the criminal must be surrendered to the local government. However, except in the cases of acute emergency, the premises of the diplomatic agents remain inviolable.118 5. Immunity from Criminal Jurisdiction Article 31 paragraph 1 of the Vienna Convention provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. The above provisions conform to the customary rules of International Law. Thus, receiving state have no right, in any circumstances whatever, to prosecute and punish diplomatic agents. However, this does not mean that a diplomatic agent has a right to do whatever he like.119 The presumption of the privileges he enjoys is that he acts and behaves in such a manner as harmonises with the internal order of the receiving state, whose laws and regulations he is under a duty to respect. If he acts and behaves otherwise, the receiving state will certainly his recall or dismiss him at once. Particularly, since the Second World War, the expulsion of diplomatic agents on grounds amounting to engaging in activities subversive of the receiving state has become almost a common place of international relations .120 Further, it is the duty of all persons enjoying such privileges and
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immunities to respect the laws and regulations of the receiving state. Local laws may be applied to the diplomatic agents if the immunity is waived by the sending state. 6. Immunity from Civil and Administrative Jurisdiction Diplomatic agents are immune from civil and administrative jurisdiction is a well recognised principle of International Law. No civil action of any kind as regards debts and the like can be brought against them in the civil courts of the receiving state. They cannot be arrested for debts, nor can their furniture, their cars and the like, be seized for debts.121 They cannot be prevented from leaving the country for not having paid their debts, nor can their passports be refused to them on this account. The Vienna Convention under Article 31 para 1 provides likewise. However, the convention specifies situations where immunity from the exercise of civil and administrative jurisdiction does not apply. These exceptions concern actions relating to (a) private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purpose of the mission.122 (b) Succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state, (c) any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. The above exceptions show that the diplomatic agents are not immune from the civil jurisdiction of the receiving state in all the cases. They are immune only for those acts which are performed by them in course of the performance of their official duties. Immunities do not extend to them for their personal or private matters.123 7. Immunity from Giving Witnesses Diplomatic agents are immune from being presented as witness in a civil, criminal or administrative court of the state to which they are appointed. He is also immune from
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giving evidence before a Commissioner sent to his house. However, they may appear before the courts after waiving this immunity. Article 31(2) of the Vienna Convention provided that a diplomatic agent is not obliged- to give evidence as a witness.124 8. Immunity from Taxes and Customs Duties Vienna Convention of 1961 under Article 34, lays down that diplomatic ageP is shall be exempted from all dues and taxes, personal or re Ai, national, regional or municipal. However, the convention incorporated with some precise rules with certain exceptions. The exceptions are as follows. Firstly, indirect taxes which are normally in corporated in the price of goods or services, for instance, sale tax and the service charges taken by hotels are required to be paid by them. Secondly, dues and taxes on private immovable property situated in the territory of the receiving state such as house tax and electricity bills of the private immovable property are required to be paid by them.125 But immovable property held by them on behalf of the sending state for the purpose of the mission is immune from such dues and taxes. Thirdly, estate, succession or inheritance duties levied by the receiving state is required to be paid by them. Fourthly, dues and taxes on private income having its sources in the receiving state and capital taxes on investment made in commercial undertakings in the receiving state, and fifthly, charges levied for specific sources rendered, registration, court or record fees, mortgage dues and stamp duty with respect to immovable property shall be paid by the diplomatic agents.126 As regards to the customs duties upon goods intended for a diplomatic agent's private use, customary International Law is generally regarded as imposing on receiving states no obligation to grant exemption therefrom. In practice, and by customary, however, the laws of many states grant such an exemption within varying limits. His personal baggage and other articles for official or personal use are also exempted from customs duties.127
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9. Immunity from Inspection of Personal Baggage The bag used by the diplomatic mission for sending letters, documents and articles to the sending states or to other missions oc its state abroad is called diplomatic bag. The Vienna Convention on diplomatic relations of 1961 provides under Article 27 para 3 that the diplomatic bag shall not be opened or detained. Any prohibited imports and exports are subject to quarantine regulations of the receiving state. The above provision is laid down under para 2 of Article 36 of the Vienna Convention.128 The Government of India, for proper arrangements, smooth and speedy delivery of diplomatic bags has evolved a method in 1954 according to which the missions or their agents are to collect the bag on producing "Katcha Bill." The missions are also to co-operate in the proper identification of the diplomatic bag, which is to accompany certificate or a declaration and bears a clear mark 'Diplomatic/ Officials'.129 The Government of India took serious view of the situation when some of the diplomatic missions started using their own ways of sending and receiving their mail inside India. The missions were asked to follow the rules which provided the use of only post and telegraph department for the purpose 10. Freedom of Communication Diplomatic agents are free to communicate any information for official purposes to the state by which they are accredited. Article 27 of the Vienna Convention lays down that the freedom of communication includes the use of couriers and code messages. Inviolability of the diplomatic bag is also reaffirmed in the above Article of the Vienna Convention.131 II. Freedom of Movement and Tavel Article 26 of the Convention provides that the diplomatic agents are free to move and travel in the territory of the Tece'_ving state. But this is subject to the laws and
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regulations, and laws made by the receiving state concerning the prohibited security zone. 12. Right to Worship The diplomatic agents have a right to worship any religious they like within the premises. But they cannot invite the nationals of the receiving state to take part to the worship. In other words, they have no right to preach their religion in the receiving state.132 13. Immunity from Social Security Provisions According to Article 33 of the Vienna Convention, a diplomatic agent shall with respect to services rendered for the sending state by exempted from social security provisions which may be in force in the receiving state.133 14. Immunity from Local and Military Obligations Article 35 of the Vienna Convention stipulates that diplomatic agents are exempt from local and military obligations of the receiving state such as those connected with requisitioning military contributions. These are the immunities and privileges which are granted to the diplomatic agents. But sometimes receiving states do not grant them to the members of the mission because of political reasons or for other reasons which have no basis in International Law. But no embassy would feel safe and secured particularly in those states which are governed by autocratic and instable regimes.134 WAIVER OF INLMUNITY The immunities which are granted to the diplomatic agents may be waived. A rule as to waiver of immunities has been made to as to check the abuse of immunities and privileges. It has always been accepted that immunity from jurisdiction may be waived by the sending state. The sending state can waive the immunities of the diplomatic agents of the Head of the mission as well as those of subordinate officials. The immunities of the subordinate officials may be waived also by the Head of the mission.135
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The Vienna Convention on Diplomatic Relations of 1961 provides that a diplomatic agent is entitled to the privileges and immunities due to him from the receiving state from the moment he enters its territory on proceeding to take up his post. If the agent already happens to be in the receiving state, immunities start from the moment his appointment is notified to the Ministry for Foreign Affairs. A diplomatic agent continues to be entitled to the immunities even when his functions have come to an end until he leaves the country or upon the expiry of a reasonable period.136 TERMINATION OF DIPLOMATIC MISSION Termination of diplomatic mission may have two meanings i.e., firstly, the termination of the head of the mission personally although the mission of which he was the head continues, and secondly, the termination of the mission as a whole. Both have been discussed separately. 1. Thrmination of the Head of the Mission The Head of the mission may be terminated in any of the following ways : (a)Expiration the Time : If the letter of credence is given to any diplomat, it may be for a limited period, his mission terminates at the expiration of the period. A temporary letter of credence may, for instance, be given to an individual for the purpose of representing a state diplomatically during the interval between the recall of an ambassador and the appointment of his successor.137 (b)Recall of Diplomatic Agent : Recalling a diplomat has been a power vested in the sending state. When a diplomatic agent is recalled by the sending state, generally the mission comes to an end. Recalling of a diplomat is utilised to show it displeasure at the personal misbehaviour of the diplomat or to express policy differences with the receiving state. It also occurs normally when the relations between the sending and the receiving state becomes strained.138 For instance, when relations between India and portugal became unfriendly due to latter's support of colonial policy, Indian
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diplomats were recalled from portugal. Further, Ravi Tandon, India's High Commissioner in Zambia was recalled in 1981, when it was brought to the notice of the Government of India that remarks of Ravi Tandon on Kenneth Kaunda's book had irked the Zambian president.139 In another case, where diplomats were recalled from India is that of Iraq diplomat in 1981. Deputy military attached in the French embassy, Allan Bolley was recalled in 1985 after his involvement in the espionage case became evident. (c) On the Request of the Receiving State : The Head of the diplomatic mission may be terminated when a request is made by the receiving state in this regard. It also takes place when the relations between the two become unfriendly or because of misconduct on the diplomats part.14 (d) Notification upon Fulfilment of Diplomatic Agent's Functions : The sending state may terminate the Head of the mission by notification if the diplomat's function has come to an end. Article 43 of the Vienna Convention provides that the function of a diplomatic agent comes to an end on notification by the sending state to the receiving state that function of the diplomatic agent has come to an end.141 (e) Persona-non-grata : The Head of the mission may be terminated if the diplomat has been. declared as not acceptable by the receiving state. Declaring a diplomat persona-non-grata is a right of the receiving state which it can exercise without assigning any reason. Persona-nongrata is therefore, a declaration issued by the receiving state that a diplomat is not acceptable to it. Normally, the question of non-acceptability of the diplomat arises on the ground of gross misconduct on his part. It is necessary to make notification by the receiving state to the sending state before the mission comes to an end on this ground. The notification to this effect is called persona-non-grata.142 In addition to the above, states have occasionally abused their right to declare a diplomatic agent to be unacceptable
Important Aspects of International Lau,
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as a weapon of political warfare, often in retaliation for one of their diplomatic agents having been declared as such by the other state.143 If the sending state fails to recall the diplomatic agents, against whom persona-non-grata has been issued, within a reasonable time (sometimes 24 to 48 hours), the receiving state is entitled to refuse to recognise the person in question as a member of the diplomatic mission.144 A person may be declared non-grata or not acceptable either before or after accredition. In the former case, the agent may be refused once his proposed appointment is made known, i.e., before arriving in the receiving state. Refusal to accept a diplomatic staff in such cases c:Lises least embarrassment in view of the fact that intimation of refusal is communicated through confidential channel. Most of the non-grata cases occur after accredition.145 An agent may be declared as non-grata on various grounds such as if he is found to be involved either in espionage or in terrorist activities. He may also be not acceptable because of his interference in the domestic affairs of the receiving state. The declaration of persona-non-grata by Pakistan against the Ambassador of Iraq, and thereafter termination of the mission is an example of this kind of termination of the diplomatic mission.146 In India, the declaration of personanon-grata to diplomats have been more frequent with regard to China and Pakistan. For instance, Pakistan High Commission Official Mohammad Ashfaque was declared persona-non-grata on December 5, 1992 for allegedly accepting some papers from a Junior Personnel of the Indian army."7 2. Termination of the Mission as a Whole A state has a right to terminate the diplomatic mission as a whole. Such a situation may arise when war breaks out between the sending and the receiving state. In . cases of armed conflict not amounting to war, diplomatic mission is not terminated in all the cases.148
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The diplomatic mission terminates ipso facto when the sending or receiving state is extinguished by voluntary merger into another state or through annexation. Upon the termination of a mission the functions of the persons concerned come to an end. Members of the mission and their families nevertheless continue, even in case of armed conflict, to be entitled to their privileges and immunities until they leave the country or on the expiry of a reasonably time to do so.149 It is to be noted that armed conflict between the two states does not terminate the mission in all the cases. In case of armed conflict with China in 1962, and with Pakistan in 1965, diplomatic relations did not come to an end. However, in 1971 India and Pakistan closed their mission when armed conflict occurred.15 6. Consuls and Special Missions Consuls are the agents of states residing abroad for a variety of purposes. However, they are sent mainly to protect the interests of the commerce, trade and navigation of the appointing state. In fact, the consular institution developed primarily a means of protecting trade. But, at present, they are sent for other purposes as wel1.151 Consuls are not diplomatic agents, and as such, they do not enjoy all those immunities and privileges which are granted to the diplomatic agents. Consuls differ from diplomatic agents in many ways, particularly, in respect of their mode of appointment and functions. Firstly, a diplomatic agent is a political representative of a state, but consuls are not the representatives of the states in the totality of their international relations. Secondly, while in the case of the diplomatic agent, the Letters of Credence is addressed by the Head of a state to another state, in the case of Consul, Letters of patent or letter of permission i.e., exequatur is not issued by the Head of the state, at though signed by him, to the chief executive of the receiving state.152 Thirdly, while the diplomatic agents are entitled for certain prerogatives as soon as they arrive in the receiving state,
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in the case of consuls, their appointment is communicated to the foreign government. They commence their functions only when the letter of permission is accepted by the receiving state. Fourthly, the functions of the two types of representatives are also different.153 Brownlie has rightly pointed out that consuls are in principle distinct in function and legal status from diplomatic agents. However, on certain occassions, particularly small states, send only a consul, who combines consular functions with those of the diplomatic agents. But by doing so, consuls thereby neither become diplomatic agents, nor they enjoy privileges and immunities which are granted to diplomatic agents.154 CLASSIFICATION OF CONSULS Article 9 of the Vienna divided the Consuls into four categories. They are : (a) Consuls-General, (b) Consuls, (c) Vice-Consuls, and (d) Consuls Agent. While Consuls-General is the Head of the consul office, consuls are appointed by the consuls-General and occupy the second place. ViceConsuls and Consuls-Agent are also appointed by the Consuls-General. Consuls-Agent may also be appointed by the Consuls. It is to be noted that in the Vienna Convention there is no change as to the classification on Consuls from that of the customary International Law.155 THE EXEQUATUR Exequatur is the letter of permission which is granted to Consuls by the Head of the receiving state. Consuls start their functions only when the letter of permission, i.e,, exequatur has been granted. The receiving state may refuse to grant exequatur and it need not give reasons thereof.156 FUNCTIONS OF CONSULS Article 5 of the Vienna Convention lays down the various functions of the consuls. Important amongst them are firstly, protection of commercial, industrial and navigational interests of the sending state, and its nationals. Secondly, furtherance of the development of commercial, economic, cultural and scientific relations between the two states, and
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International Law
