B.A. LL.B.

(Hons) Semester – III

International Law – I
(Based on Text Book of Dr. S. K. Kapoor and Various sources of Internet)
Module – I

INTRODUCTORY : DEFINITION OF INTERNATIONAL LAW

Definition” : The words “International Law” were used for the first time by Jermy Bentham in
1780. Since then these words have been used to denote the body of rules and principles which
regulate the relations among the members of international community. The term ‘members
of international community’ now comprises of States, International organisations, individuals
and certain non-State entities.
(i) Oppenheim's Definition.—Prof. L. Oppenheim has defined International Law in the
following words—“The Law of Nations or International Law is the name for the body of
customary and conventional rules which are considered legally binding by civilised States in
their intercourse with each other.”
This definition was given by Prof. Oppenheim in 1905.! A critical discussion of Oppenheim’s
definition is being given below with a view to show and highlights the changes that have taken
place .n the concept and definition of Public International Law during the last eleven decades.
Criticism.—Oppenheim’s definition, which was considered appropriate at one time, is now
subjected to severe criticisms. It has now become obsolete and inadequate. This definition
can be subjected to the following criticisms:
(1) It is now generally recognised that not only States but international: organisations have
also certain rights and duties under International Law. This view has been finally affirmed by
the International Court of Justice in its advisory opinion on Reparation for Injuries Suffered in
the Service of the U.N. (1949).
(2) It is also recognised that to some extent individuals have some rights and duties under
international law.
(3) It is also recognised that international law consists not only of customary and conventional
rules but also of general principles of law recognised by the civilised States. This was expressly
recognised by Article 38 of the Statute of the Permanent Court of International Justice and
has now been recognised by Article 38 of International Court of Justice.
(4) The use of the term ‘civilised state’ has also been criticized. A few decades ago weaterm
States regarded only the Christian states as ‘civilized’ states. For being considered ‘civilized’
neither long history nor culture was the criterion. It is now generally agreed that the use of
the term ‘civilized’ was totally wrong because the civilization of countries like India, China,
Egypt etc. was not only much older but ancient. That is why, in later editions of Oppenheim’s
book the word ‘civilized’ was deleted,
(5) Lastly, as pointed by Prof. Lissitzyn, “The very conception that international law is a ‘body
of rules’ now stands charged as static and inadequate.” He adds, “like all living law,
international law does not standstill but is continuously reinterpreted and reshaped in the
very process of its application by authoritative decision makers, nationally and
internationally.” It may be noted that it has become customary to define law as ‘body of rules’,
therefore it is not proper to blame Oppenheim in this respect although it is desirable to
emphasise dynamism in International Law.
Oppenheim’s definition might have been correct at the time when he gave it but in
View of the changing character of International Law and the changes that have taken place
since then, his definition has now become obsolete and inadequate. Taking into consideration
the present state of International Law, International Law has been very aptly defined by
Fenwick “as the body of general principles and specific rules which are binding upon the
members of international community in their mutual relations.” The term “international
community” is very appropriate for it includes States, international organisations, individuals
and other non-State entities. Yet another merit of this definition is the use of the words
‘general principles’.
New Definition of International Law in Latest Edition of Oppenheim’s Book.—The editors of
the ninth edition of Oppenheim’s book (1992), Sir Robert Jennings and Sir Arthur Watts, have
revised Oppenheim’s definition of International Law am the following words :
“International Law is the body of rules which are legally binding on states in their
intercourse with each other. These rules are primarily those which govern the relation of
States, but States are not the only subjects of International Law. International organisations,
and to some extent, also individuals may be subjects of rights conferred and duties imposed
by international law.”
Further, “not only individuals but also certain territorial or political units other than
States to a limited extent, be directly the subject of rights and duties under international Law,”
Thus, the above concept and definition of International Law given in the Ninth Edition
of Oppenheim’s International Law is much better than the earlier definition and to a great
extent similar to that given by Starke and Fenwick. But it is still deficient in one respect, it is
conspicuous for its silence in respect of general principles. This is a great flaw because general
principle make International Law dynamic and help it to adopt itself to changing times.
(ii) Some other Definitions of International Law similar to that of Oppenheim :-
(1) J.L. Brierly According to Brierly : “The Law of Nations or International Law may be defined
as the body of rules and principles of action which are binding upon" civilized States in their
relations with one another."
(2) Hackworth.—In the words of Hackworth : “International Law consists of a body of rules
governing the relations between States. It is a system of jurisprudence which, for the most
part, has evolved out of the experiences and the necessities of situations that have arisen
from time to time.”
(3) Queen v. Keyn (2 Ex. D. 63, 153, 154 (1876)].—In the Queen v. Keyn, Lord Coleridge, C.J.,
defined International Law in the following words ; “ The law of nations is that collection of
usages which civilized States have agreed to observe in their dealings with one another.”
(4) West Rand Central Gold Mining Co. Ltd. v. King [(1905) 2 K.B. 391).—In this case the Court
observed, International Law may be defined as “the form of the rules accepted by civilized
States as determining their conduct towards each other and towards each other's subject.”
(5) S.S. Lotus case [(1927) P.C. IJ. Series A. No. 10).—In S. S. Lotus case, International Law was
defined in the following words ; ‘S International Law governs relations between independent
States. The rules of law binding upon States therefore emanate from their own free will as
expressed in conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restriction upon the
independence of States cannot therefore be presumed.”
(6) Philip C. Jessup.—Jessup has defined International Law in the following words :
“International Law or the Law of Nations must be defined as law applicable to States in their
mutual relations with States.” Judge Jessup further adds, “International Law may also...... be
applicable to certain inter-relationships of individuals themselves, where such inter-
relationships involve matters of international concern.”
(7) Gray.—Gray defines International Law in the following words : “International Law or the
Law of Nations is the name of body of rules which according to the usual definitions regulate
the conduct of the States in their intercourse with one another.”
(8) Hall.—According to Hall : “International Law consists of certain rules of conduct which
modern civilized States regard as being binding on them in their relations with one another
with a force comparable in nature and degree to that binding the conscientious person to
obey the laws of his country and which they also regard as being enforceable by appropriate
means in case of infringement.”
(9) Kelsen.—According to Kelsen : “International Law or the Law of Nations is the name of a
body of rules which—according to the usual definition—regulate the conduct of the States in
their intercourse with one another.”
Criticism.—The above definitions can be criticized in the same way as Oppenheim’s definition
has been criticized above.
(iii) Soviet definition and Approach to International Law.—According to the Soviet definition,
“International Law is the sum total of the norms regulating relations between States in the
process of their struggle and co-operation, expressing the will of the ruling classes of these
States and secured by coercion exercised by States individually and collectively.” Another
eminent Russian writer defined International Law as “the totality of norms, which were
developed on the basis of agreements between the States which govern their relations in the
process of struggle and co-operation between them, expressing the will of the ruling classes,
and are enforced in case of necessity, by the pressure applied either collectively or by
individual States.”
After the death of Stalin the above definition was slightly modified by inclusion of a
reference to “peaceful co-existence.” In recent years’ Soviet writers have laid a great
emphasis on ‘peaceful co-existence’ in relation between the sovereign States. According to
the Soviet view, “The principle of peaceful co-existence should be the basis of the whole
structure of contemporary International Law. Only if it is based on the principle of co-
existence can International Law best promote the cause of peace and Mutual understanding
between States.”
Criticism.—The Soviet definition emphasises struggle and co-operation between States, will
of the ruling classes, etc. But as pointed out by George Ginsburgs, “Indeed whereas today the
trend in most of the world moves more and more in the direction of, qualified recognition
that International Law no longer applies to States alone, by encompasses a variety of
international personalities other than States as well, including possibly, individuals, the
Soviets have today adamantly opposed most aspects of such expansion of International Law.
Their jurists, with rare exceptions continue to cling toa very conservative conception of what
constitute a subject of International Law.” The Soviet definition is not adequate because it
does not mention international organisations, individuals and non-State entities as subjects
of international law. It does not also include the general principles of law recognised by
civilized States. The breaking up of Soviet Union and the changes including the emulation of
western free market system which subsequently followed have brought about revolutionary
changes and this resulted in reconciliation between the Soviet and Western views.
(iv) Chinese definition and approach to International Law.—According to a Chinese writer :
“International Law like all other branches of law, is created in a definite stage of mankind’s
social development. The origin of International Law is directly related to the creation of the
State. International Law is created as the political, economic, and the relations among
States emerge.” In his view, only the definition of International Law given by Soviet scholars
(for example, definition given by Vyshinsky given earlier), explains the question of the
contents and substance of International Law. This definition (i.e. of Vyshinsky) is adaptable to
the “International Law of various historical periods including the modern one.” He points out
that International Law possesses the following characteristics of law in general : (i) It
expresses the will of the ruling class; (ii) it is the aggregate of norms adjusting definite social
relations, and (iii) it is guaranteed by enforcement measures. In this view therefore,
“International Law 1s 3 kind of law possessing legal validity; it is not what are called self-
executing norms of morality.”
The Chinese scholars criticize vehemently the definitions of International Law given by
Oppenheim and other Western writers. In the view of a Chinese writer, these definitions
cause us first to realise that Bourgeois International Law created for the so called ‘Civilized
States’ and does not possess the spirit of democratic legislation in the international big family.
In the view of Bourgeois writers, only ‘Christian States’ are ‘civilized States’ while non-
Christian States, mainly oriental States, are ‘uncivilized States’. For instance, Oppenheim said
that ‘before the First World War, China, Persia. Burma, Abyssinia, and other oriental States
were still uncivilized States’. The criterion of the Bourgeoisies for distinguishing so-called
‘civilized and uncivilized States’ is neither long history nor culture. Even though China has had
5,000 years of excellent culture, she was not included in the group of ‘civilized States." The
exclusion of oriental States from the exclusive club of ‘civilized States’ reflects exactly the
needs of the aggressive interests of the imperialistic monopolistic Bourgeoisies. He added,
“.............. although bourgeois international law may in certain periods and under certain
conditions play a role of a mutual restriction among ‘civilized States’ it is mainly a weapon
used by civilized States’ to control and oppress what they consider to be ‘uncivilized States'.
The ‘uncivilized States’, are their preys. The Chinese people feel very deeply here. in the past,
imperialism seized the right of consular jurisdiction in China on the pretext that China was
‘backward in the rule of law’ and ‘uncivilized’, By establishing ‘spheres of influence’
advocating the ‘open door policy’ and ‘equal opportunity for all’ and even trying to partition
China, imperialism treated China as a ‘backward’ and ‘uncivilized State’ which could be
oppressed.”
In China, “International Law is regarded as a legal instrument in the service of our
foreign policy”. In the words of a Chinese author, “International Law, in addition to being a
body of principles and norms which must be observed by every country, is also, just as any
law a political instrument; whether a country is a socialist or capitalist, it will be to a certain
degree utilize International Law in implementing its foreign policy.”
As regards the subjects of International Law like Soviet Union, the Chinese also do not
regard International Organisations and individuals as subjects. In their view, the Bourgeois
theory concerning the subjects of law is inconsistent with the principles of modern
international law. But this view cannot be accepted. As pointed earlier while criticising
Oppenheim’s definition that individuals have now become subjects of international law and
can now, although only in a few cases, claim rights directly under international law and need
not always do so through the medium of State. Similarly international organisations have also
become subjects of international law. They can enter into agreements or treaties. The, are
legal persons and may make claims for the compensation of persons suffering injuries in their
service.
Since 1972 China has relations with America and other Western countries. China’s
relations with Western countries and America has brought about significant changes in
China’s attitude toward International Law. Besides emulating free market economy in certain
spheres China has now become a member of World Bank and International Monetary Fund.
(v) Whiteman.—Whiteman defines International Law in the following words : “International
Law is the standard of conduct, at a given time, for State and other entities subject thereto.”
Evaluation.—This is a very brief but adequate definition. The words “other entities subject
thereto” may include international organisations, individuals and non-State entities. The
words used in the definition are apparently very simple but they are pregnant with meaning
and very vast in their scope. Moreover, Whiteman has also emphasised the dynamic aspect
of international law. She writes, “International Law is, more or less, in a continual state of
change and development. In certain of its aspects the evolution is gradual in others it is
avulsive.”.
(vi) Charles G. Fenwick.—Fenwick has defined International Law in the following words :
“International Law may be defined in broad terms as the body of general principles and
specific rules which are binding upon the members of the International community in their
mutual relations.”
Appraisal/Evaluation. —The above definition is better than all the above-mentioned
definitions because instead of the word ‘States’ he uses the words ‘members of International
Community’ which include States, international organisations, individuals and non-State
entities. He also uses the term general principles. Though short his definition is pregnant with
meaning and takes into account the changes that have taken place after the Second World
War. Therefore, it is an appropriate and correct definition of International Law,
(vii) J. G. Starke.—In the words of Starke : “International Law may be defined as that body of
law which is composed for its greater part of the principles and rules of conduct which States
feel themselves bound to observe, and, therefore, do commonly observe in their relations
with each other, and includes also
(a) The rules of law relating to the functioning of international institutions of organisations,
their relations with each other, and their relations with States and individuals; and
(b) Certain rules of law relating to individuals and non-State entities so far as the nights or
duties of such individuals are the concern of the international community.”
The definition of Starke is also appropriate because it takes into account the changing
character of International Law.
Evaluation and conclusion.—On the basis of the above definitions, we may conclude that
International Law is a body of rules and principles which regulate the conduct and relations
of the members of international community. The contention that States alone are the
subjects of international law is not only inconsistent with the changing character of
international law but has become completely obsolete and inadequate. individualistic
character of international law is being replaced by the law of social inter-dependence. As
pointed out by Judge Alvarez in Admission of State to Membership im the UN. (I.C.J. Rep.
(1948) p. 4]. ........ Strictly individualistic international law is being more and more superseded
what may be termed as the law of social inter-dependence.” In Re Piracy Jure Gentium, (1934)
A.C. 586, Lord Chancellor Sankey aptly remarked that International Law is a “living and
expanding Code.”
In view of the changing character and expanding scope of International Law today.
international organisations, some non-State entities and individuals have also become the
legitimate subjects of International Law. Nevertheless, it cannot be denied that eves today,
as pointed out by Starke, “it is composed for its greater part of the principles and rules of
conduct which States feel themselves bound to observe, and therefore, do commonly
observe, in their relations with each other.” But it is too late in the day to say that
international law is a body of rules to regulate relations of States only. To conclude m the
words of Fenwick : “International Law may be defined in broad terms as the body of general
principles and specific rules which are binding upon the members of international community
in their mutual relations”. “International Community”, as have noted above, comprises of
states, international organisations, individuals and non-state entities.
 NATURE AND BASIS OF INTERNATIONAL LAW
It will be desirable to discuss first the question whether International Law is true law or not.
Whether International Law is law in the true sense of the term or not :- As remarked
by Prof. Glanville L.Williams, “The largest of jurisprudential controversy that as to the word
‘law’ is a verbal dispute and nothing else.” If we subscribe to the view of Hobbes, Austin and
Pufendorf, that law is command of sovereign enforced by superior political authority, then
international law cannot be included in the category of law.
According to Austin, law is given by a determinate superior political authority to
political inferiors and is backed by a coercive enforcement agency. Thus, according to Austin,
sanction occupies an important place in the enforcement of law. People follow law due to
sanction or coercive element inherent in law. Hobbes also subscribes to this view. In the view
of Hobbes, man is by nature nasty, brutish and violent and fear or sanction which is inherent
in law is necessary to maintain order in society. Further, men need for their security “a
common power to keep them in awe and to direct their action to common benefit.” Holland,
Bentham, Jethro Brown, etc. are other jurists who deny the legal character of international
law. According to these jurists, international law lacks an effective legislative machinery, an
executive machinery and potent judiciary and above all the sanction which is necessary for
the enforcement of law.
The definition of law given by Austin is not correct. In the words of Prof. Oppenheim,
“This definition is not correct. It does not cover that part of municipal law which is termed as
unwritten or customary law. There is, in fact, no community and no State in the world which
exists with written law only.” In his view, law is, “a body of rules of human conduct within a
community which by consent of this community shall be enforced by external power.” Brierly
and Prof. Hart have also criticised the Austinian definition of law.
There is, in fact, no community and no State in the world which exists with written law
only.” In his view, law is, “a body of rules of human conduct within a community which by
consent of this community shall be enforced by external power.” Brierly and Prof. Hart have
also criticised the Austinian definition of law.
According to Oppenheim, the existence of law presupposes the existence of three
prerequisites :—
(i) a community;
(ii) a body of rules; and
(iii) common consent of the community that if necessary these rules shall be enforced by an
external power.
As pointed out in the Ninth Edition of Oppenheim’s International Law (1992), ‘The
three requirements of this definition (i.e. Oppenheim’s definition of law) are satisfied by
international law, to a greater or lesser extent. Equally, there exists a common consent of the
community of States that rules of international conduct shall be enforced by an external
power, though in the absence of a Central authority for this purpose States have sometimes
to take law into their own hands by such means as self-help and intervention........... ” Further
outlawing of resort to force by the U.N. and steps for international enforcement action have
led to less reliance on self-help.
 Most of the jurists like Brierly has rightly pointed out, “It is both practically
inconvenient and also contrary to best juristic thought to deny its (i.e., international law) legal
character.” Views of jurists, who regard intonational law as really law may be summed up as
follows:
(1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. It
has been established by Historical Jurisprudence that in many communities a system of law
existed although such communities lacked a formal legislative authority. As pointed out by
Starke, such law did not differ from any State law with true legislative authority.
(2) As pointed out by Oppenheim, in practice, international law is recognised as law by the
States and they consider it binding on them.
(3) Even when the States violate international law they never question its legal existence or
legal character. On the contrary, they try to interpret the rules of international law so as to
justify their conduct.
(4) The Austinian concept of law fails to account for the customary rules of international law.
(5) In the modern time, customary rules of international law are diminishing and are being
replaced by law making treaties and conventions.
(6) When international disputes arise, States, instead of relying on moral arguments base their
arguments on the provisions of treaties, precedents and opinions of jurists.
(7) In some States (for example U.S.A. and U.K.), international law is treated as a part of their
own law.
(8) The Statute of International Court of Justice provides that the Court shall decide such
disputes as are submitted to it in accordance with international law.
(9) International Conferences and Conventions treat international law as law in the true sense
of the term.
(10) The United Nations is based on the true legality of international law. The Preamble to the
U.N. expresses the resolve of the member States to “establish conditions under which justice
and respect for the obligations arising from treaties and other sources of International Law
can be maintained.
(11) It is also pointed out that sanction 4s not an essential element of law. It is also a fact that
people generally follow law as a matter of habit and practice. However, international law is
not completely without sanction although the sanctions behind it are weaker as compared to
