Chanderprabhu Jain College of Higher Studies School of Law

Chanderprabhu Jain College of Higher Studies
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School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
Class : BALLB Semester 6th
Paper Code : LLB 304
Subject : International Law
Unit-I: Introduction
International law, also called public international law or law of nations, the body
of legal rules, norms, and standards that apply between sovereign states and other
entities that are legally recognized as international actors. The term was coined by
the English philosopher Jeremy Bentham.
International law is the set of rules generally regarded and accepted as binding in
relations between states and between nations. It serves as a framework for the
practice of stable and organized international relations. International law differs
from state-based legal systems in that it is primarily applicable to countries rather
than to private citizens. National law may become international law when treaties
delegate national jurisdiction to supranational tribunals such as the European
Court of Human Rights or the International Criminal Court. Treaties such as the
Geneva Conventions may require national law to conform to respective parts.
Much of international law is consent-based governance. This means that a state

member is not obliged to abide by this type of international law, unless it has
expressly consented to a particular course of conduct.]This is an issue of state
sovereignty. However, other aspects of international law are not consent-based
but still are obligatory upon state and non-state actors such as customary
international law and peremptory norms.
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"Public international law" concerns the relationships between nations. These

include standards of international behavior, the laws of the sea, economic law,
diplomatic law, environmental law, human rights law, and humanitarian law.
Some principles of public international law are written, or "codified" in a series of
treaties, but others are not written down anywhere. These are known as
"customary" laws, and nations consent to them by doing nothing.
Definition of International; Law-

According to Bentham’s classic definition, international law is a collection of
rules governing relations between states.
According to Encarta Encyclopedia, "International Law is principles, rules, and

standards that govern nations and other participants in international affairs in their
relations with one another. In other words, International law is the law of the
international community."
Fenwick says, "It is the body of rules accepted by the general community of
nations, as defining their rights and the means of procedure by, which those rights
may be protected or violations of them redressed.".
a)Nature of International Law

International law, in the puritan form as the term connotes, is the sum of the rules
accepted by civilized states, either explicit or tcitly, as determining their conduct
towards each other’s subjects. It is the body of rules regarded by the nations of the
world as binding on them in their relations with each other, in peace and war, and
comprises the rights and duties of soverign states towards each other. In its broad
sweep and expanding concept and horizon, it governs the relationship of the
people of the world, unbounded by political and geographical constraints, and
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embraces mankind as a whole, irrespective of colour, creed, relation and political

hue.
b) Subjects of Imternational Law
• STATES
The moment an entity becomes a State (see criteria for statehood), it becomes an
international legal person and acquires international legal personality. States are
the original subjects of international law – i.e. international law was created to
regulate relations between States.
• NON-STATE ACTORS
Non-State actors with international legal personality include individuals, armed

groups involved in conflicts (see here, here and here), and international
organizations (see here for the UN and here for the EU).
While it can be confusing, some laws, for example, international humanitarian

law, imposes obligations on all parties to a conflict (even if that party is also
considered as a terrorist group by one or more States) and provides certain
protections for individuals, irrespective of their ideologies or atrocities
committed. For example, it is prohibited to torture or kill an individual in
detention, whoever that individual maybe. Armed groups also have obligations
under international humanitarian law to protect those detained in their custody.
There is still some debate on whether international non-governmental

organizations, ad-hoc coalitions made of States during an armed conflict (as
opposed to individual States), and multinational companies are, or should also be
considered as, subjects of international law.
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• INTERNATIONAL ORGANIZATIONS
An international organization is defined as “an organization (1) established by a

treaty or other instrument (2) governed by international law and (3) possessing its
own international legal personality. International organizations (4) may include
as members, in addition to States, other entities.” (A. 2 (a) Articles on the
responsibility of international organizations). The United Nations and the World
Trade Organization are examples of international organizations.
• INDIVIDUAL
Individuals have become limited subjects in international law because they have
certain obligations, the violation of which directly implies international criminal
responsibility. Although an International Criminal Code does not exist yet, a
systematisation of the crimes is included in the Rome Statute of the International
Criminal Court, which covers, however, only the domain of international crimes.
In order for conventional incrimination to be part of the general international law,
the universalization of the treaty is of absolute necessity.
c) International law and Municipal law-

In principle, international law operates only at the international level and not
within domestic legal systems—a perspective consistent with positivism, which
recognizes international law and municipal law as distinct and independent
systems. Conversely, advocates of natural law maintain that municipal and
international law form a single legal system, an approach sometimes referred to as
monism. Such a system, according to monists, may arise either out of a unified
ethical approach emphasizing universal human rights or out of a formalistic,
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hierarchical approach positing the existence of one fundamental norm

underpinning both international law and municipal law.
A principle recognized both in international case law (e.g., the Alabama claims
case between the United States and the United Kingdom following the American
Civil War) and in treaties (e.g., Article 27 of the 1969 Vienna Convention on the
Law of Treaties) is that no municipal rule may be relied upon as a justification for
violating international law. The position of international law within municipal law
is more complex and depends upon a country’s domestic legislation. In particular,
treaties must be distinguished from customary international law. Treaties are
written agreements that are signed and ratified by the parties and binding on them.
Customary international law consists of those rules that have arisen as a
consequence of practices engaged in by states.
The Constitution of the United States stipulates (Article VI, Section 2) that
treaties “shall be the supreme Law of the Land.” Treaties are negotiated by the
president but can be ratified only with the approval of two-thirds of the Senate
(Article II)—except in the case of executive agreements, which are made by the
president on his own authority. Further, a treaty may be either self-executing or
non-self-executing, depending upon whether domestic legislation must be enacted
in order for the treaty to enter into force. In the United States, self-executing
treaties apply directly as part of the supreme law of the land without the need for
further action. Whether a treaty is deemed to be self-executing depends upon the
intention of the signatories and the interpretation of the courts. In Sei Fujii v. State
of California (1952), for example, the California Supreme Court held that the UN
Charter was not self-executing because its relevant principles concerning human
rights lacked the mandatory quality and certainty required to create justiciable
rights for private persons upon its ratification; since then the ruling has been
consistently applied by other courts in the United States. In contrast, customary
international law was interpreted as part of federal law in the Paquette Habana
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case (1900), in which the U.S. Supreme Court ruled that international law forbade
the U.S. Navy from selling, as prizes of war, Cuban fishing vessels it had seized.
Domestic legislation is supreme in the United States even if it breaches
international law, though the government may be held liable for such a breach at
the international level. In order to mitigate such a possibility, there is a
presumption that the U.S. Congress will not legislate contrary to the country’s
international obligations.
d) Codification of International Law

Codification of International Law is as important as codification of any other law.
However, codification of International Law has some unique features because it
provides:
• Harmonization and co-ordination of various municipal laws to uniform
statues as far as practicable.
• Arranging the existing customary international law in a systematic process
• Includes all conventions, treaties, charters etc.
The process of codification of International Law began in 18th century when the
Declaration of Paris, 1856 was signed by 7 countries. It was followed by the
Hague Conference, first in 1899 and later in 1907.
Advantages
• Brings law into shape and avoids confusion
• Preserves customs. Because preserving laws means preserving customs
• Unification of laws of the world
• Avoids conflict between judiciary and executive
Disadvantages
• Codified laws are rigid
• Moves away from individuality and might effect sentiments, customs and
traditions etc.
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• Wrong-doers can take advantage of codified law because they come to

know of ways of avoiding provisions of law
• Disturbs citizen rights at times
• Codified law is never complete. It is always constantly evolving.
Unit-2 Sources Of International Law

