PUBLIC INTERNATIONAL LAW NOTES

Unit 1: Introduction to Public International Law

a) Definition of International Law
b) Nature of International Law
c) Basis of International Law

Hugo Grotius: Father of modern science of international law. He believed

natural law came from an essential universal reason, common to all men.
The two principles of international law given were that law is derived from
principles and second, that the foundation principles included maxims that
promises must be kept, pacta sunt servanda, and that harming other
requires restitution.
Jeremy Bentham first jurist to coin the term International Law.

Oppenheim: Law of Nations or international law is the name for the body of
customary and conventional rules which are considered legally binding by
civilized States in their intercourse with each other.

MODERN DEFINITIONS:

Starke:
a. 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 which
includes also: the rules of law relating to the functioning of
international institutions/organizations, their relations with each
other, and their relations with State and individuals; and
b. Certain rules of law relating to individuals and non-State entities so
far as the rights and duties of such individuals and non-State entities
are the concern of the international community.
The definition of Starke takes into account the changing character of
international law and truly reflects the present position of international law.

NATURE OF INTERNATIONAL LAW:

International Law is based on the following two principles:

1. Jus Gentium: These set of rules do not form part of a legal statute
but mutually governs the relationship between two nations. Applies o
many nations. Law of Nations. Extended to states, individuals as well

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 as organisations. In the form of treaties, practices, customs. Applies
universally. Remains same for all. For the purposes like peace,
humanity, environment.
2. Jus Inter Gentes: These refer to those treaties and agreements that
are accepted by both countries mutually. Limited to the 2/limited
nations. Law of Conflict. Limited to individuals or organisations.
Codified by legislature of applicable states. Applies to agreeing parties
only. Differs from state to state. Mostly for business or individual
relations.

BASIS OF INTERNATIONAL LAW:

Natural Law Theory

1. Jurists of this School are known as Naturalists.
2. They opined that International Law is a part of Law of Nature (Higher
Law, Moral Law, Law based on Reason, Universal Law, etc.)
3. They denied the existence of any Positive International Law (man-
made law).
Criticism: The naturalists do not recognize the significance of Customs and
International Treaties.

Positive Law Theory

1. Jurists of this school are known as Positivists.
2. They opined that International Law is the outcome of Customs and
International Treaties (positive law) and not of Natural Law.
Criticism: The positivists do not recognize the significance of natural
law.

Grotian Theory of Basis of International Law

1. Grotians have adopted a middle path between Naturalists and
Positivists.
2. They opine that International Law is the outcome of Law of Nature as
well as customs and treaties.

Consent Theory of Basis of International Law

1. Supported by Anzilotti, Triepel and Oppenheim.
2. As per this theory, consent of States is the basis of International Law.
States follow International Law because they have consented to do so.
Criticism: It fails to explain the basis of customary international law which
the States are bound to follow.

Auto Limitation Theory of Basis of International Law

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 1. Supported by Anzelotti and Oppenheim.
2. As per this theory, the consent of States is the basis of Inter-national
Law. States follow International Law because they have consented to
do so.
Criticism: It fails to explain the basis of customary international law
which the States are bound to follow.

IS INTERNATIONAL LAW A TRUE LAW?

As per the analytical school of law, John Austin believes that command,
sovereign and sanction are three main requirements for any law and
international law lacks all of them thus it is not a true law but merely a code
of rules and conduct of moral force only. It does not originate from a law
giving authority and has no sanction behind it, it is a positive international
morality consisting of opinion among nations in general.
Bentham and Hobbes believed missing elements of legislature,
administrative and judiciary which are important in municipal law are
missing in international law and thus they lack binding power. It is also
called a weak law as there is no overall authority to bind the states unlike
municipal law where people can be punished for breach of law.
Hall and Lawrence state that the source of international is also custom and
precedents like municipal law and since their sources are same they should
be considered as a positive law which is habitually treated and enforced as a
law. Sir Pollock stated three essential conditions for the existence of law are
the existence of political community, recognition by its members and settled
rules binding upon them in that capacity which seems to be satisfied in
international law thus making it a law.
Currently, international law is effective as states perceive it to be in their
self-interest to have legal rules. States respect it because they want to be
perceived by other states as law-abiding members of the international
community.

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Unit 2: Introduction to Public International Law
a) Evolution and development of International Law
b) Codification of International Law
c) Subjects of International Law

EVOLUTION AND DEVELOPMENT OF INTERNATIONAL LAW

International law is the body of law that governs the relations between states
and other international actors. It has evolved over centuries, from its early
roots in customary law and religious texts to its modern form as a complex
system of treaties, conventions, and other legal instruments. The early
development of international law was influenced by the rise of the nation-
state system in Europe during the Renaissance. As states became
increasingly independent, they needed to develop rules to govern their
interactions with each other. These rules were initially based on custom and
religious texts, but they gradually became more codified in the 17th and
18th centuries. The establishment of the United Nations in 1945 was
another major milestone in the development of international law. The UN
Charter enshrined the principles of international peace and security, and it
established a number of important international institutions, such as the
Security Council and the International Court of Justice. Since the Second
World War, international law has continued to develop in response to new
challenges and opportunities. For example, new areas of international law
have emerged in recent decades, such as environmental law, human rights
law, and space law.

CODIFICATION:
Codification refers to the process of reducing the body of laws governing
society to enacted law. This would essentially imply that whatever law we
follow, customary or legislated, it essentially takes on the form of codified
law once it is written down as enacted law with binding effect and, so to
speak, set in stone. Codification attempts have been relatively less ancient.
The document sought to declare the fundamental rights for all men and
could pass as an attempt to codify international law by its universality. The
progressive development of international law encompasses the drafting of
legal rules in fields that have not yet been regulated by international law or
sufficiently addressed in State practice. Article 13(1)(a) of the Charter of the
United Nations: General Assembly is mandated to encourage the progressive
development of international law and its codification. In contrast, the
codification of international law refers to the more precise formulation and
systematization of rules of international law on subjects that have already
been extensively covered by State practice, precedent and doctrine.