promotion of friendly relations between the two. Thirdly, to ascertain conditions and development of commercial, economic, cultural and scientific conditions of the receiving state. Fourthly, they issue passports to their nationals and visa to the nationals of the receiving state.157 Fifthly, they provide help and assistance to their nationals in testifying signatures, registration of marriage, birth and death. Sixthly, they safeguard the interests of minors and other persons of their states lacking full capacity. Seventhly, they exercise the rights of supervision and inspection in respect of vessels and aircrafts of the sending state, and lastly, they perform any other functions which are entrusted to them.158 PRIVILEGES AND IMMUNITIES OF CONSULS Although consuls are not given all those immunities which are given to the diplomatic agents, they enjoy certain privileges and immunities as they are the representatives of the sending states. Immunities are laid down in chapter 2 of the Vienna Convention. Some of the important immunities are as follows : Firstly, Article 31 lays down that consuls premises are inviolable. No one can enter into the consular premises except with the prior consent of the Head of the office. The rule of inviolability extends to consular archives, documents and communications. The receiving state is under a duty to protect the consulters premises against any damage or intrusion. Further, Consular premises are exempt from all national, regional or municipal taxes.159 Secondly, Article 34 lays down that Consuls have freedom to move throughout the territory of the receiving state, subject to the laws and regulations concerning national security. Thirdly, Article 36 lays down that consuls have freedom to communicate any information to the sending states. The Consular office is empowered to use the diplomatic pouch for this purpose. Fourthly, Article 41 lays down that the Consuls shall be inviolable except in case of a grave crime and pursuant to a decision by the competent judicial authority. Any detention,
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arrest or prosecution by the receiving state shall be notified to the consular Head of the sending state.16 Fifthly, Article 43 lays down that the consular officers are not amenable from the civil and criminal jurisdiction of the receiving state in respect of their official functions. But they shall be liable for those actions which they have not done as the agents of the sending state. Sixthly, consular officers are exempt from all local dues and taxes except indirect taxes, estate, succession or inheritance duties, dues and taxes on private income deriving out of investments made in commercial or financial undertakings in the receiving state, charges levied for specific services rendered, registration, court fees, mortgage duties and stamp duties.161 Seventhly, Article 50 lays down that the consular officers and their families are exempt from personal services and contributions. It appears that many immunities granted to the diplomatic agents are also given to the consuls.162 PERSONA-NON-GRATA The receiving state may at any time declare, that a consul has become an undesirable person, i.e., persona-non-grata. In that case, the sending state recalls the person concern or terminate his functions as consular officer. If the officer concern is not recalled within a reasonable time, the receiving state may withdraw exequatur from the officer. Sometimes they are informed or asked to leave the country within forty-eight hours or as early as possible.163 SPECIAL MISSIONS In addition to diplomatic missions and consuls, states sometimes make use of ad-hoc diplomacy or special missions to have dealings with other states for various temporary purposes, such as to attend an international conference being held in another state, to represent the sending state at a meeting there of an international organisation, to represent the sending state on some coremonia accasions taking place in the receiving state.164 The custom of sending a special consular on mission from one state to another is probably the oldest of all means by which diplomatic
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relations are conducted. During the eighteenth and nineteenth century, such missions were frequently despatched in order to provide suitable state representation at major ceremonial occassions, such as coronation or royal weddings or for the purposes of important political negotiations.165 Since 1945, there has been a marked increase in the number and importance of special missions. The expression 'special missions' means a temporary mission of state representatives sent by one state to another, with the consent of that state, for the performance of a special task. The term special missions as a temporary mission, representing the state, which is sent by one to another state with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task. The above term contains three important elements.166 Firstly, they are always sent with the prior consent of the receiving state. Secondly, the task of a special mission is specified by mutual consent of the sending state and of the receiving state. Thirdly, it is of a temporary nature. A state may send the same special mission to more than one state. In that case, the sending state shall give the states concerned prior notice of the sending of that mission. Each of those states may refuse to receive such a mission.167 The special mission performs a variety of functions. For instance, when the head of a state attends a funeral abroad, or when a foreign minister visits a foreign country for negotiations, or when a government trade delegation visits a foreign country to conduct official business, they are referred to as special missions. It may be stated that they are sent to a particular state to deal with a specific question or to perform a specific task with the consent of the state to *hich they are sent. The existence of diplomatic or consular relations between states is not necessary for the sending or reception of special missions.168 The function of a special mission commences as soon as the mission enters into official contact with the appropriate organs of the receiving state.
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The Head and the members of the special missions enjoy immunities in the receiving state. Immunities and privileges are almost similar to those of the diplomatic agents. Thus, the persons of the head and members of the special missions are inviolable. They shall not be liable to any form of arrest or detention.'69 The receiving state shall treat them with due respect and shall take all appropriate steps to prevent any attack on their persons, freedom or dignity. They are immune from civil and administrative jurisdiction as well as from the criminal jurisdiction of the receiving state. They have freedom of movement and travel as is necessary for the performance of their functions. They have freedom to make communications for all official purposes. Premises of the special missions are inviolable. Premises are exempted from the national, regional and municipal dues and taxes.17 REFERENCES
1. See Harvard Draft Convention on Nationality (ICJ Reports, 1955, p. 23). 2. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 851. 3. Advisory Opinion in the case concerning Nationality Decrees Issued in Tunis and Morocco PCIJ Series B, No. 4. 4. Ibid., p. 849. 5. S.K. Agarwal, International LawIndian Courts and Legislation, p. 103. 6. PCIJ Series A, 2 at p. 12 (1924). 7. S.K. Agarwal, op. cit., p. 102. 8. Similarly, Dadra and Nagar Haveli (Citizenship) Oriler was issued on March 29, 1962. For the citizens of Pondicherry and Sikkim, orders were issued on December 8, 1962 and May 16, 1975 respectively. 9. Oppenheim, op. cit., 883. 10. State Assembly Resolution 2263 (XXII) dated November 7, 1967. 11. The Convention was adopted by the General Assembly through a resolution 34/180 (1979). The convention is an annexture of the resolution. For the text of the convention see IJIL Vol. 21 (1981) p. 156. 12. S.K. Agarwal, op. cit., p. 97.
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13. Article 34 of the Convention Relating to the Status of Refugees. 14. Article 32 of the Convention Relating to the Status of Stateless Persons. 15. Article 5(1). 16. Article 6. 17. Act No. 57 of 1955, Dated December 30, 1955. 18. Act of 1986. 19. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), pp. 897-898. 20. 142 US 651, 659. 21. Fenwick, 'International Law', p. 329. 22. Fenwick, 'International Law', p. 329. 23. Ibid. 24. Ibid. 25. Ibid. 26. Seventeen States Supported the Principle at the Hague Codification Conference in 1930. 27. A majority of the states represented at the Hague Codification Conference opposed it. 28. See General Assembly Resolution 626 (VII), dated December 14, 1962. 29. See Neer Claim (1926), Roberts CIMm (1926), Hopkins Claim (1926). 30. Oppenheim, op. cit., p. 904. 31. Ibid. 32. Ibid. 33. Ibid., pp. 904-905. 34. Ibid., pp. 905. 35. Ibid., pp. 905-906. 36. Oppenheim, op. cit., p. 907. 37. Karl Doehring, in 'Encyclopedia of Public International Law', published under the auspices of Max Planck Institute for Comparative Public Law and International Law under the direction of Rudolf Bernhardt (1992), p. 111. 38. Oppenheim, op. cit., 907-940. 39. Ibid., p. 945.
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40. Ibid. 41. Karl Doehring, op. cit. (1992), p. 111. 42. Starke, op. cit., p. 351. 43. See R.C. Chhangani, 'Expulsion of Being Nationals and International Law', IJIL, Vol. 21 (1981), p. 149. 44. See General Assembly Resolution 3281 (XXIX), dated December 12, 1974. 45. Articles 2(20 (c). 46. Brownlie, 'Principles of Public International Law', Fourth Edition (1990), p. 535. 47. Act 31 of 1946, November 23, 1946. 48. AIR (1955), Supreme Court, p. 367. 49. 'International Law', Vol. I, Ninth Edition (1992), p. 949. 50. See H.O. Agarwal, 'Application of aut dedere aut puniare in combating International Terrorism' (Paper submitted in the Teacher's Seminar of International Law Association, held in New Delhi on March 31, 1988). 51. See Oppenheim, op. cit., p. 950, Arnold Mc Nair, 'Extradition and Ex-territorial Asylum', Vol. XXVIII (1951), p. 174-177. 52. 290 U.S. (1933), p. 287, Also see Rauscher V. United State, 119 US (1886), p. 407. 53. Starke's International Law, Eleventh Edition (1994), p. 318. 54. For instance, Harvard Law School in 1935 prepared a Draft Convention on Extradition, in 1960, the Asian African Legal Consultative Body prepared a similar Draft at its Colombo Session. 55. Model Treaty on Extradition was annexed to the General Assembly Resolution 45/116 on dated December 4, 1990. 56. See General Assembly Resolution 45/117 dated January 15, 1991. 57. Oppenheim, op. cit., p. 946. 58. Oppenheim, op. cit., p. 942. 59. See European Convention on the Suppression of Terrorism. 60. See in the Matter of Extradition of Suares Mason 694, of Supp. 676 (ND Cal. 1988), at 705. 61. Oppenheim, op. cit., p. 693. 62. (1891) IQB, 149. 63. (1891) IQB, at p. 156 and 159.
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International Law 13. Article 34 of the Convention Relating to the Status of Refugees. 14. Article 32 of the Conv-ntion Relating to the Status of Stateless Persons. 15. Article 5(1).
16. Article 6. 17. Act No. 57 of 1955, Dated December 30, 1955. 18. Act of 1986. 19. Oppenheim, 'International Law', Vol. 1, Ninth Edition (1992), pp. 897-898. 20. 142 US 651, 659. 21. Fenwick, 'International Law', p. 329. 22. Fenwick, 'International Law', p. 329. 23. Ibid. 24. Ibid. 25. Ibid. 26. Seventeen States Supported the Principle at the Hague Codification Conference in 1930. 27. A majority of the states represented at the Hague Codification Conference opposed it. 28. See General Assembly Resolution 626 (VII), dated December 14, 1962. 29. See Neer Claim (1926), Roberts Claim (1926), Hopkins Claim (1926). 30. Oppenheim, op. cit., p. 904. 31. 32. 33. 34. 35. 36. 37. Ibid. Ibid. Ibid., pp. 904-905. Ibid., pp. 905. Ibid., pp. 905-906. Oppenheim, op. cit., p. 907. Karl Doehring, in 'Encyclopedia of Public International Law', published under the auspices of Max Planck Institute for Comparative Public Law and International Law under the direction of Rudolf Bernhardt (1992), p. 111.
38. Oppenheim, op. cit., 907-940. 39. Ibid., p. 945.
Important Aspects of International Law 40. Ibid. 4L Karl I)oehring, op. cit. (1992), p. 111.
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42. Starke, op. cit., p. 351. 43. See R.C. Chhangani, 'Expulsion of Being Nationals and International Law', IJIL, Vol. 21 (1981), p. 149. 44. See General Assembly Resolution 3281 (XXIX), dated December 12, 1974. 45. Articles 2(20 (c). 46, Brownlie, 'Principles of Public International Law', Fourth Edition (1990), p. 535. 47. Act 31 of 1946, November 23, 1946. 48. AIR (1955), Supreme Court, p. 367. 49. 'International Law', Vol. I, Ninth Edition (1992), p. 949. 50. See H.O. Agarwal, 'Application of aut dedere aut puniare in combating International Terrorism' (Paper submitted in the Teacher's Seminar of International Law Association, held in New Delhi on March 31, 1988). 51. See Oppenheim, op. cit., p. 950, Arnold Mc Nair, 'Extradition and Ex-territorial Asylum', Vol. XXVIII (1951), p. 174-177. 52. 290 U.S. (1933), p. 287, Also see Rauscher V. United State, 119 US (1886), p. 407. 53. Starke's International Law, Eleventh Edition (1994), p. 318. 54. For instance, Harvard Law School in 1935 prepared a Draft Convention on Extradition, in 1960, the Asian African Legal Consultative Body prepared a similar Draft at its Colombo Session. 55. Model Treaty on Extradition was annexed to the General Assembly Resolution 45/116 on dated December 4, 1990. 56. See General Assembly Resolution 45/117 dated January 15, 1991. 57. Oppenheim, op. cit., p. 946. 58. Oppenheim, op. cit., p. 942. 59. See European Convention on the Suppression of Terrorism. 60. See in the Matter of Extradition of Suares Mason 694, of Supp. 676 (ND Cal. 1988), at 705. 61. Oppenheim, op. cit., p. 693. 62. (1891) IQB, 149. 63. (1891) IQB, at p. 156 and 159.
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64. (1894) 2QB 415. 65. (1894) 62 Federal Court, p. 972 at p. 999. 66. Annual Digest (1927-28), Case No. 29, p. 347 67. Annual Digest (1948), p. 800. 68. (1955) 1 All ER 31. Also see Re Peyre ILR (1955), p. 525, Re De Bernonville, ILR (1955), p. 527. 69. H.O. Agarwal, 'Nature of Political Offence', Supreme Court Journal (1979), at p. 21. 70. 28 ILM 1063 (1989). 71. CCPR/C/49/D/469/199. Also see Kindler V. Canada, CCPRJC/ 48/D/470/1990. 72. (1886), 110 US 407. 73. See Order of the First Class Magistrate (New Delhi) of March 29, 1963. 74. AIR (1953), Madras, p. 729 at p. 763. 75. R.C. Hingorani, 'Modern International Law', Second Edition, p. 183. 76. Starke, op. cit., 319. Also see Oppenheim, op. cit., p. 959. 77. Act IV of 1903. 78. See Lok Sabha Debates, 12th Session, 1956, Appendix 4, Annex No. 42, cited in H.O. Agarwal' Succession to Extradition Treaties, Supreme Court Journal (1977), p. 53 at p. 59. 79. Act XXIV of 1962. 80. R.C. Hingorani, 'The Indian Extradition Law', Appendix V, P. 119. 81. Starke's International Law, Eleventh Edition (1994), p. 323. 82. Year Book of International Law Commission (1960), Vol. II, p. 180, para 39. 83. ICJ Reports (1949), p. 4. 84. Ibid., p. 282. 85. Ibid., p. 294. 86. General Assembly Resolution 23/2 XXII of December 14, 1967. 87. For instance, see the preamble to the French Constitution of 1946, Article 10 of the Italian Constitution of 1947, Article 16 of the Constitution of the German Federal Republic of 1949.
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88. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 902. 89. General Assembly Resolution 3272 (XXIX) December 10, 1974. 90. General Assembly Resolution 3456 (XXX) December 9, 1975. 91. U.N. Monthly Chronicle, March 1977, p. 41. 92. M.c Nair, 'Extradition and Extraditional Asylum', BYIL, Vol. 28 (1951), p. 172. 93. Oppenheim, op. cit., p. 1082 94. ICJ Reports (1950), p. 274. 95. Ibid., p. 217. 96. Starke, op. cit., p. 327. 97. Oppenheim, op. cit., p. 1083. 98. Ibid. 99. Ibid. 100. Ibid., p. 1084. 101. See Asylum case, op. cit., p. 187. 102. Oppenheim, op. cit., p. 1085. 103. See General Assembly Resolution 3321 (XXIX). 104. For the full text of the statement see IJIL, Vol. 15, p. 534. 105. See Section 'Diplomatic Agents'. 106. Starke, op. cit., p. 203. 107. 0 Connell, 'International Law', Vol. II, p. 814. 108. Starke, op. cit., p. 328. 109. Starke, op. cit., p. 317. 110. Diplomacy is an art which can successfully performed by trained personnel. It is a profession which requires discretion, patience, accurate reporting and absolute honesty. 111. Starke, op. cit., p. 348. 112. Starke, op. cit., p. 350. 113. Oppenheim, op. cit., p. 155. 114. General Assembly Resolution 1450 (XIV) of December 7, 1959. 115. See Preamble of the Convention. 116. See Preamble of the Convention. 117. Ibid., op. cit., p. 1066. 118. Ibid., op. cit., p. 1070.
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119_ Hurst, Diplomatic immunities, Modern Development BYIL Vol. X (1928), p. 146. 120, Fenwick, International Law, p. 562. 121. Oppenheim, pp. 1074-1075. 122. See Article 21 of the Vienna Convention of 1961. 123. See Article 22 of the Vienna Convention of 1961. 124. Oppenheim op. cit., p. 1077. 125. Oppenheiri, op. cit., p. 1077. 126. Security ( ouncil Resolution 667 (1990), Dated September 16, 1990. 127. ICJ Reports (1980), p. 3. 128. Oppenheim, op. cit., p. 1080. 129. Ibid., p. 1081. 130. Brownlie, op. cit., p. 353. 131. Oppenheim, op. cit., p. 1097. 132. Ibid., p. 1097. 133. Oppenheim, op. cit., p. 1093. 134. Ibid. 135. Ibid., p. 1100-1101. 136. Oppenheim, op. cit., p. 1102-1103. 137. Ibid., p. 1103. 138. See Article 36 para 2 of the Vienna Convention of 1961. 139. See Arun Chaturvedi, 'Diplomatic Laws and Indian State Practice', IJIL, Vol. 25 (1985), pp. 62-63. 140. See para 1 of Article 3 of Vienna Convention of 1961. 141. Oppenheim, op. cit., p. 247. 142. Act No. 43 of 1972. For the full text of the Act see Appendix VII. 143. Para 1 of Sect.-2. 144. See 4. 145. Oppenheim 'International Law', Vol_ I, Ninth Edition (1992), p. 1132. 146. Brownlie, Principles of Public International Law', p. 361. For differences also see Starke's 'International Law', p. 361. 147. For the text of Convention see AJIL Col. 57 (1963), p. 993. 148. See United States Diplomatic and Consular staff (1980), ICJ Reports, p. 3.
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149. General Assembly Resolution 1687 (XVI) December 18, 1961. 150. General Assembly Resolution 2530 (XVIV) December 8, 1969. The Convention consists of 55 Articles. 151. Article 7 of the Convention. 152. Article 12(1). 153. Article 17(1). 154. Article 22. 155. Article 29. 156. Article 30. 157. Article 31. 158. Article 24. 159. Article 25. 160. Article 20. 161. Article 19. 162. Annual Digest (1948), p. 800. 163. H.O. Agarwal, op. cit., p. 22. 164. H.O. Agarwal, op. cit., p. 24. 165. R.C. Hingorani, op. cit., p. 30. 166. ICJ Reports (1949), p. 13. 167. Starke, op. cit., p. 320. 168. Oppenheim, op. cit., p. 959. 169. Ibid., op. cit., p. 356. 170. Oppenheim, op. cit., p. 1084.
AASIC CONCEPTS OF INTERNATIONAL LAW