Article 38 (1) of the ICJ’s statute identifies three sources of international law:
treaties, custom, and general principles. Because the system of international law is
horizontal and decentralized, the creation of international laws is inevitably more
complicated than the creation of laws in domestic systems.
a) Treaties
Treaties are known by a variety of terms—conventions, agreements, pacts,

general acts, charters, and covenants—all of which signify written instruments in
which the participants (usually but not always states) agree to be bound by the
negotiated terms. Some agreements are governed by municipal law (e.g.,
commercial accords between states and international enterprises), in which case
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international law is inapplicable. Informal, nonbinding political statements or

declarations are excluded from the category of treaties.
Treaties may be bilateral or multilateral. Treaties with a number of parties are

more likely to have international significance, though many of the most important
treaties (e.g., those emanating from Strategic Arms Limitation Talks) have been
bilateral. A number of contemporary treaties, such as the Geneva Conventions
(1949) and the Law of the Sea treaty (1982; formally the United Nations
Convention on the Law of the Sea), have more than 150 parties to them, reflecting
both their importance and the evolution of the treaty as a method of general
legislation in international law. Other significant treaties include the Convention
on the Prevention and Punishment of the Crime of Genocide (1948), the Vienna
Convention on Diplomatic Relations (1961), the Antarctic Treaty (1959), and the
Rome Statute establishing the International Criminal Court (1998). Whereas some
treaties create international organizations and provide their constitutions (e.g., the
UN Charter of 1945), others deal with more mundane issues (e.g., visa
regulations, travel arrangements, and bilateral economic assistance).
Countries that do not sign and ratify a treaty are not bound by its provisions.
Nevertheless, treaty provisions may form the basis of an international custom in
certain circumstances, provided that the provision in question is capable of such
generalization or is “of a fundamentally norm-creating character,” as the ICJ
termed the process in the North Sea Continental Shelf cases (1969). A treaty is
based on the consent of the parties to it, is binding, and must be executed in good
faith. The concept known by the Latin formula pacta sunt servanda (“agreements
must be kept”) is arguably the oldest principle of international law. Without such
a rule, no international agreement would be binding or enforceable. Pacta sunt
servanda is directly referred to in many international agreements governing
treaties, including the Vienna Convention on the Law of Treaties (1969), which
concerns treaties between states, and the Vienna Convention on the Law of
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Treaties Between States and International Organizations or Between International

Organizations (1986).
There is no prescribed form or procedure for making or concluding treaties. They

may be drafted between heads of state or between government departments. The
most crucial element in the conclusion of a treaty is the signaling of the state’s
consent, which may be done by signature, an exchange of instruments,
ratification, or accession. Ratification is the usual method of declaring consent—
unless the agreement is a low-level one, in which case a signature is usually
sufficient. Ratification procedures vary, depending on the country’s constitutional
structure.
Treaties may allow signatories to opt out of a particular provision, a tactic that
enables countries that accept the basic principles of a treaty to become a party to it
even though they may have concerns about peripheral issues. These concerns are
referred to as “reservations,” which are distinguished from interpretative
declarations, which have no binding effect. States may make reservations to a
treaty where the treaty does not prevent doing so and provided that the reservation
is not incompatible with the treaty’s object and purpose. Other states may accept
or object to such reservations. In the former case, the treaty as modified by the
terms of the reservations comes into force between the states concerned. In the
latter case, the treaty comes into force between the states concerned except for the
provisions to which the reservations relate and to the extent of the reservations.
An obvious defect of this system is that each government determines whether the
reservations are permissible, and there can be disagreement regarding the legal
consequences if a reservation is deemed impermissible.
A set of rules to interpret treaties has evolved. A treaty is expected to be

interpreted in good faith and in accordance with the ordinary meanings of its
terms, given the context, object, and purpose of the treaty. Supplementary means
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of interpretation, including the use of travaux préparatoires (French: “preparatory

works”) and consideration of the circumstances surrounding the conclusion of the
treaty, may be used when the treaty’s text is ambiguous. In certain cases, a more
flexible method of treaty interpretation, based on the principle of effectiveness
(i.e., an interpretation that would not allow the provision in question to be
rendered useless) coupled with a broader-purposes approach (i.e., taking into
account the basic purposes of the treaty in interpreting a particular provision), has
been adopted. Where the treaty is also the constitutional document of an
international organization, a more programmatic or purpose-oriented approach is
used in order to assist the organization in coping with change. A purpose-oriented
approach also has been deemed appropriate for what have been described as
“living instruments,” such as human rights treaties that establish an
implementation system; in the case of the European Convention on Human Rights
of 1950, this approach has allowed the criminalization of homosexuality to be
regarded as a violation of human rights in the contemporary period despite the
fact that it was the norm when the treaty itself was signed.
Treaty may be terminated or suspended in accordance with one of its provisions

or by the consent of the parties. If neither is the case, other provisions may
become relevant. If a material breach of a bilateral treaty occurs, the innocent
party may invoke that breach as a ground for terminating the treaty or suspending
its operation. The termination of multilateral treaties is more complex. By
unanimous agreement, all the parties may terminate or suspend the treaty in whole
or in part, and a party specially affected by a breach may suspend the agreement
between itself and the defaulting state. Any other party may suspend either the
entire agreement or part of it in cases where the treaty is such that a material
breach will radically change the position of every party with regard to its
obligations under the treaty. The ICJ, for example, issued an advisory opinion in
1971 that regarded as legitimate the General Assembly’s termination of the
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mandate for South West Africa. A breach of a treaty is generally regarded as

material if there is an impermissible repudiation of the treaty or if there is a
violation of a provision essential to the treaty’s object or purpose.
The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates that,
where there has been a fundamental change of circumstances, a party may
withdraw from or terminate the treaty in question. An obvious example would be
one in which a relevant island has become submerged. A fundamental change of
circumstances, however, is not sufficient for termination or withdrawal unless the
existence of the original circumstances was an essential basis of the consent of the
parties to be bound by the treaty and the change radically transforms the extent of
obligations still to be performed. This exception does not apply if the treaty
establishes a boundary or if the fundamental change is the result of a breach by
the party invoking it of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
b) Customs
The important elements here are state practice, the tenacity and acceptance of
such practice as law, also known as ‘opinio juris.' Customary law may not be as
‘visible' as treaty.‘ it represents the essential basis upon which modern human
rights is grounded'.Custom is regarded as a form of ‘tacit agreement', the
behaviours of states to each other in an acceptable way leads to tacit accent to the
acceptable behaviour. The problem of this view is that if agreement kicks it on,
absence of agreement can kick it off.customary law emanates as law from practice
of states .Dixon refers to it as the ‘foundation stones of the modern law of nations'
and this was backed up in the Gulf of Maine case that custom is the ideal right
size for the general principles and always on ground to fill the vacuum any time
obligation and law of treaties are not gaining global acceptance.
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Customary law can change on the principle of ‘apprehension' and ‘acquiescence'

but that does not mean customary law is not a strong rule of law, the process of
customary law continuously is a good omen to international law because it can
meet up with the timely needs of international law as the world and law develop,
though, it may have its own disadvantages of more relaxed and slow formation
process, it lacks certainty and visibility unlike treaty. It has advantage as regards
to its variety of wide scopes in similarities with state activities. Treaty has
advantage where custom has disadvantage, they are like twin pillars ready to work
together in other to strengthen the sources of international law. Hugh said, ‘the
way things have always been done becomes the way things must be done rules,
international law does not deviate from the pattern discernible in municipal legal
systems.
State practice as one of the elements of customary law, it is a continuous and

