Unit - I

Basic Aspects of International law

International law, coined by Jeremy Bentham in 1780, corresponds to terms like “Droit International”
(French), “Internationales Recht” (German), “Diritto internazionale” (Italian), and “Derecho internacional”
(Spanish). It's known by various titles, including Law of Nations, Universal Law (Jus gentium),
International Public Law, The Law Between Powers, Inter-State Law (Jus inter gentes), The Law of the
Community States, and Transnational Law.

The European Union (EU) operates under a supranational legal framework, with the European Court of
Justice holding supremacy over national courts regarding EU law application.

International law typically governs nations rather than individuals, though it also applies to international
organizations like the EU. Based on the principle of "pacta sunt servanda" (agreements must be kept), it
relies on mutual consent and the understanding that compliance is beneficial. Non-compliance can lead to
economic, diplomatic, or military consequences.

The International Court of Justice (ICJ), part of the United Nations, resolves disputes between countries
based on international law. For the ICJ to have jurisdiction, all involved countries must consent. Non-
compliance with ICJ rulings can lead to enforcement by the United Nations Security Council.

Definition of International Law

International Law, according to Oppenheim, is the "Law of Nations," a body of customary law and
conventional rules binding civilized States in their interactions. It includes treaties, rules, and agreements
between countries, governing how nations interact and handle jurisdictional issues in international trade. The
primary purpose of International Law is to promote justice, peace, and common interest among nations.

Hans Kelsen describes International Law as a set of rules regulating the conduct of states in their relations,
while Alf Ross defines it as legal rules binding upon states. Regardless of terminology, International Law
governs the relationships between States, ensuring orderly interactions and the resolution of conflicts.

Evolution of International Law

Early Development

In ancient and medieval times, international law was limited. Its modern beginnings coincide with the rise of
national states after the Middle Ages. Early rules for maritime intercourse and diplomatic agents emerged.

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In the 17th century, the proliferation of small independent states led to the reception of Hugo Grotius’s De
jure belli ac pacis (1625), the first comprehensive formulation of international law, emphasizing sovereignty
and legal equality of states.

Historical Development

The European Renaissance mapped out the essential structure of international law, with origins in ancient
Middle Eastern cooperative agreements. Contributions also came from ancient Israel, the Indian
subcontinent, China, Greek political philosophy, and the interactions of Greek city-states.

Post-World War II development was influenced by the Cold War, affecting the functionality of the UN
Security Council. International law expanded through treaties among states, starting with Western Europe,
the New World, and eventually Asia and other regions.

Key developments include the Hague Conferences before World War I, the basis of space law in the 1960s,
the Law of the Sea treaty (1982), and various environmental treaties.

According to Oppenheim, International Law is recognized as law because states follow it not only from a
moral standpoint but also a legal one. When states violate it, they often reinterpret the law to
justify their actions.

Objectives of International Law

 To ensure peace and security in the world.

 To resolve any dispute in peaceful manner.

 To co-operate with each other, to strive for the better and brighter future of human kind.

 Disarmament of weapons of mass destruction especially nuclear and building trust between nations
through confidence building measures.

 Taking collaborative effort to solve global problems such as terrorism, climate change, refugee crisis
etc.

 International law emphasizes on implementation of international treaties and conventions in right

manner.

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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 opinion 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.

Major Differences between Private and Public international Law

 Public international law is more important than private international law.

 Public international law deals with States and on the other hand, private international deals with
individual.
 Public international law is similar for all the countries, while private international law varies from
one country to another.
 Public international law is formulated by international organizations, based on customs and treaties,
while private laws are framed by legislature of respective nation.
 Implementation of public international law is quite intricate task as compared to the private
international law.
Sources of International Law

According to Starke: The material source of international law may be defined as the actual materials from
which international lawyer determine the rules applicable to given situation.

Important sources of international law are as follows:

1.Treaties and Conventions: Treaties and conventions at global level are most important sources of
international law. According to Article 2 of the Vienna Convention on the law of treaties, 1969, A treaty is
an agreement whereby two or more States establish or seek to establish relationship between them governed
by international law.

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2. International Usage and Customs: Article 38(b) of the Statute of International Court of Justice
recognises 'international custom, as evidence of general practice accepted as law', as one of the sources of
international law. During 19th and 20th centuries, most of customary sources of international law have been
codified into treaties and conventions, moreover many of them are gradually displaced by the treaty.
However, still customary law are playing significant role in the international law.

3. Charter of the United Nation: The UN Charter is soul of functioning of the world's biggest organisation.
All the member states are obliged towards the provision of charter. At present, it is the important source of
international law enacted by the UN.

4. General Principle of Law Recognized by Civilized State: It is also an important source of international
law. The general principle of law means those rules or standards, which are repeated over time and are
recognised by international community. According to international organisation, some of the general
principles of law are good faith, responsibility, prescription, res judicata, estoppel, subrogation, etc

5.Judicial Decision: Judicial decisions of International Court of Justice and Arbitral tribunals have also
acted as a source of international law. Article 59 of the statute of the International Court of Justice provides
that the decision of the court will have no binding force except between parties and in respect of that
particular case. However, decision can establish new precedent and international organisation and States can
enact law following the interpretation of judgment.

6. Equity and Justice: Equity and justice are the foundations of international law. The purpose for which
international laws were enacted was to ensure equity and justice at global level. In the Barcelona Traction
case, Sir Gerald Fitzmaurice emphasised the need for a body of rules and principle of equity in the field of
international law.

7.Decision or Determination of the Organ of International Institution: Integral organ of the UN such as
the General Assembly have strategic and policy making decisions which are followed by the member
nations. Many inter-governmental organisations also known as specialized organs, are also sources of
international law.

Theories of the relationship between International law and Municipal law

 Following are theories about the relationship between international law and municipal law.
 Monistic theory.
 Dualistic theory.

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  Specific adoption theory.
 Transformation theory.
 Delegation theory.
Monistic theory: According to this theory all laws as a single unit composed of binding legal rules.
Keslson, wright, and Duguit are chief exponents of this theory. According to them, international law and
municipal law are essentially one.

Kelson's views: "Science of law is a unified field of knowledge and the decisive point is therefore whether
or not international law is true law. once it is accepted as a hypothesis that international law is a system of
rules of a truly legal character, it was impossible to deny that the two systems constitute part of that unity
corresponding to the unity of legal system."

Dualistic theory: This theory is also known as the Plurastic theory. According to this theory international
law and municipal law are two different laws. Tripel and Anzilotti are the chief exponents of this theory.
The subjects of international law are states only while the subjects of municipal law are individuals. The
source of municipal law is the will of the state itself whereas the source of international law is the will of
states.

Anzolotti's views: According to Anzolotti, there is a difference between the fundamental principles of
international law and municipal law. the basic principle of state law is that the state legislation must be
obeyed whereas the basic principle of international law is Pacta Sunt Servanda agreements between states
are to be respected.

Specific adoption theory: The chief exponents of this theory are Holland, Gray, and Lawrence. according
to them, international law cannot be directly enforced in the field of municipal law. international law is
applicable in a state only when municipal law permits its specific adoption.

Transformation theory: According to this theory, it is the transformation of the treaty into national
legislation which alone validates the extension to individuals of the rules. set out in international agreements
international law cannot find a place in national or municipal law.

In India Courts are constant with the dualistic approach. They are simply in view that unless and until any
law, treaty or custom remains untransformed in the legislation, the same cannot be enforced in the court of
law.

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The Supreme Court also made it clear that international customs and norms which are not contrary to the
municipal law shall be deemed to have been incorporated in the domestic law. In the landmark case
of Vishakha v State of Rajasthan the apex court clearly stated that if there is not a law regarding any
subject matter in Indian law then the reference can be taken from the customary International Law.

Birma v State : In this case the court stated that treaties which are the part of international law do not form
the part of the municipal law unless it is expressly incorporated by the legislative authority. In the mentioned
case the treaty remained a treaty only and no action was taken to incorporate the same in municipal law. So,
the treaty cannot be regarded as a part of municipal law.

PUCL vs Union of India: In April 2001, the PUCL approached to Supreme Court on behalf of the starving
people in a writ petition on the right to food. This case represents a great advance in the justice of the
rights to food as human rights, as the orders of the court in this case have transformed the policy
choices of the government into enforceable and justiciable rights of the people. The facts were such that
the grains were kept outside while the non perishable goods were put into godown. Despite the fact that
poors were unable to purchase and they were starving, though the food grain was available. After the court
looked into the matter of the case poor could get the grains at subsidized rate and several acts came into
force.

Relations between international law and municipal law:

a) As to relation: International law deals with the relations of sovereign states with each
other.Municipal law deals with the rights and duties of individual subjects.
b) As to application: International law applies to all states.Municipal law applies to one state.
c) As to enforcement: International law has no power and machinery for enforcement.Municipal law
has power and machinery for enforcement.
d) As to jurisdiction: International law involves foreign elements as to jurisdiction.Municipal law does
not involve foreign elements as to jurisdiction.
e) As to conflict of laws: International law does not involve a conflict of the system of laws.Municipal
law may involve a conflict of laws.
f) As to source: International law is not out come of legislation of sovereign authority.Municipal law is
out come of legislation by the national parliament.

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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.

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 Subject Of International Law

Introduction

Dixon – “A subject of international law is a body or entity recognized or accepted as being capable, or as in
fact being capable, of possessing and exercising international law rights and duties”.

The terms “subjects of international law” refers to entities endowed with legal personality, capable of
exercising certain rights and duties on their own account under the international legal system.

International Organizations as subjects of International Law : The advent of international organizations

in the 20th Century is having immense significance. There are different types of International organizations,
some are Global like the United Nations and others are regional like the African Union

Individuals as subjects of International Law: Modern states practices have accepted in a limited way that
Individuals have international legal personality. This position of the individual is not equivalent to the states;
still, individuals have got legal personality due to many reasons. Individuals have got various rights at
International law, which gives them the confidence to be a part of it. The Universal Declaration of Human
rights, 1948, gives various rights to individuals at an international forum.

Theories regarding subjects of International Law

1. Realist Theory (States alone are subjects of International Law): According to the orthodox positivist
doctrine, states are the only subjects of international law. According to Prof. Oppenheim, “the law of nations
is primarily a law of international conduct of states and not of their citizens”. If individuals have any right
then it can be claimed only through the states. The Jurists of this school believes that the states are the
subjects of international law, while individuals are the objects of international law.

2. Fictional Theory (Individuals alone are subjects of International Law): In this theory, Jurists believe
that Individuals are the only subjects of international law as states do not have soul or capacity to form an
autonomous will. Prof. Kelson opined that the laws ultimately apply to the individuals and are for the
individuals alone. As per this theory, the welfare of an individual is the ultimate goal of international law.

3. Functional Theory (States, Individuals and some non-state entities are subjects of
International law): The jurists with a moderate view criticize both of the above theories. These Jurists
believe that States, Individuals and certain non-state entities are subjects of international law. Now,
Individuals got right even against the states. An example of this is the European Convention on Human
Rights in 1950. Under International Covenants on Human rights 1966, it is held that individuals can claim
rights directly under international law. In some cases, Non-state actors like Colonies and Protectorate states
are treated as subjects of international law.

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 UNIT - II

STATES AS SUBJECTS OF INTERNATIONAL LAW

Definition of States: The term ‘State’ is derived from the word ‘Status’ which was first used by the Tuetons.
A State has been defined in various ways according to the manner of thinking of the writers concerned.

Aristotle: A State as a union of families and villages having for its end a perfect and self sufficing life by
which we mean a happy and honourable life.

Holland: A State is a numerous assemblage of human beings, generally occupying a certain territory,
amongst whom the will of the majority, or of ascertainable class of persons, is by the strength of such a
majority, or class, made or prevail against any of their number who oppose it.

Salmond: A State is a society of men established for the maintenance of order and justice within a
determined territory by way of force.

Essential characteristic or elements of a State: Montevideo Convention on the Rights and Duties of State
of 1933 did not define the term ‘State’ but laid down certain ‘qualifications’ of States in Article 1.

The State as a person of International law should possess the following qualification:

1) A Permanent Population: The existence of a permanent population is naturally required as an initial

evidence of the existence of a State. This requirement suggests a stable community. Evidentially it is
important, since in the absence of the physical basis for an organized community, it will be difficult to
establish the existence of a State. The size of the population, however, is not relevant since International
Law does not specify the minimum number of inhabitants as a requirement of statehood.

2) Territory: The requirement of a permanent population is intended to be used in association with that of
territory. What is required by a defined territory is that there must be a certain portion of land inhabited by a
stable community. A defined territory does not suggests that the territory must be fixed and the boundaries
be settled since these are not essential to the existence of a State, although in fact all modern States are
contained within territorial limits or boundaries. Gypsies and nomadic tribes do not become a State because
they never settle on a definite territory. Jews were recognized as a State on after they settled in 1948.

3) Government: For a stable community to function reasonably effectively, it needs some sort of political
organization. It is required that an effective government be created, and this political authority must be
strong enough to assert itself throughout the territory of the State without a foreign assistance. Government
is the political organization of the State set up to direct, regulate and control men’s activities to enable them
to live together harmoniously and constructively and to solve their common problems more energetically
and effectively.
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4) Capacity to enter into relations with other: The capacity to enter into relations with other States is an
attribute of the existence of an international legal personality. A State must have recognized capacity to
maintain external relations with other States. Such capacity is essential for a sovereign State; lack of such
capacity will avert the entity from being an independent State. Capacity distinguishes States from lesser
entities such as members of federation or protectorates, which do not manage their own foreign affairs, and
are not recognized by other States as full-members of the international community.

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Sovereignty and Independence of States: Sovereignty and independence are two concepts that are often
used interchangeably but have different meanings.

Sovereignty: Sovereignty refers to the supreme power or authority of a state to govern itself without
interference from external sources. It is the ultimate power over a territory and its people, and it includes the
ability to make and enforce laws, collect taxes, and defend against external threats. Sovereignty is often
associated with the idea of self-determination, which means that a state has the right to determine its own
political, economic, and social systems without external influence.

Independence: Independence, on the other hand, refers to the state of being free from the control or
influence of another state or external entity. It is often used in the context of colonialism, where a colony
seeks to become independent from its colonial power. Independence can also refer to a state that is not part
of a larger political entity or alliance, such as a federation or confederation.

Kinds of States:

1. Composite communities: A State is generally a single International Person where there is one central
political authority as government representing the State. In addition, there may be composite International
Person.

Sovereign States permanently united together by a federal compact may either assume the form of a
confederation or a supreme federal government often termed as composite State. There are two kinds of
composite International persons. i.e. Real Unions and Federal States.

Real Union: A real union is in existence when two or more sovereign States have, by an international treaty,
the same monarch and for international purposes and external relations act as one State although the
constituent elements retain their separateness in domestic matters. A real union is not itself a State, but
merely a union of two full sovereign States, which together make one single but composite International
person.

Personal Union: A personal union is in existence when two sovereign States and separate international
persons are linked together through accidental fact that they have the same individual as monarch. These
States retain their separate identities for external purposes. A personal union is not an international person,
the two sovereign member-States retaining their separate International entities.

2. Confederation: A confederation is constituted by a number of full sovereign States linking together by

an International treaty into a union with organs of Government extending over the member States but not
over the subjects of those States. They unite by means of a compact for the purposes of mutual co-operation
or defence, each constituent member retaining its sovereignty and separate identity. Such a confederation is

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not a State. It is more or less a society of an international character and the member-states remain full
sovereign states and maintain their international position.

3. Federal states: A federal state is a perpetual union of several sovereign States which has organs of its
own and is invested with power, not only over the member States, but also over their citizens. The ordinary
powers of sovereignty are partly vested in the federal government and partly in the separate States, both the
authorities being co-ordinate within their respective spheres.

It is not possible for the member States of a federal State to be recognized as international persons for the
reason that they are neither the full nor half-sovereign political entities, and therefore, they are not States in
the sense in which the term is used in International law. They do not possess independence nor do they
exercise exclusive territorial or personal supremacy. They are partly sovereign States and they are,
consequently, international persons for some purposes only.

The Indian Constitution is federal in all its general features, although it permits the federal government, viz.,
the Union Government at the Centre, to convert itself into a unitary in times of emergency by the issue of a
proclamation by the President under Article 352 of the Constitution.

4. Vassal State: A vassal State is one which is completely under the suzerainty of another State. It has no
position in International law. A vassal has no right of declaring war nor of making alliances with foreign
powers, for these acts impair its allegiance to the suzerain.

According to Hall, “A state under the suzerainty of another being confessedly part of another State has those
rights only which have been expressly granted to it and the assumption of larger powers of external action
than those which have been distinctly conceded to it is an act of rebellion against the sovereign.”

There are, however, instances where vassal States have maintained certain international relations, and in
such cases they have a limited international personality.

5. Protectorate state: In the case of a protectorate, a weak State seeks the protection of a strong State by
the conclusion of a treaty, with the result that the important international business is left to the protecting
State. The protecting State exercises a varying measure of control over the external relations and sometimes
over internal affairs of the weak State depending upon the provisions of the treaty.

Protected states are not sovereign states. However, they are prima facie independent and the possessor of all
rights which they have not surrendered. They are therefore international persons and subjects of
International law (unless it is a colonial protectorate). They retain for certain purposes, a position of its own
as an international person and as such are subjects of international law.

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Equality of States: States, although unequal in size, population power, degree, of civilization, wealth and
other qualities, are nevertheless equals as International Persons in the Family of Nations. This legal equality,
Oppenheim observes, has four important consequences:

1) The first consequences is that, whenever a question arises which has to be settled by consent, every
State has a right to one vote only

2) The second consequences is that legally although not politically the vote of the weakest and smallest
State has as much weight as the vote of the largest and most powerful one.

3) The third consequence of State equality is that no State can claim Jurisdiction over another.

4) The fourth consequences of equality of States is that the Courts of one State do not, as a rule,
question the validity or legality of the official acts of another sovereign State or the official or
officially avowed acts of its agents, at any rate in so far as those acts purport to take effect within the
sphere of the latter State’s own jurisdiction.

Rights and duties of States:

Rights of States:

1) Right to independence: Every State has the right to independence and hence to exercise freely,
without dictation by any other State, all its legal powers, including the choice of its own form of
government. (Article 1)

Independence of States denotes certain rights, powers and privileges under International law. Some of the
rights associated with the independence of State are (i) Power exclusively to control its own domestic
affairs, (ii) Power to admit or expel aliens (iii) privileges and immunities of diplomatic envoys in other
States and (iv) exclusive jurisdiction over crimes committed within its territory.

2) Right to Territorial Jurisdiction: Every State has the right to exercise jurisdiction over its territory and
over all persons and things therein, subject to the immunities recognized by international law. (Article 2)

3) Right to equality: Every State has the right to equality in law with every other State.(Article 5)

4) Right to self- defence : Every State has the right of individual or collective self-defence against armed
attack. (Article 12)

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Duties of States:

1) Duty to refrain from Intervention: Every State has the duty to refrain from intervention in the internal
or external affairs of any other State.

2) Duty to refrain from Fomenting Civil Strife: Every State has the duty to refrain from fomenting civil
strife in the territory of another State, and to prevent the organization within its territory of activities
calculated to foment such civil strife.

3) Duty to Respect for human Rights and Fundamental Freedoms: Every State has the duty to treat all
persons under its jurisdiction with respect for human rights and fundamental freedoms, without
distinction as to race, sex, language, or religion.

4) Duty to Ensure International Peace: Every State has the duty to ensure that conditions prevailing in its
territory do not menace international peace and order.

5) Duty to settle Dispute by Peaceful Means: Every State has the duty to settle its disputes with other
States by peaceful means in such a manner that international peace and security, and justice, are not
endangered.

6) Duty to refrain from Resorting to War: Every State has the duty to refrain from resorting to war as an
instrument of national policy, and to refrain from the threat or use of force against the territorial integrity
or political independence of another State, or in any other manner inconsistent with international law and
order.

7) Duty to refrain from giving Assistance to a State which is resorting to war: Every State has the duty
to refrain from giving assistance to any State which is acting in violation of article 9, or against which
the United Nations is taking preventive or enforcement action.

8) Duty to refrain from recognizing Territorial Acquisition: Every State has the duty to refrain from
recognizing any territorial acquisition by another State acting in violation of article 9.

9) Duty to carry out obligation in Good Faith: Every State has the duty to carry out in good faith its
obligations arising from treaties and other sources of international law, and it may not invoke provisions
in its constitution or its laws as an excuse for failure to perform this duty.

10) Duty to conduct relations with other States: Every State has the duty to conduct its relations with
other States in accordance with international law and with the principle that the sovereignty of each State
is subject to the supremacy of international law.

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State Recognition

Meaning of ‘recognition’ :

Recognition comes about by a unilateral declaration and it can be explicit or implicit- for a state to exist in
the international community, it must be recognized by other states. Once recognition is given, it implies that
the recognized state or government is entitled to the rights and privileges granted by international law.

Recognition of government is different from recognition of a state – a state is recognized when an

identifiable government, people and territory first come into existence. If the government later changes, it
may not be recognized even though recognition of the state continues.

According to international law, Recognition is the formal acknowledgment of the status of an independent
state by other existing states.

A State cannot be treated as bearer of International personality unless it is recognized i.e. the formal
acknowledgement by the existing body of the family of nations that the new political entity does possess all
the elements of Statehood i.e. population, territory, Government and sovereignty.

According to Fenwick ( in his book ‘International Law’) “recognition is a formal acknowledgement by an

existing member of the international community of the international personality of a State or political group
not hitherto maintaining official nations with it”

Recognition of government:

After a State has come into existence, its obligations in relation to other States are not affected in
consequence of internal changes which may take place.

When a State is formed, its government changes from time to time. Change in the government of a State
may take place either in the normal course of political life or due to any revolution. When the change
proceeds in a formal and constitutional way, question of recognition does not arise but when the government
changes due to any revolution, then its recognition by the existing state is required.

For recognizing the new government established out of revolution, the existing states need to consider that:

a) The new government have sufficient control over the territory and its people or not.

b) The new government is willing to fulfill the international duties and obligations or not.

Essentials of recognition of State: The main essentials of recognition may be given as under :

 That the community ( of new state ) must be politically organized

 That it should have control over a definite territory,
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  That the control should tend towards permanency,
 That such community must be independent. In other words, the attributes of statehood are people,
territory, Government, and sovereignty.

EFFECTS OF RECOGNITION:

Recognition enables the State:

1) To sue in the courts of recognizing States.

2) To get sovereign immunity for itself from recognizing State.

3) To enter into diplomatic and treaty relationship with recognizing State.

4) To get retroactive effect for its past legislative and executive acts from recognized State.

5) To be entitled to the succession and possession of property situated in recognizing State.

THEORIES OF RECOGNITION:

The legal significance of recognition is controversial. This has led to emerge different theories which are as
follows:

a) Constitutive Theory
b) Declarative or Evidentiary Theory
a) Constitutive Theory : According to this theory, recognition is a necessary condition for statehood and
personality. It is a process by which a political community acquires personality and becomes a member
of the family of nations. A state comes into existence through recognition only and exclusively.
b) Declarative Theory : This theory states declaration is a mere formality and has no legal effect as the
existence of a State is a mere question of fact. Every new State becomes a member of the family of
nations ipso facto by its coming into existence. Recognition only provides the evidence to this fact. This
theory says recognition is not important.

TYPES OF RECOGNITION OF STATES:

1. Express Recognition
2. Implicit Recognition
3. Collective Recognition
4. Premature Recognition

1) Express Recognition: An existing state recognizes another state by releasing a public statement by way
of notification or a declaration announcing the intention of Recognition. Grant is expressed in written words.

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Diplomatic letters/notes, statements, telegrams.

Example: The statement of French President to recognize the independency of Algeria on 3rd July 1963.

International treaty

example: Japan recognized Korea via article 12 of Peace Treaty on 8th September 1951.

2) Implicit Recognition:

 Does not release a formal state but recognizes the state by some acts which imply that the state is
being recognized.
 Sending a diplomatic agent.
 Having a talk with an official or a head of State.
 Making an agreement with the State.

Example : Prime Minister of Israel, Shimon Perez visited Morocco on 21 st July 1986 and had a talk with
King Hassan II to seek solutions for Middle East problems.

3) Collective recognition: Via international treaty or multilateral conference

Example: 5 ASEAN countries on 18th April 1975 recognized Cambodia.

4) Premature recognition : Recognition is given to a State although the state does not have complete
constitutive components (no constitution, territorial borders are not clear).

Example : recognition of a number of States to Palestinian

MODES OF RECOGNITION:

1. De-facto Recognition
2. De-jure Recognition
3. Recognition of Insurgency
4. Recognition of Belligerency

1. De-facto Recognition: De-facto recognition is a provisional recognition of existing States to a new State.
De-facto recognition is granted normally when the recognizing State considers that the new State although
has a legitimate Government, its effectiveness and continuance to govern the territory is doubtful.

2.De- jure recognition: When an existing State considers that the new State is capable of possessing al the
essential attributes of Statehood with stability and permanency and it commands the general support of the
population, the recognition granted is known as de jure recognition.

 De jure recognition is final.

17
  When a new State comes into existence peacefully and constitutionally, de jure recognition may
be granted directly.

3.Recognition of Insurgency : When in a civil war, rebels or insurgent forces start operating in such a way
that they occupy a large part of the territory formerly governed by the parent Government, and they
constitute de facto authority over it, the rebels or insurgents may claim some measure of international
subjectivity. When the insurgents or rebels are recognized by other existing States, it is known as
recognition of insurgency.

4.Recognition of Belligerency: When civil war takes place in a State in such a dominion that other States
start treating it as a real war between the rival powers, it is said that the state of belligerency exists. When
the rebels are recognized, it is known as recognition of belligerency.

The recognition of belligerency shows that the recognizing State considers that the rebels are in a position to
exercise authority over the territory in their possession.

conditional recognition:

The recognition of State with which certain conditions are attached in order to obtain its status as a
sovereign state is conditional recognition. The conditions attached varies from state to state such as religious
freedom, the rule of law, democracy, human rights etc.

The recognition of any State is already associated with the essential conditions to be fulfilled for the status
of a sovereign state but when addition is attached it is conditional recognition.

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 State Responsibility

State responsibility is incurred when one State commits an internationally wrongful act against another.

 Violation of legal right of one State by another State gives rise to international responsibility of
the wrong doing state towards the wronged state.

 A state is responsible for direct violations of international law – e.g., the breach of a treaty or the
violation of another state’s territory.

 The functions of the rulers of State responsibility is to determine the legal consequences of the
breach of the rules of International law by one State which resulted in injury to another State or
in damage to the dignity or prestige of another State.

Definition:

Oppenheim says, “State responsibility concerning international duties is therefore, a legal responsibility.
For a State cannot abolish or create international law in the same way that it can abolish or create
municipal law. Every neglect of an international legal duty constitutes an international delinquency and the
injured State can, subject to its obligations of Pacific settlement through reprisals or even war compel the
delinquent State to fulfill its international duties.”

J.G. Starke states that, “The rules of international law as to State responsibility concern the circumstances
in which and the principles whereby the injured State becomes entitled to redress for the damage suffered.”

Essential elements of State Responsibility:

1. An act or omission attributable to the State

2. Unlawful Acts (Breach of an International Obligation)

3. Injury or Loss or Damage

There are three factors employed to determine the liability of a State. Firstly, the State must be under a legal
duty not to commit the act. Secondly, the State must commit the act. Thirdly, the act must cause injury (loss
or damage) to another entity.

If these factors are satisfied, the State is bound to make reparation to the injured parties.

Kinds of State Responsibility:

There are two kinds of State Responsibility

a) Direct State Responsibility

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 b) Indirect State Responsibility

 State responsibility may incur in two ways either by the act of the State or by the act of an individual.

 The responsibility of the State for its own act is called original responsibility or direct responsibility.

 The responsibility for the acts other than its own is called vicarious or indirect responsibility

1) Direct Responsibility: When the breach of an international obligation is caused by a State, it becomes
responsible to that State whose right has been infringed.

A State is a legal person and it performs its function through different organs and agencies and if any wrong
act is done by any one of them, the State becomes responsible directly on their behalf. The organs and
agencies of the State includes the following:

a) Executive and administrative organs: When an act causing injury to another State is committed
by the Head of the Government of a State or an official or other individuals commanded or authorized
by the Head of the Government, a State becomes responsible for their acts. Such acts are called
‘international delinquency’.