1. TREATIES The term treaty means a written agreement by which two or more states or international organisations create or intend to create a relation between themselves operating within the sphere of International Law.1 The above definition contains four important elements. Firstly, treaties should be in writing, it is rare to find an oral agreement between the states. Oral agreements are neither precise nor permanent, and therefore at present, it has become essential that treaties should be concluded in writing. Secondly parties to a treaty may be either states, or a state and international organisation, or international organisations.2 Thirdly, the purpose of a treaty is to create a relationship between the parties. The relationship may be legal relations or political or moral relations. It implies that treaties or provisions of treaties may impose no binding obligations, or be intended not to create legal relations between the parties.3 For instance, certain treaties of friendship between states do not create any legal relationship between the contracting parties. Fourthly, a treaty should operate within the sphere of International Law. It is submitted that International Law is not the only legal system within which the states can contract.4 Some contracts may be governed by general principles of law including private International
Basic Concepts of International Law
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Law. Such contracts may be helpful in resolving difficulties but they do not come within the scope of the treaty in which it is used in International Law.5 The term treaty denotes a genus and it includes many different names which may be attributed to it by the parties. A treaty may be called a treaty, but at the same time, a variety of other names may be attributed to the term such as convention, agreement, protocol, declaration, arrangements accord, additional articles, code, communique, compact, contract, instrument and optional clauses The above may indicate a difference in procedure or degree of formality, but in generic sense all of them are described as treaties. A treaty may be concluded through the exchange of notes or letters. Treaties acquire a prominent place in international relations since long before International Law in the modern sense of the term was in existence. The customary rules of International Law relating to treaties gradually acquire considerable certainly and precision.? Nevertheless, the very great importance of treaties in international relations and the uncertainty or unsatisfactionness of some aspects of customary International Law led the International Law Commission in as early as 1949 to include the topic of the treaties in the list of the topics selected for the codification. The codification of the topic of law of treaties was one of those which was selected by the International Law Commiss-:-)ns as early as in 1949.8 It is important to note that the Vienna Convention on law of treaties applies to those treaties which are concluded by states, 'after the entry into force of the present convention with regard to such states'. It implies that treaties made before that date. are still governed by the 'old' law.9 Thus, at present treaties concluded by states are governed by the òld' law as well as 'new' law, i.e., the laws made by the Vienna Convention of 1969.
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The Convention does not apply to agreements concluded between states and other subjects of International Law, or between such other aspects of International Law.1 Thus, agreements concluded between states and international organisations or between international organisations do not come within the scope of the convention. It was perhaps done to make the rules of treaties concluded by states more precisely.11 The conference on the Law of Treaties recommended to the General Assembly that a separate convention should be adopted in respect of treaties concluded between states and international organisations or between international organisations.12 Accordingly, the conference adopted a separate convention on the Law of Treaties to which International Organizations are parties on March 20, 1986. The convention consists of eighty six Articles, and shall come into force when it shall be ratified or acceded to by 35 states.13 KINDS OF TREATIES Treaties may be classified into three categories on the basis of the parties becoming members to treaties. They are as follows : 1. Bilateral Ilieaties Bilateral treaties are described as those treaties in which participation and rights and obligations arising from the treaty is limited only to two parties.14 They are sometimes also called 'bipartite' treaties, although the word is not apt. Many bilateral treaties bear the closest analogy to the private law contract15 and therefore, they are sometimes referred to as treaty-contract. 2. Plurilateral Treaties Those treaties where the participation is open to a restricted number of states are described as plurilateral treaties. The minimum number of parties in such treaties should be more than two. Although the maximum member may differ from
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one to another, it should not be open to all or most of the members of the international community as in the case of multilateral treaties.16 The purpose of the conclusion of plurilateral treaties varies from treaty to treaty. For example, it may be either to maintain peace and security within a specific region or to promote and develop the commerce amongst the participating members or to create similar other rights and obligations, the burdens and benefits of which are created in favour of only a group of states.17 3. Multilateral Treaties Multilateral treaties are those which are open to participation for all the states without restriction or to a considerable number of parties.18 Some multilateral treaties set-up an international organisation for a specific purpose or a variety of purposes. They may, therefore, be referred to as constituent agreements. The United Nations Charter is both a multilateral treaty and the constituent instrument of the United Nations.19 Multilateral treaties lay down general norms of International Law, or to deal in a general manner with matters of general concern to other states as well as to the parties to the treaties. Multilateral treaties are said to perform the functions of international legislation.2 It is to be noted that they might have semblance of international legislation, yet it would be improper to describe them so because the expression international legislation is more a metaphor than a reality.21 However, in the absence of an international legislation, multilateral treaties are among the most promising methods for the development of International Law.22 Mutilateral treaties are sometimes described as lawmaking treaties. It may be noted that such a description would be inappropriate if it is used to suggest the laying down of a general rule for future conduct or for creating some international institation. In fact, a treaty is an
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agreement between the contracting parties.23 Nonsignatories are not bound by it unless it creates a customary rule of International Law. Therefore, in a limited sense, all treaties are law-making in as much as they lay down rules of conduct which the parties are bound to observe. However, multilateral treaties could have been more aptly described as lawmaking treaties had the term been used to denote those treaties which create a regime of law, either on a multilateral scale, or fall all states such as General Treaty for Renunciation of war of August 27, 1928.24 But each and every multi-lateral treaty cannot be regarded as a law-making treaty because they lack this particular character. The Vienna Convention has classified all the treaties into bilateral treaties and multilateral treaties. Plurilateral treaties do not find place in the above convention. They been included in the category of multilateral treaty.25 STEPS OF TREATY .4."7 There are no precise procedure or standard exists in this regard. However, following are the steps which are generally adopted in concluding a treaty. 1. Accrediting of Persons by the Contracting States The first step in the conclusion of a treaty is the appointment of the representatives or plenipotentiary by the states.26 The representatives should be equipped with the necessary authority for the conclusion of a treaty. Normally, the representatives of the states are provided with a formal instrument which is given either by the Head of the state or by the Minister of Foreign Affairs. The instrument is called (full powers," The representatives are required to exchanged their full powers, i.e., negotiating, adopting or authenticating the text of a treaty.27 Full powers are also not necessary if a treaty is concluded on behalf of a state by the Heads of the states Heads of Governments, Ministers of Foreign Affairs Heads of diplomatic missions and representatives accrediated to international conferences or
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organisations.28 They are considered to represent the state ex-officio. 2. Negotiation The accredited persons of contracting states proceed for negotiation. In the stage of negotiations, the proposals of the negotiating parties are put forward, discussed, harmonised and tentatively agreed upon. While negotiating a treaty, the representatives may consult their governments.29 3. Adoption of the Text When states have negotiated a treaty they settle its form and content by drawing up a text setting out its provisions." In a bilateral treaty, the adoption of the text of a treaty is an informal step but where a large number of states participate in the drawing up of the text the matter assumes more significance. The normal rule in such circumstances is that the consent of all those states is needed for the adoption of the text. The application of a unanimity rule for texts prepared at international conferences is, however, unrealist and not the normal practice.3' 4. Signature After the adoption the text of a treaty is required to be signed by the accredited representatives of the contracting parties. The text of a treaty is regarded as authentic and definitive by the signature at referendum or initialling signature and initialling both have been recognisded valid by the Vienna Convention.32 However, the initialling of a treaty constitutes a signature of the treaty when it is established that negotiating states so agreed. It is important that the signature or initialling is done by each representative at the same time and place and in the presence of each other.33 The effect of signature of a treaty may be different from treaty to treaty. It depends on whether or not the treaty is subject to ratification, acceptance or approval. Where a provision is not made for ratification acceptance or approval
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a treaty comes into force on signatures of the representatives.34 However, where a treaty is subject to ratification, acceptance or approval, the signature has no meaning except that the representatives have agreed upon a text and willing to accept it and refer it to Governments which have a competency either to approve it or reject it.35 However, where a treaty is subject to ratification, acceptance or approval, signatory states are required not to do any act which may frustrate the object of the treaty.36 5. Ratification When a treaty signed by the representative of the state is confirmed by the state, the act of confirmation is called ratification. Thus, it is an act by which state confirms its signature and by that act finally gives its consent to be bound by a treaty. It implies that the process of ratification is confined only to the signatory states.37 Ratification of a treaty by the states is done only in those cases where it is so required to be done by a state, a treaty comes into force from the time of signature of the representative of states.38 It is significant to note that those treaties which require ratification, rights and obligations of the treaty become applicable to the ratifying state only as from the date of ratification and not from the date of signature.39 The ratification does not operate retrospectively. Multilateral treaties come into force on the deposit of a prescribed number of ratification and accession. Ratification of a treaty therefore, is made by which a state gives its consent to be bound by a treaty. 6. Purpose of Ratification At present, generally all the treaties are required to be ratified by the states. The practice in the case of multilateral treaties is adopted uniformly. Purpose of ratification of a treaty may be many.41 For instance, ratification gives an opportunity to the contracting parties to re-examine and review the treaty signed by their representatives. The implications of a treaty therefore, can be studied