State Law. International Law operates in a decentralized system. Each state is sovereign and
equal in the eye of law Article 59 of the statute of International Court of Justice provides that
the decisions of the International Court of Justice shall not be binding except upon a party to
a dispute and only in respect of the particular dispute. The decisions of the international Court
of Justice are binding upon the parties to a dispute. In case any party fails to comply with the
decision, the Security Council on the request of other party may make recommendations or
decide upon measures to be taken to give effect to the judgment. Besides this, war, reprisals
etc. have been regarded as sanctions behind international law. Chapter VII of U.N. Charter
provides for international enforcement actions. Besides U.N. Charter each and every
International organisation such as ILO, WHO, FAO, ICAO etc. has certain sanctions in its
constituent treaty.
(12) Public opinion is also considered as the ultimate sanction behind the binding force of
international law and for that matter, behind any law.
(13) Those who deny the legal character of international law emphasize that it is frequently
violated. It is true that International Law is frequently violated but # does not mean that it is
not law. Even State or municipal law is frequently violated. Frequency of violations of law and
the question of international law being law are two different things. Frequency of violations
is connected with the weakness or strength of the enforcement machinery. Though State or
municipal law is frequently violated, it is never said that it is not law. What is true of Municipal
law should also hold good for International Law.
Conclusions.— Prof. Hart has rightly remarked, “........that so simple deduction can be
made from the necessity of organised sanctions to Municipal law, in its setting of physical and
psychological facts, to the conclusion that without them international law, in its every
different setting imposes any obligations, if not binding, and so not worth the title of ‘law’, As
aptly remarked by Louis Henkin, “much of the misunderstandings of international law is due
to a failure to recognise law where it exists”, Further, “Fortunately, international law exists
and it works—not perfectly or always but well enough and often enough to make a
considerable difference in the conduct of international affairs.
Although there is no one to determine and adjudge the law, there is wide agreement
on the content and meaning of law and agreements, even in a divided world burgeoning with
new nations,” According to Starke, international law is a ‘weak law’ because existing
international legislative machinery operating mainly through law making conventions is not
comparable in efficiency to State legislative machinery.
Is International Law a mere positive morality? — A rule of morality applies to
conscience and |s, therefore, not binding, On the other hand a rule of law is binding and can
be enforced by an external power, Most of the jurists agree that international law has a
binding nature whereas the rule of morality is simply a standard of right behavior based on
the personal judgments, As pointed out by Edward Collins, “Although attitudes about
morality, when widely shared, influence the development of international law, there is no
recognised legal obligation to obey the norms of morality until they are accepted by
authoritative decision makers as international law.” Frederick Pollock has rightly observed, “If
International Law were only a kind of morality, the framers of State papers concerning foreign
policy would throw all their weight on moral arguments, But as a matter of fact, this is not
what they do, They appeal not to the general feeling of moral rightness, but to precedents,
to treaties and to opinion of specialists.” Prof. Hart also subscribes to this view.
Whether International Law is the vanishing point of jurisprudence? — According to
Holland, International Law is the vanishing point of jurisprudence. In his view International
Law is followed by courtesy and, therefore, it cannot be kept in the category of law. Austin
also subscribes to this view. The view of Holland does not seem to be correct. In the first place,
sanction is not most essential element of law. Even if it is regarded as an essential element, it
will not be proper to say that international law has no sanctions at all. War reprisals, retorsion,
Pacific Blockade, etc., were regarded as sanctions under the traditional international law, i.e.,
before the establishment of the United Nations. The Charter of the United Nations also
contains a provision wherein the Security Council may recommend or decide upon the
measures to be taken to implement the decision of the International Court of Justice. In the
view of Holland, there is no judge or arbitrator to decide international disputes. This
statement cannot be accepted because the International Court of Justice is the judicial organ
of the United Nations and its decisions are binding upon the parties to a dispute.
It is true that the International Court of Justice lacks compulsory jurisdiction in the real
sense of the term; there is no effective executive authority to enforce its decisions; its
decisions cannot be applied to future cases as precedents; and, above all, the binding force
of its decisions is very limited.
It further provides that if any party to a case fails to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party may have recourse to the
Security Council, which may, if it deems necessary make recommendations or decide upon
measures to be taken to give effect to the judgment.
Thus the international legal system is not only provided with a judicial organ to resolve
international disputes but its decisions are binding and can be enforced under the
circumstances stated above.
Does International Law comprise of the rules of International comity? —
International comity means practices which the States observe as a matter of courtesy or
convenience. They are not binding upon them. On the other hand, rules of international law
are regarded as binding by the States. It is, therefore, wrong to say that international law
comprises of the rules of international comity.
Distinction between Public International Law and Private International Law.—The
definition of Public International Law has already been discussed in detail earlier. As
compared to it, private international law is that branch of law which decides law applicable
in the issue in disputes involving more than one nation and involving a foreign element and
determines the Court which will have jurisdiction to decide the issue. It is more popularly
termed as ‘Conflict of Laws’. Pitt Cobbett has defined ‘Private International Law’ as the “body
of rules for determining questions as to selection of appropriate law, in civil cases which
present themselves for decision before the courts of one State or country, but which involve
a foreign element. which affect foreign persons or foreign things or transactions that had
been entered into, wholly or partly in a foreign country, or with reference to some foreign
system of law.”
The main points of difference between Public and Private International Law are the following
:
1 Public International Law for its major part, deals with States and to a lesser extent with
the individuals. Private International Law deals with the individuals.
2 Public International Law is a part of Municipal Law but so it is not always the case with
private International Law.
3 Public International Law (at least the rules having general application) is same for all the
States whereas Private International Law may be different in different States.
4 Private International Law determines as to which Law will apply in a case having a foreign
element. There is no such problem in the field of Public International Law.
5 Private International Law also determines the court which will have jurisdiction to decide
the issue in question. In this respect also it differs from Public International Law.
6 According to Robert Philimore, rights arising out of Public International Law are absolute
and their breach constitutes a casus belli (i.e. whatever involves or justifies war). This view
 does not seem to be correct in the presence of the provisions of Kellog-Briand Pact and
the U.N. Charter which have outlawed war. But Private International Law does not at all
confer absolute rights.
7 Public International Law comprises mainly of the rules recognised by States in their
relation with each other and mostly arises out of International customs ang treaties, On
the other hand, rules of Private International Law are framed by the legislature of a State
and recognised and developed by State Courts.
Weakness of the International Law.—Following are the weaknesses of the International Law
:
1 It lacks effective authority to enforce its rules.
2 It lacks effective legislative machinery.
3 The International Court of Justice has no compulsory jurisdiction in the true sense of the
terms.
4 The sanctions behind international law are very weak.
5 I cannot intervene in the matters which are within the domestic jurisdiction of States.
6 Many rules of international law are uncertain and vague.
7 International Law has failed to maintain order and peace in the world. It is also pointed
that there is no executive in International Law and as such violations of International Law
go unpunished.
As pointed out above, these so-called weaknesses come to light when we compare
International Law with State law which has usually a strong executive, legislature and
judiciary. But a pertinent question is why we should compare international law with State law.
There can be no comparison with two unequal. International law operates in a decentralized
system whereas State law operates in a centralized system. International law ought to be
considered what it is and what it ought to be. For example, United Nations is based on
sovereign equality of all its members. Besides this, the decision of the International Court of
Justice has no binding force except between the parties and in respect of that particular case.
On the other hand, for example, Constitution of India provides that decision of the Supreme
Court is binding on all High Courts, meaning thereby on all people of India, irrespective of
whether they are parties to the case or not.
Suggestions for improving International Law :—
1 The International Court of Justice should be given compulsory jurisdiction in the true
sense of the term,
2 An International Criminal Court should be established to decide cases of international
crimes,
3 International Law should be properly codified and scientifically revised from time to time,
4 The machinery to enforce the decisions of the World Court should be strengthened,
5 The powers and scope of the activities of the International Law Commission should be
expanded,
6 The doctrine of judicial precedents should be applied in the field of international law,
7 In order to strengthen the legislative machinery of international law, more law-making
treaties and conventions should be made and there should be a provision for their
revision from time to time,
8 The legislative activities of the General Assembly should be further enlarged,
9 Such activities of the U.N. should be encouraged as may develop the feelings of
international brotherhood so as to ensure the encouragement of the development of
International community in the true sense of the term,
10 The U.N. Charter should be amended as to authorise the U.N. to intervene in such
matters with the domestic jurisdiction of States as are of international concern.
Sanction in International Law.—In accordance with the second view, even if it is
admitted that there are no sanctions behind international law, it can be included in the
category of law because sanction is not an essential element of law.
As a matter of fact, it would be wrong to say that there are no sanctions at all behind
international law although it is true that as compared to municipal law the sanctions of
international law are far less effective. Starke has pointed out the following sanctions behind
the international law:
(1) Under Chapter VII of the United Nations Charter, if there is a threat to the
international peace and security or an aggression has taken place, the Security Council
can take necessary action to maintain or restore international peace and security.
(2) Article 94 of the United Nations also provides that if a party to the dispute does not
follow the decision of the Court, the other party may approach the Security Council
which can take necessary decision to ensure the implementation of the decision.
It is clear from the above discussion that international law is not without sanctions
although these sanctions are not generally for the enforcement of international law.
According to Starke : Apart from the above sanctions, other factors such as adverse
public opinion, expediency, possibility of imposition of economic sanctions, fear of suspension
or breaking of diplomatic relations, possibility of referring the matter or dispute to the U.N.
or specialized agencies of the U.N., fear of suspension or expulsion from Membership of the
U.N. or other International Organisations, fear of punishment of war crimes, fear of payment
of reparation, etc., also operate as sanctions behind International Law.
These include the recognition of certain rules that have the character of jus cogens
Which establish that within the general body of rules of international law there exists
superior legal rules, with which rules of ‘lower’ order must be compatible.” It may be noted
that besides the U.N., there are dozens of other International Treaties Constituting
International organisation, referred and known as Specialized Agencies, Such ae 110, WHO,
FAO, ICAO etc, which contain effective sanctions.
Basis of International Law.— There are the two main theories which attempt &
captain the basis of International Law (1) Theories as to law of Nature; and (2) Positivism.
(1) Theories as to the Law of Nature.—According to the exponents of this theory,
international law is a part of the law of nature. States follow international lay because it is a
part of the law of nature which is a higher law. In their view, it is the natural law which has
conferred binding force on international law. In the beginning Natural Law was associated
with religion. The jurists of 16th and 17th centuries especially Grotius, secularised the concept
of the Law of Nature. According to Grotius, natural law, is the ‘dictate of right reason’. His
followers applied the law of nature as the ideal law founded on the nature of man as a rational
being. International Law wag considered binding because it was in fact, natural law applied
to special circumstances, Vattel, Pufendorf, Christian Thamasius, etc. are other prominent
exponents of the law of the nature.
Criticism.— Each follower of the natural law gives a different definition of the tera of
‘natural law’. They use it as a metaphor. Different jurists ascribe different meanings to it such
as reason, justice, utility, general interest of international community etc. Thus the meaning
of the term ‘natural law’ is very vague and uncertain. Besides this, the main defect of this
theory is that it is not based on realities and actual practice of the States. k must however, be
admitted that the law of nature has greatly influenced the growth of international law.
(2) Positivism.—Positivists base their theory on the actual practice of the States.
According to them in the ultimate analysis, will of States is the main source of international
law. International Law, they say, is binding because the States have given their consent for
the rules of international law. It is contended that although States are sovereign, yet by
process of auto-limitation, they have restricted their powers and accepted certain rules as
binding upon them. Describing the positivist view, Starke has aptly written : “International
Law can in logic be reduced to a system of rules depending for their validity only on the fact
that States have consented to them.” According to Italian jurist, Anzillotti, the binding force
of international law is based on a fundamental principle known as Pacta Sunt Servanda
(Agreements entered into by States must be respected and followed in good faith).
One of the weaknesses of the positivist theory is that it fails to explain the binding
force of customary rules of international law. The positivists have tried to explain this by
saying that there is an implied consent in regard to customary rules of international law.
Criticism.—Positivists views have been severely criticised by many jurists. Following
are the main points of criticism :
(I) The concept of will of State is purely metaphorical. The will of State is nothing but the will
of the people who compose it.
(2) it fails to explain the case of the admission of a new State into the family of Nations, When
a State is admitted to the family of nations, international law becomes applicable to it even
without its consent.
(3) The positivists have based their theory on consent which has been severely Criticised by
jurists.
(4) In practice, it is never necessary to show in regard to any particular rule of customary
international law that the States had given their consent
(5) There are some principles of international law [such as laid down in Article 2(6) of the
United Nations Charter) which are applicable even on non-members of the U.N. although they
had never given their consent for it,
(6) Moreover, it is rightly pointed out that “Declarations of will are, of course, in themselves
pure facts which have legal effects only because some rule of law gives them such effects.”
(7) The positivist view fails to explain the “General Principles of Law recognised by Civilized
Nations” which has been recognized under Article 38 of the statute of the International Court
of Justice. This source has been hailed as a “refutation of the extreme positive conception of
international law.” It has sounded death-knell of positivism.
 Despite the above criticism, it cannot be denied that this theory has encouraged
realistic outlook in international law.
True basis of International Law.—According to Starke, no specific theory is capable of
explaining the true basis of international law. As a matter of fact, because of inter-
dependence of States in the modern period, no State can escape from the influence of the
international law. As rightly pointed out by Cecil Hurst; “International Law is in fact binding
on States because they are States.” Thus States follow international law simply because they
are States. According to Brierly, “The ultimate explanations of the binding force of all law is
that man, whether he is single, individual or whether he is associated with other men in a
State, is constrained in so far as he is reasonable being, to believe that order and not chaos is
the governing principle of the world in which he has to live.”
As aptly pointed out in the Ninth Edition of Oppenheim’s International Law (1992), “Tt
is, however, in accord with practical realities to see the basis of international law in the
existence of an international community the common consent of whose members is that
there shall be a body law—international law—to govern their conduct as members of that
community.
Some other theories regarding the basis of International Law : Following are some
other theories regarding the basis of international law :
(1) Theory of consent.—This is based on the positivists’ view and has been criticised
earlier. This theory fails to explain the basis of international law. According to this theory,
States observe rules of international law because they have given their consent for them.
Following are the main points of criticism of this theory :
(i) As regards customary rules, it is not necessary to prove that States have given, their
consent.
(ii) In regard to customary rules, the basis of implied consent is far from correct.
(iii) It fails to explain the case of recognition of a new State.
(iv) It fails to explain the true basis of international law even if we distort facts and try to fit
them in the theory.
(2) Auto-Limitation Theory.— This theory is also based on the theory of consent and
fails to explain the basis of International Law. It is based on the presumption that State has a
will. Moreover, auto-limitation is no limitation at all.
(3) Pacta Sunt Servanda.—According to Anzillotti, the binding forcg international law
is founded on the fundamental principles known pacta sunt servanda which means that the
agreements entered into by the States must be followed by them , good faith. This principle,
though a fundamental and very important Principle of international law, fails to explain the
binding force of customary rules of international law.
As aptly remarked by an author, “The realization that international customary law
does not rest on agreements and that the tenet of pacta sunt servanda is itself a rule of
customary law led to new formulations of the basic norm.” Kelsen himself has decided on a
formula which takes into account of usage as the fact which is the origin of the rules of
International Law, “States ought to behave as they have customarily behaved.”
(4) Theory of Fundamental Rights.—This theory is based on the naturalistic viewpoint.
According to this theory, before the existence of States, man used to live natural state and
possessed some fundamental rights such as right of independence equality, self-preservation,
etc. It is contended that like man, States also possessed they fundamental rights, because so
far there is no world authority over and above the States.
Criticism.—this theory has been subjected to severe criticism by the juriss. Brierly has
made the following criticism :
(i) According to this theory when a new State is admitted to the family of nations it
brings with it certain fundamental rights which are inherent. Such rights are meaningless
unless and until there is a legal system which confers validity a them.
(ii) This theory is in favour of giving more freedom to the States and lays less emphasis
on the social relations and co-operation among the States. Into the international field the
problem is not of enhancing the freedom of States, but d restricting it so as to create social
solidarity and co-operation among the States.
(iii) Lastly, this theory regards certain fundamental rights, such as right 0
independence, equality, etc. as natural rights. But as a matter of fact, these fundamental
rights are as a result of historical development.
Thus, this theory also fails to explain the basis of international law. The true basis of
international law, as pointed out earlier, is that the rules of international law 3 binding upon
the States because they are States. It is the fact of Statehood because d which rules of
international law become applicable to States.
Influence of Natural Law.— The origin of natural law can be traced to centuries before
the birth of Christ. As aptly remarked by Dias : “...........no other firmament of legal or political
theory is so bejewelled with stars as that of Natural Laws, for it has engaged the attention of
some of the greatest thinkers of all ages.”
Credit of giving birth to natural law must go to the Greeks. After the Greek, Romans
further developed it. The early and original law of Romans was called ‘Jus civile.’ Later on,
they developed another legal system called ‘Jus gentium’. It was called ‘Jus gentium’ because
it was thought to be the law of universal application. In the republican era of Rome, ‘Jus
gentium’ was reinforced by natural law or ‘Jus naturale’ as was commonly called. By Jus
naturale the Romans meant, as pointed out by Brierly.“ sum of those principles which ought
to control human conduct, because founded in id very nature of man as a rational and social
being.”
Most of the jurists admit that natural law greatly influenced the international law and
gave it, its binding force, In other words, States followed international law because it was a
higher law (natural law) applied in special circumstances. Before we take up the discussion of
‘modern international law’, it will be desirable here to refer briefly to the criticism of medieval
conception of natural law. According to the writers of the medieval age, if there was a conflict
in between positive law and natural law, the latter would prevail.
Despite the above criticism, it must be admitted that natural law emphasised the
importance of purpose behind law. For example, Stammler admitted that Natural Law could
be adopted to the changing times and circumstances although its fundamental principles
remained unchangeable. The concepts of Natural Law developed from time to time greatly
influenced the growth of international law. In the words of Sir Henry Maine, “The grandest
function of -the ‘law of nature’ was discharged in giving birth to modern international law”.
There are many traces of the influence of natural law on international law. Thus natural law
has greatly influenced international law.
 Module – II

