International LawFrequently Asked Questions on International Law
(1) It is now generally recognised that not only States but international organisations have also certain rights and duties under International Law. This view has been finally affirmed by the International Court of Justice in its advisory opinion on Reparation for Injuries Suffered in the Service of the U.N. (1949).
(2) It is also recognised that to some extent individuals have some rights and duties under International law.
(3) It is also recognised that International law consists not only of customary and conventional rules but also of general principles of law recognised by the civilised States. This has now been expressly recognised by Article 38 of the Status of the International Court of Justice.
(4) The use of the term `civilised states' has also been criticised. A few decades ago western States regarded only the Christian states as `civilized' states. For being considered `civilized' neither long history nor culture was the criterion. That is why, in later editions of Oppenheim's book the word `civilized' was deleted.New Definition of International Law in Latest Edition of Oppenheim's Book - The editors of the ninth edition of Oppenheim's book (1992), Sir Robert Jennings and Sir Arthur Watts, have revised Oppenheim's definition of International Law in the following words :
"International Law is the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relation of States, but States are not the only subject of International Law. International organisations, and to some extent, also individuals may be subjects of rights conferred and duties imposed by international law."Thus the above concept and definition of International Law given the Ninth Edition of Oppenheim's International Law is much better than the earlier definition and to a great extent similar to that given by Starke and Fenwick. But it is still deficient in one respect. It is silent about the general principles. (ii) Some other Definitions of International Law similar to that of Oppenheim :- West Rand Central Gold Mining Co. Ltd. v. King [(1905) 2 K.B. 391]. - In this case the Court observed, International Law may be defined as "the form of the rules accepted by civilized States as determining their conduct towards each other and towards each other's subject." S.S. Lotus case, (1927) P.C. I.J. Series A. No. 101. - In S.S. Lotus case, International Law was defined in the following words : "International Law governs relations between independent States. The rules of law binding upon States, therefore, emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restriction upon the independence of States cannot therefore be presumed." Gray. - Gray defines International Law in the following words : "International Law or the Law of Nations is the name of body of rules which according to the usual definitions regulate the conduct of the States in their intercourse with one another." Hall. - According to Hall : "International Law consists of conduct which modern civilized States regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country and which they also regard as being enforceable by appropriate means in case of infringement." Kelsen. - According to Kelsen : "International Law or the Law of Nations is the name of a body of rules which according to the usual definition - regulate the conduct of the States in their intercourse with one another." Criticism. - The above definitions can be criticised in the same way as Oppenheim's definition has been criticized above.
(i) Treaty of Friendship.
(ii) Treaty of Alliance.
(iii) Treaty of Hospitality.The Romans had great respect for treaties which could be terminated by notice.
(i) Public International Law for its major part, deals with States and to a lesser extent with the individuals. Private International Law deals with the individuals.
(ii) Public International Law is a part of Municipal Law but so it is not always the case with Public International Law.
(iii) Public International Law (at least the rules having general application) is same for all the States whereas Private International Law may be different in different States.
(iv) Private International Law determines as to which Law will apply in a case having a foreign element. There is no such problem in the field of Public International Law.
(v) Private International Law also determines the court which will have jurisdiction to decide the issue in question. In this respect also it differs from Public International Law.
(vi) According to Robert Philimore, rights arising out of Public International Law are absolute and their breach constitutes a casus belli (i.e. whatever involves or justifies war). This view does not seem to be correct in the presence of the provisions of Kellog-Briand Pact and the U.N. Charter which have outlawed war. But Private International Law does not at all confer absolute rights.
(vii) International Law comprises mainly of the rules recognised by States in their relations with each other and mostly arises out of International customs and treaties. On the other hand, rules of Private International Law are framed by the legislature of a State and recognised and developed by State Courts.
(i) Evidence of a General Practice accepted as law. - Long duration is an essential element of a custom in Municipal Law. But this is not necessary for an international custom. Article 38 of the I.C.J. directs the world court to apply international custom as evidence of a general practice accepted as law.
(ii) Uniformity and consistency - The custom should be uniform and consistent.
(iii) Generality of Practice - Though universality of practice is not necessary, the practice should have been generally observed or repeated by numerous States.
(iv) Opinion juris necessitates. - As pointed out by the International Court of Justice in North Sea Continental Shelf cases, (I.C.J) Rep. 1969, p. 3), ".......... customary practice, even when it is general and consistent, is not customary law unless an opinion juris is present, that is to say, unless the practice is recognized as being required by international law.Importance of custom as a source of International Law. - There has been a marked decline in the importance of customs as a source of International law in the modern times. This is mainly due to the fact that the process of development of a new custom is very slow. However, in modern time also the development of new custom is possible and at times customs have developed with accelerated speed. Principle relating to sovereignty over air space and continental shelf are its glaring examples. But in view of the accelarted speed of the changes in International Community, custom has become an inadequate means for bringing about the desired changes and development of international law. Thus, though the custom has been relegated to second place in importance, it still occupies an important position as a source of law.