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thoroughly.42 Secondly, a state ratifies a treaty on the basis of sovereignty. If so wishes it may withdraw itself from a treaty by non-ratifying it. Thirdly, a state may require to amend its own laws in order to give an effect to the provisions of a treaty. The period between signature and ratification may be utilised in doing so.43 Fourthly, it is one of the principles of the democratic set up that the Government should consult public opinion either in parliament or elsewhere as to whether a particular treaty should be confirmed." 7. Entry into Force A treaty enters into force in accordance with the provisions of a treaty. If no provision is made in a treaty as to this effect, it enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states.45 Normally, bilateral treaties enter into force when both the contracting parties have exchanged their documents of ratification. In those treaties where ratification by the parties is not required, a treaty comes into force after the signature on behalf of all the parties, and the exchange or deposit of signed copies. The rule applies to plurilateral treaties also." Multilateral treaties enter into force from the date when the prescribed number of ratification or accession has been made. Some treaties provide that a treaty shall enter into force after a lapse of certain period from the date of receipt of the prescribed number of ratification or accession.47 A treaty may also enter into force provisionally. But the provisional application of a treaty or a part of a treaty with respect to the state shall be terminated if the state notifies the other states of its intention not to become a party to the treaty." 8. Registration and Publication A treaty is required to be registered with the Secretary General of the United Nations after it has come into force. The rules of registration and publication were adopted by the General Assembly on December 14, 1946. The Vienna
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and political dispute is purely subjective. Whether a dispute is legal or political, depends more or less upon the attitude of states. If the states desire that a dispute is to be settled on the basis of law, the dispute is regarded as legal. If they fear that the decision might go against them, the dispute becomes political.62"It is therefore, difficult to distinguish the dispute from legal to political. The distinction between legal and political dispute is important because in International Law, the procedure for the settlement of disputes has been laid down for only legal disputes.63 If in any legal dispute, political aspects are present, the court as a judicial organ 'cannot concern itself with the political motivation. Thus, International Law is not concerned with all the disputes of the states, and therefore, meaning of the term 'dispute' should be taken in a restricted sense. However, the various amicable or peaceful means are useful in settling the disputes. It is said that there are number of peaceful means to settle the disputes such as negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements etc." It is to be noted that to settle disputes peacefully is a duty of a state. Presently, the to settle the dispute peacefully has become the customary rule of International Law. The various peaceful means for the settlement of the disputes may be divided broadly into two categories. They areextra-judicial fettlement, a dispute is setted by means of an agreement between the disputant states. Such means of settlement, a dispute is settled by means of an agreement between the disputant states. Such means of settlement are also sometimes known as 'political means' or 'diplomatic procedures.'65 The Judicial settlement is a legal process. It consists of settlement by a third party determination of the questions of law and fact involved in the dispute. Although the two approaches are quite different from one another, it must not be understood that there is a 'complete divorce' between thern.66 The two procedures have been discussed separately.
Basic Concepts of International Law 1. Extra-Judicial Peaceful Means Following are the extra-judicial peaceful means :
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(a) Negotiation : When the disputant states settle their disputes themselves by discussion or by adjusting their differences, the procedure is called negotiation. Negotiation may be carried on either by the Heads of the states or by their accediated representatives or by diplomatic agents.67 It also includes correspondence between the disputant states. Negotiation is the simplest form of settling the disputes. It helps the disputant parties to bring about the needed change by mutual consent." The success of negotiation as a means to settle disputes depends largely upon the degree of acceptability of claims of one party by the other, the restraint, fact and the spirit of accommodation with which the negotiations are conducted. However, negotiation has certain weaknesses. On many occasions it becomes difficult for the disputant parties to ascertain the precise and correct facts which have given rise to a dispute.69 Further, in those cases where the negotiations are carried out by 'big state' on the one hand, and by the `small state' on the other hand or to say, when the parties are unequal, it is likely that the small power may be subjected to the will of the other. The possibility of imposing influence by the big power over its counterpart is greater in negotiation.7 Many notable and important issues and disputes have been settled by the states through negotiations. In 1976, India and Pakistan settled their outstanding differences in the Shimla Conference. Similarly, India and Sri Lanka settled their boundary disputes in 1974 by negotiation. The Farraka barrage issue was also settled through negotiation by India and Bangladesh in 1977. In all the above cases, negotiations resulted in the conclusion of agreements.71 (b) Good Offices and Mediation : When the parties are not inclined to settle their dispute by negotiation or when they fail to settle their dispute by negotiation, they may take the assistance of a third party in resolving their
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differences.72 The third party may be appointed by the parties themselves or by the Security Council, The third party may be a state or an individual-usually an eminent citizen of a third state (whether in a private capacity or by virtue of high political office in that state). A person could also be appointed by the Security Council to settle the dispute. McNaughton in 1949, Dixon in 1950, Graham in 1951 and Jarring in 1957 were appointed by the Security Council as the United Nations representatives to settle the Kashmir dispute between India and Pakistan.73 However, the third party is not under any legal obligation to accept the appointment. Apart from the appointment, the third party may make an offer to the disputant states for providing its services in settling the dispute. The offer so made should not be regarded as an act of interference by a third party. The offer so made may be rejected by the parties. The good offices by the Prime Minister of AustraliaRobert Menzie in July 1951, to settle the Kashmir issue was rejected by India. Much depends upon the person or the parties involved in the dispute and the person making an offer. 74 If the relations between them is friendly, it is likely that the offer is accepted by the parties. It is to be noted that the views expressed by the third party acquire èxclusively the character of advice and never have binding force.' The third party settles the dispute in two different ways.75 They are 'mediation' and 'good offices'. MEDIATION When the third party participates in the discussion along with the disputant states, and also gives its own suggestions in resolving the dispute, the process is known as mediation. The mediator is required to be neutral and impartial. He must necessarily meet with them and enter into discussions.76 He should encourage compromise than advice adherence to legal principles. If this course is adopted, mediator is likely to succeed in resolving the dispute to a great extent. The mediator may even sign the treaty
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embodying the settlement reached.77 The mediator may thus become, to a greater or less degree, perhaps merely by implication, a guarantor of the settlement. Mediation of Soviet Premier Kosygin in the dispute between India and Pakistan which resulted in the conclusion of Tashkant Agreement in 1966 is an example of mediation.78 GOOD OFFICES When the third party arranges a meeting of the disputant parties so that they may settle the dispute by negotiation or wherein he acts in such a way so that a peaceful solution may be reached, the act is called good offices. It is to be noted that in the case of good offices, the third party neither participates in the meeting nor gives its suggestions to the parties as in the case of mediation.79 The main function of the third party, offering its god offices, is to bring the parties together when they have failed to negotiate or where negotiations have earlier failed.8 Once the parties have been brought together for the purpose of working out a solution of their controversies, the state or person rendering good offices has no further duties to perform. Kissinger's efforts to settle the dispute between Israel and Syria is an example of good offices. The security council rendered its good offices in the dispute between the Netherlands Government and the Republic of Indonesia in 1947. (e) Conciliation : When a dispute is referred to a commission of persons to make a report containing proposals for settlement after finding out the facts, the process is known as conciliation. Thus, conciliation is the process of settling of a dispute where endeavours are made to bring the disputant parties to an agreement and to make a report containing the proposals for a settlement. It is to be noted that the proposals of the commission are not binding on the states because of its not being a judgement of any court or a tribunal.8' Conciliation differs from mediation, inquiry and also from arbitration. While in conciliation a dispute is referred
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to a body of persons for finding out the facts and for suggesting appropriate terms for its settlement, in mediation the third party participates in the meeting along with the disputant parties. Further, the mediator does not ascertain the facts as in the case of conciliation. Conciliation differs from arbitration in the sense that the parties are free to disregard the proposals of the commission, but the award of the arbitration is binding on the parties. It differs from commission of Iriquiry where the main object is to ascertain the facts. Sugestions or proposals are not given in commission of Inquiry as in the case of conciliation.82 Conciliation commission may be either permanent or ad hoe. The procedures of and terms for their formation and their composition are determined by the bilateral and multilateral treaties which make the provision for the utilisation of conciliation system for the settlement of disputes. Procedure of conciliation has been utilised on many occassions by the states. Several treaties which were concluded after the First World War had made a provision for conciliation in case of dispute arising amongst the parties to the treaties.83 (d) Inquiry : When a commission is appointed, consisting of impartial investigators, for ascertaining the facts of the disputes, the process is called inquiry. The function of the commission is confined only to the ascertainment of the fact. However, it is done from the judicial point of view, and it also clarifies question of law or mixed question of law and facts. Inquiry is constituted by 'special agreement' between parties in dispute. The agreement defines the facts to be examined and the node and time in which the commission is to be formed and the extent of the powers of the commission. The special agreement also determines, if there is need the place where the commission will sit, the language which the commission shall use.84 If the agreement does not provide the place for inquiry, it will sit at the Hague. The instances where he disputes have been settled through inquiry are those of Tavignano in 1912 and Tubantia in
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1916. After the First World War the trend of the states was changed towards conciliation. State preferred to invoke conciliation rather than inquiry as a procedure for the settlement of disputes. 2. Judicial Settlement When a dispute is settled by the 'International Tribunal' in accordance with the rules of International Law, the process is called Judicial Settlement. The expression international tribunal is relevant. A tribunal may acquire an international character because of fits organisation and jurisdiction.85 At present, the international court of justice is the most important international tribunal. However, it is not the only judicial tribunal to settle the disputes. Judicial settlement also includes the activities of many ad hoc arbitral tribunals and mixed commissions. An international tribunal is different from the municipal tribunal. While the former applies rules of International Law, municipal law is applied by the municipal tribunals. A municipal tribunal may also apply International Law, but to what extent is a question which depends upon the relationship of municipal law and International Law.86 However, municipal tribunals cannot be regarded as an International tribunal. At present, arbitration and settlement of disputes by the International court of justice are the important judicial modes of the ,s-edJleri-zerz-ziortakorrelas-!(A) ARBITRATION When a dispute is submitted by the parties to a body of persons or to a tribunal for their legal decision, the process for the settlement of dispute is referred to the arbitration, the consent of parties is necessarily required to be obtained for doing 807 The consent may be obtained either before or after a dispute has arisen between the parties. The consent may be expressed in a special agreement after a dispute has arisen between the parties. The special agreement is usually called 'Compromise'. For instance, an agreement was concluded between India and Pakistan to refer the Kutch dispute to arbitral tribunal. Consent of the parties is also obtained before a dispute comes into