International delinquency may be caused either by the higher authorities or by minor or subordinate
officers and employees if they have been commanded or authorized by the former. However, the
distinction between higher and subordinate officials has no significance for the placing of
responsibility on the State.

b) Acts of judiciary: It is a fundamental principle of the municipal law that judiciary remains
independent. However, it is irrelevant from the international point of view. If the courts give any such
judgment which is contrary to the international obligation of a State, responsibility of a State shall be
involved.

c) Acts of members of armed forces: A State shall be responsible for all injurious acts of members of
its armed forces if the act has been commanded or authorized by the State. Conversely, if the act is
committed by the members of its armed forces in the exercise of their official functions without the
command or authorization of the State, it is not regarded as to State act and such act is not responsible
for such act. But if the soldiers commit any mistaken act or show any reckless conduct, they Shall be
held responsible even if they have not been authorized by the State.

d) Acts of diplomatic representatives: Diplomatic representatives enjoy immunities in the State

where they are sent and are excluded from the jurisdiction of the receiving State for their acts, a State
becomes responsible for those injurious acts which are performed by them at the command or with the
authorization of his home State.
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 e) Constituent units of Federal States: It is a fundamental principle of international law that a federal
state is responsible for the wrongful act of its constituent units. A federal state cannot throw away its
responsibility by alleging that its constitutional power of control over them are insufficient.

The principle that the State is responsible for acts and omissions of organs of territorial governmental
entities, such as municipalities, provinces and regions, has long been unequivocally recognized in
territorial judicial decisions and the practice of State.

A State is held responsible for the wrongful acts of the above organs and authorities. In certain cases it
becomes difficult to find out that which organ or agency has committed wrongful act. State
responsibility arises if the act has been done in its territory even if it is not clear as to who has
committed it.

2) Indirect State Responsibility: It is an obligation of the State to prevent its own subject as well as foreign
subject living within its territory from committing such acts which may cause injury to another State. If any
wrongful act is done by an individual or a group of individuals, a State to which they belong is held
responsible for their acts. The responsibility of a State for the wrongful acts of individuals may be as
follows:

a) Acts of mob violence: A State is responsible for the damage caused by a group of individuals or by
mob.

A State shall be responsible if foreign public or private property is damaged by the mob violence due to
substantial neglect to take reasonable precautionary or preventive action. Responsibility arises where a
State has not taken due diligence to prevent the mob-violence.

State is also responsible where mob violence takes place due to indifferent attitude of its organs, i.e. if
the wrongful act is done with the connivance of its organs. In order to establish the responsibility, it has
to prove that the violence occurred due to the connivance of the State.

b) Acts of insurgents: A State remains responsible for the injuries caused to an alien in the
consequence of civil strife. It is the duty of a State to prevent violent acts of the revolutionary on its own
territory by taking due diligence. Thus the responsibility of a State for acts of insurgents and rioters is
the same as for acts of other private individuals.

c) Acts of Corporations: Legal persons such as corporations are treated like nationals in that they have
a nationality attributed to them. Thus, a State becomes responsible for the wrongful acts of the
corporations on the basis of their nationality. Problems as to the identification of the nationality of the
corporation do not arise where the company is incorporated and which has its headquarters in a State of
which the great majority of the shareholders are also nationals.
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 The question of ‘Fault’: There are two theories attributed to State responsibility.

a) The Risk theory

b) The Fault theory

The ‘risk’ theory says that a State is strictly liable if a state official or organ commits a wrongful act.
Whereas the ‘fault’ theory takes the element of ‘intention’ into account and says that a State shall be
responsible only if the act is committed intentionally or negligently.

Consequences Of States Responsibility:

When a State causes injury to another State, it has to discharge the responsibility incumbent upon it for
breach of an international obligations. When a State commits a breach of international, it becomes liable to
make good the losses faced by the injured parties. The first consequence is the cessation of the wrongful act
and the second is reparation. In international law, responsibility is discharged normally by reparation.

1) Cessation of the wrongful act: International law requires the accused State to cease committing the
wrongful act and to offer appropriate assurances and guarantees on non-repetition.

2) Reparation: The accused party shall be responsible to make reparation to the injured parties for its
wrongful acts. The expression reparation is a generic term and includes the various methods available to a
State for discharging or releasing itself from such responsibility. Generally, it may be restitution,
compensation or satisfaction

a) Restitution: Restitution in kind means to re-establish the situation which would have existed if the
wrongful act or omission had not taken place. i.e., materially revert the original party back to the same
status before the wrongful act.

b) Compensation: If restitution is not possible, the accused party shall be liable to make
compensation. It involves the making of monetary reparation with an aim of reverting the injured party
to its State prior to the occurring of the act.

c) Satisfaction: Satisfaction is considered a more appropriate in those cases where the dignity or
personality of the State has been injured. In such cases, material damage is not available and therefore,
a State performs such acts which may satisfy the other State. It may include any reasonable act
demanded by the injured State such as the acknowledgment of the wrongful character of the act, the
punishment of guilty officials, an official apology etc.

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 STATE JURISDICTION

MEANING: Jurisdiction refers to the power of a State to affect persons, property and circumstances within
its territory. It may be exercised through legislative, executive or judicial actions. International law
particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control.

Jurisdiction is a practical authority given to a legal body to deal with legal matters by implications. In
Public International Law, the concept of jurisdiction has a strong link with sovereignty. Jurisdiction allows
State for sovereign independence which they pass on with the global system of equal States stating the laws
related to persons or activities in which they have a legal interest.

Territorial Jurisdiction of the States: It is derived from State sovereignty and constitutes several features.
It is the authority of the State over persons, property and events which are primarily within its territories.

Jurisdiction of a State over its territory is called territorial jurisdiction. It implies that a State enjoys civil as
well as criminal jurisdiction over all persons and things within the territory of a State which falls under its
territorial jurisdiction. Possession of jurisdiction over all persons and things within its territorial limits and in
all causes civil and criminal, arising within its limit is an attribute of sovereignty.

The principle of territorial jurisdiction extends to land territory within boundaries, internal waters, territorial
sea, air-space above the land territory and sub-soil under-earth. To exercise jurisdiction by a State over its
territory is a right of a State.

State Authority has the power to prescribe, enforce and adjudicate the Rules of Law.

The territorial jurisdiction of the State extends over to its with:

• land,

• national airspace,

• internal water,

• territorial sea,

• national aircraft,

• national vessel,

It does not only encompass the crime committed on its territory but also the crimes that have effects within
its territory. In such a case, a concurrent jurisdiction occurs.

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Liechtenstein vs Guatemala: In this case, Liechtenstein claimed restitution and compensation from the
Government of Guatemala on the ground that the latter had acted towards Friedrich Nottebohm, a citizen of
Liechtenstein, in a manner contrary to international law. Guatemala objected to the Court’s jurisdiction but
the Court overruled this objection in a Judgment of 18 November 1953. In a second Judgment, of 6 April
1955, the Court held that Liechtenstein’s claim was inadmissible on grounds relating to Mr. Nottebohm’s
nationality. It was the bond of nationality between a State and an individual which alone conferred upon the
State the right to put forward an international claim on his behalf. Mr. Nottebohm, who was then a German
national, had settled in Guatemala in 1905 and continued to reside there.

In October 1939 — after the beginning of the Second World War — while on a visit to Europe, he obtained
Liechtenstein nationality and returned to Guatemala in 1940, where he resumed his former business
activities until his removal as a result of war measures in 1943. On the international plane, the grant of
nationality is entitled to recognition by other States only if it represents a genuine connection between the
individual and the State granting its nationality. Mr. Nottebohm’s nationality, however, was not based on
any genuine prior link with Liechtenstein and the sole object of his naturalization was to enable him to
acquire the status of a neutral national in time of war. For these reasons, Liechtenstein was not entitled to
take up his case and put forward an international claim on his behalf against Guatemala.

Limitations on Territorial jurisdiction: It is to be noted that a State has an exclusive jurisdiction over the
territory. However, exclusive jurisdiction of a State within its own territory is not absolute. Certain
limitations have been imposed upon the rule of territorial jurisdiction which has developed through customs
and partly by the conclusion of treaties. They therefore are the exceptions to the rule of exclusive territorial
jurisdiction. Such exceptions are as follows:

1) Diplomatic agents: Diplomatic agents enjoy privileges and immunities from the civil and criminal
jurisdiction of the receiving State. The immunities are given to them mainly because of the nature of the
functions which they perform.

2) Embassies: Embassies situated in other States are immune from the jurisdiction of the State. The agents
of the State cannot enter in the foreign embassies except with the consent of the head of the mission.

3) Foreign sovereign: Foreign sovereigns enjoy immunities and they are exception to the principle of
territorial jurisdiction.

4) Property of Foreign Sovereigns: The property of the foreign sovereigns remains immune from the
jurisdiction of the State. As long as the foreign has some interest in the property, it remains immune, and it
is immaterial for what purpose the property was employed.

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5) Foreign Armed Forces: Armed forces of a State remains in the foreign territory on several occasions in
the service of their home State. Such forces are considered by some to the extra-territorial, and therefore
they remain under the jurisdiction of the State to which they belong. Thus, if a crime has been committed on
foreign territory by a member of these forces he cannot be punished by the local civil or military authorities.
Punishment can be given only by the commanding officer of the forces or by other authorities of their home
State.

6) Foreign warships and their crew: The territorial waters and ports of the States are as a general rule
open to men-of-war, unless they are not excluded by special international treaties or special municipal laws
of the littoral State. Foreign warships are treated as they are floating portion of their flag States and
consequently, they alongwith all persons and goods on board, remain under the jurisdiction of the flag State
even during her stay in foreign waters. No legal proceedings can be taken against her either for recovery of
possession, or for damages for collision, or for a salvage reward, or for any other cause.

Scope, Extent and Types of State Jurisdiction:

Scope: The main aim behind this concept is to give protection and exclusive resilience to the person and the
property which resides and are established under the region of state itself.

Extent: As we have discussed earlier the authority of state extends to its whole territory but, it also may
extend beyond its recognized territory to those people and property and the things which have some
connection or link to it. The state can apply or impose its jurisdiction within or beyond its territory but it
depends upon some grounds and principles.

Types:
There are mainly three types of state jurisdiction, which are discussed below:

1. Legislative jurisdiction: In simple words this is the power of state to make and prescribe laws for its
territory and it pursue that sovereignty to bind each and every one within its territory by such laws. Our
constitution has recognized such bodies which have power to make laws. We often read and see that a
legislation exercises within its territory however only to some extent it also extends to area of alien state,
like under International law, state imposes tax on such person who don't reside within a particular territory
but somehow have some link with the state. If state makes any law which is contrary to the international law
than it can be challenged on that basis, and this would be considered as breach of International law.

2. Executive jurisdiction: It is the power of a state through which laws are enforced in the territory. As we
know that each and every state is independent and have their own supremacy over their territory hence, they
don't possess any authority to enforce their laws over other state's territory. There is no any authority or
power given to any state through which it can infringe the sovereignty of any other territory. There is a law

25
or say rule through which any state can't make or impose law on other state's territory without getting their
consent and if it would be done by any other means than would be considered as breach of International law.

Principles of Territorial Jurisdiction:

There are mainly five principles on which the civil and criminal matters of state jurisdiction depend
upon:

1. Territorial principle: State sovereignty depends upon this principle, according to which a state has an
exclusive control over its territory, people, and property included in its territory and all other foreign states
must respect this sovereignty of a state. The primary jurisdiction over the territory is exercised by the state
only irrespective of the nationality of the person. This principle is considered as the primary ground of
dominion in international law.

The internal affairs of a state must not be infringed by the unnecessary intrusion of other foreign states. A
state deals with matters which are under the enclave of state and also the matters which are somehow
connected with the state in any condition. This condition leads towards the operation of concurrent
jurisdiction under which there are two parts named as- Subjective and Objective Territorial Jurisdiction.

2. Nationality principle: According to this principle a state can exercise its jurisdiction to its people who
are the nationals of the state and to the actions which are carried out by these nationals beyond the state
territory. This relationship is completely free from the criteria of location. Criminal jurisdiction is certainly
based on this principle, civil law jurisdiction extensively uses this and as we see the common law
jurisdiction use this principle for major crimes like murder.

On the ground of active nationality principle any state can prosecute and punish any such person who is the
national of that state and has committed the crime in any other state. On the ground of passive nationality
principle any state can claim jurisdiction for those crimes which are committed against the nationals of that
state by the foreign nationals (aliens) abroad.

3. Universality principle: According to this a state can claim jurisdiction over the crimes which are
committed by any person in any country universally. State does not need to have any special connection
with the person for claiming jurisdiction.

Example: crimes against humanity, crimes related to war, hijacking of aircrafts, terrorism etc. when all these
kind of crimes came into scenario the states are provided with this principle and were made free to exercise
power in the other states where crime takes place.

4. Protective principle: According to this principle a jurisdiction can be performed over the prejudicial act
of person (alien) by whom the crime is committed outside the state's enclave but is completely against the

26
interest and security of a state. This particularly protects the vital interest of the nation state in which the
crime committed by alien is serious but no punishment for that is prescribed in the nation state where he
resides and also the extradition is refused in that country.

5. Passive personality principle: According to this principle, where the victim resides or the state of which
victim is a national than the accused will be punished and prosecuted according to that state and according to
their laws.

It implies that crimes committed by aliens against their nationals abroad comes under its jurisdiction.

SS Lotus Case: In the present case France challenged the validity of arrest of French representative of ship,
by turkey, as he was representing that ship when it got crashed with ship of turkey. This arrest was in
violation of International law according to France.

Then the court held that, according to treaty (Treaty of Lausanne) turkey is authorized to arrest that officer
and since a supreme nation state's jurisdiction was challenged then the load of proving it is over plaintiff
itself. This case is always seen as a high state of positivism. it can be said after this that international law
provides independence to nation states to perform in any aspect.

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Modes of Acquisition

There are various modes of acquisitions:

1. Occupation
2. Annexation
3. Accretion
4. Prescription
5. Cession
6. Lease of state territory
7. Adjudication or award
8. Pledge of state Territory
9. Acquisition by newly emerged State
10. Plebiscite

1. Occupation: This is the first method of acquiring territorial sovereign. This is an act of appropriation by
a state through which it internationally acquires sovereigntyover such territory as is at the time not under the
sovereignty of another state. Thus a territory acquired by a state must be in the state of’Resnullis’ (Things
belonging to none) in the sense that it is either uninhabitted or occupied by uncivilized people or by a tribal
organization which cannot be calld a state.

In Eastern Greenland case it was laid down that occupation, to be effective, requires 2 elements:

1. An intentional will to act as sovereign

2. The adequate exercise or display of sovereignty

In this case the Eastern Greenland was disputed between Norway and Denmark, but Denmark was able to
prove that it had intentional will to act as a sovereignty ad had adequately exercised or displayed sovereignty
over the Eastern Greenland

2. Annexation: By the term annexation it meant the forcible acquisition of territory by one state at the
expense of another. This mode is resorted under 2 circumstance :

1. Where the territory annexed is conquered or subjugated by the annexing state;

2. Where the territory annexed is in a position of virtual subordination to the annexing state at the time
the latter’s intention of annexation is declared.

3. Accretion: A state acquires territory by accretion when new land is formed within its existing territorial
limits; the sea recedes, a river dires up an island appears within the territorial sea. These acquisitions seldom

28
result in either significant additions of territory or in controversy. It can be defined as the increa of land
through new formations.

In the case of the Anna where a new island arose, relating to the capture of a Spanish vessel by a British
privateer. The US claimed that the vessel was captured within the American maritime belt. Lord Stowell
upheld this claim on the ground that the vessel was captured beyond three miles of the continental coast bit
within the 3 miles of some mud island which were formed within American maritime belt.

4. Prescription: Under the municipal Law, title is created by prescription and even the adverse possession
ripened by prescription gives a good title to the possessor. It arises out of long continued possession where
no original source of propriety right can be shown to exist or where possession in first instance being
wrongful, the legitimate proprietor has neglected to assert his rights or has been unable to do so.

A treaty of 1987 by which the boundary dispute between Great Britain and Venezuela prescribed a period of
fifty years for acquisition of title be prescription. But this is not followed in practice generally by all states.

5. Cession: If a sovereign state surrenders some portion of its territory to another sovereign state is called
cession. It is the transfer of sovereignty over state territory by the owner state to another state. Cession takes
place by an agreement and ordinarily the territories added under the terms of a treaty.

The sale of Alaska by Russia to USA in 1897 and Great Britain in 1891 are the examples of voluntary
cession. Compulsory cession is illustrated by the cession to Germany by France in 1871 of AlsaceLorraine
subsequently returned to France at the end of the First World War.

6. Lease of state territory: A state is entitled to lease its territory to another State for a term of years. This
mode is of a recent origin and materially differs from lease of the private law. Apart from the element of
coercion in their negotiation it would seem that the sovereignty of the lessor state over the territory was
more nominal than real.

7. Adjudication or award: This occurs where a conference of a victorious power at the end of a war assigns
territory to a particular state in view of a general peace settlement. Redistribution of Europe at the Versailles
Peace Conference 1919 is an instance in point.

8. Pledge of state Territory: A state is also entitled to take loan on the security of its territory or part of it.
History evidences numerous cases of pledges of states territories.

9. Acquisition by newly emerged State: A newly emerged state can acquire territorial sovereignty only
when it becomes independent.Bangladesh in 1971, and Yugoslavia split into 3 countries.

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10. Plebiscite: It means an expression of will by direct vote of a whole people or community. East and a
public issue, especially one concerning change of government or constitution. West Germany were united by
this mode of acquisition.

Modes of loss of State territory

The rules of International Law which are now regarded as practically settled, respecting the different modes
by which a sovereign power is enabled to take possession of, and hold, any particular portion of territory, as
against all other powers, are of comparatively recent origin.

Modes of loss of state territory:

1. Cession: This means "a giving up; relinquishment or abandonment of a right, or property. Through
cession one party acquires the territory through cession, the other state loses it"

2. Subjugation and prescription: A state may lose territory by uts own annexation by a victorious
state within the intention of incorporating it into its own territory. In the same way undisturbed
possession of the territory of one state by another during a certain period of tie causes it's loss to the
former. According to Kelson, these two modes of acquisition of territory are in violation of
International Law.

3. Prescription: When a state occupies a particular territory for a long period then it is entitled to
acquire it through prescription. On the contrary, the state which had occupation over it earlier may
lose it

4. Revolt: Followed by succession of a part of territory of the owner state is a mode of losing territory.
The example if succession territory by means of revolt are to be found in Netherlands breaking off
from Spain and US from UK, Brazil from Portugal.

5. Dereliction (renunciation): The territory may be lost by dereliction which means by renunciation of
a territory. This means, a state may slacken it's occupation over a territory and in the course of time
may lose not only the occupation over it but also sovereignty. Dereliction to be complete must
comprise the actual abandonment of a territory and the intention of giving up sovereignty.

6. Granting of independence: When independence is given to a colony the newly emerged state
acquires territorial sovereignty and the state which grants independence loses that territory.

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7. Operation of nature: A state may lose territory when its territory, generally, islands, vanishes due to
volcanic eruption, land subsistence, soil erosion and other natural calamities. The earthquake may
also result in the vanishment of an island. A number of tiny little islands have disappeared in last 200
years due to natural calamities.

8. Plebiscite: If the people of a territory are called upon to give their verdict for either remaining in one
country, or the other then the country in which they favour to merge is gainer whereas the state from
which they wish to come is loser.

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 State succession

INTRODUCTION: Idea of succession was introduced by Grotious. It compares to the rule of Roman Civil
law by which an heir became the successor in law of the deceased person and was clothed with the latter’s
rights and obligations.

MEANING: “Succession of States” means the replacement of one State by another in the responsibility for
the international relations of territory. There is a succession of States where the territory of one State passes
from its supremacy to that of another. It signifies transfer of rights and duties from one international person
to another in consequence of a territorial change.
Oppenheim lays down that ‘a succession of international persons occurs when one or more international
persons take the place of another international person, in consequence of certain changes in the latter’s
condition.

State succession refers to the merging of two or more States. It is different from government succession in
the sense that in government succession there is a change of government whereas in State succession the
State loses control over its partial or whole territory. A State which has replaced another is called the
‘successor State’ or in some cases ‘new State’. The State which has been replaced is known as the ‘parent’
or ‘predecessor State’. The term ‘new State’ signifies a State which an existing State, has become an
independent State.

CONSEQUENCES OF STATE SUCCESSION:

A succession of States entitles the extinction of the rights of the predecessor State and the arising of the
rights of the successor state to such of the State property as passes to the successor State.

Some writers maintain that with the extinction of an international person no rights can possibly survive.
Others are of opinion that devolution of rights and duties does follow upon the succeeding state.
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With the extinction of an international person, its rights and duties as a person disappear. But certain rights
and duties do devolve upon the successor state. Some of the consequences of a succession of States are as
follows:

1. Treaty Rights and Obligations

2. Membership of International Organizations
3. Public Property and Public Rights
4. Public Debts
5. Contracts
6. Torts
7. Laws
8. Nationality
9. Private Rights
THEORIES OF STATE SUCCESSION:

1. Universal Succession theory: According to this view, the successor State enjoys all the rights and
discharges all its obligations to its predecessor. The new State is regarded as a direct heir of its predecessor’s
personality in the same way as the heirs continued the personality and legal relations of the deceased in
private law. This theory may be described as the doctrine of universal succession because all the rights and
duties of the predecessor pass to the successor as elements of the estate.

2) Continuity theory: According to Max Huber, this theory is in fact, modification of the universal theory.
The notion of succession is a general one in law, and belongs exclusively neither to private nor to public
law. Succession is substitution plus continuation. The successor steps into the place of the predecessor and
continues his rights and obligations so far the succession of private and public law agree. The successor state
firstly substitutes the personality of its predecessor and secondly takes all the rights and obligations of the
predecessor.

3) Negative theory: According to this theory, the successor state does not succeed to the personality of the
predecessor. It is contended that the sovereignty of the predecessor over the absorbed territory is abandoned.
The succeeding State is in no way bound to respect the rights and obligations of the State which has ceased
to exist. International personality of the defunct state disappears with its extinction.

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Diplomatic Privileges and immunities

Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and privileges which
are granted to diplomatic agents. They are as follows:

1. Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle which is recognized
in International Law much before the adoption of the Convention of 1961. Article 29 of the Vienna
Convention lays down that “the person of a diplomatic agent shall be inviolable”. He shall not be liable to
any form of arrest or detention, and the receiving State shall treat him with all due respect and should take
all appropriate to prevent an attack on his personal freedom and dignity.

2. Inviolability of Staff of Mission: In addition to the head of mission, immunities are also given to the
staff of the mission, which is defined in article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna
Convention lays down that members of the administrative and technical staff shall enjoy the immunities and
privileges as mentioned from Article 29 to Article 35 if they are not nationals or are not permanent
residents of receiving State.

Thus, administrative and technical staff only enjoys personal inviolability (Article 29), inviolability of
residence (Article 30(1)), immunity from criminal jurisdiction (Article 31(1)), exemption from certain taxes
and duties (Article 34) and immunity from civil and administrative jurisdiction exists when they are
performing service duties [Article 31(1)].

Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff if they are not the
nationals or permanent resident of receiving State. It provides immunity to the acts performed in course of
their duties, exemption from taxes and duties on emoluments received and exemptions on social security
provisions.

3. Inviolability of family members: Vienna Convention of Diplomatic Relations in its Article 37 Para
1 states that “immunities and privileges to the family members of diplomatic the diplomatic agents having
diplomatic ranks may be given, if firstly they are not nationals or permanent resident of receiving State and
secondly, so long as they form the part of household, i.e. they live under one roof”.

So if the son of a diplomat is studying in any University of receiving State and just come on weekends to
meet his parents, then he will not be provided with any immunity as he is not forming the part of the
household.

4. Inviolability of premise: Article 21 of the Vienna Convention lays down that, “a permanent diplomatic
mission needs premises to operate and receiving State must help the sending State to obtain the premises
form mission”. The sending State has the right to use its flag and emblem on the premises (Article
20). Article 22 of the Vienna Convention of Diplomatic Relations stipulates the customary rule of
34
International Law by stating that “the premises of the mission shall be inviolable”. Further Article 30 also
provides that “private residence of a diplomatic agent shall also enjoy inviolability”. The agents, police or
any officer of the receiving State are not allowed to enter the premises without the consent of the head of
mission. However, the inviolability of premises is also not absolute it can be compromised in certain
exceptions. Article 41 of the Convention itself lays down that “premises of the mission should not be used in
any manner as incompatible with functions of mission or by rules of general International Law”. So, if the
inviolability of premises is abused then the receiving State should not bear it passively and can take all the
necessary steps to stop the actions of agents.

5. Inviolability from being a witness: Diplomatic agents are completely immune from being a witness in
any civil or criminal or administrative court of State to which they are accredited. He is also immune from
giving evidence before the Commissioner. However, they may appear before any court by waiving of their
immunity. Article 31(2) lays down that “diplomat agent is not obliged to give evidence as a witness”.

6. Immunity from taxes and customs duties: Article 34 of Vienna Convention lays down that, “diplomatic
agents shall be exempted from all dues and taxes, personal or real, national, municipal or regional”.
Initially, before the convention, this right was given to the agents due to Courtesy but Convention has
incorporated it with more precise definition.

7. Immunity from inspection of Personal Baggage: The bag used by the diplomatic agents for sending
articles, letters or documents to the sending states or any other missions of its State to abroad be known as a
diplomatic bag. Para 3 of Article 27 of the Vienna Convention lays down that “diplomatic bag should not
be opened or detained’. But according to Article 36 Para 2, this right is not absolute. It lays down that,
“general practice of exempting the diplomats’ personal baggage from a custom inspection is qualified by
the provision that inspection can be conducted in presence of a diplomatic agent or his agent if there are
serious grounds for suspecting that the article is not for official use”.

8. Immunity from the Local Jurisdiction: Diplomatic agents enjoy immunity from the jurisdiction of local
courts. The immunity extends both to criminal as well as civil jurisdiction.

Article 31, paragraph 1 of the Vienna Convention provides that a diplomatic agent shall enjoy immunity
from the criminal jurisdiction of the receiving State. Thus, receiving State has no right to prosecute and
punish diplomatic agents. Immunity of diplomatic agents from civil and administrative jurisdiction also a
well- recognized principle of International Law.

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 UNIT – III

Equitable resource utilization and Justification

Equitable resource utilization is a critical aspect of modern life, and it is incumbent on all of us to ensure
that we use resources fairly. The concept of pro rata is key to equitable resource utilization.

Pro rata refers to the proportionate allocation of resources based on need or contribution. This principle is
essential for ensuring that resources are distributed in a fair and just manner, regardless of race, gender,
or economic status. However, despite the importance of equitable resource utilization, there is still a
significant gap between the haves and the have-nots.

Importance of equitable resource utilization from different points of view:

1. From a socio-economic perspective, equitable resource utilization is essential for creating a level playing
field. When resources are distributed equitably, everyone has the same opportunities to succeed regardless of
their background.

For example, if a school district allocates resources based on needs, such as providing additional funding to
schools in low-income areas, students from those schools have a better chance of receiving the resources
they need to succeed. This approach helps to level the playing field and ensures that everyone has an equal
chance to succeed.

2. From an environmental perspective, pro rata is critical for ensuring the sustainable use of resources. As
we face climate change and other environmental challenges, it is essential to use resources in a way that
ensures their long-term sustainability. This means that resources should be allocated based on their ability to
regenerate and be replenished.

For example, water resources should be managed based on their availability and usage patterns, and forests
should be managed in a way that ensures their long-term sustainability.

3. From a political perspective, equitable resource utilization is essential for ensuring social justice. When
resources are distributed equitably, it helps to reduce inequality, which is a significant driver of social
unrest.

For example, if housing is allocated based on need, rather than wealth, it helps to reduce the gap between the
rich and the poor. This approach helps to create a more stable society and reduces the likelihood of conflict
the future of equitable resource utilization with pro rata:

a) Pro rata allocation can promote fairness and equality in various fields, including law and business.
b) It can help businesses and startups get the resources they need to succeed.

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 c) Pro rata allocation can reduce the possibility of conflicts and misunderstandings between parties.

4. It ensures that all parties receive their fair share of resources without any discrimination.

5. Pro rata allocation has the potential to bring about significant change, especially in today's world, where
there is a growing focus on equality and fairness.

Pro rata allocation can be a powerful tool for promoting equitable resource utilization. By ensuring that
everyone gets their fair share of resources, it can help create a more just and equal world.

The Law of International Waters: Reasonable Utilization: The development of international law, like
that of private law, is determined by the development of human needs and human habits. The traditional
formula of the text-books, that it is the law which governs the relations of states, relates rather to the form of
international law than to its function. In the last resort the justification of its rules, as with all law, must be
found in its ability to enable living men to live with one another in peace and order.

Changes in personal habits, the progress of science and invention, commercial and economic organisation,
all these will be found to leave their mark upon the law of nations. Alike in public and in private law, the
rules which govern conduct are worked out to meet the proved needs of mankind, and it is only in
experience that the final proof of these needs is to be found.