constant state practice of international acts over a period of time, Governmental
actions, rulemakings and execution of policies, governmental declaration and
pronouncement, administrative procedures and policies within states constitute
good links and sources of state practice.
In Assylum case (Colombia v Peru), to form customary law, it must be ‘in

accordance with a constant and uniform usage practised by states in question'.This
was stated in Fisheries case(United Kingdom V Norway).The ‘uniformity' and
‘consistency' test is ‘general practice' and not a ‘universal practice' and ‘practice
of most influential and powerful states would carry the greatest weight',deducing
from the above, it doesn't mean all states participation in the practice. ‘Once a
practice is established as forming part of customary International law', all states
are bound including states and the new states that failed to contribute to the
practice initially.Nevertheless, we can not rule out the ‘opt out' possibility for the
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‘persistent objectors' at the formative stage of the law, as Thirlway put it, ‘an
attractive option' which will disallow the imposition of specific rule by the
majority over the minority., it has been deeply criticised in international law, as a
result of this, the practice is as stated earlier, states are bound as a general rule
either as ‘objectors' or not.
Consistency of state practice as another element is significant to the alteration of

an existing custom. In Lotus case, the court said customs must be ‘constant and
uniform'. It must not be ‘totally uniform and constant'; it must at least be
significantly constant state practice to become customary international law. Also,
it is well stated in Anglo-Norwegian Fisheries casethat the consistency required
may vary in degree based on circumstance.
Generality of Practice as another element in customary law is about the

knowledge of the Custom, to significant number of states. It is a general adoption
of practice by state, in North Sea Continental Shelf Cases, it may be difficult to
determine the number of state to participate in international law before a general
practice can become law because it is not about majority of votes cast, the degree
depends on the various subject matters.
Opinio juris is the second element broadly considered necessary for the formation
of customary international law with state practice, Opinio juris which constitute
‘subjective element'(verbal act) while state practice is the ‘objective
element'(behavioural act) and this was well articulated by Kammerhofer in his
article that verbal act can form a practice with their content forming ‘expression
of the subjective element', a statement of an act and that ‘subjective element may
be dominant factor in the behavioural act itself'. Dixion however holds that ‘state
practice must be accompanied by a belief that the practice is obligatory, the belief
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in the obligatory nature of the practice is called the opinio juris' but ICJ on several
occasion refer to opinio juris as having equal footing with ‘state practice' in
Continental shelf case(Libyan Arab Jamahinya V Malta) and legality of Nuclear
Weapons Advisory Opinion .Also in Lotus case ,opinio juris was seen as essential
element of customary international law and this was affirmed in North Sea
Continental Shelf Cases but the judges however held that opinio juris can not be
implied from repeated activities, this made the proof of opinio juris difficult but
the dissenting judges in the case realized the difficulty when they held otherwise
in their minority judgement, its proof however depends on the subject matter, thus
attainment of rule to jus cogen status required strong evidence of opinio juris
apart from the fact of consistence state practice. In Nicaragua case where state
practice and opinio juris was alluded to arrive at a conclusion that use of force had
attained the status of customary rule of jus cogen before the advent of UN charter
of 1945.The time element and duration of customary law varies.
The comparison of treaty with customary law is important because they are the
two major sources of international law, the Nicaragua case mentioned briefly
above affirmed the complementary relationship between treaty and international
custom. It also shows that treaty may codify International custom and treaty may
also revert to international custom if the treaty is abandoned by states. They are
interrelated though there may be conflict where the interrelated part tends toward
different obligations; ICJ may resolve the conflict depending on the stronger
obligation. In the Nicaragua case, customary law will not cease to bind because it
has been codified by treaty. Parties to treaty will be bound by it and the non-
parties will be bound by custom. if treaty falls away, customary law will take over
but where there is conflict, if treaty is latter than custom, it will prevail, this is
based on common principle of law and more so that treaty is a deliberate ‘act of
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law creation'where custom is latter than treaty, the treaty will still prevail on
parties.
c) General Principle Of Law:
This is unclear and controversial area of the source. Positivist earlier rejected this
principle because it did not conform to state will and consent like treaty and
custom, but they latter accepted it; provided it is accepted as part of state legal
order. ‘The general principles of law recognised by civilized nations' as a source
tend towards exclusion of uncivilized nations. Naturalist believes it tends to
incorporate natural law into international law, they believe law exist before any
law whether treaty or custom, this differs from positive law. It is apparently
conspicuous that paragraph 1(c) added nothing to the sources which treaty and
custom had taken care of and due to this ICJ barely invoke it, it gradually went
into oblivion and remain dormant until it appeared that new areas of international
law had gap and the rule was revitalized and applied to area like international
criminal law and international administrative law, recourse can be made to the
general principle of law common to all ‘major legal systems of members of the
community of nations', if treaty and custom had been exhausted with gap,that is,
estoppels, equity, and so on .Judge McNair in the ‘International Status of South
West Africa Case said that national law can be a pointer to the type of rules that
might be of assistance in international law like ‘the concept of limited liability' in
Barcelona Traction case.Whether procedural, administrative, or substantive rules,
they can be imported to international law, it however need no treaty or custom for
its validation. it is well settled that concepts have ‘pre-existing legal validity'.This
principle tend more to dualistic doctrine.
Principle of equity is applicable to international Tribunals that is general

principles of equity and fairness within the scope of paragraph 1(c).it applies in
decisions according to law and not by abstractness outside law like ex aequo et
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bono in Article 38(2),example of equitable principle applied are acquiescence and

estoppels in River Meuse case. Paragraph 1(c) may include ‘general principles of
International law' which are similar to principle in National legal system.In
general, treaty and custom growth and intensity have reduced the weight of
general principle of law as the source of international law.
d) Judicial Decisions
Article 38(1) d ‘shall apply subject to the provisions of Article 59,Judicial

decisions…' and Article 59 of the ICJ statutes states that the court decisions have
‘no binding force except between the parties and in respect of that particular case'.
Judicial decisions are material area of Sources of law. Though, there may be no
stare decisis as stated in Article 59, recourse can still be made by court to its past
decisions res judicata and advisory opinion to substantiate current case as
authoritative evidence of legal position, for example, in Nauru case,the principle
of Nicaragua case were relied upon to reach the majority decisions. Also, judicial
decisions constitute much of the source of ‘international maritime law' and ‘it is
clear that the ICJ pays great regard to both the actual decisions it has reached in
previous cases and to the law it has declared therein'. It is submitted that ICJ
participates in law making process through case law, judges' rule and advisory
opinion in breaking new area of international law. Dixon confirmed this by saying
‘The attempt to protect state sovereignty by limiting the functions of the ICJ and
ICC to one of simple adjudication rather than law creation largely has
failed'.Antonio also said ‘ICJ has gone so far as, in fact , to set new international
rule in spite of its aforementioned lack of formal power to do so' Writing of
Publicists which paragraph1 (d) refers to as ‘subsidiary means'. Arbitral tribunals
and national courts consult writing of publicist while international court make
little use of ‘doctrine' but where the writing of publicist is productive is the draft
article, reports and secretariat memorandum produced by the International Law
Commission and Resolution of the Institute of International Law Commission and
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that of the Institute of International Law. Nowadays the opinion of writers has
become less important since states now express themselves well through organs
of UN and most importantly that writers are subjective in their writings due to
opinionated reasons.
Unit-3- Recognition, Extradition and the Law of the Sea
a) RECOGNITION
According to International Law, Recognition is the formal acknowledgment of the
status of an independent State by other existing states.
Every State has to have some essential features, called attributes of statehood, in
order for other States to recognize the State as independent.
States are considered as the principal persons in International Law.
The recognition of a state is often a political act of a state.
Recognition is not a conclusive proof of the existence of the state.