SUBJECTS:

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The term subjects of international law refer to entities endowed with legal
personality, capable of exercising certain rights and duties on their account
under the international legal system. Personality in international law
necessitates the consideration of the international system and the capacity
to enforce claims.
According to Starke, the term “subject of international law” means:
a. An incumbent of rights and duties under international law
b. The holder of procedural privileges of prosecuting a claim before an
international tribunal.
c. The possessor of interests for which provision is made by international
law.
Jurists of the world are divided into two groups. However, some moderates
try to bring about a compromise between them. The difference of opinion
among jurists as to what entities are deemed to be the subjects of
international law had led to the emergence of three popular theories. The
sum-up of these theories can be summarized as follows:
1. States alone are subjects of international law. (Realist theory)
2. Individuals alone are subjects of international law. (Fictional theory)
3. States, individuals, and certain non-state entities are subjects.
(Functional Theory)
The following are considered to be subjects of international law:

• State: The state has been since time immemorial considered to be

subject of international law. Also, it can be asserted that the states are
primary subjects of international law as the obligations flow from the
states. It is the states which are recognized and held liable not for their
acts but even for the acts committed by their citizens also. Also in terms
of international trade and relations, it is the state which has the duty and
power to conclude relations with the international front. For ex, in India,
liberalization, and globalization of the economy was done after the
positive intervention from the government. As a person of international
law, it should possess the following qualifications:
i) Permanent Population
ii) Defined territory
iii) Government
iv) Capacity to enter into relations with other states

• International organizations: Until the outbreak of the first world war,

world affairs were to a large extent influenced by the periodic conferences
held in various parts of the world. A conference could only be called into
being upon the initiative of one or more of the nation. This procedure
implied several delays in the resolution of the issues. But after the first

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 world war, the creation of the league of nations paved the way for the
forthcoming change in the international organization. This can be
regarded as a changing point in the history of international
organizations. United Nations-led to the development of international
organizations. Various NGOs came into the international field. Amnesty
International, WHO, IMF, EU, Red Cross, etc. emerged.
There may be organisations which are limited to a particular region
such as the European Economic Community and organisations
having almost universal membership such as the UN. In order to
accomplish their tasks, it in sine qua non for the international
organisations to possess international personality so that they may
own, acquire or transfer property, have the capacity to enter into
contractual and international agreements with states and other
international organisations. The privileges, immunity, rights, duties,
and procedural capacity vary from organisation to organisation
depending upon their constitutions or constituent treaties. Whereas a
state possesses the totality of international rights and duties
recognised by international law, the rights and duties of an entity
such as the UNO must depend on the purposes and functions as
specified or implied in its constituent documents and developed in
practice.
• Individual: Modern state practices and contemporary international law
does demonstrate that individuals have become increasingly recognized
as participants and subjects of international law. Though limited,
individuals have international legal personality. This has occurred
primarily but not exclusively through human rights law. Since the first
world war, international law has continuously empowered the individual
to a substantial extent. According to Starke “interest of the individual,
their fundamental rights and freedom, etc., have become a primary
concern of international law under modern practice and the number of
exceptional instances of individuals or non-state entities enjoying rights
or becoming subject of duties directly under international law has
increased”. As a result of the modern development in international law
and the UN charter, the individual has acquired status and a stature
transforming him from “object of international compassion to a subject of
international right”.
Rights conferred on individuals under international law were basically
considered duties for the state which were put under obligation to
protect the rights of individuals. No rule of international law could
operate directly or indirectly upon individuals without municipal
legislative implementation of the rule. The theory of considering
individuals as ‘objects’ of international law did not get support as
individuals were subsequently granted rights, directly or indirectly
enforceable against foreign states under certain treaties after the first

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 world war. The individuals were provided with rights under treaties to
prosecute a claim against a foreign state in proceedings before
municipal tribunals. The international human rights granted
international personality on individuals in the form of rights. UDHR
was not a binding treaty but considered as a code of moral conduct.
Its provisions may now be considered as customary rules of
international law. The human rights committee was thus competent to
receive and consider communications from individuals claiming to be
victims of violations of any of the rights set forth in the covenant. In
addition, individuals can have direct access to international courts
and tribunals under the Inter-American Convention on Human Rights
1969, the International Convention for the Elimination of All Forms of
Racial Discrimination 1965 and the Convention on the Settlement of
Investment Disputes 1965. International law imposes a personal
responsibility on individuals. Certain law making conventions in the
field of international criminal kaw have empowered states to take
punitive action against certain individuals who have committed
certain international offences or crimes.

Unit 3: Introduction to Public International Law

a) Relationship between International Law and Municipal Law
b) Enforcement of International Law

Relationship between International Law and Municipal Law

The relationship between municipal (or domestic) law and international law
is complex and multifaceted. Municipal law refers to the internal legal
system of a specific country or state, governing the conduct of individuals
and entities within its jurisdiction. It encompasses the legal principles and
rules that regulate the relationships between sovereign states and other
international actors.
The international tribunals give effect to international law even if it is in
conflict with the municipal law of the parties to the case. Even the
constitution of the parties will not be considered if the same is in conflict
with their treaty obligations. There are, broadly, two different methods by
which precepts of international law are applied in the domestic courts of a
State. By the first method it is accepted that international law is a part of
the law of the land and that the domestic court therefore, in an appropriate
case, applied international law, directly. According to the second method a
domestic court can only apply and enforce its own municipal law, and the
international law rule is binding only on the State itself, which must by
legislation transform the precept into one of domestic law.
There are two principal theories on the relationship of international law and
municipal law.

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THESE THEORIES ARE — MONISM AND DUALISM.

1) Monistic Theory (Monism)

Monism theory recognises one system only — law in general.
According to monism, international law and municipal law are
concomitant as acts of one system i.e. law in general. Monism regards
all law as a single unity composed of binding legal rules, irrespective
of the fact whether those rules are obligatory on States, on
individuals, or on entities other than States. The followers of this
theory are of the view that international law and municipal law are
both part of a universal body of legal rules binding all human beings
collectively or singly. In other words, it is the individuals who really lie
at the root of the unity of all law.
Kelsen's monistic theory is founded on a philosophic approach
towards knowledge in general. According to Kelsen, the unity of the
science of law is a necessary deduction from human cognition and its
unity. He was of the opinion that there was no real distinction
between State law and international law as both systems bound
individuals, although international law did so only mediately and
national law did so immediately. Apart from Kelsen, the theory of
monism is also supported by Starke. He supports the view that since
the behaviour of States is reducible to the behaviour of individuals
representing the State, the alleged difference in subject matter
between the two systems cannot be considered a difference.

2) Dualistic Theory (Dualism)

International law and Municipal law represent two distinct legal
systems. International law has an intrinsically different character
from the municipal law. Positivist writer such as Anzelotti is the chief
protagonist. The subjects of municipal law are individuals while the
subjects of international law are states solely and exclusively. However
this was not reasonable as the subjects of international law included
individuals, international organisations, non-state entities,
belligerents, etc. The source of municipal law is the will of the state
itself whereas the source of international law is the common will of the
states. Anzelotti states the difference existed on the basis of
fundamental principles by which each system was conditioned, state
law was conditioned by the fundamental principle or norm that state
legislation was to be obeyed, while international law was conditioned
by principle pacta sunt servanda, which means agreements between
states should be respected. Not only treaties but also the rules of
customary international law were binding by virtue of an implied pact
or agreement between the states.