The human needs and human habits for sharing waters have long been governed by rules of reasonableness.
Reasonable use is the measure of a private right under riparian law and has become the measure of a public
share of transboundary watercourses. The law of international watercourses is a relatively new discipline to
settle interstate issues relating to the sharing and use of transboundary waters.

Yet, legal principles to resolve issues for peaceable sharing of common waters have been in place for
centuries, if not from time immemorial.2 The reasonable use3 of shared waters is a principle developed in
common law to resolve disputes between private water users.

The customary rules and principles in question will be analysed through their consolidation in the 1992
UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes
(“UNECE Water Convention”) and the 1997 UN Convention on the Law of the Non-Navigational Uses of
International Watercourses (“UN Watercourse Convention”).

It has also been confirmed through the authoritative reference by the ICJ in its 1997 Judgement in
the Gabcikovo-Nagymaros case with specific regard to the UN Watercourse Convention. The authority of
this statement has further been reinforced through the conclusion of transboundary water agreements across
the world that fall within the framework of this Convention.

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In line with the harmonised approach to the two principles at hand, during the preparatory legal work which
led to the adoption of the 1997 UN Watercourses Convention, the ILC stressed that “in certain
circumstances, ‘equitable and reasonable utilization’ of an international watercourse may still involve
significant harm to another watercourse State”

The essence of water law, whether domestic or international, is to define and regulate the human interaction
with the natural resource. While negotiations among States are complex, the resolution often revolves
around how people use the resource and whether the uses are considered reasonable and equitable given the
circumstances.

Reasonable Utilization Distinguished from Equitable Utilization: Whereas equitable utilization may be
conceptualized as dividing the entire watercourse among states and other watercourse interests, such as
ecological preservation, fisheries, navigation and recreation, reasonable utilization looks at how water is
used to determine if the purpose for which the water is being used and the amount used are reasonable under
the circumstances.

McCaffrey, in his treatise on the law of non-navigational uses of international watercourses describes
equitable utilization as follows:

Apportionment cases beginning in the early twentieth century, and supported by decisions in other federal
states, the doctrine of equitable utilization was applied to international watercourses as the basic, governing
principle. Its status as the fundamental norm in the field has recently been confirmed by the decision of the
International Court of Justice in the Case concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia)
1997 UN Convention also appears to treat equitable utilization as the overarching principle governing the
use of international watercourses, as did the draft articles adopted by the ILC on second reading in 1994.

Equitable utilization is born on the principle of equitable apportionment. Apportionment is a division of the
water among or between States. The legal principle of sovereign equality of States permits each State to use
a share of the watercourse based on principles of equity.

The International Law Commission notes that a State may not apply the principle of equitable utilization to
determine the amount of water a State may divert, the quality of water to which it is, entitled , or the uses of
it in international water course.

Reasonable Utilization: Common Law and Domestic Regulation: Common law riparian rights developed
in the courts of Great Britain and the United States. Common law rights have given way to government
regulation and permitting of water use. Throughout periods of change in water use predominantly for
agriculture, mills, manufacturing, and today for domestic supply for metropolitan areas, as well as through

38
the legal changes from the early enforcement at trespass to government issued permits, the standard measure
of the privilege to use common waters remains an amount which is reasonable given the circumstances.

Getzler notes that, as riparian law developed in Great Britain and the United States beginning in the
nineteenth century, the courts based riparian principles on Roman law and the French Civil law. English
courts relied on Blackstone’s decscription of right to refine the principles governing use of a shared
watercourse.

Getzler describes the development of riparian law and the effectiveness of enforcement measures based on a
community standard of reasonableness.

Restatement of the Law of Torts: Reasonable Use: Water law in the United States is established and
administered by the states. The more temperate watersheds of the United States, primarily located in the
eastern states, follow riparian law.

Reasonable use developed as a state court standard to resolve disputes between two competing riparian
users. It evolved from natural flow theories, which gave riparian a veto over new uses to the more flexible
principles of reasonable use.

The common law reasonable use theory contains three principles:

1) water is shared by riparians on an equitable basis;

2) no single user may unreasonably interfere with the reasonable use of another riparian; and

3) If there are conflicting uses the utility of the use must outweigh the gravity of the harm.

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 Sea Law:United Convention on law of the Sea (UNCLOS) (Miss ppt)

The United Nations Convention on Law of Sea is a collection of international treaties and agreements
regulating various coastal states’ marine activities. It encourages a peaceful relationship between the sea and
the coastal states. As one of the main topics of international law, it conducts all maritime economic
activities, maintains navigation rules and protects the sea from ruling powers.

It regulates the geographical activities of various coastal states and plays a role in conserving the aquatic
environment. The Law of the Sea is associated with the convention on the Law of Sea, which is an UN-
based international treaty. It was signed in 1982 by 117 states, and was adopted in 1994.

Hugo Grotius, known as the father of international law, played a significant role in formulating maritime law
concepts. During the 17th century, there was a doctrine called “freedom of the seas.” According to this law,
the sea is accessible to all the states, but the sea/ocean does not belong to any conditions. The law of the
sea is constantly changing.

Earlier, there was a conflict between “the free sea” and “the open sea.” Due to the advancement in
technology, during the 20th century, many states made jurisdictional claims to use, conserve and protect the
sea. In 1982, the United Nations adopted the law, consisting of 320 articles, nine annexes, and four
resolutions.

 It expanded the scope of the matters regarding the sea

 It extended the territorial sea to 12 nautical miles

 It provides jurisdictional settlement of the states when in need

 It explains the formation of the international tribunal for the law of the sea to carry out its
disputes

Maritime Zones under this Law: The Law of Sea in international law is the only international convention
that stipulates a framework of states in the maritime zones. According to the sea law, marine areas are
divided into five zones.

Territorial Sea: It is the area that extends to the seaward near about twelve nautical miles from the
baselines. The coastal regions have jurisdiction and authority on territorial seas. This sovereignty is not just
through the sea’s surface but to any subsoil, seabed, and airspace. The rights of the coastal states are
restricted to any form of innocent passage from the territorial region of the sea.

The zones are internal waters, contiguous zone, territorial sea, and the exclusive economic zone.

40
Baseline: It is the lowest waterline, mostly recognised by the coastal states. It is the line alongside the
coastal region along with the seaward limits.

Internal Waters: Internal waters are the ones present on the landward side of the baseline. It is from here
one can measure the territorial sea’s breadth. Every coastal area has complete authority over the internal
waters, just like the land territories. For example, ports, bays, rivers, inlets, and lakes are interconnected with
any sea. A coastal state has all the rights to prevent the Privately Contracted Armed Security Personnel entry
to the port if they carry any sort of weapons forbidden in the national legislation.

Contiguous Zone: This area extends nearly 24 nautical miles from the baseline of the sea. It can be called
an intermediate zone located between high seas and territorial. The coastal states have all the rights to
prevent and punish immigration, infringement, and sanitary and custom laws bordering the region and the
territorial sea. It gives sovereignty to a region only on the sea surface & floor. This zone does not have air
rights or space rights.

Exclusive Economic Zone (EEZ): It extends 200 nautical miles to the sea from the baseline. With EEZ,
any coastal region has the right to explore, conserve and manage natural sources in the seabed and subsoil,
no matter if the resources are living or nonliving. They have exclusive rights to bear every activity like
energy production from the sea, water current, and winds. EEZ exclusively allows the rights mentioned
above. This zone does not provide the coastal state with the liberty to prohibit navigation (only under
various exceptional cases).

High Seas: These are the ocean’s surface and water column that does not come under the exclusive
economic zone, territorial sea, or the internal water. It is called the “Common Heritage Of All Mankind” and
is beyond the nation’s jurisdiction. Coastal countries can conduct various activities in the High Seas only if
they are peaceful activities like undersea exploration or marine studies.

Territorial water: Territorial sea is that part of the sea which is adjacent to the coastal State and which is
bounded by the high seas on its outer edge. The Coastal State exercises its sovereignty over this area as it
exercises over its internal waters. The sovereignty extends to the airspace over the territorial sea as well as
its bed and sub-soil. This sovereignty accrues to a State under the customary international law which no
State can refuse.

However, the sovereignty over this area has to be exercised subject to the provisions of the conventions and
‘to other rules of international law’, which provides certain rights to other States, particularly right
of ‘innocent passage’ in the territorial waters of the State.

Breadth of the Territorial Sea: The breadth of the territorial sea has remained a thorny issue, and up
to 18th century the opinion was, that breadth of territorial sea extends to the range of a cannon-shot which at

41
that time was three nautical miles. The three-mile rule, popularly known as ‘cannon-shot’ rule as
propounded by the Dutch jurist Bynkershock, had a rationale that a State’s sovereignty extended to the sea
as far as a canon or fire could reach.

Before the 1982 Sea Convention was concluded, States proclaimed varying breadth of the territorial sea,
generally ranging from 3 to 12 miles, though in certain cases they had proclaimed wider areas than that, in
few cases up to 200 nautical miles. But at the UNCLOS-III, claims wider than 12 miles did not find favour
and the 12 miles rule was accepted by the Conference, which may be considered the present customary
international law position.

Innocent Passage: The customary international law recognizes the right of innocent passage for ships of all
States through the territorial waters of a State but no such right exists for aircraft in the airspace over the
territorial waters. ‘Ships of all States, whether coastal or not, shall enjoy the right of innocent passage
through the territorial sea.’ No right of innocent passage exists through internal waters. The passage to be
considered innocent, of foreign fishing vessels, their conduct should be according to the laws and
regulations made by the coastal State for fishing purposes in the territorial sea.

Rights of Coastal States: The sovereignty of the coastal states extends to the territorial sea. Consequently,
they have complete dominion over this part of the sea except that of the right of innocent passage and of
transit by vessels of all nations. It follows from the regime of sovereignty that the coastal state has the
exclusive right to appropriate the natural products of the territorial sea, including the right of fisheries
therein, and to the resources of the sea-bed and its sub-soil namely, sedentary fisheries and non-living
resources such as hydrocarbons and minerals. The coastal areas may enact laws and regulations.

Rights of Other States: It is the customary rule of International law that territorial sea is open to merchant
vessels of all the states for navigation. Such vessels have right to innocent passage through the territorial sea
of a state. Thus every State has the right to demand that in time of peace. This is a corollary of the freedom
of the open sea. This rule was incorporated in the Geneva Convention on the Territorial Sea and Contiguous
Zone of 1958 under Article 14. The same provision has been laid down under Article 17 of the Convention
of 1982.

Indian Position on Territorial Sea: India’s position in relation to the law of the sea is generally governed
by Article 297 of the Constitution of India, and the Territorial Water, Continental Shelf, EEZ and
other Maritime Zones Acts. The Maritime Zones Act proclaims the sovereignty of India over the territorial
waters of India and the seabed and sub-soil underlying and the airspace over such water. The limit of the
territorial is the line every point of which is at a distance of 12 nautical miles from the nearest point of the
appropriate baseline. All foreign ships are given the right of innocent passage through the territorial waters.
The passage is innocent so long as it is not prejudicial to the peace, good order or security of India.

42
However, foreign warships, including submarines and other underwater vehicles, may enter or pass through
the territorial water by giving prior notification to the Central Government. Submarines and other
underwater vehicles are to navigate on the surface and show their flags when passing through such waters.

The Central Government, if satisfied that it is necessary in the interest of peace, good order or security of
India or any part thereof, may suspend the innocent passage, absolutely or subject to certain exceptions or
modifications, by notification made in the official gazette. Thus, the position of India in this regard is in
accordance with the 1982 Convention.

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 Sea Bed and Ocean Floor

The abyssal plain – the extremely flat area on the deep ocean floor lies beyond the continental margin. Its
depth varies from area to area. However, it is in excess of 5000 meters depth. Huge quantities of minerals
are lying in the sea-bed and ocean floor and subsoil thereof. If they are explored and exploited, they would
be sufficient for mankind for several years to come. No doubt, it is quite difficult to explore the resources of
this area, it has become possible to do so by developed States due to their tremendous improvement in
science and technology. These resources can be used for the development of mankind. But at the cost of
human greed, the beauty and benefit of this area cannot be destroyed. It is a serious international issue.

Need for laws: The major step of determining various issues of the sea and the oceans are addressed by
the United Nations Convention on Law of the Sea (UNCLOS). The vast advantage or benefit that the sea
and the ocean have is the reason for raising issues because everybody wants to claim the right over the
advantageous area of the seas and oceans. The issues of control of sovereignty over the seas and the oceans
are the major rising issues of such cases. The need for legal clarity in this area was felt by the United
Nations and the United Nations Sea Convention was held to answer many unclear questions.

UN Convention on the Laws of the Sea (UNCLOS): The United Nations Law of the Sea Convention was
held in New York on 10th December, 1982. It was entered into force in June 1994. There are 168 States that
are members of this convention. The Convention set out the laws related to the areas of sea and oceans. It
declares that the area of the seas and the oceans are beyond the sovereignty of any particular Nation. The
area belongs to the whole of mankind. It promotes peaceful uses of the seas and the oceans and also
promotes the benefit of the whole of mankind by its use.

Legal status: The legal status of sea-bed and the oceans is clearly defined in the United Nations Law of the
Sea Convention (UNCLOS). Article 137 of the Convention provides the legal status to such an area. The
Article specifically prevents any state to exercise sovereignty in any such area. The States do not have any
claim, acquisition, or right on such an area and the resources of such an area.

By virtue of this article, the sea-bed and the oceans are excluded from the control of any nation and make it
reliable for the principle of common heritage to mankind as a whole. The resources of such an area are not
the rights of any particular area but the whole world as a whole.

Principle governing the area: The area of high seas is an area that does not come under any nation’s
jurisdiction. The sea-bed and the ocean floors in such areas are governed by the principle of the “common
heritage of mankind”. The area does not belong to any particular nation but to common mankind as a whole.
This is based on the benefit to the whole of mankind and not to any particular groups or individuals or
nations.

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This principle of governing the areas of the sea-bed and the oceans is specifically laid down under the
United Nations Laws of the Sea Convention, 1982. Article 136 of the Convention provides the principle of
the common heritage of mankind. Clause (2) of Article 137 of the Convention also provides that the
authority shall act in the direction of the common heritage of mankind as a whole.

Marine scientific research: Marine scientific research is promoted by the UNCLOS. Article 143 of the
UNCLOS provides for the standards to be adopted for this scientific research. The objective of such
scientific research shall be the benefit of the whole of mankind. And it shall be done for peaceful
purposes. Part XIII of the Convention provides the principle that this area shall be used for the benefit of the
whole of mankind and also that it shall be used for peaceful purposes. It provides for the provisions of the
promotion of marine scientific research by the Authority (International Seabed Authority) and the member
States. It provides for the arrangement of international programs for this research and the promotion of such
research by the participation of member states. It also provides that the authority shall promote the programs
for the benefit of the developing states and technologically less developed States. The result of such research
is to be analyzed by the authority (ISA) or other international channels if needed.

Preservation of Marine Environment: The provisions related to the protection of the marine environment
are provided in Article 145 of the Convention. It provides that the activities that are done in this area shall
be done by keeping in mind the effective protection of the marine environment. The measures shall be taken
for the protection of it from the harmful effects of such activities. Prevention, reduction, and control of
pollution are the main ideas of protecting the ecological system of marine. The marine environment here
includes coastline. Flora and fauna shall be protected. And the resources available in this environment shall
be protected and preserved.

Mining activities: There are many minerals that are deposited in the sea deep inside. Such minerals can be
retrieved from the surface of the sea and used for the whole of mankind. Deep-sea mining could be done in
the area of the sea and the ocean below 200 m. The major issue with deep-sea mining is the exploitation of
the marine environment. The mining activities and use of machines can destroy the living habitant inside the
sea. And not only the living habitant but also the sediment of the sea is affected by such activities. Such
mining activities also lead to the pollution which may destroy the sea environment. Deep-sea mining causes
noise pollution inside the sea. Light pollution is also caused by mining equipment. The water pollution is
caused by the leaking toxic wastes from these activities. This automatically affects the ecosystem of the sea.
This exploration and exploitation of the area of the sea bed and the ocean floor is under the authority of the
International Seabed Authority (ISA) by virtue of the UNCLOS.

The International Seabed Authority has the function to create contracts for the exploration of the area by the
member States. In case of exploitation of the sea environment during these exploring activities, the ISA
plays its role in the preservation of the environmental protection provisions in the UNCLOS. India is also a
45
participant in deep-sea mining. The objective is to extract polymetallic nodules or manganese nodules. The
ISA has provided the license for 15 years for the mining activities to India in 2002. It was again extended for
5 years by the authority (ISA) in 2017.

Article 153 of the Convention provides for the authority of the International Seabed Authority for providing
permissions for the exploration activities. It provides a system of exploration and exploitation activities.

It provides that the permission of such activities shall be in the form of a formal plan of work. Such a plan of
work is to be approved by the Council of the ISA and reviewed by the Legal and Technical Commission of
the ISA. When the authority (ISA) approves it then it takes the form of a contract according to Article 3 of
the Convention.

The authority (ISA) has control over such activities in the area. The measures of control of pollution and
preservation of sea environments are also provided by the authority in the contract of exploration. The
authority has the right to take the required action to fulfil the measures provided in the contract.

46
 UN Seabed Committee

The International Seabed Authority (ISA) is established by the UNCLOS for implementing the provisions
in Part XI of the UNCLOS. Part XI of the UNCLOS deals with the sea-bed and the oceans excluded from
the specific sovereignty of any particular Nation. It is an intergovernmental authority having statutory power
to implement the UNCLOS among the Nations. It is headquartered in Jamaica and Kingston. The UNCLOS
expressly and comprehensively provides the provisions related to the working and authority of the ISA.

Establishment

The International Seabed Authority (ISA) is established by virtue of Section 156(1) of the UNCLOS. It was
established on 16th November, 1994 when the UNCLOS entered into force. However, it started to work as a
fully functional organization in June 1996. Article 156(2) of the Convention also provides that the States
which are parties to the UNCLOS are also the members of the Authority. The Authority has jurisdiction over
the member States. There are 168 member States of the ISA at present.

Functions

 The main function of the ISA is to implement the provisions of Part XI of the UNCLOS. It has to
allow and manage the extracting mineral-resource related activities form the seabed of the member
States of the Committee. The objective of its establishment is to provide the benefit of the area of the
sea-bed and the ocean floors to the whole of mankind. The activities like mineral mining are allowed
to the member States on the consideration of the Committee to ensure the benefit to the common
mankind as a whole. Thus, the ISA has a function to contract with the Member States for the
exploration of the seabed.

 The other main function of the ISA is to ensure the protection of marine environments. Deep-sea
mining activities can harm the marine environment and the ISA is to take measures to prevent any
such harm. It has an obligation to allow such activities only to the extent that they must not cause
harm to the sea and the ocean. Thus, the ISA has a function to have the exploitation contract with the
member states to take necessary measures to protect the environment of the sea.

 One of the obligations of the Committee is provided in Article 157(3) of the Convention. The
Committee is obliged to treat all the member States with the principle of sovereign equality. No State
shall be treated more preferably than other States.

Seabed Disputes Chamber

The settlement of disputes of seabed cases is deemed to be dealt with by the Seabed Disputes Chamber
(SDC) of the International Tribunal for the Law of the Sea. Article 186 under Part XV of the

47
UNCLOS provides for the establishment of the Seabed Disputes Chamber. It is a separate judicial body
within the tribunal. However, it is a body within the tribunal but it is independent of it.

Functions

 Interpreting Part XI of the Convention. The SDC works for the effective implementation of the
provisions of Part XI of the Convention. And in case of disputes, it interprets the provisions of Part
XI.

 The resolution of disputes is the main function of the SDC. Disputes related to the area of the seabed
and the oceans are under the obligation of the SDC to resolve.

 The Seabed Disputes Chamber also has an advisory opinion function. Its advisory function is
specified in Article 191 of the Convention. It can provide the authority (ISA) its advisory opinion on
any legal question in the case when the authority requests. The advisory opinion given by the SDC is
a matter of urgency.

IMPACT OF THE CONVENTION OF THE LAW OF THE SEA OF 1982

a) Impact on National Policy and Legislation: The Convention has an impact on national laws of
States. Many States have adopted or are adopting legislation consistent with the provisions of the
Convention. For instance, by the end of 1985 seventy nine nations have made in their municipal laws
the exclusive economic zone upto 200 nautical miles as authorized by the Convention. Further, by
1985 more than eighty nine States have a territorial sea of twelve nautical miles in breadth, as
allowed for in the Convention. This wide scale acceptance of the Convention by the States indicates
the impact the Convention is having upon the evolution of the law of the sea. The General Assembly
in 1988 adopted a resolution wherein it called on States to observe the provisions of the Convention
when enacting their national legislations.

b) Impact on International Law: In a few cases which have been recently submitted to the
International Court of Justice for its decisions, the Court was specifically requested to take into
considerations the different principles of the Convention. For instance in the Continental Shelf case
between Tunisia and Libya the parties asked the Court to take account of factors including the
accepted trends which have been emerging in the Third United Nations Conference on the Law of
the Sea. In the case concerning the continental shelf between Libya and Malta, the Court observed
that “the 1982 Convention is of major importance having been adopted by an overwhelming majority
of States” and therefore, the Court stated that it has a “duty to consider in what degree any of its
relevant provisions are binding upon the parties as a rule of customary International Law.” The Court
quoted the relevant provisions of the Convention in its decision at different places. The reliance of

48
 the Court on the Convention, whether direct or indirect, is a significant development with regard to
implementation of the principles embodied in the Convention, and consequently to the evolution of
that attitude of States towards the orderly regulation of ocean space.

c) Impact on the Work of International Organizations: A number of international organizations

have undertaken studies of the implications of the Convention for their activities as well as for
multilateral treaties related to their mandates. ICAO, UNESCO, FAO and WMO are the instances of
specialized agencies which are presently making studies for their activities.

The Convention on the Law of the Sea of 1982 serves as an excellent guidelines to the regime of the law of
the sea.

Sea bed and Ocean Floor: The International Seabed Authority (ISA) was formed as an initiative for
organising, regulating and controlling all the mineral-related activities in the international seabed area that
are beyond the limits of national jurisdiction.

The sea-bed and the ocean floor is an area that is prone to be destroyed for the benefits it has. Many minerals
and resources are available under the sea and the oceans. These resources can be used for the development
of mankind. But at the cost of human greed, the beauty and benefit of this area cannot be destroyed. It is a
serious international issue. There are many issues regarding the legal status of the sea and the oceans.

The legal status of sea-bed and the oceans is clearly defined in the United Nations Law of the Sea
Convention (UNCLOS). Article 137 of the Convention provides the legal status to such an area. The Article
specifically prevents any state to exercise sovereignty in any such area. The States do not have any claim,
acquisition, or right on such an area and the resources of such an area.

The International Seabed Authority (ISA) is established by virtue of Section 156(1) of the UNCLOS. It was
established on 16th November, 1994 when the UNCLOS entered into force. However, it started to work as a
fully functional organization in June 1996. Article 156(2) of the Convention also provides that the States
which are parties to the UNCLOS are also the members of the Authority. The Authority has jurisdiction over
the member States. There are 168 member States of the ISA at present.

Seabed Disputes Chamber: The settlement of disputes of seabed cases is deemed to be dealt with by the
Seabed Disputes Chamber (SDC) of the International Tribunal for the Law of the Sea. Article 186 under Part
XV of the UNCLOS provides for the establishment of the Seabed Disputes Chamber. It is a separate judicial
body within the tribunal. However, it is a body within the tribunal but it is independent of it.

Pirate attacks can have widespread ramifications, including preventing humanitarian assistance and
increasing the costs of future shipments to the affected areas. The IMO and UN have adopted additional
resolutions to complement the rules in the Law of the Sea Convention for dealing with piracy.
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The ocean floor, or seabed, is a term used to describe the top layer of oceanic crust found on the bottom of
the ocean just above the mantle. This crust is made of rock sediment, which is developed through a
continuous cycle. Magma from the innermost part of the earth seeps out and cools to create sediment and
then eventually is pushed back down into the ground and recycled again through the same process.

Oceans cover nearly three-quarters of the earth's surface, yet around 95 percent of them have not been
explored because the marine environment is hostile for humans. Special equipment is needed for research on
the ocean floor because of the cold, high-pressure, and low-oxygen atmosphere. The Deepsea Challenger is
a vessel created to withstand these environments; it can travel to the deepest parts of the ocean located in
the Mariana Trench.

In 2017, the United Nations General Assembly declared the UN Decade of Ocean Science for Sustainable
Development (2021-2030), also known as the Ocean Decade. This decade aims to promote ocean science
and knowledge generation to improve the state of the ocean system and facilitate sustainable development of
this vast marine ecosystem.

Case laws: North Sea Continental Shelf cases

Germany/Denmark; Germany/Netherlands

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in
Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international law
rule or on the basis of the Geneva Convention ?

The parties requested the Court to decide the principles and rules of international law that are applicable to
the above delimitation because the parties disagreed on the applicable principles or rules of delimitation.

The Court held that the principle of equidistance, as contained in Article 6 did not form a part of existing or
emerging customary international law at the time of drafting the Convention. The Court concluded that the
equidistance principle was not binding on Germany by way of treaty or customary international law. In the
case of the latter, the principle had not attained a customary international law status at the time of the entry
into force of the Geneva Convention or thereafter. As such, the Court held that the use of the equidistance
method is not obligatory for the delimitation of the areas concerned in the present proceedings.

The South China dispute case: In 1988, the Imperial Chinese navy with the support of the Chinese air
force repeatedly intruded into the territory of water of the Philippines and started the construction of
artificial islands called the Spratly and johnson group of islands. The Philippine government strongly
protested this movement on the grounds that the disputed territory was within the maritime limit of
Philippine sea waters and China had violated the territorial sovereignty of Philippine.

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In 2015, the Philippino government approached the PCA (Permanent Court of Arbitration) to resolve the
South China Sea dispute, where the Chinese government did not appear before the PCA. UNCLOS and
violation of Customary International Law and more specifically in Article 2(4) of the UN Charter.

S.S Lotus case (France Vs. Turkey, 1927): A French vessel S.S lotus and Turkish ship S.S Bozkurt collided,
because of which the Turkish ship damaged and killed 8 Turkish Nationals on board of Turkish vessel. The
remaining survivors of the Turkish ship were taken to Turkey onboard S.S lotus. The French government
further contended that only they have a right to trial the individual because the incident involved a French
ship and a French National. The Court, therefore, by a bare majority, rejected France's position, stating that
there was no rule to that effect in international law.

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 Continental shelf

According to W.Friedman, the continental shelf can be defined as the zone around the continent that
extends from a low water line to depth and usually marked towards greater depth. What is commonly
referred to as a “continental shelf” is a sloping platform that covers continents and islands? This is a
submerged seabed that borders continental landmass and is found as an extension or part of that land. It
usually extends to a depth of about 200 meters. The coastal countries have limited sovereignty rights on the
continental shelf to explore and use “natural resources”, not sovereignty.

Rights of coastal States over Continental Shelf: The area of continental shelf cannot be appropriated by
the States and cannot exercise sovereignty over this part of the sea. However, they may exercise sovereign
rights over it for the purposes of exploring it and exploiting its natural resources. The natural resources
consist of the mineral and other non-living resources of the sea-bed and sub-soil together with living
organisms belonging to sedentary species.

Those coastal States which shall exploit the non-living resources of the continental shelf beyond 200
nautical miles are required to make payments or contributions in kind to the International sea-bed Authority.

The Authority shall distribute them to State Parties to this Convention on the basis of equitable sharing
criterion, taking into account the interests and needs of developing States, particularly the least developed
and the land locked among them.

The right of exploring and exploiting the natural resources are exclusive in the sense if the coastal State does
not explore the continental shelf or exploit its natural resources, no other State may undertake these
activities without its express consent.

Article 81 of the Convention of 1982 provides that ‘the coastal States shall have the exclusive right to
authorize and regulate drilling on the continental shelf for all purposes’.

Rights of other States in the Continental Shelf: Other States have also been given a few rights over the
continental shelf of the coastal States. Thus, all States are entitled to lay submarine cables and pipelines on
the continental shelf. However, the right may be exercised only with the consent of the coastal States. The
coastal State at the time of giving consent may impose conditions for cables or pipelines.

India’s position on the continental shelf: The Maritime Zone Act defines India’s position that India has
declared a continental shelf 200 nautical miles from land. Indian rights and obligations under this command
are similar to those in other countries, as stipulated in international conventions. But, the government can
declare the continental shelf and its magical waters for a certain area and take action to regulate it.