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Theories of Recognition
Recognition of a State is more of a political concept than a legal concept because

there are no specific rules for recognition of a State.
There are two popular theories laid down for the purpose of understanding the
nature of recognition:
• Constitutive Theory
• Declarative or Evidentiary Theory
Constitutive Theory
According to this theory, recognition is a necessary condition for statehood and

personality. It is a process by which a political community acquires personality
and becomes a member of the family of nations. A State comes into existence
through recognition only and exclusively.
Examples:Poland and Czechoslovakia were recognized by the instrumentality of

the Treaty of Versailles.
Germany was divided into two parts after the World War II by a treaty
Korea was divided into two parts
Disadvantages of the theory
Recognition is political and diplomatic but not legal. This theory imposes an
obligation on all member states to recognize a State. Practically, no states wants
to do something on obligation.
There is no law the obliges established states to recognize new States.

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Recognition of a State can be done by few States and others might refuse.
According to this theory, the recognition should be done by all the States.
Palestine is recognized as country by 80 nations thought it does not have a

definite territory, population and a definite Government.
Isreal is formed in 1947 by the United Nations Organization. Within few hours,
many countries too recognized it. However, India recognized it in 1992.
Declarative Theory or Evidentiary Theory
This theory states that declaration is a mere formality and has no legal effect as
the existence of a State is a mere question of fact.
Every new state becomes a member of the family of nations ipso facto by its
coming into existence. Recognition only provides the evidence to this fact. This
theory says recognition is not important.
Disadvantages
The theory fails to explain legal rights and consequent of a recognized state.
Example: Taiwan is a democratic country and is adjoining areas where Chinese

territory. Only few countries recognize Taiwan yet it had business dealings with
almost every country.
Forms of Recognition
Express Recognition
An existing state recognizes another state by releasing a public statement by way

of notification or a declaration announcing the intention of recognition
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Grant is expressed in written words
Implied Recognition
Does not release a formal state but recognizes the state by some acts which imply
that the state is being recognized.
Unilateral Acts
State entering into bilateral treaty establishes diplomatic relations with an

unrecognized state.
Collective Acts
A new state is recognized collectively by the existing states.
Modes of Recognition
There are two important modes of recognition:
De Facto Recognition
This is a provision recognition and not a permanent one. i.e it can be withdrawn
by other States at any time. It is the first step towards becoming a recognized
country. Recognition is only by fact and not legal. State may have more than one
Governments. No exchange of diplomatic representatives takes places. State
succession might not happen. Mere de facto recognition is not sufficient to get
UN membership.Example: Israel, Bangladesh, Taiwan, Sahawi Arab Republic
etc.
De Jure Recognition
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This is a permanent recognition which one granted cannot be taken back or

withdrawn by other States. It is regal and rightful. State will have only one
Governments. Exchange of diplomatic representatives takes places. State
succession happens smoothly. de jure recognition by majority states his essential
for UN membership.
Withdrawal of recognition
A state may withdraw diplomatic recognition of another state, or simply refuse to
deal with that other country, after withdrawing from all diplomatic relations with
that country, such as embassies and consulates, and requiring the other country to
do the same. The state will appoint a protecting power to represent its interests in
the other state.
The doctrine of non-recognition of illegal or immoral situations, like territorial

gains achieved by force, is called the Stimson Doctrine, and has become more
important since the Second World War, especially in the United Nations where it
is a method of ensuring compliance with international law – for instance, in the
case of Rhodesia in 1965. Withdrawal of recognition of a government is a more
severe act of disapproval than the breaking of diplomatic relations.
2. Extradition and Asylum
EXTRADITION-
Extradition is the conventional process in which a person is surrendered by one
state to another on the basis of a treaty, or comity, or some bilateral arrangement
between the two sovereign states. This request of extradition made by a sovereign
state is usually initiated at first place because the individual demanded by the state
is charged with a crime but not tried, or tried and convicted yet the accused
escaped and reached the territory of the other sovereign state.
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This process is also known as Rendition, which is handing over or surrendering of

a convicted person or accused from one state jurisdiction to another where the
accused is alleged to have committed a crime.
According to the norms of the International Law, there is a lack of a binding

obligation on a state to surrender the accused demanded by another foreign state
because the law upholds the principle of sovereignty which is about the right and
full authority of the state over itself and its subjects without any intervention from
foreign bodies.
In Black’s Law Dictionary, extradition has been defined as “The surrender by one
state or Country to another of an individual accused or convicted of an offense
outside its own territory and within the territorial jurisdiction of the other, which,
being competent to try and punish him, demands the surrender.” Hence it can be
summarised that Extradition is the act of sending a person from one jurisdiction to
another where he/she is accused of committing a crime and is being demanded to
get them tried as per the legal procedure in the sovereign demanding such person.
The purpose of extradition is to make sure that criminals are surrendered from one
country to another which leads to mutual cooperation between states in control,
prevention, and suppression of international and domestic criminality. At present
in this era of globalization, where certain groups and individuals are conducting
trade and business by various means and channels at an unprecedented manner,
most of the crimes have become cross-border in nature & thus the obligation on
part of the states to extradite has gained enough significance and value over the
years.
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In the Supreme Court case of Abu Salem Abdul Qayoom Ansari vs. State of
Maharashtra [(2011) 11 SCC 214], Justice Sathasivam was of the view that with
the tremendous increase in the international transport and communication,
extradition has taken prominence since the emergence of the 21st century.
LEGAL STATUS OF EXTRADITION: FROM INDIAN &

INTERNATIONAL LAW PERSPECTIVE
As per the Indian Law, the extradition of an escapee or fugitive from India to
another nation or vice versa is dealt by the rules laid down in the Extradition Act,
1962. This law forms the legislative basis for extradition in India. The Extradition
act deals with two schedules and five chapters. The Government of India till date
has entered into Bilateral Extradition treaties with 42 countries to make the
extradition process efficient and hassle-free.
The term Extradition Treaty is defined as per Section 2(d) of the Extradition Act
which explains it as, “a treaty, agreement or arrangement with a foreign state in
the relation of extradition of fugitive criminals”.
Apart from this, our country has entered into extradition arrangement with 9
countries as well. Extradition request can be made by India to any country. The
countries with which India has a treaty have the obligation to consider the request
due to the treaty between the two countries.
In other cases where there is non-existence of a treaty, the foreign country may or
may not accept the request and may subject it as per their domestic procedure and
law.
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Hence the obligation for extraditing is due to the treaties and arrangement entered
into by India with other nations. It needs to be understood that an Extradition is a
sovereign act and in cases where there is no treaty and absence of international
duty between the two sovereign states, any sort of extradition activity is
dependent upon the ideas of reciprocity and comity which are an essential part of
the International principles of amicable cooperation between states or nations.
As per Section 3 of the Extradition Act, the government can issue a notification to
extend the notifications of the act to the notified countries. The act further defines
the ambit of what Extradition offenses are and who can be extradited as per
Section 2(c) and Section 2(f) respectively.
As per the International Law conventions, a state is not under a binding obligation
to surrender a fugitive to another sovereign state. There is no duty as such
imposed by the International law on the states to extradite. Although there are
certain basic principles governing the extradition process which are accepted and
followed by several nations.
ASYLUM-
Asylum is a Latin word and it derives its origin from a Greek word “Asylia”
meaning inviolable place. The term asylum in common parlance means giving
protection and immunity by a state to an individual from their native country. In
day to day conversation, the term asylum is used interchangeably with the term
refugee, there is difference between the two procedurally where a person who is
still overseas seeks protection from a nation when given patronage after reaching
there is given the title of a refugee whereas in asylum the person seeks the
protection from a nation after reaching there and hence is known as asylee or
asylum seeker.
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Asylum is interpreted as a place of protection or refuge for a fugitive where

