PUBLIC INTERNATIONAL LAW

1. Explain nature, origin and historical development of Internal law?

Nature and Definition of International Law: All you want to know (ipleaders.in)

Introduction
Law is the element of the society which helps to develop a framework within which rights
and duties can be established. The world today requires a method where interstate relations
can be conducted, and International Law fills this gap. The United Nations developed this
body of International Law for the purpose of promoting international peace and security.
Countries come together to make binding rules that they believe will benefit their citizens.
International Laws promote peace, justice, common interests and trade. States work
together to strengthen International Law because it plays an important role in society.
International Law is directly and strongly influenced by the writings of jurists and publicists,
instructions to diplomatic agents, important conventions even when they are not ratified,
and arbitral awards.

Definition of International Law

According to Oppenheim, International Law is a “Law of Nations or it is the name for the
body of customary law and conventional rules which are considered to be binding by civilized
States in their intercourse with each other.”
Thus, International Law can be considered as treaties, set of rules and agreements between
countries that are binding between them. International Law governs how nations must
interact with other nations. It is extremely useful in regulating the issue of jurisdiction which
arises when people trade among different States. The main purpose of International Law is
to promote justice, peace and common interest.

Relevance and Function of International Law

International Law grew out of necessity. As International engagement increased,
International Law expanded. International Law is the most convenient form of regulating
world order in the present-day world. International Law aims to maintain international peace
and security, which provide for fundamental rights, freedoms and human rights, to refrain
the State from the use of threat or force against the territorial integrity of any other State, to
provide for the right of self-determination to people, to solve International problems by
achieving International cooperation, to use peaceful means for settlement of international
disputes.

Principles 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.
2. Jus Inter Gentes: These refer to those treaties and agreements that are accepted by both
countries mutually.
International Law provides effective means through which peaceful settlement of disputes
can be done. It is mainly concerned with the rights, duties and the interests of the State.
 Classification of International Law
International Law can be classified into two groups:
Public International Law
Public International Law is regulated by the treaties and globally accepted norms and
customs which are included as State practice and opinio Juris. It regulates the relationship
between those nations and peoples that are prone to be affected by a particular law as they
are bound by these legal codes and rules.

Private International Law

It regulates private conflicts between individuals rather than the States. It seeks to resolve
disputes in the domestic municipal body which involves an issue revolving beyond its
domestic jurisdiction.

What are the sources of International Law?

The sources of International Law are treaties, custom, general principles of law recognized by
civilized nations, judicial decisions and teachings of publicists.

Treaties
The concept of treaty is based on pacta sunt servanda, which is a customary law principle
which means promises must be kept. In a treaty, countries create their terms of rights and
obligations out of their volition, thus it is very similar to a contract. Therefore, a treaty is a
written agreement between two or more States which lays down the manner in which every
State would act while doing dealings with other participating States. Sometimes, in place of
treaties other terms such as charters, declarations, conventions and statutes are often used.
However, there is a slight difference in meaning of these terminologies.

Custom
Custom is one of the primary sources of International Law. In International Law, it is
considered to be of particular importance because of its decentralized nature. Two
conditions are essential for an act of a State to constitute as custom:
1. The first being the State practice itself, it is not necessary that the act of a State necessarily
needs to be positive in nature. State practice should be extensive, uniform and consistent
and prevail for at least such a period of time as would establish it as a recognized act of
States.
2. The second essential is opinio juris, which means, the psychological belief of a State that its
act is creating a legally obligatory position for itself. But it should be noticed that not every
activity of a State would necessarily create binding rules of customary law. For instance, if a
particular pattern is used by the State on a particular issue in the General Assembly, it is
reflective of the maxim opinio juris.

General Principles of Law

As in International Law there is no cohesive body for legislating laws or any Court that has
the power to set precedents, thus it is relatively undeveloped as compared to the Municipal
Law. Article 38 of the Statute of the ICJ provides for ‘general principles of law recognized by
civilized nations’ as a source of law.
In the Chorzow Factory Case, the general principle of International Law, it is the duty of a
State to make reparations upon the breach of an international obligation, was recognized by
the Permanent Court of International Justice. In the Corfu Channel Case, while referring to
circumstantial evidence, the ICJ pointed out that ‘in all systems of law indirect evidence is
admitted and its use is recognized by International decisions’. The principle of res judicata is
too recognised by International Law.

Judicial Decisions

As per Article 38, judicial decisions are recognized as subsidiary means of determination of
law. Article 59 of the Statute of the ICJ states that the decisions of the Court can only guide
them but does not have any binding value on the Court and the court is authorised to apply
the previous decisions of the court which are known as the evidence of International Law.
Thus, the doctrine of stare decisis is not followed in International Law.
ICJ through its case laws, advisory opinions and judges role-play a major role in the law-
making process. One of the major examples of this was laid down in the case of Nicaragua
vs. USA where the principle of the prohibition against the use of threat or use of force was
recognised. This principle is now considered to be a part of Customary International Law. In
another case, that is, Alabama Claims arbitration, ICJ gave recognition to the peaceful
settlement of international disputes. In this, judicial and arbitration methods were used in
resolving conflict.

Writings of the Publicists

As per Article 38, teachings of the highly qualified writers of International Law such as
Gentili, Grotius, and Vattel are considered as the subsidiary means of determination of law.
The role of the writers is extremely significant in providing a structure and coherence in the
field of International Law. Textbooks are used as a method of discovering law on any
particular point and law cannot be created even by the writings of the most respected
International Lawyers. As they provide an understanding and explanation of the principles of
International Law these are considered as an evidentiary source of law.

Can International Law be termed as a true law?

There has been a lot of controversy regarding this question. Some answered the question in
negative while others in the affirmative. Some feel that International Law lacks the element
of certainty, stability and predictability.

Not a true law

John Austin, a leading English writer on Jurisprudence supports the view that International
Law is not a law. As per him, International Law is a code of moral force and rules of conduct
only. In his opinion, International Law does not have any sanction behind it and it doesn’t
emanate from a law giving authority. He described International Law as the one consisting of
positive International morality and opinions or sentiments which are followed by the nations
as per their own wish.
Hobbes and Pufendorff are also of the view that International Law is not a true law as the
law is not truly invested with true legal force and it is not backed by the command of a
superior.
 Holland is of the view that International Law is extremely different from ordinary laws as it is
not supported by the State’s authority. As per him, the private law is writ large. He describes
International Law as the vanishing point of Jurisprudence. He is of the view that as
International Law lacks sanction (which is the most important element of Municipal Law) it
can not be kept in the category of true law.

A true Law
Hall And Lawrence consider International Law as true law. According to them, International
Law is derived from custom and precedents which are a source of law and it is habitually
treated like a certain kind of positive law.
Sir Frederick Pollock observed that for International Law to be binding upon the members,
the only essential conditions are the existence of political community and the recognition by
its members of settled rules binding upon them in that capacity. International Law wholly
satisfies these conditions.

What is the difference between International Law and Municipal Law?

The basis of both laws is different in many ways.
 Firstly, International Law is majorly concerned with the relation among States. Whereas
Municipal Law controls the relationship between individuals and the State and between the
individuals within a State.
 Secondly, in the case of International Law, the law is not above the individuals but between
the sovereign States and the States themselves create the law. In International Law, the
States often disobey the laws or create laws as per their interests. Whereas in the case of
Municipal Law, the law is deemed to be above the individuals, as is the case with the laws of
most of the countries, the law is deemed to be above individuals.
 Thirdly, the sources of both laws differ. Article 38 of the Statute of the ICJ is considered as
the most authoritative statement of the sources of law for the Public International Law. It
states the sources of law such as customs, conventions, treaties, general principles of law
recognized by civilized nations and judicial decisions and teachings of highly qualified
publicists. Whereas in the case of Municipal Laws there is a hierarchy of laws which
determines, which legal commandment is more authoritative than others. For instance, in
many countries, a hierarchy of courts is established wherein the judgments of higher courts
are of more authoritative value and thus are relied upon by the lower courts.

Conclusion
International Law is a set of rules which are necessary in order to regulate the behaviour of
nation-States towards each other so as to ensure peace and welfare of the International
community. It helps in resolving disputes amongst States. International Law may influence
internal laws too and may become a part of domestic law.
It is not necessary for International Law to be codified into an agreement. There have been
a lot of developments in the Modern International Law and the International Court of Justice
is considered as the principal body responsible for upholding the tenants of International
Law.
 2. Explain law of sea ( Law of Sea Convention. 1982)?
Law of the Sea (United Nations Convention on the Law of the Sea, 1982)

The Law of the Sea Convention, also known as the United Nations Convention on the Law of the Sea
(UNCLOS), is a comprehensive framework that governs the rights and responsibilities of nations
concerning the world's oceans. Adopted in 1982, UNCLOS established legal standards for the use of
the seas, covering navigational rights, territorial waters, the exploitation of marine resources, and the
protection of the marine environment. The convention also provided mechanisms for resolving
maritime disputes and defined the various maritime zones that countries could claim. It entered into
force in 1994 and remains the primary legal instrument for ocean governance.

Historical Background

Before UNCLOS, maritime laws were largely based on customary international law, which was
inadequate for addressing complex and emerging challenges related to the seas. In the 20th century,
various international conferences and treaties attempted to address issues like fishing rights,
navigation, and seabed mining. However, there was no comprehensive treaty until the establishment
of UNCLOS.

The convention was developed in response to growing international tensions over the use of marine
resources and concerns about pollution. As nations expanded their fishing fleets, the demand for
mineral resources from the seabed increased, and the need for a uniform legal framework to
regulate these activities became more apparent. The United Nations organized three international
conferences to discuss the matter, with the third conference, held from 1973 to 1982, producing the
final treaty.