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 Law Of Outer Space
Introduction : The world's first satellite, Sputnik 1, was launched by the former Soviet Union (now the
Russian Federation) on 4 October 1957. On 6 April 1965, the United States placed the first geostationary
satellite, Intelsat 1, in orbit. From these early steps, we now have a significant number of (peaceful civilian)
commercial uses of outer space, including broadcasting; telecommunications (fixed, land and maritime
mobile satellite services); positioning, navigation and timing, including the global positioning system and
the global navigation satellite system; Earth observation; and meteorology. The military also makes
extensive use of outer space. Today, initiatives such as government satellite communications illustrate that
space is increasingly used for the provision of both governmental and commercial satellite services for
security and military purposes and governmental applications.

Satellites are, by their nature, extraterrestrial and extraterritorial. Accordingly, their usage is governed by an
extensive international legal framework, under the aegis of the United Nations (UN), made up of treaties,
agreements and conventions governed by international law, which may be implemented into national law.

The legal framework governing the use of satellites is also grounded in the allocation of orbital positions (or
slots) for satellites, particularly for geostationary satellites, and the allocation and assignment of radio
frequency spectrum to enable communication to and from the satellites, and the related frequencies for
terrestrial use of those communications. In relation to orbital positions, satellites in geostationary orbits are
in fixed positions approximately 36,000km above the Earth, and satellites in medium and low orbits operate
at lower altitudes.

To enable fair and equitable use of the finite space closely surrounding the Earth, coordination of these
positions is based on the need for satellites not to interfere with each other physically, which is important
with regard to the radio frequency spectrum (also finite, although some prefer to say 'scarce') used by
satellites so as to prevent harmful interference between the services using different spectrum.

The allocation and coordination of spectrum and orbital slots are dealt with separately in Chapter 2 on the
International Telecommunication Union (ITU) and access to spectrum.

UN space treaties: During the Cold War period, there was an increasing emphasis on the development of
national military capabilities, especially in the Soviet Union and the United States, and the building of
intercontinental ballistic missiles using rocket technology. The launch of Sputnik 1 was the catalyst for the
space race between these countries and the concern that outer space could be used for military purposes.
This led to the recognition by the international community of the need to put in place a minimal framework
for the use of outer space for peaceful purposes.

Following resolutions passed in 1961 and 1962 concerning the peaceful uses of outer space and a subsequent
declaration setting out the principles governing the activities of states in outer space, five treaties were

53
concluded by the UN through its Committee on the Peaceful Uses of Outer Space (COPUOS), which was
established in 1959 and now forms part of the corpus of international law governing outer space,
comprising:

1. the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies 1967 (the Outer Space Treaty);
2. the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space 1968 (the Rescue and Return Agreement);
3. the Convention on International Liability for Damage Caused by Space Objects 1972 (the Liability
Convention);
4. the Convention on Registration of Objects Launched into Outer Space 1975 (the Registration
Convention); and
5. the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 (the
Moon Agreement).

The UN space treaties establish rights and obligations between states parties to the treaties (the States
Parties), which bear international responsibility for activities carried out by governmental entities (e.g.,
national space agencies), commercial entities (e.g., launch service providers, satellite operators and
participants in outer space activities such as suborbital space tourism) and entities conducting other activities
in outer space and, increasingly, on the Moon and other celestial bodies.

The UN space treaties do not directly create obligations on non-governmental entities, and it is at the
discretion of States Parties to flow some of the obligations under the UN space treaties, such as
responsibility and liability in case of damages, down to private commercial parties through the adoption of
national space legislation or licensing regimes, or both.

At the international level, four of the five UN space treaties have been widely ratified. 3 The exception is the
Moon Agreement4 for the reasons discussed in Section II.v. States with launch service capability or with an
established national space industry or those that benefit from both tend to have ratified the four space
treaties.

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Outer Space Treaty: The Outer Space Treaty establishes fundamental rules and principles that govern the
exploration and use of outer space. The preamble of the Outer Space Treaty recognises the 'common interest
of all mankind in the progress of the exploration and use of outer space' 5 and sets out that activities should
be carried out 'for the benefit of all peoples irrespective of the degree of their economic or scientific
development' to 'contribute to broad international cooperation'that can lead to 'the development of mutual
understanding and to the strengthening of friendly relations between States and peoples'.

The States Parties to the Outer Space Treaty must comply with its key principles:

1. that outer space, including the Moon and other celestial bodies, shall be 'the province of all mankind';
2. that the use of outer space, including the Moon and other celestial bodies, shall be 'without
discrimination of any kind';
3. that outer space, including the Moon and other celestial bodies, is not subject to appropriation;
4. that activities in outer space are to be carried out in accordance with international law;
5. that outer space will be used for peaceful purposes, banning the establishment of military bases and
installations and the testing of weapons;
6. that States Parties have international responsibility for national activities carried out by both
governmental and non-governmental entities and the obligation to authorise and continuously
supervise national activities;
7. that there is international liability for damage caused by a State Party that 'launches or procures the
launching of an object into outer space' or 'from whose territory or facility an object is launched' (the
Launching State) (see Section II.ii);
8. that a State Party will have jurisdiction and control over a space object that it registers on its national
registry;
9. the principle of cooperation and mutual assistance and the obligation on a State Party to carry out
activities with 'due regard to the corresponding interests of all other States Parties'; and
10. that activities must not lead to the harmful contamination of outer space or to the environment of the
Earth that may result from the 'introduction of extraterrestrial matter'.

Many of these principles are now considered to be customary international law, which is binding on all
states.

Liability Convention: The Liability Convention expands on Article VII of the Outer Space Treaty and
introduces definitions for 'space object', 'launching', 'Launching State' and 'damage'.

Articles II and III of the Liability Convention establish two concepts of liability:

1. absolute (strict) liability for damage 'on the surface of the Earth or to aircraft in flight'; and
2. fault-based liability for damage caused 'elsewhere than on the surface of the Earth'.
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Liability is imposed on the Launching State of a space object that causes damage. There can be several
Launching States. Under Article 1(c) of the Liability Convention, a Launching State includes a state:

1. that launches a space object;

2. that procures the launching of a space object;
3. from whose territory a space object is launched; and
4. from whose facility a space object is launched.

Article V establishes joint and several liability for any damage caused by a space object launched by two or
more states.

Dispute resolution under the Liability Convention, its practicalities and its alternatives: The definition
of 'damage' under Article I(a) of the Liability Convention extends only to physical damage. It is unclear
whether compensation for damage under Article XII of the Liability Convention extends to indirect damage
such as loss of commercial revenues. To date, this has not been tested. The concept of 'fault' under Article
III of the Liability Convention is also difficult to prove when damage occurs elsewhere than on the surface
of the Earth.

In terms of the dispute resolution procedure set forth under the Liability Convention, a claim for
compensation for damage must first be presented through diplomatic channels or through the Secretary-
General of the United Nations (the UN Secretary-General). However, there is no requirement for the prior
exhaustion of domestic remedies.

Pursuant to the Liability Convention, if the relevant State Party (of the state experiencing damage) does not
present a claim for damage, another State Party may present a claim in respect of damage sustained in its
territory by a person. Should neither the state of nationality nor the state where the damage occurred present
a claim, then the state of permanent residence of the damaged person or entity may present a claim. This will
all be subject to the condition that the injury or damage is not to a national of the Launching State or to
someone who is operating a space object.

The statute of limitations for bringing a claim is one year following the date of the occurrence of the damage
or the identification of the liable Launching State. If a settlement of the claim cannot be achieved through
diplomatic negotiations within a year, the concerned States Parties are required to establish a Claims
Commission, which will make its decision and determine the amount of compensation payable based on the
merits of the claim. However, the Claims Commission's decision is final and binding only 'if the parties have
so agreed'; otherwise, it will render a final and recommendatory award that the parties are required to
'consider in good faith'.

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An alternative is for a UN Member State to bring the case before the International Court of Justice (ICJ).
However, this requires the exhaustion of all local remedies, and the ICJ's adjudication power is restricted
unless the states (both claimant and defendant states) accept the jurisdiction of the ICJ.

Another alternative is to bring the case before the Permanent Court of Arbitration (PCA) and rely on the
Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (the PCA Space Rules). This
allows the claiming party to choose the size of the arbitration panel, invoke confidentiality and designate the
law or rules of law applicable to the substance of the dispute. Most importantly, the PCA Space Rules can be
relied on not only by states and intergovernmental organisations but also private entities. Another
distinguishing factor is that the awards under the PCA Space Rules are final and binding.33

To date, there have been no cases before the ICJ or the PCA relating to international space law.

Registration Convention: The Registration Convention obliges a Launching State (as defined in the
Liability Convention) to register a space object in 'an appropriate registry which it shall maintain'. This
refers to an appropriate national registry, which should be established by the Launching State. The relevant
Launching State is obliged to supply the UN Secretary-General with information concerning the space
object 'as soon as practicable'. Where there is more than one Launching State, the states are required to
'jointly determine' which one of them is to register the space object. The state that registers the space object
in its registry shall retain 'jurisdiction and control' over the object in accordance with Article VIII of the
Outer Space Treaty.

Transfer of space objects: Neither the Registration Convention nor any other UN space treaty provides for
the transfer of a space object from the national registry of one state to the national registry of another state.
This may be required, for example, in relation to the acquisition of an object or the merger or acquisition of
a company. Such transfers must therefore, where possible, be dealt with through bilateral or multilateral
agreements of the states concerned.

Rescue and Return Agreement: During the Cold War, the Soviet Union and the United States identified
the need for a humanitarian framework to deal with the return of astronauts to their domicile and attempt to
deal with the fear of mistreatment or hostage keeping. This led to the Rescue and Return Agreement, which
sets out duties for States Parties to assist one another in the rescue and return of astronauts as well as space
objects.

The Outer Space Treaty provides astronauts with a special status as 'envoys of mankind' and they are to be
given 'all possible assistance in the event of accident, distress, or emergency landing'. The Rescue and
Return Agreement departs from the notion of envoys of mankind and instead refers to 'personnel of
spacecraft'.

Under the Rescue and Return Agreement, a State Party is required to immediately:

57
 1. notify the relevant Launching State and the UN Secretary-General when it becomes aware of
personnel of a spacecraft who have suffered an accident, are experiencing conditions of distress or
who have made an emergency or unintended landing under its jurisdiction or on the high seas; and
2. take possible steps to rescue such personnel and render all necessary assistance.

The Rescue and Return Agreement also mandates the return of space objects to the relevant Launching
State. State Parties to the Rescue and Return Agreement have an obligation to notify the Launching State of
the space object when they discover any space objects or their component parts that have returned to the
Earth. On the request of the Launching State of the space object, the State Party that has jurisdiction over the
territory on which the space object has been discovered is required to 'take such steps as it finds practicable
to recover the object'; return or hold the space object at the disposal of representatives of the Launching
State, which shall furnish identifying data prior to its return; and eliminate the possible danger of harm. The
expenses incurred in recovering and returning a space object are to be borne by the Launching State.

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Moon Agreement : Article II of the Outer Space Treaty sets out the principle of non-appropriation, which
states that 'outer space, including the Moon and other celestial bodies, is not subject to national
appropriation by claim of sovereignty, by means of use or occupation, or by any other means'. 45 This is
repeated in Article 11(2) of the Moon Agreement.

The Moon Agreement, however, creates legal uncertainty by introducing a framework for the exploitation of
the natural resources of the Moon and other celestial bodies, as it is not clear whether the prohibition under
Article II of the Outer Space Treaty extends to the appropriation of resources contained within celestial
bodies (i.e., which can be extracted).

What distinguishes the Moon Agreement from the other four UN space treaties is that it introduces the
concept that the Moon and its natural resources are the 'common heritage of mankind', which is a principle
that originates from the 1982 UN Convention on the Law of the Sea in relation to the exploitation of mineral
resources in the deep seabed.

The Moon Agreement also sets out that States Parties are to establish an international regime to govern the
exploitation of the natural resources of the Moon and other celestial bodies when 'such exploitation is about
to become feasible'. Pursuant to Article 11(7) of the Moon Agreement, the main purposes of this
international regime to be established shall include:

1. the 'orderly and safe development of the natural resources of the Moon';
2. the 'rational management of those resources';
3. the 'expansion of opportunities in the use of those resources'; and
4. an 'equitable sharing by all States Parties in the benefits derived from those resources, whereby the
interests and needs of the developing countries, as well as the efforts of those countries which have
contributed either directly or indirectly to the exploration of the Moon, shall be given special
consideration'.

Many states see the notion of equitable sharing under Article 11(7)(d) of the Moon Agreement as a
hindrance to the exploitation of natural resources of the Moon and other celestial bodies. As a consequence,
the Moon Agreement, unlike the other UN space treaties, has not been widely adopted by states and, to date,
has not been signed or ratified by any of the major spacefaring nations such as the United States, China or
Russia.

Artemis Accords: On 15 May 2020, the US National Aeronautics and Space Administration (NASA)
published the Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon,
Mars, Comets, and Asteroids for Peaceful Purposes 2020 (the Artemis Accords), with the aim of executing
an international agreement to establish a set of principles, guidelines and best practices with other states to

59
foster cooperation in the exploration of the Moon, particularly in relation to the US Artemis lunar
exploration programme.52

The Artemis Accords outline 10 core principles and best practices to enhance the use of outer space by
increasing safety, reducing uncertainty and promoting sustainable use. Signatories to the Artemis Accords
must ensure:

1. that the use of outer space is for peaceful purposes;

2. transparency of information regarding national space policies and exploration plans;
3. the development of interoperable systems such as fuel storage;
4. a commitment to emergency assistance under the Rescue and Return Agreement obligations;
5. compliance with the Registration Convention;
6. the open sharing of scientific data;
7. the preservation of the 'outer space heritage';
8. that the utilisation and extraction of space resources comply with the Outer Space Treaty;
9. the 'deconfliction' of space activities (avoiding 'harmful interference' by respecting established 'safety
zones' in outer space); and
10. the mitigation of orbital debris.

The Artemis Accords do not intend to replace any of the existing UN space treaties. The preamble of the
Artemis Accords affirms 'the importance of compliance' with the Outer Space Treaty, the Rescue and Return
Agreement, the Liability Convention and the Registration Convention, 'as well as the benefits of
coordination via multilateral forums' (e.g., COPUOS), 'to further efforts toward a global consensus on
critical issues regarding space exploration and use'.

On 13 October 2020, eight countries (Australia, Canada, Italy, Japan, Luxembourg, the United Arab
Emirates, the United Kingdom and the United States) signed the Artemis Accords to 'establish a political
understanding regarding mutually beneficial practices for the future exploration and use of outer space, with
a focus on activities conducted in support of the Artemis Program'. Subsequently, Argentina, Bahrain,
Brazil, Bulgaria, Colombia, the Czech Republic, Ecuador, France, Germany, Iceland, India, Israel, Mexico,
the Netherlands, New Zealand, Nigeria, Poland, Romania, Rwanda, Saudi Arabia, Singapore, South Korea,
Spain and Ukraine have signed the Artemis Accords, bringing the total number of signatories to 32.

The Washington Compact: The UN space treaties are inherently state-focused, having been adopted at a
time when space was virtually inaccessible to non-state actors due to the resources involved. In recent times,
space has become increasingly dominated by commercial actors, with commercial infrastructure, support
industries, space products and services accounting for nearly 80 per cent of the global space economy by
July 2023. This rise in commercialisation has led to concerns surrounding the actions of private actors
globally, as private actors are not directly bound by the UN space treaties.
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In response, on 4 July 2023, the Hague Institute for Global Justice (the Hague Institute) introduced the
Washington Compact on Norms of Behavior for Commercial Space Operators (the Compact), intending to
provide an international, non-binding and voluntary framework to facilitate cooperation and responsible
behaviour between nations, commercial actors and other stakeholders, with a focus on commercial space
activities. Importantly, signatories to the Compact affirm the importance of compliance with the Outer Space
Treaty, the Rescue and Return Agreement, the Liability Convention and the Registration Convention.

The Compact addresses:

1. interoperability in infrastructure and standards for space operations in 'Earth orbit and on and in the
orbit of the Moon and Other Celestial Bodies';
2. the increasing 'human element' in space and the need for its protection;
3. cooperation between 'civil society' and State Parties to the UN space treaties on implementation and
compliance matters; and
4. the continuing role of space law.

Signatories to the Compact consist of commercial actors, higher education institutions, organisations and
individuals, including the former chair of the United Nations Committee on the Peaceful Uses of Outer
Space, Gérard Brachet, and former administrator of NASA, Charles F Bolden Jr.

The Hague Institute submitted the Compact to UNOOSA on 8 February 2023.

Principles adopted by the General Assembly: In addition to the UN space treaties noted in Section II, the
UN General Assembly (UNGA) has adopted a series of declarations and principles relating to the
exploration and use of outer space, namely:

1. the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of
Outer Space 1963;
2. the Principles Governing the Use by States of Artificial Earth Satellites for International Direct
Television Broadcasting 1982;
3. the Principles Relating to Remote Sensing of the Earth from Outer Space 1986 (the Remote Sensing
Principles);
4. the Principles Relevant to the Use of Nuclear Power Sources in Outer Space 1992; and
5. the Declaration on International Cooperation in the Exploration and Use of Outer Space for the
Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing
Countries 1996.

The principles adopted by UNGA reflect and supplement those set out in the UN space treaties. Common
themes include the need to conduct activities in and relating to outer space in the interests of all states, the

61
need to act in accordance with international law, the importance of cooperation and mutual assistance, and
the international responsibility of states for their national activities in and relating to outer space.

The Remote Sensing Principles are particularly significant given the rise of commercial Earth observation
satellite activities, including the commercialised distribution of Earth observation data. The Remote Sensing
Principles create important distinctions between primary data (raw data acquired by remote sensors and
transmitted to the Earth from space), processed data (the results of the processing of primary data into a
usable form) and analysed information (information resulting from the interpretation of processed data).
These distinctions have been adopted by regulatory bodies in their laws and policies relating to the
ownership and dissemination of Earth observation data.

International Space Station: Other agreements between states govern more specific issues, such as
activities on the International Space Station (ISS).

The following specific instruments govern the conduct of astronauts on board the ISS:

1. an intergovernmental agreement concerning cooperation on the ISS between the governments of

Canada, Japan, Russia, the United States and the Member States of the European Space Agency
(ESA), signed in 1998;
2. four memoranda of understanding (MOUs) between NASA and (1) the Canadian Space Agency, (2)
ESA, (3) the government of Japan and (4) the Russian Space Agency (the ISS MOUs); and
3. the Code of Conduct for the International Space Station Crew (CCOC).

The ISS MOUs set out that each 'Partner State' to the ISS must approve the CCOC before it provides space
station crew. The CCOC establishes a chain of command on-orbit, a clear relationship between ground and
on-orbit management, management hierarchy, standards for work and activities in space, and disciplinary
regulations. It also provides the ISS Commander with appropriate authority and responsibility.

According to the ISS MOUs, the crew operates as one integrated team with one ISS Commander, who is
responsible for the mission programme implementation and crew safety assurance on board the ISS.

Crew disciplinary policy is developed by the Multilateral Crew Operations Panel, which also has the power
to address violations of the CCOC and impose disciplinary measures. This policy applies to any person
approved for flight to the ISS, including both expedition crew and visiting crew, from the moment each is
assigned a specific mission until the post-flight activities relating to the mission are completed.

The ISS Commander is the highest authority among the ISS crew members on-orbit. The ISS Commander is
in charge of on-orbit management and the flight director is in charge of ground management. The ISS
Commander works under the direction of the flight director and in accordance with the flight rules.
However, the ISS Commander is entitled to change the daily routine of the ISS crew members to address
contingencies, perform urgent work associated with crew safety and the protection of ISS elements, and
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conduct critical flight operations. Otherwise, the ISS Commander should implement the mission as directed
by the flight director.

In February 2022, NASA announced that the ISS will be decommissioned and deorbited in January 2031.
Commercial platforms are expected to replace the capabilities of the ISS, with NASA expected to award
initial contracts for commercial space station services around 2025.

Space sustainability and space traffic management: Although space debris is not specifically dealt with
under the Outer Space Treaty or the other space treaties, at an international level, various sets of voluntary
guidelines and standards provide guidance on space debris mitigation. These have been issued by the Inter-
Agency Space Debris Coordination Committee (IADC), the International Organization for Standardization
(ISO), the UN and the ITU.

The first international guidelines on space debris mitigation were the IADC Space Debris Mitigation
Guidelines (the IADC Guidelines) published by the IADC in 2002. The IADC was initially established in
1993 as an intergovernmental forum of space agencies 'for the coordination of activities related to the issues
of man-made and natural debris in space'. The creation of the IADC coincided with the addition of space
debris to COPUOS's main agenda for the first time in 1994 and the publication of the first national space
agency Orbital Debris Mitigation Standard Practices in 1995 by NASA. The IADC Guidelines were
presented to COPUOS in 2003 and have been revised three times, in 2007, 2020 and 2021.

In 2007, COPUOS endorsed the UN's first Space Debris Mitigation Guidelines of the Committee on the
Peaceful Uses of Outer Space (the UN Guidelines). The voluntary UN Guidelines were modelled on the
technical content and definitions set out in the IADC Guidelines but require a higher degree of compliance
and risk management. The UN Guidelines cover seven key principles:

1. limit debris released during normal operations;

2. minimise the potential for break-ups during operational phases;
3. limit the probability of accidental collision in orbit;
4. avoid international destruction and other harmful activities;
5. minimise potential for post-mission break-ups resulting from stored energy;
6. limit the long-term presence of spacecraft and launch vehicle orbital stages in the low Earth orbit
region after a mission; and
7. limit the long-term interference of spacecraft and launch vehicle orbital stages with geosynchronous
Earth orbit after a mission.

After the publication of the IADC Guidelines in 2002, a working group was established by the ISO to
transform the IADC Guidelines into international standards. This resulted in the ISO's Space Debris
Mitigation Standards 2010, with the aim of ensuring that space debris mitigation considerations are

63
incorporated into the design, operation and disposal of satellites. These standards adopt a hierarchical
structure: at the top, ISO 24113:2010, Space systems – Space debris mitigation requirements, details the
high-level debris mitigation requirements; below ISO 24113, there are a series of lower-level standards and
technical reports and specifications outlining further, detailed requirements and the means of implementing
ISO 24113. The ISO standards are continually revised, most recently in 2023. New ISO standards have also
recently been published that establish guiding principles and best practices for participants in rendezvous
and proximity operations as well as the on-orbit servicing industry. This is an important development for an
industry that is essential to the realisation of sustainable space activities.

Also in 2010, the ITU Recommendation S.1003.2, Environmental protection of the geostationary-satellite
orbit, was published. This voluntary ITU Recommendation outlines the guidance of the ITU-R Assembly for
the Member States of the ITU regarding sustainable use of the geostationary satellite orbit (GSO) and
provides advice as to disposal orbits for satellites in GSO.

A continued commitment by COPUOS to sustainability in space was demonstrated by the development of

the UN's Long-term Sustainability Guidelines 2019 (the LTS Guidelines). This was the result of a multi-year
project to develop a set of international guidelines to recommend best practices that states could follow
based on the efforts of the COPUOS Working Group on the Long-term Sustainability of Outer Space
Activities. The LTS Guidelines are intended to ensure the long-term operational stability and safe
environment of outer space. The LTS Guidelines comprise 21 voluntary, non-binding guidelines that
address:

1. a policy and regulatory framework for space activities;

2. the safety of space operations;
3. international cooperation, capacity building and awareness; and
4. scientific and technical research and development.

States are encouraged by COPUOS to take measures to implement the LTS Guidelines nationally.

Future of the UN space treaties: Although many countries recognise the need to update the UN space
treaties to reflect emerging innovative activities such as space debris removal, in-orbit servicing and space
resources utilisation, decision-making in COPUOS requires consensus among all Member States. As at
2022, there are 102 members of COPUOS, which means that harmonised understanding is hard to achieve in
the subcommittee meetings. Any updates to the current UN space treaties would also be likely to open up all
of their principles to debate. It is therefore unlikely that another treaty will be drafted and negotiated in the
near future or that the current UN space treaties will be updated.

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 Air Law – The law of Outer Space (Miss ppt)

Space law encompasses the legal framework governing activities conducted beyond Earth's atmosphere. It
comprises a collection of international agreements, treaties, conventions, and resolutions established by
organizations like the United Nations, alongside regulations set by individual nations. These regulations
cover a broad spectrum of issues, including environmental preservation in space and on Earth, liability for
damages caused by space objects, dispute resolution mechanisms, astronaut rescue protocols, information
sharing regarding space hazards, utilization of space technologies, and fostering international collaboration.

Additionally, countries enact their own laws pertaining to space exploration and activities.

Space Legislation: Space legislation can be categorized into two main areas:

(a) International Space Law

(b) National Space Law (e.g., legislation governing space activities in India)

International Space Law: International space law pertains to regulations governing activities and
exploration beyond Earth's atmosphere. This legal framework is primarily established through five
instruments adopted under the United Nations (UN) via the General Assembly's Committee on the Peaceful
Uses of Outer Space (COPUOS). The UNCOPUOS has played a pivotal role in the development of
international space law.

TREATIES

(i) THE OUTER SPACE TREATY, 1967 : The Outer Space Treaty, formally titled the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies, came into existence in October 1967.

Signed by 103 countries and ratified by key nations such as the UK, Russia, and the US, this treaty aims to
regulate and oversee the actions of member states concerning all celestial bodies and the moon.

The Outer Space Treaty assigns international accountability to member states for their activities in outer
space, encompassing the moon and other celestial bodies, regardless of whether these endeavors are carried
out by governmental bodies or non-governmental organizations (NGOs).

INTERNATIONAL SPACE LEGISLATION INCLUDES: They are obligated to ensure that such
activities adhere to the treaty's principles, which emphasize peaceful exploration and use of outer

65
 space, international cooperation, non-appropriation, and non-weaponization. Additionally, states
must authorize and supervise all relevant activities.

The Outer Space Treaty also establishes liability for damage, holding launching states internationally
accountable for any harm caused to another State Party, its citizens, or entities on Earth, in the
atmosphere, or in outer space, resulting from their space objects or components.

(ii) THE RESCUE AGREEMENT, 1968: The Rescue Agreement, known formally as the Agreement on
the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, is
an international accord outlining the responsibilities of states regarding space personnel rescue. While the
Outer Space Treaty of 1967 simply mandates rendering assistance to astronauts, the Rescue Agreement
offers some clarity by referring to "personnel of a spacecraft," although this phrasing remains ambiguous
regarding individuals not traditionally considered astronauts, such as space tourists.

iii) THE LIABILITY CONVENTION, 1972: The Liability Convention, enforced on 1st September 1972,
serves to define liability for space-related damage. Currently, it has been signed by 22 states, aiming to
govern International Liability for Damage Caused by Space.

Article 7 of the Outer Space Treaty outlines the liability of the launching state, holding it accountable for
compensating damages caused by its space objects on Earth's surface or to aircraft, as well as for damages
due to faults in space.

Notably, under this convention, it is the state, not private individuals, that bears international liability.

States are encouraged to establish national laws to protect their interests when engaging in collaborative
space research and to limit liability in cases of damage. However, the absence of such laws does not absolve
liability under this convention.

iv) THE REGISTRATION CONVENTION, 1975: Adopted by the United Nations General Assembly in
1974, the Convention on Registration of Objects Launched into Outer Space, commonly referred to as
the Registration Convention, became effective in 1976. Currently, it has been ratified by 72 states as of
February 2022. This agreement mandates that states provide the United Nations with data concerning the
orbit of each space object they launch.

Space Legislation in India: At present, India's legal framework concerning space exploration is notably
sparse. While statutes like the Indian Space Research Organisation (ISRO) Act of 1969 and the National
Remote Sensing Centre (NRSC) Guidelines of 2011 exist, they offer limited regulation over space-related
activities. India's space industry has historically been tightly controlled, overseen directly by eminent figures
and even managed from the Prime Minister's office. While this centralised approach has led to significant

66
achievements, such as ISRO's remarkable successes in space technology, there's a growing need for
dedicated space laws as India moves towards privatisation.

Existing space regulations in India primarily consist of policy frameworks rather than comprehensive laws.
These policies include:

1.SATELLITE COMMUNICATION POLICY (SATCOM): Introduced in 1997, this policy aims

to advance satellite communication, launch capabilities, and encourage private investment. However,
it was deemed insufficient, leading to the formulation of norms, guidelines, and procedures.

2.NORMS, GUIDELINES, AND PROCEDURE (SATCOM) POLICY, 2000: These regulations

outline procedures for setting up satellite systems by private Indian companies with less than 74%
foreign equity, including rules for using the INSAT satellite system.

3. REMOTE DATA SENSING POLICY, 2011: This policy allows the transfer of high-resolution
imaging services for private use, excluding sensitive imagery data. It aims to open the remote
sensing sector for developmental activities.