he/she is given protection from trial and pursuit from their home country or to
provide protection to a foreign citizen by a state against his own government. The
main purpose of asylum is to give shelter to those who have well-rounded fear in
their home countries of persecution. The Universal Declaration of Human Rights
under article 14 (1), provides that “Everyone has the right to seek and to enjoy in
other countries asylum from persecution”.
The idea of Asylum remains that of personal immunity from authoritative steps of
a decision maker than that of jurisdictional authority under whose power it falls.
There are mainly two forms of Asylum:
(1) Territorial Asylum:
It is granted in the territorial boundary of a state providing asylum. Every

sovereign state has the right to control and maintain jurisdiction on its territory,
hence the decision to extradite someone or give them asylum is totally under its
discretion. Thus a state has territorial sovereignty over all its subjects and aliens.
This form of asylum is mainly given to people who have been accused of political
offenses like sedition, treason, and espionage in their home country. Territorial
asylum is based mainly on the national law of the sovereign.
(2) Extra-territorial Asylum:
This form of asylum is usually granted by a state beyond its state territory and
usually at places which are not a part of its physical territory. In such case, a state
providing asylum in its embassy established in a foreign state is called Diplomatic
Asylum. Asylum may also be granted to asylee in Warships because they are
exempted from the jurisdiction of the foreign state in whose water it is operating.
Such warships are under the patronage of the Flag state. The same is not the case
with merchant’s vessels as they are not immune to the provisions of international
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law. Hence, Extra-territorial Asylum is based on the framework of International

Law Conventions.
The contemporary reasoning or rationale behind asylum must be understood via

Rationae Materiae (Jurisdiction over subject matter) and Rationae Personae
(Jurisdiction over a person). A sovereign state has the right to exclude the
involvement or interference by another sovereign over its territory. This principle
of sovereignty forms the basis for Territorial Asylum and by the very nature of
this principle, it finds its extension to consulates, embassies, vessels, aircrafts
belonging to the sovereign state.
In recent times, we have seen high profile individuals like Julian Assange and
Edward Snowden seeking asylum under Ecuador and Russia respectively. In case
if Julian Assange, the founder of WikiLeaks organization, he sought
extraterritorial asylum under Ecuadorian Embassy after his extradition was
approved by the UK to Sweden. Whereas, Edward Snowden after exposing NSA
illegal spying program sought refuge under territorial asylum after entering the
territory of Russia.
Rationae Personae explains that certain individuals due to immunity granted to

them due to their position or capacity, are not under the jurisdictional control of a
state which would otherwise have exercised jurisdiction over them due to
territorial sovereignty. This form of special immunity is applicable to Diplomats,
Heads of State, government officials on a certain mission etc.
LEGAL STATUS OF ASYLUM: NATIONAL AND INTERNATIONAL

LEVEL
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National and International law are the only two forms which support and govern
the practice of Asylum. India which is home to one of the largest refugee
population in South Asia has no specific law dealing with the issue of asylum and
is yet to enact one.
Refugee and asylum seekers in India are subject to various non-specific laws like
The Registration of Foreigners Act, 1939, The Foreigners Act, 1946, Foreigners
Order, 1948, and Passport Act, 1920. There is no mention of the term ‘refugee’ in
any of the National laws and asylum seeker and refugees in India are subject to
the definition of ‘Foreigner’ as a person who is not a citizen of India as per the
laws mentioned above. These laws are used by the Indian government officials in
order to deal with the intricacies arising out of the entry of refugees and asylum
seekers in our country. Since there is no specific asylum policy in India, the
government grants asylum on a case-to-case basis.
Congress MP Shashi Tharoor in the year 2015 introduced the Asylum Bill, 2015
which aimed to provide a legal basis to the issue of asylum in India. The bill is
still pending and is yet to be taken up by the parliamentarians for consideration
and evaluation.
In the International sphere, the body of laws governing Asylum are the 1951
United Nations Refugee Convention signed in Geneva and supplemented by its
1967 New York Protocol. The Geneva Convention along with the New York
Protocol is considered as the Cornerstone of the International legal regime
towards the protection and security of Refugees. The Convention Relating to the
Status of Refugees, or 1951 Refugee Convention, is a UN treaty defining who a
refugee is and sets out rights for the asylum seekers and the duties of the nation’s
granting it.
Overall this treaty governs how states allowing asylum seeker and refugees in
their territory should treat these people. India is not a signatory to the 1951
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Refugee Convention and its 1967 Protocol. Asylum is considered an International

practice based on Human Rights which take the shape as a customary law with
time because once it is found in some of the practices of the state without any
legal basis, it creates an international obligation on the state to uphold this
customary practice.
CORRELATION BETWEEN EXTRADITION AND ASYLUM
Extradition is mainly the surrendering of a fugitive by one state to another for the
intention of criminal prosecution. This is a way of providing legal assistance
between two sovereign states on the basis of some bilateral treaty or ad hoc
agreement. Asylum, on the other hand, is about offering protection to those at risk
of the legal framework operating in their home country. It is at times said that
asylum ends where extradition initiates. Both of them are not identical and have
procedural and functional differences which have evolved with time.
Extradition aims at securing criminal justice and denying safe haven to fugitive
leading to a stable transnational criminal cooperation between the sovereign
states. Whereas Asylum seeks to provide a safe and secure living for individuals
on the run from their home country in order to avoid political persecution.
Granting asylum is clearly distinguished from the order to refuse extradition even
though the two can be intertwined at times because there can arise two
possibilities where a person’s extradition might be sought when they are an asylee
or they may apply for asylum at a time when they are being asked to extradite by
their home country.
Any extradition request made to a state for an asylum seeker must be in

compliance with the principle of non-refoulement in International law enshrined
under article 33 of the 1951 Geneva Convention. The decision to extradite is left
with the judicial authorities and the issue of asylum is dealt by the executive
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decision on practical and political grounds most of the times. These concepts are
conflicting in nature and are not mirror image of one another which strive for their
different goals and ideals. A request for asylum cannot be considered if there is an
extradition case pending and the court of law, would not hear extradition case
against an individual granted asylum in their country.
3. LAW OF THE SEA