(3) Specific, Adoption Theory;
(4) Transformation theory; and
(5) Delegation Theory.The two main theories are Monism and Dualism and other theories have been derived from these two theories. (1) Monism. - According to this theory, law is a unified field of knowledge, no matter whether it applies on individuals, State or other entities. Thus international law and State law are intimately connected with each other. They are the two branches of unified knowledge of law. "According to Monist belief, international obligation and municipal rules are faces of same phenomenon, the two deriving, ultimately from one basic norm and belonging to the unitary order comprised by the conception of law." In the ultimate analysis of law we find that individual is at the root of all laws. In the ultimate analysis, all laws are made for individuals. Wright Kelsen and Duguit, etc., are some of the prominent exponents of Monism. Theoretically and logically this appears to be the correct theory and it is very difficult to disprove it. However, it may be noted that this theory is not based on the actual practice of State. (2) Dualism. - According to this theory, international law and municipal law are two separate laws. Triepel and Anzilloti are the chief exponents of this theory. According to Triepel, international law and State law are different because their subject and origin are different. In his view individual is the subject of State law whereas State is the subject of international law. Besides this, origin of the State law is the will of State, but origin of the international law is common will of the States. As regards origin of international law, the conception of State will is not correct. It is rather metaphorical. In fact, the State will is nothing but the will of the people who compose it. There are certain fundamental principles of international law which are binding upon the State even against their will. Whether Monism or Dualism is the correct theory. - The above discussion shows that monism is a more correct theory but it is submitted that no theory can be complete in itself and it is not possible to include all the elements in it. The practice of State indicates that sometimes there is a primacy of international law, sometimes there is the primacy of the municipal law, sometimes there is mixture of different legal systems. For example, in the Greco, Bulgarian Communities case, PCIJ (1930, Series B, No. 17, the Permanent Court of International Justice held, "it is a generally acceptable principle of international law that in relations, between powers who are contracting parties to a treaty, the provisions of the municipal law cannot prevail over the treaty." On the other hand, when the municipal courts find that the conflict between the international law and municipal law is of such nature that cannot be avoided, they give primacy to the municipal law. In this connection, Mortensen v. Peters, 8, Sessions Cases (5th Series) 93 (1906) and Shri Krishna Sharma v. The State of West Bengal, AIR 1954 Cal. 598, deserves a special mention. (3) Specific Adoption Theory. - This theory is based on the theory of positivists. According to this theory, international law can be enforced in the field of State law only after it has been specifically adopted by State law. This theory can also be subjected to criticism because there are several principles of international law which are applied in the field of municipal or the State law without specific adoption. However, this view is generally followed by State in respect of international treaties. It is argued that unless there is specific adoption of the international treaties such as Tokyo Convention Act, 1975 and Vienna Convention of Diplomatic Relations Act, 1972 enacted by Indian Parliament or there is some sort of transformation, international treaties as such cannot be enforced in the municipal field. While considering the International Convention on Civil and Political Rights the supreme Court of India has held in Jolly George v. The Bank of Cochin, AIR 1980 SC 470 at pp. 474, per Krishna Iyer, J. "The positive commitment of the State Parties dignifies legislative action at home but does not automatically make the covenant enforceable part of the corpus juris of India." As regards specific adoption of international treaties by Indian Parliament, the Anti Apartheid (United Nations Convention) Act, 1981, the Anti-Hijacking Act, 1982, the Suppression of Unlawful Acts. Against the Safety of Civil Aviation Act, 1982 and the International Monetary Fund and Bank (Amendment) Act, 1982 deserve a special mention. It may, however, be noted here that there are many principles of international law (especially customary rules which are applied in the field of municipal law without specific adoption. (4) Transformation Theory. - According to the exponents of this theory, the rules of international law to be applied in the field of municipal law must undergo transformation. This theory is also based on the theory of consent which has been already criticised earlier. There are several law-making treates and principles of international law which become applicable in the field of Municipal law without undergoing the process of transformation. The Headquarter's Agreement between the United States of America and the United Nations is a glaring example of this. (5) Delegation Theory. - The critics of transformation theory have put forward a new theory called Delegation Theory. According to this theory, the constitutional rules of international law permit each State to determine as to how international treaties will become applicable in the field of State law. The Constitution of each State contains provisions in this connection. Thus no transformation takes place. This theory is based on presumption and has been severely criticized.
(1) One of the defects of International Law is uncertainty. Codification not only makes rules clear and certain but also reconciles conflicting and divergent views.
(2) Codification will be helpful in filing numerous gaps existing in International Law and also by providing for rules where there is none.
(3) Yet another merit of codification is that it will bring uniformity in the International Legal System.
(4) Codification will also go a long way to end or at least greatly minimise the disagreement and confusion that prevails on many important matters.
(5) Codification will enhance the efficacy of International Law by increasing its binding force.
(6) The International Court of Justice and other Tribunals will find it easier to apply and enforce codified International Law.
(7) It will be easier and convenient to amend the codified International Law so as to keep it at pace with the tide of time.Demerits of Codification -
(1) Codification is detrimental for the natural growth and future development of International Law. This defect can be remedied by a regular and scientific International Law. This defect can be remedied by a regular and scientific revision of Codes in order to incorporate changes in international conditions.
(2) Yet another disadvantage of codification is that it makes the system of law too rigid and unadaptable to new situations.
(3) Codification also makes the law too formal and conservative. This defect can be removed by progressive interpretation of International Law.
(4) New controversies arise due to codification.
(5) It gives rise to controversies in interpretation because of the hair-splitting tendency of Judges to interpret the law.
(6) International Law still being in its infantcy, only a partial codification is possible.
(7) Last but not the least disadvantage of codification is that customary rules still form the bulk of International Law and many of them are not yet fully settled covering the whole area of International rules.Conclusion and Future of Codification. - A critical perusal of the advantages and disadvantages of codification will lead us to irresistible conclusion that the advantages outweigh the disadvantages. Codification will make the law certain, single, intelligible and, above all easily accessible to all. Many of the disadvantages of codification may be removed by carefully planing and regular and scientific revision of the Code to incorporate changes in international conditions. International Law can flourish only if the States are ready to yield their interests in the larger interests of international security. As suggested by Sir Cecil Hurst, "in every country some small body of men devoted to the study and advancement of International Law should take this work (of codification) in hand; working if possible to a plan which would have been drawn up and agreed on by some Central International Scientific Organisation like the Institute of the International Law, and that this Central Organisation would set up machinery for the joint study and co-ordination for the contribution emanating from all national groups. Its value to Government would be that of providing a firm foundation for the modification by treaty of any of its provisions which were found to be unjust or to work badly under modern conditions and in consequence to require amendment."
(i) When any question is to be decided by consent each State is entitled to have one vote. But there are exceptions to this rule, such as the vote of the permanent members of the `Security Council'.
(ii) Legally the importance of the votes of the weak as well strong nations is same. There are some exceptions to this rule also.
(iii) No State can exercise jurisdiction over another State. This rule has been applied by the courts in many cases.
(iv) Generally, the courts of a State cannot challenge the validity of the official acts of another State so far as these acts are related to the jurisdiction of that State. The cases of A.M. Luther & Co. v. Sugar & Co., (1921) 3 K.B. 532 and Underhill v. Hernandez, (1897) U.S. 250, 18 Sup. et. 83. deserve special mention in this connection.In principle all States are equal. But in reality they are unequals in respect of their respective powers, territory, property, etc. Oppenheim has rightly pointed out the legal equality must not be confused with political equality. The enormous differences as regards their strength are the result of their natural inequality which, apart from rank and titles, finds its expression in the province of police. Politically, State are in no manner equals. The U.N. Charter is based on the principle of `Sovereign equality' of States but in reality great powers are unequal to small States (and legally also because they possess the power of veto under the Charter). Thus the equality of States is a general principle but there are several important exceptions of this principle.
1. A protectorate State generally entrusts its defence, external affairs etc. to another State.
1. Vassal State is generally autonomous in its internal matters, but is completely dependent upon another her State in external matters.
2. A protectorate State remains a State under international law.
2. A vassal State is not treated a State under international law.
3. Since a protectorate State retains a sufficient measure of sovereignty, declaration of war or peace made by the protecting State with another State is not binding upon it.
3. A vassal State is bound by treaty of war or peace entered into by the State under whose international guardianship it remains.
(i) Pirates. - Pirates are treated as enemies of mankind under international law. Every State can apprehend and punish them.
