Law Notes (LL.B Notes) - International Law

4/13/2018 Law Notes (LL.
B Notes): INTERNATIONAL LAW
PUBLIC INTERNATIONAL LAW
Guess Paper
Unit - 1
Question:- i) Discuss the nature and basis of International Law
which source has contributed to the development of International
Law? OR
ii) Whether the International Law is law in the proper sense of the
term. Give reasons for your answer. OR
iii) International Law is the vanishing point of jurisprudences. Explain.
iv) Discuss the weaknesses of International Law. Or
International Law is a weak Law.
v) International Law and Municipal Laws are same or not. Explain.
Unit-II
Question :-2.(i) What do you understand by recognition of a state? What
are the theories of recognition? What are the legal effects of recognition
and consequences of non-recognition of a state? Discuss.
(ii) What is the difference between de facto and de jure
recognition.
(iii) Discuss the conditional recognition.
(iv) What is meant by Intervention? Under what circumstances
intervention by one state in the affairs of another state considered
justified?
Unit-III
Question:-3 (i) What are the categories of diplomatic agents ? What
immunities do diplomat enjoy and how the immunities are lost?
(ii) Define Treaty. What do you understand by ratification of a
Treaty? Explain? (iii) Define Extradition? Explain the essential
conditions for extradition? For which crime extradition cannot be
claimed. Discussed
(iv) Define Asylum, its essentials and types of asylum. What are the
differences between extra territorial asylum and territorial asylum?
Unit- IV
Question :-4 (i) (v) Critically examine the various amicable and force-
able means of settlement of International disputes between the states.
(ii) Define war. What are the legal characteristics and effects of a
War?
(iii) Discuss the rights and duties of neutral state and belligerent
states.
(iv) Define Prize Court.
(v) Distinguish between Neutrality and Neutralization.
(vi) Discuss Blockade and right of Angry.
Write short note on the followings:-
http://kuklawnotes.blogspot.in/p/international-law_72.html 1/45
4/13/2018 Law Notes (LL.B Notes): INTERNATIONAL LAW
1. What do you mean by ex acquo ET bonod.

2. What is ‘double veto’.
3. Write about ‘jus cogens ‘.
4. Difference between Retorsion and Reprisal.
5. What do you mean by Blockade?
6. What is meant by contraband?
7. Explain the doctrine of Pacta sunt servanda.
8. What is drago Doctrine?
9. Explain Political crime in respect of extradition.
10. Discuss Monroe Doctrine.
11. Write a short note on Hijacking.
Discuss the sources of International Law Explain them.

Introduction:-The term sources refer to methods or procedure by which
international law is created. A distinction is made between the formal sources and
material sources of law. The formal, legal and direct sources consist of the acts or
thing which gives that the content its binding character as law. The material
sources provide evidence of the existence. The sources of international law may
be classified into five categories:- 1.International Conventions: - In the modern
period international treaties are the most important source of international law.
This is because the reason that states have found in this sources. Article 2 of
the Vienna Convention on the law of treaties 1969, a treaty is agreements
whereby two or more states establish or seek to establish relationship between
them govern by international law. Prof. Schwarzenbergr, “Treaties are
agreements between subjects of international law creating a binding obligation in
international law.” International treaties may be of the two types: - a) Law
making treaties:- these are the direct source of international law and the
development of these treaties was changing of the circumstances. Law making
treaties perform the same functions in the international field as legislation does in
the state field. b) Treaty contracts:-As compared to law making treaties treaty
contracts are entered into by two or more States. This may happen when a similar
rule is incorporated in a number of treaty contracts.
2.International Customs:-International customs have been regarded as one of
the prominent sources of international law for a long time. However even today it
is regarded as one of the important sources of international law. Usage is an
international habit which has yet not received the force of law. STRAKE Says,
“Usage represents the twilight stage of custom, custom begins where usage ends.
Usage is an international habit of action that has yet not received full legal
attestation.” A custom in the intendment of law is such usage as that obtained
the Force of law i.e.:- It is not necessary that the usage should always precede a
custom. ii) In certain cases usage gives rise to international customary
law. iii)When a usage is combined with a rule of customary law exists. iv)It is an
important matter to see as to how international custom will be applied in

international law. Refer a case of West Rand Central Gold Mining Compy.v/s
R-1905, court held that for a valid international customs it is necessary that it
should be roved by satisfactory evidence that the custom is of such nature which
may receive general consent of the States and no civilized state shall oppose it.
Porugal v/s India-1960, ICJ pointed out that when in regard to any matter or
practice, two states follow it repeatedly for a long time, it becomes a binding
customary rule. Still other resolutions amount to an interpretation of the rules and
principles which he charter already contains and which are in binding upon
States.
3. General Principles of Law recognised by civilized States: -Art.38 of
ICJ provides that the Statute of International Court of Justice lists general
principles of law recognised by civilised States as the third source of international
law. In the modern period it has become an important source. This source helps
international law o adapt itself in accordance with the changing time and
circumstances. On the basis of this view the general principle of law recognised
by civilized States have emerged as a result of transformation of broad universal
principles of law applicable to all the mankind. Following are some important
cases relating to the general principles of law recognised by civilized States:-1.R.
v/s Keyn-1876, that I. Law is based on justice, equality and conscience which
have been accepted by practice of States. 2. U.S v/s Schooner-held that I. Law
should be based on general principles.
4. Decisions of Judicial or Arbitral Tribunals and Juristic
Works:- i) International judicial Decisions:-In the modern period international
court of justice is the main international judicial tribunal. It was established as a
successor of the permanent court of I. justice. Art.59 of the statute of ICJ makes
it clear that the decisions of the court will have no binding force except between
the parties and in respect of that particular case. While in principle it does not
follow the doctrine of precedent. Thus judicial decisions unlike customs and
treaties are not direct sources of law; they are subsidiary and indirect sources of
international law. State judicial decisions:- These decisions may become rules of
international law in the following two ways:-1. State judicial decisions are treated
as weighty precedents. 2. Decisions of the state courts may become the customary
rule of I. Law in the same way as customs are. Decisions of International
Arbitral Tribunals:- Jurists have rightly too pointed out that in most of the
arbitral cases arbitrators act like mediators and diplomats rather than as judges as
in Kutch Award-1968. Juristic Works. Juristic Works:- Art.38 of ICJ, the
work of high qualified jurists are subsidiary means for the determination of the
rules of I. Law. In Paquete Habana and Lola fishing vessels with Spanish flags on
them in 1898 during war between America & Spain, held that they could not be
seized or apprehended during the state of blockade.
5. Decisions or determinations of the organs of international institutions:-
Art.38 of ICJ incorporated these sources and also introduced one new source
namely general principles of law. In view of the strong reasons the decisions and
determination of organs are now recognised as an important source of I. Law. The
resolutions of the organs may be binding on the members in regard to the internal
matters. Organs of international institution can decide the limits of their
competence. 6. Some other sources of International Law:- Besides the above
sources of I. Law, following are some of the other sources of international law:
- 1. International Comity: mean mutual relations of nations. 2. State Paper:-In
modern period diplomats send letters to each others for good relations are also the
sources of I. Law. 3. State guidance for their officers: Numbers of matters are
resolved on the advice of their legal advises. 4. Reasons: has a special position in
all the ages.5. Equity & Justice: I t may play a dramatic role in supplementing the
law or appear unobtrusively as a part of judicial reasoning.
What do you mean by subjects of International Law? Can an Individual
be a subject of International Law? If so in what circumstances.
INTRODUCTION:-A subject of rules is a being upon which the rules confer
rights, capacity and imposes duties and responsibility. Generally it is the State
who enters into treaties with each other and is thus bound by its provisions.
This does not however mean that other entities or individuals ar outside the
scope of international law. International law applies upon individuals and
certain non-state entities in addition to states. In the modern era the
international law has expanded a lot. Now this law is applied besides States
and individuals also.
THEORIS REGARDING SUBJECTS OF INTERNATIONAL
LAW:- Following are the three main theories prevalent in regard to the
subjects of international law:-1. Only States are the subject-matters of I.
Law:-Certain jurists have expressed the view that only International law
regulates the behaviour of states hence states are its subject matters. Percy
E.Corbett says, “The triumph of positivism in the late eighteenth century made
the individual an object not a subject of international law.
CRITCISM: - The jurists have bitterly criticised as this theory fails to explain
the case of slaves and pirates. The pirates are regarded enemy of humanity and
they can be punished by the State for piracy. In international arena by some
ordinary treaties community of states have granted certain rights. But those
jurists who say that states are the only subject-matter of international law but
are object of it. To say that individuals are not the subject but object of the
International law seems to be incorrect. Prof. Schwarzenberger, has aptly
remarked that this view is controversial. He asserts that he individual who is
the base of the society is only an object of the I. Law is not justified.
2. Only individual are the subjects of International law: - Just contrary to
the above theory there are certain jurists who have expressed the view that in
the ultimate analysis of international law it will be evident that only
individuals are the subject of International Law. The main supporter of this
theory is Professor Kelson. Before keelson this view was expressed by
Westlae, who opined, the duties and rights of the States are only the duties and
rights of men who compose them. Kelson has analysed the concept of State
and according to him it is a legal concept which as a mixture of legal rules
applicable to all the people living in certain area hence the obligations of a
State in international law in the last resort are the duties of individuals of
which state consists.
In fact there is no difference between international law and state
law. In his view both laws apply on the individuals and they are for the
individuals. However he admits that the difference is only this that the state
law applies on individuals intermediately whereas international law applies
upon the individuals mediately.
Criticism:-So far as logic is concerned the view of Kelson seems to be correct.
An example is the Convention on the settlement of invest Disputes between
States and Nationals of the other states, 1965. By this treaty provision is made
to settle the disputes which arise by investment of capital by nationals of one
state in other states. So it is clear that the view of Kelsen that international law
is made applicable through the medium of a State seems justified.
3. States individuals and certain non-state Entities are Subjects: - This
view seems to be justified as against the above views. In support of this, the
following reasons may be advanced: - i) in modern times many treaties grants
rights and duties to individuals. ii) In case Danzing Railway PCIJ-1928, in
case the State Parties of a treaty intended to grant rights to individuals then
International Law would recognise such rights and International Court will
enforce them. iii). Geneva Convention of Prisoners of War-1949 has also
accorded certain rights o prisoners of war. iv) According to Nuremberg Court
since crimes against International Law are committed by individuals the
provisions of International Law can be enforced. vi) Genocide convention-
1948:- In the convention also individuals have been assigned directly certain
duties. By article 4 of this convention those individuals who commit
international crime of genocide should be punished whether they are public
servants or ordinary person.
By the above description it is clear that only states are not subject matter of
Internationals Law but in modern times individuals international Institutions,
Non-state entities minorities are also the subject-matter of International Law.
PLACE OF INDIVIDUALS IN INTERNATIONAL LAW: - As pointed out
earlier individuals are also treated to the subjects of international law although
they enjoy lesser rights than states under international law. In the beginning they
were accepted as subjects of international law as an exception of the general rule
and number of jurists treated them as objects rather than the subject. In the recent
times several treaties concluded wherein rights have been conferred and duties
have been imposed upon the individuals. Some of the provisions are as under:-
Pirates: Under I. Law pirates are treated as enemies of mankind. Hence every
state is entitled to punish them.
Harmful acts of individuals: - For the amicable and cordial relation of the state
it is necessary that the individuals should not be involved in such acts as may
prove detrimental for the good relations among states. A leading case ex parte
Petroff-1971, wherein two persons who were found guilty of throwing explosive
substances on the Soviet Chancery were convicted.
Foreigners: to some extent international law also regulates the conduct of the
foreigners. According to international law it is the duty of each state to give to
them that right which it confers upon its own citizens.4.War criminals: can be
punished under international law. 5. Under some treaties individuals have been
conferred upon some rights whereby they can claim compensation or damages.
3. Discuss the basis and nature of International Law. Or
Whether the International Law is law in the proper sense of the term? Give
reasons for your answer.
INTRODUCTION: - Austin in his definition of law has given more importance
to sanction and fear in compliance of law. In case of International law there is
neither sanction nor fear for its compliance hence it is not law in proper sense of
the term. But now the concept has changed and International Law is considered
as law. There is no consideration of fear or sanction as essential part of law. If
fear and sanction are considered necessary then there are sufficient provisions in
UNO charter for compliance of the International Law as Law :-
According to Bentham’s classic definition international law is a collection of
rules governing relations between states. Two of the most dynamic and vital
elements of modern international law.
In its broadest sense, International law provides normative guidelines as well as
methods, mechanisms, and a common conceptual language to international actors
i.e. primarily sovereign states but also increasingly international organizations
and some individuals.
Although international law is a legal order and not an ethical one it has been
influenced significantly by ethical principles and concerns, particularly in the
sphere of human rights. International is distinct from international comity, which
comprises legally nonbinding practices adopted by states for reasons of courtesy.
e.g. the saluting of the flags of foreign warships at sea.)
INTERNATIONAL LAW AS REALLY LAW
According to Oppenheim, International Law is law in proper sense because:-
In practice International Law is considered as law, therefore the states are bound
to follow them not only from moral point of view but from legal point of view
also.
When states violate international law then they do deny the existence of
international law but they interpret them in such a way so that they can prove
their conduct is as per international law.
Starke while accepting International Law as Law has said, “that in various
communities law is in existence without any sanction and legal force or fear and
such law has got the same acceptance as the law framed and enacted by state
Legislative Assemblies.
With the result of international treaties and conventions International Law is in
existence.
U.N.O. is based on the legality of International Law. According toProf.Briely,
“To deny the existence and legal character of International Law is not only
inconvenient in practice but it is also against legal thoughts and principles.”
· The states who are maintaining the international relations not only accept
International Law as code of conduct but has also accepted its legal sanction
and force. Prof. Hart, “There are many rules in practice which are honoured
by states and they are also bund by them, now the State Government accept the
existence of International Law.” According to Jus Cojens, “International Law
may now properly be regarded as a complete system.”
It is pertinent to mention here that from the above noted contents it is clear that
the following grounds are supportive for accepting the International Law as
law:-
Now so many disputes are settled not on the basis of moral arguments but on the
basis of International Treaties, precedents, opinions of specialists and
conventions.
States do not deny the existence of International Law. On the contrary they
interpret International Law so to justify their conduct.
In some states like USA and UK international Law is treated as part of their own
law. A leading case on the point is the, Paqueta v/s Habanna-1900. Justice Gray
observed that the international law is a part of our law and must be administered
by courts of justice.”
As per statutes of the International Court of Justice, the international court of
Justice has to decide disputes as are submitted to it in accordance with
International Law.
International conventions and conferences also treat international Law as Law in
its true sense.
The United Nations is based on the true legality of International Law.
That according to article 94 of UNO charter, the decisions of the International
Court of Justice are binding on all Parties (States).
Customary rules of International Law are now being replaced by law making
treaties and conventions. The bulk of International Law comprises of rules laid
down by various law-making treaties such as, Geneva and Hague conventions.
On the basis of above mentioned facts and arguments, the International Law is
law in true sense of the term. United States and U.K., treat International Law as
part of their law. In a case ofWest Rand Central Gold Mining Company Ltd.,
v/s Kind- 1905, the court held the International Law has considered it as a part of
their law. From the above analysis it is revealed that the International Law is law.
The International Law is law but the question arises as to what are the basis of
International Law. There are two theories which support it as real law:-
1. Naturalist Theory:- The Jurists who adhere to this theory are of the view that
International Law is a part of the Law of the Nature. Starke has written, “States
submitted to International Law because their relations were regulated by higher
law, the law of Nature of which International Law was but a part.” Law of
nature was connected with religion. It was regarded as the divine Law. Natural
Laws are original and fundamental. They incorporate the will of the Governor
and governed and advance their consent or will. That is why international law
is also based on natural law.
Vattel Furfendorf, Christain, Thamasius, Vitona are the main supporters of
this theory.It was viewed that natural law is uncertain and doubtful but it is
accepted that Natural Law has greatly influenced the growth and has given the
birth to International Law and its development. Most of its laws are framed from
Natural Law.
2. Positivist Theory:- This theory is based on Positivism i.e. law which is in the
fact as contrasted with law which ought to be. The positivists base their views
on the actual practice of the states. In their view customs and treaties are the
main sources of International Law. According to German economist,
Heagal, “International Law is the natural consent of states. Without the
consent of states, no law can bind the states. This consent may be express or
implied.” As pointed out by Starke, “ International Law can in logic be
reduced to a system of rules depending for their validity only on the fact that
state have consented to them.” As also pointed by Brierly, “The doctrine of
positivism teaches that International Law is the sum of rules by which states
have consented to be bound.” As said by Bynkeshock, “The basis of
International Law is the natural consent of the states. Without the consent of
states no law can bind the states.”
The critics of the above views say that consent is not always necessary for all
laws. There are some laws which are binding on states irrespective of their
consent e.g. Vienna Convention on the Law of Treaties. Article 36 of the Treaty
says that the provisions of the Treaty may be binding on third parties even if they
have not consented to it.
CONCLUSION: - Gossil Hurst says, “That International Law is in fact binding
on states, because they are states.” This is very much correct because every state
in the world wants peace, Law and order and that is possible only through
existence of International Law. Therefore it is in natural interest of States to
accept the existence of International Law.
2. International Law is the vanishing point of Jurisprudence. Explain.