Law of the Sea is a body of international law that concerns the principles and
rules by which public entities, especially states, interact in maritime matters,[1]
including navigational rights, sea mineral rights, and coastal waters jurisdiction. It
is the public law counterpart to admiralty law, which concerns private maritime
intercourse. The United Nations Convention on the Law of the Sea, or
"UNCLOS", concluded in 1982 and put into force in 1994, is generally accepted
as a codification of customary international law of the sea.
Disputes are resolved at the International Tribunal for the Law of the Sea (or
"ITLOS"), a court in Hamburg. In 2017, ITLOS celebrated 20 years of existence,
during which time it had settled some 25 cases. The Tribunal has jurisdiction over
all disputes concerning the interpretation or application of the Convention, subject
to the provisions of article 297 and to the declarations made in accordance with
article 298 of the Convention. The judge are derived from a wide variety of
nations
With many people worldwide now turning their eyes to an ocean in peril, the Law
of the Sea convention turned into a global diplomatic effort to create a basis of
laws and principles for all nations to follow concerning the sea and everything it
held. The result: A 1982 oceanic constitution, called the United Nations
Convention on the Law of the Sea. Between New York, USA and Geneva,
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Switzerland, ambassadors from 165+ countries sat down to trade and barter for
their nations' rights.
a) Terretorial Waters
Territorial waters, in international law, that area of the sea immediately adjacent
to the shores of a state and subject to the territorial jurisdiction of that state.
Territorial waters are thus to be distinguished on the one hand from the high seas,
which are common to all countries, and on the other from internal or inland
waters, such as lakes wholly surrounded by the national territory or certain bays
or estuaries.
Historically, the concept of territorial waters originated in the controversy over

the status of the sea in the formative period of modern international law in the
17th century. Although the doctrine that the sea by its nature must be free to all
was eventually upheld, most commentators did recognize that, as a practical
matter, a coastal state needed to exercise some jurisdiction in the waters adjacent
to its shores. Two different concepts developed—that the area of jurisdiction
should be limited to cannon-shot range, and that the area should be a much greater
belt of uniform width adjacent to the coast—and in the late 18th century these
concepts coalesced in a compromise view that proposed a fixed limit of 3 nautical
miles (1 marine league, or 3.45 statute miles [5.5 km]). In 1793 the United States
adopted three miles for neutrality purposes, but although many other maritime
states during the 19th century came to recognize the same limit, it never won such
universal acceptance as to become an undisputed rule of international law.
In the course of this historical development, it became settled that the belt of
territorial waters, together with the seabed and subsoil beneath it and the airspace
above, is under the sovereignty of the coastal state. This sovereignty is qualified
only by a right of innocent passage—that is, peaceful transit not prejudicial to the
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good order or security of the coastal state—for merchant vessels of other nations.
The right of innocent passage does not apply to submerged submarines or to
aircraft, nor does it include a right to fish.
On the width of the belt there has developed no universal agreement except that
every state is entitled to a minimum of three nautical miles. Claims in excess of
12 nautical miles (22 km) commonly meet widespread opposition from other
states, though in the 1960s and ’70s a trend to a 12-nautical-mile limit was
evident; among about 40 states taking this view were China, India, Mexico,
Pakistan, Egypt, and the Soviet Union.
b) Contiguous zone
The contiguous zone is a band of water extending farther from the outer edge of
the territorial sea to up to 24 nautical miles (44.4 km; 27.6 mi) from the baseline,
within which a state can exert limited control for the purpose of preventing or
punishing "infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea". This will typically be 12 nautical
miles (22 km; 14 mi) wide, but could be more (if a state has chosen to claim a
territorial sea of less than 12 nautical miles), or less, if it would otherwise overlap
another state's contiguous zone. However, unlike the territorial sea, there is no
standard rule for resolving such conflicts and the states in question must negotiate
their own compromise. The United States invoked a contiguous zone out to 24
nmi from the baseline on 29 September 1999.
c) Exclusive economic zone

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An exclusive economic zone extends from the baseline to a maximum of 200

nautical miles (370.4 km; 230.2 mi) , thus it includes the contiguous zone.A
coastal nation has control of all economic resources within its exclusive economic
zone, including fishing, mining, oil exploration, and any pollution of those
resources. However, it cannot prohibit passage or loitering above, on, or under the
surface of the sea that is in compliance with the laws and regulations adopted by
the coastal State in accordance with the provisions of the UN Convention, within
that portion of its exclusive economic zone beyond its territorial sea. Before the
United Nations Convention on the Law of the Sea of 1982, coastal nations
arbitrarily extended their territorial waters in an effort to control activities which
are now regulated by the exclusive economic zone, such as offshore oil
exploration or fishing rights. Indeed, the exclusive economic zone is still
popularly, though erroneously, called a coastal nation's territorial waters.
d) Continental shelf
Article 76 gives the legal definition of continental shelf of coastal countries. The
continental shelf of a coastal nation extends out to the outer edge of the
continental margin but at least 200 nautical miles (370 km; 230 mi) from the
baselines of the territorial sea if the continental margin does not stretch that far.
Coastal states have the right of exploration and exploitation of the seabed and the
natural resources that lie on or beneath it, however other states may lay cables and
pipelines if they are authorised by the coastal state. The outer limit of a country's
continental shelf shall not stretch beyond 350 nautical miles (650 km; 400 mi) of
the baseline, or beyond 100 nautical miles (190 km; 120 mi) from the 2,500
metres (8,200 ft) isobath, which is a line connecting the depths of the seabed at
2,500 meters.
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The portion of the continental shelf beyond the 200 nautical mile limit is also
known as the extended continental shelf. Countries wishing to delimit their outer
continental shelf beyond 200 nautical miles have to submit scientific information
for the basis of their claim to the UN Commission on the Limits of the
Continental Shelf. The Commission then validates or makes recommendations on
the scientific basis for the extended continental shelf claim. The scientific
judgement of the Commission shall be final and binding. If validated extended
continental shelf claims overlap any demarcation between two or more parties are
decided by bilateral or multilateral negotiation, not by the Commission.
Rights over the continental shelf
Articles 77 to 81 define the rights of a country over its continental shelf.A coastal
nation has control of all resources on or under its continental shelf, living or not,
but no control over any living organisms above the shelf that are beyond its
exclusive economic zone. This gives it the right to conduct hydrocarbon
exploration and drilling works.
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Unit 4- Contemporary International Issues
i. Prohibition of the Use of Force

In the international community, force has featured as at high levels of
decentralization i.e. force has been use d for different purposes-it has been applied
to previous intervention and to punish for noncompliance according to demand.
War is the hardcore form of force and is used to grab territories or to completely
suppress states.
Prohibition to use of force and threats-
The United Nations Charter in article 2(4) controls the use of force by member
states. The UN Charter states that;
“All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the purposes of the United Nations."
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This law has been ratified by all the members and is protected by the United
Nations Charter 1945 to prohibit the use of force by states.
This rule was "enshrined in the United Nations Charter in 1945 for a good reason:
to prevent states from using force as they felt so inclined", said Louise Doswald-
Beck, Secretary-General International Commission of Jurists.
Most scholars have interpreted Article 2(4) to be banning the use of force as in
“territorial integrity or political independence of states"; the most commonly held
opinion is that the above factors are only to reinforce Article 2(4)-which
encompasses general prohibitions with exceptions outlined in the Charter such as
self-defense and those in Chapter VII by the United Nations security council. The
general principle is to ban the use of armed forces except in cases where; there is
collective action-pursued to maintain or even enforce peace (Articles 24, 25, and
Chapter VII) ; and Article 51which states that, “Nothing in the present Charter
shall impair the inherent right to individual or collective self-defense if an armed
attack occurs against a state." Thus there is a right of self-defence under
customary international law, as the International Court of Justice (ICJ) affirmed in
the Nicaragua Case on the use of force. Some commentators believe that the
effect of Article 51 is only to preserve this right when an armed attack occurs, and
that other acts of self-defence are banned by article 2(4). The more widely held
opinion is that article 51 acknowledges this general right, and proceeds to lay
down procedures for the specific situation when an armed attack does occur.
Under the latter interpretation, the legitimate use of self-defence in situations
when an armed attack has not actually occurred is permitted. It is also to be noted
that not every act of violence will constitute an armed attack. The ICJ has tried to
clarify, in the Nicaragua case, what level of force is necessary to qualify as an
armed attack.
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In addition, other cited reasons that permit the use of force include humanitarian
intervention, though this is still controversial, reprisals, and states’ protection of
their nationals in other states.
The United Nations Charter and the International Military Tribunal Statute have
been created with regard to international law. These laws were created by the UN
member states in order to protect succeeding generations from scourges of war.
Members resorted that the use of armed forces was not allowed, save in the
interest of all. The UN Charter even though premising on the past is open to
future amendments since the definition of the word ‘war’ has changed (and will
change) over time.
ii. Exceptions to the Prohibition: Individual and Collective Self