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THEORIES CONCERNING THE APPLICATION OF INTERNATIONAL LAW
WITHIN THE MUNICIPAL SPHERE:

3) Specific Adoption Theory

• Supported by Positivists.
• International law cannot directly and ex proprio vigore be applied
within the municipal sphere by state courts or otherwise.
• International Law applies to a State when its Municipal Law adopts it
specifically.
• Customary International Law may not require specific adoption.
• Criticism: Not applicable to customary International Law.
• India follows the Specific Adoption Theory.
• The Indian judiciary has consistently held that international
conventions or treaties signed by India do not automatically become
enforceable as part of domestic law unless they are specifically
adopted through legislation by the Indian Parliament.

4) Transformation Theory
• Rules of International Law must undergo transformation to be
applicable in Municipal Law.
• Not a formal requirement but a substantive requirement.
• Municipal law may be amended to incorporate or legislature may
enact enabling statute to give effect to treaty within their municipal
spheres.
• Only after the transformation into municipal law can the provisions of
the treaty be extended to individuals of the state not otherwise.
• Not all treaties need transformation for applicability in Municipal Law.
• In the UK, international treaties or agreements do not automatically
become part of domestic law.
• They require specific enabling legislation to be passed by the UK
Parliament.

5) Delegation Theory
• International Law applies in Municipal Law according to the
Constitution of a country.
• The Delegation Theory posits that the rules of international law can be
applied in municipal law only in accordance with the constitution of a
country.
• This theory emphasizes that the incorporation of international law
into domestic law must align with the constitutional framework and
processes of a state.
• Criticism: Similar to the Transformation Theory.
• The United States is an example of a state that follows the Delegation
Theory. In the US, the Supremacy Clause of the Constitution

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 establishes that treaties made under the authority of the US become
“the supreme law of the land.” However, the US Constitution requires
the Senate’s advice and consent for treaty ratification, and the
domestic application of treaties often requires enabling legislation by
Congress.

ENFORCEMENT OF INTERNATIONAL LAW

International law is enforced through a variety of mechanisms, including:

• Self-help: States are generally free to take measures to enforce their own
rights under international law. However, self-help can lead to conflict, so it
is generally used as a last resort.
• Collective security: Under the UN Charter, the Security Council has the
power to authorize the use of force to maintain or restore international
peace and security.
• Peaceful settlement of disputes: States are encouraged to settle their
disputes peacefully through negotiation, mediation, arbitration, or judicial
settlement.

Unit 4: Sources of Public International Law

a) International Custom

Types of sources

Primary sources:

• Customs
• Treaties
• Conventions

Secondary sources:
• General principles of law
• Judgements
• Juristic writings and teachings

PRIMARY SOURCES
Primary Sources of International Law are considered formal in nature.

• They come from official bodies which include Treaties, Customs and
principle of Law. Article 38(1) (a-c) of the ICJ statute is widely
recognized as the backbone of the formal source of International Law.
• It is generally regarded as an authoritative/definitive statement of the
sources of international law. It requires the court to apply among
other things.

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 • Article 38 of the Statute of the International Court of Justice in The
Hague has been treated as a convenient catalogue of international
legal sources.

• CUSTOM AS A SOURCE OF INTERNATIONAL LAW

• Customs begin where usage ends. Usage is an international habit of
action that has not yet received full legal attestation. A custom is the
usage that has received the force of law.
• The original and the oldest sources Law is known as Custom. The
rules of customary International Law involved a long historical process
which gained recognition by the entire community. The presence of
customary rules can be deduced from state practice and behaviour
because it is not a written source of law. A rule of customary law is
said to have two elements:
o First, there must be widespread and consistent State practice.
o Secondly, there has to be “opinio Juris”, a Latin term which
means a legal obligation to believe in the existence of such law.
A practice which has been followed consistently for quite long may become a
custom. It should be followed in a constant and uniform manner as an
obligation to become a customary law even within a short span of time.
Generally a practice takes a long time to become a custom since it is a slow
process however element of time is not indispensable in the formation of a
custom. If the state practice becomes divergent instead of being uniform it
fails to be a custom however, complete uniformity is not needed, substantial
uniformity is enough. The custom must not be discontinued or followed
intermittently but should be consistently followed. When states adopt a
practice only when it is suiting their interests it cannot be termed as a
custom since there needs to be actions which create justifiable expectations
of future observance. The practice should not be changes or modified time
and time again.

Unit 5: Sources of Public International Law

b) International Treaties

Under 38 (1) (a) discus Treaties and conventions as one of the most
important sources of International Law. These conventions can be
multilateral or bilateral.
Article 2 of Vienna Convention on the Law of Treaty 1969 state treaties o be
agreements whereby two or more states establish or seek to establish
relationship between them governed by international law. Treaties become a
binding obligation under international law. They act as a direct source of
rights and obligations for the states, they codify the existing customary
source of law.

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They are agreements between states covering particular matters, less formal
than treaties. Examples are convention on protection of the black sea
against pollution and convention on the prevention and punishment of the
crime of genocide.
Multilateral conventions relate to the treaties which formulate the universal
or general application of the law. On the other hand, bilateral conventions
are those which is formed exclusively by two states to deal with a particular
matter concerning these states.
They are voluntary and cannot bind non-signatory to it, however, there are
certain exceptions to it that is if any rule forms part of the Jus Cogens norm
as they are part of the accepted principles of International law and every
state has a peremptory duty of not breaching them due to their erga omnes
obligations.