INTRODUCTION:- Holland has remarked that International Law is the
vanishing point of jurisprudence in his view , rules of international law are
followed by courtesy and hence they should not be kept in the category of law.
The international Law is not enacted by a sovereign King. It has also no sanctions
for its enforcement which is the essential element of municipal law. Holland
further say that International Law ass the vanishing point of Jurisprudence
because in his view there is no judge or arbiter to decide International disputes
and that the rules of the I. Law are followed by States by courtesy.
Austin also subscribes to this view, Justice V.R.Krishna Iyerformally member
of Indian Law Commission has also remarked, “It is a sad truism that
international law is still the vanishing point of jurisprudence. This view is not
correct. It is now generally agreed that Holland’s view that international law is
the vanishing point of jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that International
Law is not enacted by sovereign and has no agency for its enforcement. But it is
true that it is a weak law. A majority of International lawyers not subscribe to
this view is based on the proposition that there are no sanctions behind
international Law are much weaker than their counterparts in the municipal law,
yet it cannot be successfully contended that there are no sanctions at all behind
international law.
The jurists who do-not consider international law as the vanishing point of
jurisprudence say that there is difference between state law and International
Law. International Law cannot be enacted by the state but still there is agency for
its enforcement. According to Dias, “International Law is obeyed and complied
with by the states because it is in the interests of states themselves.”
For this object they give the following arguments:-
1. The judgements of International court of Justice are binding on States.
2. If any state does not honour the order/judgement of International court of
justice, the Security Council may give its recommendation against that state
for action.
3. The judicial powers of International Court of justice (Voluntarily and
compulsory) have been accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security, under
chapter VII of the U.N. Charter, the security council can take necessary action to
maintain or restore international peace and security. Besides this the decisions of
the International Court of Justice are final and binding upon the parties to a
dispute.
The gulf war 1991 Iraq trespassed and acquired the whole territory of Quait in
her possession by violation of International Law. The Security Council passed a
resolution against Iraq and asked her to liberate Quait. But Iraq did not honour the
resolution of Security Council; hence therefore may economic and political
restrictions were composed against Iraq. But all in vain. Then USA and her allies
were permitted to compel Iraq to honour resolution of Security Council.
Consequently USA and her allies used force against Iraq and freed Quait.
The same action was taken against North Korea and Cango during the year l948
and 1961. The Security Council imposed penalty against Libya for shooting down
American Plane in Lockerbie (Scotland) in 1992, consequently two citizens were
also killed. The Security Council forced Libyan Government to surrender two
terrorists who were involved in this mishap and Libya obeyed the order of S.
Council.
The greatest proof of its utility and importance is the fact that its successor the
International Court of Justice established under the United Nations charter is
based on the Statute of the Permanent Court of International Justice, the United
Nations & Security Council Charter possess wide powers to declare sanctions
against the states who are guilty of violence of the provisions of the same under
chapter-VII
Thus International Law is in fact a body of rules and principles which are
considered to be binding by the members of International Community in their
intercourse with other. The legal character of International Law has also been
recognized in 1970 Declaration on the Principle of International Law Concerning
Friendly relation and Cooperation among states.
Conclusion:- On the basis of above discussion it may be concluded that the
International Law is in fact law and it is wrong to say that it the vanishing point
of Jurisprudence.
Discuss the weaknesses of International Law. What are the suggestions for
removing/improving the International Law?
INTRODUCTION: - International Law is said to be a “weak Law.” The
weaknesses of International Law become evident when we compare it with
Municipal Law. Its weaknesses reflected in most of cases when these are
compared with the state law. The following are some of the weaknesses of
International Law:-
WEAKN ESSES
l. The greatest shortcoming of International Law is that it lacks an effective
executive authority to enforce its rues.
2. Lacks Of effective legislative machinery:- Since the International Laws are
based on international treaties and conventions. Therefore these are interpreted by
the states according to their self interest.
3. The International court of Justice lacks compulsory jurisdiction in the
true sense of the term :- The International court of Justice which is situated in
Hague (Netherland) is not authorised to take cases of all states. The cases can be
filed in this court with the mutual consent of concerned states.
4. Due lack of effective sanctions, rules of International Law are frequently
violated:- There is no sense or fear of sanction in the International Law with the
results the laws are violated frequently by the States.
5. Lack in right to intervene in Internal Affairs :- As per article 2(7) of UNO