Key Provisions of UNCLOS

UNCLOS covers a broad range of topics and establishes a balance between the rights of coastal states
and the interests of the international community. Some of the key provisions of UNCLOS are as
follows:

1. Territorial Waters: Under UNCLOS, every coastal nation is entitled to a territorial sea
extending up to 12 nautical miles from its baseline. Within this zone, the coastal state has full
sovereignty, similar to its sovereignty on land. However, foreign vessels enjoy the right of
innocent passage, meaning they can pass through the territorial waters as long as they do
not threaten the peace, security, or order of the coastal state.

2. Contiguous Zone: Beyond the territorial sea, UNCLOS allows countries to claim a contiguous
zone extending up to 24 nautical miles from the baseline. In this zone, the coastal state can
exercise control necessary to prevent or punish violations of its customs, fiscal, immigration,
or sanitary laws that occur within its territory or territorial sea.

3. Exclusive Economic Zone (EEZ): One of the most significant aspects of UNCLOS is the
creation of the Exclusive Economic Zone (EEZ), which extends 200 nautical miles from the
baseline. Within the EEZ, the coastal state has the sovereign right to explore, exploit,
conserve, and manage natural resources, including fish, oil, gas, and minerals. While other
states retain the right to navigate and lay submarine cables in the EEZ, they cannot exploit
resources without the coastal state's permission.
 4. Continental Shelf: UNCLOS defines the rights of coastal states over their continental shelf,
which is the submerged land extending from the coastline to the outer edge of the
continental margin or up to 200 nautical miles. If the continental margin extends beyond 200
nautical miles, states can claim rights over the additional area up to 350 nautical miles or 100
nautical miles from the 2,500-meter depth contour. Coastal states have exclusive rights to
exploit the natural resources on and under the seabed of their continental shelf.

5. High Seas: Beyond the EEZ and continental shelf, the high seas are open to all states, both
coastal and landlocked. UNCLOS grants every state the freedom of navigation, overflight,
laying submarine cables, fishing, and conducting scientific research on the high seas.
However, these freedoms are subject to certain restrictions, such as the requirement to
preserve and manage marine resources sustainably.

6. Deep Seabed Mining: UNCLOS designates the deep seabed, beyond national jurisdiction, as
the "common heritage of mankind." This means that no state can claim sovereignty over the
deep seabed or its resources. Instead, the exploitation of seabed minerals must be
conducted under the oversight of the International Seabed Authority (ISA), an institution
created by UNCLOS to regulate mineral activities in these areas. The ISA ensures that deep-
sea mining is carried out for the benefit of all humanity, with special attention given to the
needs of developing countries.

7. Marine Environmental Protection: UNCLOS includes provisions aimed at protecting the

marine environment from pollution and degradation. States are required to take measures to
prevent, reduce, and control pollution from various sources, including ships, land-based
activities, and seabed mining. The convention also emphasizes the importance of protecting
rare or fragile ecosystems and the habitats of endangered species. States must cooperate at
the regional and global levels to develop policies and laws that safeguard the marine
environment.

8. Dispute Resolution: UNCLOS provides mechanisms for the peaceful settlement of disputes
related to the interpretation or application of the convention. Parties are encouraged to
resolve disputes through negotiations, but if that fails, they may submit the dispute to
binding arbitration, the International Tribunal for the Law of the Sea (ITLOS), or the
International Court of Justice (ICJ). The establishment of these institutions under UNCLOS
reflects the convention's commitment to promoting peaceful cooperation among nations.

Global Impact of UNCLOS

UNCLOS has had a profound impact on the governance of the world's oceans. It has provided a legal
framework that balances the interests of coastal states with the rights of the international
community, reducing the likelihood of conflict over maritime boundaries and resources. The
convention has also facilitated cooperation in protecting the marine environment and managing
global fisheries.

Moreover, UNCLOS has played a crucial role in addressing modern challenges, such as climate change
and rising sea levels, by providing legal tools for managing maritime zones affected by shifting
coastlines. It has also contributed to global security by establishing legal principles that support
freedom of navigation, which is essential for international trade and military operations.

Conclusion
The Law of the Sea Convention of 1982 is a landmark treaty that has shaped the legal landscape of
ocean governance. By defining the rights and responsibilities of states in relation to maritime zones,
resource exploitation, environmental protection, and dispute resolution, UNCLOS has provided a
stable and predictable framework for the management of the world's oceans. As global challenges
like overfishing, pollution, and climate change continue to impact the oceans, UNCLOS remains an
essential tool for promoting sustainable and cooperative use of marine resources. Its broad
acceptance and adherence by the international community underscore its significance as a
foundation for peaceful and equitable ocean governance.

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Law of the Sea: An Inclusion of Treaty & Customary Laws (ipleaders.in)

Law of the sea is also known as Maritime law which is that branch of public International Law
which regulates the rights and duties concerning the regulation of states with respect to the
sea. It governs the legal rules regarding ships and shipping. It is one of the principal subjects
of international law and is a mixture of the treaty and established or emerging customary
law.
The law of the sea forms the basis of conducting maritime economic activities, the
codification of navigation rules and to protect oceans from abuse of power. It covers rights,
freedoms and obligations in areas such as territorial seas and waters and the high seas,
fishing, wrecks and cultural heritage, protection of the marine environment and dispute
settlement.

The genesis of Law of Sea

Grotius also known as the father of modern International law, led to the formulation of
maritime law which is one of the recently developed branches of International Law. During
the 17th century, the doctrine of “freedom-of-the-seas” emerged wherein it was considered
that the seas were free to all nations but belonged to none of them. The Law of the sea has
always been in a state of flux, changing and creating a new regime as per the state’s own will.
There existed certain tension between “the free sea” and “the closed sea” which waned for
centuries, generally with the powerful states arguing that the sea was free to all, and the
smaller States arguing for transnational limitations on what maritime powers could do to
navigate the oceans and exploit their resources.
It was during the 20th century due to vast development in the technology and the commerce
department, many nations began to make jurisdictional claims so that they could protect
their interest and the gradual enlargement of territorial sea initiated the need for the
codification of the law to create uniformity.
Over a series of discussions and conferences, four conventions on the law of seas evolved in
1958, namely called Geneva convention on the law of sea developed but the conventions
failed to address several issues like the urgent need to regulate the usage of minerals of the
deep sea beds and high sea.
In 1982, the third UN conference adopted the Convention on the Law of the Sea
(UNCLOS) consisting of 320 articles and 9 Annexes, along with 4 resolution. A significant
portion of the convention was a replica of the old Geneva convention however several new
factors were also dictated which are as follows:
 It expanded the scope regarding the matters of the new legal regime of the deep sea bed
and economic zones.
 The territorial sea now extended up to 12 nautical miles limit.
 In cases of dispute, the convention provides compulsory judicial settlement at the request of
one of the parties.
 The convention also describes the formation of an international tribunal of the law of the sea
for helping in settlements of disputes.
 The convention also deals with the regime of archipelagic states, the waters between the
islands are declared archipelagic waters, where ships of all States enjoy the right of innocent
passage.