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND STATE/MUNICIPAL LAW

There are five theories regarding the relationship between International Law and State Law—
(1) Monism
Note: The two main theories are
(2) Dualism Monism and Dualism and other
(3) Specific Adoption Theory theories have been derived from
(4) Transformation theory, and these two theories.
(5) Delegation Theory.
(1) Monism.—According to this theory, law is a unified field of knowledge, no matter whether
it applies on individuals, States or other entities. Thus, international law and State law are
intimately connected with each other. They are the two branches of unified knowledge of
law. “According to Monist (Starke) belief, international obligation and municipal rules are
facts of same phenomenon, the two deriving, ultimately from one basic norm and belonging
to the unitary order comprised by the conception of law.” In the ultimate analysis of law, we
find that individual is at the root of all laws. In the ultimate analysis, all laws are made for
individuals. Wright Kelsen and Duguit, efc., are some of the prominent exponents of Monism.
Theoretically and logically, this appears to be the correct theory and it is very difficult to
disprove it. However, it may be noted that this theory is not based on the actual practice of
State.
(2) Dualism.—According to this theory, international law and municipal law are two separate
laws. Triepel and Anzilloti are the chief exponents of this theory. According to Triepel,
international law and State law are different because their subject and origin are different. In
his view individual is the subject of State law whereas State is the subject of international law.
Besides this, origin of the State law is the will of State, but origin of the international law is
common will of the States. It has been pointed out earlier that besides, States, individuals,
international organisations and some non-State entities are also the subjects of international
law. As regards origin of international law, the conception of State will is not correct. It is
rather metaphorical. In fact, the State will is nothing but the will of the people who compose
it. There are certain fundamental principles of international law which are binding upon the
States even against their will. In the view of Anzilloti, the fundamental principle of
international law is pacta sunt servanda (i.e. agreements, between the States are to be
respected in good faith). This can also be criticised because this principle fails to explain the
binding force of customary rules of international law.
Whether Monism or Dualism is the correct theory.—The above discussion shows that
monism is a more correct theory but it is submitted that no theory can be complete in itself
and it is not possible to include all the elements in it. The practice of States indicates that
sometimes there is a primacy of international law, sometimes there is the primacy of the
municipal Jaw and sometimes there is mixture of different legal systems, For example, in the
Greco, Bulgarian Communities case, the Permanent Court of International Justice held, “it is
a generally acceptable principle of International law that in relations, between powers who
are contracting parties to a treaty, the provisions of the municipal law cannot prevail over the
treaty.” On the other hand, when the municipal courts find that the conflict between the
international law and municipal law is of such nature that cannot be avoided, they give
primacy to the municipal law, in this connection, Mortensen v. Peters and Sri Krishna Sharma
v. The State of West Bengal, deserves a special mention. Gould has correctly observed, “As
matters stand each situation must be analysed by itself, including the tribunal before which
litigation if any, is brought in order to settle the question of which two conflicting rules of law
of different orders prevail in the concrete dispute.”
(3) Specific Adoption Theory.—This theory is based on the theory of positivists, According to
this theory, international law can be enforced in the field of State law only after it has been
specifically adopted by State law. This theory can also be subjected to criticism because there
are several principles of international law which are applied in the field of municipal or the
State law without specific adoption. However, this view is generally followed by States in
respect of international treaties. It is argued that unless there is specific adoption of the
international treaties such as Tokyo Convention Act, 1975 and Vienna Convention of
Diplomatic Relations Act, 1972 enacted by Indian Parliament or there is some sort of
transformation, international treaties as such cannot be enforced in the municipal field. While
considering the International Convention on Civil and Political Rights the Supreme Court of
India has held in Jolly George v. The Bank of Cochin “The positive commitment of the State
Parties ignites legislative action at home but does not automatically make the covenant
enforceable part of the corpus juris of India.”
As regards specific adoption of international treaties by Indian Parliament, the Ant
Apartheid (United Nations Convention) Act, 1981, the Anti-Hijacking Act, 1982, the
Suppression of Unlawful Act Against the Safety of Civil Aviation Act, 1982 and the
International Monetary Fund and Bank (Amendment) Act, 1982 deserve a special mention.
It may, however, be noted here that there are many principles of international law
(especially customary rules) which are applied in the field of municipal law without specific
adoption.
(4) Transformation Theory.—According to the exponents of this theory, the rules of
international law to be applied in the field of municipal law must undergo transformation.
This theory is also based on the theory of consent which has been already criticised earlier.
There are several law-making treaties and principles of international law which become
applicable in the field of Municipal law without undergoing the process of transformation.
The Head quarter's Agreement between the United States of America and the United Nations
is a glaring example of this.
(5) Delegation Theory.—The critics of transformation theory have put forward 4 new theory
called Delegation Theory. According to this theory, the constitutional rules international law
permits each State to determine as to how international treaties will become applicable in
the field of State law. The Constitution of each State contain’ provision in this connection.
Thus, no transformation takes place. This theory is based on presumption and has been
severely criticized.
Question of primacy.—According to the dualist theory, in case of conflict between
international law and State law, State law will prevail. On the other hand, Monistic writers are
divided on this issue. Some jurists such as Kelsen are of the view that in accordance with the
fact and circumstances there may be the primacy of the State Jaw or international law as the
case may be.
Criticism.—The view that State law will prevail over international law in case of conflict, can
be subjected to the following criticisms :
(1) The view that international law derives validity from State constitutions is absurd because
it is generally agreed that disappearance of State constitution will not affect the validity of
the international law.
(2) When a new State is admitted to the family of nations it becomes bound to obey the rules
of international law even against its will.
(3) Most of the States have accepted the supremacy of international law in their constitutions,
State practices regarding relationship between International Law and State Law.
I. British Practice:
The British Practice relating to the customary rules of international law and treaty rules is
different.
A. —British Practice regarding customary rules of International Law.—In Britain customary
rules of international law are treated as part of their own law. But these rules are subject to
the following two conditions :
(i) Rules of international law should not be inconsistent with the British Statutes.
(ii) When the highest Court determines the scope of customary rule of international Jaw, all
the courts in Britain are bound by it.
British Courts generally interpret the Statutes in such a way that they should not go against
international law and the rules of international law need not be proved through evidence in
Courts.
There are following exceptions to the British practice in regard to customary rules of
international law
(i) Acts of State do not come within the purview of the British Courts, no matter whether they
violate the rules of international law.
(ii) The British courts are bound by the prerogative power of Crown such as recognition of any
State.
B. British Practice Regarding Treaty Rules.—In Britain the practice relating to treaties is based
on the constitutional principles governing the relations between the executive and
Parliament. The matters relating to negotiations, signatures etc. come under the prerogative
powers of the Crown. In case of some type of treaties the parliamentary Consent is necessary,
while in other cases no consent is necessary for their application. Consent is necessary for the
following types of treaties :-
(a) Treaties affecting the rights of British citizens;
(b) Treaties which amend or modify common or Statute laws of Britain:
(c) Treaties conferring additional powers on Crown; and
(d) Treaties which impose additional financial burden on the Government.
In addition to these, treaties which expressly provide that for their implementation Consent
of the Parliament is required, consent of Parliament is essential for their application. The
consent of Parliament is also necessary for those treaties which cede the British territory.
Other types of treaties do not require Parliamentary consent,
I. American Practice
In America also the practice regarding customary rules and treaties rules of international law
is different.
A. Practice regarding customary rules of International Law.—In America the customary rules
of international law are treated as a part of American law. In Paquete Hobana, Justice Gray
remarked, “International Law is a part of our law and must be ascertained and administered
by the courts of justice of appropriate jurisdiction as often as questions of rights depending
on it are duly presented for determination.” The American Courts also interpret Statutes of
Congress in such a way that they should not go against, international law.
B. American practice regarding Treaty Rules.—In America the practice relating to treaty rules
is based upon the provisions of the Constitution. Article VI of the American Constitution
provides that Constitution of United States, all laws made in pursuance thereof and the
international treaties entered into under the authority of the United Nations shall be the
supreme law of the land.
Thus in America, international treaties have been placed in the same category as the
State law. However, it has been held by the Supreme Court of the United States of America
that in case of conflict between the Constitution and International Treaty, the Constitution
shall prevail. Besides this, in case of conflict between international treaty and Municipal law,
whichever is later in date prevails.
In America treaties are divided into two categories.—(1) Self-executing treaties and
(2) non-self executing treaties. Self-executing treaties become applicable in America without
the consent of Congress, whereas non-self-executing treaties require the consent of the
Congress to become applicable in the field of State law.
IIL. Indian Practice
Article 51(c) of the Constitution of India provides that State shall endeavour “to ensure
the respect to international law and obligations arising out of international treaties”, It has
been pointed out and rightly too, that the words “international law” mean customary rules
of international law because “international treaties” have beet separately mentioned in the
said provision. The above article does not provide cleat guidance regarding application of
rules of international law in the field of State law. Moreover, Article 51(c) is conspicuous by
its silence over other sources of international Jaw. It may be noted here that Article 372 of
the Constitution provides that the laws which prevailed before the adoption of the Indian
Constitution shall continue to prevail if they have not been specifically repealed or they are
not inconsistent with the provisions of the Constitution, As a matter of fact, Indian practice is
more or less same to that 0 Britain, A brief reference may be made here to the case of Sri
Krishna Sharma v. State of Bengal, wherein it was held that whenever the courts interpret
State law they should try to interpret it in such a way that their interpretation should not be
contrary to international law.
Reference may be made here to Article 253 of the Constitution which provides that
Parliament has power to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other country of counties or any
decision made at an International Conference, association or other body, Examples of
exercise of this power by the Parliament are Diplomatic Relations (Vienna Convention) Act,
1972 to give effect to the Vienna Convention on Diplomatic Relations, 1961 and the Tokyo
Convention Act, 1975 to give effect the Tokyo Convention, 1963 on Hijacking. It would,
however, be wrong to content that implementation of every treaty would require legislative
aid. This was held by the Delhi High Court in Shiv Kumar Sharma v. Union of India (1969). The
same view was held by the Supreme Court in Maganbhai Ishwar Bhai Patel v. Union of India.
In both these cases it was held that a border settlement does not amount to cession and an
agreement to implement border settlement is equivalent to self-executing treaty and does
not require any constitutional amendment or legislative aid.
In Union of India v. Sukumar Sengupta, or ‘Teen Bigha’ case, under 1974 agreement
and 1982 agreement the Government of India had given to Bangladesh Government the
facility of using the Indian area called “Teen Bigha”. As per agreement “the lease in
perpetuity” of the said area had been given for the purpose of connecting Dahagram and
Angarpota with Pandbari Mouza (P.S. Patyram) to enable the Bangladesh Government to
exercise sovereignty over Dahagram and Angarpota. Clause 2 of the agreement provided that
Sovereignty over leased area shall continue to vest in India. The rent of the lease area shall
be Re. 1/- per annum but Bangladesh would not be required to pay the said rent for the
Government of India waived its right to charge the said rent. The Supreme Court held that it
was neither cession nor lease. “The concessions given to Bangladesh over the said area might
amount to servitude suffered by it in its territory, as known in International Law”.? The
Supreme Court further held that since there was no cession of any part or territory not
abandonment of sovereignty constitutional amendment was not necessary and “there was
no cause to direct the legislature to amend or pass suitable laws.”
In case of conflict between a provision of an international treaty such as Article of
International Covenant on Civil and Political Rights to which India is a party and a provision of
a State statute such as Section 51 (proviso) and Order 21, Rule 37, Civil Procedure Code it is
the latter which shall prevail if the international treaty in question has neither been
specifically adopted in the municipal field nor has gone under transformation. This was held
by the Supreme Court of India in Jolly George Varghese Vs The Bank of Cochin. The rule laid
down by the Supreme Court in this case has been implemented by the Karnataka High Court
in Civil Rights Vigilance Committee, S.L.S.R.C. College of Law, Bangalore v. Union of India. In
this case, the High Court observed, “............ that the provision in Article 51 is not enforceable
by any court and if the Parliament does not enact any Jaw for implementing the obligations
under a treaty entered into by the Government of India with foreign countries, courts cannot
compel Parliament to make such law. In the absence of such law, courts cannot also, in our
view, enforce obedience of the Government of India to its treaty obligations with foreign
countries".
But, the position will be different when there is no conflict between International]
Conventions and the domestic law, As pointed out by the Supreme Court in Vishaka V State
of Rajasthan, in the absence of domestic law occupying the field to formulate effective
measure to check the evil of sexual harassment of working women at all work places, the
contents of International Conventions and norms are significant for the purpose of
interpretation of the guarantee of gender equality of right to work with human dignity in
Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual
harassment implicit therein. Any international convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of constitutional guarantee.
This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for
implementing the International Convention, and norms by Virtue of Article 253 read with
Entry 14 of the Union List in Seventh Schedule of the Constitution.
In this case, the Apex Court was dealing with the problem of sexual harassment of
working women. Delivering the judgment for the three Judge-Bench, I.S. Verma, C.J.L,
observed that the meaning and content of the fundamental rights guaranteed in the
Constitution of India are of sufficient amplitude to encompass all the facets of gender equality
including prevention of sexual harassment abuse. Independence of judiciary forms a part of
our constitutional scheme. The International Conventions (especially Convention on the
Elimination of All Forms of Discrimination against women) and norms are to be read into them
in the absence of enacted domestic law occupying the field when there is no inconsistency
between them. It is now an accepted rule of judicial construction that regard must be had to
international conventions and norms for construing domestic law when there is no
inconsistency between them and there is a void in the domestic law.
In Apparel Export Promotion Council v. A. K. Chopra, the Supreme Court referred with
approval the decision in Vishaka v. State of Rajasthan for its innovative judicial law-making
process”. In this case, a superior officer of the corporation was found guilty of molesting and
of having attempted to physical assault to a subordinate female employee. As a punishment,
he was dismissed from service. But the High Court held that the occurrence as alleged had
not taken place. Though the High Court did not find fault with the finding as the unbecoming
act delinquent officer or with the conduct of inquiry yet the High Court interfered with
punishment of dismissal on the ground that since the delinquent had not “actually molested”
and had “not managed” to make physical contact with her, the punishment of removal was
not justified. The Supreme Court held that what punishment was required to be imposed in
the facts and circumstances of the case was a matter which fell exclusively within the
jurisdiction of the competent authority and did not want any interference by the High Court.
The entire approach of the High Court had been faulty. The impugned order of the High Court
cannot be sustained on this ground alone. Reversing the order of the High Court, the Supreme
Court further observed that there is another aspect of the case which is fundamental and
goes to the root of the case and concerns the approach of the High Court while dealing with
cases of sexual harassment at the place of work of female employee.
Dr. Anand, C.J.L., further observed : "In cases involving violation of human rights the courts
must forever remain alive to the international instruments and conventions and apply the
same to a given case when there is no inconsistency between international norms and the
domestic law occupying the field. In the instant case, the High Court appears to have totally
ignored the intent and content of the international conventions and norms while dealing with
the case,” (AIR 1999 SC 625, 634)
The learned CT. then referred ILO Seminar held at Manila in 1993, the Convention on
the Elimination of All Forms of Discrimination Against Women, 1979, the Beijing Declaration
and the International Covenant on Economic, Social and Cultural Rights and observed : “These
international instruments cast an obligation on the Indian State to gender sensitise its laws
and the courts are under an obligation to see that the message of the international
instruments is not allowed to be drowned. The Supreme Court has in numerous cases
emphasized that while discussing constitutional requirements, court and counsel must never
forget the core principle embodied in international conventions and instruments and as far
as possible give effect to the principles in those international instruments. The Courts are
under an obligation to give due regard to international conventions and norms for construing
domestic laws more so often when there is no inconsistency between them and there is a
void in domestic law.” '
In Chairman, Railway Board and others v. Mrs. Chandrima Das and others," the
Supreme Court observed that “the International Covenant and Declarations as adopted by
the United Nations have to be respected by all signatory states and the meaning given to the
words in such declarations (for example Universal Declaration and Declaration on the
Elimination of Violence Against Women) and covenants have to be such as would help in
effective implementation of these rights. The applicability of the Universal Declaration of
Human Rights and principles thereof may have to be read, if need be, into the domestic
jurisdiction.”!
Starke has rightly drawn following conclusions : -
(1) Customary rules of international law are treated to be part of domestic law in a large
number of States and in case they do not conflict with existing municipal law, there is no need
of their specific adoption.
(2) Only in a few States, customary rules of international law, without specific adoption are
applied by municipal courts even in case of conflict with municipal statute or judge-made law.
(3) As regards practice relating to the application of treaties within the municipal sphere
practice of State is not uniform.
(4) In large number of States, municipal courts give priority to the application of municipal
law, irrespective of the applicability of rules of international law and the question of any
breach of international law is left to be settled at the diplomatic level.
 NATURE OF STATE AND DIFFERENT KINDS OF STATES AND NON-STATE ENTITIES
State is the main subject of international law. According to Salmond, “State is a
community of people which has been established for some objectives such, internal order
and external security.” In the view of Oppenheim, the existence of State is possible only when
the people of State have settled under a highest governmental authority and habitually follow
its order. Ideal definition of term ‘State’ is not possible. However, in the modern period it is
finally settled as to what are the essential elements of a State.
Essential elements of a State.—According to Article 1 of Montevideo Convention, 1933, the
State as a person of International Law should possess for ingredients—
(a) a permanent population;
(b) a defined territory;
(c) a government; and
(d) a capacity to enter into relations with other States.
According to Oppenheim, population, a defined territory, government and sovereignty
are the essential elements of a State. Holland has added one more essential element, namely.
to some extent ‘civilisation’ because of which the State becomes an international person.
Functions of State.—The modern period has witnessed revolutionary changes in regard to
functions of a State. Previously the concept of a police State prevailed. According to this
concept, essential functions of a State were to maintain internal peace and order and to
defend it from external aggression. It cannot be denied that even today these are the essential
functions of a State but in the present period the concept of State has undergone significant
changes. Instead of the concept of police State, the present concept is that of a welfare State.
That is to say, for the benefit of the people, State has to perform many social, economic,
educational and cultural functions. However, these functions may not be termed as essential
functions. They are in fact subsidiary functions although the significance of these functions is
constantly increasing.
Concept of sovereignty. — Only sovereign States are entitled to be the members of the family
of nations. In Island of Palmas Arbitration, Max Huber has defined the term ‘sovereignty’ in
the following words : “Sovereignty in the relation between States signifies independence.
Independence in regard to a portion of the globe is the right to exercise therein to the
exclusion of other States, functions of a State.”
In the modern period, the credit of propounding the concept of sovereignty goes to
Jean Bodin. In 1576, he, in his book, “De Republic", put forward the concept of sovereignty.
According to him the essential clement of sovereignty is the law-making power of the
sovereign, Since the sovereign makes the law, he does not intend to bind himself by that law.
He has tended to add that the sovereign is however bound by the Divine Law.
In the modern period there have been revolutionary changes in the concept of
sovereignty because of which it is not proper to say that States sovereignty is essential,
indivisible and illimitable. In the present time, States have entered into many international
treaties thereby surrendering a part of their sovereignty. For example, the members of the
United Nations have accepted many obligations under the Charter. It has, therefore, been
rightly remarked by Starke : “Sovereignty has a much restricted meaning today than in the
18th and 19th centuries, when with the emergence of powerful highly nationalised States,
few limits on States’ autonomy were acknowledged. At the present time there is hardly a
State which in the interest of the international community has not accepted restrictions on
its liberty of actions.”
In Union of India v. Sukumar Sengupta, Sabyasachi Mukharji, C.J. of the Supreme
Court of India quoted with approval the above observation of Starke. His Lordship added,
“Any State in the modern time has to acknowledge and accept customary restraints on its
sovereignty in as much as no State can exist independently and without reference to other
States. Under the general international law, the concept of inter-dependence of States has
come to be accepted.” Ordinarily, over one and the same territory there can be only one
sovereign. In practice however, there can be several exceptions such as :
(a) The-first and probably the only real exception is the condominium which exists
between two or more States excercising sovereignty jointly Over a territory e.g. condominium
of Austria and Prussia over Schleswig Holstein Lanenburg from 1864 till 1866 and
condominium of Great Britain and France over New Helerides (now the independent State of
Vanuatu).
(b) One State exercising sovereignty which is, in law vested elsewhere i.e. where a
territory is administered by a foreign power with the consent of the owner State é.g., Great
Britain exercised sovereignty over Turkish Island from 1878 to 1914,
(c) Giving territory on lease or pledge by the owner State to a foreign power. For example,
in 1898 China leased the district of Kiaochow to Germany, Wei-Hai-Wei and the land opposite
the Island of Hongkong to Great Britain, Kuang-Chouwan to France and Port Arthur to Russia.
(d) Where the use, occupation and control of the territory are granted in perpetuity by
the grantor State to the other State e.g., in 1903 the Republic of Panama transferred to the
United States of America a ten-mile territory for construction, administration and defence of
the Panama Canal.
(e) In case of Federal State also sovereignty is divided between a federal State and it
member States,
(f) Lastly, in case of a mandated or trust territory, the State which is given a mandated or
trust territory, exercises sovereignty over it although the territory nm not its own.
Principle of the Equality of States.—As the members of international- community, in
principle, all States are equal. This equality is due to their international personality. Despite
the dissimilarity in respect of their territories, population, Power, civilization, prosperity, etc.
all States as international persons are equal. According ty Oppenheim following are the
consequence of this legal equality:
(i) When any question is to be decided by consent each State is entitled to have one
vote. But there are exceptions to this rule, such as the veto of the permanent members of the
‘Security Council’.
(ii) Legally the importance of the votes of the weak as well strong nation is same, there
are some exceptions to this rule also.
(iii) No State can exercise jurisdiction over another State. This rule has been applied
by the courts in many cases.
(iv) Generally, the courts of a State cannot challenge the validity of the official acts of
another State so far as these acts are related to the jurisdiction of that State. The cases of
A.M. Luther & Co. v. Sugar & Co.,4 and Underhill v. Hernandez,> deserve special mention in
this connection.
 In principle all States are equal. But in reality, they are unequals in respect of their
respective powers, territory, property, etc. Oppenheim has rightly pointed out the legal
equality must not be confused with political equality. The enormous differences as regards
their strength are the result of their natural inequality which, apart from rank and titles, finds
its expression in the province of policy. Politically, States are in no manner equals.
The U.N. Charter is based on the principle of ‘Sovereign equality’ of States but in reality
great powers are unequal to small States (and legally also because they possess the power of
veto under the Charter). Thus, the equality of States is a general principle but there are several
important exceptions of this principle.
Different kinds of States and Non-State Entities
(1) Confederation.—It is formed by States who are independent in the international field.
Under International Law confederation has no international personality. The States forming
confederation are not treated as international persons.
(2) Federal State.—Generally a federal State is formed by the merger of two of more
sovereign States. A federal State is an international person under international law. United
States of America, Switzerland and India are good examples of federal States.
(3) Condominium.—Condominium is a territory where two or more States exercise
sovereignty. New Hebrides is a good example of condominium. England and France had a
joint sovereignty over New Hebrides.
(4) Vassal State.—A vassal State is a State which is under the suzerainty of another State. Its
independence is so restricted that it has no importance under international law, it is treated
to be under the international guardianship of another independent State.
(5) Protectorate State.—A protectorate State is a State which entrusts some of its important
functions to another sovereign State. It retains a sufficient measure of sovereignty and
remains a State under international law. For example, Bhutan is a protectorate State of India.
Difference between Protectorate and Vassal State
Protectorate State Vassal State
1, A protectorate State generally entrusts its 1. Vassal State is generally autonomous in its
defence, external affairs etc. to another internal matters, but is completely
State. dependent upon another State in external
matters.
2. A protectorate State remains a State 2. A vassal State is not treated a State under
under international law. international law.
3. Since a protectorate State retains a 3. A vassal State is bound by treaty of war or
sufficient measure of sovereignty, peace entered into by the State under
declaration of war or peace made by the whose international guardianship it remains
protecting State with another State is not
binding upon it.