(ii) Harmful Acts of Individuals. - Under certain circumstances States are responsible for the harmful acts of their individuals. If a person causes harm to the personal property of the Ambassador of another State, then under international law the State is responsible for his act. Such persons are, therefore, given stringent punishment.
(iii) Foreigners. - To some extent international law regulate the conduct of foreigners. It is the duty of each State to give them those rights which it generally confers upon its own citizens.
(iv) War Criminals. - War criminals can be punished under international law. According to Nuremberg and Tokyo Tribunals, since war crimes are committed by the individuals, it is by punishing them the provisions of international law can be enforced.
(v) Espionage. - Espionage is a crime under international law and, therefore, spies can be apprehended and punished.
(vi) In addition to the above-mentioned examples, certain treaties and conventions have been entered into wherein individuals have been conferred upon the rights directly. The 1965 Convention on the Settlement of Investment Disputes between the State and the Nationals of other States is a glaring example of such benign trend.
(vii) The International Covenant on Human Rights confers rights directly upon the individuals. These along with the U.N. Commission on Human Rights have enabled the individuals to send petitions even against their own States.Thus slowly and gradually individuals are occupying an important place under international law. It may therefore be concluded that "individual has become a subject of international law not having the same quality as a State but capable of asserting rights himself before some international tribunals although lacking procedural capacity to bring actions in most cases....... The legal order will continue to be imperfect as long as it faces new challenges such as apartheid and modern technological advance, and the individual as a subject of international law will continue to play an important role in the development of the law."
(a) The community must be politically organised;
(b) It should have control over a definite territory;
(c) This control should tend towards permanence; and
(d) The community thus constituted must be independent. But international law does not provide as to how those essential conditions are to be determined. International Law leaves the members of International community free to determine whether the States to be recognised contain essential conditions of Statehood. It is because of this reason that recognition is very often said to be a political diplomatic function.Theories of Recognition. - There are two main theories of recognition : (1) Constitutive Theory, and (2) Declaratory or Evidentiary Theory. (1) Constitutive Theory. - According to Oppenheim, "a State is, and becomes, an international person through recognition only and exclusively." According to this theory, recognition clothes the recognised State with duties and rights under international law. Recognition is a process through which a political community acquires international personality by becoming a member of the family of nations. Hegel, Anzilloti, Holland, Oppenheim, etc. are the chief exponents of this theory. Judge Lauterpacht has written that there is a legal duty on the part of the States to recognise any community that has in fact attained Statehood. As pointed out by P.E. Corbett, "According to the constitutive theory, Statehood and participation in the international legal order are attained by political groups only in so far as they are recognised by established States." This theory does not conform to the practice of States. In practice most of the States accept the declaratory theory. Criticism. - This theory has been severely criticised by many jurists. In practice, States do not accept any obligation to recognise a community that has attained Statehood, although they may normally recognise it. According to this theory, unrecognised State can have neither rights nor duties under international law. This is a very absurd suggestion. (2) Declaratory Theory. - According to this theory, Statehood or the authority of the new government exists as such prior to and independently of recognition. Recognition is merely formal acknowledgment through which established facts are accepted. The act of recognition is merely declaratory of an existing fact that a particular State or government possess the essential attributes of statehood as acquired under international law. The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Corbett and Fisher. Brierly has remarked that "the granting of recognition to a new State is not 'constitutive', but a 'declaratory' act. A State may exist without being recognised if it exists in fact, then whether or not it has been formerly recognised by other States, it has a right to be treated by them as a State." Criticism. - This theory has also been subjected to criticism. The view that recognition is only a declaratory of an existing fact is not completely correct. In fact when a State is recognised, it is a declaratory act. But the moment it is recognised, there ensue legal effects of recognition which may be said to be of constitutive nature. Conclusion. - On the basis of the above discussion it may be concluded that recognition is declaratory as well as constitutive. As pointed by Starke, "The truth lies somewhere between the two theories." Oppenheim has also admitted that, "recognition is declaratory of an existing fact but constitutive in nature." To conclude in the words of Prof. Briggs, "Juridical theories of recognition deduced from jurisprudential concepts fail to explain the facts of State conduct and induction from State conduct have failed to provide a judicial, unambiguous theory of recognition."
(1) De facto recognition, and
(2) De jure recognition.(1) De facto recognition. - As pointed by Prof. Schwarzenberger, "When a State wants to delay recognition de jure of any State, it may, in the first stage grant de facto recognition. De facto recognition is given because it is doubted that the State recognised may not be stable or it may not be able and willing to fulfil its obligations under international law. De facto recognition means that the State recognised possesses the elements of Statehood and is fit to be a subject of international law. According to Prof. Oppenheim, "The de facto recognition of a State or government takes place when in the view of the recognising State the new authority although actually independent, has not acquired sufficient stability or does not yet offer prospects of complying with other requirements of recognition such as willingness or ability to fulfil international obligations. Further "de facto recognition is in a sense provisional and liable to be withdrawn if the absent requirement of recognition fails to materialise." Under de facto recognition, diplomatic relations are not established. (2) De jure Recognition. - De jure recognition is granted when in the opinion of the recognsing State the recognised State or its government possesses all the essential requirements of Statehood and is capable of being a member of the international community. As pointed out by Prof. H.A. Smith, the British practice shows that three conditions precedent are required for the grant of de jure recognition of a new State or a new government. The three conditions are - (a) A reasonable assurance of stability and permanence; (b) The government should command the general support of the population; and (c) It should be able and willing to fulfil its international obligation. Distinction between de facto and de jure recognition. - As pointed out by Schwarzenherger, "De facto recognised is by nature provisional and may be made dependent upon conditions which the new entity has to comply. It differs from de jure recognition, in that there is not yet a formal exchange of diplomatic representatives. De jure recognition.........................is complete, implying, full and normal diplomatic relations." In Luther v. Sagar, (1921)3 K.B. 532, it was held that there is no distinction between de facto and de jure recognition for the purpose of giving effect to the internal acts of the recognised State. The majority of the jurists agree that so far as legal effects are concerned there is hardly any distinction between the two types of recognition. If at all there is any difference between two types of recognition, it is chiefly political rather than legal.
(1) Control over a considerable part of the territory;
(2) considerable support to the insurgents from the majority of the people living in the territory; and
(3) insurgents should be capable and willing to carry out international obligations.Effects of recognition of insurgency. - Following are the effects of recognition of insurgency :
(1) insurgents are not treated as Pirates.
(2) the rebels of civil strife are treated as hostis generis humani (the enemy of human beings), until they are recognised as insurgents;
(3) the international rules of war become applicable to them.