Major Maritime zones along with the rights and duties provided under the specific zones
Territorial seas
It is that part of the sea which is directly next to the coastline and bounded by the high
seas. Article 2 of the Geneva Convention on the Territorial Sea and UNCLOS Article 3 both
express that states exercise sovereignty over this zone subject to the provisions of the
respective conventions and other rules of international law. This was intended to highlight
that the limitations upon sovereignty in this area set out in the Convention are non-
exhaustive. The territorial sea forms an undeniable part of the land territory to which it is
bound so that a cession of land will automatically include any band of territorial waters.
According to UNCLOS, it is believed that every coastal state has Territorial sea. The
sovereignty of the coastal state extends to the seabed and subsoil of the territorial sea and
the airspace above it. The coastal States exercise a wide variety of exclusive power over the
territorial sea which depends largely on the municipal law rather the international system.
Coastal states can control the entry of foreign vessels from trading or fishing activities to
preserve it for their own citizens.
a. Width of the Territorial sea
Width of the territorial sea up to which the states can exercise sovereignty has been
subjected to a long line of historical development. Initially, it started with the “cannon-shot”
rule wherein it stated that width requirement in terms of the range of shore-based artillery,
however during the 19th century it changed to 3-mile rule by the Scandinavians claimed 4
miles.
The limit to exercise jurisdiction over the territorial sea became clear only after the first
world war, Article 3 of the 1982 Convention, however, notes that all states have the right to
establish the breadth of the territorial sea up to a limit not exceeding 12 nautical miles from
the baselines. This is clearly in line with state practice. For determining the measurement of
this range two methods have been laid down which are as follows:
Low water line
It was the Anglo Norwegian Fisheries case which propounded the principle regarding the
determination of the baseline w.r.t geographical realities. In this case, the method applied by
the Norwegians affected the fishing interest of UK because the straight baseline method
applied then created a chance to cover those parts of the sea which belonged to High sea
zone.
The court upheld the straight baseline method applied by Norway due to the peculiar nature
of its coastline. The method that determines the rule regarding the 12 Nautical miles limit
depends mainly on the nature of the state’s geographic position, normally Low water line is
preferred however in cases of countries like Norway straight baseline method can be applied.
b. The Right of Innocent Passage
The right of foreign merchant ships (as distinct from warships) to pass unhindered through
the territorial sea of coast has long been an accepted principle in customary international
law, the sovereignty of the coast state notwithstanding.
 UNCLOS in its Article 19 provides for an exhaustive list of activities for which the passage is
considered as innocent, the main factor to keep in mind is peace, good order, or security of
the coastal State. Article 24 prohibits coastal States from hampering the innocent passage of
foreign ships through the territorial sea unless specifically authorized by other Articles of the
LOSC.
Discrimination among other states or cargoes is prohibited for the Coastal States, however,
when it is found to be that any foreign Ship has committed any violation of the aforesaid rule
of the convention, the coastal states have the power to forbid entry of such ship or take any
measures as they deem necessary for their security.
Other aspects of the territorial sea are:
 Internal water
As per Article 8 of UNCLOS, internal waters include that part of the sea which does not
belong to either the high seas or the territorial rather covers all the waterways on the
landward side of the baseline. One of the major differences between the Territorial sea and
the internal water is that there exists no right of innocent passage in case of the former.
 Bays
Bays are one of the major complex issues under maritime laws, it may enclose a line which
leaves internal waters on its landward side and provides a baseline for delimiting the
territorial sea.
 Islands
The 1958 convention defines Islands consist of a naturally formed area of land, surrounded
by water, which is above water at high tide. These islands are capable of forming continental
shelf zone, Exclusive Economic zone, Contiguous zone, territorial sea zone however if there is
no habitat capable of surviving on an island it may not form EEZ. Where there exists a chain
of islands which are less than 24 miles apart, a continuous band of the territorial sea may be
generated.
 Archipelagic states: Group of Islands
The states having above such characteristics has sovereignty over the waters enclosed by the
baselines subject to limitations created by the provisions of this Part of the convention.
These limitations consist of the right of innocent passage for ships of all states, and, unless
the archipelagic state designates sea lanes and air routes, the right of archipelagic sea lanes
passage through the routes normally used for international navigation.
Contiguous zone
It is that part of the sea which is located beyond and adjacent to the territorial waters of the
coastal states. The development of this zone arose due to the need of the state to strengthen
its regulation over the territorial sea.
It extends up to 12 nautical miles from the territorial sea, the object of this zone is only for
certain purposes as provided in the article 24 of the convention like to prevent infringement
of customs, immigration or sanitary laws of the coastal state, or to conserve fishing stocks in
a particular area, or to enable the coastal state to have exclusive or principal rights to the
resources of the proclaimed zone. The formation of this zone is only for special purposes as
prescribed in the convention, it does not provide any air and space rights to the states.
Exclusive Economic Zone (EEZ)
The object for this zone arose due to controversy regarding fishing zones. Due to a lack of
regulation of limit regarding fishing zone, states began to claim the wide depth of region
under this zone. In the case of Tunisia vs Libya, the court regarded that the concept of
Exclusive Economic Zone can be associated as a part of Customary International Law. Article
 55 of the UNCLOS describes the extension of this region from the baseline is up to 200
nautical miles from the breadth of the territorial sea.
In the case of Coastal states as per article 56 of the convention, these states have sovereign
rights over the Exclusive Economic Zone for the purpose like:
1. Exploiting and exploring, conserving and managing natural resources
2. For the establishment of an artificial island, Marine Scientific research
iii. Other rights as specified in part IV of the convention.
In case of other states, it provides rights and duties of that which can be compared to the
high seas such as freedom of navigation, laying of pipelines and submarine cables, they have
to keep in mind the rights and duties of Coastal states during the exercise of their own
power.
Continental Shelf
This zone arose due to the concept of Geography wherein as per 1982 convention, it includes
a natural seaward extension of a land boundary. This seaward extension is geologically
formed as the seabed slopes away from the coast, typically consisting of a gradual slope (the
continental shelf proper), followed by a steep slope (the continental slope), and then a more
gradual slope leading to the deep seabed floor. The limit up to which its length extends up to
200 nautical miles.
These three areas, collectively known as the continental margin, are rich in natural
resources, including oil, natural gas and certain minerals.
The coastal states exercise an extensive sovereign-rights over this zone for the purpose of
exploiting its resources. The coastal state may, under article 80 of the 1982 Convention,
construct and maintain installations and other devices necessary for exploration on the
continental shelf and is entitled to establish safety zones around such installations to a limit
of 500 metres, which must be respected by ships of all nationalities.
EEZ and Continental shelf is almost similar in nature however the major point of difference
between the two is that under the 1982 convention a continental shelf can exist without an
EEZ but there cannot be an EEZ without the demarcation of the Continental shelf.

a. Delimitation of the continental shelf

The measurement of the range of this zone has led to several controversies and a long line of
legal custom that has led to the need for the evolution of this concept. In the case
of Nicaragua vs Honduras, the international court has dictated on the importance of the
establishment of a maritime boundary.
The concept of the median line has been used to determine the delimitation of the territorial
sea within the opposite and the adjacent coast. Initially, the issue was taken up in the North
Sea Continental Shelf cases, wherein the Court took the view that delimitation was based
upon consideration and weighing of relevant factors in order to produce an equitable result.
Later, in the case of Libya Vs Malta, the Court emphasised the close relationship between
continental shelf and economic zone delimitations and held that the appropriate
methodology was first to provisionally draw an equidistant line and then to consider whether
circumstances existed which must lead to an adjustment of that line.
High Seas and Deep Ocean Floor
This includes that region of the sea which exists beyond the EEZ and does not form part of
the territorial sea. The essence of this region is that no state acquires any sovereign right
over this zone. As per the Article 87 of the 1982 Convention, high seas are open to all states
and that the freedom of the high seas is exercised under the conditions laid down in the
Convention and by other rules of international law. The jurisdictional right in case of high
seas depends upon the nationality of the ship, and the consequent jurisdiction of the flag
state over the ship.
It is for the flag state to determine rules and regulations therefore a ship without a flag will
be excluded from the privilege under this zone. This was also highlighted by the Permanent
Court of International Justice in the Lotus case, where it was held that ‘vessels on the high
seas are subject to no authority except that of the state whose flag they fly.’
Conclusion
Law of the sea is concerned with public order at sea which has been codified in the form
of United Nations Convention on the Law of the Sea and signed on December 10, 1982. It
provides rules and regulations that helps to maintain peace and security over the usage of
the sea.
The code provides a set of comprehensive rules which divides the oceanic region into 5
maritime zones and it has set the limit to 12 nautical miles for the coastal states to exercise
their sovereignty without any conflict. It aims to resolve the dispute amicably with the help
of international tribunal for the law of the sea.
 3. Define treaties and Explain kinds of treaties with validity and enforcement of

Treaties?

Concept of Treaties in International Law - iPleaders

Article 38(1) of the International Court of Justice’s statute identifies treaties as a source of
law, along with general principles and customs. Treaties occupy a very eminent position in
international law. They ensure friendly and peaceful relations of states with one another and are a
means by which international organizations take form, regulate and monitor their affairs. The
concept of the treaty has undergone significant changes over time. In earlier periods, treaties used to
be oral and a ceremony would be held where the parties would conclude it and swear an oath to
God, which used to act as the binding force of the treaty. Now, treaties must be written and are
legally binding between its parties.

Drafted by the International Law Commission of the UN and taking force on 27 January 1980,
the Vienna Convention on the Law of Treaties set out some fundamental rules as to how treaties are
to operate and take form. More than half of the member states of the UN are a party to the
Convention.

Concept of treaty

Treaty in common parlance may be defined as written agreements between parties, which
may or may not be stated, to identify and follow a set of rules. They may also be referred to as pacts,
agreements, charters, etc. Declarations and political statements are excluded from the scope of the
definition of a treaty.

Treaties have been classified on the basis of many principles. On the basis of the object, they
have been classified as political treaties (including alliances and disarmament treaties), constitutional
and administrative treaties (e.g. WHO’s constitution, which is responsible for setting up the
international body and to regulate it affairs), commercial treaties (trade and fishery agreements),
criminal treaties (which define certain international crimes and may require the offender to be
extradited), treaties codifying international law, and treaties for ensuring civil justice.

A country that hasn’t signed the treaty has no obligation to follow its norms. However, like
the ICJ had stated in the North Continental Shelf Cases, that some treaties may give rise to
international conduct, customs and be of a “fundamentally norm-creating character.” Article 26 of
the Vienna Convention on the Law of Treaties deals with the Latin maxim “pacta sunt servanda”, i.e.
every signatory is to follow the treaty in good faith and is binding upon them. This forms the basis of
every international agreement.

“Reservations” are the way in which a signatory may escape having to follow all the
provisions of the treaty and is a tactic used to become a party by agreeing to the basic principles of a
treaty. However, reservations can only be made in cases where such reservation is not contrary to
the object of the treaty.

Interpretation of a treaty should be bona fide and the object and purpose of the treaty
needs to be kept in mind while doing so. In case the text is vague, “travaux preparatories” and other
supplementary means of interpretation might be used. One such method of interpretation of a
treaty is adopting a broader-purpose approach. Contrastingly, a purpose-oriented approach is
adopted in cases where the treaty in question to be interpreted is the constitutional document of an
international organization.

Kinds of treaty

Law Making treaties

The term “law-making” treaty seems to be confusing, as it raises the question- Can treaties
create law? This term actually refers to the content and the subject matter of a treaty, which instead
of being contractual shall be statutory. The emergence of a subsisting need of international legal
order sparked a newfound interest in this type of treaty. The need of bringing rules which had
statutory force was felt rather than the existing rules which governed voluntary legal relations
between states. In cases of law-making treaties, the obligations are independent; they don’t require
a subsequent fulfilment of rules by other parties to it. These obligations have binding force and the
parties to these treaties must follow it. Unlike contracts, treaties have the power to make new
international tribunals, international waterways, mandates, etc.

These are multilateral treaties which stand for a common cause. A commentary by
Fitzmaurice takes human rights treaties and maritime regimes as law-making treaties. In the case of a
multilateral treaty, this type of treaty can be broken down and thought of as a number of bilateral
treaties, each of which are independent of one another and have to follow the obligations inherently.
As for bilateral treaties, they can simply be viewed as dependent on each other as existence. Here,
each party does not join to provide another party something it might require, but rather to stand for
a mutual cause or support a rule binding on all.

