2. International Law is the vanishing point of Jurisprudence. Explain.

INTRODUCTION:- Holland has remarked that International Law is the

vanishing point of jurisprudence in his view , rules of international law are
followed by courtesy and hence they should not be kept in the category of law.
The international Law is not enacted by a sovereign King. It has also no
sanctions for its enforcement which is the essential element of municipal law.
Holland further say that International Law ass the vanishing point of
Jurisprudence because in his view there is no judge or arbiter to decide
International disputes and that the rules of the I. Law are followed by States by
courtesy.
Austin also subscribes to this view, Justice V.R.Krishna Iyer formally
member of Indian Law Commission has also remarked, It is a sad truism that
international law is still the vanishing point of jurisprudence. This view is not
correct. It is now generally agreed that Hollands view that international law
is the vanishing point of jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that
International Law is not enacted by sovereign and has no agency for its
enforcement. But it is true that it is a weak law. A majority of International
lawyers not subscribe to this view is based on the proposition that there are no
sanctions behind international Law are much weaker than their counterparts in
the municipal law, yet it cannot be successfully contended that there are no
sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of
jurisprudence say that there is difference between state law and International
Law. International Law cannot be enacted by the state but still there is agency
for its enforcement. According to Dias, International Law is obeyed and
complied with by the states because it is in the interests of states themselves.
For this object they give the following arguments:-
1. The judgements of International court of Justice are binding on States.
2. If any state does not honour the order/judgement of International court of
justice, the Security Council may give its recommendation against that state for
action.
3. The judicial powers of International Court of justice (Voluntarily and
compulsory) have been accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security, under
chapter VII of the U.N. Charter, the security council can take necessary action
to maintain or restore international peace and security. Besides this the
decisions of the International Court of Justice are final and binding upon the
parties to a dispute.
The gulf war 1991 Iraq trespassed and acquired the whole territory of Quait in
her possession by violation of International Law. The Security Council passed
a resolution against Iraq and asked her to liberate Quait. But Iraq did not honour
the resolution of Security Council; hence therefore may economic and political
restrictions were composed against Iraq. But all in vain. Then USA and her
allies were permitted to compel Iraq to honour resolution of Security Council.
Consequently USA and her allies used force against Iraq and freed Quait.
The same action was taken against North Korea and Cango during the year l948
and 1961. The Security Council imposed penalty against Libya for shooting
down American Plane in Lockerbie (Scotland) in 1992, consequently two
citizens were also killed. The Security Council forced Libyan Government to
surrender two terrorists who were involved in this mishap and Libya obeyed the
order of S. Council.
The greatest proof of its utility and importance is the fact that its successor the
International Court of Justice established under the United Nations charter is
based on the Statute of the Permanent Court of International Justice, the United
Nations & Security Council Charter possess wide powers to declare sanctions
against the states who are guilty of violence of the provisions of the same under
chapter-VII
Thus International Law is in fact a body of rules and principles which are
considered to be binding by the members of International Community in their
intercourse with other. The legal character of International Law has also been
recognized in 1970 Declaration on the Principle of International Law
Concerning Friendly relation and Cooperation among states.
Conclusion:- On the basis of above discussion it may be concluded that the
International Law is in fact law and it is wrong to say that it the vanishing point
of Jurisprudence.
 1. International Law and Municipal Law are the same. Please discuss. Or
Discuss the various theories regarding relationship between International
Law and Municipal Law.
INTRODUCTION: - Certain theories have been propounded to explain the
relationship between International Law and Municipal Law. In general it is
notionally accepted that the state municipal law control the conduct of
individuals within the state while International Law controls the relations of
nations. But now this concept has altogether been changed and the scope of
International Law has increased and it not only determines and controls the
relations of states but also the relations of members of International
community. Both the laws have co-hesion with each other and the relations
between these two are more prominent. These theories have been put forward
to explain the relationship between International Law and State Law. Of all
these theories as per following details, the most popular are the Monism and
dualism and they are diametrically opposed to each other:-
1. MONISTIC THEORY:-It is also known in the name of Monism
theory. According to the exponents of this theory International Law and
Municipal Law are intimately connected with each other. International Law and
Municipal Law are the two branches of unified knowledge of law which are
applicable to human community in some or the other way. All Law are made
for individuals. The difference is that municipal law is binding on individual
while International Law is binding on states. Conclusively it can be said that the
root of all laws is individual.
According to Strake, International Law is part of state Municipal Law and
therefore decisions can be given by Municipal courts according to the rules of
International Law.
According to O.Kornell, The objective of all laws is human welfare whether
it is state municipal law or International Law.
2. DUALISTIC THEORY: - In view of the dualistic theory writers,
International Law and state Law are two separate laws and contained legal
systems. The Monist view of law is part of philosophy according to which
totality is a single structure. But within the framework of the unitary universe is
diversity of phenomenon. International Law cannot become part of state
municipal Law till the principles of International Law are applied under State
Municipal Law.
According to Strake, The main foundation of the proponents of dualistic
theory is that state Municipal Law and International Law are two different legal
systems because the nature of International law is fundamentally different from
State Municipal Law.
Angilotti has also recognised both the systems as two different legal
systems. According to him the fundamental principle of State Municipal Law
in compliance of law enacted by state legislature while principle of International
 Law is Pacta Sunt Servanda i.e. to honour the agreements executed between
the states.
The main basis of separation of these two systems is as follows:-
The main source of International Law is customs and treaties while in case of
Municipal Law are an enactment by sovereign power.
International Law controls the relations between state while state law controls
the relations between state and individuals.
The main cause of compliance of state law is fear of sanction while the basis
of compliance of International Law is the moral liability and vested interests of
states.
4. THEORY OF TRANSFORMATION:- The exponents of this theory
contented that for the application of International Law in the field of Municipal
Law, the rules of international law have to undergo transformation. Without
transformation they cannot be applied in the field of Municipal Law.
According to Strake:- That the rules of International Law can be applied
when they are transformed in to domestic law, is not necessary in every case.
5.THEORY OF DELIGATION:- The theory of transformation has been
criticised by the Jurists with the result of this craterisation it put forward a new
theory called Delegation theory. The supporters of this theory say that
according to the statutory rules of International Law, the powers have been
delegated to the constitution of different states o ensure that how and what
extent according to International Law. States to determine as to how
International Law will become applicable in the field of Municipal Law in
accordance with the procedure and system prevailing in each state in accordance
with its constitution.
CONCLUSION:- Last but not the least in a recent case namely, Chairman,
Railway Board & others v/s Mrs. Chandrima Das and others-2000: The supreme
Court of India observed that the International Conventions and Declarations as
adopted by the United Nations have to be respected by all signatory states and
meaning given to the words in such declarations and covenants have to such as
would help in effective implementation of those rights.
 1. What do you understand by recognition?