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existence. Such consent may be expressed in general arbitration treaties, by which the parties undertake to submit to arbitration all or any class of future disputes between them. The convention concerning the pacific settlement of Disputes of 1903 between Great Britain and France is an instance of a Treaty where arbitration was provided for the settlement of disputes between the parties. Many treaties concluded later on prescribed the mode of arbitration in case of the occurrence of a dispute.58 CHARACTERISTICS OF ARBITRAL TRIBUNALS Although individual tribunals differ in origin, structure and competence, one can identify certain common characteristics of all international arbitral tribunals which are as follows : 1. A tribunal is constituted to hear a particular case only, and its composition is determined, to some extent, by the parties themselves. 2. An arbitral tribunal does not, as a matter of principle, determine its own jurisdiction but has to decide the dispute as submitted voluntarily or compulsorily by the parties. 3. An arbitral tribunal makes its award in accordance with the rules adopted for that purpose by the parties or by rules otherwise binding the tribunal which are primarily the rules of International Law. 4. The parties have control over the procedure to be followed, and the tribunal's award is, in principle, final, since the object is to settle the dispute. These criteria distinguish. international arbitration from other methods of peaceful settlement of disputes. On the one hand, they distinguish it from proceedings before international courts, and on the other hand, they distinguish it from non-judicial peaceful modes of the settlement of disputes which are intended to bring about a settlement by conciliation or mediation rather than a decision.89
159
COMPOSITION OF ARBITRATION Individuals constituting the arbitration or tribunal are called arbitrators. They are appointed by the disputant parties themselves. The composition of arbitral tribunal is based on principle that the arbitrators are chosen by the parties to the dispute, either by agreement between them or by a procedure laid down in arbitration agreement. The tribunal may consist of a single arbitrator or of several arbitrators. Although appointment of a single arbitrator was common at one time, it presently occurs on'y in exceptional cases. As a rule, tribunals have three or five members.9 The award is final. (B) INTERNATIONAL COURT OF JUSTICE At present, the International Court of Justice and the arbitration are the judicial modes for the settlement of disputes. Both of them have certain common elements. For instance, consent of the parties is essential before a case is heard by the court or by a tribunal. Again, the judgement of the court and the award of the tribunal is binding to the parties.91 However, the court differs from arbitration on many counts. Firstly, while the court is a permanent court and is governed by a statute, the perwanent court of arbitration is neither a court nor it is permanent. The arbitrator is appointed for the settlement of a particular dispute by the parties themselves. becondly, while the judges in the court are elected by the General Assembly and the security council of the United Nations, arbitrators are appointed by the disputant parties themselves. Thirdly, while the judges in the court represent the main forms of civilisation and of legal systems of the world, the constitution of the arbitration depends upon the consent of the parties. They can never be the representatives of the world community. Fourthly, the court being a permanent court performs a number of functions which arbitrations do not perform. For instance, the court possesses a permanent registry and performs all the necessary functions of receiving
160
International Law
documents for filing and recording. It also act as a channel of communication with states and other bodies. Arbitration being temporary, does not perform all these functions.92 Fifthly, the court is open to all the states. It is not so with the case of arbitration. If the parties desire to settle the dispute by arbitration, it has to be constituted with the consent of the parties. Sixthly, the court applies rules in deciding cases as provided under Article 38 of the statute. For instance, they are international conventions, international customs, and the general principles of law recognised by the civilised, nations. In arbitration, rules which are applied are decided by the parties themselves. Seventhly, while the proceedings of the court are open to public and records of the hearing and judgement are published, proceedings of the arbitration are not always open for public and the award of the tribunal may not be published if the parties so desire.93 Lastly, while the court is an integral part of the U.N. Charter, arbitration is established independently. COMPULSIVE OR COERCIVE MEANS Compulsive or Coercive means for the settlement of disputes are non-peaceful methods. Such measures involve a pressure or force on a state to settle the dispute. However, the use of compulsive means does not mean the use of armed forces in all the cases. Normally, they include those measures which are short of war. They are as follows : 1. Retortion Retortion is the technical term for retaliation. It is based to some extent, on the principle of tit for tat. When an act is done by a state similar to that done earlier by another state, it is called retortion. The purpose of retortion is to take retaliation. The acts which are done by a state in retortion are not illegal. In other words, they are permitted under International Law. However, it is an unfriendly act and in given circumstances it may be an effective tool of law sometimes provide for employment of an unfriendly act as
161
a reaction to a breach of obligation_94 The cases where retortion are employed as a means to settle the disputes may be numerous. For instance, if the citizens of a state are given unfair treatment in another state through rigorous passport regulations, the former may also make similar rigorous rules in respect of the citizens of the latter state. If a state dares persona-non-grata to a diplomatic agent of another state, the latter may also make a similar declaration in respect of an Ambassador of the former state in retortion. Further, if a state imposes restrictions of the entry of nationals of another state, the latter may also impose similar restrictions. The purpose of retortion is to take retaliation. It is employed not to secure redress. In retortion, those actions cannot legitimately be taken which are likely to endanP- Pr international peace and security. Such actions if taken small be illegal. 2. Reprisals The term 'reprisals' includes the employment of any coercive measures by a state for the purpose of securing redress. Thus, the main purpose of the reprisals is to compel the delinquent state to discontinue the wrong doing, or to pursue it, or both. If a dispute has arisen due to an unjustified or illegal act of a state, the other state may take any coercive measure against that state to settle the dispute.95 Formerly, repraisals were restricted only to the seizure of the property or persons, but later, it included other methods as well. It included bombardment, occupation of territories of a state, seizure of ships, freezing of assets of its citizens and taking any kind of property belonging to it. Thus, it may be applied not only against the state but against the citizens of that state as wel1.96 While a state is at liberty to take any action in reprisals, in order to make it lawful certain conditions are required to be satisfied. Firstly, reprisals are limited in time. They are legitimate only after a claim to perform the secondary obligation arising from state responsibility has been unsuccessful, and
162
International Law
may not be continued when such a claim is honoured. Secondly, reprisals must be limited to the perpetrators of the violation and may not infringe the rights of third states.97 This requires particular attention in handling the suspension or termination of treaty relations under multilateral conventions. Thirdly, reprisals are also limited in scope by the principle of proportionality as state in the Naulilaa Arbitration. 3. Embargo The term 'embargo' is of Spanish origin. Ordinarily, it means detention of ships in port or other property. Embargo may be applied by a state in respect of its own vessels or to the vessels of other states. When a state confines the operation of embargo to its own vessels, it is known as a 'civil' or pacific embargo. Such an operation is initiated in accordance to an order issued by state authorities in order to limit or interrupt or terminate its trade and economic relations with another state. The purpose of such an embargo is to exert financial or economic pressure on the other state. The right of a state to such a measure for such a purpose is unquestionable. When ships of other states are detained which has committed a breach of International Law, the embargo is said to be hostile. The purpose of such an embargo is to compel another state to settle the dispute. Such an embargo is a form of reprisals. In reprisals too, vessels of a state may be detained by another state. If a vessel is detained for the purpose of securing redress, embargo is deemed as a form of reprisals, but if a ship is detained for any other reasons, it is not regarded as reprisals. For example, if a ship is detained to prevent the spread of news of political importance, or during the time of war if a belligerent state detains and seizes the ship of a neutral state in case of necessity, it would be embargo.98 Embargo at present may be applied by a state, individually, or collectively under the authority of the United Nations. If embargo is applied by a state, it should not
163
endanger international peace and security. If it does so, it would become illegal. Collective embargo may be applied under the authority of the security council against a delinquent state.99
4. Pacific Blockade
When the coast of a state is blocked by another state for the purpose of preventing ingress or egress of vessels of all nations by the use of warships and other means in order to exercise economic and political pressure on that state, the act is called blockade. When blockade is applied during peace time, it is known as pacific blockade.100 The essential requirements for pacific blockade are similar to those of blockade which is applied during the time of war.. Thus, firstly, the blockade should be declared and notified, secondly, the blockade must be effective. Blockade has been regarded as one of the coercive means for the settlement of disputes because it consists in temporary suspension of commerce of the offending state by closing of access to its coasts. Blockade is a measure for the settlement of dispute which is taken normally by the powerful states.11 It is to be noted that at present while blockade is illegal when it is applied by a state individually, collective blockade applied under the authority of the security council to settle the dispute is lawful.142
5. Intervention
Intervention by a state in the affairs of another state is a recourse to settlement of dispute. It is to be noted that after the establishment of the United Nations a state has been substantially prevented from taking compulsive means to settle the disputes.13 Any measure which is likely to threaten international peace and security has become unlawful. Thus, reprisals, embargo and blockade are lawful as long as they do not affect international peace and security. But normally such actions are not confined only to the state against which it is applied but they are likely to affect international peace and security and, therefore are
164
International Law
forbidden.104 The only permissible coercive action which a state may take is the retortion, wherein normally international peace and security is not affected. However, if it does so, it would also become unlawful. As far as intervention is concerned it is unlawful and unjustified.15 REFERENCES