Contractual treaties

They are usually applicable to treaties having a small number of parties and are most
commonly seen in bilateral treaties. These are treaties where parties are mutually dependent on
each other for specific treatment to gain benefits, and have rights and obligations towards each
other. In reality, treaties need to take care of both the statutory as well as the contractual function.
The scope of treaties is mostly perceived in a contractual framework. Unlike law-making treaties,
which sets out rules for conduct, rights, and duties between parties which have to take effect on the
conclusion of the treaty, contractual treaties are usually limited to, say, exchange of goods which one
state might not possess and require, or conveyances. Here, one party agrees to provide the other
party something it needs for something else in return, thereby forming a system like barter.

Types of treaty

Bilateral treaties

Treaties involving two entities are bilateral treaties. It is not necessary that the treaty can
only have 2 parties; there may be more than two parties, however, there should be only two states
involved. For example, the bilateral treaties between Switzerland and the European Union(EU) have
17 parties, which are divided into two parts, the Swiss and the EU and its member states. It is
important to note that by virtue of this treaty, obligations, and rights arise between the two entities
to it, i.e. the EU and the Swiss. This treaty does not give rise to obligations between the EU and its
member states.

Multilateral treaties
 Treaties between three countries or more are multilateral treaties. They might be
international or domestic. They give rise to rights and obligations among all the parties, i.e. each
signatory has obligations towards all the other signatories.

Treaties with a higher number of participating states gain more international significance
since it reflects the importance of the treaty. However, there have been many crucial bilateral
treaties too, such as those emerging from Strategic Arms Limitation Talks. All treaties have different
purposes. Some set up international organizations through the UN Charter of 1945, whereas others
deal with issues such as visa regulations.

The binding force of Treaties

Vienna Convention on the Law of Treaties,1969

The International Law Commission of the United Nations drafted the Vienna Convention on
the Law of Treaties, which was adopted on May 23, 1969. Entering into force on January 27, 1980, it
is an international agreement between the states to govern and regulate treaties.

The treaty is limited to and encompasses written treaties only. Divided into many parts, the
first part sets out the object, terms, and scope of the agreement, and the second part lays down
rules for adoption, ratification, the conclusion of the treaties. The third part deals with the
interpretation of treaties. The fourth part talks about the modification of treaties, and lastly, the fifth
part delves into withdrawal, suspension, termination, and invalidation of a treaty. It also includes a
necessary clause which gives the International Court of Justice jurisdiction over any possible
disputes. The final parts discuss rules for ratification and effects on treaties due to change in
government.

The document has not been ratified by the US, however, it follows its provisions usually. Till
1979, all the 35 member states of the UN had ratified the treaty.

As per the Latin maxim “pacta sunt servanda”, or as mentioned under Article 26 of the
Convention, all treaties are binding on its signatories and shall be followed bona fide. The binding
nature which this treaty serves to all other treaties is a reason why the US isn’t a part of it. There
exists a tussle between Congress and the Executive branch, over who has the authority to validate a
withdrawal from treaties on behalf of the country. Since treaties are binding, there is too much at
stake between the two organs of the US government.

GENERAL PRINCIPLES

Article 1 of the said Convention says that it is applicable to treaties between the states. It is
also applicable to treaties entered into by international organizations. The Convention defines
“treaty” as a written agreement between states which may be embodied in one or more than one
instrument and is governed by International law. Article 2 further defines “ratification”, “approval”,
“reservation”, etc. in the context of the treaty. It is important to note that none of the provisions of
the said Convention are applicable to written agreements between an international body and a state,
or between 2 subjects of international law. Article 3 thereby reiterates the scope of the Convention
and states that if such an agreement has been entered, its legality would not be affected. The parties
to such agreements do not have to follow the rules of the Convention either, however, they should
ensure that the rules they follow to govern the treaty are acceptable in the eyes of international law.
Such agreements shall also not have any effect on the relations between the States.
 Role of treaties in International Law

Treaties form the basis of international law. They maintain stability and diplomatic relations
between the States. They are thus the most important elements to guarantee international
cooperation, peace, and security. This is one of the reasons why treaties are regarded as the
fundamental source of international law. The preamble of the Vienna Convention on the Law of
Treaties accords to treaties with the eminent position they hold in ensuring international order and
emphasizes their existence as a continuum.

Treaties go as back into the past as one can remember. Perhaps, one of the first treaties ever
known was the one created by rulers of Hittite with Ramesses II, who was the King of Egypt. The
treaty between Kings of Elba and Ashur is the oldest treaty preserved in full text. It is said to be
concluded in the third century BC. In earlier times, there was no concept of State and there was the
existence of many sovereigns. At that time, treaties weren’t only between different states but also
between officials of different ranks, or between other authorities. Swearing to God was what acted
as the binding force at that time. As time passed by, the way in which treaties were concluded
gradually became more streamlined and sophisticated. Treaties started taking the written form
rather than being oral as in the earlier times. Treaties that dealt with subjects of peace and alliance
began dominating and could now be given the force of a statute, for example, the Statum in favorum
principum. As the world started settling as states, treaties began gaining prominence. The creation of
the international organizations gave treaties new-found importance. Then came the Law of Treaties
which set into permanence and recorded treaties as being a source of international law.

Parties to a treaty

There are two types of parties to a treaty- state parties and third States. A state party has
ratified and signed the treaty and is legally bound to follow it. “Third state” has been defined as a
state which is not a party to the treaty.

Third States

Article 34 of the Convention says that a third State shall be free from any rights or obligations
to a treaty. In case of treaties having a provision to extend obligations to a third State, such provision
must have obtained the express consent of that third State for it to apply to them. Provided that the
third state gives its consent, if the parties to a treaty wish to confer rights upon a third state/ group
of states to which it belongs/all states, a right shall arise for the third state. This is mentioned
in Article 36 of the Convention. A state which shall exercise this right conferred on it by the treaty
must follow the directions and conditions as mentioned in it too. Article 37 deals with
revocation/alteration of rights and obligations of third states and says that unless otherwise agreed,
the obligation on the third State by virtue of Article 35 may be revoked/altered if express consent of
parties to the treaty and the third state has been obtained. However, in case of a right conferred by
Article 36, the same may not be revoked/altered by the parties if it was pre-decided that such right
shall not be revocable/open to alteration without the consent of the third State. Lastly, by virtue of
the customary rule of international law, rules of a treaty become binding even on third States.

Formation of a treaty

There is no concrete way of creating a treaty. It may be presented in different forms such as a
contract or an exchange of notes, as seen in the Rush-Bagot Agreement between Great Britain and
the U.S. for mutual disarmament on the Great Lakes. Most treaties, however, follow a similar
structure. Every treaty begins by introducing its preamble, which states the object of the treaties and
the parties to it. It is then followed by what the parties agreed upon. A statement of the period may
or may not follow; it depends on the time period for which the treaty shall exist. Next up,
reservations and then ratification clauses follow. Then, it ends with the signatures of the parties
involved along with the date and venue of ratification.

Additional articles may be further attached along with the declaration that they are equal in
value as to other clauses. Going by the Law of Treaty, the following steps form the essentials of
formation of a treaty-

 Adoption of the text

Consent of all parties to a treaty is essential for adopting a text. If the treaty is being adopted
at an international conference, a two-thirds majority shall be required for the adoption of text unless
agreed upon otherwise.

 Authentication of the text

As per the procedure mentioned in the text, a treaty shall be established to be authentic. On
the failure of such procedure, signatures or initials of representatives of the participating states may
be sufficient to deem the text to be definitive.

 Expression of consent

This may be by way of signatures, ratification, acceptance, approval or accession or by

exchanging instruments required for the treaty.

 Consent by signature

Provided that the treaty explicitly states that signature by the representative of a state shall
be sufficient to be declared as a party, or the negotiating states have mutually consented to signature
be sufficient, the representative’s signature expresses a state’s full intention to enter into a treaty.

 Consent by exchange of instruments required by the treaty

If the states agree that exchange shall be equivalent to the expression of the consent to
enter into the treaty, then so shall be the case.

 Consent by ratification, acceptance or approval

If the negotiating states are of the opinion that ratification shall be equivalent to expressing
consent, or the treaty provides for ratification, then it shall be an acceptable way of obtaining
consent to the treaty. Similarly, the same condition applies to consent expressed by approval or
acceptance.

 Consent expressed by accession

Consent to the treaty shall be obtained If the treaty provides for it or the negotiating states
agree upon accession.

 Formulation of reservations

A state may while concluding the treaty expresses its reservations unless it’s prohibited by
the treaty, or if permitted shall violate with the object and intent of the treaty.
 Invalidity of treaty

Part V of the Vienna Convention on The Law of Treaties, 1969, particularly Section 2 deals
with the invalidity of treaties. Articles 46-53 set out the ways to invalidate a treaty, i.e. make them
void and unenforceable under international law. There are several reasons as to why an
internationally binding treaty may be declared as invalid. One of the reasons for invalidity is that they
might be riddled with problems ever since the time of formation. Content of the treaties and the
mode by which consent is obtained are the two grounds on which treaties may be invalidated.

It is important to note that invalidation is different from withdrawal and termination; the
former involves invalidation of consent right from the start, while the latter involves future alteration
in consent to be a signatory.

1. Ultra Vires treaties

Article 46 of The Law of Treaties talks about the willingness of a state to invalidate and
conclude the treaty on the ground that it goes against its internal law. No State shall invoke such a
fact. However, exceptionally, such fact may be invoked if the violation was manifest and of
fundamental importance to the State’s internal law.

The Law of Treaties in its preamble clearly regards treaties as a source of international law.
This has two meanings- one, no matter if an act is approved by the internal law, it will not assume
legality if it is condemned under international law, and two, in case of conflict between internal and
international law, international law shall prevail.

2. Error

Article 48 talks about invalidation on grounds of the presence of errors in a treaty. It is

important to note that errors with respect to the wording of the text do not invalidate the treaty. If
the error is to a substantial fact, i.e. one that was believed to be in existence at the time of signing
the treaty and formed the basis for which the treaty was signed, such an error may be provoked by
the state, provided that such state has not, by its own conduct, contributed towards the error.