(6) Trust Territories.—As Provided under Article 86 of U.N. Charter.

International Position of Bhutan, Tibet, Holy See or Vatican City and Commonwealth of
Nations
Bhutan.—Bhutan is a protectorate State of India. It is a hilly region in, North-East of Nepal. In
1949, through a treaty Bhutan entrusted the matter of foreign affairs and defence to India. It
thus became a protectorate State of India. Since, a protectorate State retains a sufficient
measure of sovereignty, Bhutan remains a State under international law. In 1971, Bhutan
became a member of the United Nations.
Tibet.—In Simla Conference, 1914, Tibet was declared a protectorate State of China. This was
further confirmed by the Treaty of 1951. China accepted Dalai Lama as the spiritual head of
Tibet. Tibet was autonomous in its internal matters, but China started interfering in the
internal matters of Tibet. In 1959, the situation deteriorated so much that the conflict took
the form of war between China and Tibet. China ruthlessly suppressed the movement of the
people and Dalai Lama was compelled to leave Tibet. He fled away from Tibet and took asylum
in India, China criticised action of India in granting asylum to Dalai Lama and claimed that it
was an interference in her internal affairs, at its very face this argument is absurd because as
a sovereign State, India was Within her rights to grant asylum to Dalai Lama and his followers
within her territory.
Holy See or Vatican City.—Holy See or Vatican City is a place where Pope resides. In the
middle of 19th century the rulers of Italy seized the territory of Pope and Occupied his capital
Rome. He, therefore, fled to his residential place called Vatican City, ln 1871 Italy granted
some guarantees to Pope. Next important change took place in 1929 when a treaty was
concluded between Pope and Government of Italy. Vatican City Comprising of 100 acres of
land was accepted as a State and Pope was treated as a sovereign of this State. The present
position of Vatican City is that it is an international person and possesses all the rights and
duties of a sovereign State.
Commonwealth of Nations.—Commonwealth of Nations is an association of those States
(except Britain) which were at some time the colonies of the British Empire Britain, Canada,
Austria, Cyprus, Nigeria, New Zealand, India, Pakistan, Ceylon, Malaysia, Singapore, etc. are
its members, Before 1948 it was called the British Commonwealth of Nations. In 1948 the
term ‘British’ was dropped. It is now called, the Commonwealth of Nations. All the members
of the Commonwealth of Nations are now sovereign States. Under International-Law,
Commonwealth of Nations is neither a State nor a federation. It is in fact a loose association
of equal and sovereign States who are members of the United Nations and have agreed to
follow certain general principles Thus, under International Law, Commonwealth is not a
separate independent entity.
Distinction between a Neutral State and a Neutralised State.— A neutral State is a State
which does not support either belligerent State during war. A neutralise State on the other
hand is a State whose independence and territorial sovereignty is collectively accepted by an
international agreement. A neutral State may at its will, give up its neutrality, but a neutralised
State without violation of the treaty, cannot give up its neutrality. Switzerland, Belgium,
Austria is some of the neutralised States whose neutrality has been guaranteed by
international agreements. Switzerland is an ideal neutralised State because it has not even
joined United Nations. Austria became a member of the United Nations in 1955. Starke has
expressed the view that a neutralized State may become a member of the U.N. because under
Article 48, the Security Council may exempt a neutral State from giving support in any
enforcement action. The view of Starke is only partly correct because the membership of the
U.N. invariably and undoubtedly dilutes the neutrality at least to some extent because under
Article 48, the Security Council may exempt neutral States from taking part in enforcement
action but that is not a mandatory provision. In case the Security Council decides that such a
State has to support the enforcement action, the neutrality of such a State will end as regards
that particular case.
 ACQUISITION AND LOSS OF TERRITORY

Territory refers to a geographical concept. Land, rivers, lakes, roofs, islands, internal
or international waters, territorial space, and air space are all included in it. Territory can be
subject to one of four types of regimes, one of which is territorial sovereignty. They are as
follows:

1 Res nullius: Territory may be acquired by the States, but it has not yet been granted
territorial sovereignty.
2 Res communis: Territory that cannot be governed by a state such as the high seas and
the exclusive economic zones.
3 Terra nullius: Territory that has never belonged to any other State, but these States
have their own status.

Modes of acquiring territories.—Following are the modes of acquiring territories under

International Law : These modes of acquisition can be divided into categories, first one is
Original and second one is Derivative. Occupation and accretion are commonly described as
original, cession as derivative. Here, it is pertinent to note that there are still differences of
opinion in regard to conquest and prescription. The said classification has no practical value
and misleading in terms of modern practice

(I) Occupation.— According to Starke, “Occupation consists in establishing sovereignty over

a territory not under the authority of any other State whether newly @scovered or an unlikely
case—abandoned by the State formerly in control.”

Article 42 of The Hague Regulations of 1907 defines occupation as follows: “Territory is

considered occupied when it is actually placed under the authority of the hostile army. The
occupation extends only to the territory where such authority has been established and can
be exercised.”