"A succession of international person occurs when one or more international persons take place of another international person, in consequence of certain changes in the letter's conditions."State Succession. - There is a succession of States where the territory of one State passes from its supremacy to that of another. A State may succeed another State by incorporating a certain portion of the latter's territory : it may be split up into two or more States, or new States may emerge out of the territory of a dismembered State as happened to the territory of Austro- Hungarian Monarchy as a result of the First World War, or to the territory of German Reich as a result of the Second world War. In other words the succession of State implies the substitution of one State for another. The succession is of two kinds, viz., universal and partial. Universal Succession. - There is universal succession -
(i) when one State is completely absorbed by another as a result of annexation or conquest, i.e., the South African Republic was annexed by Great Britain in 1900, Korea by Japan in 1910 and Abyssinia by Italy in 1936;
(ii) when several States agree to merge into a Federal State or Union, e.g., in 1871 the German States united together to form the German Empire ; the merger of Egypt and Syria on the 22nd February, 1958 and later Yemen on the 22nd March, 1958, to form the United Arab Republic of Egypt and Syria, or the merger of Iraq and Jordan on the 14th February, 1958, to form the Arab Federal State; and
(iii) when one or more States are formed or one or more International persons take the place of another International Person by division of a former single State or international Person, each of the independent States being a successor State, e.g, the division of India into India and Pakistan in 1947.Partial Succession. - Partial succession arises -
(i) by succession, when another State is established by a part of the territory breaking off from the parent State and thereby gaining independence e.g., the separation of the United States from the parent State Great Britain in 1776.
(ii) by cession or conquest, when one State acquires a part of the territory of another State and assumes sovereignty over the portion ceded, e.g., cession of California to the United States in 1847;
(iii) by dismemberment, when a full sovereign State loses part of its independence through incorporation into a Federal State or coming under the suzerainty or protectorate of a stronger power or when a not full sovereign State, i.e., a suzerain or protectorate or even a member of a Federal State, becomes full sovereign, e.g., Czechoslovakia was dismembered in 1938 as a result of the Munich Agreement.There is a considerable body of authority among the text-writers inclined to the view that the successor State is bound by the contracts of the extinct State. The new State becomes liable for all local debts and contractual obligations. The earlier view as laid down by an English Court in West Rand Central Gold Mining Co. Ltd. v. Rex that the sovereign of a conquering State was not bound by the obligations incurred by the conquered State, has undergone substantial change, and modem practice has tended to modify the rigidity of this doctrine of non-succession. The Permanent Court of International Justice in the German Settlers Case held that private rights acquired under existing law including those acquired from the State as the owner of the property are valid as against a successor in sovereignty, i.e., they do not cease on a change of sovereignty. The successor State is, however, justified in refusing to own the obligations of the ceded State which the latter incurred for the purpose of war against the former. Contracts, however, purely personal to the extinct State, do not survive purpose distinctly against the interests of the inhabitants of the territory transferred or contracted for financing of wars or other hostile undertaking against the successor State. Arrangements with respect to public debts are usually made in treaties. (6) Torts. - The succeeding States are under no liability for the delicts of the extinct State. (The Robert E. Brown Claim). (7) Succession to property lying in foreign State. - The successor State may claim any State property in the territory over which it acquires sovereignty. (8) Laws. - The civil law of the former sovereign continues unless changed by the successor State. Public law, however, changes simultaneously with the transfer of sovereignty. Whatever public law continues to remain in operation After a territorial transfer derives its force as a positive law owing to its acceptance by the acquiring State. (9) Nationality. - As regards nationality the inhabitants of the ceded or vanquished territory become subjects of the annexing State and lose citizenship of the former State. Usually a certain period of time is allowed to the inhabitants to elect for themselves as to which State they want" owe their allegiance.
Q. 27. As a result of Civil War a Province X secedes from the parent State and is recognised as independent. Consider the effect of this on (a) the public debt of the parent, State; (b) treaty rights and obligations binding the parent State ; and (c) mining concessions in X granted by the parent State to subjects of other powers.
(a) The new State X will become liable for all debts locally connected with such territory, e.g., debts charged on local revenues or on revenues charged on property situated within the territory. The new State will not incur any legal liability to the general debts of the parent State, unless otherwise provided for by the treaty.
(b) The new State X will not be liable under, or entitled to, any personal treaties relating exclusively to the persons of the contracting parties, e.g., treaties of alliance, arbitration or neutrality. But it will succeed to any treaties specifically relating to the territory comprised in the new State, such as treaties relating to the boundary or regulating the navigation of rivers flowing through its territory.
(c) The succeeding State is obliged to respect the concessionary rights which were legitimately conferred by the parent State : Such concessionary rights, specially the mining concessions, can be regulated and modified by the new State within its legislative competence so far as it relates to aliens and deal with them at its discretion.
Q. 28. As a result of the pressure of war X, a part of the State Y, is ceded to Z, another neighbouring State. Discuss its consequences on (a) the public debt of the ceded part X; (b) treaties and political obligations binding the ceded part; (c) mining concessions in the territory of the ceded part granted to aliens; and (d) an injury in the nature or a tort or delict committed by an official of the ceded part affecting an alien,
(a) The absorbing State will be liable for all civil obligations, including the public debt of the ceded part without regard to the value of the assets received.
(b) Treaties and political obligations binding the ceded part will not be enforceable except treaties locally connected with the territory of the part absorbed.
(c) Mining concessions granted to foreigners in the ceded part will not be binding on the State.
(d) The succeeding State is under no liability for the delicts of the extinct State : West Rand Central Gold Mining Co. v. The King [(1905) 2 K.B. 391] and Robert E. Brown Claim [American Journal of International Law (1926), Vol. 20, p. 328].
(1) Internal. - It is the interference by one State between disputing sections of the community in another State either for protection of the legitimate Government or the insurgents.
(2) External. - It is the intervention by one State in the relations generally of the hostile relations of other States. It is, in other words, an intervention in the foreign affairs of another State, such intervention being directed against hostile relations of such State.