4. ISRO TECHNOLOGY TRANSFER POLICY: Designed to boost private participation and

investment, this policy enables outsourcing manufacturing of satellite components and other space-
related technologies to national and international companies, freeing ISRO to focus on research and
development.

Future of Space Exploration: The year 2024 promises to be a pivotal period in space exploration, building
upon significant accomplishments in 2023, such as NASA’s OSIRIS-REx and India’s Chandrayaan-3
missions. Example :

Europa Clipper Mission:

Objective: NASA’s Europa Clipper aims to explore Jupiter’s moon, Europa, renowned for its icy surface
and potential subsurface saltwater ocean.

Significance: The mission seeks to evaluate Europa’s habitability for extraterrestrial life by examining its icy
shell, geology, and ocean.

Launch Details: Scheduled for liftoff on October 10, 2024, aboard a SpaceX Falcon Heavy rocket, with
arrival at Jupiter anticipated in 2030.

Conclusion: Concerted efforts are needed to address the challenges and opportunities in space exploration,
including the establishment of international norms, fostering cooperation, recognizing intellectual property
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rights, and adopting a rational approach to research. India, with its emerging space capabilities, has a
significant role to play in shaping the future of space governance and diplomacy on the global stage.

The Moon Treaty (Miss ppt)

The Moon Agreement was considered and elaborated by the Legal Subcommittee from 1972 to 1979. The
Agreement was adopted by the General Assembly in 1979 in resolution 34/68. It was not until June 1984,
however, that the fifth country, Austria, ratified the Agreement, allowing it to enter into force in July 1984.

The Agreement reaffirms and elaborates on many of the provisions of the Outer Space Treaty as applied to
the Moon and other celestial bodies, providing that those bodies should be used exclusively for peaceful
purposes, that their environments should not be disrupted, that the United Nations should be informed of the
location and purpose of any station established on those bodies.

In addition, the Agreement provides that the Moon and its natural resources are the common heritage of
mankind and that an international regime should be established to govern the exploitation of such resources
when such exploitation is about to become feasible.

The General Assembly reaffirming the importance of international cooperation in the field of the exploration
and peaceful uses of outer space, including the moon and other celestial bodies, and of promoting the rule of
law in this field of human endeavor.

 Recalling its resolution of 29 November 1971, in which it requested the Committee on the Peaceful Uses
of Outer Space and its Legal Subcommittee to consider the question of the elaboration of a draft
international treaty concerning the moon, as well as its resolution 2915 of 9 November 1972, 3182 of 18
December 1973, 3234 of 12 November 1974, 3388of 18 November 1975, 31/8 of 8 November 1976, 32/196
A of 20 December 1977 and 33/16 of 10 November 1978, in which it, inter alia, encouraged the elaboration
of the draft treaty relating to the moon.

AGREEMENT GOVERNING THE ACTIVITIES OF STATES ON THE MOON AND OTHER

CELESTIAL BODIES

ARTICLE 1: 1. The provisions of this Agreement relating to the moon shall also apply to other celestial
bodies within the solar system, other than the earth, except in so far as specific legal norms enter into force
with respect to any of these celestial bodies.

2. For the purposes of this Agreement reference to the moon shall include orbits around or other trajectories
to or around it.

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ARTICLE 2: All activities on the moon, including its exploration and use, shall be carried out in
accordance with international law, in particular the Charter of the United Nations, and taking into account
the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, adopted by the General Assembly on 24
October 1970, in the interest of maintaining international peace and security and promoting international co-
operation and mutual understanding, and with due regard to the corresponding interests of all other States
Parties.

ARTICLE 3: 1. The moon shall be used by all States Parties exclusively for peaceful purposes.

2. Any threat or use of force or any other hostile act or threat of hostile act on the moon is prohibited. It is
likewise prohibited to use the moon in order to commit any such act or to engage in any such threat in
relation to the earth, the moon, spacecraft, the personnel of spacecraft or man- made space objects.

3. States Parties shall not place in orbit around or other trajectory to or around the moon objects carrying
nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in
the moon.

4. The establishment of military bases, installations and fortifications, the testing of any type of weapons and
the conduct of military man uvres on the moon shall be forbidden. The use of military personnel for
scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or
facility necessary for peaceful exploration and use of the moon shall also not be prohibited.

ARTICLE 4: 1. The exploration and use of the moon shall be the province of all mankind and shall be
carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or
scientific development. Due regard shall be paid to the interests of present and future generations as well as
to the need to promote higher standards of living and conditions of economic and social progress and
development in accordance with the Charter of the United Nations.

2. States Parties shall be guided by the principle of co-operation and mutual assistance in all their activities
concerning the exploration and use of the moon. International co-operation in pursuance of this Agreement
should be as wide as possible and may take place on a multilateral basis, on a bilateral basis or through
international intergovernmental organizations.

ARTICLE 6: 1. There shall be freedom of scientific investigation on the moon by all States Parties
without discrimination of any kind, on the basis of equality and in accordance with international law.

2. In carrying out scientific investigations and in furtherance of the provisions of this

Agreement, the States Parties shall have the right to collect on and remove from the moon samples of its
mineral and other substances. Such samples shall remain at the disposal of those States Parties which caused
69
them to be collected and may be used by them for scientific purposes. States Parties shall have regard to the
desirability of making a portion of such samples available to other interested States Parties and the
international scientific community for scientific investigation. States Parties may in the course of scientific
investigations also use mineral and other substances of the moon in quantities appropriate for the support of
their missions.

ARTICLE 7: 1. In exploring and using the moon, States Parties shall take measures to prevent the
disruption of the existing balance of its environment, whether by introducing adverse changes in that
environment, by its harmful contamination through the introduction of extra-environmental matter or
otherwise. States Parties shall also take measures to avoid harmfully affecting the environment of the earth
through the introduction of extraterrestrial matter or otherwise.

ARTICLE 8: 1. States Parties may pursue their activities in the exploration and use of the moon
anywhere on or below its surface, subject to the provisions of this Agreement.

2. For these purposes States Parties may, in particular:

(a) Land their space objects on the moon and launch them from the moon;

(b) Place their personnel, space vehicles, equipment, facilities, stations and installations anywhere on
or below the surface of the moon.

Personnel, space vehicles, equipment, facilities, stations and installations may move or be moved freely over
or below the surface of the moon.

ARTICLE 10: 1. States Parties shall adopt all practicable measures to safeguard the life and health of
persons on the moon. For this purpose they shall regard any person on the moon as an astronaut within the
meaning of article V of the Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and Other Celestial Bodies and as part of the personnel of a
spacecraft within the meaning of the Agreement on the Rescue of Astronauts, the Return of Astronauts and
the Return of Objects Launched into Outer Space.

ARTICLE 11: 1. The moon and its natural resources are the common heritage of mankind, which finds its
expression in the provisions of this Agreement, in particular in paragraph 5 of this article.

2. The moon is not subject to national appropriation by any claim of sovereignty, by means of use or
occupation, or by any other means.

3. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall
become property of any State, international intergovernmental or non- governmental organization, national
organization or non-governmental entity or of any natural person. The placement of personnel, space
70
vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including
structures connected with its surface or subsurface, shall not create a right of ownership over the surface or
the subsurface of the moon or any areas thereof.

4. States Parties have the right to exploration and use of the moon without discrimination of any kind, on the
basis of equality and in accordance with international law and the terms of this Agreement.

ARTICLE 13: A State Party which learns of the crash landing, forced landing or other unintended landing
on the moon of a space object, or its component parts, that were not launched by it, shall promptly inform
the launching State Party and the Secretary General of the United Nations.

ARTICLE 18: Ten years after the entry into force of this Agreement, the question of the review of the
Agreement shall be included in the provisional agenda of the General Assembly of the United Nations in
order to consider, in the light of past application of the Agreement, whether it requires revision. However, at
any time after the Agreement has been in force for five years, the Secretary-General of the United Nations,
as depository, shall, at the request of one third of the States Parties to the Agreement and with the
concurrence of the majority of the States Parties, convene a conference of the States Parties to review this
Agreement.

A review conference shall also consider the question of the implementation of the provisions of article 11,
paragraph 5, on the basis of the principle referred to in paragraph 1 of that article and taking into account in
particular any relevant technological developments.

ARTICLE 20: Any State Party to this Agreement may give notice of its withdrawal from the
Agreement one year after its entry into force by written notification to the SecretaryGeneral of the United
Nations. Such withdrawal shall take effect one year from the date of receipt of this notification.

ARTICLE 21: The original of this Agreement, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the SecretaryGeneral of the United Nations, who
shall send certified copies thereof to all signatory and acceding States.

IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments,
have signed this Agreement, opened for signature at New York on 18 December 1979.

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 GEOSTATIONARY OBJECT IN OUTER SPACE

It claims of sovereignty over the geostationary orbit. Is the geostationary orbit a part of outer space? This
question was brought fore by the Bogota Declaration of 1976, in which eight equatorial countries claimed
segments of the orbit directly above them as integral parts of their national territories over which they
exercised complete and exclusive sovereignty. These countries also declared that segments of the orbit over
the high seas constituted the "common heritage of mankind. “

In support of their claim, they argued principally that there was no satisfactory definition of outer space to
warrant the inclusion of the geostationary orbit in outer space; that the ban on national appropriation
mandated by article II of the Outer Space Treaty 5 of 1967 was not applicable because of the lack of such a
definition; and, consequently, that the geostationary satellite orbit (GSO) was not covered by
the Outer Space Treaty.

Geostationary orbits of 36,000km from the Earth's equator are best known for the many satellites used for
various forms of telecommunication, including television. Signals from these satellites can be sent all the
way round the world. Telecommunication needs to "see" their satellite all time and hence it must remain
stationary in the same positions relative to the Earth's surface.

A stationary satellite provides the advantage for remote sensing that it always views the Earth from the same
perspective, which means that it can record the same image at brief intervals. This arrangement is
particularly useful for observations of weather conditions. One disadvantage of geostationary orbits is the
great distance to the Earth, which reduces the achievable spatial resolution.

There are a number of weather satellites evenly distributed in geostationary orbit all around the world to
provide a global view.

International Registration The United Nations Office for Outer Space Affairs (UNOOSA) keeps two
international registers for objects launched into outer space. One is older and kept pursuant to UN General
Assembly Resolution 1721, from 1961. A separate one was created pursuant to the 1975 Registration
Convention. The explanation for the existence of two registers is that the 1961 resolution is not
mandatory; it is a recommendation from the UN General Assembly to UN Member States. Conversely,
registration pursuant to the 1975 Registration Convention is mandatory for States which are party to that
Treaty.).

In practice, however, the registers are very nearly identical. States which are not party
to the Registration Convention – and are therefore not compelled to registry with the UN – still register with
the UN pursuant to the Resolution 1721. UNOOSA maintains an online index of space objects listed on its
register, as making information of this sort available online furthers the purpose of having an international

72
register – namely, transparency and public awareness about what is actually in outer space (UNOOSA
2019).

International Governance for the Geostationary Orbit: Headquartered in Geneva, Switzerland, the
International Telecommunications Union (ITU) coordinates the use of usable portions of the electromagnetic
spectrum, and the use of orbital allocations (“slots”) at the Earth’s Geostationary Orbit (GEO) at 35,786 km
above the Earth’s equator. ITU coordination is designed to foster the rational, equitable, efficient, and
economical use of these resources. Both usable portions of the spectrum and orbital locations are regarded as
limited resources, and these limited resources require coordination between actors. Consequently, there is
weight given to those who first apply for rights according to a “first come, first served” basis.

However, there is also respect given to potential future users. This 10 C. D. Johnson balancing of present
users with future users is difficult, but it ensures that no State or other actor can rush to seize orbital or
spectrum resources. For the purposes of ITU orbital allocations, there are only two categories of spacecraft:
Geostationary (GSO) and Non-Geostationary (NGSO). Currently, the ITU only coordinates GSO.

Because of the limited and unique nature of these positions in GSO, coordination there has long been
regarded as a necessity. Current capabilities dictate that there are only about 1800 orbital “slots” at GSO.

National administrators of frequencies, such as the Federal Communications Commission (FCC) and the
National Telecommunications and Information Administration (NTIA), which administer commercial and
governmental frequencies, respectively, grant licenses to operators in conformity with their interpretation of
their international obligations under space law, including both the Outer Space Treaty and the regime of the
ITU.

The Outer Space Treaty and subsequent treaties, as well as the ITU regime for frequencies and orbits. Both
regimes speak of the freedom of access and use of outer space, as well as the obligations respecting the
rights of others to also explore and use outer space. Various articles of the Outer Space Treaty, either
creating explicit rights or obligations, or other articles iterating more general concepts (such as due regard,
harmful contamination) are applicable to constellations.

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 Special problem of Antarctica

Antarctica is centered on the South Pole and is the fifth largest continent. It is the most environmentally
extreme continent, being almost entirely covered with a sheet of ice some 1.5 miles (2.5 km) thick on
average. Antarctica has no native trees or flowering plants, land-dwelling mammals, reptiles, or amphibians.
Its largest native land-dwelling animals are insects, and its only native plants—found only on the 2% or so
of the continent, including parts of outlying islands, that are bare of ice—are species of moss and algae.

Although covered with frozen water, Antarctica’s interior is technically a desert because its average
precipitation is less than 10 inches (250 mm) per year; parts of the interior, including the South Pole itself,
receive less than half this amount. Antarctica’s average year-round temperature is -56°F (-49°C). It has no
native human inhabitants, but a population of about 7,000, mostly scientists and support personnel, inhabits
a scattering of year-round bases maintained by various governments.

Despite its size and harsh environment, Antarctica is vulnerable to damage from human activities. Large
lakes under the ice cap, completely isolated from the rest of the world for hundreds of thousands of years,
may be contaminated by boreholes drilled by Russian scientists; tens of thousands of tourists flock to the
continent every year, bringing cruise-ship pollution and possibly interfering with the breeding and nesting
behaviors of penguins and other animals; coal, oil, gas, and other valuable minerals are found on or near
Antarctica, and extracting them would injure the Antarctic environment; anthropogenic (human-caused)
climate change is causing the breakup of coastal ice shelves around the West Antarctic.

Peninsula, speeding flow of glaciers to the sea; climate change has increased snowfall in the East Antarctic
plateau and is changing wind and ocean-current patterns around the continent; and ozone-destroying
industrial chemicals have caused a hole in the ozone layer to open above the continent for part of each year.
However, the remoteness and harshness of the Antarctic environment made it impractical to build
settlements or exploit resources, apart from hunting seal and whale. In the mid-twentieth century, to prevent
conflict over Antarctica, an international treaty governing usage of the continent was negotiated by a dozen
nations, including the United States, the Soviet Union, and other major powers. This treaty, the Antarctic
Treaty, was agreed upon in 1959 and entered into force in 1961. Along with a number of add-on agreements
(protocols), the Antarctic Treaty governs Antarctic affairs to this day. As of 2008, 46 nations had agreed to
the treaty.

ANTARCTIC TREATY: A 1959 series of agreements regulating international relations in Antarctica,

establishing the area as a demilitarized zone to promote open scientific research. The Antarctic Treaty does
support territorial claims made before 1959, by New Zealand, Australia, France, Norway, the United
Kingdom, Chile, and Argentina. Under the treaty, the size of these claims cannot be changed and new claims
cannot be made. Most importantly, the treaty establishes that any treaty-state has free access to the whole

74
region. As such, research stations supported by a variety of treaty-states have been constructed within each
of these territorial claims. Today, a number of states have signed the Antarctic Treaty.

Although the Antarctic Treaty forbids all military action in Antarctica, including the establishment of bases
or the carrying out of exercises, none of the countries that have claimed Antarctic territory have as yet
withdrawn their claims.

The United Kingdom, Chile, and Argentina have made overlapping claims that include the northern-most
part of the West Antarctic Peninsula, a possible source of future conflict. (Argentina almost went to war
with Chile in 1978 over a territorial claim, and fought the United Kingdom over such a claim in 1982;
however, neither conflict involved Antarctica.

Tourism: By the early 2000s, Antarctic tourism was a big business and growing rapidly. In 1990 and 1991,
only about 4,700 tourists had visited Antarctica; in 2003 and 2004, more than 24,000 visited, and numbers
were expected to rise to over 30,000 during the 2006 season. The Antarctic and Southern Ocean Coalition, a
coalition of conservation groups, argued in 2006 that increased tourism threatened to disturb the breeding
and feeding habits of penguins and other Antarctic birds.

Climate Change: Anthropogenic climate change is causing slight cooling and increased snowfall in eastern
Antarctica and drastic warming over the West Antarctic Peninsula. In addition to causing possible harm to
populations of penguins and other creatures adapted to the Antarctica’s present environment, warming is
causing increased melting of West Antarctic ice.

Global Warming/Ozone: Antarctic climate is being affected not only by global warming but by the
seasonal disappearance of ozone in the stratosphere above the continent, a phenomenon known as the ozone
hole. Ozone (O3) is a molecular form of oxygen that blocks harmful ultraviolet light from the sun. The
ozone hole is caused by decades of releases of long-lived industrial chemicals such as chlorofluorocarbons
that destroy ozone. If the ozone hole became global, the ecological and human consequences would be
catastrophic. Releases of ozone-destroying chemicals have been limited since 1989 by the Montreal
Protocol, but the chemicals are so long-lasting (and are still being emitted, though in smaller quantities) that
the Antarctic ozone hole is not likely to begin shrinking again until about 2025.

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 Transboundary Pollution

The vast bulk of the international environemnetal law relating to transboundary pollution from major
accidents is contained in treaties. Treaties are agreements between States which give rise to binding
international legal obligations, non-compliance with which gives rise to liability at the instance of another
State Party to the treaty. Particularly important treaties in the present context include the
UN/ECE. Convention on the Transboundary Effects of Industrial Accidents 1992, which entered into force
in 2000 (the ‘Transboundary Industrial Accidents Convention’), and the UN/ECE Convention on the
Protection and Use of Transboundary Watercourses and International Lakes, which came into force in 1996
(‘Transboundary Watercourses Convention’).

Obligation to prevent transboundary pollution: The purpose of the Transboundary Industrial Accidents
Convention is to protect human beings and the environment against the results of industrial accidents. It
aims to achieve this by preventing such accidents as far as possible, by reducing their frequency and severity
and by mitigating their effects. It promotes active international cooperation between the contracting Parties,
before, during and after an industrial accident.

Under the Transboundary Watercourses Convention, the parties must take all appropriate measures to
prevent, control and reduce pollution that may have a transboundary impact. The Protocol on Civil Liability
for Damage and Compensation for Damage Caused by Transboundary Effects of Industrial Accidents
on Transboundary Waters, adopted 21 May 2003, is subsidiary to both the Transboundary Industrial
Accidents Convention and to the Transboundary Watercourses Convention.

Obligation to notify other States: Whilst there is a general obligation under international law to notify and
cooperate with other States in the event of an accident (as discussed above), international conventions
frequently contain specific obligations in this connection. For example, under the Transboundary
Watercourses Convention, States bordering the same transboundary river must inform each other without
delay about any critical situation that may have transboundary impact.

Parties to the Transboundary Industrial Accidents Convention must provide for the establishment and
operation of compatible and efficient industrial accident notification systems at appropriate levels of public
administration, so as to provide the information needed to counteract transboundary effects. In the event of
an industrial accident (or the imminent threat of one) causing or capable of causing transboundary effects,
the State Party in whose territory the incident originated must ensure that States Parties likely to be affected
are, without delay, notified through these systems.

Emergency Plans and Procedures: The Parties to the Transboundary Industrial Accidents Convention are
also obliged to take appropriate measures to establish and maintain adequate emergency preparedness to

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respond to industrial accidents.181 They must ensure that preparedness measures are taken to mitigate
transboundary effects of such accidents, with on-site duties being undertaken by operators.

Liability Regimes: Many international environmental treaties make general provision for civil liability (i.e.
the payment of compensation) for damage caused by breaches of the treaty obligations. Typically, this
provision takes the form of an obligation to collaborate in the negotiation of a subsidiary protocol (i.e. a
‘daughter’ treaty’) which will create the liability mechanism.183 In practice, however, it is rare for such
protocols to be negotiated and still rarer for them to come into force.

Partly, this is due to the natural reluctance of States to make rods for their own back, but there is also a
complication in that, while most damage is suffered by the nationals (whether individual or corporate) of
States, the liability created in the treaty is usually owed from one State to another, States being the
traditional subjects of international law.

There are some exceptions to this generally depressing picture, particularly in the field of marine pollution,
but none apply to transfrontier damage generally. There is a Protocol on liability to the Transboundary
Industrial Accidents Convention, but, like so many of its fellows, it is not in force.

CODE OF CONDUCT on Accidental Pollution of Transboundary Inland Waters as adopted by the

Economic Commission for Europe at its forty-fifth session (1990) by decision Cf 45)

Sec1.(b) "Accidental pollution of transboundary inland waters" means the introduction, directly or
indirectly, of hazardous substances into transboundary inland waters as a result of incidents originating
wholly or partly within an area under the jurisdiction of one country, which causes or threatens to cause
significant impairment of the quality of transbou·ndary inland waters and/or significant damage to aquatic
ecosystems in an area under the jurisdiction of another country;

C)Trans boundary inland waters" means any surface and ground waters which form or cross the common
boundaries of two or more countries;

(d) "Accident,, means a departure from normally permissible operating conditions of an activity causing or
threatening to cause water pollution;

(e) "Natural disaster" means any natural event including such phenomena as floods, ice drifts, earthquakes,
landslides and hurricanes, which causes or threatens to cause accidental pollution of transboundary inland
waters;

(f) "Risk" means the combined effect of the probability of occurrence of an undesirable event and its
magnitude;

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(g) "Hazardous activity" means any activity which by its nature involves a significant risk of accidental
pollution of transboundary inland waters;

(h) "Hazardous substance" means any substance or energy involving a significant risk of accidental
poHution of transboundary inland waters, including toxic, persistent and bio-accumulative substances and
harmful micro-organisms;

National legislative and administrative measures should promote the development and sound application of
the best available technologies and their safe operation for efficient prevention, control and reduction of
accidental pollution of transboundary inland waters. These measures should also provide for the competent
authorities to be authorized to take emergency action without delay.

INTERNATIONAL CO-OPERATION: Countries should make use of existing bilateral or multilateral

agreements and institutional arrangements to cope with accidental pollution of transboundary inland waters
and should, where necessary, expand their scope and functions to cover matters governed by this Code.

Riparian countries should agree to co ordinate and harmonize as necessary their legislative and
administrative measures relating tu transbounda·ry inland waters, particularly as regards criteria for defining
hazardous activities and substances, contingency plans at all levels, monitoring, safety and other relevant
matters.

RISK AND VULNERABILITY ASSESSMENTS: Countries should ensure, in accordance with their
legal systems, that an analysis and assessment of the risks of accidental pollution of transboundary inland
waters is undertaken in the course of the authorization procedure referred to in section IX and is

subsequently reviewed when circumstances so require.

CONTINGENCY PLANS: Countries authorizing hazardous activities should ensure the development and,
whenever necessary, application of contingency. plans at all levels to prevent, control and reduce accidental
pollution of transboundary inland waters by using all available resources in the most efficient way.

EARLY WARNING AND ALARM SYSTEM: Countries should set up and operate efficient warning and
alarm systems with the aim of obtaining and transmitting reliable information needed to counteract
accidental pollution of transboundary inland waters. Warning and alarm systems should consist of main
communication centres which, on the basis of a national reporting system, should ensure the speediest
possible transmission of data and forecasts following previously determined patterns. These warning and
alarm systems should permit early undertaking of corrective and protective measures, containment of
damage and reduction of risks.

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DAMAGE ASSESSMENT AND COMPENSATION: Countries should seek to ensure in their national
legislation prompt and adequate compensation in respect of damage caused by accidental pollution of trans
boundary inland waters according to the provisions of this Code.

Countries should provide strict liability for pollution damage caused by accidents involving hazardous
activities bearing in mind exonerating circumstances. The organization or person liable for damage should
be held to incur liability upon proof that the damage was caused by an accident in the installation for which
it/he is responsible.

For cases of pollution of transboundary inland waters, where the incident from which the damage resulted
cannot be identified, and in order to facilitate the payment of compensation to persons who have suffered
damage caused by accidental pollution of transboundary inland waters, countries should, incer alia, consider
the establishment of compensation funds. Such funds might be established to deal with cases in which
damage remains wholly or partly uncompensated.

Countries of incident should ensure that any person who has suffered damage resulting from accidental
pollution or is exposed to a significant risk of accidental pollution of transboundary inland waters, receive
treatment at least equivalent to that afforded in the country of incident in comparable domestic
circumstances, to persons of equivalent condition or status.

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 UNIT – IV

TREATIES

The law of treaties is governed primarily by the Vienna Convention on the Law of
Treaties which was brought to force on the 27th day of January, 1980. This document was legislated by the
International Law Commission of the UN for setting up guidelines on the manner of operation of treaties.
Majority of the member states of the United Nations have become a party to this Convention.

Treaties are the principal source of Public International Law. The Vienna Convention on the Law of Treaties
defines a ‘treaty’ as ‘an international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation’ (Article 2(1)(a)).

Concept of Treaty : Article 2(1)(a) of the Vienna Convention defines treaty as “means an international
agreement concluded between States in written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments and whatever its particular designation.”. Hence,
treaties are essentially agreements entered into through writing between parties to agree to a set of principles
regarding any matter which affects internationally. These are referred to as pacts and charters too. Mere
statements, declarations and stances made do not qualify as a treaty.

Treaties may be classified on basis of their objects, purpose or number of parties. There may be political
treaties defining a party’s allies or disarmament policies, administrative treaties with the purpose of
establishing and defining the functions of international organisations, for example, the World Health
Organisation. Commercial treaties regarding trade agreements such as the such as the GATT, criminal
treaties, human rights treaties, treaties which even codify international law, and civil treaties are some of
the classifications based on the object.

Generally, unless a country ratifies a treaty or becomes a signatory, there is no legal obligation of abiding by
the treaty terms. This concept has been referred to by the Latin maxim, “pacta sunt servanda” which states
that every signatory is bound to follow the treaty obligations in good faith. Pacta sunt servanda forms the
basis of treaty law which is recognised under Article 26 of the Convention.

Role of treaties in International Law : Treaties are the essential source of international law. They are
quintessential for establishing diplomacy among member states and laying down ground rules of conduct.
They foster international peace, security and cooperation. The importance of treaties is also ascertainable
through the Preamble of the Vienna Convention of Law of Treaties by also ascertainable through the

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Preamble of the Vienna Convention of Law of Treaties by vesting the guarantee of international order as the
function of treaties.

A treaty is an agreement between sovereign States (countries) and in some cases international organisations,
which is binding at international law. An agreement between an Australian State or Territory and a foreign
Government will not, therefore, be a treaty. An agreement between two or more States will not be a treaty
unless those countries intend the document to be binding at international law.

Features of Treaties: Main features of treaties derived from the definition-

a) Treaties are written documents which means the verbal agreements are not liable.
b) Negotiation points or agreements should be clearly described and signed by the
states/nations involved.
c) Treaties are regulated by international laws and regulations and bound states with legal
obligations.
d) It might be composed of one or two legal instruments to describe the terms of
agreements in an unambiguous manner.

Process of Treaty Formation: The treaty formation has the following steps:

1. Drafting and Negotiation: It is the first step of the treaty formation. The representatives of the state
present their points/terms for the agreement. Representatives of the state can be government officials or
diplomats; they hold the power of negotiation on behalf of the state. The parties of the treaty agreement find
the common areas for negotiation. It is a complex process and takes many rounds of discussion before
reaching the common negotiable terms.

2. Expressing consent: Taking the consent on the drafted negotiation document is an important step. It
obligated states to follow the rule commonly decided by the states. VCLT gave two kinds of consent
processes under article 9 and article 11.

Article 9 – Article 9 deals with the consent of the majority. This process is more suitable for multilateral
treaties or global conventions. In this process, the treaty is adopted when two-thirds or a majority of the state
representative vote agrees on it.

Article 11- The treaty applies to the exchange of signatures between parties. It includes the exchange of
signature, treaty, or instrument of exchange.

3. Ratification: When the states accept the treaty, ratification comes into the picture. Ratification means the
treaty is effective in the concerned states and states need to create some legal rights and obligations. Article
14 of VCLT deals with the ratification of the treaty.

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4. Reservation: Term reservation refers to the exclusion of some areas of the treaty. According to the
VCLT, the reservation is defined as: “Reservation is a unilateral statement, however, phrased or named,
made by a State when signing, ratifying, or acceding to a treaty, whereby it purports to exclude or to modify
the legal effect of specific provisions of the treaty in their application to that state.