A leading case regarding occupation is Island of Palamas Arbitration, (1929). In this case there
was a dispute between America and Netherlands over the Island of Palamas. America claimed
to have acquired it under a treaty of 1898 with Spain. This Island was discovered by the
Spaniards. On the other hand Netherlands claimed to have occupied it since 1700. According
to the Court of Arbitration, Island of Palamas was a part of Netherlands because although it
was discovered by Spaniards, they never occupied it and established contracts with the
inhabitants of the Island. Thus, for occupation of a territory ft is not sufficient to have an
intention to establish sovereignty over the territory concerned. It is also necessary to make
some actual exercise of such authority.

in Eastern Greenland case the Permanent Court of International Justice laid down the
following two tests:

(1) For occupation it is necessary that there must be an intention and will to act as Sovereign
over the territory concerned.
2) There should be some actual exercise or display of such authority. The facts in this case are
as follows :

On July 10, 1931, Norway declared her sovereignty over the eastern part of Greenland trough
a Government decree, on the other hand, Denmark also claimed her sovereignty over the said
area. During the Second World War and afterwards several allied powers had declared that
the whole Greenland was a part of Denmark. They had also made it clear that they would not
object to the sovereignty of Denmark over the Greenland. The Foreign Mister of Norway had
also accepted this fact and had made clear the Norway would have no objection in this
connection. By a majority of 12 against 2, the Permanent Court of International Justice
decided that Eastern Greenland under the sovereignty of Denmark, The Court held : “A claim
to sovereignty based not upon some particular act or title such as treaty of cession but merely
upon continued display of authority, involves two elements each of which must be shown to
exist; the intention and will to act as Sovereign, and some actual exercise or display of such
authority,”

Distinction between Occupation and Subjugation.—As pointed out by Prof Oppenheim,

“Occupation is a mode of acquisition which differs from subjugation chiefly in that the
subjugated territory previously belonged to another State,” ‘Thus while in the case of
subjugation the territory previously belonged to another state, in case of occupation it did
not belong to any other state.

(II) Prescription.— Yet another mode of acquiring territory is by prescription. In the words of
Starke, “Title by prescription is the result of peaceable exercise of de facto Sovereignty for a
very long period over a territory subject to the sovereignty of another state" But international
law does not prescribe any fixed period for prescription.
Ax pointed out by an eminent writer, D.H.N, Johnson, a state may acquire sone territory by
prescription only when the following conditions are fulfilled —
(i) When it has not accepted the sovereignty of any other stale over the say territory.
(ii) Possession should be peaceful and uninterrupted.
(iii) Possession should be in public.
(iv) Possession should be for a definite period.
It may, however, be noted that in the presence of some treaty or convention, territory Cannot
be acquired by prescription through administrative acts only.

(III) Accretion.—As pointed out by Starke, “Title by accretion occurs when new territory is
added mainly through natural causes, to territory already under the sovereignty of the
acquired State.” No formal act or assertion of title is necessary.

(IV) Cession.—Transfer of sovereignty over state territory by the owner to another state. The
state acquiring the territory is called acquiring state and the state which transfers the territory
is called ceding state. However, ceding as well as acquiring states must be state and the
transfer must be through a legal agreement between the two parties.

Kinds of Cession :
Peaceful Cession : Cession which results from peaceful negotiations such as sale, exchange or
gift etc for example. Pakistan bought Gawadar from Oman in 1957.

Treaty Cession : Often after the war, culminating in peace treaty for example, treaty of
Versailes after the word war first.

Territory may also be acquired through cession. It may either be a voluntary act or in
consequence of a war. Cession is generally considered valid only when the sovereignty of the
territory concerned is transferred to another State. In re Berubari Union and Exchange of
Enclave, the Supreme Court of India observed : "........... it is an essential attribute of
sovereignty that a Sovereign State can acquire foreign territory and, in case of necessity, cede
a part of its territory in favour of a Sovereign State and this can be done in exercise of its
treaty-making power. Cession of national territory in law amounts to the transfer of
Sovereignty over the said territory by the owner State in favour of another State............. This
power, it may be added is of course subject to the limitations which the Constitution of the
State may either expressly or by necessary implication impose in that behalf.”

in Union of India v. Sukumar Sengupta, (popularly known as Tin Bigha case). Tie Bigha
area was given to Bangladesh by India under the 1974 and 1983 agreements to connect
Dahagram with Panbari Mouza (S. Patram) of Bangladesh. As per agreement “lease in
perpetuity” was given over the area at the rate of Re. 1/2 per annum but the government of
India waived its right to charge such rent in respect of the leased area. The Agreement
provided that “Sovereignty over the leased area shall continue to vest in India”. Delivering the
judgment, Sabyasachi Mukarjee, C.J. observed : “A fortiori, the said transaction did not
amount to cession of the said area of Teen Bigha in favour of Bangladesh. Cession as
understood in international law would result in an actual and physical transfer of the said area
to Bangladesh following which Bangladesh would have the exclusive right to treat the said
transferred territory as part of its own territory and exercise full control, dominion and right
over the same. This is not the position or the situation which is contemplated under the
agreement. The rights intended to be conferred on Bangladesh under the said agreements
would amount to what is known as ‘servitude’ in international law.”

(V) Annexation.— A territory may also be acquired by annexation. It is, however, necessary
that after conquest, sovereignty must be established over the territory. That is to say.
effective occupation after conquest is necessary. This mode has become obsolete after the
commencement of the Charter of the U.N. Article 2 (4) of the Charter make it incumbent upon
Member States to refrain in their international relations from the threat gust of force against
the territorial integrity or political independence of any state, or in gay other manner
inconsistent with the purposes of the United Nations. In view of this vision acquisition of
territory by annexation is no more legal. A recent example of gas 15 the annexation of Kuwait
by Iraq. After annexation Iraq declared Kuwait to be its 19h province. But, the Security Council
of the U.N. declared the annexation of Kuwait as well as the said declaration of Iraq as null
and void. Subsequently, Kuwait was freed.
(VI) Lease.—Yet another mode of acquiring territory is by way of lease. A State may lease a
part of its territory to another State. For example, State of Malta has leased an island to Britain
for some time. Similarly, Panama leased Panama Canal area to the U.S.A.

(VII) Pledge.—Sometimes a State may pledge a part of its territory to another Site in return
of some money.

(VIII) Plebiscite.—There is controversy as to whether a territory may be acquired through

plebiscite or not. A recent example of acquiring territory by this mode is that of West Iran
which was claimed both by Netherlands and Indonesia. A plebiscite was held under the
auspices of United Nations. The people of West Iran decided to merge with Indonesia.

Example of Kashmir.—In case of Kashmir, Pakistan has claimed that there should be plebiscite
so as to enable the people of Kashmir to decide whether they like to merge with India or with
Pakistan. In the beginning India had agreed to hold plebiscite, but later on India contended
that in view of the changed circumstances no plebiscite, was necessary. Some jurists contend
that the right of plebiscite is related to the right of self-determination expressed in the Charter
of the United Nations. But, as rightly pointed out by Rahmat Ullah Khan, the principle of self-
determination applies only in the process of decolonization. It cannot be applied to
established states in their territorial disputes. It is contended that support for the principle of
self-determination as obligatory on member state cannot be found in Article I of the United
Nations Charter. Thus, so far as position is concerned, plebiscite has yet to become an
obligatory norm of national law, India cannot, therefore, be rightly blamed for violating the
rules of “national law, though she may be accused as she has often been done, retracting her
To sum up, the Kashmir episode shows tactless handling by Indian diplomats than a case of
the violation of the rules of International Law,

(IX) Acquisition of territorial sovereignty by newly emerged State.— Yet another method of
acquiring territorial sovereignty is through the emergence of a newly independent State. This
is particularly true in case of those states who were previously We colonies of some states. In
this connection the difficulty is how the territory which was previously part of another State
can acquire sovereignty after becoming independent. This has been aptly explained by Starke
in the following words ; “This abstract difficulty may be resolved by treating the people of the
territory, as such, provided they have sufficient degree of political maturity, as having or
acquired sovereignty pending attainment of statehood. Upon the foundation of new State,
there is simply a crystallisation of the situation, territorial sovereignty of the people than
becoming that of the State itself.”

Modes of loss of territory.—Following are the modes through which a territory may be lost :

(1) Cession.—As one State acquires the territory through cession, the other State looses it.

(2) Operation of Nature.—Sometimes a State may lose its territory through the operation of
nature such as earthquake, etc.

(3) Subjugation.— A state may acquire territory through the operation of nature.
(4) Prescription.—When a state occupies a particular territory for a long period then it is
entitled to acquire it through prescription. On the contrary, the state which had occupation
over it earlier may lose it.

(5) Revolt.—Sometimes a state may lose its territory and a new state may emerge. For
example, as a result of revolt, Pakistan lost the territory of East Pakistan and a new State of
Bangladesh emerged.

(6) Dereliction.—When a state renounces a part of its territory or fails to exercise or slackens,
to exercise sovereignty over it, then it may lose such territory. Such examples are however,
very rare in history.

(7) Losing a Territory by Granting of Independence to a colony.— Britain, France and other
imperialist states lost territories during last few decades by granting independence to
colonies or otherwise acquiring of independence by the colonies.
 Module – III

LAW OF THE SEA

Introduction - All states, from thousands of years ago, were in a constant search to determine
their territories and extend their sovereignty and jurisdiction seaward, in order to have access
to the natural resources. Accordingly, the regime of maritime zones, which are the internal
waters, territorial sea, contiguous zone, the continental shelf, the Exclusive Economic Zone,
and the high seas, has been developed gradually over the centuries.
The Maritime Zones regime aims to achieve balance between the rights of the Coastal state
over the sea under their exclusive sovereignty (mare clausum), and the interests of the
international community on the free sea (mare liberum). Such balance can only be achieved
through the 'due regard principle', which shall be applied by all States when exercising their
rights and duties over the mentioned zones.
This Explanatory Note will articulate the development of the maritime zones in the
international law, starting from the customary international law, the Geneva Convention on
the Law of the Sea1958, and the United Nations Convention on Introduction
All states, from thousands of years ago, were in a constant search to determine their
territories and extend their sovereignty and jurisdiction seaward, in order to have access to
the natural resources. Accordingly, the regime of maritime zones, which are the internal
waters, territorial sea, contiguous zone, the continental shelf, the Exclusive Economic Zone,
and the high seas, has been developed gradually over the centuries.
The Maritime Zones regime aims to achieve balance between the rights of the Coastal state
over the sea under their exclusive sovereignty (mare clausum), and the interests of the
international community on the free sea (mare liberum). Such balance can only be achieved
through the 'due regard principle', which shall be applied by all States when exercising their
rights and duties over the mentioned zones.
This Explanatory Note will articulate the development of the maritime zones in the
international law, starting from the customary international law, the Geneva Convention on
the Law of the Sea 1958, and the United Nations Convention on the Law of Sea 1982
(UNCLOS).
The United Nations Convention on the Law of the Sea 1982 (UNCLOS)
UNCLOS is a globally recognized regime dealing with all matters relating to the law of the sea.
It prevails as between state parties over the Geneva Convention on the Law of the Sea of
1958. The Convention comprises of 320 articles and nine annexes, governing all aspects of
ocean space such as, the maritime zones, the delimitation of the sea Boundaries, the
environmental control, marine scientific research, economic and commercial activities,
transfer of technology and the settlement of disputes relating to ocean matters.
Concerning the Maritime Zones, UNCLOS includes eight maritime zones namely; the internal
waters, the territorial sea, the contiguous zone, the exclusive economic zone, the continental
shelf, the archipelagic waters, the high seas, and the area. UNCLOS defined the mentioned
zones and their extent, the legal status of each zone, the rights and duties of the States over
them. Furthermore, UNCLOS specifies the baselines by which the breadth of the territorial
sea is measured.
Overview of the Provisions on the maritime zones
UNCLOS in part II contains provisions clarified the internal waters, the territorial sea and the
baselines for measuring the territorial sea. Besides this, UNCLOS clarified the legal status of
the territorial sea, its breadth, and the rights of the Coastal State over the territorial sea. in
addition to the rights of the other States of the innocent passage through the territorial sea,
and the jurisdiction of the Coastal state in relation to foreign ships.
The Contiguous zone provisions stipulated in part II section 4 which consists of two articles
govern this zone. Part V, identified the specific regime of the exclusive economic zone.
Furthermore, it stipulated the rights, jurisdiction of the Coastal States in the mentioned zone,
the rights and duties of the other States in the zone. The continental shelf has been regulated
by part VI, which defined it and specified the rights of the Coastal State over the continental
shelf. All these mentioned zones will be discussed in further detail in the following
paragraphs, starting with the baselines, from the breadth of the territorial sea is measured,
as follow: (1) The Baselines (2) The Internal Waters (3) The Territorial Sea (4) Contiguous Zone
(5) Exclusive Economic Zone (EEZ) (6) Continental Shelf (7) High Sea
1. The Baseline:- is a legal construct: an artificial boundary line that determines where a
State’s maritime sovereignty and jurisdiction begins and ends. In fact, baseline determine
demarcation all areas of maritime jurisdiction. They create a demarcation between areas
where a State has no rights and those where a State dose enjoy rights. We should now
note that the default baseline under UNCLOS is the normal baseline. According to Article
5 of UNCLOS, a normal baseline is drawn at the low-water line, as stated in official charts.
Perhaps the easiest way to think of normal baseline is as an “Outline” of a State’s coast.
Waters on the landward side of a baseline are considered a State’s internal waters,
treated much in the way that land would be treated. However, in some situations, it is
either impractical or uneconomical to draw a normal baseline. In such cases, Straight
baseline are used in lieu of normal baselines. Normally, a sea baseline follows the low-
water line of a coastal state {Article 5 of United Nations Convention on the Law of the
Sea (UNCLOS 1982)}.
Literally, it is the method of measuring maritime zones and the coastal state itself has to
determine the baseline which must then be shown on charts or defined by adequate
geographical coordinates and given adequate publicity (Article 16). It involves the
following method
➢ normal baseline:- Article 5 of UNCLOS provide; except where otherwise provided in the
convention the normal baseline for measuring the breadth (width) of the territorial sea
is the low-water line along the coast as mark on large-scale charts officially recognised
by the coastal state.
➢ Reefs:- Article 6 of UNCLOS Provides; in the case of Islands situation on the atolls or of
Islands having fringing Reefs the baseline for measuring the breadth of the territorial sea
is the sea-ward low-water line of the reef, as shown by the appropriate symbol on chat
officially recognised by the coastal state
➢ Straight baseline- Article 4(1) of UNCLOS Provides; are normally applied in rough costs
which are either covered or in the case or an inland. Straight baseline may be used in
localities where the coastline is deeply and indented and cut into, or if there is a fringe
of Islands along its costs in its immediate vicinity. Also read condition in the application
of straight baseline under Article 4(2), Article 4(4), Article 4(5), Article 4(6), and Article
7(1).