(3) Punitive. - It is a punitive measure failing short of war and is in the nature of a reprisal for an injury suffered at the hands of another State.Legal occasions of intervention. - According to Prof. Briefly the strictly legal occasions of an intervention may be brought under three heads, viz., self-defence, reprisals and the exercise of a treaty right. There are few interventions which can be justified by right and as such are not violations by the intervening State of the independence of another. They are discussed below along with other grounds which may not afford a reasonable justification for intervention. 1. Self-Preservation. - The supreme interest of the State overrides law. The right of self-preservation is more sacred than the duty of respecting the independence of other States. A State has a right to interfere in the affairs of another State where the security and immediate interests of the former are compromised. Interventions, therefore, in order to ward off imminent danger to the intervening State are justified by the force of circumstances. The danger must be direct and immediate, not contingent and remote. Further, the immediate cause for intervention must be sufficiently important to justify war. And, lastly, the necessity of self-defence must be instant, overwhelming, leaving no choice of means and no time for deliberation. (The Caroline). 2. Enforcement of Treaty Rights. - A State is justified in interfering in the affairs of another State if the provisions of any treaty oblige the former to preserve the independence or neutrality of the latter. Such intervention does not violate any right of independence because the State that suffers has conceded such liberty of interference by treaty, Invitational Intervention. - As regards invitation by the lawful government of the State to intervene in its internal affairs, the matter is not free from difficulty. It is again highly controversial whether the invitation from the government could be legitimately regarded as from the lawful government in such cases. The most conflicting intervention has been the involvement of the United States and other States in the Vietnamese conflict. Although many writers, notably American, have justified the United States intervention in that conflict as a lawful intervention, it cannot be denied that the civil war in that case had been sponsored, aided and promoted by the United States of America, much to the woe of Vietnamese. This intervention may be said to be the outcome of the policy of maintenance of balance of power in the region. 3. Grounds of Humanity. - Another justification for intervention is based on the ground of humanity. Lawrence observes that in the opinion of many writers such interventions are legal, but they cannot be brought within the ordinary rules of International Law, which does not impose on the State the obligation of preventing barbarity on the part of their neighbours. The barbarities committed in East Bengal by the Government of Pakistan in the name of a united Pakistan following a civil war towards the end of March 1971 were unprecedented; and in spite of the loud proclamations of the United Nations, established with the pious object of saving succeeding generations from the scourge of war and establishing conditions under which justice and respect for the obligations arising from the International Law can be maintained, it did not take cognizance of the serious situation encompassing East Pakistan until the breaking out of war between India and Pakistan in the early part of December 1971, when also it completely ignored the basic cause of Bangladesh tragedy. The brutal and unprovoked killings by West Pakistani forces and barbarities were in the teeth of the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. 4. Intervention to prevent illegal intervention. - Intervention undertaken for the purpose of prevention or ending illegal intervention on the part of another State is regarded lawful. 5. Balance of Power. - Preservation of the balance of power has been an undoubted maxim of European diplomacy from the middle of the seventeenth century. It is condemned by jurists of all ages. 6. Protection of persons and property. - Protection of the persons, property and interest of its nationals abroad or defence of national honour may provide justification for intervention. The necessity for protection may arise due to gross injustice or due to injury caused by unfair discrimination. Such persons are primarily subjects to the local law, but they may claims their own State's protection on account of unworthy treatment. Such right of intervention is afforded on the ground of international committee and tolerance with which a State is expected to comply. 7. Collective intervention. - Collective intervention pursuant to Chapter VII of the Charter undertaken under the authority of the Security Council may afford another reasonable ground of intervention.
(1) A State which holds a protectorate has a right to intervene in all the affairs of the protected State.
(2) If an external affair of a State is at the same time by right of an affair of another State, the latter has a right to intervene, in case the former deals with that affair unilaterally.
(3) If a State which is restricted by an international treaty in its external independence or its territorial or personal supremacy does not comply with the restrictions concerned, the other party or parties have a right to intervene.
(4) If a State in time of peace or war violates such rules of the Law of Nations as are universally recognized by custom or are laid down in law- making treaties, other States have a right to intervene and to make the delinquent submit to the rules concerned.
(5) A State that has guaranteed by treaty the form of government of another State, or the reign of a certain dynasty over the same, has a right to intervene in case of a change of form of government or of dynasty, provided that the treaty of guarantee was concluded between the respective States and not between their monarchs personally.
(6) The right of protection over citizens abroad, which a State holds may cause an intervention by right to which the other party is legally bound to submit.
(7) Finally the Covenant of the League of Nations provided, as does the Charter of the United Nations, for the collective intervention of the member States for the purpose of restraining States which disturb the peace of the world by resorting to war or force generally or to threats of force in breach of the provisions of the Covenant.In contradistinction to intervention by right, Professor Oppenheim observes, there are other interventions which cannot be considered illegal, although they violate the independence or the territorial or personal supremacy of the State concerned, and although such State has by no means a legal duty to submit patiently and suffer the intervention. They are of two kinds, viz., intervention in self-preservation and intervention which is necessary in the interest of the balance of power.
(1) "The American continents by the free and independent condition which they have assumed and maintained, are henceforth not to be considered as subjects for future colonisation by any European powers.
(2) "In the wars of the European Powers, in matters relating to themselves we have never taken any part, nor does it comport with our policy to do so.
(3) "The United States had not intervened, and never would intervene, in wars in Europe; but they could not, on the other hand, in the interest of their own peace and the happiness, allow the allied European Powers to extend their political system to any part of America, and to try to intervene in the independence of the South American republics ......... We should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety."The Monroe Doctrine, as observed by Oppenheim, is largely of political and not legal character. It established a fundamental principle of American policy by declaring that there must be no territorial agreement by any non-American power on American soil and also embodying the non-intervention by the United States in European policies. It asserts a claim of political hegemony by U.S.A. over the whole American continent. (b) Drago Doctrine. - The Foreign Secretary of the Republic of Argentine, Louis M. Drago, in 1902, at the time when Venezuela had been pacifically blockaded by Great Britain and Germany, on behalf of their nationals, expressed the opinion that a State should not have recourse to armed force for the recovery of contract debts claimed from the Government of one country by another as being due to its subjects. He observed that the failure of a State to make payment of its public debt did not give rise to the right of intervention. Drago's objections were confined to the use of armed force in the collection of public debts only. This view was incorporated in the Second Hague Convention, 1907, but was qualified by the addition that armed intervention could apply when the debtor either refused arbitration or failed to submit to the award. (c) The Brezhnev Doctrine. - The Communist countries, notably the U.S.S.R., have evolved a new socialist international law overriding the conventional law which takes into account new developments in international relations. Lenin first propounded this theory in February 1918 by stating that the interests of socialism are higher than the interest of the right of nations to self- determination. The doctrine which bears the name of the author was propounded by L.I. Brezhnev, General Secretary of the C.P.S.U., at the fifth Congress of the Polish Communist Party on November 12, 1969, which affirms that when internal and external forces hostile to socialism attempt to turn the development of any socialist country in the direction of the restoration of the capitalist system, there is a threat to the security of socialist commonwealth as a whole. This doctrine has received trenchant criticism from independent nations. The U.S.S.R.'s intervention in Czechoslovakia in August 1968 was deplored by all right-thinking people of the world, and only proved that, until a more equitable order was established, the smaller States would only serve as factors in the grand design of the super powers.
(i) When it has not accepted the sovereignty of any other state over the said territory.
(ii) Possession should be peaceful and uninterrupted.
(iii) Possession should be in public.