3. Fraud and Corruption

If a state has become a signatory to a treaty due to fraudulent act or conduct of another
state who is also a signatory to the treaty, such a state may invoke invalidating the treaty on grounds
of consent being obtained by fraud.

If a negotiating state, by corrupting the representatives of another state directly or indirectly,

has induced such a state’s consent into entering a treaty, the state may invoke invalidating its consent
to be bound by the treaty.

4. Coercion

Consent shall also be invalidated if it is obtained by coercing the representative of a state, or

by threatening the use of force against a state.

5. Conflict with Jus cogens

Treaties that are in conflict with jus cogens, or “peremptory norm of general international
law” such as piracy, genocide, apartheid, torture, etc are void.

Termination of treaty
 Withdrawal

Obligations in international law arise from the consent of the state. This is why treaties are
mostly non-binding in nature, and they expressly allow a party to withdraw. For example, the Single
Convention on Narcotic Drugs says that the treaty shall be terminated if the total number of
signatories falls below 40.

Article 56 deals with withdrawal from treaties without a

termination/denunciation/withdrawal clause. According to this article, such a treaty shall not be
denounced unless:

–The intention of the parties as to the possibility of withdrawal was established.

–A right of denunciation was implied in the treaty.

It must be brought to notice that not all treaties can be withdrawn from; it depends on the
terms of the treaty. For example, when North Korea declared its intention to withdraw itself from
the International Covenant on Civil and Political Rights, the United Nations Secretary-General held
that the parties there was a reason why the treaty did not provide for a withdrawal cause and it
wasn’t put in the treaty on purpose. North Korea wasn’t allowed to withdraw.

If one party withdraws from a bilateral treaty, the treaty ceases to exist. When one party
withdraws from a multilateral treaty, there is no effect on the treaty, only such a state’s obligations as
per the treaty end.

One instance where Article 46 of the Law of Treaties was invoked was the treaty between
Israel and the United States for the withdrawal of Israel from the Sinai peninsula. The US promised to
provide supply as well as defense equipment in return. However, the treaty was signed without
taking the consent of the US Senate, and it was contested that the treaty was thus void as per
domestic law. Moreover, since this violated the U.S. Constitution, the treaty was invalid on
international grounds too.

Suspension and Termination

1. Implied by the conclusion of a later treaty-

On account of drafting a later treaty dealing with the same subject matter as its previous
version, the previous counterpart shall be deemed to be terminated, provided that the parties intend
to be governed by the new treaty or the provisions of both the treaties are so incompatible with
each other that both the treaties cannot be applicable at the same time. The previous treaty will be
terminated if it’s the implied or established intention of the signatories.

2. As a consequence of its breach-

There are different consequences for different kinds of treaties. If the treaty is bilateral and
one of the parties has caused a material breach of the treaty, then the other may use it to bring the
treaty to an end. If the treaty is multilateral, then default by one of the parties entitles the other
parties to terminate/suspend such treaty, wholly or partly by unanimous consent. Material breach,
as explicitly mentioned in Section 61 consists in the violation of a provision of the treaty which is of
the essence to it and forsaking the treaty.

3. Impossibility of performance-
 The impossibility of fulfilling conditions as per the treaty is considered sufficient ground for
the suspension/ termination of a treaty. If the impossibility is permanent, i.e. the devastation makes
execution of the treaty impossible, the treaty may be terminated. However, if the impossibility is
temporary, the treaty may be suspended for the required duration.

However, if the impossibility of performance is due to the conduct and action of one the
parties, i.e. due to violation of a provision of the treaty or violation of any international obligations,
the treaty may not be terminated/ suspended.

4. Fundamental change of circumstances-

Unforeseen changes which fundamentally affect the treaty may be sufficient to invoke
termination/ revocation of the treaty, provided that the changes are “fundamental” i.e. initial
existence of the circumstances may affect the consent of parties to the treaty and that as a result,
the obligations to be performed under the treaty have been changed and transformed radically.

If the change is due to breach of treaty or any international obligations by one of the parties
to the treaty, then this article would not be invokable.

5. Rift of diplomatic or consular relations

Provided that the treaty demands the existence of hostile and diplomatic relations between
its parties, disturbance or severance of such relations shall have no effect on the treaty since it
doesn’t really affect the legal relationship among the parties.

6. Emergence of new jus cogens

If a new jus cogens or peremptory norm of general international law emerges after
worldwide assent to it, any treaty in violation of it shall be deemed to be terminated.

Conclusion

The Vienna Convention on the Law of Treaties lays down basic and fundamental principles to
govern treaties. The main principle on which the Convention operates is “pacta sunt servanda”, i.e.
all treaties must be followed in good force. It provides for various provisions such as ratification,
reservation, approval, conclusion, withdrawal, invalidation, termination of a treaty, etc. The
Convention is legally binding on its parties.

Treaties play an important role as the source of international law and occupy a colossal
pedestal in this field.
 In public international law, treaties are formal agreements between sovereign states or
international organizations that are governed by international law. They can address a wide range of
subjects, such as trade, peace, security, environmental protection, and human rights. The Vienna
Convention on the Law of Treaties (1969) provides the primary framework for the creation,
interpretation, and enforcement of treaties in public international law.

Here’s a breakdown of the types of treaties, along with their validity and enforcement
mechanisms in the context of public international law:

Kinds of Treaties in Public International Law:

1. Bilateral Treaties:

o Treaties between two states or parties that regulate specific issues like trade,
defense, or territorial boundaries.

o Example: Extradition treaties, bilateral investment treaties.

2. Multilateral Treaties:

o Treaties between three or more states or parties, often addressing issues of global or
regional importance such as climate change, human rights, or trade.

o Example: United Nations Charter (1945), Paris Agreement on climate change (2015).

3. Constituent Treaties:

o These treaties establish international organizations or institutions and define their

powers and functions.

o Example: The Treaty of Rome (1957), which established the European Economic
Community, or the Charter of the United Nations (1945).

4. Peace Treaties:

o Agreements between states to end conflict or hostilities, and set terms for peace,
reconstruction, and often territorial adjustments.

o Example: Treaty of Versailles (1919), which formally ended World War I.

5. Boundary Treaties:

o Treaties that define or clarify the borders between states. These treaties help
prevent border disputes.

o Example: Treaty of Tordesillas (1494), which divided territories between Spain and
Portugal.

6. Human Rights Treaties:

o Treaties that set standards for the protection and promotion of human rights and
freedoms.

o Example: International Covenant on Civil and Political Rights (ICCPR), European

Convention on Human Rights (ECHR).

7. Trade Treaties:
 o Agreements that regulate trade between states by reducing tariffs, setting trade
terms, and establishing trade partnerships.

o Example: General Agreement on Tariffs and Trade (GATT), now succeeded by the
World Trade Organization (WTO).

8. Environmental Treaties:

o These treaties address global environmental issues, such as climate change,

biodiversity, and pollution.

o Example: The Kyoto Protocol (1997), Convention on Biological Diversity (1992).

9. Treaties of Alliance or Defense:

o Agreements between states for mutual defense or cooperation in times of conflict or

threats.

o Example: North Atlantic Treaty Organization (NATO) Treaty (1949).

10. Extradition Treaties:

o These treaties govern the surrender of individuals who are accused or convicted of
crimes, from one state to another.

o Example: The U.S.-UK Extradition Treaty (2003).

Validity of Treaties in Public International Law:

The Vienna Convention on the Law of Treaties (1969) outlines the essential conditions for a
treaty’s validity in public international law:

1. Competent Parties:

o The parties to a treaty must have the legal capacity (sovereign states or international
organizations) to enter into agreements under international law.

2. Consent of the Parties:

o The parties must voluntarily consent to the treaty. This is typically achieved through
signing and ratification, and the treaty must reflect the true intention of the parties.

3. Object and Purpose:

o A treaty must have a legitimate object and purpose that is consistent with
international law. A treaty that violates jus cogens norms (peremptory norms from
which no derogation is allowed, such as the prohibition of genocide or slavery) is
considered void.

4. Ratification:

o After signing, many treaties require ratification by the domestic legal processes of
the parties. Ratification is a formal expression of the state’s consent to be bound by
the treaty.

5. Registration with the United Nations:

 o Under Article 102 of the UN Charter, treaties must be registered with the UN to be
invoked before any UN organ, such as the International Court of Justice (ICJ).

6. No Coercion:

o A treaty is invalid if consent was obtained through coercion or threat of force.

Treaties signed under duress are not valid.

7. Fraud, Corruption, or Misrepresentation:

o A treaty is invalid if the consent of a party was procured by fraud, corruption, or

misrepresentation.

8. Termination and Withdrawal:

o Treaties may include provisions for termination or withdrawal. In some cases, states
can unilaterally withdraw from a treaty in accordance with its terms or, in the
absence of such terms, based on principles of public international law.

Enforcement of Treaties in Public International Law:

1. Domestic Enforcement:

o In many states, international treaties are incorporated into national law either
automatically or through domestic legislation. The enforcement of treaties depends
on how the state integrates the treaty into its domestic legal system.

o Monist systems (e.g., France) allow treaties to have direct effect within the legal
system without further legislation.

o Dualist systems (e.g., the UK) require treaties to be incorporated through domestic
legislation before they can have legal effect.

2. International Enforcement:

o International organizations and courts play a crucial role in enforcing treaties.

However, the enforcement of international treaties largely depends on the consent
of the parties involved and their willingness to comply with international obligations.

o International Court of Justice (ICJ): The ICJ can adjudicate disputes over treaty
violations, provided the parties to the dispute accept its jurisdiction. However, its
rulings lack direct enforcement mechanisms and depend on states' compliance.

 Example: The ICJ ruling in the Nicaragua v. United States (1986) case, where
the U.S. was found to have violated international law but did not comply
with the ruling.

o Arbitration and Mediation: Many treaties include provisions for resolving disputes
through international arbitration or mediation.