Unit 6: Sources of Public International Law

c) Judicial decisions
d) Writings of publicists

JUDICIAL DECISION
The decisions of international, regional and national courts and tribunals
may fall in this category. Arbitral awards shall also be considered. Though
not binding as treaties and customs, they may have a significant impact on
the development of international law. In comparison to the judgements of
national courts of final authority which have a binding effect in states
concerned, the decisions of ICJ have been put at a lower level. Article 59
limits the scope as they are binding only on the parties to the case to
prevent the judges from regarding themselves as quasi-legislators. The
function of ICJ is to apply law and not make the law. ICJ refers to its
previous judgements not because of the reason that they feel bound but
because they find it convenient. National and international judicial decisions
are scrutinised and used in all international law making to a greater degree.
These decisions may also lead to growth of customary rules of international
law. However the importance given to judicial decisions is affected by factors
such as the status and independence of the court, availability of written and
oral pleadings and quality and detail of the judicial reasoning.
Under this, the court is authorized to apply previous decisions of the court
which are also known as evidence of international law; however, it is subject
to the exception stated under Article 59 of the statute which states that the
previous decision of the court can only guide the court, it is not binding on
the court. This article provides the court with a rule that it is not to be
bounded by precedents but recourse can still be made by the court to its

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past decision’s res judicata and advisory opinion to substantiate current
case as authoritative evidence of legal position.
ICJ plays a major role in the law-making process through its advisory
opinions, case laws and judge’s rule. One of the major examples of this
includes the principle of the prohibition against the use or threat of use of
force laid down by the court in the case of Nicaragua vs. USA which is now
considered as a part of Customary International Law. The judicial decision
of the court also encompasses international arbitral awards and the rulings
of national courts. One leading example is Alabama Claims arbitration,
which marked the opening of a new era in the peaceful settlement of
international disputes, in which increasing use was made of judicial and
arbitration methods in resolving conflict. Another illustration of the impact
of arbitral awards is the Island of Palmas case wherein it has been referred
that a unanimous, or nearly unanimous, decision plays an important role in
the progressive development of the law. It helps in providing a single view for
interpretation of the issue at hand which helps in avoiding controversy
during the development of International Law.

JURISTIC WRITINGS AND TEACHINGS

Other major parts of this source also include the ‘teachings of the highly
qualified writers’ such as Grotius and Vettel who were considered as the
supreme authorities of the international law in the 16th to 18th Centuries.
The court also takes into account teachings of most qualified publicists of
various nations as a subsidiary means for determination of rules of law.
Writers have been making contribution in identifying and highlighting area
where international regulation should be introduced and also suggesting
what the law ought to be in those areas via their writings.
The contributions of earlier writers were more important as the international
law was in the formative stage. Contesting parties too refer to the writings of
the jurists in their arguments. However, the ICJ is very cautious in
endorsing the views of the particular jurists as their opinion could be biased
towards their states or may follow a particular ideology or belong to a
particular school of law making them lack impartiality.
Textbooks are used as a method of discovering what the law is on any
particular point rather than as the source of actual rules, and the writings
of even the most respected international lawyers cannot create law. These
are considered as an evidentiary source of law as they provide an
explanation and understanding of the international principles. They carry
an essential value because they provide to fill the grey areas of International
Law where treaties or customs do not exist.

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Unit 7: Recognition
a) Concept
b) Modes of recognition

CONCEPT:
Recognition is voluntary act of existing States to acknowledge the existence
of a human society on a definite territory as State, provided it is politically
organised, independent and capable of carrying out its obligations under
international law. According to Montevideo Convention on the Rights and
Duties of States of 1933, the recognition of a State merely signifies that the
State which recognises it accepts the personality of the other with all the
rights and duties determined by international law. Recognition in fact is a
political act. To confer or not to confer recognition on a State or government
is a matter which falls within the province of executive and not the judiciary.
The courts are bound by the statements made by the executive branch of
the government. As recognition is a political act, the States may confer early
recognition on new States or governments or delay it or refuse it keeping in
mind their interests. There may not be any legal justifications of their acts.
Thus, in many cases, the decision of recognising or not recognising a new
State or government may depend more upon political considerations than
exclusively legal factors.

MODES:

1. Expressed: Conferred by formal declaration inter-alia by diplomatic

note, personal message from the head of the state or minister of
foreign affairs, parliamentary declaration, or treaty. The recognising
state makes its intention clear that it is recognising the new state or
government.
2. Implied: inferred from certain relations between the recognising state
and the new state or government. There may be implied recognition
where a new state is allowed in the conclusion of a bilateral treaty, the
formal initiation of diplomatic relations and the issue of consular
exequaturs, etc. Similar inference can also be made where states vote
for the membership of a new entity to the UN. It can however, not be
implied from negotiations, unofficial representations, conclusion of
multilateral treaty to which unrecognised entity is also party.

DIFFERENCE BETWEEN DE FACTO AND DE JURE:

De facto recognition:

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1. Informal acknowledgment: De facto recognition refers to the informal
acceptance of a state or government by another state. This recognition does
not involve a formal declaration or legal endorsement.
2. Practical relations: De facto recognition usually occurs when a state
engages in practical relations with the entity in question, such as trade or
diplomatic communication, treating it as a legitimate state or government
without an official statement.
3. Provisional nature: De facto recognition often serves as a provisional
acknowledgment before granting de jure recognition. It allows states to
establish working relationships with the entity while reserving the right to
withhold full, formal recognition.
4. Limited legal implications: De facto recognition has limited legal
implications compared to de jure recognition. While it allows for some
interactions between states, it does not grant the same level of rights and
privileges as de jure recognition, such as diplomatic immunities and access
to international courts.

De jure recognition:
1. Formal acknowledgment: De jure recognition is a formal, legal
acknowledgment of a state or government by another state. This recognition
is usually expressed through diplomatic statements, official
communications, or resolutions.
2. Legal endorsement: De jure recognition implies a legal endorsement of the
entity in question, confirming its legitimacy and status as a subject of
international law.
3. Permanent nature: Unlike de facto recognition, de jure recognition is
generally considered permanent, meaning that the recognizing state has
fully accepted the entity as a legitimate state or government with no
reservations.
4. Full legal implications: De jure recognition carries significant legal
implications for the recognized entity. It allows for the establishment of
formal diplomatic relations, participation in international organizations,
accession to international treaties, and access to international courts.
In summary, de facto recognition is an informal and provisional
acknowledgment of a state or government that allows for practical relations
but has limited legal implications. In contrast, de jure recognition is a formal
and permanent acknowledgment that carries significant legal implications,
fully accepting the entity as a subject of international law.