INTRODUCTION: - It can be said that through recognition, the recognising

state acknowledges that the recognised state possesses the essential conditions
of Statehood, a Government and Sovereignty, a definite territory and has a
complete control over his territory. The community is independent. So
recognition has an important place in International Law. By recognition only
the state is accepted as a member of International community.

DEFINITION:- Many of the Jurists has define Recognition in different

ways. Some of them have opined as under:

Prof .L. Oppenheim :- In recognising a State as member of International

community, the existing states declare that in their opinion the new state fulfils
the conditions of statehood as required by International Law.

Fenwick: - That through recognition the members of the International

community formally acknowledge that the new state has acquired international
personality.

In the words of Phillip C Jessup: - By recognition is such a function of a state

by which she accepts that any political unit contains the essential elements of
nationality.

TYPES OF RECOGNITION
Recognition is of two types, De facto and de jure recognition. The practice of
States shows that in first stage the State generally give de facto recognition.
Later on when they are satisfied that the recognised state is capable of fulfilling
International obligations, they confer de jure recognition on it, that is why
sometimes it is said that de facto recognition of state is a step towards de jure
recognition. The detail of de facto and de jure recognition is as under:-

DE FACTO RECOGNITION: - According to Prof.G.Schwarzenberger:-

When a state wants to delay the de jure recognition of any state, it may, in first
stage grant de facto recognition.
The reason for granting de facto recognition is that it is doubted that the
state recognized may be stable or it may be able and willing to fulfil its
obligations under International Law. Besides this it is also possible that the
State recognised may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the
essentials elements of statehood and is fit to be a subject of International Law.
 According to Prof.L.Oppenheim :- The de facto recognition of a State or
government takes place when the said State is free state and enjoys control over
a certain fixed land but she is not enjoying the stability at a deserved level and
lacking the competence to bear the responsibility of International Law.
In view of the Judge Phillips C Jessup, De facto recognition is a term which
has been used without precision when properly used to mean the recognition of
the de facto character of a government; it is objectionable and indeed could be
identical with the practice suggested of extended recognition without resuming
diplomatic relations.
The de facto recognition is conditional and provisional. If the state to which De
Facto recognition is being given is not able to fulfil all conditions of recognition
then that recognition is withdrawn.
DE JURE RECOGNITION
De jure recognition is granted when in the opinion of recognizing State, the
recognized State or its Government possesses all the essential requirements of
statehood and it is capable of being a member of the International Community.
According to Prof.H.A.Smith :- The British practiced shows that three
conditions precedent are required for the grant of de jure recognition of a new
State or a new Government. The three conditions are as under:-
i) A reasonable assurance of stability and performance.
ii) The government should command the general support of the population.
iii) It should be able and willing to fulfil its international obligations.