1. McNair, 'Law of Treaties', p. 4. 2. Starke's International Law, Eleventh Edition (1994), p. 5. 3. McNair, op. cit., p. 22, see S.K. Agarwal, 'Essays on the Law of Treaties' (Edited), p. XIX. 4. McNair, op. cit., p. 25. 5. McNair, op. cit., p. 27. 6. ICJ Reports (1961), at 31. 7. Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), pp. 1208-1209. 8. McNair Says : Exchange of Notes, now extremely common, sometimes it may embody a more important agreement than the term suggests (op. cit., p. 24). 9. The Judgement was delivered on July 1, 1994. 10. Lauterpacht, 'Functions of Law in the International Community', p. 156. 11. See the Report of Special Reapporteur Sri Humphry Waldock on the Law of Treaties (Doc. A.0 No. 4/144, Year book of the International Law Commission (1962), Vol. 2, p. 31. 12. Oppenheim, op. cit., p. 1204, fn. 3. 13. Ibid. 14. Brierly, op. cit., p. 58, Starke, op. cit., p. 42. 15. Brierly, op. cit., p. 58. 16. Oppenheim, op. cit., p. 1204, Schwarzenberger, op. cit., p. 31. 17. Year Book of the International Commission (1963), p. 69. 18. `Treaties as Legislations' in Philip C. Jessup (ed). Essays in Tributies to Wolfganj Friedmann (1979), p. 167. 19. Op. cit., p. 1217. 20. Ibid. 21. ICJ Reports (1952). pp. 182 and 183.
165
22. See Treatment of Polish Nationals in Danzing, PCIJ Series A/B No. 44, pp. 23-25. 23. Parry Clive, `Treaty-Making Power of the United Nations', BYIL Vol. 26 (1949), p. 108. 24. ICJ Reports (1961) at p. 131. 25. See Article 7(1)(b) of the Vienna Convention of the Law of Treaties. 26. See Article 7(2)(a) of the Vienna Convention on the Law of Treaties. 27. Oppenheim, op. cit., p. 1223. 28. Ibid. 29. Ibid., op. cit., p. 1225. 30. See Article 10 of the Vienna Convention. 31. See Article 12(2)(a) of the Vienna Convention. 32. PCIJ Series (1926), A. No. 7. Also see McNair, op. cit., pp. 199-205. 33. McNair, op. cit., pp. 199-205. 34. McNair, op. cit., pp. 206-210. 35. Starke, op. cit., p. 414. 36. Oppenheim, op. cit., p. 1225. 37. Ibid. 38. Article 18. 39. McNair, Taw of Treaties', p. 148. 40. Ibid., p. 175. 41. McNair, 'Law of Treaties', p. 199. 42. Ibid., p. 204. 43. Ibid., p. 205. 44. Oppenheim, op. cit., p. 1206. 45. Op. cit., p. 493. 46. ICJ Reports (1974), p. 268. 47. See Dharam Pratap, 'International of Treaties' in S.K. Agarwal, Essays on the 'Law of Treaties' (Edited), p. 66. 48. Judgement was delivered by the Court on September 25, 1997. 49. PCIJ (1932), Series A/B, No. 44, 29. 50. Article 17. 51. Article 46. 52. ICJ Reports (1961), p. 10.
166 53, 54. 55. 56.
International Law
Ibid., p. 27. Article 20(3) of the Vienna Convention. Article 20(5). Year Book of International Law Commission, 1966, Part II, p. 226. 57. Oppenheim, op. cit., p. 1264. 58. Also see Chapter, 'United Nations Organisation'. 59. Op. cit., p. 15. 60. Oppenheim, op. cit., p. 1293. 61. McNair, op. cit., p. 214. 62. Op. cit., p. 478. 63. PCIJ Series No. 2, pp. 187-188. 64. Ibid., pp. 288-289. 65. PCIJ Series C No. 16 I, p. 52. 66. PCIJ Series C No. 16 I, p. 53. 67. PCIJ Series A/B No. 46. 68. Fisheries Jurisdiction Case, p. 18. 69. Ibid., p. 63, para 36. 70. Op. cit., p, 474. 71. See Chorzo W. Factory Case PCIJ Series A. No. 9, (1927), p. 31. 72. See Article 48 para 3 of the Convention. 73. Oppenheim, op. cit., p. 1290. 74. Jus Cogens has been dealt separately in this chapter. 75. Oppenheim, op. cit., p. 1294. 76. Ibid., p. 1274. 77. S.E. Nahlik, 'The ground in invalidity and termination of treaties, AJIL Vol. 65 (1971), p. 749. 78. PCIJ Series A/B, No. 77, p. 92. 79. Oppenheim, op. cit., p. 1300. 80. The Principle has been Discussed in detail separately in this chapter. SI. See Mavrommatis Palestine Concessions Case, PCIJ (1924), Series A, No. 2, p. 11. 82 Oppenheim, 'International Law', Vol. II, Seventh Edition, p. 3. 83. ICJ Reports 1988, p. 69 at p. 91. 84, ICJ Reports (1986), p. 14 at p. 145. 85. Potter, An Introduction to the Study of International Organisation', Fifth Edition, p. 91.
167
86. See Article 10 of the Convention for the Pacific Settlement of International Disputes at Hague (1907). 87. Article 11. 88. See General Assembly Resolution 2899 (XXII) of December 18, 1967. 89. General Assembly Resolution (XXIX) 3283, December 12, 1974. 90. General Assembly Resolution 39/79, December 13, 1984. Also see Resolution 44/31 adopted on December 4, 1989. 91. See General Assembly Resolution 46/59, dated December 9, 1991. 92. A/AC 182/L 42. 93. See Chapter Security Council. 94. Brownlie, 'Principles of Public International Law', Fourth Edition, (1990), p. 712-13. 95. The Treaty came into force on October 28, 1795. The Treaty was a general Treaty of Friendship, Commerce and Navigation concluded after the War of Independence. 96. Article 44 of the Hague Convention of 1907 for the Pacific Settlement of Disputes. 97. Ibid. 98. For detail See Chapter 'International Court of Justice'. 99. Hyde, 'International Law Chiefly interpreted and applied by the United States', Vol. II (Second Edition), p. 1671. 100. See Oppenheim for the different reasons when embargo may be applied, op. cit., p. 141. 101. Hyde, op. cit., p. 1683. 102. Hyde, op. cit., p. 1690. 103. Hyde, op. cit., p. 1695. 104. Oppenheim, op. cit., p. 147. 105. See Security Council Resolution 661 of August 6, 1990 and 665 of August 25, 1990.
INDEX
A Acquisition of territory 25 Active and passive subjects 48-49 States of 49 Administrative treaties, 78 Aerial Incident case 14 A-la-chapelle congress, 114 Nabama claims arbitration, 32 Aliens, 93-98 Admission of, 93-95 Expulsion of, 96-98 Rights of, 95-96 Ambassador 24-25, 113-114 America, 32 Ancient period, 23-26 Angola, 8 Anziloth, 6-61 Arbitration, 157-59 Characteristics of, 158 Composition of, 159 Arjuna, 25 Arthasastra, 4, 23-24 Ashfaque, Mohammed, 129 Ashoka, 26 Asylum, 108-12 Basis of, 109-10 Forms of, 110-12 Meaning of, 108-09 Reasons for, 110 Asylum case, 14 Austria, 73, 90 Awards of international tribunals, 13
B
Baltic Republics, 65 Bangaladesh, 62, 63, 65, 75, 153 Belgium, 101, 105 Belli, 28 Bentham, Jeremy, 1, 4, 23 Biafra, 68 Bilateral Treaties, 11, 144 Bolley, Allan, 128 Bosinia, 74 Boundary treaties, 79 Briefly, 63 British American Mixed claims tribunals, 13 Burna 9, 65, 75 Bynkershoek, 14, 30 C Calvo, 32 Calvo clause, 14 Ceylon, 75 Chad, 79 Charge Affairs, 114 Charge d' Affairs, 115-116 Charter of Economic Rights and Duties, 57 China 62, 114, 129 Collective sanctions, 79 Cambodia. 8
Index Commercial treaties, 78 Compulsive or coercive means of Settlement of disputes, 16064 Embargo, 162-63 Intervention, 163-64 Pacific Blockader 163 Repraisal, 161-62 Conditional recognition, 69 Conference on Law of Treaties, 144 Congo, 71 Congress of Vienna of 1815, 10, 112, 114 Consent theory, 6 Constitutive theory, 61-63 Consuls, 130-33 Classification of, 131 Exequatur, 131 Functions of, 131-32 Privileges and immunities, 132-33 Continuity theory 75-76 Conventions, 9 Court of Justice of European Communities, 13 Croatia, 74 Custom, 9-10 Customary law, 27 Cyprus, 75 Czechoslovakia, 71, 74 D Declaration of Paris of 1856, 10, 31 Declaration of war, 25 Declaratory theory, 63-64 Dc Facto govt., 51 De facto recognition, 66-67 De Jure govt.. 51 De Jure recognition, 67-68 De Martens, 32 Desh Dharam, 24 Dharam Yudh, 25
169
Diplomatic agents, 112-35 Classification of, 113-16 Consuls, 130-33 Functions of, 117-18 Negotiation, 117 Observation, 117 Promotion of friendly relations, 118 Protection, 117 Representation, 117 Privileges and immunities of, 118-26 Freedom of communication, 125 Freedom of movement and travel, 125-26 Immunity from civil and administrative jurisdiction, 123 Immunity from criminal jurisdiction, 122-23 Immunity from giving withness, 123-124 Immunity from inspection of peponal baggage, 125 Immunity from local and military obligations, 126 Immunities from social security provisions, 126 Immunity form taxes and customs duties, 124
170 Inviolability, 118-19 Inviolability of family members, 119-20 Inviolability of premises, 121-122 Inviolability of staff of mission, 119-20 Right to worship, 126 Staff of, 116 Termination of, 127-30 of Head of mission 127-129 of Mission as a whole, 12930 Waiver of immunity, 126-27 Dispositive treaties, 78-79 Dixon, 154 Doctrine of double criminality, 63 Draft Convention on Territorial Asylum, 109 Drago doctrine 14 Dualistic theory, 35-38 Regarding dynamism of subject matter, 36-37 Regarding principles, 36 Regarding sources, 36 Regarding subjects, 36 Regarding substance of law, 36 Dutas (Ambassadors), 24 Duties of states, 55-57 To carry out obligation in good faith 56-57 To conduct relations with other states, 57 To ensure international peace, 55
International Law To refrain from fermenting civil state, 55 To refrain from giving assistance, 56 To refrain from intervention, 55 To refrain from recognising territorial acquisition, 56 To refrain from resorting to war, 56 To respect for human rights and fundamental freedom, 55 To settle dispute by peaceful means, 56 E Ecclectric theory, 6 Economic and financial sanctions, 8 Economic duties of states, 58-59 Duty of indexation of prices, 59 Duty of most favoured nation treatment, 59 Duty of promotion expansion and liberalization of world trade, 58-59 Duty of utilisation of resources released by disarmament, 59 Duty of world trade commodity agreements, 59 Economic rights of states, 57-58 Permanent sovereignty over national resources, 58 Right to associate with producer organisations, 58 Right to choose its economic system, 57
Index Right to engage in international trade, 58 Right to participate in international decision making process, 58 Transfer of technology, 58 Egypt, 80 El Salvador, 71 Embargo, 162-63 England, 1 Estonia, 65-74 European Court of Human Rights, 13 Evolution of international law, 23-44 Ancient period, 23-26 Grotins, 27-29 International law and Municipal law, 34-41 Medieval period, 26-27 Modern period, 32-34 School of international law, 29-54 Exequatur, 131 Express recognition 65 Extradition, 98-108 Law in India, 108 Meaning of, 98-99 Principles of, 100-08 Purpose of, 99-100 Rule of speciality, 103-104 Extradition and human rights violation, 108 Extradition for offence of fiscal character, 106-07 Extradition of Foreign Nationals for crimes committed in foreign countries, 107-08
171 Extradition of own nationals, 108 Extradition of political offenders, 101-02 Extradition treaties, 101 Extra-territorial Asylum, 111-12
F
Farraka Barrafe, 103 Fictional theory, 47-48 Fishes, 63 France, 8, 69, 105 Freedom of sea, 27 French Revolution, 102 Friedrich Von Martens, George, 30 Functional theory, 47-48
G
General Principles of law, 11-12 General Treaty for the Renunciation of war of 1949, 11, 146 Geneva conventions of, 1928, 10 Geneva protocol of 1815, 10 Geneva Red Cross Convention of 1864, 10 Gentilis, 28 Germany, 69, 73, 89, 90, 105 Ghana, 75 Goa,`Dman and Diu, 90 Government in Exile, 52 Graham, 154 Greco-Bulgarian Communities, 40 Greece, 71 Greeks, 23-24 Grotians, 30-32 Grotius, Hugo, 5, 14, 16, 27, 29, 30, 75 Gulf crisis, 8
172 H Hague codification conference, 14 Hague convention of 1899 and 1907, 10, 31 Haiti, 8 Hall, 32, 63 Hanover, 73 Harvard Research draft, 14 Haware convention of status of Aliens of 1928, 93 Herzegonina, 74 High Commissioners, 114 Hindus, 23 Hindu sacred books, 25 Holland, 61 Huber, Max, 75 Hungry, 71 I Implied recognition, 65-66 Collective acts, 66 Unilateral acts, 66 India, 80, 153 Indian Citizenship Act of 1955, 88-92 Indian Extradition Act of 1962, 103-04 Institute of International law, 14, 64 Inter American Court of Human Rights, 13 International American Conference in Mexico 1902, 95 International Comity, 15 International Court of Justice, 12-14, 30, 33, 159-60 International disputes, 12 International Judicial Tribunal, 12
international Law International law, 1-22 Basis and sanctions of, 49 Definitions of, 2-3 Implications of, 3-4 Acceptance and observation, 4 As is accepted and observed, 4 Code of conduct for nations, 4 Moral principles, 3 Optional, 4 Rights and obligations of states, 3 Importance of, 17-18 Meaning of, 1-3 Rules, 1-2 Sources of, 9-15 Subject matter of, 15-17 Inter-course of state, 16 Law of neutrability, 17 Law of war, 17 Settlement of international disputes, 16-17 Subjects of, 16 International Law Commission, 12, 14, 54, 61, 108-09 International legislation, 14-15 International of Peace Treaty Case, 14 Iraq, 8 Israel, 60, 68-69 Italy, 69, 105 Japan, 73 Jarring, 154 Jews, .23
Index Jordan, 75 Judicial decisions, 12-13 Judicial settlement, 157-59 Arbitration, 1. 57-59 Jure, 76 Judicial statehood, 64 Jurists, 5, 26 Jus soli principle, 89 Just war, 28 Martins, 6, 38 Mc Naughton, 154
173
Membership of international organisation, 79-81 Menzie, Robert, 154 Military govt. 52 Military offenders, 106 Military sanctions, 8 Ministers Plenipotentiary and Envoys Extraordinary, 115 Monistic theory, 38-41 Montevideo convention on Rights and Duties of states, 49-50, 54, 65 Moser, 30-38 Most-Favoured Nation, 59 Multilateral treaties, 79, 145-46 Municipal Courts, 13, 34-41
K
Kashmir dispute, 154 Katche Bill, 125
Kaunda, Kenneth, 128 Kautilya, 41, 23-24 Kelsen, 38-47 Kent, 32 Kissinger's effort to settle dispute between Israel and Syrian, 155 Kluber, 32 Korea, 73 Korean crisis, 8 Kosygin, 155 Kutch dispute, 157 L
Lakshman, 25 Latin America, 88 Lativa, 65, 74 Law of nations, 1-2 Laws, 80-81 League of Nations, 3, 32
Liberia, 8 Libya 8, 79 Lithuance, 65, 74 M