(iv) Possession should be for a definite period, D.H.N. Johnson, "Acquisitive Prescription in International Law" BYBIL,. Vol. XXVII (1950), p. 332 at pp. 335, 344-347.It may, however, be noted that in the presence of some treaty or convention, territory cannot be acquired by prescription through administrative acts only, See Frontier Lands case (Belgium-Netherlands) ICJ Rep. (1959) p. 209. Temple of Preah Vihear (Merits) Cambodia v. Thailand, ICJ Rep. (1962) p. 6. (III) Accretion. - As pointed out by Starke, "Title by accretion occurs when new territory is added mainly through natural causes, to territory already under the sovereignty of the acquired State." No formal act or assertion of title is necessary. (IV) Cession. - Territory may also be acquired through cession. It may either be a voluntary act or in consequence of a war. Cession is generally considered valid only when the sovereignty of the territory concerned is transferred to another State, In re: Berubari Union and Exchange of Enclave, AIR 1960 SC 845 at pp. 856-57, the Supreme Court of India observed : "........... it is an essential attribute of sovereignty that a Sovereign State can acquire foreign territory and, in case of necessity, cede a part of its territory in favour of a Sovereign State and this can be done in exercise of its treaty making power. Cession of national territory in law amounts to the transfer of Sovereignty over the said territory by the owner State in favour of another State This power, it may be added, is of course subject to the limitations which the Constitution of the State may either expressly or by necessary implication impose in that behalf." In Union of India v. Sukumar Sengupta, AIR 1990 SC 1692. (popularly known as Tin Bigha case). Tin Bigha area was given to Bangladesh by India under the 1974 and 1983 agreements to connect Dahagram with Panbari Mouza (S. Patram) of Bangladesh. As per agreement "lease in perpetuity" was given over the area at the rate of Re. 1/2 per annum but the Government of India waived its right to charge such rent in respect of the leased area. The Agreement provided that "Sovereignty over the leased area shall continue to vest in India". Delivering the judgment, Sabyasachi Mukarjee, C.J. observed :
"A fortiori, the said transaction did not amount to cession of the said area of Tin Bigha in favour of Bangladesh. Cession as understood in international law would result in an actual and physical transfer of the said area to Bangladesh following which Bangladesh would have the exclusive right to treat the said transferred territory as part of its own territory and exercise full control, dominion and right over the same. This is not the position or the situation which is contemplated under the agreement. The rights intended to be conferred on Bangladesh under the said agreements would amount to what is known as `servitude' in international law, AIR 1990 SC 1692, at p. 1706."(V) Annexation. - A territory may also be acquired by annexation. It is, however, necessary that after conquest, sovereignty must be established over the territory. That is to say, effective occupation after conquest is necessary. This mode has become obsolete after the commencement of the Charter of the U.N. Article 2 (4) of the Charter makes it incumbent upon Member States to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. In view of this provision acquisition of territory by annexation is no more legal. A recent example of this is the annexation of Kuwait by Iraq. After annexation Iraq declared Kuwait to be its 19th province. But the Security Council of the U.N. declared the annexation of Kuwait as well as the said declaration of Iraq as null and void. Subsequently, Kuwait was freed. (VI) Lease. - Yet another mode of acquiring territory is by way of lease. A State may lease a part of its territory to another State. For example, State of Malta has leased an island to Britain for some time. Similarly, Panama leased Panama canal area to the U.S.A. (VII) Pledge. - Sometimes a State may pledge a part of its territory to another State in return of some money. (VIII) Plebiscite. - There is controversy as to whether a territory may be acquired through plebiscite or not. A recent example of acquiring territory by this mode is that of West Iran which was claimed both by Netherlands and Indonesia. A plebiscite was held under the auspices of United Nations. The people of West Iran decided to merge with Indonesia. Example of Kashmir. - In case of Kashmir, Pakistan has claimed that there should be plebiscite so as to enable the people of Kashmir to decide whether they like to merge with India or with Pakistan. In the beginning India had agreed to hold plebiscite, was necessary. Some jurists contend that the right of plebiscite is related to the right of self-determination expressed in the charter of the United Nations. Thus so far as legal position is concerned, plebiscite has yet to become an obligatory norm of international law. India cannot, therefore, be rightly blamed for violating the rules of international law. (IX) Acquisition of territorial sovereignty by newly emerged State. - Yet another method of acquiring territorial sovereignty is through the emergence of a newly independent State. This is particularly true in case of those States who were previously the colonies of some States. In this connection the difficulty is how the territory which was previously part of another State can acquire sovereignty after becoming independent. This has been aptly explained by Starke in the following words : "This abstract difficulty may be resolved by treating the people of the territory, as such, provided they have sufficient degree of political maturity, as having or acquired sovereignty pending attainment of statehood. Upon the foundation of new State, there is simply a crystallisation of the situation, territorial sovereignty of the people then becoming that of the State itself."
(1) Cession. - As one State acquires the territory through cession, the other State loses it.
(2) Operation of Nature. - Sometimes a State may lose its territory through the operation of nature such as earthquake, etc.
(3) Subjugation. - A State may acquire territory through the operation of nature.
(4) Prescription. - When a State occupies a particular territory for a long period then it is entitled to acquire it through prescription. On the contrary, the State which had occupation over it earlier may lose it.
(5) Revolt. - Sometimes a state may lose its territory and a new state may emerge. For example, as a result of revolt, Pakistan lost the territory of East Pakistan and a new State of Bangladesh emerged.
(6) Dereliction. - When a state renounces a part of its territory or fails to exercise or slackens, to exercise sovereignty over it, then it may lose such territory. Such examples are however, very rare in history.
(7) Losing a Territory by Granting of Independence to a colony. - Britain, France and other imperialist States lost territories during last few decades by granting independence to colonies or otherwise acquiring of independence by the colonies.
1. To fly foreign territory without landing.
2. To land for non-traffic purposes, e.g., to repair a machine.
3. To disembark in a foreign country traffic originating in the state of the origin of the aircraft.
4. To pick up traffic from the State whose territory is used for landing destined for the State to which the aircraft belongs.
5. To take on traffic from the State whose territory is used for landing for any contracting State, or disembark traffic, on that territory coming from any contracting State.Only nineteen States appended their signatures to the Convention embodying the "Five Freedoms of the Air". Great Britain and some other States did not agree to the Convention unconditionally and instead proposed an international control authority to apportion the world's air traffic equitably between all States. Canada supported by stating that the first four freedoms be controlled and regulated by an international body that would allocate frequencies to States with agreed principles. There thus emerged two different groups, one group adhering to the "Five Freedoms of the Air", i.e., favouring free competition; and the other adhering to the proposal of an international control over the enjoyment of these freedoms. The result was that the Chicago Conference failed to bring about a rapprochement between the competing and conflicting principles of air navigation, the matter was left to the States to enter into bilateral agreement for evolving harmony to the divergent rules. Finally, in 1946 the United States withdrew its name from being a party to the "Five Freedoms" agreement and entered into an understanding with Great Britain by means of the Bermuda Agreement the same year, whereby it was made clear that an international regulation and control of air traffic was still a thing of the future.