Defense,
Authorized or Recognized Military Actions

The prohibition on the use of force in international relations is widely codified in
international law,1 there exist two exceptions by virtue of which the use of force
may be justified.2 These exceptions are the use of force by the Security Council
under Chapter VII in case of a “threat to peace, breach of peace and act of
aggression,” and the right to use force under Article 51 in individual or collective
self-defense.
• Chapter VII
Chapter VII of the United Nations Charter sets out the UN Security Council's
powers to maintain peace. It allows the Council to "determine the existence of any
threat to the peace, breach of the peace, or act of aggression" and to take military
and nonmilitary action to "restore international peace and security".
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Most Chapter VII resolutions (1) determine the existence of a threat to the peace,
a breach of the peace, or an act of aggression in accordance with Article 39, and
(2) make a decision explicitly under Chapter VII. However, not all resolutions are
that explicit, there is disagreement about the Chapter VII status of a small number
of resolutions. As a reaction to this ambiguity, a formal definition of Chapter VII
resolutions has recently been proposed:
A Security Council Resolution is considered to be 'a Chapter VII resolution' if it

makes an explicit determination that the situation under consideration constitutes
a threat to the peace, a breach of the peace, or an act of aggression, and/or
explicitly or implicitly states that the Council is acting under Chapter VII in the
adoption of some or all operative paragraphs.
Chapter VII resolutions are very rarely isolated measures. Often the first response
to a crisis is a resolution demanding the crisis be ended. This is only later
followed by an actual Chapter VII resolution detailing the measures required to
secure compliance with the first resolution. Sometimes dozens of resolutions are
passed in subsequent years to modify and extend the mandate of the first Chapter
VII resolution as the situation evolves.
The list of Chapter VII interventions includes:
United Nations Security Council Resolution 82 (Korea)
United Nations Security Council Resolution 1267 (Afghanistan)
United Nations Transitional Administration in East Timor
United Nations Mission in the Democratic Republic of Congo
International Criminal Tribunal for Rwanda

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United Nations Mission in Sierra Leone
United Nations Assistance Mission for Rwanda
United Nations Angola Verification Mission II
United Nations Operation in Somalia II
United Nations Monitoring, Verification and Inspection Commission
United Nations Protection Force (former Yugoslavia)
Oil-for-Food Programme (Iraq)
United Nations Stabilisation Mission in Haiti
United Nations Security Council Resolution 678 (Gulf War)
United Nations Security Council Resolution 1973 (Libya)
• Self defense
This is provided for in article 51. The inherent right to individual or collective
self-defense in case of an armed attack allowed until the UN Security Council has
intervened. The steps taken by members in the exercise of self-defense must be
reported to the Security Council and must not in any way affect the mandate of
the Council under the current Charter. The article states that,
“Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
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international peace and security. Measures taken by members in the exercise of

this right of self-defense shall be immediately reported to the Security Council
and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security".
The right to self defense is still provided for in the customary international law, as
seen in the International Court of Justice (ICJ), the best example is the Nicaragua
Case . Article 51 preserves the right to self defense and outlines the procedures to
be followed in case of an armed attack. It has also been observed that, an irregular
forceful attack can prompt the use of force as in the case of 9/11 attacks where the
Security Council allowed the US to use force against the terrorists.
• Collective action
The UN Security Council is mandated to identify the existence of, and even take
action to curb, any threat to peace and security among the members’ states.
However, this power has not been used as expected since other measures such as
the use of sanctions are taken short of the traditional armed forces by some of its
members. The time that the UN used force was in 1950 to ‘force’ North Korea to
withdraw from South Korea. Initially it had been envisaged by the creators of the
UN Charter that the organisation would have its own forces. However, much of
the command of these forces has been from the United States. The UN Security
Council for also authorized the use of armed forces in 1960 during the Iraq’s
invasion of Kuwait. During this time, the Council passed Resolution 678 [10]
which requested all members to support a forceful operation in collaboration with
Kuwait to ensure Iraqi’s withdrawal from Kuwait. This very resolution was never
revoked until 2003, when the Council passed Resolution 1441 which authorized
Iraq’s invasion due to its non-compliance with the manufacture of atomic
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weapons-a threat to global peace and security. The UN also authorized the use of
force in countries like Sierra Leone, Yugoslavia and currently Somalia.
• Pre-emptive force
The use of self defense is limited under the international customary law. The
permissibility of the use of force in cases of self defense is hinged on the
interpretation of Article 51. There is no right to pre-emptive self defense when an
armed attack has occurred, a state does not have to wait for an armed attack to
actually occur to use force. Thus, a distinction has to be drawn between,
“preventive", “anticipatory", and “interventionary" self defense. The ICJ has not
ruled out the use of pre-emptive armed force to intervene in the case of an
imminent armed attack. However, opinio juris and practice widely suggest that
states have no right to preventive self-defense. This can be explained well by the
Caroline’s case. [13]
• Protection of nationals
Various states have asserted the controversial claim to protect their nationals
abroad. This can be observed by the UK in Suez (1956), the Israelis in Entebbe-
Uganda (1976), and the US force in the Dominican Republic (1965), Panama
(1989), and Grenada (1983). The use of force has in some cases been linked with
other political reasons beside the protection of nationals. For example, the
intervention of the US in Grenada in 1983 was widely linked to the US opposition
to the rising socialism in the government of Grenada. The danger posed to the US
nationals in this case was not imminent and this led to strong condemnation from
the United Nations General Assembly. The examples above (except for the
Mossad intervention in Entebbe (1976)), the protection of nationals has been a
used as a veil to cover other political agendas.
• Humanitarian intervention
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In modern times where terrorism has really increased, several countries are
beginning to advocate for the right of humanitarian intervention without the UN’s
Security Council. After the Kosovo’s crisis in 1999, countries like the UK cited
the importance of the use of military force to avert such catastrophes in the future.
When NATO flexed its military muscle in Yugoslavia, it had not acquired the UN
Security Council’s permission. On the contrary this action was not condemned
since the intervention was necessary on humanitarian grounds. Many states
oppose such unauthorized intervention on legal grounds while others cite
practicality-stronger nations (military wise) could misuse or overuse such powers.
iii. Responsibility to Protect