Mardonia, 74 Mahabharat, 24-25 Maine Henry, 3, 31
N Nationality, 81, 97-93 Determination of, 87-88 Modes of acquisition, 88-91 By birth, 88 By cession, 90 By descent, 89 By nationalisation, 89-90 By optison, 90-91 By registration, 91 By resumption, 90 By subjugation, 90 Modes of loss of 91-93 By deprivation, 91-92 By expiration, 93 By renunciation, 93 By substitution, 92
Naturalist theory, 5, 29 Natural law, 27
Many, 25 Manusniriti, 24
174 Negative theory, 76-77 Netherlands, 101, 105 Neutrality, 17 Nicaragua, 71 Nigeria, 68, 71 Non-Extradiction of political offenders, 102 Northern Ireland, 71 P Oppenheim 2, 15, 26, 32, 45, 60, 64, 69, 72, 78, 87, 117 Pacific blockade, 163 Pakistan, 62, 80, 95, 129, 153 Palestine declared by PLO, 51 Panama, 54 Papal Legates, 114 Partial succession, 74-75 Pashupathashtra, 25 Peace Treaty of, 1919, 10 Permanent Court of Arbitration, 13 Personal treaties, 77-78 Persona-non-grata, 133 Phillimord, 31 Phillimore, 32 Pherilateral treaties, 144-45 Political sanctions, 89 Political treaties, 77-78 Positive theory, 5-6, 29-30 Post-vedic period, 24 Pre-mature or precipitate recognition, 68-69 Prime facie evidence, 104 . Prisoners of war, 25-27 Prussia, 73 Public debts, 80 Public property, 80 Public rights, 80
International Law Pufendort, 5, 29, 75 R Rajdoots, 24 Rama, 25 Ramayan, 24-25 Ranans, 23 Recognition of Belligerency, 6970 Recognition of insurgency, 70-72 Recognition of states, 60-92 Forms of, 65-72 Law on, 61 Theories of, 61-64 Reservation to Genocide Conventions, 14 Rights of States, 64-55 Rights to equality, 55 Right to independence, 54 Right to self defence, 55 Right to territorial jurisdiction, 54-55 Roman Empire, 26 Roman Law, 75 Rwana, 8 S Sanctions by states, 7, 33 Schools of International law, 2932 Schwarzenberger, 3 Security General, 8, 154 Self help, 7 Serbia, 69 Settlement of disputes, 151-64 Compulsive or coercive means, 160-64 Conciliation, 155-56 Good offices, 155 Good offices and mediation, 153-55
Index Inquiry, 156-57 Judicial settlement, 157-59 Negotiations, 153 Settlement of International disputes, 16-17 Shimla Conference, 153
175
Active and passive subjects, 48 Economic rights and duties of states, 57-59 Entity to possess all rights and duties recognised, 45-46 Fictional theory, 47 Functional theory, 47-48 International personality, 45 Realist theory, 46-47 Rights and duties of states, 53-57 State recognition, 60-62 States, 48-53 State succession, 72-81 Supreme sanction, 7 Switzerland, 105 Syria, 8, 80 T Tandon, Ravi, 128 Tashkant Agreement in 1966, 150 Territorial asylum, 111 Theory of harmonisation, 41 Thomesius, 29 Time barred crimes, 104-05 Transfer of technology, 58 Treaties, 10-11, 77-79, 142-51 Invalidity of, 150-51 Coercion of a representative, 151 Coercion of a state, 151 of Corruption representative, 151 Error, 150 Fraud, 151 Jus Cofens, 151 Lack of proper authority, 150
Sierra Leone, 8 Slovania, 74