Unit 8: Recognition
a) Theories of recognition

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b) Legal effects of recognition
c) Indian practice

Theories of Recognition

1. Constitutive
The constitutive theory maintains that it is the act of recognition by
other States that creates a new state and endows it with legal
personality. Constitutive theory, therefore is status creating According
to constitutive theory, the political act of recognition is a pre-condition
of the existence of legal rights. Thus, the very personality of a State
depends on the political decision of other States. In other words, the
act of recognition creates statehood. The recognition alone clothes a
new government with any authority or status in the international
sphere. The supporters of this theory include Anzelotti and Kelsen. As
its ascertainment requires the prior determination of difficult
circumstances of fact and law, there must be someone to perform the
task. This task is performed by the already existing States. In other
words, he maintained that once the conditions prescribed by
international law for statehood had been complied with, there was a
duty on the part of existing States to grant recognition. As there was
no central authority to assess and confer legal personality, it was for
the existing States to recognise the new entity as State. The
constitutive theory has several drawbacks. It is criticised on many
grounds. First of all, the States cannot by their independent judgment
remove or abrogate any competence of other States established by
international law. The constitutive theory, however, may be supported
to some extent due to the fact that upon recognition the recognised
state or government acquires status in the municipal courts of
recognising states.
2. Declaratory
Declaratory theory is status confirming. According to declaratory
theory, recognition is a declaration or acknowledgement of an existing
State of law and fact, legal personality having been conferred
previously by operation of law. In other words, statehood or the
authority of a new government exists prior to and independently of
recognition. Recognition is not more than a formal acknowledgment of
an established situation of fact. Thus, in contrast to the constitutive
theory, the declaratory theory maintains that a new State acquires
capacity in international law not by virtue of the consent of others but
by virtue of a particular factual situation. The declaratory theory is
also supported by the rule that recognition of a new State has
retroactive effect, dating back to its actual inception as an
independent State. Further, before an international tribunal, it would

16
 be entirely proper to accept the existence of a State although the other
party to the dispute, or third States do not recognise it.
In practice, out of the two theories, most of the States follow
declaratory theory. To sum up, it may be said that recognition, while
declaratory of an existing fact, is constitutive in nature, at least so far
as concerns relations with the recognising State. It marks the
beginning of the effective enjoyment of the international rights and
duties of the recognised community.

LEGAL CONSEQUENCES
Recognition serves two legal functions. Firstly, determines statehood.
Secondly, it acts as a condition for the establishment of formal relations,
including diplomatic relations. Apart from this the newly recognised state
acquires the capacity to conclude treaties with the recognising state. It
confers certain rights on the newly recognised state or government. They
acquire the right of suing in the courts of law of the recognising state since
it gets a locus standi, this is not available in states who have not recognised
it. Legislative and executive acts of new state may also be given affect by the
courts of recognising state. The courts of non-recognising states will not
recognise or enforce the laws or other public acts of an unrecognised state.
The immunity from legal process is not available to representatives of
unrecognised state, thus enabling recognised states immunity from suit in
regard to its property and its diplomatic representatives. The recognised
state or government further becomes entitled to demand and receive
possession of, or to dispose of its property situate within the jurisdiction of a
recognising state.

Recognition of Government
Government is an essential of statehood. By government it is meant the
administrative and controlling tool of a state. Once a state comes into being,
its government may change from time to time. If the change of government
takes place in ordinary political life it the existing states are not required to
recognize the new government. But sometimes the change of a government
takes place as a result of a revolution. In such a case, it becomes necessary
to ascertain that whether this new revolutionary government is:
1. capable of having sufficient control over the people of the territory or not,
and
2. willing to maintain international responsibilities and duties or not.
So, if the existing states consider that this new government is capable of
fulfilling the above conditions then the new government may be recognized.

17
 The recognition of new regime means that the existing states are satisfied
that the new government has a capacity to control and is willing to perform
international duties and obligation. The recognition may be either de facto or
de jure. And the intention may be expressed either by sending a message to
the authority of the new government or to declare the same in a public
statement. The modern practice is seemed to reject the doctrine of
recognition of new government.

INDIAN PRACTICE

India has also been guided by the following considerations in its recognition
decisions:

• Political and economic interests: India's relations with other states and its
economic interests have played a role in some of its recognition decisions.
• Regional stability: India has also considered the impact of its recognition
decisions on regional stability.
• Human rights: India has attached importance to human rights in its
recognition decisions, and it has been reluctant to recognize states and
governments that have committed serious human rights abuses.

India's practice of recognition has been generally consistent with the

principles of international law. However, there have been some cases where
India's recognition decisions have been criticized by other states. Overall,
India's practice of recognition has been pragmatic and flexible. India has
sought to balance its political and economic interests with its commitment
to international law and human rights.

Unit 9: Recognition
a) Recognition of belligerency
b) Recognition of insurgency

INSURGENCY GROUPS

Recognition of insurgency under international law is the act of a state

acknowledging that an armed conflict within another state has reached the
point of a civil war. This gives the insurgents certain legal rights and
obligations, such as the right to conduct hostilities under the laws of war.

There is no specific definition of insurgency under international law, but it is

generally understood to meet the following criteria:

• The insurgents must be an organized group with a clear political or

military objective.

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• The insurgents must have effective control over a significant portion of
the territory of the parent state.
• The insurgents must be able to conduct sustained military operations
against the parent state.

Recognition of insurgency is a discretionary act, and there is no obligation

for states to do so. However, once a state has recognized an insurgency, it is
bound to treat the insurgents as belligerents, meaning that they are entitled
to the legal protections afforded to parties to a conflict under the laws of
war. Recognition of insurgency can have a significant impact on the course
of a conflict. It can give the insurgents a sense of legitimacy and make it
more difficult for the parent state to suppress the rebellion. It can also
attract foreign support for the insurgents, either in the form of military aid
or diplomatic recognition.

BELLIGERENCY :
Recognition of belligerency under international law is the act of a state
acknowledging that an armed conflict within another state has reached the
point of a civil war, giving the insurgents certain legal rights and obligations.
It is a discretionary act, but once a state has recognized belligerency, it is
bound to treat the insurgents as belligerents, entitled to the legal protections
afforded to parties to a conflict under the laws of war. Recognition of
belligerency can have a significant impact on the course of a conflict, giving
the insurgents a sense of legitimacy and attracting foreign support.

Conditions for recognition of belligerent state

a) There should exist within the state a status of armed conflict
b) The belligerents must occupy larger portion of national territory
c) The hostilities must be conducted in accordance with the rules of
war & through organized armed forces acting under a responsible
authority
d) There must exist certain circumstances which make it necessary for
outside states to define their attitude by means of recognition of
belligerency

Unit 10: State Succession

a) Meaning
b) Kinds of succession
c) Theories of state succession

MEANING
State succession refers to the merging of two or more States.

• It is different from government succession in the sense that in

government succession there’s a change of government whereas in

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 State succession the State loses control over its partial or whole
territory.
• Art 2(1)(b) of the Vienna Convention on the succession of States in
respect of treaties in 1978 defines the term State succession as ‘the
replacement of one State by another in the responsibility for the
international relations of territory’.
• In essence, it deals with the succession of one state with another and
the transfer of rights and obligations.