(a) unlawfully, be force or threat thereof, or by any other form of intimidation, seizes or exercises control of, that aircraft, or attempts to perform any such act, or
(b) is an accomplice of a person who performs or attempts to perform any such offence."This provision again, instead of defining the term "hijacking", simply enumerates the constituent elements of hijacking. The concept of 'hijacking' has been further widened in the Montreal Convention 1971. Article 1 of the Montreal Convention provides : "1. Any person commits an offence if he unlawfully and intentionally :
(a) performs an act of violence against a person on board on aircraft in flight if that act is likely to endanger the safety of that aircraft; or
(b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or
(c) places or causes to be placed on an aircraft, in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or
(d) communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.2. Any person also commits an offence if he :
(a) attempts to commit any of the offences mentioned in paragraph 1 of this Article; or
(b) is an accomplice of a person who commits or attempts to commit any such offence.".Hijacking of an Indian Aircraft and the I.C.A.O. jurisdiction case. - On January 30, 1970, two persons hijacked an Indian aircraft to Lahore (Pakistan). Instead of apprehending and punishing them, the Government of Pakistan encouraged them. Consequently, the hijackers burnt the aircraft at the airport and this incident was shown to the people of Pakistan through television. Thus Pakistan flagrantly violated Article 11 of the Tokyo Convention. It was also the violation of the United Nations Security Council Resolution 286 (1970) which called on "States to take all possible legal steps to prevent further hijacking or any other interference with international civil air travel". Consequently, India banned all Pakistani flights through her territory. Pakistan filed a complaint in the Council of the I.C.A.O. against this. On the other hand, India filed an application in the International Court of Justice challenging the jurisdiction of the Council of I.C.A.O. to hear and decide Pakistani complaint, I.C.J. Reports 1972, pp. 46 ff. It was argued on behalf of India that India being a sovereign State is fully entitled either to allow or not to allow overflights of aircraft of other countries through her territory. But Pakistan challenged the jurisdiction of the World Court to hear and decide India's application. The court by 13 votes to 3, rejected the Government of Pakistan's objections on the question of its competence and held that it had jurisdiction to entertain India's appeal. By a majority of 15 votes to 2, the World Court further held the Council of I.C.A.O. to be competent to entertain the application and complaint laid before it by the Government of Pakistan on March 3, 1971; and in consequence rejected the appeal made to the Court by the Government of India against the decision of the Council assuming jurisdiction in those respects. It may be noted here that the World Court simply gave its verdict relating to the competence of the Council of I.C.A.O. It did not go into the merits of respective claims of the parties relating to the banning of Pakistani overflights and the incidents which led to such ban. Later on India and Pakistan entered into Simla Agreement and agreed to settle all their disputes through peaceful means and through bilateral negotiations. Subsequently, Delhi Agreement, 1973, and Delhi Tripartite Agreement, 1974, were entered into to resolve matters relating to the repatriation of Pakistani Prisoners of War. The representatives of India and Pakistan have also held several rounds of talk relating to the resumption of flights of aircraft by both countries over the territory of each other but with no success so far. The main stumbling block in the solution of this problem is Pakistan's persistent refusal to withdraw her case pending before the Council of I.C.A.O. India made it clear that she would not entertain any proposal for resumption of Pakistani overflights through her territory unless and until Pakistan first withdraws her case from the Council of I.C.A.O. This stand was in conformity with the letter and spirit of the Simla Agreement between the two countries. Later on Pakistan withdrew the complaint from the I.C.A.O. Council and India allowed the resumption of overflights through her territory.
(1) Any illegal act of violence, detention or any act of depredation committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(a) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.
(3) Any act of inciting or of intentionally facilitating an act described in sub-paragraph (1) or sub-paragraph (2) of this article. (The definition noted has been retained without any change in Article 101 of the U.N. Convention on the Law of the Sea, 1982).A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 15. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act, Article 17 of the 1958 Geneva Convention on the High Seas. Essential elements of 'piracy'. - Following are the essential elements of piracy :
(1) Violence or robbery at high seas must be for private ends. Such acts committed by warships, Government ships or aircraft cannot be called 'piracy'. For example, in the Second World War German U-Boats sank enemy ships in the area of long distance blockade in the high seas without any prior intimation. This act cannot be called 'piracy', because it was committed under the authority of the State of Germany. In fact, this act is violation of the laws and custom of war and a war crime.
(2) Illegal acts of violence, detention or any act of depredation committed for private ends must be by the crew or passengers of a private ship or a private aircraft. The only exception to this is recognised in Article 16 which provides that the acts of piracy committed by a warship, government ship or government aircraft, whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship.
(3) Illegal acts of violence, detention or any act of depredation may be either on the high seas or in a place outside the jurisdiction of any State.
(4) Such acts must be directed against a ship, aircraft, persons or property.
(5) Violence, detention or any act of depredation may constitute piracy provided that above elements are satisfied.
(6) Committing of actual robbery is not essential for piracy. Even an unsuccessful attempt to commit robbery at high seas will constitute piracy. This was held in Re Piracy Jure Gentium, (1934) AC 586. The facts of this case are as follows :
In 1931, some Chinese citizens were arrested on the charge of piracy. They were tried in Hong Kong and held guilty. In this case, accused had made an unsuccessful or abortive attempt to commit robbery at high seas. The Court was confronted with the question as to whether actual robbery was essential for piracy. The Hong Kong Court referred this question to the Privy Council -for its opinion. The Privy Council held that an act to constitute piracy, actual robbery is not essential. Even if an accused is guilty of making an unsuccessful attempt to commit robbery, he will be guilty of having committed piracy and will be punished.
(7) Any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a private ship or aircraft will also constitute piracy (Article 15(2) of the Geneva convention on the High Seas).
(8) Any act of inciting or of intentionally facilitating any illegal act described above will also constitute piracy.