There is no specified length for straight baselines (although the longest straight
baseline drawn by Norway was 44 nautical miles in length. The first guidelines for
drawing straight baselines arose out of one of the most famous and contentious cases in
international law: the 1951 Anglo-Norwegian Fisheries Case (UK Vs Norway). In this case,
the United Kingdom and Norway contested access to fisheries off the Norwegian coast.
Norway had attempted to claim ocean areas through some creative cartography: by
drawing “straight baseline” from point along its rugged coastline and asserting that the
enclosed areas in between the deep fjords were exclusive Norwegian fisheries. The U.K.
argued against this by maintaining the baseline should follow the outline of the coast,
using the trace parallel or course tangent methods of drawing baselines. The internal
court of justice eventually ruled in favour of Norway’s method of drawing straight
baselines.
➢ Archipelagic Baseline:- The method of delimiting the territorial sea is that of joining the
outermost point of the outermost inland and drying reefs. For purpose of facilitating
navigation, the archipelago must designate/indicate sea lanes to be followed by ships
and other marine vessels exercising the right of innocent passage.
➢ Equidistance:- This is the method used to delimit the territorial seas of two adjacent and
opposite states. The method begins normally with negotiations and agreement of the
two states on delimitation in particular and specific circumstances the two states may
resort to historical titles however in absence of an agreement of delimitations or absence
of agreement on the application of historical titles then the solution is to resort to the
application of the equidistance principle.
2. The Internal Waters :- The Internal Waters defined in UNCLOS article 8 (1) as "the
waters on the landward side of the baseline of the territorial sea". Such waters classed as
appertaining to the land territory of the coastal state. The Internal Waters may include
bays, ports, permanent harbour, rivers, lakes and Canals.
The Internal Waters constitute an integral part of the Coastal State, and have the same
legal character as the land itself. The Coastal State enjoys full territorial sovereignty over
them in the sense that no State can claim the right of innocent passage or transit over
such waters.3° However, there is an exception to this rule, where straight baselines are
drawn along an indented coast enclosing as Internal Waters areas which have not
previously been considered as such, the right of innocent passage continues to exist
through those waters. The landlocked State has the right to transit through the internal
water.31 Entrance to internal waters requires permission from the Coastal State, except
for ships that are in distress, since the ports are regulated by the Coastal State.32 The
entrance for purposes of commerce, navigation or even fisheries is subject to bilateral
agreement with the Coastal State.
The Coastal State has a right to take the necessary steps to prevent any breach of any
conditions or Regulations and to protect its Internal Waters.33 Those steps include seizure
of ships in cases of violations, arrest of ships as a security in civil action or action in rem
against the ship itself. In addition to the detention of ships for the unseaworthy condition
or for incompliance with the formalities and legal requirements set forth in accordance to
UNCLOS and related international Instruments. Or even in cases of pollution caused by
the ships. In all cases, the Coastal State has sovereignty over the Internal Water, and all
ships will be subject to it. The regime of the internal waters led to emerge of the port state
control.
3. The Territorial Sea:-The territorial sea is a narrow belt of water extending seaward from
a Coastal State's baselines. It is also called the 'Territorial Waters' or 'Maritime Belt'. The
breadth of the Territorial Sea provided for in article 3 UNCLOS, which allows the State to
establish the breadth of the Territorial Sea up to a limit not exceeding 12 nautical miles,
as a maximum limit measured from baselines.
The Coastal State has inherent right to have a territorial sea, it does not need to declare
or claim it, as it is sovereignty extends beyond its land territory and its Internal Waters,
and to the airspace over the territorial sea, as well as its bed and subsoil. Meaning, the
Coastal State has jurisdiction over its territorial sea to make rules and regulations to
regulate activities occurred in it, and take enforcement measures thereto. The rights of
the Coastal State over its territorial.
1 Nautical miles = 1.852 Kilometers = 1.15077945 miles
12 Nautical miles = 22.224 Kilometers = 13.8093534 miles
200 Nautical miles = 370.4 Kilometers = 230.15589 miles
 4. Contiguous Zone :- This area extends nearly 24 nautical miles from the baseline of the
sea. It can be called an intermediate zone located between high seas and territorial. The
coastal states have all the rights to prevent and punish immigration, infringement, and
sanitary and custom laws bordering the region and the territorial sea. It gives sovereignty
to a region only on the sea surface & floor. This zone does not have air rights or space
rights.
5. Exclusive Economic Zone (EEZ):- It extends 200 nautical miles to the sea from the
baseline. With EEZ, any coastal region has the right to explore, conserve and manage
natural sources in the seabed and subsoil, no matter if the resources are living or
nonliving. They have exclusive rights to bear every activity like energy production from
the sea, water current, and winds. EEZ exclusively allows the rights mentioned above. This
zone does not provide the coastal state with the liberty to prohibit navigation (only under
various exceptional cases).
6. Continental Shelf :- According to W.Friedman, the continental shelf can be defined as
the zone around the continent that extends from a low water line to depth and usually
marked towards greater depth. What is commonly referred to as a “continental shelf” is
a sloping platform that covers continents and islands? This is a submerged seabed that
borders continental landmass and is found as an extension or part of that land. It usually
extends to a depth of about 200 meters.The coastal countries have limited sovereignty
rights on the continental shelf to explore and use “natural resources”, not sovereignty.
7. High Sea :- These are the ocean’s surface and water column that does not come under
the exclusive economic zone, territorial sea, or the internal water. It is called the
“Common Heritage Of All Mankind” and is beyond the nation’s jurisdiction. Coastal
countries can conduct various activities in the High Seas only if they are peaceful activities
like undersea exploration or marine studies.
The maritime Zones or Maritime Belt or Territorial Waters:- maritime zones are sea-zones
recognized under international law include, the territorial sea, the contiguous zone, the
exclusive economic zone, the continental shelf, the high seas and the area. Most of the rules
governing the maritime zones have been developed from customary international law, since
the early debate about the status of the ocean, to the dominance of the freedom of the sea
doctrine, and the practice of the states of dominion over the ocean for different purposes.
This custom has been codified in the 1958 Geneva Conventions and some provisions of
Nations Convention on the Law of the Sea 1982 (UNCLOS) from Part II. The 1958 Geneva
Convention Territorial Waters and Contiguous Zone provided that the coastal state CH
exercises sovereignty over that part of the sea which is called maritime or territorial water.
The coastal stale exercises sovereignty not only over the territorial waters, but also over air
space above it. Article 2 of the U.N. Convention on the Law of the Sea, 1982, contains a similar
provision.
Problems of Width of the Territorial Waters— Upto 18th Century the canon shot rule was
prevalent. According to Bynker-Shoek, the breadth of the maritime belt extends to that
distance where a canon can fire. Upto 19th century the range of canon-shy was generally 3
miles, In the 19th century, the 3 mile canon-shot rule became very much prevalent. Scientific
inventions and discoveries made this rule inadequate because the range of canon-shot
increased considerably, According to Grotius the Sovereignty of a coastal state over maritime
beit should extend to that area upto which it can exercise effective control. Famous jurist
Vattel also subscribed to this view. Few countries of the world still voluntarily subscribed to
3 mile rule, but international law did not fix any width of the territorial waters. In order to fix
the width of maritime belt the first important attempt was made in the Hague Conference of
1930, but with no success, The next important attempt was made in the Geneva Conference
on the Law of the Sea, 1958, put no agreement could be reached. Different states claimed
different width of territorial waters. The extreme case was that of Chile, Peru, Equator,
claiming territorial waters extending to 200 miles. The general consensus was however,
between a territorial water extending from 3 miles to 12 miles. In order to solve this
unresolved problem, another Geneva Conference was held in 1960 wherein the United States
of America submitted a compromise formula. This formula envisaged 6 miles of territorial
waters and outside this there should be another 6 miles given to the coastal state for fishing,
etc. Unfortunately, this proposal could not be accepted as it was defeated by a majority of a
single vote.
India claimed territorial waters upto 3 miles upto the year 1956. In that year, India extended
its territorial waters of 3 miles to six miles through a presidential Proclamation and later on
to 12 miles in 1967. The controversy finally ended with the adoption of the U.N. Convention
on the Law of the Sea, 1982. According to Article 3 of the convention, breadth of territorial
sea is 12 nautical miles measured from baselines.
Innocent Passages. —The right of foreign merchant vessels to have “innocent passage”
through the territorial waters of a state is a well recognised principle of international Jaw. The
law in this connection was codified in the Geneva Convention on the territorial Sea and the
Contiguous Zone, 1958. Section III of this convention (comprising of Articles 14 to 23, deals
with the right of innocent passage. Article 14 provides that ships of all states, whether coastal
or not, shall enjoy the right of innocent passage through the territorial Sea-Passage means
navigation through the territorial sea for the purpose either of traversing that without
entering internal waters or for proceeding to internal waters, or of making for the High Seas
from internal waters. Passage includes Stopping and anchoring but only in so far as the same
are incidental to or are rendered necessary by force majeure or by distress. Passage is
innocent so long as it is not Prejudicial to the peace, good order or security of the coastal
state. Such passage shall take place in conformity with the provision of the convention and
other rules of international law. Further, passage of foreign fishing vessels shall not be
considered innocent if they do not observe such laws and regulations as the coastal state may
make and publish in order to prevent these vessels from fishing in the territorial sea.
Submarines are required to navigate on the surface and to show their flag. A similar provision
is contained in Article 17 of the U.N. Convention on the Law of the Sea, 1982.
It is also provided that the coastal state must not hamper innocent passage through the
territorial sea. The coastal state is, however, required to give appropriate publicity to any
dangers to navigation, of which it has knowledge, within its territorial sea. But, the Coastal
state is required to give appropriate publicity to any dangers to navigation of Which it has
knowledge within its territorial waters. Article 16 of the Geneva Convention empowers the
coastal state to take necessary steps in its territorial sea to prevent passage Which is not
innocent. Further, foreign ships exercising the right of innocent passage Shall comply with the
laws and regulations enacted by the coastal state in conformity With the convention and
other rules of International Law and, in particular, with such laws and regulations relating to
transport and navigation. It may be noted that the 1958 Geneva Convention on Territorial Sea
and the Contiguous Zone is conspicuous by its silence in respect of foreign nuclear powered
ships and ships carrying nuclear or other inherently dangerous or noxious substance, The
Third United Nations Conference on the Law of the Sea has taken it into account ang provides
that foreign nuclear powered ships and ships carrying nuclear or other inherently dangerous
or noxious nuclear substances shall, when exercising the right of innocent passage through
the territorial sea carry documents and observe special precautionary measures established
for such ships by international agreements. Obviously, it is far from Satisfactory to ensure
peace, good order and security of the coastal state but it is only this provision which most of
states agreed upon.
Detail study of few Provisions on the maritime zones
Contiguous Zone—Contiguous Zone is that part of the sea which is beyond and adjacent to
the territorial sea of the coastal state. According to Article 53 of the UN, Convention on the
Law of the Sea, 1982, in a zone contiguous to its territorial sea, the coastal state may exercise
the control necessary to —~ (a) prevent infringement of its customs, fiscal, immigration or
sanitary regulation within its territory or territorial sea; (b) punish infringement of the above
regulations committed within its territory or territorial sea, The contiguous may not extend
beyond 24 miles from which the breadth of territorial sea is measured. That is to say, it is
twelve miles beyond the territorial sea.

Straits used for International Navigation. —As noted above, in Corfu Channel case (1949) the
International Court of Justice has held that states in time of peace have a right to send their
ships through straits used for international navigation between two parts of the sea without
the previous authorization of a coastal State, provided that the passage is innocent. The same
rule has been adopted in the U.N. Convention on the Law of the Sea, 1982. As regards straits
which are used for international navigation between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive economic Zone, Article 38 of
the Convention provides that all ships and aircraft shall enjoy the right of transit passage,
which shall not be impeded, except that, if the strait is formed by an island of a state bordering
the strait and its mainland, transit passage shall not apply if there exists seaward of the island
a route through the high seas or through an exclusive economic zone of similar convenience
with respect navigational and hydrographical characteristics. Further, transit means the
exercise of the freedom of navigation and overflight solely for the purpose of continuous and
expeditious transit of the strait between one part of the high seas or an exclusive economic
zone. However, the requirement of continuous and expeditious transit does not preclude
passage through the strait for the purpose of entering, leaving or returning from a State
bordering the strait, subject to the conditions of entry to that state,
As regards duties of ships and aircraft during transit passage, Article 39 provides the following:
(1) Ships and aircraft, while exercising the right of transit passage, shall : (¢) proceed without
delay through or over the strait; (b) refrain from any threat of use of force against the
sovereignty, territorial integrity or political independence of states bordering the strait or in
any other manner in violation of the principles of international law embodied in the Charter
of the United Nations; (c) refrain from any activities other than those incident to their normal
modes of continuous and expeditious transit unless rendered necessary by force majeure of
by distress; (d) comply with relevant part of Part III of the Convention.
(2) Ships in the transit passage shall : (a) comply with generally accepted international
regulations, procedures and practices for safety at sea, including the international regulations
for preventing collisions at sea; (b) comply with generally accepted international regulations
procedures and practices for the prevention, reduction and control of population from ships.
(3) Aircraft in transit passage shall : (a) observe the Rules of the Air-established by the
International Civil Aviation Organization as they apply to Civil aircraft; state aircraft will
normally comply with such safety measures and will at all times operate with due regard for
the safety of navigation : (5) at all times monitor the radio frequency assigned by the
competent internationally designated air traffic control authority or the appropriate
international distress radio frequency.
Archipelagic Waters of an Archipelagic State—An “Archipelagic State” means a state
constituted wholly by one or more archipelagos and may include other islands. “Archipelago”
means a group of islands, including parts of islands, interconnecting waters and other natural
features which are so closely inter-related that such islands, Waters and other natural
features form an intrinsic geographical, economic and political entity or which historically
have been regarded as such. An archipelagic state nay draws straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main island and an area in which the
ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9
to 1. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per
cent. of the total number of baselines enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles.
Article 48 of the U.N. Convention on the Law of the Sea, 1982, provides that the breadth of
the territorial sea, the contiguous zone, the Exclusive Economic zone and the continental shelf
shall be measured from archipelagic baselines drawn in accordance with Article 47. As regards
baselines, Article 47 provides the drawing of such baselines shall hot depart to any
appreciable extent from the general configuration of the archipelago. Such baselines shall not
be drawn to and from low-tide elevations, unless lighthouses or Similar installations which
are permanently above sea level have been built on them or where a low-tide elevations
situated wholly or partly at a distance not exceeding the breadth of the territorial sea from
the nearest island. Further, the system of such baselines Shall not be applied by an
archipelagic state in such a manner as to cut off from the high Seas or the exclusive economic
zone the territorial sea of another state.
As regards the legal status of archipelagic waters, Article 49 of 1982 convention Provides, the
sovereignty of an archipelagic state extends to the water enclosed by the archipelagic
baselines drawn in accordance with Article 47, described as archipelagic Waters, regardless
of their depth or distance from the coast. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and sub-soil, and the resources contained therein
Article 50 provides that within its archipelagic waters, the archipelagic state may draw close
in lines for the delimitation of internal waters, in accordance with Articles 9, 10 and 11.
Article 52 provides that ships of all states enjoy the right of innocent passage through
archipelagic waters. However, the archipelagic state may, without discrimination 'n form or
in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters
the innocent passage of foreign ships if such suspension is essential for the protection of its
security. Article 53 further provides that an archipelagic state may designate sea lanes and air
routes thereabove, suitable for the continuous and expeditious Passage of foreign ships and
aircraft through or over its archipelagic waters and the adjacent territorial sea. All ships and
aircraft enjoy the right of archipelagic sea lanes Passage in such sea lanes and air routes.