Charter, UNO is not competent to interfere in the domestic matters of states.
International law cannot interfere in the domestic matters. Keeping in view these
facts in several cases International Law proves to be ineffective and weak.
6. UNCERTAINTY:- There is one more reason behind the weakness of
International Law is its uncertainty. It is not certain as the laws of states as well as
Municipal law. In addition to this it has not been able to maintain international
peace and order.
It is now very much clear from the above facts that International Law is
weak. Paton says that , “ from institutional point of view International Law is a
weak. It has no legislative support though there is international court of justice
but that functions or takes case on the basis of mutual consent of states. It has no
power to get the decisions implemented.”
According to Karbet, “The main course of weakness of International Law is the
lack of social solidarity among highly civilised states.
A case of Queen v/s Ken – 1876 :- There is no such institution or body which
can enact laws for sovereign states and there is no court also which can enforce
its decision and to bind the states.”
SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW
Despite the above mentioned weaknesses, it has to be noted that International
Law is constantly developing and its scope is expanding. It is a dynamic concept
for it always endeavours to adopt itself to the needs of the day. As compared to
Municipal Law the International Law is works in a decentralised system. This is
because of the facts that the International policies, Inter-dependence of states and
the continuous growth of the concept of International or world community.
However the weaknesses of the International Law may be improved in following
ways:-
l. The International Court of Justice should be given compulsory jurisdiction, in
the true sense of term overall international disputes.
2.An International Criminal Court should be established to adjudicate cases
relating to international crimes.
3. International Laws should be properly codified.
4. The machinery to enforce the decisions of the International Court of Justice
should be strengthened.
5. An International Police system should be established to check international
crimes and to enforce the rules & principles of International Law.
6. An international Bureau of Investigation and prosecution should be established
for investigation of matters relating to International crimes and the prosecution of
International criminals.
7. The U.N.O. should be authorised to intervene in the internal matters of states.
8. For settlement of international disputes the use of judicial precedents must be
encouraged.
9. There must be constant review of International Law.
10. Last but not the least there must be basic recognition of the interest which the
whole international society has in the observance of its laws.
CONCLUSION: - It is pertinent to mentioned here that the General Assembly
of UNO should made fruitful efforts in this direction. The above suggestions will
make International Law equivalent to a Municipal Law to some extent. With the
growth of Internationalism and the feeling of universal brotherhood international
aw will also become effective and powerful.
1. International Law and Municipal Law are the same. Please discuss. Or
Discuss the various theories regarding relationship between International
Law and Municipal Law.
INTRODUCTION: - Certain theories have been propounded to explain the
relationship between International Law and Municipal Law. In general it is
notionally accepted that the state municipal law control the conduct of individuals
within the state while International Law controls the relations of nations. But
now this concept has altogether been changed and the scope of International Law
has increased and it not only determines and controls the relations of states but
also the relations of members of International community. Both the laws have
co-hesion with each other and the relations between these two are more
prominent. These theories have been put forward to explain the relationship
between International Law and State Law. Of all these theories as per following
details, the most popular are the Monism and dualism and they are diametrically
opposed to each other:-
1. MONISTIC THEORY:-It is also known in the name of Monism theory.
According to the exponents of this theory International Law and Municipal
Law are intimately connected with each other. International Law and
Municipal Law are the two branches of unified knowledge of law which are
applicable to human community in some or the other way. All Law are made
for individuals. The difference is that municipal law is binding on individual
while International Law is binding on states. Conclusively it can be said that
the root of all laws is individual.
According to Strake, “International Law is part of state Municipal Law and
therefore decisions can be given by Municipal courts according to the rules of
International Law.”
According to O.Kornell, “The objective of all laws is human welfare whether it
is state municipal law or International Law.”
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.
THEORY OF SPECIFIC ADOPTION: - International Law cannot be directly
enforced in the field of State Law. In order to enforce it in the field of Municipal
Law it is necessary to make its specific adoption. The theory of adoption is based
on Hague convention-1970, Vienna Convention-1972 and Tokyo Convention-
1975. In case of Jolly George v/s Bank of Cochin-1980: The court held that any
agreement does not become part of Indian constitution automatically, but the
positive commitment of state parties inspires their legislative action.”
The use of International Law in different countries like India, Britain, America
and Russia. The rules of International Law and treads have been based in a
different ways e.g.
INDIAN ADOPTION :- The International Law has been given important place
and mention the customary rules of International Law in Article 51(6) of the
Indian constitution with the following strive :
i) To increase international peace and security.
ii) To maintain just and good relations among states.
iii) To increase faith and honour for use of International Law treaty,
obligations in natural relations and conduct of organised people.
iv) To act as mediator to encourage for settlement of international dispute.
Some of the cases in this regard are : i) Shri Krishna Sharma v/s State of west
Bengal-1964 : It was decided that whenever the court interprets the domestic
Municipal Law, it should be taken into consideration that it does not go against
International Law.
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted
the implementation of Kutch Agreement between India and Pakistan on the basis
of correspondence between them. Similarly there are two other case

viz: Vishakha v/s State of Rajasthan-1997. And Apparel Export Promotion
Council v/s A.K.Chopra-1999: In both of the cases the court held that the right
of sex equality of women has assumed the important rule of International Law
and its convention, court said that in cases of violation of human right the court
should always consider international documents and conventions and should
make them binding.
British Adoption: In Britain International customs are treated as part of domestic
law. British courts apply international customs subject to the
conditions (i) International customary rules are not inconsistent with British
Laws (ii) they are accepted by lower courts when the limit of these customary
rules are fixed by High Court. For use of treaties, the case of International
Tin Council v/s Dep’t., of Trade and Industry-1900: the Lord Council decided
that in England treaties are not binding automatically. It is binding only when the
Parliament makes it a part of English Law and incorporates in Law by enactment
of law in this regard.
Adoption in America: In America the courts interpret the state law in such a
way that it does not go against International Law. The rules of customary
International Law are treated as part of State Law. It has been done in the case
of Paqueta Habana Case- 1900: It was held that International Law is part of
our state Law and when any question or case relating International Law is filed
before courts of proper powers then the rights based on these questions should be
determined and enforced.
4. THEORY OF TRANSFORMATION:- The exponents of this theory
contented that for the application of International Law in the field of Municipal
Law, the rules of international law have to undergo transformation. Without
transformation they cannot be applied in the field of Municipal Law.
According to Strake:- “That the rules of International Law can be applied when
they are transformed in to domestic law, is not necessary in every case.”
5.THEORY OF DELIGATION:- The theory of transformation has been
criticised by the Jurists with the result of this craterisation it put forward a new
theory called Delegation theory. The supporters of this theory say that according
to the statutory rules of International Law, the powers have been delegated to the
constitution of different states o ensure that how and what extent according to
International Law. States to determine as to how International Law will become
applicable in the field of Municipal Law in accordance with the procedure and
system prevailing in each state in accordance with its constitution.
CONCLUSION:- Last but not the least in a recent case namely, Chairman,
Railway Board & others v/s Mrs. Chandrima Das and others-2000: The supreme
Court of India observed that the International Conventions and Declarations as
adopted by the United Nations have to be respected by all signatory states and
meaning given to the words in such declarations and covenants have to such as
would help in effective implementation of those rights.
UNIT-II
1. What do you understand by recognition? What are the various kinds of
it? Also differentiate between de facto and de jure recognition. Explain
those situations when de facto become de jure recognition. What are the
disabilities of an unrecognised state?
INTRODUCTION: - It can be said that through recognition, the recognising
state acknowledges that the recognised state possesses the essential conditions of
Statehood, a Government and Sovereignty, a definite territory and has a complete
control over his territory. The community is independent. So recognition has an
important place in International Law. By recognition only the state is accepted as
a member of International community.
DEFINITION:- Many of the Jurists has define ‘Recognition’ in different ways.
Some of them have opined as under:
Prof.L.Oppenheim :- “In recognising a State as member of International
community, the existing states declare that in their opinion the new state fulfils
the conditions of statehood as required by International Law.”
Fenwick: - “That through recognition the members of the International
community formally acknowledge that the new state has acquired international
personality.”
In the words of Phillip C Jessup: - By recognition is such a function of a state
by which she accepts that any political unit contains the essential elements of
nationality.”
According to Prof. Schwarzenberger:- “ Recognition can be absorbed easily by
a procedure developing International aw by which the state have accepted the
negative sovereignty of each other and willing to develop their legal relations on
the basis of their natural relations.”
According to Kelson: “A community to be recognised as an International person
must fulfil the following conditions:-
i) The community must be politically organised.
ii) It should have control over a definite territory.
iii) This definite control should tend towards performance.
iv) The community thus constituted must be independent.
Thus the conditions of statehood are, People, a territory, a government and
sovereignty.”
TYPES OF RECOGNITION
Recognition is of two types, De facto and de jure recognition. The practice of
States shows that in first stage the State generally give de facto recognition. Later
on when they are satisfied that the recognised state is capable of fulfilling
International obligations, they confer de jure recognition on it, that is why
sometimes it is said that de facto recognition of state is a step towards de jure
recognition. The detail of de facto and de jure recognition is as under:-
DE FACTO RECOGNITION: - According to Prof.G.Schwarzenberger:-

“When a state wants to delay the de jure recognition of any state, it may, in first
stage grant de facto recognition.”
The reason for granting de facto recognition is that it is doubted that the state
recognized may be stable or it may be able and willing to fulfil its obligations
under International Law. Besides this it is also possible that the State recognised
may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the
essentials elements of statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :- “The de facto recognition of a State or
government takes place when the said State is free state and enjoys control over a
certain fixed land but she is not enjoying the stability at a deserved level and
lacking the competence to bear the responsibility of International Law.”
For example :- De jure recognition had not been given to Russia by America and
other countries for a long time because Russia was not having competence and
willingness to bear responsibility of International Law. The same position was
with China.
In view of the Judge Phillips C Jessup, “De facto recognition is a term which
has been used without precision when properly used to mean the recognition of
the de facto character of a government; it is objectionable and indeed could be
identical with the practice suggested of extended recognition without resuming
diplomatic relations.”
The de facto recognition is conditional and provisional. If the state to which De
Facto recognition is being given is not able to fulfil all conditions of recognition
then that recognition is withdrawn.
DE JURE RECOGNITION
De jure recognition is granted when in the opinion of recognizing State, the
recognized State or its Government possesses all the essential requirements of
statehood and it is capable of being a member of the International Community.
According to Prof.H.A.Smith :- “ The British practiced shows that three
conditions precedent are required for the grant of de jure recognition of a new
State or a new Government. The three conditions are as under:-
i) A reasonable assurance of stability and performance.
ii) The government should command the general support of the population.
iii) It should be able and willing to fulfil its international obligations.
Further Recognition de jure results from an expressed declaration or from a
positive act indicating clearly the intention to grant this recognition such as the
establishment of diplomatic relations.
According to Phillips Marshall Brown: - “De jure recognition is final and once
given cannot be withdrawn, said intention should be declared expressly and the
willingness is expressed to establish political relations.”
DISTINCTION BETWEEN DE FACTO AND DE JURE RECOGNITION
As observed by Prof.G.Schwarznbeer, “De jure recognition is by nature

provisional and may be made dependent on conditions with which the new entity
has to comply. It differs from de jure recognition in that there is not yet a formal
exchange of diplomatic representatives. De jure recognition is complete implying
full and normal diplomatic relations.”
De facto recognition De jure recognition
1. De facto recognition is De jure recognition is final.
conditional and
Provisional. De jure recognition cannot
2. If the conditions are not be withdrawn once given it
fulfilled by the concerned is final.
state then it is withdrawn. The willingness is to be
3. To maintain political expressed for maintenance
relation in this recognition of political relations.
is not necessary.
4. De facto recognition is the De jure recognition is the
first step towards de jure final step towards
recognition. recognition.
In Luther v/s Sagor-1921:- “It was held that there is no distinction between de
facto and de jure recognition for the purpose of giving effect to the internal acts
of the recognized authority.”
Bank of Ethopia v/s National Bank of Egypt and Liquori- 1937:- The court
held that in view of the fact that the British government granted recognition to the
Italian Government as being the de facto government of the area of Abyssinia
which was under Italian control, effect must be given to an Italian decree in
Abyssinia dissolving the plaintiff bank appointing liquidator.”
But in the case of Luther v/s Sagore-1921 the court held that as far as internal
affairs of a state is concerned De facto recognition is interim and it can be
withdrawn.”
CONSEQUENCES OF RECOGNITION
There are many political and legal advantages of getting recognition and many
disadvantages of not getting recognition. They may be said as disabilities of a
state of not getting recognition. The following are the advantages of getting
recognition and disadvantages of not getting recognition.
ADVANTAGES DISADVANTAGES
1. Can establish diplomatic and The states who did not get such
commercial relation with the recognition cannot establish such
states granting recognition. relations.
2. Recognised states can institute The state which does not get
a suit in the courts of states recognition cannot do so.
granting recognition.
3. Can institute suit relating to Unrecognised states cannot