South African Republic, 73 South Rhodesia, 8 South West Africa case, 14 Soviet Union, 68-74 Spanish Civil War, 72 Special Missions, 133-35 Sri Lanka, 153 State recognition, 60-72 States, 49-57 Capacity to enter into relations with other states, 52-53 Economic rights and duties of, 57 Government, 51-52 Population, 50 Primary subjects, 49-50 Rights and duties of, 53-57 Territory of, 50-51 State succession, 72-81 Consequences of, 77-79 Kinds of, 73-75 Theories of, 75-77 St. Augustine, 5 Strake, Anzilotti, 3, 35-36 Strichi sensu, 78 Suarez, 5 Subjects of international law, 4586
176 Kinds of, 144-46 Meaning of, 142-44 Steps of, 146-50 Accrediting of persons by contracting states, 146-47 Adoption of taxt, 147 Entry into force, 149 Negotiation, 147 Purpose of ratification, 148-49 Ratification, 148 and Registration publication, 149-50 Signature, 147-48 Treatment of Polish Nationals and other persons of Polish origin, 57 Treaty of Friendship and Neighbourhood, 79 Treaty of Paris for Renunciation of war of 1928, 56 Treaty of West Phalia 1648, 10 Triepal, 35 Tsarist Archieves, 68 Turkey, 31 Twiss, 31 U Unification of Germany, 73 United Arab Emirates, 95 United Arab Republic, 80 United Kingdom, 8, 65, 87-09, 105 United Nations, 3, 7-8, 32-33, 5354 United Nations Charter, 7-8, 5354, 56, 72 United Nations Conference on law of treaties, 144 United Nations Conference on Trade and Development, 57
International Law
United Nations General Assembly, 15, 54, 57, 113, 149 Universal Declaration of Human Rights, 55, 88, 92 Universal succession, 73, 75 Unjust war, 38 USA, 88-89, 101, 105, 114 USSR, 74 V Vattel. 5, 6, 14, 30 Vedas, 25 Vedic period, 24 Victoria, 31 Vienna Convention on Consular Relations of 1963, 94 Vienna convention on Diplomatic Relations of 1961, 94, 113-28, 131-32 Vienna convention on Law of Treaties, 143-44, 146-47, 151 Vienna convention on succession of states, 72 War, 7, 17, 23-24 Rules of, 25 Western jurists, 26 West lake, 31, 76 Wheaton, 32 Wolff, 30 World court, 12 World peace maintenance, 33 World war 1st, 157 lInd, 70, 122 Writings of Jurists, 13-14 Y Yemen, 71 Yugoslavia, 8, 74 Zambia, 128

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GENERAL PREMISES OF INTERNATIONAL LAW

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led to the emergence of the following three importance theories.

General Premises of International Law

General Premises of International Law

General Premises of International Law

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General Premises of International Law

General Premises of International Law

General Premises of International Law

20 39. See chapter 'War'.

General Premises of International Law

EVOLUTION OF INTERNATIONAL LAW

Evolution of International Law

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A state _must have a territory. It is immaterial whether the

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Subjects of International Law

Subjects of International Law

Subjects of International Law

Subjects of International Law

Subjects of International Law

Subjects of International Law

Subjects of International Law

Subjects of International Law

Subjects of International Law

acquired status of a state, unless new laws are enacted by

Subjects of International Law

Subjects of International Law

IMPORTANT ASPECTS OF INTERNATIONAL LAW

Important Aspects of International Law

Important Aspects of International Law

Important Aspects of International Law

Important Aspects of International Law

Important Aspects of International Law

Important Aspects of International Law

Important Aspects of International Law

Important Aspects of International Law tyr