Indonesian Archipelagic Sea

Nature of Archipelagic Waters and Distinction with Territorial Waters and Inland Waters.—
While in some respects archipelagic waters resemble internal waters end territorial waters,
in certain other respects they are different from such waters. The archipelagic waters
resemble the territorial waters in so far as the sovereignty of the archipelagic state over the
resources of the water column and the sea bed and sub-soil is subject to the right of innocent
passage in favour of foreign vessels and it is in this respect that it is distinct from the internal
waters. But, these waters are distinct from the territorial waters because of the extensive
control and limitation of this passage by the archipelagic state. Further, the right of innocent
passage in case of Archipelagic state is distinct from the right of innocent passage in case of
territorial waters. “The right of passage through Archipelagic waters is more limited than the
right of innocent passage through the territorial sea at least in the three respects; (i) there is
no express provision for the right of ships to stop and anchor where such stops and anchoring
are incidental to Ordinary passage or are required by reasons of force majeure; (ii) the right
of the coastal State to designate sea lanes and prescribe traffic separation scheme means that
foreign vessels have less freedom than in passage through the territorial sea; and (iii) the right
of the coastal state in respect of warship that does not comply with its laws and regulations
concerning passage extends beyond suspension and a request to leave the Archipelago sea,
to prohibiting the passage of such warships through its Archipelagic sea for any length of
time......... As regards the right of passage of foreign vessels through international Straits,
while in territorial sea foreign vessels possess a special right of passage, through international
straits under customary and under the Geneva Convention of 1958, such rights cover
warships including submarines which need not surface and cannot be Suspended by the
coastal State.
The concept of Archipelagic waters is also distinct from the internal waters. “No right of
innocent passage is generally conceded in the case of internal waters. In case of Archipelagic
waters, such a right is recognized in principles on the other hand, it would seem that the
regime of Archipelagic waters proposed by the Archipelagic states is more akin to that of the
territorial sea, although in some respects there are differences in the right of innocent
passage conceded the special rights of passage through international straits is not recognized.
Thus, while the Archipelagic waters resemble in certain respects with internal waters and
territorial waters, they are clearly distinct from both in certain respects. The territorial sea of
an Archipelagic state can be delimited only when we first determine the extent of Archipelagic
waters. Thus, the area reserved as the common heritage of mankind, i.e, the International
Sea-bed Area, as well as the area of the high seas, will be diminished for as against the straight
baseline of single island, straight baseline of an Archipelago will result in enclosing a larger
part of the sea to be called Archipelago waters. But, the inclusive claims of the international
community had to concede this much for the exclusive claims of the Archipelagic states. This
was also necessary because the success of the third U.N. Conference on the Law of the Sea
depended upon the acceptance of the package deal and one of the important parts of the
package was the acceptance of the claims of the Archipelagic states.
Exclusive Economic Zone (EEZ) (Art. 55-74)- It is that part of the sea which extends to not
more than 200nm from the outer edge of the territorial sea baseline and is adjacent to the
12nm of the territorial sea. (Art. 55 and 57). The main reason for taking 200nm as the breadth
of EEZ was due to the presence of most lucrative fishing grounds where the basic food of fish
lies, about 87% of all known and estimated hydrocarbon reserves, offshore mineral resources
etc. The zone does not fall under the sovereignty of the coastal state, but several ‘sovereign
rights’ are exercised by the coastal state over the EEZ which comprises the seabed and its
subsoil. The ‘sovereign rights’ here denotes that no other state can make its claim to the EEZ
without the express consent of the coastal state. Within its EEZ, the coastal state may
exercise its sovereign right to explore and exploit the natural resources found both in the
seabed, its subsoil and water lying over the seabed. These natural resources comprise both
living resources, such as fisheries, plants, and non-living resources, such as oil and natural gas.
The state has the right to engage in off-shore activities such as the generation of energy from
the water, currents, and winds by economically exploiting and exploring the zone. It may also
establish artificial islands, installations, structures; conduct marine scientific research and
enact regulations for the preservation and protection of the marine environment. The state
possesses jurisdiction for the enforcement of the above-mentioned sovereign rights in EEZ.
The other states enjoy the complete freedom of navigation over the EEZ which includes aerial
navigation, freedom to lay cables or pipelines without the approval of the state concerned,
though minor exceptions do exist.
Continental Shelf (Article 76-85) –Generally, it is known as a naturally occurring geological
formation around the coast which extends from the low-water line to the depth at which an
increased declivity to a greater depth is found. The zone is a gently sloping seaward extension
of a land boundary extending to a depth of approximately 200 m. Para 1 of Article 76 defines
the term ‘Continental Shelf’ by stating that it comprises of seabed and subsoil of the
submarine areas that extend beyond its territorial sea through the natural prolongation of its
land territory to the outer edge of the continental margin, or to a distance of 200 nm from
the baseline of the territorial sea where the outer edge of the continental margin does not
extend up to that distance. The said zone has always been a center of interest for the coastal
states due to its richness in natural resources such as reserves of oil, gas, certain minerals,
and sedentary living resources such as shellfish. The outer limit of the Continental shelf can
be extended if it meets the criteria enshrined in Gardiner formulae (Sedimentary Thickness
Test) and Hedberg Formulae (fixed distance (60 nm) test). But in either case, 350 nm from the
territorial baseline is the maximum limit of the extended Zone. The coastal state enjoys
limited sovereign rights over this zone for the purposes of exploring and exploiting its natural
resources; authorizing and regulating the drilling of its subsoil; building artificial islands,
installations, and structures. In the other state, the convention gives various rights to the
other states such as the right to harvest sedentary living resources, like finfish; lay submarine
cables and pipelines; conduct marine research and aerial and superjacent navigation over the
Continental Shelf.
High Seas (Art. 86 -90) – The waters beyond the outer edge of EEZ including the extended
Continental Shelf are known as High Seas. The rationale behind the High Seas zone rests on
the customary principle of ‘Freedom of Sea’ which restricts the coastal state or landlocked
state (states not having any sea-coast) to exercise its national jurisdiction and grant equal
freedom to all the states to use the high seas in conformity with International Law. However,
such freedom should not be exercised to prejudice the interests of the other states over the
High Seas. Article 87(1) provides freedom of various uses of the oceans to all the coastal or
locked states constructively such as navigation, overflight, laying submarine cables and
pipelines, constructing artificial islands and other installations, fishing and marine scientific
research. However, the international community follows the principle of exclusive jurisdiction
to maintain legal order on the high seas wherein the flag state bestows upon it the
responsibility to ensure compliance with the relevant rules of the international law with
respect to vessels flying its flag. The said principle is subject to two exceptions namely, Right
of visit and Right of Hot Pursuit.
Freedom of High Sea –
Article86 - Application of the provisions of this Part - The provisions of this Part apply
to all parts of the sea that are not included in the exclusive economic zone, in the
territorial sea or in the internal waters of a State, or in the archipelagic waters of an
archipelagic State. This article does not entail any abridgement of the freedoms
enjoyed by all States in the exclusive economic zone in accordance with article 58.
Article87 - Freedom of the high seas - 1. The high seas are open to all States, whether
coastal or land-locked. Freedom of the high seas is exercised under the conditions laid
down by this Convention and by other rules of international law. It comprises, inter
alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under
international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of
other States in their exercise of the freedom of the high seas, and also with due regard
for the rights under this Convention with respect to activities in the Area.
Article88 - Reservation of the high seas for peaceful purposes - The high seas shall be
reserved for peaceful purposes.
Article89 - Invalidity of claims of sovereignty over the high seas - No State may validly
purport to subject any part of the high seas to its sovereignty.
Article90 - Right of navigation - Every State, whether coastal or land-locked, has the
right to sail ships flying its flag on the high seas.
International Seabed Area (Art. 135-153) – The convention refers to the seabed of the High
seas or the seabed beyond the outer edge of the coastal states’ EEZ and continental shelf as
the ‘Area’. Such sea-bed, ocean floor, its subsoil and resources are the common heritage of
mankind upon which no national jurisdictions apply. If states are to use the Area, they can
use it for peaceful purposes such as transit, marine science, and undersea exploration but in
a manner not detrimental to the articles of the convention. The convention has created an
International Seabed Authority under Article 153. The authority shall organize, carry out, and
control the activities in the Area on behalf of mankind as a whole. The activities in the Area
denotes exploration and exploitation of the resources of the Area. The main function carried
out by the authority involves the transfer of technology and knowledge to developing states,
implement regulations for the protection of human life and marine environment, and carry
out marine scientific research.
Settlement of Disputes (Art. 286-299) – Part XV of the convention is totally dedicated to the
dispute settlement mechanism by way of voluntary and compulsory procedures. The category
of disputes that are subject to the compulsory procedure are mainly; High seas rights in EEZ,
standard breach for the protection of the marine environment while two important
categories of disputes, namely, fisheries and maritime scientific research are exempted from
such compulsory procedure. However, there are some categories of disputes which are
subject to compulsory arbitration only if no express declaration has been made by the state
party and such category includes maritime boundary delimitations, military activities, and law
enforcement, matters before the UNSC. The convention provides four methods for
adjudicating disputes to the states, namely, the International Court of Justice, International
Tribunal for the Law of the Sea (ITLOS), Arbitration, and special arbitration along with non-
binding conciliation. The Convention established ITLOS located in Hamburg and consists of
21 judges. The majority of disputes referred to ITLOS involves either provisional measures or
prompt release of the vessels and crews apprehended for the breach of state law.
INDIA’S POSITION ON THE CONVENTION OF LAW OF THE SEA
By virtue of Article 297 of the Constitution of India, the Union holds the power with
respect to lands, minerals, and valuable things underlying the ocean within the limits of the
territorial waters, the continental shelf, the exclusive economic zone, and other maritime
zones. Thereby, the parliament has enacted Maritime Zones Act, 1976 in order to determine
the limit of various maritime zones and to provide for rules regulating certain matters in order
to comply with the convention in the greater interest of the International Community. The
following are the limits imposed by the Maritime Zones Act, 1976 on the various Maritime
Zones-
● According to Section 3 of the Act, India exercises sovereignty over its territorial waters,
the seabed, the subsoil underlying, and the airspace over their territorial waters.
● Section 5 of the act enunciates the limit of the contiguous zone to the extent of twenty-
four- 24- nm from the baseline of the territorial waters.
● As per Section 6 of the Act India proclaims the limit of the Continental shelf to the extent
of 200nm from the baselines of the territorial waters. However, the government may make
regulations in order to declare the continental shelf zone and its overlying waters as
designated areas.
● Section 7 of the Act provides the Union an exclusive right to explore, exploit, conserve
and manage natural resources (both living and nonliving) on the seabed. Such Zone extends
to 200 nm from the baseline of the territorial waters.
The rights and duties of India with respect to these Maritime Zones are similar to other states,
as specified in the Convention on the Law of the Sea. The rights of foreign vessels and the
right to innocent passage have been carefully looked into while enacting the present regime
on Maritime Zones.
IMPORTANT JUDGMENTS
A. Anglo- Norwegian Fisheries Jurisdiction Case ICJ Reports 1951 (England vs. Norway)
The concept of a straight baseline was recognized for the first time in the present case.
Norway, having a fringe coastline, delimited its fisheries zone (territorial sea) to about 1000
miles of its coastland by a decree of July 1935. The UK while admitting the Norwegian claim
of 4 miles of territorial waters challenged the legality of the straight baseline system based
on linking some 48 outermost points of the land and drying rocks above water at high tide
instead of measuring the zone from the low water mark at every point. ICJ by a vote of 10 to
2 decided in the favor of the Straight baseline system adopted by Norway. The court
propounded that the method adopted by Norway was not contrary to the international law
as due regard should be given to the geographical circumstances such as in this case the
coastline of the state was rugged, deeply indented, and economic interests peculiar to the
region. In situations like this, the court upheld the concept of joining appropriate points at
the low water line thus constituting a straight baseline. However, regard should be given to
some factors such as transcendence of baseline from the ‘general direction; of the coast, the
close link of areas lying within the baselines to the adjacent land and economic interest
pertaining to a particular region concerned.
B. North Sea Continental Shelf Case ICJ Reports, 1969 (Federal Republic of Germany vs.
Denmark and Netherlands)
In this case, the Netherlands and Denmark filed two separate cases against the federal
republic of Germany in order to determine the applicable principles of International law for
the determination of the area of the continental shelf in the North Sea appurtenant to both
of them beyond the partial. ICJ while pronouncing a single judgment invented the new
‘equitable principle’ to divide a common continental shelf of an adjacent country instead of
applying the well-known ‘equidistance principle’. The court also laid down the factors to be
considered for the application of the ‘equitable principle’ such as the geographical position of
the parties and the natural configuration of the coast, proportionality of the continental shelf
appurtenant to the coastal state. The reasoning behind such a rationale was that Germany
was not bound by the provision of the Geneva Convention on the Continental Shelf of 1958
as it did not ratify the same. Therefore, ICJ ruled in favor of Denmark and the Netherlands.
C. Tunisia-Libya Continental Shelf Case ICJ Reports, 1982
In the present case, a dispute arose between Tunisia and Libya pertaining to the delimitation
of the single continental shelf appertaining to each of them as a natural prolongation of their
land territory. Both the states entered into an agreement in June 1977 to let ICJ decide the
delimitation of the respective area of the continental shelf. ICJ observed that the principle of
natural prolongation could not be applied in the present dispute due to the common
continental shelf between the two states, thereby dismissing the application of the
equidistance principle. Also, while deciding one of the main issues that whether the Geneva
Convention on the Continental Shelf 1958 or the customary International Law shall be
applicable in deciding the case, the court answered in negative as none of the parties to the
dispute ratifies the said convention and upheld the application of the ‘principle of equity’ ,
taking into account all the relevant circumstances to delimit the common area of continental
shelf shared by the parties.
D. Libya-Malta Continental Shelf Case ICJ Reports, 1985
It was a first off case decided by the ICJ post the signing of UNCLOS in 1982. Libya and Malta
both were signatories to the convention and a dispute with regard to the delimitation of the
areas of the continental shelf arose between them. The court had to decide the same issue it
faced in 1982 in Tunisia- Libya Continental Shelf Case but in this case one of the parties i.e.
Libya was not a party to the 1958 Geneva Convention on the Continental Shelf. ICJ upheld the
principle of equidistance in order to delimit the continental shelf and observed that the
principles or rules to be applied should bring about an equitable result. Therefore, while
placing heavy reliance on ‘equidistance principle’, the court stated that such equitable results
could be achieved by drawing a line, every point of which should be equidistant from the low
water mark of the two opposite states. The court also opined that the peculiar geographical
situation of the coastal state should be taken and thus adjustments should be made in the
light of all the relevant circumstances.
E. Fisheries Jurisdiction Case ICJ Reports, 1974 (USA and Germany vs. Iceland)
In this case, the UK initiated proceedings before the ICJ claiming that Iceland was not entitled
to extend its water territory to the extent of 50 miles from a straight baseline to conserve the
economic zone for the purpose of fish stocking. The UK also claimed that such an extension is
a subject of bilateral arrangements between the two states. In the past, Iceland has declared
12 nm of its water territory as an exclusive fisheries zone, post the Geneva Conference in 1958
which was accepted by the UK in 1961. The court while combining the dispute initiated by the
UK with the one instituted by Germany against Iceland on the same issue held that Iceland
was not entitled to unilaterally extend its economic zone by 5o nm beyond its territorial
waters. The court observed that the government of all three states i.e. UK, Iceland, and West
Germany were under an obligation to negotiate an equitable solution among them while
keeping an account of ‘preferential rights’ of each one of them. The rationale behind this
decision was that ICJ has earlier established a principle of preferential rights over this
particular zone of the sea and if facts to be looked into, the total economy of Iceland depends
on the fishing which undoubtedly gives Iceland a preferential right over the EEZ. However,
the court did point out that such a declaration by Iceland was neither legal nor illegal under
the principle of International Law. While the hearing of this dispute was going on, the
overlapping of EEZ over the contiguous zone became a top issue of discussion. Thus, due to a
lot of pressure from the international community to claim fishing rights over 200nm towards
the high seas, the 1982 Convention of the Law of the Sea enacted that EEZ shall extend to
200nm from the baseline of the coastal state.
CONCLUSION
After an overall review of the Convention on Law of the Sea, it is certain that the ocean is a
rich source of living and non-living things and the regulations of such natural resources are
much needed in order to their equal distribution among the nations across the globe.
However, there are some grey areas in the maritime zones which prove to be an interest for
the litigation such as overlapping of Exclusive Economic Zone and Continental Shelf; the
varying rights over the High seas and the seabed in its beneath among the states; use of High
seas for the purpose of piracy and smuggling of weapons, etc. But it can be said with an acuity
that the authorities set up by the Convention perform their functions diligently in order to
protect the coastal states’ rights over their maritime zones while balancing it with the
sustainable development of the marine environment.
Development of the Law Relating to “Area” (Sea)–
The First United Nations Conference on the Law of the Sea (UNCLOS I) - The first
session in the year 1949 on the Law of the Sea was convened by the U.N. which was
appointed by Mr. Francois. It was convened to examine the law of the sea and to take
account of legal, technical, economic, political and biological aspects of the problem
and to provide for the results of its work in some conventions or instruments. They
selected the regimes of both territorial waters and of High seas which they considered
in various sessions held till the Year 1956.