property situated in the courts of institute suit relating to property.
state granting recognition.
4. The representatives of The representatives of
recognised states are entitled to unrecognised states cannot enjoy
enjoy diplomatic and political such relations.
communities in the territories of
state granting such recognition.
The unrecognised states cannot
5. The recognised states can
sign any treaty agreement with any
execute treaty agreement with
states.
states granting such recognition.
CONCLUSION
Recognition of any state means, that state become a member of International
community and acquires International entity. The state becomes entitled to all
rights and special rights as a member of the International community. In the
absence of recognition any state cannot establish her diplomatic and political
relations with any states and also unable to sign any treaty agreement with any
state.
2. Define intervention? Under what circumstances intervention by one state

in the affairs of another state considered justified.
INTRODUCTION: - Intervention in fact principally prohibited under the
provisions of International Law. According to International Law no state has the
right to intervene in the affairs of another state for the purpose of maintaining or
altering the actual condition of thing. All members shall retrain in their
international relations from the threat or use of force, against the territorial
integrity or political independence of any state or in any other manner
inconsistent with the purposes of the United Nations. So in this way when any
state interferes in the internal and external affairs of other state, then as per
International Law, it becomes a matter of intervention.
DEFINITION OF INTERVENTION: - In simple words intervention means to
interfere directly or indirectly by one or more states in the internal or external
affairs of another state.
Prof.L.Oppenheim : “Intervention is dictatorial interference by a state in the
affairs of another state or the purpose of maintaining or altering the actual
condition of things. Interference pure and simple is no intervention.” Hans
Kelson pointed out that, “International Law does not prohibit intervention in all
circumstances. He further says that when one state intervenes in the affairs of
another state through force, then as a reaction against this violation International
Law permits intervention.”
TYPES OF INTERVENTIONS:- It can be accessed from the above view of

different Jurists regarding types of intervention that there are so many types of
Interventions. However some of them are as under:-
Military interference: It is done with military force.2. Political Interference: is
done by giving threatening information.3. Dictatorial Interference: Is done in
threatening tone.4. Interference without right: It is done without any purpose &
right. 5. Internal Interference: is done in interfering in the internal affairs. 6.
External Interference: It is also done in interfering in external affairs. 7. Penal
Intervention; 8. Subversive Intervention: is done by another state through exciting
the people against the state.9. Economic Intervention: is done by creating
obstacles in the trade.
BASES OF INTERVENTION: - It is very much pertinent to mention here that
what is the basis of doing of intervention and what type of interventions are valid
under UNO Charter. However the following have been considered as the main
basis of intervention:-
i. On the basis of self defence ii) On the basis of humanity iii) for application of
treaty rights iv) to stop illegal intervention v) to maintain balance of power vi) to
protect individuals and their property vii) collective intervention viii) to protect
International Law ix) at the time internal war.
All above basis of intervention have been recognised by the UNO except the
followings :- i) for application of treaty rights. ii) to stop illegal
intervention iii) to maintain balance of power IV) to protect individuals and their
property. V) to protect International Law.
Despite all these the following types of intervention are in use and recognised:-
i) Intervention for self defence and self protection: - Self defence and self
protection is main traditional basis of intervention. The intervention for self
defence is rather limited as compared to that self protection. Oppenhein says
that the use of power of intervention should have been made when it becomes
necessary for self protection.” A famous case, The Caroline-1841: In this
case Mr. Webster declared that the necessity of self defence should be instant
overwhelming and leaving no choice of means and no moment for
deliberation. Art. 51 of UN Charter provide that the right of intervention is
still available. Under this the state has the right to individual and collectively
protection. But this right is available only when: - i.There has been attack on
any state. ii) No step has been taken by the Security Council for international
peace and security.
1. Intervention on the basis of humanity:- Every person on this earth has a
right to live with human dignity. The state cannot devoid her of this right. It the
state behaves her citizens with cruelty then it is violation of International Law
of human rights. The action for intervention by UNO can be taken only in case
when the degree of violation of human rights is such that if created danger for
maintenance of International peace and security. The best example of such
intervention is by UNO in 1991 in Iraq for the protection of Kurds.
2. Collective Intervention:- In Chapter 7 of UNO Charter the Security Council

is empowered to take action of collective intervention. The collective
intervention means just and legal base of Modern times. UNO can intervene for
maintenance of world peace and security and to stop or avoid attack on the
following conditions:-
i) When there is actual danger or possibility of danger for international peace and
security. ii) Actual attack has been made by the concerned state.
The use of such right was made by UNO in Korea in 1950, Kango in 1961 and
Iraq in 1991. 3. Intervention in case of internal war:- When in any state there
is possibilities of Internal war, the intervention is considered as legal and just
basis because there are strong apprehensions of breach of International peace.
Under this situation the Security Council can decision to take collective action
under Chapter 7 of UNO Charter. The action taken by UNO in 1961 in
Kango is the best example of intervention. This action was taken to stop
internal war. CONCLUSION: - It is absolutely fact that every state is entitled to
manage willingly her own internal and external affairs and does not like interfere
of another state. Similarly it is also the duty of the other state not to interfere in
the internal and external affairs of any state. International Law also like this. The
main motto of the Security Council is maintaining peace in all the member states.
6. Detail note on Acquisition and loss of territory.
INTRODUCTION:-The act of appropriation by a State by which it
internationally acquires sovereignty over such territory as it is at the time not
under the sovereignty of another state. Further it is therefore an original mode or
acquisition is that the sovereignty is not derived from another State. Occupation
can only take place by and for a State. The leading case on the point is Island of
Palmas Arbitrations, as regards the sovereignty over the Island of Palmas
there was a dispute between America and Netherlands.
The following are the modes of acquisition of territory: In International Law a
territory may be acquired by the following means:-
1. Occupation: - Oppenheim said that, “Occupation is such an action by
which any State may obtain sovereignty on that territory over which there is no
sovereignty of any other state.” According to Starke, “Occupation consists in
establishing sovereignty over a territory not under the authority of any other
State, whether newly discovered or an un-likely case abandoned by the State
formerly in control.”
To decide whether on a territory occupation of a particular state exists or not, it is
een whether that State has an effective authority and control over that territory or
ot. A leading case on this topic Island of Palmas Arbitration, AJIl-1928.
2. Accretion:-A territory by accretion may be obtained by a State. Sometimes
by natural calamities also a territory comes within the jurisdiction of a State
through the same was previously a portion of another State. For this here is no
need of any formal action or declaration.
3. Prescription: - By prescription a territory comes within a State when by

continuous occupation and control of that territory for a long time creates a vested
authority in the controlling State and by passage of time that State becomes the
actual and real sovereign over that territory. Reference, J.G.Strake Introduction
to International Law-1989.
4. Cession: - By cession also a territory comes within the authority of a State.
The cession may occur as a result of a war through pressure or it may be
voluntary. The Cession will be valid only when the sovereignty over the territory
is transferred from one state to another with the territory. while in accretion only
one party may act. Under article 368 Parliament may make a law to give effect to
an implement the agreement in question covering Cession of a part of Berubari
Union NO.12 as well as some of the Cooch-Behar Enclaves.
5. Conquest: When a state gets victory over the other State then the
sovereignty over the conquered state is not established only by victory. For
sovereignty it is necessary that the victor State establishes an effective authority
over the territory of the conquered state through annexation. The importance of
this means is more or less extinct because of the Charter of the U.N.O. by which
intervention of one state on the affairs of another is prohibited.
6. Lease: - The territory may also be acquired through lease. A state may give
its territory o another state under lease for a certain period. For the said certain
period some rights of sovereignty are transferred to another. A good example of
this type of lease is transfer of certain Islands on lease by Malta to Great Britain
for some years. Recently India had also leased three Bigha to Bangladesh. Case
Union of India v/s Sukumar Sengupta-1990, it was held that the concessions
given to Bangladesh over the said area amounted to servitude.
7. Pledge:-Sometimes there arise certain circumstances under which a State
becomes compelled to pledge a part of its territory in return of some amount of
money for which it is in dire need. In this case also a part of sovereignty over the
territory concerned is transferred. For example in 1768 the Republic of Geneva
had pledged the Island of Corsica to France.
8. Plebiscite:-Some writers of the view that through plebiscite also new State
may be acquired. Although in International Law there is no such rule but some
modern writers have expressed the view that by plebiscite also a new territory can
be acquired by a State. An example to this concern is of West Irian, Netherland
and Indonesia both had put their claims on the territory of West Irian. UNO
decided for voting of the residents of west Irian. Irians voted in favour of
Indonesia. Now Irian is a part of the Indonesia. Example of Kashmir, Govt. Of
india have taken the position that since the merger of J&K with India several
elections have taken place and the people have voted.
9. Through Independence obtaining of territorial sovereignty:-those States
which were colonies after attaining independence get sovereignty over the
territory which consisted within the colonial setup. The difficulty in this context
is that nationality and sovereignty in the concerned colonial territory comes only
after it attains independence.
Mode of loss of State Territory:-1.According to Oppenheim, “A territory of a
tate is lost through cession means if one state gets some territory the same territory
s lost by the other state. 2. National Calamity: By operation of nature also
ometimes territory of a state is lost e.g. floods, by volcanic events. 3.Defeat in
War: if by conquering a State gets some territory the same is lost by the defeated
tate. 4. Prescription: by occupation of a territory for a long time state gets that
erritory through prescription. Original States loses that very territory by
rescription. 5. Revolution: through revolution a new state comes into being so it
may be said that the state against which revolt occurred had lost its territory in the
hape of a new state. Example: Netherland revolted against Spain. & in
971Bangladesh was born by revolution. 6. Dereliction:- When any state abandons
territory completely or relaxes its authority over it then it loses that territory. In
istory there are lesser examples of this kind.
. Short notes on Non State entities or State Succession.

NTRODUCTION: - State is the main subject of International Law and it is very
ifficult to define the term State. In principle all States are equal and this equality is
ue to their international personality. All states as international persons are equal.
According to Oppenheim when any question is to be decided by consent each state
s entitled to have one vote. Several efforts have been made to formulate and codify
ights and duties of States. Declaration of Rights and Duties of Nations proclaimed
y the American Institute of International Law.
Different kinds of Non State entities:- Here are some different kinds of Non-State
ntities:-
. Confederation: - It is formed by independent States. Under International Law
confederation has no international personality. The aim and objective of
confederation is to establish a sort of co-ordination among the States.
. Federal State:- Generally a federal state is formed by the merger of two or more
than two sovereign states. Under international law a federal state is an
international person. In a Federal State generally there is a division of powers
between the central authority and states through a contribution. The main
difference between a confederation and a Federal State is that while the Federal
State in an International person under international law and Confederation is not
an international person.
. Condominium:- When two or more states exercise rights over a territory it is
called condominium. It exists when over a particular territory joint dominion is
exercised by two or more external powers. New Hebrides is a good example of a
condominium. Both England and France exercised control and had rights over
the territory of New Hebrides between 1914 &1980.
. Vassal States:-A state which is under the suzerainty of another State is called a
Vassal State. Its independence is so restricted that it has no importance under
international law. According to Starke, “Vassal State is one which is completely
under the suzerainty of another State. Internationally its independence is so
restricted as scarcely to exist at all.”
. Protectorate State: - Starke, “Although not completely independent a
Protectorate State may enjoy a sufficient measure of sovereignty to claim
jurisdictional immunity in the territory of another state. In the Lonian Ship
Case-1855: the court held that a State may remain international person even
though it is dependent upon some other State.
KINDS OF STATE SUCCESSION:- State succession is of two types:-
i) Universal succession ii) Partial succession.
If the legal identity of a community is completely destroyed there is said to
be a total succession of States. If the territory is lost while personality and legal
responsibility remain unimpaired the process is described as partial succession.
This does not imply a total or partial succession respectively to the legal relation
of the previous sovereign but is merely an abbreviated way of defining the extent
of the change.
The following are the different kinds of state succession:-
1. Universal Succession: - i) Universal succession occurs when one state
occupies or annexes the State completely or amalgamates fully whether
voluntarily or through winning of war.
ii) When a state is divided into two or more parts or limits and every such unit
becomes a separate international entity or a state.
2. Partial Succession: - i) Partial succession occurs when any portion of a state
revolts and separates itself and attains independence and becomes an
international person or state.Example of Bangladesh who revolted against
Pakistan and became independent separate state is a good illustration of
partial succession.
ii) Or when a state gets some portion of another state through Cession.
iii) When a sovereign state amalgamates itself with some Union of States and
loses some portion of its independence or comes within the sovereignty or
protection of any other state.
8. State Jurisdiction. What are the exemptions to the territorial Jurisdiction