TYPES OF STATE SUCCESSION

A) Universal Succession
This is also referred to as Total Succession. When the entire identity of the
parent State is destroyed and the old territory takes up the identity of the
successor State, it is known as Universal Succession.
This can happen in cases of:

• Merger
• Annexation
• Subjugation
In certain cases of universal succession, the old State gets divided into
multiple States. The dissolution of Czechoslovakia is an example of
universal succession. The new States of the Czech Republic and Slovakia
are both successor States.

B) Partial Succession
Partial Succession occurs when a part of the territory of the State gets
severed from the parent State. This severed part now becomes an
independent State. This can occur when there is a civil war or a
liberalization war.

• There are two important examples of partial succession.

• One is the separation of Pakistan from India.
• The other is the separation of Bangladesh from Pakistan.
The existing States continued with their legal obligations and duties while
the new States got their own recognition and carried no rights or duties of
the parent States.

THEORIES OF STATE SUCCESSION

➢ Universal Succession Theory

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This is the oldest theory of succession propounded by Grotius, using the
Roman analogy of succession on the death of any natural person. According
to this theory, the rights and duties of the old State i.e., the predecessor
State pass on to the new State i.e., the successor State upon succession
without any exceptions and modifications.
In fact, there are two justifications behind this theory.
1. First that the State and the Sovereign gain all their power from God and a
mere change in Government shouldn’t cause any change in the powers.
2. Second, it is permanent and nothing can cause it to secede.
However, this theory failed to get any attention from the majority of States
from the world and has also been criticized by scholars from the world due
to its Roman law analogy, a poor distinction between succession and
internal change in governments, etc.

➢ Popular Continuity Theory

The Popular Continuity Theory can be described as another version of the
Universal Succession theory that was propounded by Fiore and Fradier
following the unification of the German and Italian nationals. According to
this theory, the State has a

Political personality: It basically refers to the rights and obligations of the

State towards the government. Social personality: lt basically refers to the
territory and the population of the State. Hence, upon succession, the
political personality gets changed whereas the social personality remains
intact. So, a State succession would not alter the rights and duties of the
populace.

➢ Organic Substitution Theory

It was from here that Max Huber derived his organic substitution theory.
Huber drew the analogy that the problem of State succession was similar to
that of dissolution of a social institution. The factual element of the people
and the territory have an organic bond i.e., the bond between the people and
elements of State and upon succession by a new sovereign, the organic bond
remains intact and only the juridical element changes. It offers a new
explanation to the continuity of rights and duties i.e., the substitution of a
successor State in the personality of its predecessor State. But, just like the
other theories, this theory too has had no practical application and has been
criticized for the same.

➢ Self-Abnegation Theory
This theory was propounded in 1900 and is another version of the universal
theory of continuity. The successor State agrees to observe the rules of
international law and performs the obligations towards other States created

21
under them. Although, this theory considers that the performance of the
international obligation, is merely ‘moral duty’ of the successor State, but at
the same time it gives the right to the other States, to insist upon the
successor State to perform the existing obligation. If the successor State
refuses to accept, the other States may even withhold its recognition or
make the recognition conditional upon the acceptance of the predecessor’s
commitment towards them.

➢ Negative Theory
This theory was developed during the mid-19th and early 20th centuries.
After World War II, the jurists of the Soviet Nations started emphasizing on
the right of self-determination and on giving complete freedom to the States
to maintain their international relations. According to this theory, the
successor State doesn’t absorb the personality of the predecessor State in its
political and economic interests. Upon succession, the new State is
completely free of the obligations of the predecessor State. The successor
State does not exercise its jurisdiction over the territory in virtue of a
transfer of power from its predecessor but it has acquired the possibility of
expanding its own sovereignty

➢ Communist Theory
According to the Communist Theory of State Succession, a successor State
is burdened by the economic and political commitments of the predecessor.
Thus, this comes as something completely contrary to the Negative Theory of
State Succession and unlike the Negative Theory, it doesn’t free the
successor State from the obligations of the predecessor State. The Successor
State is bound to adhere to the commitments of the predecessor State.
Political commitments involve peace, war and territorial treaties and
agreements while economic commitments include any amount of money
borrowed or lent. All these have to be fulfilled by the new State.

Unit 11: Intervention

a) Concept of Intervention
b) Grounds for intervention

CONCEPT
In international law, the concept of “intervention” is tied to the notion
“interference” and is when a State intervenes in the internal affairs of
another State, in violation of the latter’s sovereignty. Such intervention is
prohibited by the United Nations Charter (Art. 2.7), under the principle of
non-intervention, or non-interference, which posits that States should not
“intervene in matters to preserve the independence of weaker states against
the interventions and pressures of more powerful ones.” This concept is
presented as the basis for international relations and therefore applies to

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interstate relations, not to relief activities carried out by impartial
humanitarian organizations.
International law recognizes only one “right of intervention” into a State’s
internal affairs; it is set forth and limited in Chapter VII of the UN Charter.
This right is thus entrusted to the UN Security Council when a State’s
behaviour can be construed as a threat to international peace and security.
In such a case, the Council can undertake a series of measures, including
diplomatic or economic sanctions. The Council is also authorized to use
force and may decide that an international armed intervention is necessary
to make the State in question stop its activities.

3 ingredients:
i) No consent from one state to interfere in their affairs
ii) Interference exists in the internal affairs of other state
iii) Putting conditions as per its wish on the other state.

Types:
Military, Political, Economic, Diplomatic, Dictatorial interference,
Interference without right, Internal interference, External interference,
Penal/punitive interference, Subversive intervention, Collective Intervention.

GROUNDS/BASES:

1. For self-defence/self-protection: Necessity of self-defence should be

instant overwhelming and leaving no choice of means and no moment
for deliberation. The Supreme interest of the State overrides the law.
The Supreme interest of the State overrides the law. The right of self-
preservation is more sacred than the duty of respecting the
independence of other State. A state has right to interfere in the
affairs of another State where the security and immediate interests of
the former are compromised. Interventions, therefore, in order to ward
off imminent danger to the intervening State are justified by the force
of Circumstances. The danger must be direct and immediate, not
contingent and remote.
2. On the basis of humanity: Another justification is based on the
ground of humanity. Lawrence observes that in the opinion of many
writers such interventions are legal, but they cannot be brought
within the ordinary rules of International Law, which does not impose
on States the obligation of preventing barbarity on the part of their
neighbours. Living with human dignity is right of every citizen, if the
state denies or treats individuals with cruelty, the UNO interferes.
3. Enforcement of Treaty Rights: A State is justified in interfering in
the affairs of another State if the provisions of any treaty oblige the