Reservation gives liberty to the states to demand some exclusion for the benefit of their states. The
reservation can only be asked before the signing or ratification.

Termination of Treaties : Treaties can be declared invalid in case of fraud, errors, and corruption of state
representatives. Treaties can be terminated on various grounds:

a) The termination of the treaty by consent. Parties can consult at any point and mutually terminate the
treaties.
b) The parties can withdraw their participation from the agreement.
c) Treaty can be terminated based on the material beach; if one part of the bilateral treaty violates the
agreement’s provision, the other party can terminate the agreement.
d) If the fundamental nature of the treaty gets changed, the treaty can be terminated.
e) The Vienna Convention on the Law of Treaties (1969) (‘VCLT’) defined the ground of termination
in part V of the VLCT in section 3. The comprehensive description of various grounds is explained
in article 60.

Kinds of treaty : The different Kinds of treaty are as follows :

1.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.

2. 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, 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. All treaties have
different purposes. Some set up international organizations through the UN charter, whereas others deal with
issues such as visa regulations.

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3. Regional treaties: A regional treaty is a type of international agreement that can refer to a variety of
agreements, Rules with a regional scope, Any rule that applies to a specific region including:

a) Regional trading agreements: These treaties are signed by multiple countries to promote the free
movement of goods and services between the member countries. They also include internal rules that
the member countries must follow.
b) Regional human rights treaties: These treaties are a source of international law that protect human
rights.
c) Regional integration schemes: These schemes are based on constitutional framework treaties.

4. Dispositive treaties : A dispositive treaty is an agreement between countries that gives one country the
right to control a territory in a special way. This includes the ability to create, transfer, or recognize
permanent rights to the territory. These rights can then continue to exist independently of the treaty that
created them.

Some examples of dispositive treaties are :

a) Boundary treaties: These treaties deal with territorial rights.

b) Treaties that impose servitudes on territory: These treaties deal with territorial rights.
c) Mandates: For example, a mandate that gave South Africa the power to govern Namibia.

Dispositive treaties generates a type of rights for individuals that are different from the rights acquired under
the other general type of treaty. These rights are not in their origin necessarily rights in rem but are like them
due to the fact that they are characterized by an objective existence that enables them to survive even when
the treaty which generated them became extinct.

5. Non-binding treaty: A non-binding treaty is a written agreement that doesn't create legally binding
obligations under international law. Non-binding agreements can have political or moral weight and are
often used to establish political commitments. Here are some examples of non-binding agreements:

a) Declarations: Statements of policy

b) Formal agreements: Precise commitments
c) Gentlemen's agreements: Non-legally enforceable agreements that are secured by good faith and
honor.

Case Studies

Free Zone Case : `In 1932, the Permanent Court of International Justice (PCIJ) gave the judgment of conflict
between Switzerland and France over a territorial dispute. In Free Zone Case, Switzerland, a third party,
enjoyed since 1815 the benefit of a free customs zone in Upper Savoy and Gex district of France in

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accordance with a stipulation made in her favor by certain multipartite treaties to which France was a party.
Switzerland, though not a party, accepted those benefits. According to Article 435 of the Treaty of
Versailles free zone were inconsistent with rules of treaty and France and Switzerland had to come to an
agreement with regard to the free zones. France wanted to abolish the free zones. The matter was to be
settled in the court of PCIJ.

The court did not abolish the free zones and held that Switzerland was not a party to the Treaty of Versailles
hence it can’t be bound by the same. The creation of the free zone form part of an agreement to which
France was party to with other states, which was in favor of Switzerland. The agreement made a stipulation
in favor of Switzerland. It was held that she could not be deprived of that right without her consent.

Panama Canal Case

Hay-Pauncefote Treaty 1901: The treaties governing the Panama Canal give third states the right of usage of
the canal under the condition of conforming to rules governing the Canal, taking this interpretation of the
treaties, we can say in case of Panama canal Article 36 para 1 and para 2 of VCLT are applicable. The Hay-
Pauncefote Treaty was concluded between the United States of America and the United Kingdom, it was
clear in the treaty that both the countries were unwilling to give or provide any rights to the third states.
Although the treaty didn’t have any adherence provision it did state that the canal shall remain open and free
to all vessels observing the rules laid down by the treaty. The Panama Treaty signed between the United
States and Panama in 1977 established a framework for the operation of the canal until 31 December 1999.

Panama Treaty 1977: The Panama Treaty of 1977 abrogated the 1901 Treaty, and gave Panama
Sovereignty over the canal, and also gave the United States the right to manage, operate, maintain, improve,
protect and defend the canal until the year 2000. The second treaty was the Treaty concerning the Permanent
Neutrality and Operation of the Panama Canal. Article 1 of the treaty declared that “the Canal, as an
international waterway, shall be permanently neutral in accordance with the regime established in this
Treaty. The treaty required all the vessels to adhere to the rules and regulations laid down by the treaty,
further after 2000, the treaty gave the republic of Panama exclusive rights over theoperation of the canal.

Article 7 of the treaty proposes that the United States and Panama “shall jointly sponsor a resolution in the
organization of American States opening to accession by all States of the world the Protocol to this Treaty
whereby all the signatories will adhere to the objectives of this treaty, agreeing to respect the regime of
neutrality set forth herein.” This Protocol is open to accession by an international community to recognize as
widely as possible neutrality of the Canal. It may be observed that there were no reactions from third states
as to the neutrality treaty and the Protocol.

Law creating: International law is created through a variety of sources, including treaties, custom, and
general principles:
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 a) Treaties: Legally binding agreements between states that are the most common way to
create new international law. Some examples of treaties include the Convention on the
Prevention and Punishment of the Crime of Genocide (1948) and the Convention on the
Rights of the Child (1989).
b) Customary international law: Based on the regularity of a practice, this was the main
source of international law until the middle of the 20th century.
c) General principles: The general principles of law recognized by civilized nations.
d) Resolutions: Resolutions from the UN and other international organizations.
e) Maritime Organization (IMO): Technical rules and standards from the IMO are also a source of
international law.

The position in India: Prior to the commencement of the Constitution, India did not enjoy full external
sovereignty, "the implementation of treaties and agreements with other countries" was a federal subject
under Item 3 of List I of Schedule VII under the Government of India Act, 1935, although this power was
restricted by Section 106 of the Act which laid down that in the exercise of the above power, the Federal
legislature could not make any law for any Province or Federal State without the consent of the Governor.

The above deficiency has been made good by the wide use of words used in Article 253 of the Constitution
of India. The wordings of Article 253 and Entries 13 to 14 of Union. List may be read together:

"13. Participation in international conferences, associations and other bodies and implementing of decisions
made thereat.

14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements
and conventions with foreign countries."

Article 253 is in conformity with the object of "fostering respect for international law, and treaty obligations
in the dealings of organised people with one another". By the inclusion of Entries 13 and 14 in List I
(Schedule VII) treaty making and implementation of treaties, etc., has been made a subject of Union
Legislation. But it would have been difficult for the Union to implement its obligations under treaties or
other international agreements, had it not been competent to legislate with respect to State subjects insofar as

India is a country having a union of states, but the States do not have the power to leave the country. Article
246 of the Constitution distributes the legislative powers between the Central and the State Government.
Under Article 246(1), it has been enumerated that the Central Government has the power to legislate on the
entries of List I in the 7th Schedule. Some of the matters in the Central list include all matters where there is
an involvement of relation between Union and a foreign country, treaties, agreements with foreign countries,
matters relating to foreign jurisdiction (Entries 13,14,15,16) etc. The State Government has the power to
make laws on the entries mentioned in List II of 7 th Schedule. The power to make laws on the entries
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mentioned in List III (Concurrent List) of the schedule is conferred on both Central and State Government.
If a subject matter is missing from the lists, then the Parliament has the power to legislate on the matter.

The entries (10-21) of List I provides the Central legislature with the power of enacting laws in the matter of
foreign affairs. Entry 14 of the Union list (List II) has enumerated that the Central legislature has power.
Under Article 253 of Indian Constitution, the Parliament has the power to legislate any law relating to an
international treaty or an agreement.

The Parliament also has power to enact laws for implementation of international treaty or agreement even if
the subject matter of the treaty or agreement is in List II. Even if the subject matter of the treaty is in the
State list, even then the enactment for implementation of such a treaty can be done by the Parliament. This
means that Article 253 overrides the provision of Article 246(2).

Thus, there shall be no conflict between the State and the Centre regarding foreign affairs as it is clearly
separated. The Parliament has been elected by the people and therefore, it is left on the representatives of the
people to decide if a particular treaty is good or bad for the country. However, there is no proper procedure
as to how to enter good or bad for the country. However, there is no proper procedure as to how to enter into
a treaty. Under Article 73 of the Constitution, the Government of India has the executive power to exercise
rights and duties by virtue of treaty and agreement. In addition to it, the Government takes the advantage of
this provision and enters into treaties without referring it to the Parliament.

In the U.S treaty is the supreme law of the land. However, in India even after the treaty has been entered into
by the Government legislation is required for the implementation of the treaty.

Ministry for immigration and ethnic affairs v. TEOH– this is a case of Australia which specifically stated
that the treaty can only be a part of law if there is a domestic law relating to it.

India is a quasi-federal country who has incorporated the benefits of federalism and changed certain aspects
of it which reduced flexibility. India follows a system where the power of the Centre is more than the power
of the State legislature.

Treaty or an agreement between countries are very essential in today’s world. The executive has the
exclusive power to enter into a treaty. But the States would be at a disadvantageous position if they do not
even have a say on the treaties which revolve around the State Legislature’s subject matter. However, the
laws relating to them should be clearly defined along with the procedure to be followed.

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 Essential of treaty with Special Reference to Jus cogens

Jus cogens, also known as the peremptory norm, is a fundamental and overriding principle of international
law. It is a Latin phrase that translates to ‘compelling law’. It is absolute in nature which means that there
can be no defense for the commission of any act that is prohibited by jus cogens. These norms, though
limited, are not cataloged. They are derived from changing social, political attitudes and major case laws and
are not defined by any authoritative body.

Jus cogens or peremptory norm means a body of fundamental principles of international law which binds all
states and does not allow any exceptions. It is basically a compilation of norms that lays down the
international obligations which are essential for the protection of the fundamental interest of the
international community and any violation of these norms is thereby recognized as a crime against the
community as a whole.

It is binding upon all the members of the international community in all circumstances. Jus cogens imply
absolute restrictions on genocide, slavery or slave trade, torture or other inhuman treatment, prolonged
arbitrary detention, and racial discrimination. Any activity or treaty carried out by the states or international
organizations that contradict human dignity and rights will offend the concept of jus cogens and thus, be
void. It can be said that jus cogens exist to protect and uphold human dignity and rights.

Article 2(6) & 53 of the Vienna Convention: Article 2(6) of the Vienna convention deals with the
definition of a ‘contracting state’. It mentions that ‘contracting state’ means that a state has consented to be
bound by the treaty, whether or not the treaty has entered into force. It is in regard to the non-parties of the
UN and states that they shall act in accordance with the principles so far as may be necessary for the
maintenance of international peace and security. It is a mandatory provision and has set a limit, determined
by the general interest of the international community.

Article 53 of the Vienna convention is the origin of the principle of jus cogens. It states that a treaty is void
if, at the time of its conclusion, it conflicts with the peremptory norm of general international law. The norm
should be accepted and recognized by the international community of states as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of international law having
the same character.

Additionally, Article 64 of the Vienna Convention states that the emergence of a new peremptory norm will
prevail over a treaty in conflict. Traditional investigations of the relevant means for the determination of law
have left plenty of examples of norms alleged to have attained a jus cogens status as follows:

 The prohibition of widespread rape.

 The prohibition of rape in international humanitarian law.

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  The prohibition of racial discrimination.
 The prohibition of torture and cruel, inhuman or degrading punishment or treatment.
 The prohibition of apartheid.
 The obligation of states not to encourage or condone genocide.
 The basic rules of international humanitarian law applicable in armed conflict.
 The fundamental principle of equality and nondiscrimination.
 The principle of equality before the law, equal protection before the law and nondiscrimination.
 The prohibition of forced disappearance of persons and the corresponding obligation to
investigate and punish those responsible.
 The principle of the freedom of the high seas.
 The principle of good faith.
 The pacta sunt servanda rule.
 Most norms of international humanitarian law.
 Basic human rights.

Therefore, Article 38 of the Statute of the International Court of Justice must be read together with these two
Articles of the Vienna Convention to gather a complete understanding of the sources of public international
law. These compelling laws, or peremptory norms, are considered to be of such importance that States may
not derogate from them via treaty or customary international law norms.

In Roper v. Simmons, the United States has subsequently banned the execution of juvenile offenders.
Although not necessarily in response to the above non-binding report, the Supreme Court cited evolving
international norms as one of the reasons for the ban.

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 MAKING Of TREATY

There is no set procedure to be followed in the creation of a treaty. However, every treaty must have a
Preamble which gives the background object of the treaty, followed by the subject matter of the treat. The
time period for which the treaty is formulated, the reservations, ratification, amendment procedures must be
laid out. Finally, the ratification and signatures of parties are incorporated. The steps primarily involved in
the formation of a treaty are as follows:

Adoption: Unconditional consent except in form of reservations is essential for adoption of the text of a
treaty. If the adoption is required internationally, at least two thirds majority is required for adoption.

 The representatives of the states sign the treaty text when signature is enough to imply consent
according to the treaty.

 Consent by exchange of instruments required by the treaty

 Instruments which are equivalent to expression of consent may be exchanged among parties.

 Consent by ratification, acceptance or approval

Authentication: According to the procedures laid down in the treaty itself, the text is made authentic. If no
such procedure is provided, the signatures of the parties may be deemed to be a reflection of the authenticity.

Consent is expressed: Consent is expressed through signatures, ratification, acceptance, approval or

accession or by exchanging instruments required for the treaty.

 Consent by signature

 Ratification is a reflection of acceptance or approval.

 Consent expressed by accession

The difference between ratification and accession is that, ratification primarily occurs until the minimum
number of signatories required to give force to the treaty. All parties who sign the treaty after the minimum
number is achieved are parties by way of accession.

 Formulation of reservations

 While becoming a signatory, a party may provide reservations, if any.

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 Invalidity of treaty

Part V, Section 2 of the Vienna Convention on The Law of Treaties, 1969, deals with the invalidity of
treaties. Articles 46-53 provides for the procedure to be followed for invalidating a treaty. Invalidity
essentially means to make a treaty void.

Treaties may be called for invalidation if its consent has been obtained by the fraudulent acts of a party
member, or by corruption of its legal representatives, or if such representatives have been coerced on basis
on lack of free consent.

Jus cogens are “peremptory norm of general international law” such as piracy, genocide, apartheid, torture
etc. If a treaty is in contravention of any of these laws, it can be rendered invalid.

Termination of treaty

1. Termination by means of Withdrawal : International law is based on the foundation of consent of the
parties. It is in respect of this that treaties have provisions for withdrawal. If the number of signatories falls
below the prescribed number due to withdrawal, a treaty stands terminated.

Article 56 deals with withdrawal of treaties which do not have termination or withdrawal clause. However,
certain treaties do not allow for withdrawal owing to their nature. It is for this reason that North Korea was
denied withdrawal from the International Covenant on Civil and Political Rights.

2. Suspension and Termination

 Implied by the conclusion of a later treaty- If a new treaty has been drafted dealing with the same
subject matter as a previous one, then upon the conclusion and ratification of the new treaty, the old
one is deemed to be suspended.

 As a consequence of its breach- Usually among bilateral treaties, if one party commits a breach of
the provisions then the entire treaty can be terminated or suspended at the discretion of the other
parties.

 Impossibility of performance-When the carrying out of the provisions becomes impossible for any
reason, then the treaty can be terminated. If the impossibility if for a specific duration of time, then
the treaty may be suspended for that time period

 Fundamental change of circumstances- This is akin to force majeure clauses, where due to
unforeseen, uncontrolled events, the provisions of the treaty can only be carried out with great
impediment.

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 Changes in diplomatic or consular relations- Hostile elations and change in diplomatic relations
by themselves cannot lead to suspension or termination unless the treaty specifically provides for
such a clause.

 New jus cogens-Jus cogens are internationally recognized principles. If there exists new jus cogens,
then the treaties which are in violation of such a new jus cogen may be terminated.

Conclusion: The Vienna Convention on the Law of Treaties is the principal piece of international
document which provides the basics of all other treaties. Pacta sunt servanda is the principal maxim
which governs it and enforces obligations on signatories of all treaties. This Convention which provides
basis of formation, ratification, amendment, and termination of treaties is of primary importance as
treaties form the most fundamental source of international law.

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 Nationality

All the State’s and even the International Bodies have laid down certain provisions on how someone can
acquire the nationality of any country. Nationality is acquired most commonly on these grounds:

1.Nationality by Birth: Being born in a country qualifies you to be a national of the respective country.
This is usually referred to as Jus Soli. It is a Latin term, its literal translation is “right of soil”.

The states which follow the principle of jus soli, allow the individual to acquire the citizenship of that
particular state on the virtue of being born on the state’s territory. This is provided despite the citizenship or
the immigration status of the respective individual’s parents.

2.By descent from a State’s National: This is known as the principle of Jus Sanguinis. It is derived from a
Latin term. It literally translates to “Right of Blood”. It means that the citizenship of the parent is the pre-
determinant of the child’s citizenship.

The countries which follow this principle provide citizenship on the basis of birth provided that the
individual’s parents were legally settled citizens of the respective country. This ensures that the citizenship
passes from the parent to the child.

3.By Naturalization: The process by which a foreign citizen becomes eligible to acquire the nationality or
citizenship of any country. It usually requires the individual seeking the same to fulfil certain requirements
and perform certain protocols to be eligible for the same.

The rules and protocols for naturalization vary from country to country. The most common element can be
the requirement of a promise to obey and uphold the country’s law and respect the constitution.

Nationality by Marriage: Individuals need not keep renewing their visa and burning a hole into their
pockets for the sake of love. Foreign individuals have the opportunity to be a permanent citizen of the state
where your significant other might be. This is known as a citizenship marriage.

The Hague Convention on Conflict of Nationality Laws (1930) laid down certain provisions regarding
nationality by marriage. Chapter 3 of the same talks about the Nationality of married women. The main
articles of these laws are:

 Article 8: On the occasion of marriage, if the wife’s national laws cause her to lose her nationality,
the consequence of the responsibility completely befalls upon the wife to acquire the nationality of
the husband.

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  Article 9: If the national laws require her to lose her nationality when she acquires the nationality of
her husband through marriage. The consequence of the act shall be on the condition of her acquiring
her husband’s new nationality.

 Article 10: If the situation where a husband is naturalized, the change in the wife’s nationality is not
possible until and unless without her full consent.

 Article 11: In case of marriage dissolution, the wife shall be ineligible to recover her previous
nationality. She can only do so in accordance with the respective country’s laws. If the wife is
successful in regaining her previous nationality, then the nationality acquired by virtue of marriage
shall be deemed void.

Nationality by Adoption: This is also referred to as intercountry or transnational adoption. This is very
similar to any normal adoption procedure, just in an international context. By the virtue of this measure, an
individual or a couple can be deemed legal parents of a child belonging to a foreign nation.

There are certain protocols to be followed before this can be granted. The individual or couple will have to
be eligible. The eligibility criteria for the child are:

 The parents (either Couple or individual) must be permanent citizens of a state, either by birth or via
naturalization.

 The child must be under 18 years of age.

 The child must be a permanent citizen of the state from where he is being adopted.

 The child must be under the legal custody of some guardian in his/her state.

Nationality by Cessation: The literal meaning of cessation is the process of ending or bringing to an end.
When we talk about nationality by cessation, we refer to the cessation clauses which were expressed in
the conference of Plenipotentiaries held in 1951. This conference laid that an individual must not be
provided refugee status any longer than it is absolutely required. This had to come to a halt in accordance
with the terms and conditions of the statues.

The cessation of refugee status thus comes into play when the refugees have successfully availed the
protection of their country of origin or any other country of which they are nationals of now. Article 1F of
the convention addresses these conditions in which an individual is no longer eligible to enjoy the benefits
of refugee protection.

Loss of Nationality: Also known as loss of citizenship, this refers to the situation wherein a citizen stops or
ceases to be a lawful citizen of the country. This term is an umbrella shelter for both:

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Voluntary loss of citizenship: Means relinquishing one’s nationality. The prime focus here is on the
voluntary part. Almost all the countries have set-up their own set of rules for the formal relinquishment of
their citizenship. There are countries which do not allow that as well, they tend to trap their nationals in an
endless loop of administrative red-tapism.

Involuntary loss of citizenship: States have certain provisions regarding nationality. If a citizen fails to
adhere to these then his/her citizenship can be cancelled. It can happen due to a lot of things like someone
failing to retain their citizenship. However involuntarily losing one’s citizenship, is not immediate, it has to
undergo a series of actions to revoke someone’s citizenship.

Indian Citizenship Act on the loss of Nationality

 Section 10 of the Citizenship Act, 1955 talks about the deprivation of citizenship.

 This article states that any Indian citizen by naturalisation or by the virtue of Article 5 of the
Constitution or by registration under any other circumstances other than clause (b).

Following the provisions laid down under this section, the Central Government is authorised to deprive an
Indian national of his citizenship, if the following conditions apply:

1. When the nationalisation or the registration certificates were obtained by unlawful means- fraud,
false representation, hiding any piece of evidence related to these.

2. That citizen by means of his expression is proven to be disloyal towards the spirit of the Indian
Constitution and the established laws itself.

3. If a citizen, during a war, tried or tries to or unlawfully communicate with an enemy or was by any
means related to them.

4. Associated in any business or under his senses assisted an enemy.

5. If within five years of the period after naturalisation, the individual had been sentenced for a period
of at least two years.

6. The citizen has been a foreign Indian National, for a continuous period of seven years. If during that
period, he was not enrolled as a student with any educational institution or a part of Government
service in an International Organisation.

7. The Centre shall not deprive any individual of citizenship until and unless they are confirmed that
this is conducive for the Public good.

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 8. Before an order is passed under this section, it is mandatory for the government to inform the person
against whom the order is passed. This must be in writing. If the order falls under the jurisdiction of
sub-section (2). Then this case has to be referred to a committee of Inquiry under this section.

9. The Central Government must refer this case to the Committee of Inquiry, which must have a
chairman (a person who has held a judicial office for at least a decade) in collaboration with two
other members appointed by the Central Government.

10. The Inquiry Committee must submit its report to the Central Government. The further orders shall be
guided by such reports as it was ordered under this section.

By Expatriation: An expatriate refers to a person who is residing in any other country rather than his
native country. Expatriation is a voluntary right which a citizen of a country can exercise on the basis of his
discretion if required. It means renouncing the nationality and allegiance of a country without any
constitutional consequences.

Generally, this term refers to the professional and skilled working-class (for private entities or government
organisations) or even artisans who work outside their homeland.

The main theme here is that it is voluntary, and the decision rests on the conscience of the citizen.

Renunciation of Nationality: Renunciation refers to the voluntary act by virtue of which an individual can
relinquish one’s nationality. It simply means to give up. Most countries do provide their citizens with this
right.

There can be a lot of reasons for people to renounce their citizenship.

The most common reasons are as follows:

 People might dislike their country’s laws. The field of law is humongous and so is the world
population. Although the jurists try their best, there is still some gap, it is always not possible to
appease all the sections of society. Thus there can be sections of people unhappy with some laws.

 There can be personal reasons as well as political ideology clashes. The respective countries might
be engaged in a war.

 Taxation laws of a country can be a big reason. If the taxation system extracts too much from its
people, the citizens might want to renounce their citizenship. One of the most popular examples of
this is the wide discontent amongst the U.S citizens for their tax laws.

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Loss of nationality by Substitution : Some states have the provision of providing and taking away the
nationality on the basis of substitution. This happens when an individual loses the nationality of one state
(his nation) and is able to attain the citizenship of another state.

Different states have different protocols. Some states will cancel your citizenship if you acquire a job in a
foreign nation without following government sanctions.

Loss of nationality by Expiration: This does not exactly refer to the loss of nationality, because it is more
emotional rather than political. Your citizenship might expire when you stay in a foreign nation for too long.

The concept of Double Nationality or Dual Nationality

When more than one country regards an individual as its citizen, it is called dual citizenship. Dual
citizenship occurs because different countries have set-up varied methods for granting citizenship.

A person who holds dual citizenship generally enjoys the rights of citizenship of both countries. These rights
can be:

 Right to hold passports.

 Right to vote.

 Right to residence.

 Right to work.

 Right to enter the country, etc.

The person is not just entitled to enjoy the rights, he is obliged to conduct certain duties like:

 National civil service.

 Subject to the taxation system of the country, etc.

Pros and Cons of Dual Citizenship: Dual citizenship is a complex concept and has many provisions. If
there are many rights and powers to be enjoyed, there can be many setbacks as well.

The pros of dual nationality

 The benefits: Dual citizenship can provide a citizen with certain benefits. It depends upon the laws of
the nation-states. They get to vote, they get to be a part of multiple social service programmes,
eligible to hold multiple offices in both states.

 Multiple Passports: The process of getting your passport can be a long and tedious task, full of
multiple runs to the passport office and lots of red-tapisms. Thus marking this benefit as the most
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 important one. This lets the traveller evade questions related to the purpose of the trip, reasons for a
long-stay. This can be very beneficial for frequent flyers, businessmen and students.

 Property Ownership: You can hold estates thus opening multiple alternate earning sources which can
be financially beneficial.

 Political Security: In case of a violent break out in one of the countries, you still have a back-up
option to rely on. You can rush to this safe-house with your family for their safekeeping.

 Healthcare Benefits: Some countries have excellent medical facilities in addition to insurance
facilities being amongst the other perks. Thus you and your family stand at an advantage.

The cons of dual nationality

 Taxation laws might be a problem: usually if you have multiple citizenships, you are entitled to pay
taxes to both the countries. This might increase your expenses by tonnes.

 Scepticism issues: you might face trouble in the run for the post of a political office. In some
instances, you might be asked to forfeit your dual citizenship, in order to attain the office.

 It can be very expensive: in some nations, the price of the passports can be very costly, thus burning
a hole in your pocket.

 Security issues: the governments of some nations are afraid of the maybe consequences of dual
nationality. They fear that it can possibly change the majority of a nation and thus having the
potential to shift the political environment of a nation.

 Might not be allowed: many countries support dual nationality, many are against it. The countries
you want to be a citizen of can be of contradicting views. There is even a bigger risk that, if your
nation is against dual nationality, it might even revoke your nationality in the due process of your
application of nationality for some other country.

 It is a time-taking process: usually processes like these involve a lot of paperwork and undertake a
lot of time. All of these processes can be very frustrating for the applicant and he/she might even
give up the idea unless it is very necessary or in worst cases indulge themselves in illegal activities to
attain their means.

The Nottebohm Case (Liechtenstein v. Guatemala)

 Brief Summary: After World War II broke, Nottebohn, a citizen of Guatemala, in Germany for over
three decades applied for Liechtenstein citizenship.

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  Facts: Nottebohn, a natural citizen of Guatemala, in Germany for 34 years, also had business ties
with the state. After the outbreak of World War II applied for Liechtenstein citizenship, even though
he had no ties with it. The application was approved by Liechtenstein but it was to be waived off
after three years.

After this approval, Nottebohn travelled to Liechtenstein. Upon his return, he was denied entry because he
ceased being a German citizen. His Liechtenstein was not honoured, collaterally causing Liechtenstein to
file a suit in the International Court to force Guatemala to recognise Nottebohm as one of its nationals.

Guatemala challenged the validity of Nottebohm’s citizenship and the right of Liechtenstein to file a suit on
the accused grounds.

 Issues: Can nationality be disregarded by other states in cases where it is clear that it was a mere
device. The nationality that is provided to an individual has to be the concern of the conferring
nation?

 The judgement: It was held by the honourable Court that the issues regarding citizenship are the
sole concern of the nation which grants it. This is supposed to be generally accepted. However, this
also does not imply that other states do have to unquestioningly accept the granting state’s
designations. As in this particular case, there exists no relationship between Liechtenstein and
Nottebohm, thus the change of nationality here was merely an act guided by the fear of war. Thus,
under these circumstances, Guatemala was not obliged to recognize it.

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 EXTRADITION

The word extradition has derived from two Latin words ex and traditum. It may mean ‘delivery of
criminals’, ‘surrender of fugitives’ or ‘handover of fugitives’. Extradition may be defined as surrender of an
accused or a convicted person by the State on whose territory he is found to the State on whose territory he
is alleged to have committed, or to have been convicted of a crime.

According to Oppenheim, extradition is the delivery of an accused or a convicted individual to the State
where he is accused of, a crime, by the State on whose territory he happens for the time being.