The Responsibility to Protect (R2P) is a global political commitment which was
endorsed by all member states of the United Nations at the 2005 World Summit in
order to address its four key concerns to prevent genocide, war crimes, ethnic
cleansing and crimes against humanity.
The principle of the Responsibility to Protect is based upon the underlying

premise that sovereignty entails a responsibility to protect all populations from
mass atrocity crimes and human rights violations. The principle is based on a
respect for the norms and principles of international law, especially the underlying
principles of law relating to sovereignty, peace and security, human rights, and
armed conflict.
The Responsibility to Protect provides a framework for employing measures that

already exist (i.e., mediation, early warning mechanisms, economic sanctions, and
chapter VII powers) to prevent atrocity crimes and to protect civilians from their
occurrence. The authority to employ the use of force under the framework of the
Responsibility to Protect rests solely with United Nations Security Council and is
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considered a measure of last resort. The United Nations Secretary-General has

published annual reports on the Responsibility to Protect since 2009 that expand
on the measures available to governments, intergovernmental organizations, and
civil society, as well as the private sector, to prevent atrocity crimes.
The Responsibility to Protect has been the subject of considerable debate,

particularly regarding the implementation of the principle by various actors in the
context of country-specific situations, such as Libya, Syria, Sudan and Kenya. It
has also been argued that commensurate with the responsibility to protect,
international law should also recognize a right for populations to offer militarily
organized resistance to protect themselves against genocide, crimes against
humanity and war crimes on a massive scale.
The Responsibility to Protect is a political commitment unanimously adopted by

all members of the United Nations General Assembly at the 2005 World Summit
and articulated in paragraphs 138–139 of the 2005 World Summit Outcome
Document:
138. Each individual State has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes, including their incitement,
through appropriate and necessary means. We accept that responsibility and will
act in accordance with it. The international community should, as appropriate,
encourage and help States to exercise this responsibility and support the United
Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and other peaceful
means, in accordance with Chapters VI and VIII of the Charter, to help protect
populations from genocide, war crimes, ethnic cleansing and crimes against
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humanity. In this context, we are prepared to take collective action, in a timely

and decisive manner, through the Security Council, in accordance with the
Charter, including Chapter VII, on a case-by-case basis and in cooperation with
relevant regional organizations as appropriate, should peaceful means be
inadequate and national authorities manifestly fail to protect their populations
from genocide, war crimes, ethnic cleansing and crimes against humanity. We
stress the need for the General Assembly to continue consideration of the
responsibility to protect populations from genocide, war crimes, ethnic cleansing
and crimes against humanity and its implications, bearing in mind the principles
of the Charter and international law. We also intend to commit ourselves, as
necessary and appropriate, to helping States build capacity to protect their
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity and to assisting those which are under stress before crises and conflicts
break out.
140. We fully support the mission of the Special Advisor of the Secretary-General
on the Prevention of Genocide.
The Responsibility to Protect differs from humanitarian intervention in four

important ways. First, humanitarian intervention only refers to the use of military
force, whereas R2P is first and foremost a preventive principle that emphasizes a
range of measures to stem the risk of genocide, war crimes, ethnic cleansing or
crimes against humanity before the crimes are threatened or occur. The use of
force may only carried out as a measure last resort, when all other non-coercive
measures have failed, and only when it is authorized by the UN Security Council.
This is in contrast to the principle of 'humanitarian intervention', which allows for
the use of force as a humanitarian imperative without the authorization of such
bodies like the Security Council.
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School of Law
The second point relates to the first. As a principle, the Responsibility to Protect is
rooted firmly in existing international law, especially the law relating to
sovereignty, peace and security, human rights, and armed conflict.
Third, while humanitarian interventions have in the past been justified in the
context of varying situations, R2P focuses only on the four mass atrocity crimes:
genocide, war crimes, ethnic cleansing and crimes against humanity. The first
three crimes are clearly defined in international law and codified in the Rome
Statute of the International Criminal Court, the treaty which established the
International Criminal Court. Ethnic cleansing is not a crime defined under
international law, but has been defined by the UN as "a purposeful policy
designed by one ethnic or religious group to remove by violent and terror-
inspiring means the civilian population of another ethnic or religious group from
certain geographic areas".
Finally, while humanitarian intervention assumes a "right to intervene", the R2P

is based on a "responsibility to protect". Humanitarian intervention and the R2P
both agree on the fact that sovereignty is not absolute. However, the R2P doctrine
shifts away from state-centered motivations to the interests of victims by focusing
not on the right of states to intervene but on a responsibility to protect populations
at risk. In addition, it introduces a new way of looking at the essence of
sovereignty, moving away from issues of "control" and emphasizing
"responsibility" to one's own citizens and the wider international community.
&
School of Law
&
School of Law

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Chanderprabhu Jain College of Higher Studies

Class : BALLB Semester 6th

Paper Code : LLB 304

Subject : International Law

Much of international law is consent-based governance. This means that a state

"Public international law" concerns the relationships between nations. These

Definition of International; Law-

According to Encarta Encyclopedia, "International Law is principles, rules, and

a)Nature of International Law

embraces mankind as a whole, irrespective of colour, creed, relation and political

b) Subjects of Imternational Law

Non-State actors with international legal personality include individuals, armed

While it can be confusing, some laws, for example, international humanitarian

There is still some debate on whether international non-governmental

An international organization is defined as “an organization (1) established by a

c) International law and Municipal law-

hierarchical approach positing the existence of one fundamental norm

d) Codification of International Law

• Wrong-doers can take advantage of codified law because they come to

Unit-2 Sources Of International Law

Treaties are known by a variety of terms—conventions, agreements, pacts,

international law is inapplicable. Informal, nonbinding political statements or

Treaties may be bilateral or multilateral. Treaties with a number of parties are

Treaties Between States and International Organizations or Between International

There is no prescribed form or procedure for making or concluding treaties. They

A set of rules to interpret treaties has evolved. A treaty is expected to be

of interpretation, including the use of travaux préparatoires (French: “preparatory

Treaty may be terminated or suspended in accordance with one of its provisions

mandate for South West Africa. A breach of a treaty is generally regarded as

Customary law can change on the principle of ‘apprehension' and ‘acquiescence'

State practice as one of the elements of customary law, it is a continuous and

In Assylum case (Colombia v Peru), to form customary law, it must be ‘in

Consistency of state practice as another element is significant to the alteration of

Generality of Practice as another element in customary law is about the

c) General Principle Of Law:

Principle of equity is applicable to international Tribunals that is general

bono in Article 38(2),example of equitable principle applied are acquiescence and

Article 38(1) d ‘shall apply subject to the provisions of Article 59,Judicial

Unit-3- Recognition, Extradition and the Law of the Sea

States are considered as the principal persons in International Law.

The recognition of a state is often a political act of a state.

Recognition is not a conclusive proof of the existence of the state.

Recognition of a State is more of a political concept than a legal concept because

• Declarative or Evidentiary Theory

According to this theory, recognition is a necessary condition for statehood and

Examples:Poland and Czechoslovakia were recognized by the instrumentality of

Korea was divided into two parts

Disadvantages of the theory

There is no law the obliges established states to recognize new States.

Palestine is recognized as country by 80 nations thought it does not have a

Declarative Theory or Evidentiary Theory

Example: Taiwan is a democratic country and is adjoining areas where Chinese

An existing state recognizes another state by releasing a public statement by way

Grant is expressed in written words

State entering into bilateral treaty establishes diplomatic relations with an

A new state is recognized collectively by the existing states.

This is a permanent recognition which one granted cannot be taken back or

The doctrine of non-recognition of illegal or immoral situations, like territorial

2. Extradition and Asylum