of state?
INTRODUCTION:-State jurisdiction is the power of a state under international
Law to govern persons and property by its municipal law. It includes both the
power to prescribe rules and the power to enforce them. The rules of State
jurisdiction identity the persons and the property within the permissible range of a
state’s law and its procedures for enforcing the law. A State may regulate its
jurisdiction by legislation through its courts or by taking executive or
administrative action. Thus the jurisdiction of a State is not always a co-incident
with its territory Case of KTMS Abdul Cader and others v/s Union of India-
1977, the court held that act has no extra-territorial application and hence the
State government has no power under the Act to pass orders of detention against
persons who at the time when the orders were made were not within India but
were out-side its territorial limits.
STATE JURISDICTION
In general every State has exclusive jurisdiction within its own territory but this
jurisdiction is not absolute because it is subject to certain limitations imposed by
international law. Thus in practice it is not always necessary that a State may
exercise jurisdiction in its territory on the other hand in some circumstances may
exercise jurisdiction outside its territory. Though the relationship between
jurisdiction and sovereignty is close jurisdiction is not co-extensive with State
Sovereignty. Each state has normally jurisdiction over all persons and things
within its territory.
Illustration:-A French armed public ship flying the flag of France was in the
British territorial waters when M, the Cabin boy of the ship committed the
offence of murder by shooting dead D the captain of ship. Both M &D were
British nationals. During the trial that took place that the British courts had no
jurisdiction to try him for the murder committed on board a French cruiser flying
French flag. The defence cannot succeed because he theory that the pubic ship of
a state should be treated to be a floating portion of that state has long been
discarded. Secondly the offence was committed within the territory of Britain.
Thirdly seeking good office of British police and medical aid amounted to a
waiver of the immunity. Thus M could be tried by British court.
EXEMPTION TO THE TERRITORIAL JURISDICTION
There are some exceptions of the exercise of jurisdiction which definitely
recognizes the protective jurisdiction of one state to deal with foreign nationals
acting in their country against its security and integrity:-
1. DIPLOMATIC AGENTS:- Diplomatic agents enjoy certain privileges and
immunities. They are immune from the jurisdiction of the civil and criminal
courts of the receiving State. In this connection the old view was tha the
diplomatic agents enjoy these immunities and privileges because they were
deemed to be outside the jurisdiction of receiving State. In the present time this
theory has been discarded. Modern view diplomatic agents enjoy certain
immunities and privileges because of the special functions they perform. This
was affirmed in a case Ex-parte Petroff-1971 by the Supreme Court of
Australia.
2. Foreign Embassies: - Foreign embassies are often considered to be outside the
jurisdiction of the State in which they are situated. For sake of convenience
embassies are to be treated a part of their home States. The correct view
however is that though not part of their home States embassies enjoys certain
immunities because of the special functions performed by the diplomatic
agents.
3. Foreign Sovereigns:-Foreign sovereigns are often treated to be outside the
jurisdiction of other states and possess many privileges and immunities. In the
case of Christina-1938, Lord Wright observed that there are general principles
of International Law according to which a sovereign state is held to be immune
from the jurisdiction of another sovereign State.
The principle of immunity of immunity of Foreign Sovereign was developed
in the early years of the nineteenth century. In the case of the Schooner
Exchange v/s McFaddon-1812, A French Naval Vessel stayed in Philadelphia
for repairs after a storm. Some persons sought possession of the ship on the
ground that in reality the ship Schooner Exchange. An American ship which they
owned and was seized by French on the High Seas in 1810 in pursuance of a
Napoleonic Decree. The U.S. Govt. however requested the court to refuse
jurisdiction on the ground of sovereign immunity. Court held that the vessel was
exempt from U.S. Jurisdiction.
The jurisdiction of the nation within its own territory is necessary exclusive
and absolute. It is susceptible of no limitation not imposed by it. In another case
of Vavasseur v/s Krupp-1878, the plaintiff contended that the Japanese Govt.,
has violated his patent rights and therefore he demanded that the delivery of the
goods by it be stopped. But the court had that it had no jurisdiction over the
property of the foreign sovereigns more especially with what we call the public
property of the State of which he is sovereign.
UNIT-III
9. what is Nationality? What are the various modes of acquiring and losing
nationality? Is there any difference between nationality and citizenship in
India?
INTRODUCTION:- Starke, “Nationality has been defined as the status of
membership of the collectively of individual whose acts decision and policy are
vouch safed through the legal concept of the State representing these
individuals.”
Prof. Oppenheim, “Nationality of an individual the quality of being a subject of
a certain State and therefore its citizens.”
Fenwick:-“Nationality is such a bond which binds an individual with a state and
makes him a member of that specific State and provides for right of protection
from that State with an obligation to abide the laws promulgated by that State,”
Kelson:- “Citizenship or Nationality is the status of an individual who is legally
an member of a state and ornamentally he can be called a member of that
community.”
IMPORTANCE OF NATIONALITY: - i) The right of protection of diplomatic

representatives are available because of nationality.
ii) If any state does not restrain a person of its nationality from such
disadvantageous action which are affecting other States then the fist State shall be
responsible to other states for such actions of its nationals.
iii) Ordinarily states do not refuse to accept its nationals in extradition.
iv) One of the effects of the nationality is that the state has a right to refuse
extradition of own national.
vi) By the practice of many States, at the time of war the Enemy character is
determined on the basis of nationality.
MODES OF ACQUISITION OF NATIONALITY:- According to International
Law nationality can be obtained by following means :-
By Birth: - In the country in which a person is born he obtains the nationality of
that country by birth or at the time of birth person gets the same nationality which
his parents are having.
By Naturalization: - By naturalization also nationality can be obtained. When an
alien living in a country obtains the nationality of that country it is called
naturalization. In Nottebohm case-1955, it was held that a State has no
obligation in granting nationality to a person through naturalization if that person
has no relations with that state. The court propounded the real and effective
nationality doctrine. If any person obtains nationality of two states then in case of
controversy between the two nationalities the nationality of that state shall be
accepted with which the person fundamentally has real and effective relationship.
By Resumption:-Sometimes it so happens that a person may lose his nationality
because of certain reasons subsequently he may resume his nationality after
fulfilling certain conditions.
By Subjugation:-When a State is defeated or conquered all the citizens acquire
the nationality of the conquering State.
Cession:-When a state has been ceded in another State all the people of the
territory acquire nationality of the State in which their territory has been merged.
LOSS OF NATIONALITY
1. By Release:-In some states there are such legal provisions are available by
which they grant permission to release their nationals from its nationality. For this
type of release an application is necessary. If the application for release is
accepted then the applicant is released from the nationality of that state.
2. By Deprivation:-Often in many states such legal provisions are available by
which if a national of that state enters into service of another state without the
permission of home state. He would loss nationality.
3. By long residence abroad:- The loss of nationality may take place on the
ground that the individual stayed abroad beyond a certain time limit. Many states
have such type of legal provisions which terminates the nationality for the stay of
beyond limit.
4.By Renunciation:- It may also be the cause of loss of nationality, when a

person is having nationality of two or more states, he has to choose the nationality
of one & has to renounce the nationality of other state.
5. By Substitution:-In some states the nationality is terminated by substitution. A
person gets nationality of one state in place of other states.
DIFFERNCE BETWEEN NATIONALITY & CITIZENSHIP
NATIONALITY CITIZENSHIP
The legal relationship which exists Denotes the relations between the
between the nation & Individual. person and the state law.
Through Nationality the civil & The rights of citizenship are the sole
natural rights of a person may come. concern of state law.
All citizens may possess the
nationality of a particular state.
It is not necessary that all the
A person who possesses only nationals may be the citizens of that
nationality in a particular state may particular state
not possess all political rights. Citizens are those persons who
possess full political rights in the
state.
10. What do you mean by Treaty? How it is signed and what is the procedure
of ratification.
INTRODUCTION:-In the modern period International treaties have been the
first and foremost source of international law. Whenever an international court
has to decide an international dispute its first endeavour is to find out whether
there is an international treaty on the point or not. In case there is an international
treaty governing the matter under dispute the decision of the court is based on the
provisions of the treaty. International treaties occupy the same significant position
in the field of international law as the legislation occupies in the municipal law.
DEFINITION OF TREATY: - International treaty is an agreement between two
or more states under the international law to create mutual relationships.
According to Oppenheim, “International treaties are those agreements between
the states which are of contractual nature and produce legal rights and
obligations.”
According to Starke, “Usually in all cases, the purpose of treaties is to create
binding nature of obligations on the parties to the treaties.”
According to Vienna Convention on treaties-1969, “Treaties and contracts are
document under which two or more states under international law establish or try
to establish their relations.”

CLASSIFICATION OF TREATIES:- One of famous jurist Mc Nair has
classified treaties in the following manner:-
Treaties having the character of conveyance.
Treaty contracts.
Law making treaties: a) Treaties creating constitutional law just as charter of ICJ.
b) Pure law making treaties e.g. labour conventions negotiated by ILO.
Treaties akin to charter of incorporation e.g. treaty by which International Posta
Union -1874 came into existence.
Vattel has classified treaties into four categories i.e. equal, unequal, real and
personal.
Prof.Oppenheim has classified the treaties into two categories:-
1. Law making treaties. 2. Treaties made for other purposes.
HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of binding nature,
the following conditions are to be fulfilled:
Accreditation of persons on behalf of contracting parties:- The intending
parties of treaties should appoint persons as their representatives to negotiate on
their behalf authoritatively for arriving at terms and conditions of a treaty.
Negotiations and adoption:- After due negotiations the terms and conditions of a
treaty are clunched and for its adoption a decision is made by both the parties.
Signature: - The representatives sign on each and every terms of a treaty to make
it enforceable. A treaty becomes enforceable against a party only after the
signature of the party or its representative is obtained on the treaty papers.
Accession and Adhesion: - The practices of the States show that by the process
of accession and adhesion a state which is not a party to a treaty may become a
party to it by signing it afterwards.
Enforcement of a treaty:- Usually the enforcement of a treaty depends and
begins according to the terms and provisions as laid down in the treaty itself.
Many treaties commence after the signature is affixed by the authorised person
while those which need ratification by the other states in certain number begin
after the required number of states have ratified. The general rule of International
Law is that a treaty is enforceable against the parties only which have entered and
signed a treaty.
Registration & Publication:- It is necessary after the treaty comes into force, it
may be got registered and published. Under the provisions of article 102 of UNO
charter. If it is not registered with the UNO that in case of any dispute comes into
existence for its settlement through the organs of UNO the treaty which is not
registered cannot be referred to for the settlement of that dispute.
Basis of binding force of the International treaties:-According to Angilotti,
“Binding force of International treaty gains its binding force.
PROCEDURE OF RATIFICATION:- Ratification is a very important
processes ordinarily the terms and conditions of a treaty. Treaty does not become
enforceable without ratification. The President of a State or Chief of the Govt.