 Example: Permanent Court of Arbitration handling international treaty

disputes.

3. International Organizations:
 o Some treaties, particularly multilateral ones, are enforced through specialized
international organizations. These bodies monitor compliance, offer dispute
resolution mechanisms, and impose sanctions or other penalties for non-
compliance.

 Example: The World Trade Organization (WTO) resolves trade disputes

arising from violations of international trade treaties.

4. Collective Enforcement:

o Certain treaties, particularly those related to collective security or international

peace, may provide mechanisms for collective enforcement, such as military action
or sanctions. These often involve organizations like the UN or regional alliances.

 Example: UN Security Council resolutions authorizing collective action under

Chapter VII of the UN Charter.

5. Diplomatic and Economic Sanctions:

o States or international organizations may impose diplomatic pressure or economic

sanctions on states that violate treaty obligations.

 Example: Sanctions imposed on countries that violate the Nuclear Non-

Proliferation Treaty (NPT).

6. Reciprocity and Retaliation:

o In some cases, states may rely on reciprocal measures to enforce treaties. If one
party breaches the treaty, the other party may respond by suspending its own
obligations or by retaliating in a manner permitted by international law.

Challenges in Enforcement of Treaties in Public International Law:

1. Sovereignty: States are sovereign entities, and there is no overarching authority in

international law with the power to compel states to comply with treaties.

2. Lack of Binding Authority: International courts and bodies, such as the ICJ, lack direct
enforcement mechanisms, and their rulings rely on voluntary compliance by states.

3. Withdrawal from Treaties: Some treaties allow states to withdraw under specific conditions,
limiting long-term enforceability. For example, the U.S. withdrew from the Paris Agreement
under the Trump administration (though it rejoined under the Biden administration).

4. Political Considerations: Enforcement may be influenced by the political will of states, as

well as diplomatic and economic pressures.

In summary, treaties in public international law play a crucial role in maintaining

international order, cooperation, and peace. Their validity is governed by strict legal norms under
international law, particularly the Vienna Convention on the Law of Treaties. However, enforcement
is often complicated by issues of state sovereignty and the voluntary nature of compliance, relying on
international courts, organizations, and political mechanisms.
 4. Explain International Laws on Air and Space rights?

Crossing borders in lieu of international air and space law - iPleaders

Introduction

The history of aviation and space activities is a long drawn one. Both of these activities started as a
competition. Around a century ago, the pioneers of aviation were challenged to fly an aeroplane. In
July of 1909, Monsieur Bleriot crossed the English Channel and became the first man to do so
covering a distance of 21 miles from Calais in France to Dover, England. In 2004, the British
spaceflight company, Virgin Galactic won a competition to become the first space company to launch
space tourism that is spaceflights to space tourists and suborbital launches for space science
missions. As a consequence, it could be said that both aviation and space-related activities began
and perhaps can only begin by stimulating the human mind to move beyond the given boundaries,
both physical and intellectual.

The eminent Professor Daniel Goedhuis was appointed to teach air law at Leiden University in 1938.
It is from this time onwards that this subject matter gained intense academic attention. Furthermore,
a professional committee was also chaired in 1947 with an extension to space law in the year of
1961, something which wasn’t done before. The launching of first satellite Sputnik 1 into outer space
by the USSR added further momentum to this field of study.

Air law became the principal field of attention after Professor Wassenbergh gestured at the start of a
liberalisation process in air transport in the US in 1978. This was followed by a similar state of events
in Europe.

Principle aspects of international air and space law

The Chicago convention of 1944 is the basis of today’s system of civil aviation. The Convention
provided for the formation of the International Civil Aviation Organization (ICAO) and gave it a legal
form with detailed articles. The contracting states of the convention, which are 198 in number now
recognize that each and every state has total and exclusive sovereignty over the airspace of its
territory. Some of the principal aspects of International air and space laws are enshrined therein. It is
also discussed hereunder:

Nationality of an aircraft

 Article 17 of the Chicago Convention provides that, “Aircraft shall have the nationality of the
State in which they are registered”.”

 Article 18, on the other hand, says that aircraft may not be registered in more than one
State.

 Article 31 and 32 further require registering States to provide such aircraft with a certificate
of airworthiness and issue certificates of competency and licenses for pilots and flight crew.

The right to fly

The Chicago Conference of 1944 intended to provide rights for aircraft of the contracting states of
Chicago Convention, whether engaged in scheduled air services or in non-scheduled flights, to fly
into one another‘s territories. Some compromise was also reached for non-scheduled flights, which
in practice, however, has been honoured more in its breach than its observance. This fact has been
manifested in the failure to reach agreement on a multilateral exchange of rights for scheduled
international air services by providing that they can be operated into a contracting State‘s territory
only with the latter‘s authorization. The privilege covered by such authorization is often divided, in
the jargon of the industry, into a number of so-called- freedoms of the air. The first two such
freedoms consist of “transit right”, namely the right of transit without landing, and that of “transit
with stops” only for technical purposes.

Role of the Council

The Council is a legislative body that consists of 36 elected countries. It makes international air law
after due diligence and a process based on consensus. Over the years, the numerical strength of the
council has increased from 21 to 36. The key function of the Council is making of Standards and
Recommended Practices (SARPs) which form as Annexures to the Chicago Convention. It is made
from very technical issues of navigation to security and facilitation issues including passport types.
The council is also assisted by an elected Air Navigation Commission in its decision-making process.

Airspace sovereignty

The airspace sovereignty basically reaffirms the principle of international law that every State has
complete and exclusive sovereignty over the airspace above its territory. This general rule is used in
regulating almost all of the problems concerned with international law, such as entry of an aircraft,
passengers and cargo, departure of an aircraft, crew and jurisdiction over them for any regulatory
purpose for the application and enforcement of civil, criminal or international civil aviation rules and
regulations.

Hijack policy

The government of India, after the approval of its Cabinet Committee on Security (CCS), adopted the
Anti-Hijack Policy in 2005 to deal with the serious problem of hijack of Indian and foreign aircrafts.
The policy, inter alia, signifies that no foreign aircraft which has been hijacked is to be allowed to
land in India. Further, if an Indian aircraft has been hijacked, it will be forced to land in India and after
the landing, every effort will be made to prevent it from taking off again. If any suspicious activity is
felt to have been done by the aircraft, the ATS (Anti-terrorism squad) Watch Supervisory Officer is
required to bring it to the notice of the Joint Control and Analysis Centre (JCAC) of the country which
is manned by the officials of IAF.

Moreover, the aircraft will be branded as ‘rogue’ if it does not cooperate in the communication with
the ground controller and as ‘threat’ if it aligns itself to a deliberate target like the Parliament or the
Rashtrapati Bhavan. After an aircraft is declared as a ‘threat’, the CCS is allowed to shoot down the
aircraft. The CCS, in such cases, is considered to be the apex body of handling and taking decisions.
However, if there is a situation of emergency, the Prime Minister, Minister of Defence or even an IAF
official (above or of the rank of Assistant Chief of Air Staff) are empowered to take this decision.

The terrorist attack of 9-11 not only brought to light fundamental glitches in security systems and
procedures but also shed light on the new modus operandi of terrorist organisations of using
aircrafts as guided missiles. The policymakers all over the world were shaken at the apparent ease at
which terrorist aircrafts were brought down to the building of the World Trade Organisation
(WTO) and thereafter attacked. It also led them to abandon their popular belief that skies were a safe
place. The apprehension of states, including India led to the formation of such stringent policies in
every country to tackle future attacks. Although the Hijack policy, in its strict literal sense, is
dissonant with the Chicago Convention and the Indian Constitution, it cannot be denied that such
rules are also the need of the time.

The borders of air and space law

The convection, in addition also specifies the definition of “territory” as the land and adjacent
territorial waters of a country, covered by sovereignty, mandate or protection of the state. Each and
every aircraft operating in the international spaces are required to have the appropriate nationality
and registration marks. Accordingly, to cross the state border, it is necessary for one to obtain
permits issued by the competent state authorities. In the case of civil aircraft, it must be taken from
the President of the Civil Aviation Office, while in case of military aircraft, the Operational
Commander of the Armed Forces is to be consulted.

Each state, using its sovereignty, may introduce regulations for foreign state aircraft that carry out air
operations in their air spaces. Therefore, on the basis of aircraft performing aerial operations in
airspace of other countries, ammunition and war equipment cannot be transported without the
consent of the authorities of that state. Each country is obliged to establish regulations which govern
the transport of hazardous materials and ICAO regulations. In addition, all countries have the right to
introduce regulations and restrictions to ensure public order and transport safety over their territory.
However, it should be done in such a way as not to restrict air transport and equipment as well as
navigation systems on the aircraft necessary for the safety of air navigation.

According to the Multilateral and Bilateral Air Transport Agreements Section 5 of the Transit
agreement, and Section 6 of the Transport Agreement, provides that every contracting state has the
right to withhold or revoke a permit granted to an air transport enterprise of any other State if it is
not satisfied with the fact that substantial ownership and control is not endowed in nationals of a
contracting State.

This clause or statement is considered of utmost importance by countries when entering into
bilateral agreements. It has also become a major deterrent to ownership of cross border Airlines.
This trend has been in continuance in all the agreements including the modern “Open Skies”
agreements. Analogous to the earlier requirements, the modern “Open Skies” agreements also
require substantial ownership and effective control to be endowed in the State which is designation
the airline, and if there is a failure to meet this crucial requirement, it would entitle either of the
nations to revoke, suspend or limit the operations of the concerned airline.

Problems one faces while crossing borders

Every sovereign country holds the right to protect and regulate its air space under many international
laws related to air sovereignty. Just like the policies of “high seas” related to maritime law, the
horizontal boundaries of airspace are somewhat similar to it. A country can also take on the
responsibility of safeguarding and controlling International Airspaces such as the Pacific Ocean with
international approval or agreement.