23
 former to preserve the independence or neutrality of the latter. Such
intervention does not violate any right of independence because the
State that suffers has conceded such liberty of interference by treaty.
4. Collective intervention: Collective intervention at the present time is
in pursuance of the provisions of the Charter of the United Nations,
viz the enforcement action under the authority of the United Nations
Security Council in accordance with Chapter VII of the Charter.
Security council empowered to take this action for maintenance of
world peace and security and to stop or avoid attacks on the
conditions as follows i) when there is actual danger or possibility of
danger for international peace and security ii) actual attack has been
made by the concerned state
5. At the time of Internal/Civil War: With the establishment of the
United Nations, there is no justification for intervention by the
Individual States in the civil wars of other states. The Charter of
United Nations imposes an obligation upon States to refrain in the
international relations from the threat or use of force against the
territorial integrity or political independence of any State.
6. Balance of Power -The Doctrine of the necessity of a balance of
power, observes Fenwick, between the leading States as the basis of
mutual self-protection, dominated the international relations of the
nineteenth century. Most of the interventions in the Balkan Peninsula
should be regarded as interventions in consonance with the policy of
balance of power. Intervention on the ground of prevention of the
balance of prevention has been condemned by jurists of all ages.
7. Protection of Persons and Property -Protection of the persons,
Property and interest of its nationals may provide justification for
intervention. The necessity for protection may arise due to gross
injustice or due to injury caused by unfair discrimination.
8. Protection of Colonies: State A is a colony of State B, the latter has
the liability to protect the former and to do so it can interfere in the
internal and external affairs.

Unit 12: Intervention

a) Intervention under the League of Nations

The First World War took place between 1914 and 1918, and though it was
fought mainly on the European continent, it involved other parts of the
world as well. It was the first international conflict to reach a magnitude of
such a large scale and it proved that wars could affect the international
community as a whole. After the war and during the discussions to reach a
peace settlement in 1919 through 1920 a change in the consensus
regarding the use of force by sovereign states became evident. During the
discussions it was brought up on several occasions whether states should
bear responsibility for partaking in wars of aggression. These ideas laid the

24
groundwork for the estimation of the reparation the guilty parties were
forced to pay once the settlement was signed. During peace discussions, the
League of Nations was formed by the victors of the war. The purpose of the
organization, was to prevent further wars of such a large scale and to restore
European stability and peace. The system was flawed, the Covenant of the
League of Nations did not ban the use of force as long as the resort to force
stopped short of full out war. A consequence of this was that states resorted
to force, yet claimed that they had not gone to war and instead had only
used coercion. Furthermore, war was not prohibited in its entirety, instead
the Covenant prescribed a mandatory period of three months after the
decision to enter into war had been made, before the states intending to go
to war could resort to force. Another problem that the League of Nations
faced was that it had no way to punish states which had broken the rules. If
a State waged war against another and thus acted contrary to the Covenant,
the other member States had a duty to “protect” the attacked state, but only
if they themselves believed that the attacking state in fact was breaking the
Covenants rules. Another contributing factor to the failure of the League of
Nations was that the Covenant only applied to its member states.

CASE LAWS
1. ANGLO- NORWEGIAN CASE

The main issues in the fisheries case were

1. Whether the coastal line delimited by Norway which is 10 miles according
to customary rule is right or wrong?
2. Whether Norway is responsible for arresting the British people and
whether Norway should pay compensation or not?

Rule of Law
The rule of law in the Anglo-Norwegian Fisheries Case was based on several
principles of international law.
1. The case was decided based on the principle of the natural prolongation
of the continental shelf, which allowed coastal states to exercise jurisdiction
over the resources on their continental shelves. The Court held that Norway
had jurisdiction over the fisheries beyond its territorial sea, up to twelve
nautical miles from the coastline, based on this principle. This principle has
become a cornerstone of modern maritime law and has been incorporated
into the United Nations Convention on the Law of the Sea.
2. The case reaffirmed the importance of interpreting historic rights in light
of contemporary international law. The United Kingdom had claimed historic
fishing rights in the area, dating back to medieval times. However, the Court

25
held that these historic rights did not confer exclusive fishing rights in the
disputed area, and must be interpreted in light of contemporary
international law.
3. The Court’s decision on the role of customary international law in the
case had significant implications for the law of the sea. It affirmed the
importance of interpreting customary law in light of contemporary
international law, which reflects the evolving nature of customary
international law. This approach has been applied in subsequent cases,
such as the Nicaragua Case, which held that customary international law
can be modified through state practice and opinion juris.
Overall, the rule of law in the Anglo-Norwegian Fisheries Case was based on
the principles of the natural prolongation of the continental shelf, the
interpretation of historic rights in light of contemporary international law,
and the evolving nature of customary international law.

Analysis of The Case

United Kingdom had 2 contentions in this case.
1. The first one was, Norway needs to delimit the maritime boundary in
the low water grounds. According to this, the maritime boundary
would be 4 miles and not 10 miles.
2. The second one was, as Norway seized the fishing vessel and arrested
the British people, Norway needs to compensate for this action.
Norway argued on the history of 300 years of customary rule and the
delimitation method was consistent with general principles of
international law.

ICJ’s Decision
There are a number of ways that international law can be developed. The
most obvious way is by nations making treaties and conventions. Another
way is customary law. Customary law reflects the ways that nations dealt
with one another before we had a more formal system of international law.
The court found that Norway had used the rocky outcrops as its baseline for
centuries and that other nations including Great Britain had allowed them
to do so. The court said, historical data produced by the Norwegian
government lends some weight to the idea of the survival of traditional rights
over fishing grounds. Such rights founded on the vital need of the
population and attested by very ancient and peaceful usage may legitimately
be taken into account in drawing a line whichever appears to the court to
have been kept within the bounds of what is moderate and reasonable.
Norway was therefore allowed in accordance with customary international

26
law to calculate its territorial waters from the edge of the rock outcrops.
Court also considered the 300 years of practice of customary law. The
United Kingdom never objected to it in 300 years.
After considering all these, the court ruled in the favour of Norway.

2. SS LOTUS FARNCE VS TURKEY CASE:

Facts of the case

On 2nd August of 1926 before midnight a collision took place on the high
seas between a French vessel Lotus and a Turkish collier Boz-Kourt which
resulted in sinking of the Boz-Kourt and death of eight Turkish nationals on
board the Turkish collier. The 10 survivors of the Boz-Kourt (including its
captain, Hassan Bey) were taken to Turkey on board the Lotus. The French
mail steamer was captained by a French citizen by the name Monsieur
Demons. The Lotus continued on its course to Constantinople, where it
arrived on August 3. On the 5th of August, Lieutenant Demons was inquired
into by the Turkish (D) authority to go ashore to give evidence. After Demons
was questioned, he was placed under arrest without informing the French
(P) Consul-General and later, Demons was convicted by the Turkish (D)
criminal courts for manslaughter. He was sentenced to 80 days of
imprisonment and a fine.