Ratify the signatures of its representatives who negotiated for arriving at the
agreed terms and conditions of a treaty.
11. What do you understand from the term of Extradition? Is it different

from Asylum? Difference between Extra Territorial & territorial Asylum.
INTRODUCTION: - Each State exercises complete jurisdiction over all the
persons within its territory. But sometimes there may be cases when a person
after committing crime runs away to another country. In such a situation the
country affected finds itself helpless to exercise jurisdiction to punish the guilty
person. This situation is undoubtedly very detrimental for peace and order. There
is a social need to punish such criminals and in order to fulfil this social necessity
the principle of extradition has been recognised.
Meaning & Definition of Extradition:- Extradition is the delivery of an accused
or a convicted individual to the State on whose territory he is alleged to have
committed or to have been convicted of a crime.
According to Starke, “The term extradition denotes the process whereby under
treaty or upon a basis of reciprocity one state surrenders to another at its request a
person accused or convicted of a criminal offence committed against the laws of
the requesting state.
According to Grotius:- “It is the duty of each state either to punish the criminals
or to return them to the States where they have committed crime.”
Under International Law extradition is mostly a matter of bilateral treaty. In
principle each state considers it a right to give asylum to a foreign national, thus
there is no universal rule of customary international law in existence imposing the
duty of extradition. 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 inAsylum the active protection extended to a political
refugeefrom 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. Territorial asylum is granted by a
Grant of diplomatic asylum involves a State in its own territory.
derogation from the sovereignty of
that state. Every state has right in the exercise of
its sovereignty to admit into the
It withdraws the offender from the territory such persons as it deems
jurisdiction of the territorial state and advisable without exercising the
constitutes an intervention in matters Declaration of Asylum.
which are exclusively within the
competency of the state. The grant of territorial asylum is an
incident of territorial sovereignty
Grant of extra territorial asylum is itself.
rather a derogation from the
sovereignty. Each state has a plenary right to grant
territorial asylum unless it has
Right to grant extra-territorial asylum accepted some particular restriction in
is exceptional and must be established this regard.
in each case.
12. What are the different classes of Diplomatic Agents? Describe briefly
their privileges & Immunities.
INTRODUCTION: - During the Ramayana and Mahabharata period some
aspects of International Law were in their developed stage. Examples of
international law relating to diplomatic agents may be cited in this connection.
The permanent appointment of diplomatic envoys began from the seventeenth
centaury. The rights, duties, immunities and privileges etc., of the diplomatic in
18th. &19th. Centaury was mostly in the term of customary rules. The first great
landmark was the Congress of Vienna in 1815, wherein the customary law
regarding diplomatic agents was clarified and codified. The contents of Vienna
Convention were adopted finally in 1961. The Indian Parliament passed the
Diplomatic Relations on the basis of Vienna Convention-1972 to give effect to
this convention. This law relating to the diplomatic and consular affairs remains
the strongest section of International Law. DIFFERENT CLASSES OF
DIPLOMATIC AGENTS:-The diplomatic agents have been classified
according to their status and functions. The first classification of diplomatic agent
was made in the Congress of Vienna in- 1815 under which diplomatic agents
were classified under the following categories:-
1.Ambassadors and Legates:-These are the first category of diplomatic agents

and are the complete representatives of the sovereignty states. Their designation
is Ambassadors or Permanent Representatives of their respective countries of
U.N. They are appointed by POP.
2.Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic
agents of second category and as compared to the diplomatic agents of the first
category. They enjoy less privileges and immunities.
3.Charge-d affairs: - They are the diplomatic agents of the last category. The
main reason for this is that they are not appointed by the head of State but are
appointed by the Foreign Minister of the State. Their status is considered below
the Minister Resident.
4.Minister Resident: - In the congress of Aix-la-Chappele-1818, this category
was added at category No.3, but it was again dropped by 1961 Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed by
the International Court of Justice on 15.12.79 in a case of United States
Diplomatic and Consular Staff in Tehran: For enabling states irrespective of their
differing constitutional and social systems to achieve mutual understanding. One
of the pillars of modern International Law is the diplomatic immunities of the
Ambassadors. However the following are the immunities and privileges of the
diplomatic agents:-
1. Inviolability of the person as envoys: - The diplomatic agents are extended
personal safety and security. If an envoy is attacked it is deemed that attack was
on the country to which the envoy is belonging.
2. Immunity from criminal jurisdiction of the court: - The courts of the state
where the envoy is posted do not treat the envoys within its criminal jurisdiction.
It ordinarily believed that envoys will not violate the laws of the host country.
But there are certain circumstances when the envoys lose their immunity for
example when they indulge in conspiracy against the host state.
3. Immunity from civil jurisdiction:- the envoys also enjoy the immunities of
civil nature also no suit is filed in the civil court of the host state against envoys.
As per Vienna convention three exceptions when immunity is not available: i) for
any immovable property within the jurisdiction of host state he has. ii) in a matter
of inheritance where the envoy is a successor or executor in his personal capacity.
iii) The commercial activities of the envoy in personal capacity.
4. Immunity regarding residence:-His premises are inviolable and no search is
allowed in his residence. If any person intrudes the premises of envoy to avoid
arrest, it is the duty of envoy to deliver such person to the host government to
decide.
5. Immunity from presence in a court as a witness:- Any envoy cannot be
compelled to give an evidence in any Court but he himself can waive this
privilege and appear before a court.
6. Immunity from Taxes:-Vienna convention provides this immunity to envoys
for payment of local taxes. But water, electricity, telephones etc. not included.
a. Right to worship:-Within the premises of their embassy, envoys are free to

follow according to their choice the mode of worship. B)Right to exercise
jurisdiction over the staff and family in the embassy:- Envoys are free to
exercise their jurisdiction over the subordinate staff & family in the Embassy to
keep the embassy going on.
c. Right to travel freely in the territory of receiving state:-Vienna convention
has provided a new right to envoys, they can travel freely within the territory of
host state and go anywhere.
d. Freedom of communication for official purposes:- Vienna convention-1961
the envoys have freedom to communicate with his own state in context to their
official work.
e. Immunity from Military and other local obligations :- Vienna convention
granted the immunity to envoys from military and other local obligations of the
host state. BASIS OF IMMUNITIES AND PRIVILEGES OF DIPLOMATIC
AGENTS:- Theory of extra territoriality: - According to Grotius diplomatic
agents though physically present upon the soil of the country to which they are
accredited. It is justified base when they are treated to remain for all purposes
upon the soil of the country to which they represent. Functional Theory: - the
reasons for granting privileges and immunities to the diplomatic agents are that
they perform special type of functions that is why they are called functional and
in modern times this theory is accepted as correct.
UNIT-IV
13: Discuss the various compulsive means of settlement of International
disputes. OR write notes on Retorsion, Reprisal as compulsive means of
settlement of International disputes.
Introduction:- The primary purpose of the United Nation is that there should be
complete peace and security in all the members of UNO. First of all to seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement or other peaceful means of their own choice. In the other meaning
when it deems necessary call upon the parties to settle their dispute by such mean
which shall be convenient to them. Compulsive or coercive means of settlement
of International disputes are as under:-
1. Retorsion:- Retorsion is the technical term for retaliation. If any state behaves
in unequal or in courteous way with the other State, then the other state under
the International Law gets the right of retorsion. In this way the meaning of
Retorsion is retaliation. But in connection with Retorsion the State can initiate
only that proceeding which is permitted by the International Law. For example
in retorsion the diplomatice channels can be terminated and immunities and
privileges of the diplomat can be withdrawn together with the existing
economic subsidies. In the past Pakistan declared the diplomat of Iraq as
persona non grata and that diplomat had to leave Pakistan. Pakistan took this
action because in the Embassy of Iraq a lot of arms and ammunition was stored.
2. Reprisal:- If the problem is not solved by Retorsion the States have the right
under the International Law to resort to Reprisal that is, in Retaliation the state
can initiate such a proceeding that violator of the problem may be solved. The
reprisal can be resorted against a State when it has indulged in some illegal or
inappropriate activity. For example Israel has resorted to Reprisal many times
against Lebnon and has bombarded those regions of Lebnon where from Arab
Terrorists attacked on the territories of Israel. The members of UN cannot
indulge in Reprisals of such a type which endangers the international peace and
security. It is commonly accepted that Reprisal becomes justified and legal
when the other country has committed an international tort or violated the
norms of International Law. In the provocative action and Reprisal there must
be adequate proportion i.e. in proportion to the violation, the damage should be
caused. The Reprisal is valid only when demand for reparation was made and
this was not fulfilled.
3. Embargo:- Embargo is also a kind of Reprisal. If the ship belongs to a State
which has committed international tort or has committed some other
international wrong and is available in the territorial waters of the State against
which tort or wrong has been committed then such vessels can be restrained
from travelling through that area as a matter of right by the other State.
4. Pacific Blockade: - By this method the outer boundary of a State is blocked

peacefully. It is resorted during the peace time against a State. The coming
and going ship is stopped. By blockade of Ports of a country compelled that
state to solve the problem.
5. Intervention: - Under article 2(4) of the U.N. Charter, the principle of non-
intervention in the internal affairs of a State has been propounded.
But according to Kelson, he has asserted that International Law does not
prohibit intervention in all circumstances, meaning thereby that in certain
circumstances intervention is valid and legal.
14. Explain the purpose and principles of United Nation. How for United
Nation has been successful in achieving its object?
INTRODUCTION:-In the 20th. Century two world wars of highly destructive
nature were fought. After the First World War the league of Nation was
established. The main objects of the League of Nations were established and
maintain world peace and security. The League of Nations failed in its mission.
The large scale destructive effects of the second World War forced the Nations of
the world once again to establish some institution of International Statute which
may solve peacefully the disputes amongst them and establish peace and security
world over. On 26th.anuary, 1945 at Sanfransisco different Nations buttressed the
establishment of U.N.O. and after it’s the membership of the UNO increased
substantially and now it stands at 192.
PURPOSES OF UNO: - The purposes and objects for which the UNO has been
established are laid down in Article 1 of the Charter:-
1. To maintain international peace and security:- In the preamble of the charter
it is resolved to save the succeeding generations from the scourge of war and be
united to achieve these ends. To achieve the target the Organisation shall
prevent or remove threat to the peace, breach of peace and acts of aggression
by taking effective and collective measures. The international problems were to
be solved by peaceful means under the norms provided in the International Law
and canons of justice.
2. To develop friendly relations among nations:- The friendship should be
prosper on the basis of respect for the norms of equal rights and equality in self
determination of people. So this thought which developed friendly relations &
universal peace among the nations was set-up by UNO.
3. For removal of social, economic, cultural and human problems soliciting of
international co-operation:- In the preamble of the charter of UNO it has been
resolved to energize the International machinery for the development of
economic and social status of the people. A belief is to b developed in
promoting and encouraging the respect for human rights and fundamental
freedom for all without distinction to race, sex, language or religion.
4. To make the UN an International Centre for harmonization:- The general
purpose of UNO has to be made a centre for co-ordination of activities
executed by different nations in this regards to avoid clashes in choosing
priority, the UNO is to harmonise the different activities of different nations to
achieve the main purpose.
PRINCIPLES OF UNO:- There are following principles of UNO:-
1. Principle of sovereign equality: - Principle of Sovereign Equality means that
all the members of UNO are equal in the eye of International Law. No
discrimination in dealings with them is permitted.
2. Principle of honouring of obligations:- Being member of UNO, they enjoy
certain rights and benefits. Members are required to fulfil in good faith the
obligations assured by them in accordance with the Charter of UNO.
3. All nations shall settle their disputes through the principals of peaceful
settlement:-All the international disputes are to be settled by peaceful means
with the results that peace and security and justice of any region may not
endanger.
4. Principle of non-use of force:-All members of UNO should refrain from the
use of force or threat of force against the territorial integrity or political
independence of any State.