On the basis of the discussion of the report[iv] of the International Law Commission in
its eighth session, i.e., International conference of plenipotentiaries to examine the
law of the sea, resolution 1105 (XI) was adopted by the General Assembly on 21st
February, 1957.
It resulted into the adoption of four conventions on 29th April, 1958:
The Convention on the Territorial Sea and Contiguous Zone (10th September 1964);
the Convention on the High Seas (30th September 1962);
the Convention on Fishing and Conservation of the Living Resources of the High Seas
(20th March 1966), and
the Convention on the Continental Shelf (10th June 1964).
In addition to this, an Optional Protocol of Signature Concerning the Compulsory
Settlement of Disputes was adopted, which entered into force on 30 September 1962.
The Second United Nations Conference on the Law of the Sea (UNCLOS II)
The second U.N. conference on the Law of the Sea was convened from 17th March to
26th April 1960 to consider those topics which had not been agreed upon in the First
Conference of 1958. The topics were of breadth of the territorial sea and fishery limits.
The conference, although adopted two resolutions in its Final Act[v], but it failed to
decide the substantive rights on the breadth of the territorial sea and fishery rights
and postponed them for future.
The Third United Nations Conference on the Law of the Sea (UNCLOS III) - The
General Assembly for the purpose of studying the peaceful uses of the sea-bed and
the ocean floor beyond the jurisdiction of National limits, established an Ad-hoc
Committee by resolution (XXII)[vi] of 18th December, 1967.
On the basis of the report of Ad-hoc committee which they prepared after three
sessions in the year 1968, the General Assembly adopted resolution 2467 A (XXII)[vii]
on 21st December, 1968, on the basis of which, a committee on the Peaceful Uses of
the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction was
established on 17th December, 1970.
By resolution 2750 C (XXV)[viii], the General Assembly decided to convene a third
conference on the law of the sea in the year 1973.
The General Assembly got the various sessions of the Third Conference on the Law of
the Seas from the year 1973 to deal with the substantive work by resolution 3029
(XXVII)[ix]. Final report was submitted by the Committee to the General Assembly at
its twenty-eighth session in the year 1973 on the basis of which a conference was held
with the mandate of the adoption of a convention dealing with all the matters relating
to the Law of the Sea by resolution 3067 (XXVII)[x]
Three main committees were set up namely, General Committee, Drafting Committee
and a Credentials Committee and the conference determined the competence of the
committees in accordance with the resolution 2750 C (XXV). Topics were allotted to
the committees and the committees were relevant to their mandates for the topics
and were supposed to deal with regional arrangements, responsibility and liability for
resulting damage from various activities concerning the ocean. The work kept on going
and the conference decided to complete the work of Convention by the Year 1980.
Adoption of United Nations Convention on the Law of the Sea - The conference at
182nd plenary meeting on 30th April, 1982 after taking vote at the request of
delegation of the USA, on 10th December, 1982 adopted the United Nations
Convention on the Law of the Sea[xi], which contained 320 articles and nine annexes.
It came into force on 16th November, 1994, i.e., after a period of 12 months from the
date of deposit with the Secretary General of the United Nations of the Sixtieth
instrument of ratification or accession in accordance with Article 308 (1).
The agenda item entitled The Law of the Sea was also considered by the General
Assembly during the period of 1993-1994 and adoption of the Agreement relating to
the implementation of Part XI of the United Nations Convention on the Law of the Sea
of 10 December 1982[xii] took place by the resolution 48/263 of July 1994
United Nations Convention on the Law of the Sea of 1982[xiii]
 The United Nations Convention on the Law of the Sea of 1882, which came into force
on 16th November 1994, could be elaborated as follows:
The Convention consists of total 320 Articles, 17 parts and nine annexes along with
the four resolutions.
The convention, although replaced the four Geneva Conventions of the year 1958
adopted at the First United Nations Convention on the Law of the Sea, but comprised
all the grounds covered under those conventions.
It also includes all the new legal regimes of the deep sea bed and exclusive economic
zone.
It provides the territorial sea limit of 12 nautical miles.
It provides a proper mechanism when it comes to the settlement of the disputes in
relation to the ocean resources and the extent of jurisdiction and also resulted in
establishing an International Tribunal for the Law of the Sea.
This convention of the year 1982 is considered to be the Constitution for the oceans.
When it came into effect in the Year 1994, it was ratified by 60 countries. At present,
a total of 168 countries and European Union are parties to it. The detailed list of all
the countries who have ratified and signed the Convention, agreement providing the
implementation of Part XI of the Convention as well as the agreement relating to the
implementation of the provisions of conversation and management of straddling and
highly migratory fish stocks is given available on the website of U.N. Division for Ocean
Affairs and the Law of the Sea.
With this Convention, three new international institutions have been created:
the International Tribunal for the Law of the Sea;
the International Seabed Authority; and
the Commission on the Limits of the Continental Shelf.
Agreement relating to the implementation of Part XI of the United Nations Convention
on the Law of the Sea of 10 December 1982[xvi]
The agreement implementing Part XI of the United Nations Convention on the Law of
the Sea of 10th December 1982 entered into force on 28th July 1996.
International Seabed Authority – (What is the ISA) - The International Seabed Authority (ISA)
was formed as an initiative for organising, regulating and controlling all the mineral-related
activities in the international seabed area that are beyond the limits of national jurisdiction.
The ISA held its first inaugural meeting in its host country, Jamaica, on 16 November 1994,
the day the Convention came into force. The articles governing the Authority have been made
“noting the political and economic changes, including market-oriented approaches, affecting
the implementation” of the Convention. The Authority obtained its observer status to the
United Nations in October 1996.
A general overview of the ISA is given in the table below: Overview of International Seabed
Authority (ISA)

Formation 16 November, 1994

Type Intergovernmental Organisation
Headquarters Kingston, Jamaica
Purpose Regulate deep seabed mining and ensure the marine environment
is protected from any harmful effects which may arise from mining
activities.
Secretary General Michael W. Lodge
Main Organ Assembly of the International Seabed Authority

Who are the governing bodies of ISA? - Headquartered in Kingston, Jamaica, the
International Seabed Authority (ISA) has 167 members and the European Union, composed
of all parties to the United Nations Convention on the Law of the Sea. The International
Seabed Authority (ISA) is controlled and governed by the following bodies:
Assembly of International Seabed Authority: The supreme authority of ISA is the assembly
consisting of all ISA members. This assembly is responsible for establishing general policies
and budgets.
Executive Authority: ISA also elects the executive authority of ISA which is a 36-member
council and is responsible for approving contracts with private corporations and government
entities. These contracts deal with the exploration and mining in the specified areas of the
international seabed.
Secretary-General: The secretary-general of the ISA is nominated by the council and is elected
by the assembly to a four-year term. Michael W. Lodge is the current secretary-general of
International Seabed Authority (ISA).
The Finance Committee deals with budget-related matters. There is also a Legal and Technical
Commission consisting of 30 members who control the Council and Finance Committee. All
members are experts nominated by governments and elected to serve in their individual
capacity.
International Seabed Authority (ISA) Functions - ISA focuses mainly on organising, regulating
and controlling all the mineral-related activities in the international seabed area that are
beyond the limits of national jurisdiction. Some of the major functions of the International
Seabed Authority of India (ISA) are mentioned below:
Regulation of deep seabed mining. -Protection of the marine environment from the harmful
effects of mining, exploration and exploitation. The authority also promotes marine scientific
research and conducts training programmes, seminars, conferences and workshops on the
scientific and technical aspects.
What are the activities of the ISA? - The main accomplishment of the ISA, has been the
regulations regarding the exploration for polymetallic nodules.The legislation regarding the
same was passed in the year 2000. These resources contain varying amounts of manganese,
cobalt, copper and nickel. They occur as potato-sized lumps scattered about on the surface
of the ocean floor, mainly in the central Pacific Ocean but with some deposits in the Indian
Ocean.
Work began on another set of regulations in 2002, that covered exploration of polymetallic
sulfides and cobalt-rich ferromanganese crusts, which are rich sources of such minerals as
copper, iron, zinc, silver and gold, as well as cobalt. The sulphides are found around volcanic
hot springs, especially in the western Pacific Ocean, while the crusts occur on oceanic ridges
and elsewhere at several locations around the world.
The ISA decided in 2006 to prepare separate sets of regulations for sulphides and for crusts,
with priority given to sulphides. It devoted most of its sessions in 2007 and 2008 to this task,
despite several issues remaining unresolved. Chief among these were the definition and
configuration of the area to be allocated to contractors for exploration, the fees to be paid to
the Authority and the question of how to deal with any overlapping claims that might arise.
Meanwhile, the Legal and Technical Commission reported progress on ferromanganese crusts
International Seabed Authority (ISA) is an important organisation under the United Nations.
Candidates preparing for the UPSC 2022 should have a clear concept about the various
organisations of the world. Candidates should also keep a track of the latest current affairs to
know about any new developments in the world.
 Diplomatic Agent
Introduction - Diplomatic agents are the persons who reside in foreign countries as the
representative of the country by whom they are despatched. They act as a link between the
country who despatch them and by whom they are accredited. Therefore, they perform the
act of diplomacy, which in International Law means by which the States maintain or establish
mutual relations and carry out their legal or political transactions based on their foreign
policies.
Act of diplomacy may be performed by the head of State, Government, Minister of Foreign
Relations or by and by diplomatic agents.
Law on Diplomatic agents - The practice of sending and receiving diplomatic agents is
followed by states since ancient time. In ancient times ‘Doots’ were sent from one Rajya to
another. However, in ancient time the practice was not uniform nor they were sent
permanently to another Rajya. The practice of permanently sending the diplomatic agents
started from the seventeenth century.
By the second half of the seventeenth-century permanent legation became a general
institution and certain rights and duties almost identical in nature were provided to the
Diplomatic agents.
The Congress of Vienna of 1815 for the first time codified customary rules of International
Law on ranks of diplomatic representatives. The institution of diplomacy continued to develop
after 1815 and after the establishment of the United Nations, the task for codifying for the
law relating to diplomatic agents was given to the International Law Commission.
The Commission prepared the draft article and submitted them to General Assembly. The
Assembly convened a conference in 1961 and adopted Vienna Convention on Diplomatic
relations.
Classification of Diplomatic agents - Diplomatic agents accredited to a State differ in class.
The Vienna Convention on diplomatic relations, 1961 under Article 14 divides diplomatic
agents into three classes. They are:
1 Ambassadors accredited to head of State.
2 Envoys, ministers accredited to the head of State.
3 Charges d’ Affairs accredited to Ministers of Foreign Affairs.
4 Functions of Diplomatic Agents
Functions of diplomatic agents- are determined by the rules and regulations of International
Law and municipal law (law of country) of the States. Article 3(1) of the Vienna Convention of
Diplomatic Relations, 1961 lays down various functions of diplomatic agents which are as
follows:
1 Representation: Diplomatic agents represent the policies and beliefs of State by which
they are dispatched to the state where they are accredited. The function of
representation is primarily entrusted to the head of the mission. Oppenheim, in his
book, says that “Diplomatic agents are the mouthpiece of the head of his own State
 and the Foreign Minister for communication to be made to State where they are
dispatched.
2 Protection: Diplomatic agents protect the rights and interests of sending State and
also of nationals, within the limits allowed by the municipal law of respective State.
The limit of Diplomatic agents is not prescribed by the International Law but by the
municipal law of the State.
3 Negotiation: Negotiation is the most important function which is performed by the
diplomatic agents. Generally, the head of the diplomatic mission negotiates on various
aspects of on behalf of the sending State with the State to which they are accredited
in order to maintain a friendly relationship. Diplomatic agents are required to
communicate the outcome of the negotiation to sending State from time to time,
4 Observation: Diplomatic agents are required to observe those events and happenings
which take place or which may take place in the State where they are accredited,
especially those which may affect the interests of the State by which they are sent.
After making observations of the events, they are required to make periodical reports
to the government of sending State.
5 Promotion of Friendly Relations: Diplomatic agents are required to promote friendly
relations between the sending State and the receiving State. They also have the
function to develop the social, cultural and economic relations between the two
States.
6 Consular Functions: Vienna Convention lays down that diplomatic agent can also
perform consular functions which may be allotted to them from time to time such as
death, birth and marriage registrations of the subjects of home State, issue of
passports etc.
Diplomatic immunities and privileges - International Law confers diplomatic immunity on
Diplomatic agents from the exercise of jurisdiction by receiving States. The principles
governing diplomatic immunities and privileges are among the most ancient and universally
recognised principles of International Law.
Basis of Diplomatic immunity and privileges - Different international jurists have divergent
views as to the basis for giving immunities to diplomatic agents. Their views led to the
emergence of three important theories which are as follows:
1 Extra-territorial Theory: This theory is also known as the fictional theory. According
to this theory, diplomatic agents are considered not be within the territorial
jurisdiction of the State to which they are accredited, but to all times within that of
the sending State. Extra- territorially of diplomatic agents means that though
Diplomatic agents physically present upon the soil of the country to which they are
accredited but they remain for all purposes on the soil to which they represent.
2 Representational Theory: According to this theory, diplomatic agents are regarded as
personal representative of the sovereign of the sending State. Therefore, they are
given the same degree of privileges and rights which are given to the head of sending
State.
 3 Functional Theory: According to this theory, diplomatic agents are given immunities
because of the nature of their functions. The duties which the Diplomatic agents
perform are far from easy. In other words, their actions of duties are of typical or some
special nature. They are allowed immunities from the legal and other limitations of
the State to which they are accredited to effectively perform the tasks they are
allotted.
Privileges and immunities of a Diplomat - Vienna Convention on Diplomatic Relations of
1961 lays down the different rights and privileges which are granted to diplomatic agents.
They are as follows:
1 Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle
which is recognized in International Law much before the adoption of the Convention
of 1961. Article 29 of the Vienna Convention lays down that “the person of a
diplomatic agent shall be inviolable”. He shall not be liable to any form of arrest or
detention, and the receiving State shall treat him with all due respect and should take
all appropriate to prevent an attack on his personal freedom and dignity.
The Government of receiving State by virtue of Article 29 is under a duty to conduct
to abstain from any form of conduct which is injurious to the diplomatic agents and
also under a duty to prevent such injurious conduct if attempted by another.
This does not mean that the immunity given to the Diplomatic agents is absolute. The
receiving State has the power to arrest or detain the diplomatic agent in exceptional
cases For instance, a drunken diplomat with a loaded gun in a public place can be
arrested or if a diplomatic agent commits an act of violence which disturb the order
and peace of receiving State in such a manner that it becomes necessary to put him
under restraint for the purpose of preventing similar acts.
2 Inviolability of Staff of Mission - In addition to the head of mission, immunities are
also given to the staff of the mission, which is defined in article 1 of the Vienna
Convention. Para 2 of Article 37 of Vienna Convention lays down those members of
the administrative and technical staff shall enjoy the immunities and privileges as
mentioned from Article 29 to Article 35 if they are not nationals or are not permanent
residents of receiving State.
Thus, administrative and technical staff only enjoys personal inviolability (Article 29),
inviolability of residence (Article 30(1)), immunity from criminal jurisdiction (Article
31(1)), exemption from certain taxes and duties (Article 34) and immunity from civil
and administrative jurisdiction exists when they are performing service duties [Article
31(1)].
Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff
if they are not the nationals or permanent resident of receiving State. It provides
immunity to the acts performed in course of their duties, exemption from taxes and
duties on emoluments received and exemptions on social security provisions.
3 Inviolability of family members - Vienna Convention of Diplomatic Relations in its
Article 37 Para 1 states that “immunities and privileges to the family members of
diplomatic the diplomatic agents having diplomatic ranks may be given, if firstly they
 are not nationals or permanent resident of receiving State and secondly, so long as
they form the part of household, i.e. they live under one roof”.
So, if the son of a diplomat is studying in any University of receiving State and just
come on weekends to meet his parents, then he will not be provided with any
immunity as he is not forming the part of the household.
4 Inviolability of premise: Article 21 of the Vienna Convention lays down that, “a
permanent diplomatic mission needs premises to operate and receiving State must
help the sending State to obtain the premises form mission”. The sending State has
the right to use its flag and emblem on the premises (Article 20). Article 22 of the
Vienna Convention of Diplomatic Relations stipulates the customary rule of
International Law by stating that “the premises of the mission shall be inviolable”.
Further Article 30 also provides that “private residence of a diplomatic agent shall also
enjoy inviolability”. The agents, police or any officer of the receiving State are not
allowed to enter the premises without the consent of the head of mission. However,
the inviolability of premises is also not absolute it can be compromised in certain
exceptions. Article 41 of the Convention itself lays down that “premises of the mission
should not be used in any manner as incompatible with functions of mission or by
rules of general International Law”. So, if the inviolability of premises is abused then
the receiving State should not bear it passively and can take all the necessary steps to
stop the actions of agents.
5 Inviolability from being a witness: Diplomatic agents are completely immune from
being a witness in any civil or criminal or administrative court of State to which they
are accredited. He is also immune from giving evidence before the Commissioner.
However, they may appear before any court by waiving of their immunity. Article 31(2)
lays down that “diplomat agent is not obliged to give evidence as a witness”.
6 Immunity from taxes and customs duties: Article 34 of Vienna Convention lays down
that, “diplomatic agents shall be exempted from all dues and taxes, personal or real,
national, municipal or regional”. Initially, before the convention, this right was given
to the agents due to Courtesy but Convention has incorporated it with more precise
definition.
7 Immunity from inspection of Personal Baggage: The bag used by the diplomatic
agents for sending articles, letters or documents to the sending states or any other
missions of its State to abroad be known as a diplomatic bag. Para 3 of Article 27 of
the Vienna Convention lays down that “diplomatic bag should not be opened or
detained’. But according to Article 36 Para 2, this right is not absolute. It lays down
that, “general practice of exempting the Diplomatic agents’ personal baggage from a
custom inspection is qualified by the provision that inspection can be conducted in
presence of a diplomatic agent or his agent if there are serious grounds for suspecting
that the article is not for official use”.
8 Freedom of Communication: Diplomatic agents are free to communicate any
information for official purposes to the State by which they are accredited. Article 27
of the Vienna Convention lays down that “the freedom of communication also
involves the use of code messages and couriers”.
 9 Freedom of movement and travel: Article 26 of Vienna Convention empowers
diplomatic agents to move and travel in the territory of receiving State but subject to
laws and regulations of International Law and rules made by receiving State
concerning security zone.
10 Right to worship: Under Article 3(1) of Vienna Convention diplomatic agents have the
right to worship any religion they like within the mission premises or residence. But
they cannot invite any nationals of the receiving State to take part in the worship and
have no right to preach their religion in receiving State.
11 Immunity from the Local Jurisdiction: Diplomatic agents enjoy immunity from the
jurisdiction of local courts. The immunity extends both to criminal as well as civil
jurisdiction.
12 Immunity from the criminal jurisdiction - Article 31, paragraph 1 of the Vienna
Convention provides that a diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State. Thus, receiving State has no right to prosecute and
punish diplomatic agents. Immunity of diplomatic agents from civil and administrative
jurisdiction also a well- recognized principle of International Law.
Conclusion- Diplomatic agents are provided immunity to effectively perform their function
because of the typical nature of functions and diplomat being the representative of the head
of State. All the rights and immunities provided to the Diplomatic agents are not absolute
they can be compromised within certain exceptions. At present, the institution of diplomatic
representatives has become the principal machinery by which intercourse between States is
conducted.