In extradition, two States are involved. Firstly, the territorial State, i.e., a State where an accused or a convict
is found and secondly, the requesting State, i.e., a State where the crime has been committed. A State which
demands for the surrender is known as requesting State because a person is surrendered by the territorial
State only upon a request by another State. Request is made normally by diplomatic channel.

PURPOSE OF EXTRADITION: It is a process towards the suppression of crime. Normally a person

cannot be punished or prosecuted in a State where he has fled away because of lack of jurisdiction or
because of some technical rules of criminal law. Criminals are extradited so that their crimes may not go
unpunished. Extradition acts as a warning to the criminals that they cannot escape punishment by fleeing to
another State. Extradition therefore has a deterrent effect. Criminals are surrendered as it safeguards the
interest of the territorial State. If a particular State adopts a policy of non-extradition of criminals they would
like to flee to that State only. The State therefore would become a place for international criminals, which
indeed would be dangerous for it, because they may again commit a crime there, if they would be left there.
Extradition is based on reciprocity. A State which is requested to surrender the criminal today may have
request for extradition of a criminal on some future date. Extradition is done because it is a step towards the
achievement of international co-operation in solving international problems of a social character. The State
on whose territory the crime has been committed is in a better position to try the offender because the
evidence is more freely available in that State only.

LAW OF EXTRADITION: In IL, rules regarding extradition are not well established mainly because
extradition is a topic which does not come exclusively under the domain of International law. Law of
extradition is dual law . It has operation – national as well as international.

Extradition or non-extradition of a person is determined by the municipal courts of a State, but at the same
time it is also a part of International Law because of the involvement of two States and also because of the
implementation of the international commitment of the State. Many attempts for the conclusion of a
multilateral treaty have been made by the States in this regard, but they all failed in their attempts in laying
down a general rule regarding extradition. In India, rules regarding extradition have been made in the

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Extradition Act of 1962. Extradition is done only when the conditions laid down in the act are satisfied.
Similarly, other States also have extradition laws.

DIFFERENT PRINCIPLES OF EXTRADITION: Bilateral treaties, national laws of several States, and
the judicial decisions of municipal courts led to develop certain principles regarding extradition which are
deemed as general rules of International Law. Important amongst them are as follows:

EXTRADITION TREATIES : First and foremost important condition between territorial State and
requesting State and it is desirable that States conclude extradition treaties to suppress the crime.It provides
assistance to States interested in negotiating and concluding bilateral extradition agreements, G.A. on
December 14, 1990 adopted a Model Treaty on Extradition by adopting a resolution.

It invited member States to take into account the Model Treaty on Extradition at the time of concluding
extradition treaties or when they wish to revise the existing extradition treaty relations. when an offender is
returned to another State in the absence of an extradition treaty, the act is called deporation. A person is
deported on the basis of reciprocity. To deport an alien to a specified State has much the same effect as
extraditing him to that State.

EXTRADITION OF POLITICAL OFFENDERS: It is a customary rule of International Law that

political offenders are not extradited. They are granted Asylum by the territorial State. During the days of
monarchs, the extradition of political offenders was very common. They used to prefer extradition so as to
avoid intervention in the affairs of another State. The practice underwent a complete change with the
beginning of the French Revolution. For the first time, French constitution of 1793 under Article 120 made a
provision for granting asylum to those foreigners who exiled from their home country for the cause of
liberty. Other States followed the principle of non-extradition of the political offenders gradually.

Indian Extradition Act, 1962 also lays down a similar provision under Section 31(a). Non-extradition of
political offenders has become a general rule of IL and it is therefore one of the exceptions of extradition.

DOCTRINE OF DOUBLE CRIMINALITY: It denotes a crime must be an offence recognized in the

territorial as well as in the requesting State. No person is extradited unless this condition is fulfilled. The
doctrine is based on the consideration that it would offend the conscience of the territorial State if it has to
extradite a person when its own law does not regard him as a criminal. The requesting State would also not
ask for the surrender of a person for those crimes which are not recognized in its State. In order to ensure
that a crime is recognized in both the States, a list of extraditable offences is attached in the extradition laws
of some States. Generally a list of crimes is embodied in the treaties for which extradition is done. When a
treaty is concluded with any State, a list is attached therein for the extraditable offence. Extradition is
therefore limited to such offences only. An extradition offence is committed when the conduct of the person

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whose extradition is sought constitutes an offence punishable by the laws of both contracting States by a
term of imprisonment for a period of more than one year.

In case of offences punishable by death in the requesting State but not in the territorial State, extradition
treaties generally provide that extradition shall be granted only when the requesting State gives an assurance
that the death penalty shall, if imposed, not be executed.

RULE OF SPECIALITY: According to this principle, a fugitive is tried by the requesting State only for
that offence for which he has been extradited. The requesting State is under a duty not to try to punish the
fugitive criminal for any other offence than that for which he has been extradited, unless he has given an
opportunity to return to the territorial State. The rule has been made to provide safeguard to the fugitives
against fraudulent extradition. The rule of speciality is incorporated generally in the extradition law of a
State. The Indian Extradition Act of 1962 has incorporated this principle under Section 31(a).

Case law: United States vs. Rauscher (1886) 119 US 407

Facts:mThe case arose when a man named Rauscher was arrested in the United States based on a request for
extradition from Great Britain. Rauscher was wanted for a crime committed in British jurisdiction. The
relevant treaty between the United States and Great Britain stipulated that extradition could only occur for
specific crimes, and the crime for which Rauscher was wanted was not listed in that treaty.

Rauscher challenged his extradition on the grounds that the crime he was accused of did not fall within the
categories specified in the extradition treaty. He argued that his rights were being violated because the
treaty's terms were not being followed.

Judgment: The Supreme Court, in a unanimous decision, ruled in favor of Rauscher. The Court held that
extradition could not be granted unless the crime for which the accused was sought was explicitly mentioned
in the treaty. The Court emphasized the importance of adhering to the clear terms of international treaties
and recognized that the rights of individuals should be protected against wrongful extradition.

The decision affirmed that treaties must be interpreted strictly, and any ambiguity or lack of clarity would
result in favor of the accused. This ruling reinforced the principle that individuals could not be extradited for
crimes that were not specifically enumerated in the relevant treaty.

PRIMA FACIE EVIDENCE: There should be a prima facie evidence of the guilt of the accused. Before a
person is extradited, the territorial State must satisfy itself that there is a prima facie evidence against the
accused for which extradition is demanded. The purpose for laying down the rule of prima facie evidence is
to check the fraudulent extradition.The territorial State has to see that the demand is not motivated by any
political reasons.The requirement of prima facie evidence is laid down in the national legislation of a State.
Indian Extradition Act provides this requirement under Section 7(4).
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TIME-BARRED CRIMES: In Time Barred Crimes, a fugitive criminal shall not be surrendered, if he has
been tried and has served for the offence committed in the territorial State. Extradition is not granted if the
offence for which extradition has to be made has become time-barred. Rule to this effect is laid down in the
national extradition laws. Section 31(b) of the Indian Extradition Act provides that extradition may be
refused if prosecution is barred by lapsed of time under the law of the requesting State. An important point is
that which date should be considered relevant for determining the issue. It is to be noted that the date on
which the government passes the order for the extradition of fugitive is an important one. If the fugitive can
be prosecuted on this date, he may be extradited. Extradition treaties should clearly lay down provisions
regarding this point.

EXTRADITION ON OWN NATIONALS: In many cases a person after committing a crime in a foreign
country flees back to his own country. Whether a State would extradite such persons., i.e., its own nationals,
to a State where crime has been committed is a controversial point and practice of States considerably
differs on it. Many countries such as Italy, Germany, Switzerland and France have adopted a principle for
not extraditing their own nationals to a foreign State.

On the other hand, Great Britain, United States and India have favoured the practice of extraditing them, if a
treaty provides for extradition of such persons. Extradition or non-extradition of its own nationals depends
upon the wordings of the extradition treaties. Nationals may therefore be extradited if there is no bar in the
national extradition or in the treaty. If the restriction is imposed therein regarding the extradition of its
nationals, it becomes the duty of the territorial State to punish them so that crimes may not go unpunished.

MILITARY OFFENDERS: A person having a charge of committing military offences such as desertion
are not extradited. Model Treaty on Extradition also lays down under Article 3 para (c) that extradition shall
not be granted if the offence for which extradition is requested is an offence under military law, which is not
also an offence under ordinary criminal law. They are granted asylum by the territorial State on legal and
extra-legal grounds, and also as a security measure. The practice of non-extradition for military offenders
has not gained universal acceptance. A person committing war crimes is extradited to the requesting State.

General Assembly of UN in 1967 adopted the Declaration on Territorial Asylum wherein it was laid down
that States shall not grant asylum to any person with respect to whom there are serious charges for
considering that he has committed war crimes.

EXTRADITION FOR AN OFFENCE OF FISCAL CHARACTER: Offence of a purely fiscal character

may broadly mean the offences relating to revenues, taxes, excise and customs, etc. Extradition for a fiscal
offence has not been generally practiced by the States, despite the fact that there is nothing in international
customary law which prohibits it. Indifferent attitude of the States towards the extradition in relation to such
offences led the offender to flee to other States in order to escape fiscal liability. No extradition proceedings

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could be initiated against a person as there was no criminal charge against one. The rules of IL do not
prohibit for the extradition for the offences of fiscal character. Consciousness of States for the suppression
of such offences has led the States to provide a clause for the extradition of such offenders in their
extradition treaties.

EXTRADITION LAW IN INDIA: In India the Extradition Act was enacted in 1902. It was regulated on
the basis of the British Extradition Act, 1870. The Act of 1870 was a law for whole of the British Empire.

The Indian Extradition Act, 1903 was enacted to provide for more convenient administration in British India
and to supplement the Extradition Act of 1870 and the Fugitive Offenders Act of 1881. The Act of 1903
continued to be in force after India became independent. All extradition treaties which were concluded by
the (British) India before 1947 were also continued by India.

In 1962, Indian Extradition Act was enacted. The act stipulated under Section 2(d) that all extradition
treaties made before August 15, 1947 is binding on India. In accordance with the provision of Section 3(1)
of the Act of 1962, the Govt. of India is required to make notification to all those States with which it had
extradition treaties before independence. India has signed extradition treaties with 43 foreign countries

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 Asylum

It is pertinent to first understand the term ‘Asylum’. It has been derived from a Greek word whose Latin
counterpart is ‘Asylon’ and it means ‘freedom from seizure’. There is no specific definition of Asylum but it
can be understood as legal protection granted to the people who have fled their home countries due to
warship, conflict, persecution, or fear of persecution. It is a possibility to remain in a country either
permanently or for a temporary period. A person who seeks International asylum i.e. an asylum seeker is
known as an ‘Asylee’.

International laws and standards regarding asylum seekers and refugees:

1951 Refugee Convention and 1967 Protocol: The main legal texts that serve to protect the rights of
refugees are the 1951 Refugee Convention and its 1967 Protocol. With 149 states parties to one or both, they
define the term “refugee” and outline the rights of refugees as well as the states’ responsibility to protect
them.

The foundational principle of international law is non-refoulment, which holds that a refugee must not be
returned to a country where they would suffer severe threats to their life or freedom. Currently, this is
acknowledged as an international customary law norm. The legislation mandates that states cooperate with
UNHCR to guarantee the protection and upholding of the rights of refugees.

International human rights law: Refugees and asylum seekers are protected by international human rights
law just like everyone else. Everyone who is on a state’s territory or under its control or jurisdiction is
covered by this corpus of law. All people are born free and equal in their rights, as stated in Article 14(1) of
the 1948 Universal Declaration of Human Rightst hat “everyone has the right to seek and enjoy freedom
from persecution in other countries.” This is the most significant provision among human rights
mechanisms recognizing the right to seek and enjoy asylum. Article 14(1) of the Universal Declaration of
Human Rights obligates the states to uphold the law and to provide a secure and civilized environment as
well as a fair process for evaluating the status of asylum seekers as refugees.

Non-refoulement: Non-refoulement is the duty of states not to influence or pressurize, or return, a refugee
to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group, or political opinion,” as stated in Article 33(1) of the
1951 Convention relating to the status of refugees.

In the case of M.S.S. v. Belgium and Greece, 2021, it was iterated that the right to life and the prohibition
against torture have been construed by both domestic and regional courts to include a ban on refoulement.
The prohibition on refoulement extends to mass expulsions of refugees as well as the removal of individuals.

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Right to employment: Giving asylum seekers access to the labor force can lower the cost of providing for
them and boost the local economy. According to the European Commission(2003), asylum seekers have the
right to apply for employment if they have waited more than a year for a judgment on their asylum request
and are not held accountable for the delay. Nuclear medicine technologists, laborers, overhead linesmen in
the electricity transmission and distribution business, etc., are some examples of this type of employment.

Providing work to asylum seekers can increase the asylum seekers’ chances of effective reintegration in the
event of a return and decrease their vulnerability to exploitation if they are allowed to stay in the host nation.

Right to family life: According to Article 23(1) of the International Covenant on Civil and Political Rights,
the family is regarded as the “natural and essential group unit of society and is entitled to protection by
society and the State.” Many nations allow for the granting of derivative status to dependent relatives such
as spouses, children, parents, etc. concerning this right. As a result, if someone is granted asylum, their
dependent family members will also be given shelter.

Territorial Asylum and Extra Territorial Asylum:

Territorial Asylum : It is granted when the state provides asylum to asylee within its territory. The
exclusive control of every sovereign state over its territory backs up the right of a state to grant territorial
asylum. It is an exception to the extradition.

Illustration:

 If an individual, ‘A’ from Syria comes to Turkey and applies for asylum due to the horrifying
condition in Syria and apprehension of danger to his life.

 If the individual is granted by the Turkey government within the country itself, it is an example of
Territorial asylum.

In 1947, the topic was first raised by the Commission on Human Rights and later was incorporated in the
UDHR under Article 14. Later in 1967, after a rigorous attempt, the General Assembly had passed a
‘Declaration on Territorial Asylum’ at its twenty-second session.

Article 1(1) of the Declaration on Territorial Asylum states that a state can grant asylum by exercising
its sovereign power to an individual who invokes his/her right under Article 14 of UDHR. Article 1(2)
provides that if an individual that has a record of crime against humanity, peace, or a war crime cannot seek
asylum in another country. Article 1(3) provides the power to the state to evaluate based.

Article 2 provides that if any state feels overburdened in providing asylum to the people then States shall
either individually or through the United Nations help that particular to lighten the burden.

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In case of an extradition treaty between two countries, the countries are bound to extradite the offender in
terms of the other country’s law. In Territorial Asylum, the state has the power to impose restrictions on
asylum-seekers’ movement, etc.

Some famous examples of this type of asylum include:

• The asylum that was given by India to Dalai Lama and his followers in India in 1955 as those people
were facing atrocities for a long time in China.

• Salman Rushdie, a writer who was in controversy for his novel ‘Satanic Verses’ was given Asylum by
the United Kingdom.

Extra-Territorial Asylum: It is granted when the state provides asylum outside the territory of its state,
such as in warships, legation consular premises, international headquarters, or its Embassy situated in a
different country i.e. one of its public places situated/ lying in foreign territorial borders. The term extra-
territorial means beyond the jurisdiction of the authorities of the state where such establishment is i.e. the
local authorities. The immunity is granted to the diplomats and other officials to protect their country’s
interests. The local authorities are not allowed to enter the Embassy of any country situated in their country
without having special orders.

Illustration:

• If ‘A’ from Syria approaches the US Embassy in Syria for grant of Asylum due to imminent danger
to his life.

• If the US Embassy grants the Asylum, it becomes an example of Extra-Territorial Asylum.

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 UNIT – V

ARMED CONFLICT

Definition of Armed Conflict:

Armed conflict may take a variety of forms, such as a conflict of international or non-international character,
which may involve two or more states, or may consist of wars of liberation, or insurgencies, civil wars, etc.

The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a general definition of
international armed conflict. In the Tadic case, the Tribunal stated that: "An armed conflict exists whenever
there is a resort to armed force between States". This definition has been adopted by other international
bodies since then.

The Uppsala Conflict Data Program (UCDP) defines an armed conflict as a situation where armed force is
used between two parties, and at least 25 battle-related deaths occur.

Accordingly, as stated in the ICRC's 1952 Commentary, “any difference arising between two States and
leading to [a resort to armed force] is an armed conflict within the meaning of [Article 2 common to
the Geneva Conventions”

According to D. Schindler, "The existence of an armed conflict within the meaning of Article 2 common to
the Geneva Conventions can always be assumed when parts of the armed forces of two States clash with
each other. Any kind of use of arms between two States brings the Conventions into effect".

Types of Armed Conflict:

International humanitarian law specifically exists to govern and regulate conduct in armed conflict. So, it is
important to understand what armed conflict is in order to determine where and when IHL will apply.

There are two types of armed conflict under the Geneva Conventions and their Additional Protocols:

1. International armed conflict, occurring between two or more States – this includes belligerent
occupation; and

2. Non-international armed conflict, when armed force is used between a state and one or more armed
groups, or between armed groups within a state. The conflict must reach a minimum level of
intensity, and the parties involved must show a minimum level of organization.

That said, there are some aspects of IHL that continue to apply in peacetime, extending protections beyond
the physical battlespace or at the end of an armed conflict. For example, IHL remains applicable in
territories under military occupation, even after the fighting ceases. There are also specific weapons treaties

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that prohibit not only the use of certain weapons, but also the development, stockpiling, production and sale
of those weapons by States.

Applicable Laws /Relevant laws :

The Geneva Conventions of 1949 and their additional protocol are given below:

First Geneva Convention: This convention represents the fourth updated version of the Geneva
Conventions on the wounded and sick following those adopted in 1864, 1906 and 1929. It contains 64
articles. This convention provides protection not only for the wounded and sick but also for medical and
religious sick, medical units and medical transports. The convention also recognizes the distinctive
emblems. It has two annexes containing draft agreements.

Second Geneva Convention: This convention replaced the Hague Convention of 1907 for the adaptation of
the maritime warfare of the principle of geneva convention. It closely follows the content and structure of
the First Geneva Convention. It has specifically 63 articles applicable during the war at sea. It has one
annexe containing a model identity card for medical and religious personnel.

Third Geneva Convention: This convention replaced the prisoner of war convention of 1929. It contains
143 articles whereas the convention of 1929 contained only 97 articles. The category of person under the
status of prisoner of war has been enlarged and it has covered different categories of people under its ambit
in comparison with the previous two conventions. The conditions and place of captivity are more precisely
defined and categorised. It has specifically mentioned the kind of relief, remuneration, financial assistance
given to the people under the status of prisoners of the State. It has also categorically mentioned the judicial
proceedings instituted against them. The convention establishes a principle about the repatriation and
releases without any delay after the active hostilities came to a halt.

Fourth Geneva Convention: The Geneva Convention which was adopted in 1949 was only concerned with
the combatants. The events of World War II were considered while implementing these conventions. It has
not only broadened the horizon but also provided different kinds of relief to the civilians who have suffered
the wars. It comprises 159 articles. It also has a specific section which protects the general population during
the wars. The additional addendum was made in the protocol in which the relief was laid down for the
people who have suffered the hostilities.

The protocols additionals to the geneva conventions: In 1977, the two protocols additional to the Geneva
conventions were adopted at an international diplomatic conference to protect the victims of the national and
international armed conflict. It has been ratified by many countries. The countries who have signed the
Geneva conventions but not ratified the additional protocols are also governed by these protocols. The
protocol has included the protection of civilians, women, children, measures for the protection of journalists.

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Further, it is also provided that the International Red Cross Society, international non-governmental
organisations can provide assistance if permitted by the parties to the conflict. The dams, dikes and places of
worship cannot be attacked. The use of weapons that causes superfluous or unnecessary injury or the
weapons that cause widespread and long term injury is prohibited. The recruitment of children under 15
years of age is prohibited. It also outlawed the indiscriminate attack on the civilians and the necessary items
such as food and water. It is a war crime to use the emblems under geneva convention to deceive the other
state or do any other form of treachery.

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 Laws of war

International humanitarian law – known as the laws of war – establishes what can and cannot be done by
parties to an armed conflict. These laws seek to minimize human suffering and protect civilians as well as
combatants who are no longer taking part in hostilities, such as prisoners of war. The main treaties of
international humanitarian law are the 1949 Geneva Conventions, adopted after the horrors of World War
Two, and their additional Protocols. Even so, many of the gravest human rights violations are committed in
war. These include using rape as a weapon of war, recruiting children to serve on the frontlines, launching
direct attacks on civilians and civilian infrastructure and indiscriminate or disproportionate attacks. Warring
parties may also try to weaken communities as retaliation by obstructing humanitarian aid, such as food and
medicine, even using starvation as a weapon of war.

Under the laws of war, civilians may not be deliberately targeted, although they may still be killed or injured
if this happens as part of a proportionate attack on a military target. All parties to the conflict must take
measures to minimize harm to civilians and “civilian objects” (such as residential buildings, schools and
hospitals), and must not carry out attacks that fail to distinguish between civilians and combatants, or which
cause disproportionate harm to civilians.

Under the laws of war, civilians may not be deliberately targeted, although they may still be killed or injured
if this happens as part of a proportionate attack on a military target. All parties to the conflict must take
measures to minimize harm to civilians and “civilian objects” (such as residential buildings, schools and
hospitals), and must not carry out attacks that fail to distinguish between civilians and combatants, or which
cause disproportionate harm to civilians. Some of the most serious crimes under international law are
committed during armed conflicts. These include:

War crimes – serious violations of international humanitarian law that include wilful killings, direct attacks
on civilians, torture, use of prohibited weapons, the murder or ill-treatment of prisoners of war or others who
have been captured, surrendered or injured and crimes of sexual violence.

Crimes against humanity – crimes committed as part of a widespread or systematic attack by or on behalf
of a state or an organization against a civilian population during peace or wartime. There are 11 crimes
against humanity including murder, extermination, enslavement, deportation or forcible transfer of a
population, torture, rape and other serious forms of sexual violence, enforced disappearance and apartheid.
Crimes against humanity may be committed in armed conflict or in peacetime.

Genocide – certain acts committed with the intent to destroy, completely or partially, a national, ethnic,
racial or religious group. Genocide may be committed in armed conflict or in peacetime. Over time, the
international community has established specialized courts to hold perpetrators of crimes under international
law to account, such as the ad hoc tribunals for the former Yugoslavia, Rwanda and Sierra Leone.
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The four Geneva Conventions are: The Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field: This convention covers the protection of sick and wounded
soldiers on the battlefield, including the establishment of medical units and the protection of medical
personnel.

The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea: This convention covers the protection of sick, wounded, and
shipwrecked military personnel at sea.

The Geneva Convention Relative to the Treatment of Prisoners of War: This convention covers the
treatment of prisoners of war, including the protection of their lives, dignity, and humane treatment, as well
as their rights to correspondence, food, and medical care.

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War: This
convention covers the protection of civilians in times of war, including the protection of their lives, dignity,
and humane treatment, as well as their rights to food, medical care, and protection from violence.

The International Committee of the Red Cross (ICRC), a free-standing humanitarian organization, was
also created by the Geneva Conventions to oversee their application and enforcement. The ICRC is in
charge of encouraging adherence to the treaties and aiding armed conflict victims.

Modern international humanitarian law is based on the Geneva Conventions and their Additional Protocols,
which also offer crucial safeguards for armed conflict victims like civilians, prisoners of war, and injured
troops. These safeguards are intended to lessen the effects of conflict and to guarantee that people are treated
with respect and dignity under any circumstances.

The four international treaties known as the Geneva Conventions were established in 1949 and offer
protection to those who have been injured or killed in armed conflict. The Geneva Conventions' expanded
and clarified provisions are outlined in two additional treaties known as the Additional Protocols to the
Geneva Conventions, which were signed in 1977.

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POWERS AND JURISDICTION OF INTERNATIONAL CRIMINAL COURT:

Background:

The International Criminal Court (ICC) was established in 2002 as the first permanent international criminal
court for investigation and prosecution of individuals for genocide, crime against humanity, apartheid and
war crimes. The court became operational when the signatory nations met in the Assembly of State Parties
to appoint a prosecutor and 18 judges. It opened on March 11, 2003. The Rome Statute of the International
Criminal Court (The ICC Statute or the Statute) is the most important of the international agreements that
defined International Crimes. The jurisdictional relationship between the ICC and various national justice
systems is based on the so-called complimentarily principle. Under this principle, national courts take
precedence over the ICC in dealing with violations of international humanitarian law. The Court can only
exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes,
thus being a court of last resort.

The idea of a permanent international criminal court is traced to the 1860s, when it was proposed by one of
the founders of the Red Cross movement. A permanent international criminal court is needed because there
are various crimes, which are not committed, by a group of persons from the same State, nor within the
borders of one State or against the civilians of one State. Wars, for example, have been and still are fought
across borders; acts of genocide are by definition not committed against the citizens of a single State, but
rather against transborder ethnic groups or peoples. These crimes are defined in international law and
because there are numerous difficulties in prosecuting those responsible for such crimes before national
criminal courts, an international criminal court is needed to bring these people to justice. Although the
chance of establishing a court with universal participation is not great and the possibility will always remain
that criminals could escape the court's jurisdiction by fleeing to a State that is not a member to the Statute,
the chance that justice will be done if an international criminal court is established becomes more realistic.

Jurisdiction of the International Criminal Court: As per Article 5 of the ICC Statute, the Court has
jurisdiction with respect to genocide, crime against humanity, war crimes and the crime of aggression. These
crimes are defined in Articles 6 to 8 ‘for the purpose of the Statute.’3 The interpretation of these crimes is
subject to the Elements of Crime as adopted in September 2002 at the first session of the Assemblies of
State Parties.

According to Article 11(1), the Court does not have retroactive jurisdiction over crimes that occurred before
the entry into force of the statute on July 1, 2002. This principle of non-retroactivity is reinforced by Article
24(1), which stipulates that no person shall be held liable under this statute for conduct committed prior to
the entry of the force of the ICC Statute.
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The ICC’s jurisdiction is limited only to natural persons as provided in Article 25 of the Statute. The
minimum age of the alleged perpetrator should be 18 years at the time of the commission of the crime.

There are three ways by which the Court’s jurisdiction over crimes listed in Article 5 is triggered: Firstly, by
a referral of a situation by a state party. Any state party may refer a situation to the Court and request that
the prosecutor initiate an investigation6; Secondly, by the Security Council, which can adopt a resolution
under Chapter 7 of the United Nations Charter and refer a situation to the Court; and Lastly, the prosecutor
can initiate the investigation on his/ her own motion.7 A number of safeguards have been provided to ensure
that the prosecutor is not led by political motives but bases his decision on objective criteria. The prosecutor
is required to file a request with the Pre-Trial Chamber for authorization of an investigation. The Pre-Trial
Chamber has to authorize an investigation if it is found that there is a reasonable basis to carry on such an
investigation. In case, the Pre Trial-Chamber refuses to authorize an investigation, the prosecutor may re-
submit a request only if it is based on new facts and evidence.

The Court has automatic jurisdiction over the crimes listed in Article 5 of the statute. The automatic
jurisdiction of the Court is tied to two different principles of jurisdiction: the territoriality principle and the
nationality principle. Territorial jurisdiction is the most uncontested principle of jurisdiction because it is
closely related to the notion of sovereignty. On the basis of these principles national courts can also assert
their jurisdiction over crimes proscribed in their national legal orders. The Court can also exercise its
jurisdiction if the State of nationality or territoriality is not a party to the Statute but accepts the jurisdiction
of the Court with respect to the crime, by lodging a declaration with the Registrar.8 The proposal put
forward by the Korean delegation provided for two additional jurisdictional links --- the custodial state and
the state of nationality of the victim. 9 It gained support for the statute as it accommodated the United States
to some degree. This has accelerated the overall ratification process by bringing many other states on board.

Powers of ICC: According to Article Five of Rome Statute ICC has the authority & powers over genocide
crimes against humanity, war crimes & crimes of aggression.

ICC has jurisdiction and control on the crimes mentioned in Article Five of the Statute. Minimum age of the
accused must be eighteen years at the time of commission of the offence.

According to Article eleven clause one, ICC do not have any retroactive authority over crimes that were
committed before the Statute was enforced. The principal of non-retro activity is re-enforced by Article 24
clause one which say that no individual will be held liable under this statute for conduct done before the
enforcement of ICC’s statute.

Genocide crimes: Article 6 of the Rome Statute defines genocide crimes as:

1. Killing members of any group.

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 2. Causing mental harm or serious bodily harm to members of any group.

3. Coercively transferring children of a group to any other group.

4. Imposing measures intended to forbid births within any group.

Genocide was firstly recognised as a crime under International law in 1946 by the United Nations general
assembly.