The security of air law has been maintained by closing national airspace so that scheduled
international air services of foreign companies could be operated. Without the permission of a state,
a foreign operator is not allowed to enter its national airspace. Failure to adhere to the rules may
invite serious national and international consequences including escorting of the concerned foreign
aircraft to forcing the foreign aircraft to land at an airport. This unusual event is often witnessed two
to three times at Dutch airspace per year.

During the two major World Wars, non-scheduled aircrafts were seen hovering over many parts of
the world. Hence, the two significant aviation conventions, the Paris Convention and the Chicago
Convention were convened to meet out such challenges. These conventions may be regarded as the
constitution of international civil aviation, for the post World War II world. It contained basic
principles for all the international air services for respecting airspace boundaries of nations and
following methodologies of safe operation.

The Chicago Convention has created rules that close national airspace of countries by constructing
legal boundaries between nations in the absence of physical boundaries such as rivers, lakes, sea,
mountains, etc. These boundaries can only be opened upon an agreement between the concerned
states. This is one of the significant reasons for making air and space laws a principal branch of law as
nations around the world have a public interest with respect to their air transport system and space
system. It needs to be under their supervision and guidelines.

In the aftermath of the occurrence of 9/11 at the WTO in New York City, many states including the
United States demonstrated the methodology of how states react or should react when their crucial
security interests are hindered due to the vulnerability of airspace ( because of its transparency). The
US government closed its airspace for three days after 9/11 in the interest of security. It also became
signatory, along with several nations of many conventions and committee regulating airspace of
nations.

Jurisdiction of courts

Criminal jurisdiction

Some elements of the national law are still stuck to the view that ships and aircrafts are part of the
national territory, which is a mere delusion and raw metaphor. There are three types of state
jurisdiction:

1. Territorial jurisdiction: It covers the national territory including all persons living in the
territory and things inside the territory.

2. Quasi-Territorial jurisdiction: It covers all national ships and aircrafts including all persons
living in the territory and things inside the territory.

3. Personal jurisdiction: It covers all persons under State’s protection and their property. In case
of dispute among the above-mentioned jurisdictions, Territorial jurisdiction will overrule the
Quasi-Territorial jurisdiction and in the same manner, Quasi-Territorial jurisdiction will quash
the personal jurisdiction. As long as the aircraft flies over the airspace of some state, the law
of that particular state is applicable to it. But when the aircraft flies in the international
airspace, and some crime is committed, it creates a problem of jurisdiction. And it is always
difficult to pinpoint, when and where the crime was committed and accordingly which State’s
law would apply to it. But then in 1963, at Tokyo in “Convention on Offences and Certain
Other Acts Committed on Board Aircraft”, it was held that the contracting States should
extend their criminal jurisdiction of the aircraft when they’re outside the national territory.
This Convention also empowered the aircraft commander to ensure law and order in their
aircrafts and to disembark the violators respectively.

Civil jurisdiction
In most of the nations, the overall civil law applies, except as modified. In the interest of averting
statelessness, most states confer their nationality on those born on aircraft of their registry; but in air
law, there is no general principle of the law of the flag (i.e., the law of the state of registry) being
applicable to all the occurrences on board. There are, however, several international agreements and
conventions that have a good amount of affect in the administering of civil jurisdiction by states.
Some are mentioned here.

The most significant is Article 28 of the 1929 Warsaw Convention on International Carriage by Air, as
subsequently modified by Article 8 of the 1961 Guadalajara Convention and exaggerated by Article
12 of the 1971 Guatemala City Protocol.

Under Article 28, an action emerging from an “International” carriage by air is also brought only
before the courts of particular contracting states and no others. The 1933 Rome Convention on
Precautionary Arrest of Aircraft, which was not widely accepted and implemented, gives exemptions
to aircraft used on government services or in commercial transport from precautionary attachment.

Similarly among members of the ICAO ( International Civil Aviation Organization), the Article 27 of
Chicago Convention states that subject to particular conditions, aircrafts of the contracting states in
the international airspace are exempted from seizure or arrest on patent claims in the airspace or
territory of other contracting states, without having to deposit the security amount. In the Rome
Convention, on Surface Damage, in 1952, it was held that the actions may only be brought to the
Courts of the contracting states where the damage has occurred.

The impacts of security on the development of air and space law

Ideally, Air Laws and Space Laws are poles apart on the ground of the principles of Sovereignty, as in
case of Airspace, the principle of Sovereignty of the State applies. Whereas in the case of Space Laws,
the principle of Sovereignty of the State doesn’t apply to it. Because the Outer Space is considered as
“ the province of all mankind”.

Generally, Security is the matter for which a State is responsible – so, the State plays a vital role in Air
Laws and Space Laws. Also, the channel in which Air and Space activities are performed is a
vulnerable one, as both of them are transparent and diaphanous. And also in absence of physical and
natural barriers such as Mountains, Seas, Oceans, etc., in airspace, the aircrafts glides over different
airspaces.

As an analogy of the transparency of both Airspace and Outer Space, there is no physical barrier
between National Airspace and Outer Space. Air and Space lawyers believe that the Airspace ends at
100 Kilometers from the Earth and from which the Outer Space starts. However, there is no
boundary line between these two mediums. In the wake of development of commercial space
activities, it is necessary to decide and regulate the distinction between the two for better
development and smooth administration.

In the outer space, the Satellites, telescopes and other spacecraft are used for various purposes like
for Military Service, Meteorological Services and for various scientific purposes. This facet of the
Airspace and Outer Space elucidates the relevance of security and of national policy.

Key differences between air and space law

Air law and space law are two different and separate branches of law but occasionally treated as one
(Aerospace Laws). Out of which, air law is the body of public law and private law both, that manages
aeronautical ventures and other utilization of airspace. While space laws synchronize activities of
government and private organizations in outer space.

The origin of space law can be detected by the launching of Sputnik I by the Soviet Union. This was
the first earth artificial satellite to go in space. Since that era, the space activities have largely been
regulated by the UN Committee on Peaceful Uses of Outer Space. There are many space laws
incorporated in five main treaties. Out of which, the most important is the Outer Space Treaty of
1967 which laid down many principles:

 Freedom of access to and use of outer space.

 Prohibition against claims of national territory by any nation in outer space.

 And prohibition on placing Weapons of Mass Destruction (WMD) in outer space.

The vital difference between the air law and space law originates from the legal status of the
international airspace and outer space. While the airspace, (except over the high seas and Antarctica)
remains under the sovereignty and control of subjacent States, the outer space is controlled by the
regime of freedom. There’s no boundary allocation between airspace and outer space. It is expected
to be allocated soon. It is expected that the boundary will be placed below the 100km parameters of
sea level.

The impact of liberalisation on the development of aviation law

From its start (between 1910 and 1920), the law of aviation was neatly put in along the lines of two
significant air transport agreements that was open to all the nations of the world. These agreements
were the Paris Convention of 1919 and the Chicago Convention of 1944. These bilateral agreements
provided access to foreign airspace of another nation for the purpose of operating international air
services. In this respect, it is not wrong to say that air law is a part of public international law as
crucial economic interests of the nations are/ were safeguarded by this system.

In the contemporary world, the borderline of safeguarding crucial national security and national
economic interest is fading every day with the advent of the concepts of liberalisation, privatisation
and globalisation. However, the operation of air services (which is the major part of the aviation
sector) is probably the only sector which has not been brought under the umbrella of the World
Trade Organisation and the General Agreement on Trade in Services (GATS). This will probably remain
the same for the years to come.

From 1978 onwards, the US introduced the deregulation process. The US started its own cross-
border liberalisation process in phases. This movement forced many nations to open their air
transport markets forgetting about any national or vital economic interests. This was considered a
unique venture which was completed in 1997, the moment on which all intra-community services
were made available to community air carriers. Perhaps unsurprisingly, international air law and
European community law did not form a natural bond.

Some efforts towards liberalisation

 The stepping stone by EU to unified airspace was laid in the decision of the European Court
of Justice in 1985 which rendered approval of airfares by a member state as unlawful.
Further, the Schengen Agreement implemented in 1995 enabled free crossing of the border
across the EU member states.
  The APEC Agreement Kona Accord (2001) included optional provisions removing any
ownership requirements, and substituted effective control and principal place of business
requirements.

 The OECD (2002) model all cargo template: Irrespective of the nationality of the airline’s
majority owner, the carrier would incorporate itself in a certain country, and operate under
its regulatory control. EU is an emerging institution which is snatching away the sovereignty
of its member states in a lot of respects. The main trend in the aviation sector of the EU is a
common sky policy and the right to participate by the EU in all bilateral negotiations of its
member states.

 The 2002 EU Court of Justice decision was that under the right of establishment provisions of
community law, no member state may conclude a bilateral air transport agreement that
excludes any community carrier from operating on the traffic rights provided under the
bilateral.

 The 2003 ICAO Fifth Worldwide Air Transport Conference drafted a model clause for
insertion into bilaterals that focused on an airlines principal place of business and effective
regulatory control. Permanent residence was an optional requirement. Australia and New
Zealand have created a common aviation area.

Future of air and space law

We stand at the threshold of a new area of aviation and space law. There is an amazing future for
space and air laws given the technological advancements that are occurring with every passing day.
With every successful and progressive scientific discovery, there is triggering of new concepts and
ideas on the interpretation and application of the already existing traditional knowledge and legal
concepts.

The Chicago Convention has governed the rules of air and space laws for years. However, with the
coming of WTO, the Chicago Convention requires a fresh look. The reason behind this is that while
WTO covers trade in services and aviation as a service falls within that domain, on the other hand,
the Chicago Convention lays emphasis on the concepts of sovereignty and bilateralism. WTO
emphatically points out its beliefs in carrying out trade and services between states without any
discrimination.