According to Phillips Marshall Brown: - De jure recognition is final and

once given cannot be withdrawn, said intention should be declared expressly
and the willingness is expressed to establish political relations.
As observed by Prof.G.Schwarznbeer, De jure recognition is by nature
provisional and may be made dependent on conditions with which the new
entity has to comply. It differs from de jure recognition in that there is not yet a
formal exchange of diplomatic representatives. De jure recognition is complete
implying full and normal diplomatic relations.In Luther v/s Sagor-1921:- It
was held that there is no distinction between de facto and de jure recognition for
the purpose of giving effect to the internal acts of the recognized authority.
Bank of Ethopia v/s National Bank of Egypt and Liquori- 1937:- The court
held that in view of the fact that the British government granted recognition to
the Italian Government as being the de facto government of the area of
Abyssinia which was under Italian control, effect must be given to an Italian
decree in Abyssinia dissolving the plaintiff bank appointing liquidator.
But in the case of Luther v/s Sagore-1921 the court held that as far as internal
affairs of a state is concerned De facto recognition is interim and it can be
withdrawn.
 KINDS OF STATE SUCCESSION:- State succession is of two types:-

Universal succession ii) Partial succession.

If the legal identity of a community is completely destroyed there is said
to be a total succession of States. If the territory is lost while personality and
legal responsibility remain unimpaired the process is described as partial
succession. This does not imply a total or partial succession respectively to the
legal relation of the previous sovereign but is merely an abbreviated way of
defining the extent of the change.
The following are the different kinds of state succession:-

1. Universal Succession: - i) Universal succession occurs when one state

occupies or annexes the State completely or amalgamates fully whether
voluntarily or through winning of war.
ii) When a state is divided into two or more parts or limits and every such unit
becomes a separate international entity or a state.

2. Partial Succession: - i) Partial succession occurs when any portion of a state

revolts and separates itself and attains independence and becomes an
international person or state.Example of Bangladesh who revolted against
Pakistan and became independent separate state is a good illustration of
partial succession.

ii) Or when a state gets some portion of another state through Cession.

iii) When a sovereign state amalgamates itself with some Union of States and
loses some portion of its independence or comes within the sovereignty or
protection of any other state.
12. What are the different classes of Diplomatic Agents? Describe briefly
their privileges & Immunities.
INTRODUCTION: -
During the Ramayana and Mahabharata period some aspects of
International Law were in their developed stage. Examples of international law
relating to diplomatic agents may be cited in this connection. The permanent
appointment of diplomatic envoys began from the seventeenth centaury. The
rights, duties, immunities and privileges etc., of the diplomatic in 18 th. &19th.
Centaury was mostly in the term of customary rules. The first great landmark
was the Congress of Vienna in 1815, wherein the customary law regarding
diplomatic agents was clarified and codified. The contents of Vienna
Convention were adopted finally in 1961. The Indian Parliament passed the
Diplomatic Relations on the basis of Vienna Convention-1972 to give effect to
this convention. This law relating to the diplomatic and consular affairs remains
the strongest section of International Law. DIFFERENT CLASSES OF
DIPLOMATIC AGENTS:-The diplomatic agents have been classified
according to their status and functions. The first classification of diplomatic
agent was made in the Congress of Vienna in- 1815 under which diplomatic
agents were classified under the following categories:-
1.Ambassadors and Legates:-These are the first category of diplomatic agents
and are the complete representatives of the sovereignty states. Their designation
is Ambassadors or Permanent Representatives of their respective countries of
U.N. They are appointed by POP.
2.Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic
agents of second category and as compared to the diplomatic agents of the first
category. They enjoy less privileges and immunities.
3.Charge-d affairs: - They are the diplomatic agents of the last category. The
main reason for this is that they are not appointed by the head of State but are
appointed by the Foreign Minister of the State. Their status is considered below
the Minister Resident.
4.Minister Resident: - In the congress of Aix-la-Chappele-1818, this category
was added at category No.3, but it was again dropped by 1961 Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed
by the International Court of Justice on 15.12.79 in a case of United States
Diplomatic and Consular Staff in Tehran: For enabling states irrespective of
their differing constitutional and social systems to achieve mutual
understanding. One of the pillars of modern International Law is the diplomatic
immunities of the Ambassadors. However the following are the immunities and
privileges of the diplomatic agents:-
1. Inviolability of the person as envoys: - The diplomatic agents are extended
personal safety and security. If an envoy is attacked it is deemed that attack was
on the country to which the envoy is belonging.
2. Immunity from criminal jurisdiction of the court: - The courts of the state
where the envoy is posted do not treat the envoys within its criminal
jurisdiction. It ordinarily believed that envoys will not violate the laws of the
host country. But there are certain circumstances when the envoys lose their
immunity for example when they indulge in conspiracy against the host state.
3. Immunity from civil jurisdiction:- the envoys also enjoy the immunities of
civil nature also no suit is filed in the civil court of the host state against envoys.
As per Vienna convention three exceptions when immunity is not available: i)
for any immovable property within the jurisdiction of host state he has. ii) in a
matter of inheritance where the envoy is a successor or executor in his personal
capacity. iii) The commercial activities of the envoy in personal capacity.
4. Immunity regarding residence:-His premises are inviolable and no search is
allowed in his residence. If any person intrudes the premises of envoy to avoid
arrest, it is the duty of envoy to deliver such person to the host government to
decide.
5. Immunity from presence in a court as a witness:- Any envoy cannot be
compelled to give an evidence in any Court but he himself can waive this
privilege and appear before a court.
6. Immunity from Taxes:-Vienna convention provides this immunity to envoys
for payment of local taxes. But water, electricity, telephones etc. not included.
a. Right to worship:-Within the premises of their embassy, envoys are free to
follow according to their choice the mode of worship. B)Right to exercise
jurisdiction over the staff and family in the embassy:- Envoys are free to
exercise their jurisdiction over the subordinate staff & family in the Embassy to
keep the embassy going on.
c. Right to travel freely in the territory of receiving state:-Vienna convention
has provided a new right to envoys, they can travel freely within the territory of
host state and go anywhere.
d. Freedom of communication for official purposes:- Vienna convention-
1961 the envoys have freedom to communicate with his own state in context to
their official work.
e. Immunity from Military and other local obligations :- Vienna convention
granted the immunity to envoys from military and other local obligations of the
host state. BASIS OF IMMUNITIES AND PRIVILEGES OF
DIPLOMATIC AGENTS:- Theory of extra territoriality: - According to
Grotius diplomatic agents though physically present upon the soil of the country
to which they are accredited. It is justified base when they are treated to remain
for all purposes upon the soil of the country to which they represent. Functional
Theory: - the reasons for granting privileges and immunities to the diplomatic
agents are that they perform special type of functions that is why they are called
functional and in modern times this theory is accepted as correct.
11. What do you understand from the term of Extradition? Is it different
from Asylum? Difference between Extra Territorial & territorial Asylum.