5. Principle of assistance to the UNO:-It is the essential duty of every members
of UNO to support and assist to take action against the State who is not
following the UNO charter.
6. Principle for non-member States: - As provided in Art.2 of UNO charter that
the States which are not members of UN, act in accordance with the principles
of UN for maintaining international peace and security.
7. Principle of non-interference in domestic affairs of a state: - Art.2 (7)
provides that the UN shall not intervene in the matters which are essentially
within the domestic jurisdiction of any State or to compel any members to
submit such matters settlement.
If all the above principles are faithfully followed by all the members of UNO,
than there will be no doubt at all that this path will lead to World Peace and the
sayings of Kelson that UNO is World Government will remain in existence.
HOW FOR U.N. HAS BEEN SUCCESSFUL IN ACHIEVING ITS
OBJECTS
The United Nation has performed important functions in the social, economic and
cultural fields as well as in the fields of human rights. Besides this Uniting for
Peace Resolution. There has been constant development of the powers and
functions of UN. United Nations has become the symbol of democratisation in
the world.
Public opinion is an important factor which comes into play in the
new international law. The Gulf War-1991 and the breaking up of the Soviet
Union are likely to bring about the revolutionary changes in the U.N. in the
present Uni-polar world (United State as the super power), majority of the
member-State are now demanding democratization of the world body. Un-doubtly
the United Nations has achieved its objects in maintaining the peace, security and
canons of justice at the International Level.
15. Short notes on i) Neutrality ii) Blockade.

INTRODUCTION: - The term neutrality has been derived from the Latin word
‘Neuter’ which means impartiality. In wider sense by neutrality which can be
means an attitude of impartiality adopted by the States who do not take part in the
war. Ordinarily by neutral States it may be presumed that states which try to keep
themselves aloof from the war of their neighbours. Neutrality is the attitude of
impartiality adopted by third States towards the belligerents and recognized by
belligerents. Such attitude creating rights and duties between the impartial States
and belligerents.
DEFINITION: - According to JG Strake, “Neutrality denotes the attitude of a
state which is not at war with belligerents and does not participate in hostilities.
In its technical sense however it is more than an attitude denotes a legal status or
a special nature involving a complex of rights and duties and privileges at

International Law which must be respected.
According to Lawrence: Neutrality is the status of such States which do not
participate in war and maintain their relations with belligerents. Lawrence has
emphasized only on the point that neutrality is such a position of a state by which
they do not participate in a war and maintain their peaceful transactions and
journey with belligerents.
ESSENTIAL ELEMENTS OF NEUTRALITY:-Impartial Attitude:-states
who do not takes part in war and remain impartial. Impartiality is an important
element of Neutrality.
Recognition of the attitude of impartiality by the belligerent States:
- Impartiality of Neutrality State is accepted or recognized by the belligerents
Emergence of certain rights and duties because of impartial attitude and its
recognition by the belligerents.
Development of the law of Neutrality:-During 18th.Century it began to accept
that the countries which do not participate in war have a right to remain impartial.
During 19th.Century Law of Neutrality get more development and credit for this
goes to America.
Rational basis of Neutrality: - Neutrality usually because of the following
reasons:
1. It helps in limiting the area of war. 2. It discourages war. 3. Because of it the
States keep themselves aloof from the war. 4. It regulates the international
relations.
Provisions regarding Neutrality in the Charter of UNO:-1. The right to
commence a was suspended. 2. Wars which are fought even without violating the
conventions/treaties entered into the charter of UNO or where there is lack of no
war treaty then the member States have freedom to solve matters of disputes
either by enquiry through Security Council.3. If any States begins a war after the
violation of Art.12 to 15 of the UN Charter then such war shall be deemed to be a
war against all the members of States of the UNO.
BLOCKADE
DEFINITION:-According to JG Strake, blockade occurs when a belligerent
bars access to the enemy coast or part of it for purpose of preventing ingress or
egress of vessels or air-crafts of all Nations.” And according to Oppenheim, “It
is blocking men of war of the approach to the enemy coast or part of it for the
purpose of preventing ingress and egress of vessels or aircrafts of any nations.”
The law as to blockade represents a further restriction on the freedom of neutral
States as to trade with belligerents.
Essential elements of Blockade:-i) It should be done by men of war. ii) The part
of coast or whole coast of the enemy can be blockade. iii) The ingress and egress
of the ships should be prevented through blockade. iv) Blockade is an act of
war. v)Blockade should be such that no discrimination is made between the ships
of different countries.
Besides the above elements the additional necessary elements are also to follow
:- i) Declaration and Notification ii) Geographical limits of the blockade
area: It is essential to clarify the areas where the blockade will operate and
vessels and aircrafts shall be prohibited from entering. iii) Exemption to neutral
parts: Neutral ports should be exempted from blockade. iv) Impartiality: There
should not be any discrimination with the vessels of any Nation; the vessels
should stop impartially by the country which has imposed
blockade. v) Effectiveness: For making blockade binding it is necessary that it
should be effective. For effectiveness it is essential to utilize the force and such
measures which are fit for stopping the ingress and egress of the vessels.
TERMINATION OF BLOCKADE: The blockade comes to an end in the
following:-
1. By termination of war.
2. The country which has imposed blockade can itself terminate it.
3. When the blockade is continuously violated and it does not remain effective
then it is understood that blockade has terminated.
4. The blockading State captures and occupies the blockaded coast or port.
5. When blockading forces are vanquished by the enemy forces.
6. When the military vessels blockading area leave the blockaded coast it is
understood that blockade has ended.
16. State briefly the rules of Land and Aerial warfare.

INTRODUCTION: - The law of war consist of the limits set by International
Law within which the force required to over-power the enemy may be used and
the principles there under governing the treatment of individual in the course of
war and armed conflict. The objective of the rules of war is not to govern the war
or regulate it as rules of games.
Law of Land Warfare:-The Hague Convention-1907 is a landmark in respect of
rules of land warfare. Hague convention clarified the status of belligerent states
and clarified the distinction between combatants and non-combatants. According
to it the persons in the regular army having specific regiment number etc., are
lawful combatants. Besides this is the guerrilla’s volunteer’s corps etc., may also
be included in the category of combatants provided they fulfil the following three
conditions:-
1. They serve under a definite and specific authority. 2. They have specific
emblem which may be recognised from distance. 3. The conduct was in
accordance with the rules and customs of war.
Prohibited Means in Land Warfare:-War is contest between Armed forces of
two or more States wherein force can be used within certain limits laid down by
Laws and Customs of war. International customs, treaties have prohibited certain
means in land warfare. Hague Convention- 1907, the use of poisonous weapons,
gas, pollute, food material, poison water, projectiles which cause unnecessary
sufferings and pain etc., have been prohibited and it will also violation of the laws
and customs of war. During land war undefended cities, villages cannot be
attacked or destroyed. Killing of wounded and sick persons of the armed forces
during war has also been prohibited. However they can be made prisoners of
war. Ruses of War or Stratagem : It is a permitted way during land warfare. By
ruses of war or stratagem we mean that for the attainment of its military
objectives a belligerent State can misguide or mislead the enemy. According to
modern concept of war, war is not only the test of physical strength but also
intelligence provided under article 24 of Hague Convention.Deceit:- Ruses of
war are permitted but in Deceit which is different from stratagem is contrary to
International Law. For example, according to Hague Convention, unauthorised
use of flag or emblem of the armed forces has been prohibited. Flag of peace or
emblem of red- cross cannot be used to deceive the enemy.ESPIONAGE:- The
position of Espionage is very peculiar. On one hand I.Law recognises espionage
during land war and on the other hand it also recognised the punishment can be
awarded to those who are caught or apprehended while spying. Hague
Regulation-1907 has defined ‘spy’ as one who under false pretences obtain
information. True spy acting in disguise or under the pretences is himself
responsible.
LAWS OF AERIAL WARFARE
INTRODUCTION: - In the modern times the importance of aerial warfare has
greatly increased. Aircrafts were used in large scale for the first time during the
First World War. Since the First World War he aircrafts have been used in all the
major wars that formulation of definite rules of International Law to regulate their
use during war. Bombing by aircrafts causes excessive loss of public and private
property. In order to regulate use of aerial warfare many conferences have been
called for from time to time and many rules have been formulated.
LAWS OF AERIALWARFARE: - Brussels Conference of 1874: laid down the
following rules/laws: 1. Bombardments on undefended cities, villages and towns
was prohibited. 2. Bombing of buildings and works relating to art, science,
religion and culture and philanthropic works was prohibited. 3. It was also laid
down that the buildings of public utility should not be destroyed during aerial
warfare.4. Bombing on hospitals etc., was completely prohibited. Hague
Convention- 1899, approved the rules formulated in Brussels Conference, 1874
and also laid down the following additional rules: - 1.Bombing on civilian people
and their property without just and appropriate cause was prohibited. 2.
Bombardment for the realisation of money or things was declared illegal. 3.
Bombardment of those cities and villages which are away from the war areas was
also prohibited. 4. It was also laid down that bombardment should be made only
for the achievement of military objectives.
Washington Conference-1922: The use of aircrafts during the First World War
had made it clear that the rules of aerial warfare formulated so far were not in
conformity with the changing facts and circumstances. In order to amend these
rules and to frame certain rules a conference was called in Washington in
1922:-1.Aiming of private aircrafts with weapons for self-defence was
prohibited. 2. Bombardment to frighten civilian population was
prohibited.3.villages and towns and buildings which are unconnected with or are
away from war areas should not be destroyed. 4. Building connected with religion
culture or the philanthropic works cannot be destroyed. 5. Hospitals and other
places where the patients are treated cannot be destroyed.
Further the main object of The Hague Air warfare Rules was to propose a legal
regulation of the special problems raised air warfare.
Aerial Bombardment is legitimate only when directed at military objectives.
Belligerent non-military aircraft can be fired upon unless they make the nearest
available landing on the approach of enemy military aircraft.
Aerial bombardment for the purpose of terrorising the civilian population of
destroying or damaging private property not of military character of injuring non-
combatants is prohibited.
Unit-V
Intervention
DEFINITION OF INTERVENTION: - In simple words intervention means to
interfere directly or indirectly by one or more states in the internal or external
affairs of another state.
Prof.L.Oppenheim : “Intervention is dictatorial interference by a state in the
affairs of another state or the purpose of maintaining or altering the actual
condition of things. Interference pure and simple is no intervention.” Hans
Kelson pointed out that, “International Law does not prohibit intervention in all
circumstances. He further says that when one state intervenes in the affairs of
another state through force, then as a reaction against this violation International
Law permits intervention.”
TYPES OF INTERVENTIONS:- It can be accessed from the above view of
different Jurists regarding types of intervention that there are so many types of
Interventions. However some of them are as under:-
1. Military interference: It is done with military force.2. Political Interference:
is done by giving threatening information.3. Dictatorial Interference: Is done in
threatening tone.4. Interference without right: It is done without any purpose &
right. 5. Internal Interference: is done in interfering in the internal affairs. 6.
External Interference: It is also done in interfering in external affairs. 7. Penal
Intervention; 8. Subversive Intervention: is done by another state through exciting
the people against the state.9. Economic Intervention: is done by creating

obstacles in the trade.
BASES OF INTERVENTION: - It is very much pertinent to mention here that
what is the basis of doing of intervention and what type of interventions are valid
under UNO Charter. However the following have been considered as the main
basis of intervention: - i. On the basis of self defence ii) On the basis of
humanity iii) for application of treaty rights IV) to stop illegal intervention v) to
maintain balance of power vi) to protect individuals and their
property vii) collective intervention viii) to protect International Law ix) at the
time internal war. All above basis of intervention have been recognised by the
UNO except the followings :- i) for application of treaty rights. ii) to stop illegal
intervention iii) to maintain balance of power IV) to protect individuals and their
property. V) To protect International Law.
Relation between International Law and Municipal Law.