WTO and Chicago Convention

There is an immense theoretical difference between the Chicago Convention and WTO. With the
advancement of the world, nations have realised that a restricted and protected regime of air
services causes more harm than good to one’s economy. Overprotection of national airlines against
foreign airlines can be proved detrimental to one’s own economy. In the practical world, liberal
bilateralism between nations leading to open sky or regional open sky agreements is gaining
recognition with each passing day. Nations can be seen shifting from restricted bilateral agreements
to open sky agreements. Therefore, the theoretical difference between the Chicago Convention and
the WTO are narrowing down automatically.

The distinction drawn between the nationality of an aircraft and of the company of an airline drawn
in 1944 is becoming blurred. There has been increasing cross and joint ownership which is making
the concept of ‘substantial ownership and effective control’ difficult to implement. With time new
definitions are being propounded. The concept of flag carriers is being replaced by the concept of
airline as any other industry. The need of the hour is to recognize the fact that the airline industry is a
very capital intensive and competitive industry.

Aviation security

It is the duty upon each and every sovereign nation to provide security to its people but within its
boundaries. However, with the changing nature of security, like civil aviation security which is not
limited to one’s own country but spreads across countries, security cannot be regarded as a
sovereign function alone.

Post 9/11 ICAO had managed an Audit of National Aviation Security on a voluntary basis of all
members, but it is inadequate and insufficient. A global approach to security is the need of the day
and there is a need for interoperability of security personnel. The Universal Security Audit
Programme (USAP) was launched by ICAO in 2002 in a six-year cycle to provide high standards of
security, quality control, training and certification of auditors.

Suggestions and conclusion

The air and outer space is an opportunity as well as a challenge to the global world, particularly for
the major developing countries. There are still many discrepancies and changes that need to be
addressed. Some of the suggestions are mentioned below:

1. To tackle the problem of air hijacking in a lawful way, development and study of air and
space law is also highly significant. Air crimes can only be reduced and security therein be
increased by using clauses and rights mentioned in conventions and agreements.

2. Outer space including celestial bodies are the common heritage of mankind and therefore
they must be treated so and should be used for peaceful purposes.

3. States should claim their exclusive sovereignty over their personal air space but not on
other’s airspace or claim any sovereignty over outer space.

4. The airlines operating under the umbrella of conventions or agreements should benefit
enormously from more liberal and favorable access to international routes and should be
given ample competitive advantage over other airlines that continue to operate in the
traditional restrictive regimes. This is a major cause why many countries have been pulled
into the game and multiple liberalization endeavours have emerged around the world. This
also becomes a contributing factor of ensuing globalization and liberalization of the modern
world economies.

5. Modern aerospace technology allows aircraft to operate efficiently and safely under a very
wide range of conditions, to areas and climates throughout the world. The developed
countries use air and outer space more than developing countries because technologically
developing countries are less advanced. Therefore, for equitable and appropriate use of air
and outer space an even air and outer space law and its study is required.

6. With a massive increase in international air travel which could not have been thought of in
1944 along with seamless integration of domestic and international travel the issues of
aviation security become a global concern. As a consequence, no state can now claim that
domestic aviation can remain a domestic concern. Therefore, a greater degree of integration
of the two securities is needed to make international travel safe. The answer to this lies in
amendment of the Chicago Convention to allow ICAO to inspect domestic security too.
International Laws on Air and Space Rights: An Overview

The legal framework governing airspace and outer space is a complex interplay between national
sovereignty, international treaties, customary law, and emerging challenges posed by technological
advancements. As air travel and space exploration have grown exponentially since the 20th century,
so has the need to regulate these domains. Air law focuses on national sovereignty over airspace and
the rights and responsibilities of states, aircraft operators, and passengers, while space law primarily
addresses issues related to exploration, resource use, and non-militarization.

This essay will explore the core principles governing air and space law, highlighting the key
international treaties, jurisdictional challenges, the distinction between airspace and outer space,
and the evolving legal landscape.

Air Law: National Sovereignty and Regulation

1. Chicago Convention and National Sovereignty

The foundation of international air law is the Convention on International Civil Aviation (1944),
commonly known as the Chicago Convention. This treaty established the International Civil Aviation
Organization (ICAO) and laid down the principles for airspace use. One of its central tenets is that
every state has complete and exclusive sovereignty over the airspace above its territory (Article 1).

This concept means that nations have the right to regulate the use of their airspace, including who
may fly within it and under what conditions. Aircraft wishing to transit or operate in foreign airspace
must obtain prior permission from the host state unless specific bilateral or multilateral agreements
allow otherwise.

2. Freedoms of the Air

The Chicago Convention also introduced the concept of the "freedoms of the air," which outline the
rights of civil aircraft in international operations. These freedoms include the right to fly over a
foreign country without landing, the right to land for technical reasons (without commercial activity),
and various other commercial rights. However, these freedoms are not automatically granted to all
states but are subject to bilateral agreements between nations.

3. Air Safety and Security

Safety and security are critical elements of air law. The Annexes to the Chicago Convention contain
detailed regulations on airworthiness, crew qualifications, communications, and accident
investigations. Furthermore, terrorism, hijacking, and other unlawful acts led to the development of
additional treaties, such as the Tokyo Convention (1963), the Hague Convention (1970), and the
Montreal Convention (1971), which address offenses committed on board aircraft and the
suppression of unlawful acts.

4. Liability in Air Law

Liability in international air travel is governed by the Montreal Convention (1999), which sets out
rules on compensation for death, injury, and delay involving passengers, baggage, and cargo. The
convention modernized and replaced earlier agreements, such as the Warsaw Convention (1929),
making it more responsive to contemporary needs. Under the Montreal regime, carriers are
generally liable for damages unless they can prove due diligence or contributory negligence by the
passenger.
5. Environmental Concerns and Air Law

Environmental regulations have also become a crucial aspect of air law. With the increasing concern
over climate change, the ICAO has taken steps to reduce the environmental impact of aviation,
including setting emissions standards and implementing CORSIA (Carbon Offsetting and Reduction
Scheme for International Aviation) to address carbon emissions.

Space Law: Common Heritage and Non-Appropriation

1. Outer Space Treaty

The foundation of space law lies in the Outer Space Treaty (1967), officially known as the Treaty on
Principles Governing the Activities of States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies. This treaty, often regarded as the "constitution" of space law,
establishes several key principles:

 Non-sovereignty over outer space: Outer space is not subject to national appropriation by
any means (e.g., claims of sovereignty or use).

 Peaceful use: Space must be used for peaceful purposes, and the deployment of weapons of
mass destruction in space is prohibited.

 Freedom of exploration: All states have the right to explore and use outer space without
discrimination.

 International responsibility: States are responsible for their activities in space, whether
conducted by governmental or non-governmental entities, and they must avoid harmful
contamination of space and celestial bodies.

2. Moon Agreement

The Moon Agreement (1984), a lesser-known and less widely ratified treaty, seeks to expand upon
the principles of the Outer Space Treaty by declaring the Moon and its resources the common
heritage of mankind. The agreement calls for an international regime to oversee the exploitation of
lunar resources. However, the lack of ratification by major space-faring nations like the United States,
Russia, and China has limited its influence.

3. Liability and Registration

The Liability Convention (1972) and the Registration Convention (1976) address specific aspects of
space law. The Liability Convention stipulates that a launching state is liable for damage caused by its
space objects, both on Earth and in space. This liability can be absolute (for damage on Earth) or
fault-based (for damage in space).

The Registration Convention requires that states register objects launched into space with the United
Nations, facilitating the identification of space objects and ensuring accountability.

4. Commercialization of Space

With the increasing involvement of private companies in space activities, such as space tourism,
satellite deployment, and resource extraction, space law has had to adapt to accommodate
commercial interests. Companies like SpaceX, Blue Origin, and others are reshaping space
exploration, prompting the need for new regulations.
The U.S. Commercial Space Launch Competitiveness Act (2015), for example, allows U.S. citizens to
engage in the commercial exploration and use of space resources, including mining asteroids, though
this has raised questions about the compatibility of such laws with the non-appropriation principle
of the Outer Space Treaty.

5. Space Traffic Management

As the number of satellites and space debris in orbit increases, space traffic management has
become a pressing issue. The risk of collisions between spacecraft or with debris necessitates better
coordination and regulation. However, there is currently no binding international framework for
space traffic management, though the United Nations Committee on the Peaceful Uses of Outer
Space (COPUOS) is working on guidelines for the long-term sustainability of space activities.

Challenges in Air and Space Law

1. Defining the Boundary Between Airspace and Outer Space

One of the enduring challenges in air and space law is determining the boundary between airspace,
which is subject to national sovereignty, and outer space, which is free for exploration by all states.
There is no internationally agreed-upon boundary, though proposals such as the Kármán line, at 100
kilometers above sea level, are commonly referenced.

2. Militarization and Weaponization of Space

While the Outer Space Treaty prohibits the placement of weapons of mass destruction in space, it
does not entirely prevent the militarization of space. The increasing development of anti-satellite
weapons (ASATs) and the potential for space-based military assets present significant legal and
security concerns.

3. Space Mining and Resource Use

The question of who can exploit space resources, and under what conditions, is a contentious issue.
While the U.S. and some other nations have passed national laws allowing private entities to claim
resources from asteroids and other celestial bodies, the broader international community has yet to
agree on how to regulate such activities in a manner that respects the principles of the Outer Space
Treaty.

Conclusion

International laws governing airspace and outer space seek to balance the interests of states, private
entities, and humanity as a whole. Air law is well-established, with sovereignty, safety, and liability
being key concerns. In contrast, space law is still evolving as technological advancements and
commercial activities create new legal challenges.

Both domains require ongoing international cooperation to ensure that the exploration and use of air
and space are conducted safely, equitably, and sustainably. The future of space law, in particular, will
depend on the ability of the international community to adapt existing frameworks to accommodate
the rapid expansion of human activity beyond Earth’s atmosphere.