Crimes against humanity: Article 7 of the Rome Statute:

It means any of the acts when done as part of wide-spread or organized attacks directed against any civilian
population with knowledge of attacks:

1. Murder.

2. Extermination.

3. Deportation or forced transfer of people.

4. Enslavement.

5. Detention or Serious Deprivation of physical freedom in Infringement of International rules of

International law.

6. Torture.

7. Rape; Sexual slavery; Forced prostitution; Forced pregnancy; or any other Sexual violence of similar
gravity.

8. Enforced disappearance of individuals.

9. Crimes of apartheid.

10. Another inhuman act of comparable nature purposely causing great suffering; genuine injury to body
or mental or physical health.

War Crimes: Article 8 of Rome Statute defines War Crimes.

War crime is an offence that makes a severe violation of the law of war which gives rise to individual
criminal responsibility. War crimes can also be defined as unjustified acts of violence, infringement of
treaties, or violating practices that rule military conflicts.

War crimes include grave breaches of Geneva Convention.

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War crimes are generally committed by army personnel but some time it may also be done by politicians and
civilians. Some examples of War Crimes are:

1. Intentionally killing of civilians.

2. Torturing civilians.

3. Destroying civilian property.

4. Taking hostages.

5. Rape.

6. Using child soldiers.

7. Sexual slavery.

8. Pillaging.

Crimes of Aggression: It is a particular type of crime where an individual plans, commences or performs
an act of aggression by using state military force that infringes the charter of the United Nations. Crimes of
aggression is defined under Article eight bis of Rome Statute.

There are two essential elements which are required in the crime of aggression:

1. The offender of the crime must be political leader or a military leader.

2. The court must have to show that the offender was involved in the planning, preparation,
commission, and execution of the crime.

An “act of aggression” means “the use of armed force by state against the sovereignty, territorial integrity or
political independence of another state, or in any other manner inconsistent with the charter of the United
Nation” Article 8(2) bis Rome Statute.

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 UNESCO

UNESCO is the United Nations Educational, Scientific and Cultural Organization, an agency of the UN
Organisation. It seeks to build peace through international cooperation in Education, the Sciences, and
Culture. The constitution of UNESCO was adopted in London in 1945 and entered into force in 1946. The
United Nations Educational, Scientific, and Cultural Organization (UNESCO) was established on 16
November 1945. It has 195 Members and 8 Associate Members and is governed by the General Conference
and the Executive Board. The decisions of the General Conference and the Executive Board are carried out
by the Secretariat, which is headed by the Director-General. UNESCO has more than 50 field offices around
the world. The Headquarters of UNESCO is located in Paris, France.

UNESCO full form is United Nations Educational Scientific & Cultural Organization. It is a specialized
agency of the United Nations organization that ensures that every child has the proper education, and it also
helps maintain cultural peace among nations. UNESCO lies within the United Nations (UN) with the
primary objective of fostering global harmony and safeguarding security through international collaboration.
The domains are education, arts, sciences, and culture. Its membership comprises 193 member states and 12
associate members, and partnerships with non-governmental, intergovernmental, and private entities. In
Paris, France, UNESCO operates through 53 regional field offices and 199 national commissions. It plays a
pivotal role in facilitating its worldwide mission.

The Mission of UNESCO:

The mission of UNESCO is to contribute to building a culture of peace, the eradication of poverty,
sustainable development, and intercultural dialogue through education, the sciences, culture,
communication, and information. UNESCO creates conditions across civilizations, cultures, and peoples
based on respect for shared ideals. The world may attain global aspirations of sustainable development
through these conditions, which include upholding human rights, mutual respect for one another, and
reducing poverty, all of which are central to the activities and mission of UNESCO.

Objectives of UNESCO:

 Attaining quality education for all and lifelong learning

 Mobilizing science knowledge and policy for sustainable development

 Addressing emerging social and ethical challenges

 Fostering cultural diversity, intercultural dialogue, and a culture of peace

 Building inclusive knowledge societies through information and communication.

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Functions of UNESCO:

 To encourage intellectual cooperation and mutual understanding among people through all means of
mass communication

 To maintain, increase and diffuse the knowledge

 To give a fresh impulse to popular education and the spread of culture

 Promotion of scientific research and training

 Application of sciences to ensure human development and the rational management of natural
resources.

History and Origin of UNESCO:

UNESCO's commitment to international cooperation can be traced back to a League of Nations resolution
1921. The resolution aimed to establish a Commission to explore the possibility of nations freely sharing
cultural, educational, and scientific advancements. The outcome was the creation of the International
Committee on Intellectual Cooperation (ICIC) in 1922. Notable members of the ICIC included Henri
Bergson, Albert Einstein, Marie Curie, Robert A. Millikan, and Gonzague de Reynold. This small
commission primarily focused on Western Europe. In September 1924, the International Institute for
Intellectual Cooperation (IIIC) was established in Paris to execute the ICIC's objectives. Unfortunately, the
advent of World War II severely disrupted the work of these precursor organizations. The International
Bureau of Education (IBE) began operating as a non-governmental organization in December 1925. It
promotes international educational development. In 2021, the IBE became a part of UNESCO after
establishing a joint commission in 1952.

UNESCO and India: There has been many contribution of unesco in India. India has been a member of
UNESCO since its founding in 1946. India is a party to 19 UNESCO conventions. It includes those on
education, intellectual property rights, and the preservation of the world's natural and cultural heritage.
There are a total of 40 UNESCO World Heritage Sites in India of which 32 are cultural, 7 natural and 1 is a
mixed site.

UNESCO has two offices in India: the New Delhi cluster office. It serves 11 South and Central Asian
countries, and the Mahatma Gandhi Institute of Education for Peace and Sustainable Development
(MGIEP).

The United Nations Development Action Framework (UNDAF) 2013–17 guides UNESCO's overall work in
India. The UNDAF identifies nine priority states in India where the United Nations should focus its
collective engagement: Assam, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha,
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Rajasthan, and Uttar Pradesh. Indian National Commission for Co-operation with UNESCO was
established in 1949 by the Government of India, Ministry of Education. A permanent Commission was
established in 1951 through the Government of India, Ministry of Education.

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 WHO

Introduction: The United Nations’ specialised organisation for health, the World Health Organization
(WHO), was established in 1948. The organisation’s headquarters is in Geneva, Switzerland. There are 194
Member States, 150 Country Offices, and six Regional Offices in the Organisation. It is an
intergovernmental organisation that collaborates with its member nations, generally through their health
ministries.

The WHO leads the global health issues by setting the research agenda, establishing norms and standards,
articulating evidence-based policy alternatives, helping nations with technical assistance, and monitoring
and analysing health trends. It began operations on April 7, 1948, now observed as World Health Day every
year.

Goals of WHO: WHO’s mission revolves around ensuring that all people have access to the best possible
health facilities. The organisation has a wide range of functions that support its principal goal. These
include;

 Assume the role of supreme authority in international healthcare.

 To encourage technological collaboration in the field of healthcare.

 To help various governments in improving healthcare services.

 On the request or acceptance of governments, provide adequate technical assistance in crises and
essential relief.

 To begin and continue efforts on the epidemic, endemic, and other disease prevention and control.

 To encourage, if required, the improvement of nutrition, housing facilities, sanitation, recreation,

economic or working circumstances, and other areas of environmental hygiene in collaboration with
other specialised agencies outside and inside the United Nations.

 To encourage global biomedical and health services research.

 To encourage higher teaching and training standards in the healthcare, medical, and allied
professions.

 To develop worldwide standards for biological, pharmaceutical, and other related goods and
standardise diagnostic processes.

 To encourage initiatives in mental health.

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Structure of WHO:

World Health Organization Assembly:

Delegates representing members make up the Health Assembly. Each member is represented by a maximum
of three delegates, one of whom is appointed as a head delegate by the member. These delegates are chosen
from among those with the highest technical expertise in health, ideally representing the Member’s national
health administration. The Health Assembly holds regular annual sessions and special sessions on occasion.

Functions of WHO:

 The Health Assembly decides the organisation’s policies.

 It oversees the organisation’s financial policy and examines and approves the budget.

 In line with any agreement between the organisation and the United Nations, it reports to the
Economic and Social Council.

The Secretariat:

 The Secretariat comprises the Director-General and other technical and administrative employees.

 The Health Assembly appoints the Director-General on the board’s nomination and terms determined
by the Assembly.

Associate Membership and Membership: Members of the United Nations can join the organisation as
members. Associate Members are territories or groupings of territories that are not accountable for the
conduct of their foreign affairs.

The World Health Organisation’s (WHO) Contribution:

WHO’s national offices are the organisation’s main points of contact with governments. They offer health-
related technical assistance, communicate important global standards and recommendations, and convey
government requests and needs to WHO’s other levels. They also keep the host government informed about
illness outbreaks outside the nation and follow up with them.

They give public health advice and guidance to other UN agency offices in the country. WHO also
collaborates with other UN agencies, funders, non-governmental organisations (NGOs), and the corporate
sector, in addition to governments.

All nations, including the most developed, can take advantage of WHO’s worldwide health activities. For
example, all countries gained from their contribution to WHO initiatives that resulted in the global
elimination of some diseases and control of many others.
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India and the World Health Organization:

On January 12, 1948, India became a World Health Organisation (WHO) member. The regional office for
South-East Asia is located in New Delhi.

Smallpox: The total number of smallpox cases reported in India in 1967 accounted for roughly 65 per cent
of all cases worldwide. Of these, 26,225 patients perished, painting a bleak picture of the uphill battle. The
World Health Organisation (WHO) initiated the Intensified Smallpox Eradication Programme in 1967.
Smallpox was eliminated in 1977, thanks to a joint effort by the Indian government and the World Health
Organisation (WHO).

Polio: With financial and technical assistance from the World Bank, India initiated the fight against the
illness in response to the WHO’s 1988 Global Polio Eradication Initiative. The Indian government, in
collaboration with UNICEF, the World Health Organisation (WHO), the Bill and Melinda Gates
Foundation, Rotary International, and the Centers for Disease Control and Prevention, helped to raise almost
universal awareness of the need to vaccinate all children under the age of five against polio in 2012. India
was removed from the list of endemic nations in 2014 due to these initiatives.

Conclusion :

The World Health Organisation (WHO) is a United Nations specialised body that investigates public health
issues. It’s headquartered in Geneva, Switzerland, and was founded on April 7, 1948. The WHO is led by
its Director-General. The WHO now has 194 member nations. The only way to become a full member of the
WHO is to approve the treaty known as the World Health Organisation’s Constitution. The goal of WHO,
according to its constitution, is for “all people to achieve the best attainable level of health.”

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 LEAGUE OF NATIONS

INTRODUCTION: The League of Nations was an international organization, headquartered in Geneva,

Switzerland created after the First World War to provide a forum for resolving international disputes. It was
the first worldwide inter-governmental organisation whose principal mission was to maintain world peace.

It was founded after the Paris Peace Conference, 1919. The League’s goals included disarmament,
preventing war through collective security, settling disputes between countries through negotiation
diplomacy and improving global welfare.

The League of Nations was established on January 10, 1920 with the main object of maintaining peace and
security and to promote international cooperation. The League had two principal organs: the Assembly and
the Council assisted by the permanent Secretariat. It also had two essential wings: the Permanent Court of
International Justice and the International Labour Organisation.,

a) The Assembly: The Assembly was represented by all the members of the League with each state
allowed up to three representatives and one vote. It met in Geneva and, after its initial sessions in 1920, it
convened once a year in September. The special functions of the Assembly included the admission of new
members, the periodical election of non-permanent members to the Council, the election with the Council of
the judges of the Permanent Court, and control of the budget. In practice, the Assembly was the general
directing force of League activities. The functions of the Assembly were not adequately laid down in the
Covenant. It was provided that the Assembly may deal at its meetings with any matter within the sphere of
action of the League or affecting the peace of the world.

b) The Council: The League Council acted as a type of executive body directing the Assembly's business. It
began with four permanent members – Great Britain, France, Italy and Japan – and four non-permanent
members that were elected by the Assembly for a three-year term. The first non-permanent members
were Belgium, Brazil, Greece and Spain.

The composition of the Council was changed several times. The number of non-permanent members was
first increased to six on 22 September 1922 and to nine on 8 September 1926. Germany became the fifth
permanent member of the Council. Later, after Germany and Japan both left the League, the number of non-
permanent seats was increased from nine to eleven, and the Soviet Union was made a permanent member
giving the Council a total of fifteen members. The Council met, on average, five times a year and in
extraordinary sessions when required. In total, 107 sessions were held between 1920 and 1939.

The Council was to direct the work to the Secretariat, arrange for international conferences, receive reports
from the subsidiary organs of the League, determine which reports should be submitted to the Assembly,
deal with disputes among League members and supervise the observance of the mandates, the minorities

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treaties and other agreements. Safeguarding the peace of the World was the primary responsibility of the
Council.

c) The Secretariat: The Secretariat was headed by a Secretary-General who was appointed by the Council
with the approval of the majority of the Assembly. Its work was to assist all organs of the League by
providing services of different kinds, viz, clerical, research, drafting, publication, coordination, registration
of treaties, keeping of records, arrangements of meeting etc.

The most important function of the League was to maintain international peace and security and to settle
international differences. This could be done in three ways. Firstly, if any dispute arose between the States,
that could be settled by peaceful means. Secondly, States were urged to accept the jurisdiction of the
Permanent Court of International Justice with minimum reservations. Thirdly, the Council was entrusted
with the ultimate responsibility for keeping the peace or for punishing violators when all other means had
failed.

FUNCTIONS AND OBJECTS:

1) The first and foremost function and object was to promote international co-operation and to achieve
international peace and security.

2) The next was to settle international disputes amicably and without resort to war.

3) The other important function was the reduction of national armament to the lowest point consistent with
national safety.

4) To maintain international relations between member states.

5) To preserve as against external aggression the territorial integrity and existing political independence of
all members of the League of Nations.

POSITION OF THE LEAGUE:

 The League of Nations was not a super-State and possessed no sovereign power.

 It depended entirely on the goodwill of the governments of the States who were its members.

 The provisions contained in the Covenant of the League amply protected the freedom of the
members as they required unanimity of decision of the Council or the Assembly in most important
matters.

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  The League was an association of States whereby they mutually limited their freedom of action in
certain matters with a view to promoting international co-operation and achieving international peace
and security.

 It was neither a federation nor a confederation, inasmuch as each member reserved to itself complete
freedom to regulate its external affairs and the League could not exercise control over the member
States beyond what they had willingly and by consent surrendered to the League.

 It could not be termed a State as it lacked the necessary characteristics of a State inasmuch as ,
although a permanently organised society, it did not occupy a certain territory over which it had the
supreme authority.

WEAKNESSES OF LEAGUE OF NATIONS:

An evaluation of the twenty years (1920-1940) record of the League of Nations leads one to classify the first
decade as the successful years and the second decade as the unsuccessful years.

The League successfully decided the Aaland Islands dispute in 1920 and the Corfu Case in 1924. However
in the second decade the League failed miserably in maintaining peace. League failed to maintain peace
because it suffered from a number of defects which are as follows:

a) One of the main defects of the Covenant of the League was that all decisions of the council were to be
taken with unanimity. As the States were divided among groups, it was not possible to decide unanimously.
The unanimity principle incorporated with the covenant proved to be detrimental to the working of the
League of Nations.

b) Another defect of the League was that it could not completely prohibit war. The Covenant of the League
of Nations permitted League-Members to resort to war under certain situations. The Covenant provided that
the member-states were firstly under the obligation to settle their disputes through arbitration, judicial
settlement or enquiry by the Council. The Covenant provided that if the problem was not solved through
these methods, the members could resort to war after lapse of three months. It meant that war was not
completely prohibited under the Covenant of the League of Nations.

c) One of the great powers- America did not become the member of the League because of non-ratification
of the Treaty by the Senate.

d) Another important defect was with regard to constitutional amendment of the Covenant. It provided that
if any amendment of the Covenant was not acceptable to a member-state, it would cease to be its member.
This provision was fatal to the organization an many member-states ceased to be members of the League of
Nations.

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e) Functions of the Council and the Assembly were not clearly demarcated.

f) Members were not bound by the decisions of the Council.

g) There was no provision which could prevent the States from the withdrawal from the League of Nations.
The result was that the number of members which was initially 62 reduced to 32.

h) There was no provision in the League to deal the act of aggression effectively. Moreover, forces were also
not available to the Council to take action against the culprit State.

All these reasons proved fatal. It became least effective to fulfil the objects for which it was created.
It was therefore ultimately dissolved by a resolution of the Assembly.

CAUSES FOR THE FAILURE OF THE LEAGUE:

1. Absence Of Great Powers : It was unfortunate that the Covenant of the League of Nations was made a
part parcel of the peace settlement. It would have been better if it had kept separate. There were many states
which consider the Treaty Of Versailles as a treaty of revenge, and were not prepared to ratify the same. By
not ratifying the treaty, they refused to be the members of the League. The absence of the great powers from
the inter national organization weakened her and was partly responsible for its ultimate failure.
Japan , Germany and Italy also left the League and their defection must have weakened the League.

2. Domination Of France and England : It was felt that the League Of Nations was dominated by England
and France and consequently the other states began to loose their confidence in that organization.

3. Rise Of Dictatorship : The rise of dictatorship in Italy, Japan and Germany also weakened the chances of
success of the League of Nations . Japan was determined to acquire fresh territories and her unscrupulous
patriotism threw to the winds of all principles of international law and morality. If the League was to
prepared to condone her fault of conquering Manchuria . She was to prepared to give up her membership of
the League and that is exactly what she actually did. When League decided to take action against Italy on
account for her aggression in Abyssinia , Italy left the League. In the wake up spreading dictatorship states
continued to be the members of the League so long as their national interest were not in any way endangered
and sacrificed.

4. Limitations Of Legal Methods : The League Of Nations demonstrated the limitations of the legal
methods. The League was fairly efficient in structure and probably would have worked if there had existed a
realization of a community of interest. Law grows out of public opinion can not operate in disjunction with
it. In the case of League law proposed and opinion disposed.

5. Loss Of Faith In League: Small nations lost their faith in the effectiveness of The League to save them
from any aggression. The principle of collective security was not applied in actual practice. Each state
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decided to follow her own policy, the principle of security weakened and thus there was nothing to check the
aggressive policy of Hitler.

6. Constitutional Defect : The League Of Nations failed because of certain constitutional defects. In the
cases of disputes brought before the council of the League under Article 11, decisions of the council had to
be unanimous in order to adjudge a nation guilty of having violated the covenant by resort to war or
unjustifiable aggression, In Article 15. If the decisions were not unanimous verdict under Article 11, the
disputing parties were free to resume the hostilities after a period of 3 months. By allowing exceptions , the
covenant seemed to assumed that was remained the normal solution of international disputes.

7. Narrow Nationalism: Narrow nationalism was still the dominant among the peoples of the world. France
was increasingly concerned with her national security, while Great Britain considered that problem less
urgent than promoting commerce by fostering international trade. Japan intoxicated by her emergence as a
world power, while Italy was desperate to redress her damage. Germany was indulged to retain her national
prestige even at the cost of an aggressive military adventure.

8. Lack Of Mutual Co-operation: The member of the league lack mutual co-operation which is always
essential for the success of an organization. For France the League was an instrument for providing her
security from Germany. On the other hand Great Britain wanted League protecting her imperialist interest.
Hitler found League a great hurdle on the way of rise of Germany.

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 UNITED NATIONS

INTRODUCTION: The failure of the League of Nations on the one hand and the horror and ruthless
destruction caused by the Second World War on the other hand disturbed many minds especially in Allied
countries. They expressed the desire to establish peace even when the war was in progress. In order to
achieve it, frantic efforts to create an international organization had begun as early as in 1941. Deliberations
became intense after the termination of the War which resulted in the creation of the United Nations
Organization on December 24, 1945.

PREAMBLE OF THE UNITED NATIONS:

The preamble of the Treaty is preceded by the words ‘Charter of the United Nations’. It indicated the title of
that legal instrument and the name of the Organization constituted by it. The term ‘Charter’ was regarded
more appropriate designation of the Constitution of international community than the Covenant, the name
given to the Statute of the League of Nations. The term ‘Charter’ refers to the contents of the Treaty whereas
the term Covenant refers to the contract form of the contents.

The Preamble of the U.N. Charter has set forth the basic aims of the United Nations which are:

a) To save succeeding generations from the scourge of war.

b) To re-affirm faith in fundamental human rights.

c) To establish justice and respect for international obligations and

d) To promote social progress and better standard of life.

MEMBERSHIP:

Admission to the United Nations is regulated by the provisions of its Charter. The members of the United
Nations consist of the original members as provided in Article 3 and the members admitted in accordance
with Article 4 of the Charter.

Under Article 3 of the Charter, the original members of the United Nations consist of all the 51 states which
participated in the San Francisco Conference of 1945 or which previously signed the Declaration of the
United Nations of January 1, 1942 and ratified the Charter.

The UN's Membership has grown from the original 51 Member States in 1945 to the current 193 Member
States.

All UN Member States are members of the General Assembly. States are admitted to membership by a
decision of the General Assembly upon the recommendation of the Security Council.

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Article 4 of the Charter lays down that membership in the United Nations is open to all other peace-loving
States, which accept the obligations contained in the Charter and in the judgment of the Organization are
able and willing to carry out these obligations. The Charter does not lay down any condition of membership
other than that the new members must be peace-loving States.

The term “peace-loving” States has nowhere been defined in the Charter. Article 4 of the Charter further
envisages that such States, before they are admitted to the United Nations Organisation are in its judgment,
able and willing to carry out the obligations contained in the Charter. It is clear that no State has under the
provisions of the Charter a right to be admitted as a member. The whole thing is left to the members of the
General Assembly and primarily to the Security Council to exercise their judgment in good faith to arrive at
the conclusion whether the State seeking admission is peace-loving and whether it is able and willing to
carry out obligations of the Charter.

PURPOSES & PRINCIPLES OF THE UNITED NATIONS:

Article 1 of the UN Charter : Article 1 of the 1 UN Charter talks about the purposes of the United Nations.
They
are:

1. Maintaining international peace and security;

2. Developing friendly relations amongst the nations;

3.Achieving international cooperation to solve international issues of social, economic, cultural or

humanitarian nature;

4.Being a centre to harmonize the actions of the state to accomplish these common
goals.
Article 2 of the UN Charter : Article 2 talks about the principles of the United Nations. These principles
are:

a) Ensuring sovereign equality of all its members. This rule implies that all the members
of the UN have equal representation.
b) All the members of the UN are required to fulfil in good faith the obligations
assumed by them in accordance with the Charter.
c) All the members of the UN are obliged to settle their disputes by peaceful and amicable means in
such a manner as to not endanger or jeopardize international peace, security, and justice.
d) All the members of the UN are required to abstain from helping or assisting any state against which
the UN is taking preventive actions or enforcement actions.

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 e) Ensuring that non-members do not act inconsistently with the Charter. This rule empowers the
United Nations in order to maintain peace and security to enforce obligation in the non-members of
the state. Further, a non-member state as per Article 35(2) is empowered to bring any dispute before
the General Assembly or the Security Council.
f) Non-interference of the United Nations in matters relating to the domestic
jurisdiction of any state. This rule mandates the United Nations not to interfere where the matter is
solely of domestic jurisdiction of a state.

Nicaragua v. the United States In this case, Nicaragua alleged that the United States carried illegal military
and paramilitary operations against Nicaragua by supporting and assisting the Contras causing an extensive
loss of lives by attacking its mining ports, naval base, air space, etc. It was also alleged that certain attacks
were done not by the Contras but by the United States itself.

The claims of Nicaragua was that the United States has violated Article 2(4) of the Charter of the United
Nations to ‘refrain from threat and use of force’ and has breached the customary international
law obligation.

The actions of the United States amounted to an interference with the internal affairs
of Nicaragua.The ICJ, in this case, held that the United States has violated international law by
involving itself in the unlawful use of force against Nicaragua.

Article 51 of the UN Charter: Maintenance of peace It empowers the United Nations Security Councils to
take measures regarding the maintenance of peace and security. Article 51 provides that the member states
have an inherent right of self-defence (individually or collectively) to defend any armed
attack against a member of the UN. A member state has to immediately report to the Security Council if it
has taken any measures for the exercise of its self-defence.

Article 13(1) of the UN Charter : Article 13(1) empowers the General Assembly to initiate studies and
make recommendations to:

 Promote international cooperation in the political, social, cultural, educational, economic, and health
fields.
 Encourage progressive development of international law and codification of
international laws.
 Assist in the realization of Human Rights and fundamental freedom for all.
 Non-discrimination on the basis of race, sex, language, religion.

Chapter V of the UN Charter: It deals with the functions and power of the Security Council under Article
24 and 25 of the Charter. Article 24 states that: The members of the United Nations confers a primary

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responsibility upon the Security Council of maintaining peace and security for ensuring a prompt and
effective action by the UN. The Security Council while discharging these duties is obliged to act in
accordance with the purpose and principles of the UN. The Security Council is required to submit to the
General Assembly the annual and special report for its consideration.

Article 25: It makes the members of the United Nations accept and carry out the decisions of
the Security Council in accordance with the Charter”.

Article 26: Under Article 26 the Security Council with the aid and assistance of the Military Staff
Committee is responsible to formulate plans that are to be submitted to the members for establishing a
system for regulation of armaments. Further, the security council is required to do so with the slightest
diversion for armaments of human and economic resources of the world.

ORGANS OF UNITED NATIONS:

The main organs of the UN are the General Assembly, the Security Council, the Economic and Social
Council, the Trusteeship Council, the International Court of Justice, and the UN Secretariat. All were
established in 1945 when the UN was founded.

1. General Assembly: The General Assembly is the main deliberative, policymaking and representative
organ of the UN. All 193 Member States of the UN are represented in the General Assembly, making it the
only UN body with universal representation. Each year, in September, the full UN membership meets in the
General Assembly Hall in New York for the annual General Assembly session, and general debate, which
many heads of state attend and address. Decisions on important questions, such as those on peace and
security, admission of new members and budgetary matters, require a two-thirds majority of the General
Assembly. Decisions on other questions are by simple majority. The General Assembly, each year, elects a
President to serve a one-year term of office.

2. Security Council: The Security Council has primary responsibility, under the UN Charter, for the
maintenance of international peace and security. It has 15 Members (5 permanent and 10 non-permanent
members). Each Member has one vote. Under the Charter, all Member States are obligated to comply with
Council decisions. The Security Council takes the lead in determining the existence of a threat to the peace
or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends
methods of adjustment or terms of settlement. In some cases, the Security Council can resort to imposing
sanctions or even authorize the use of force to maintain or restore international peace and security. The
Security Council has a Presidency, which rotates, and changes, every month.

3. The Economic and Social Council: The Economic and Social Council is the principal body for
coordination, policy review, policy dialogue and recommendations on economic, social and environmental

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issues, as well as implementation of internationally agreed development goals. It serves as the central
mechanism for activities of the UN system and its specialized agencies in the economic, social and
environmental fields, supervising subsidiary and expert bodies. It has 54 Members, elected by the General
Assembly for overlapping three-year terms. It is the United Nations’ central platform for reflection, debate,
and innovative thinking on sustainable development.

4. The Trusteeship Council: The Trusteeship Council was established in 1945 by the UN Charter, under
Chapter XIII, to provide international supervision for 11 Trust Territories that had been placed under the
administration of seven Member States, and ensure that adequate steps were taken to prepare the Territories
for self-government and independence. By 1994, all Trust Territories had attained self-government or
independence. The Trusteeship Council suspended operation on 1 November 1994. By a resolution adopted
on 25 May 1994, the Council amended its rules of procedure to drop the obligation to meet annually and
agreed to meet as occasion required -- by its decision or the decision of its President, or at the request of a
majority of its members or the General Assembly or the Security Council.

5. International Court of Justice: The International Court of Justice is the principal judicial organ of the
United Nations. Its seat is at the Peace Palace in The Hague (Netherlands). It is the only one of the six
principal organs of the United Nations not located in New York (United States of America). The Court’s
role is to settle, in accordance with international law, legal disputes submitted to it by States and to give
advisory opinions on legal questions referred to it by authorized United Nations organs and specialized
agencies.

6. Secretariat: The Secretariat comprises the Secretary-General and tens of thousands of international UN
staff members who carry out the day-to-day work of the UN as mandated by the General Assembly and the
Organization's other principal organs. The Secretary-General is chief administrative officer of the
Organization, appointed by the General Assembly on the recommendation of the Security Council for a five-
year, renewable term. UN staff members are recruited internationally and locally, and work in duty stations
and on peacekeeping missions all around the world. But serving the cause of peace in a violent world is a
dangerous occupation. Since the founding of the United Nations, hundreds of brave men and women have
given their lives in its service.

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