There are certain theories have been propounded to explain the relationship
between International Law and Municipal Law. In general it is notionally
accepted that the state municipal law control the conduct of individuals within the
state while International Law controls the relations of nations. But now this
concept has altogether been changed and the scope of International Law has
increased and it not only determines and controls the relations of states but also
the relations of members of International community. Both the laws have co-
hesion with each other and the relations between these two are more prominent.
These theories have been put forward to explain the relationship between
International Law and State Law. Of all these theories as per following details,
the most popular are the Monism and dualism and they are diametrically opposed
to each other:-
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.”
DUALISTIC THEORY: - In view of the dualistic theory writers, International
Law and state Law are two separate laws and contained legal systems. The
Monist view of law is part of philosophy according to which totality is a single

structure. But within the framework of the unitary universe is diversity of
phenomenon. International Law cannot become part of state municipal Law till
the principles of International Law are applied under State Municipal Law.
According to Strake, “The main foundation of the proponents of dualistic theory
is that state Municipal Law and International Law are two different legal systems
because the nature of International law is fundamentally different from State
Municipal Law.”
Angilotti has also recognised both the systems as two different legal systems.
According to him the fundamental principle of State Municipal Law in
compliance of law enacted by state legislature while principle of International
Law is Pacta Sunt Servanda i.e. to honour the agreements executed between the
states.”
De-Facto- RECOGNITION
Recognition are two types, 1. De facto 2. de jure recognition.
The practice of States shows that in first stage the State generally give de
facto recognition. Later on when they are satisfied that the recognised state is
capable of fulfilling International obligations, they confer de jure recognition on
it, that is why sometimes it is said that de facto recognition of state is a step
towards de jure recognition. The detail of de facto and de jure recognition is as
under:-
DE FACTO RECOGNITION:- Prof. G. Schwarzenberger:- “When a state
wants to delay the de jure recognition of any state, it may, in first stage grant de
facto recognition.”
The reason for granting de facto recognition is that it is doubted that the state
recognized may be stable or it may be able and willing to fulfil its obligations
under International Law. Besides this it is also possible that the State recognised
may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the
essentials elements of statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :- “The de facto recognition of a State or
government takes place when the said State is free state and enjoys control over a
certain fixed land but she is not enjoying the stability at a deserved level and
lacking the competence to bear the responsibility of International Law.”
For example: - De jure recognition had not been given to Russia by America and
other countries for a long time because Russia was not having competence and
willingness to bear responsibility of International Law. The same position was
with China.
In view of the Judge Phillips C Jessup, “De facto recognition is a term which
has been used without precision when properly used to mean the recognition of
the de facto character of a government; it is objectionable and indeed could be
identical with the practice suggested of extended recognition without resuming

diplomatic relations.”
The de facto recognition is conditional and provisional. If the state to which De
Facto recognition is being given is not able to fulfil all conditions of recognition
then that recognition is withdrawn.
STATE JURISDICTION
State jurisdiction is the power of a state under international Law to govern
persons and property by its municipal law. It includes both the power to prescribe
rules and the power to enforce them. The rules of State jurisdiction identity the
persons and the property within the permissible range of a state’s law and its
procedures for enforcing the law. A State may regulate its jurisdiction by
legislation through its courts or by taking executive or administrative action. Thus
the jurisdiction of a State is not always a co-incident with its territory Case
of KTMS Abdul Cader and others v/s Union of India-1977, the court held that
act has no extra-territorial application and hence the State government has no
power under the Act to pass orders of detention against persons who at the time
when the orders were made were not within India but were out-side its territorial
limits.
STATE JURISDICTION
In general every State has exclusive jurisdiction within its own territory but this
jurisdiction is not absolute because it is subject to certain limitations imposed by
international law. Thus in practice it is not always necessary that a State may
exercise jurisdiction in its territory on the other hand in some circumstances may
exercise jurisdiction outside its territory. Though the relationship between
jurisdiction and sovereignty is close jurisdiction is not co-extensive with State
Sovereignty. Each state has normally jurisdiction over all persons and things
within its territory.
Illustration:-A French armed public ship flying the flag of France was in the
British territorial waters when M, the Cabin boy of the ship committed the
offence of murder by shooting dead D the captain of ship. Both M &D were
British nationals. During the trial that took place that the British courts had no
jurisdiction to try him for the murder committed on board a French cruiser flying
French flag. The defence cannot succeed because he theory that the pubic ship of
a state should be treated to be a floating portion of that state has long been
discarded. Secondly the offence was committed within the territory of Britain.
Thirdly seeking good office of British police and medical aid amounted to a
waiver of the immunity. Thus M could be tried by British court.
The jurisdiction of the nation within its own territory is necessary exclusive and
absolute. It is susceptible of no limitation not imposed by it. In another case
of Vavasseur v/s Krupp-1878, the plaintiff contended that the Japanese Govt.,
has violated his patent rights and therefore he demanded that the delivery of the
goods by it be stopped. But the court had that it had no jurisdiction over the
property of the foreign sovereigns more especially with what we call the public
property of the State of which he is sovereign.
DIPLOMATIC AGENTS
During the Ramayana and Mahabharata period some aspects of International Law
were in their developed stage. Examples of international law relating to
diplomatic agents may be cited in this connection. The permanent appointment of
diplomatic envoys began from the seventeenth centaury. The rights, duties,
immunities and privileges etc., of the diplomatic in 18th. & 19th. Centaury was
mostly in the term of customary rules. The first great landmark was the Congress
of Vienna in 1815, wherein the customary law regarding diplomatic agents was
clarified and codified. The contents of Vienna Convention were adopted finally
in 1961. The Indian Parliament passed the Diplomatic Relations on the basis of
Vienna Convention-1972 to give effect to this convention. This law relating to the
diplomatic and consular affairs remains the strongest section of International
Law. DIFFERENT CLASSES OF DIPLOMATIC AGENTS:-The diplomatic
agents have been classified according to their status and functions. The first
classification of diplomatic agent was made in the Congress of Vienna in- 1815
under which diplomatic agents were classified under the following categories:-
1. Ambassadors and Legates:-These are the first category of diplomatic agents
and are the complete representatives of the sovereignty states. Their designation
is Ambassadors or Permanent Representatives of their respective countries of
U.N. They are appointed by POP.
2. Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic
agents of second category and as compared to the diplomatic agents of the first
category. They enjoy less privileges and immunities.
3. Charge-d affairs: - They are the diplomatic agents of the last category. The
main reason for this is that they are not appointed by the head of State but are
appointed by the Foreign Minister of the State. Their status is considered below
the Minister Resident.
4. Minister Resident: - In the congress of Aix-la-Chappele-1818, this category
was added at category No.3, but it was again dropped by 1961 Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed by
the International Court of Justice on 15.12.79 in a case of United States
Diplomatic and Consular Staff in Tehran: For enabling states irrespective of their
differing constitutional and social systems to achieve mutual understanding. One
of the pillars of modern International Law is the diplomatic immunities of the
Ambassadors. However the following are the immunities and
privileges of the diplomatic agents:-
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.
DEFINE TREATY& ITS RATIFICATION
In case there is an international treaty governing the matter under dispute the
decision of the court is based on the provisions of the treaty. International treaties
occupy the same significant position in the field of international law as the
legislation occupies in the municipal law.
DEFINITION OF TREATY: - International treaty is an agreement between two
or more states under the international law to create mutual relationships.
According to Oppenheim, “International treaties are those agreements between
the states which are of contractual nature and produce legal rights and
obligations.”
According to Starke, “Usually in all cases, the purpose of treaties is to create
binding nature of obligations on the parties to the treaties.”
According to Vienna Convention on treaties-1969, “Treaties and contracts are
document under which two or more states under international law establish or try
to establish their relations.”
CLASSIFICATION OF TREATIES:- One of famous jurist Mc Nair has
classified treaties in the following manner:-
Treaties having the character of conveyance.
Treaty contracts.
Law making treaties: a) Treaties creating constitutional law just as charter of ICJ.
b) Pure law making treaties e.g. labour conventions negotiated by ILO.
Treaties akin to charter of incorporation e.g. treaty by which International Posta
Union -1874 came into existence.
Vattel has classified treaties into four categories i.e. equal, unequal, real and
personal.
Prof.Oppenheim has classified the treaties into two categories:-
2. Law making treaties. 2. Treaties made for other purposes.
HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of binding nature,
the following conditions are to be fulfilled:
Accreditation of persons on behalf of contracting parties:- The intending
parties of treaties should appoint persons as their representatives to negotiate on
their behalf authoritatively for arriving at terms and conditions of a treaty.
Negotiations and adoption:- After due negotiations the terms and conditions of a
treaty are clunched and for its adoption a decision is made by both the parties.
PROCEDURE OF RATIFICATION
Ratification is a very important processes ordinarily the terms and conditions of a

treaty. Treaty does not become enforceable without ratification. The President of
a State or Chief of the Govt. Ratify the signatures of its representatives who
negotiated for arriving at the agreed terms and conditions of a treaty.

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4/13/2018 Law Notes (LL.

B Notes): INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

1. What do you mean by ex acquo ET bonod.

Discuss the sources of International Law Explain them.

important matter to see as to how international custom will be applied in

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

5. Lack in right to intervene in Internal Affairs :- As per article 2(7) of UNO

of correspondence between them. Similarly there are two other case

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

As observed by Prof.G.Schwarznbeer, “De jure recognition is by nature

3. Can institute suit relating to Unrecognised states cannot

2. Define intervention? Under what circumstances intervention by one state

TYPES OF INTERVENTIONS:- It can be accessed from the above view of

2. Collective Intervention:- In Chapter 7 of UNO Charter the Security Council

3. Prescription: - By prescription a territory comes within a State when by

. Short notes on Non State entities or State Succession.

8. State Jurisdiction. What are the exemptions to the territorial Jurisdiction

IMPORTANCE OF NATIONALITY: - i) The right of protection of diplomatic

4.By Renunciation:- It may also be the cause of loss of nationality, when a

to establish their relations.”

enforceable without ratification. The President of a State or Chief of the Govt.

11. What do you understand from the term of Extradition? Is it different

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

1.Ambassadors and Legates:-These are the first category of diplomatic agents

a. Right to worship:-Within the premises of their embassy, envoys are free to

4. Pacific Blockade: - By this method the outer boundary of a State is blocked

independence of any State.

15. Short notes on i) Neutrality ii) Blockade.

a special nature involving a complex of rights and duties and privileges at

16. State briefly the rules of Land and Aerial warfare.

the people against the state.9. Economic Intervention: is done by creating

Relation between International Law and Municipal Law.

Monist view of law is part of philosophy according to which totality is a single

identical with the practice suggested of extended recognition without resuming

Inviolability of the person as envoys: - The diplomatic agents are extended

Ratification is a very important processes ordinarily the terms and conditions of a

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