Issues of Lotus Case:

• Whether Turkey violated international law when Turkish courts exercised
jurisdiction over a crime committed by a French national, outside Turkey?
• Should Turkey pay compensation to France, if it violated international
law?
The ‘flag state principle’ which was argued by France was rejected by
majority in the court since there was no rule to that effect in international
law. The implication of this principle to future events raising the issue of
jurisdiction over people on the high seas was altered by Article 11 of the
Geneva Convention of High Seas, 1958. The convention put weight on the
fact that only the flag state or the state of which the alleged offender was a
national had jurisdiction over sailors regarding incidents occurring in high
seas. This “flag state principle” has since also been adopted in the United
Nations Convention on the Law Of the Sea (UNCLOS), e.g. in article 92 and,
in regards to enforcement of environmental legislation, article 217(1).
A state cannot exercise its jurisdiction beyond its territory unless an
international convention or customary law allows it to do so.
Within the bounds of its territory, a State may exercise its jurisdiction, in
any matter, although there is no specific rule of international law permitting

27
it to do so. In these cases, States have a broad measure of discretion, which
is only limited by the prohibitive or restrictive principles of international law.

3. GERMANY VS ITALY- JURISDICTIONAL IMMUNITIES OF THE

STATE

Facts of the Case:

In 1940, Italy entered the Second World War as an ally of the German Reich.
In 1943, Italy surrendered to the Allies and declared war against Germany.
At the time, German forces occupied significant Italian territory. It
committed many crimes against civilians and soldiers, including massacres,
deportations and forced labour. After the end of the war, Germany enacted
several laws to facilitate the payment of compensation to these victims.
However, thousands of former Italian military internees did not fall within
these laws and they could not get compensation in Germany. These
internees brought civil cases against Germany in Italian courts to claim
compensation. Germany objected to the proceedings on the basis of
jurisdictional immunity before foreign courts.

HELD:
Italy violated its obligation to respect Germany’s immunity under
international law by allowing civil claims to be brought against Germany
based on violations of international humanitarian law committed by the
German Reich between 1943 and 1945, by declaring enforceable in Italy
decisions of Greek courts and by taking measures of constraint against
German property in Italy. The Court requested Italy to enact legislation, or
resort to other methods of its choosing, to ensure that the decisions of its
courts and those of other judicial authorities infringing the immunity which
Germany enjoys under international law cease to have effect.

4. DEMOCRATIC REPUBLIC OF CONGO VS BELGIUM

Facts of the case:

On 11 April 2000, a Belgian Magistrate issued an international arrest
warrant against Mr. Yerodia. At the time, Yerodia was the Foreign Minister
of the Congo. The Court issued the warrant based on universal jurisdiction.
It accused Yerodia of inciting racial hatred. These speeches, allegedly,
incited the population to attack Tutsi residents in Rwanda, which resulted
in many deaths. The warrant alleged that Yerodia committed grave breaches
of the Geneva Conventions of 1949 and its Additional Protocols and crimes
against humanity. Belgium sent the arrest warrant to Interpol and
circulated it to all States, including to the Congo. The warrant asked States
to arrest, detain, and extradite Yerodia to Belgium. After Belgium issued the
warrant, in November 2000, Yerodia became the education minister. At the
time of the ICJ’s judgement, he did not hold a Ministerial post in Congo.

28
The Court’s Decision:
The issuance and circulation of the arrest warrant violated Belgium’s
international obligations towards the Congo. Belgium failed to respect, and
infringed, Yerodia’s immunity and the inviolability enjoyed by him under
international law.

5. ASYLUM CASE, COLUMBIA VS. PERU, 1950

The granting of diplomatic asylum in the Colombian Embassy at Lima, on 3
January 1949, to a Peruvian national, Victor Raúl Haya de la Torre, a
political leader accused of having instigated a military rebellion, was the
subject of a dispute between Peru and Colombia which the Parties agreed to
submit to the Court. The Pan-American Havana Convention on Asylum
(1928) laid down that, subject to certain conditions, asylum could be
granted in a foreign embassy to a political refugee who was a national of the
territorial State. The question in dispute was whether Colombia, as the State
granting the asylum, was entitled unilaterally to “qualify” the offence
committed by the refugee in a manner binding on the territorial State — that
is, to decide whether it was a political offence or a common crime.
Furthermore, the Court was asked to decide whether the territorial State
was bound to afford the necessary guarantees to enable the refugee to leave
the country in safety. In its judgment of 20 November 1950, the Court
answered both these questions in the negative, but at the same time it
specified that Peru had not proved that Mr. Haya de la Torre was a common
criminal. Lastly, it found in favour of a counter-claim submitted by Peru
that Mr. Haya de la Torre had been granted asylum in violation of the
Havana Convention.

6. CORFU CHANNEL CASE:

This case addressed Albanian liability for mining the Corfu canal, as well as
the subsequent damage to two British Navy warships caused by the colliding
mines. Two British warships collided with mines in Albanian waters in
October 1946. Both destroyers were seriously damaged, and 45 British
officers and sailors were killed, along with 42 more. Following that, without
Albanian permission, the British Navy searched for mines in Albanian
waters in the Corfu Channel in November 1946. The United Kingdom
requested that proceedings be initiated against the People's Republic of
Albania in order to determine if the Albanian Government was worldwide
responsible for the incident's consequences and had to provide recompense.
Albania, for its part, has launched a counter-claim against the United
Kingdom for trespassing in Albanian territorial waters. a project known as
'Operation Retail' The minefield that set off the explosions, according to the
British authorities, was planted between May 15 and October 22, 1946, with
the Albanian government's knowledge or consent. Albania was forced to pay
the UK government back for the explosions and fatalities. Along with the

29
matter of the passage of the British warships, the second question in the
Special Agreement concerns the actions of the British Navy in Albanian
waters, when the UK government carried out a minesweeping operation
known as "Operation Retail" without Albania's consent.

Holding of the court:

The majority opinion held that Albania was liable for the blasts for the
resultant devastation and loss of human life that the United Kingdom had
experienced. Albania was made liable by majority as it had continuous
surveillance over the Channel and, therefore, ought to have known about
Corfu Channel.

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