INTRODUCTION: -
Each State exercises complete jurisdiction over all the persons within its
territory. But sometimes there may be cases when a person after committing
crime runs away to another country. In such a situation the country affected
finds itself helpless to exercise jurisdiction to punish the guilty person. This
situation is undoubtedly very detrimental for peace and order. There is a social
need to punish such criminals and in order to fulfil this social necessity the
principle of extradition has been recognised.

Meaning & Definition of Extradition:-

Extradition is the delivery of an accused or a convicted individual to the
State on whose territory he is alleged to have committed or to have been
convicted of a crime.
According to Starke,
The term extradition denotes the process whereby under treaty or upon a
basis of reciprocity one state surrenders to another at its request a person
accused or convicted of a criminal offence committed against the laws of the
requesting state.
According to Grotius:-
It is the duty of each state either to punish the criminals or to return them
to the States where they have committed crime.
Under International Law extradition is mostly a matter of bilateral treaty. In
principle each state considers it a right to give asylum to a foreign national, thus
there is no universal rule of customary international law in existence imposing
the duty of extradition. Afamous case Music director Nadeem who was
accused of the murder of Gulshan kumar. Nadeem fled to Britain. Lack of
providing sufficient evidence England refused to extradite Nadeem.
IS EXTRADITION IS DIFFERENT FROM ASYLUM
There is a great difference in between extradition and Asylum. Extradition
means delivery of an accused or a convicted individual to the state on
whose territory he is alleged to have committed or have been convicted of a
crime whereas in Asylum the active protection extended to a political
refugee from another state by a state which admits him on his request.
DIFFERENCE BETWEEN EXTRA TERRITORIAL & TERRITORIAL
ASYLUM:- In the asylum case Colombia v/s Peris- ICJ-1950.

Extra territorial Asylum Territorial Asylum

In case of diplomatic asylum the The refugee is within the territory of

refugee is within the territory of the the state of refuge
state where the offence was committed.

Grant of diplomatic asylum involves Territorial asylum is granted by a State

derogation from the sovereignty of that in its own territory.
state.

It withdraws the offender from the
jurisdiction of the territorial state and
constitutes an intervention in matters
which are exclusively within the
competency of the state.
Every state has right in the exercise of
its sovereignty to admit into the
territory such persons as it deems
advisable without exercising the
Declaration of Asylum.

Grant of extra territorial asylum is The grant of territorial asylum is an

rather derogation from the sovereignty. incident of territorial sovereignty itself.

Right to grant extra-territorial asylum Each state has a plenary right to grant
is exceptional and must be established territorial asylum unless it has accepted
in each case. some particular restriction in this
regard.