(i) A line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 percent of the shortest distance from such point to the foot of the continental slope, or
(ii) After having provided the above method of establishing the outer edge of the continental margin, the draft convention on the Law of the Sea lays down the formula for fixing the precise limits of the continental shelf of a coastal state in paragraph 5 of the Article 76 in following words : "The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed drawn in accordance with paragraph 4(a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 neutical miles from the 2,500 metres isobath, which is a line connecting the depth of 2,500 metres."(b) Exclusive Economic Zone - After the concept was first advocated by Kenya, it has attracted many adherents. The Third U.N. Conference on the law of the Sea deserves credit for having settled the provisions relating to the concept of Exclusive Economic Zone. These provisions now find mention in U.N. Convention on the Law of the Sea, 1982; Article 55 of the convention provides that the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part (i.e. Part V), under which the rights and jurisdictions of the coastal State and freedom of other states are governed by the relevant provisions of this convention. Article 56 which deals with rights, jurisdictions and duties of a coastal State in the exclusive economic zone, provides the following 1. In the exclusive economic zone the coastal State has :
(a) Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the sea-bed and sub-soil and the superjacent waters, and with regard to other activities for the economic exploitation and exploration of the Zone, such as the production of energy from the water currents and winds;
(b) Jurisdiction as provided for in the relevant provisions of this convention with regard to :
(i) the establishment and use of artificial Islands, installation and structures;
(ii) the protection and preservation of the marine environment,
(c) Other rights and duties provided for in this convention.2. In exercising the rights and performing its duties under this convention in the exclusive economic zone, the Coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this convention. As regards the breadth of the exclusive economic zone, Article 57 provides that it shall not exceed beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. As regards the rights and duties of other States in the exclusive economic Zone, Article 58 provides the following :
1. In the exclusive economic zone, all States whether coastal or land locked, enjoy, subject to the relevant provisions of this convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to these freedoms such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this convention.
2. Articles 88 to 115 (These articles relating to the High Seas), and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this convention in the exclusive economic zone, States shall have due regard to rights and duties of the Coastal State and shall comply with the laws and regulations adopted by the Coastal State in accordance with the provisions of this convention and other rules of international law in so far as they are not incompatible with this Part.It may be noted here that the concept of Exclusive Economic Zone as highlighted by the 1982 Convention on the Law of the Sea has already become part of modern law. Case concerning the Continental Shelf (Tunisia, Libya) ICJ, Reop. 1982, p.
(1) Freedom of navigation;
(2) Freedom of fishing;
(3) Freedom to lay submarine cables and pipelines; and
(4) Freedom to fly over the High Seas.These freedoms, and others which are recognised by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States. This is to say, the freedoms enumerated are not exhaustive. They are in addition to those recognised by the general principles of international law. (b) International Sea-Bed Area. - Definition and Delimitation of the "Area". - The first essential requirement of a legal regime of the International Seabed Area (hereinafter called the "Area") is that the precise limits of the Area should be clearly defined and they should be delimited from other maritime zones. The Area has been defined as the sea-bed and ocean floor and sub-soil thereof beyond the limits of national jurisdiction. A pertinent question therefore arises as to what is the outer limit of coastal State's jurisdiction in sea-bed. The first and second U.N. Conferences on the Law of the Sea failed to solve this question satisfactorily. The first U.N. Conference on the law of the sea which was held in Geneva in 1958 and which adopted four conventions including the convention on the continental shelf failed, and failed miserably to fix the outer limits of continental shelf. If need not be overemphasized here that the outer limit of continental shelf is the limit where the coastal States national jurisdiction in seabed ends. Beyond the continental shelf, the sea bottom falls away more steeply into deep water, until it levels out again in the floor of main ocean basins, which lie as much as ten or even fifteen thousand feet below the surface. The "Area" may therefore be defined as the sea-bed and ocean floor of the sea and sub-soil thereof beyond the continental shelf of a coastal State and extending upto the continental shelf ends.
(1) By Birth. - A person acquires nationality of the State where he is born. He also acquires the nationality of his parents at the time of his birth.
(2) By Naturalization. - Nationality may also be acquired by naturalisation. When a person living in foreign State acquires the citizenship of that State then it is said to be acquired nationality through naturalization.
(3) By Resumption. - Sometimes a person may lose his nationality because of certain reasons. Subsequently, he may resume his nationality after fulfilling certain conditions.
(4) By Subjugation. - When a State is defeated or conquered then all the citizens acquire the nationality of the conquering State.
(5) Cession. - When a State has been ceded in another State, then the people of the territory which has been ceded acquire the nationality of the State in which their territory has been merged.In addition to the above mentioned modes there may be some other circumstances whereby a person may acquire nationality. For example, if a person is appointed in the public service of another State, then acquires the nationality of that State. Loss of nationality. - Following are the modes of loss of nationality :
(1) By Release. - In some States, law provides that the citizens may lose the nationality by release. In the loss of nationality by release it is necessary to submit an application for the same. If the application is accepted, the person concerned is released from the nationality of the State concerned.
(2) By Deprivation. - In certain States, law provides that if the national of that State without seeking prior permission of the government obtain employment in another State, then he may be deprived of his nationality.
(3) Long Residence Abroad. - Yet another mode of loss of nationality is the long residence abroad. The State laws of many States contain provisions in this connection. Thus, if a person resides for a long period abroad then his nationality ends.
(4) By Renunciation. - A person may also renounce his nationality. The need for renunciation arises when a person acquires nationality of more than one State. In such a condition he has to make a choice as to of which country he will remain the national. Consequently, he has to renounce the nationality of one State.
(5) Substitution. - Some States provide for the substitution of nationality. According to this principle, a person may get nationality of a State in place of the nationality of another State. This is called nationality by substitution whereby he loses the nationality of one State and acquires the nationality of another State.
(1) A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character. The term "political offence" is not easy to define. If has, however, been established according to judicial decisions that to constitute a political offence there must be two or more parties, each seeking to impose, government of its own choice on the other or striving for political control in the State where the offence is committed and the offence must be in pursuance of that objective.
(2) Military offences, e.g., desertion, and religious offences are also generally not subject to extradition proceedings. The rule is that extradition is not allowed for trifling cases.
(3) The fugitive demanded shall not be liable to be tried, for any offence committed prior to his surrender other than the specified offence mentioned in the request for his extradition until he has been liberated and has had an opportunity of leaving the country.
In the case of United States v. Rauscher, (1886), Rauscher, a sailor, was surrendered by Great Britain to U.S.A. upon a charge of murder. He was, however, tried and convicted in U.S.A. upon a minor charge of inflicting cruel and unusual punishment to the man of whose murder he was accused before. On appeal the Supreme Court of the United States quashed the conviction and ordered the release of the prisoner on the ground that, unless otherwise provided for by treaty, the prisoner could only be charged with the offence for which he was extradited unless he was given a reasonable time to return to the country which surrendered him.
(4) The crime must be an offence in both the States. This is based on the principle of double criminality. [Eisler's Case].
(5) A fugitive criminal who has been accused of some offence, being the offence for which his surrender is asked shall not be surrendered until after he has been tried and has served his sentence for the offence committed in the State requested to surrender.
(6) There must be reasonable prima facie evidence of the guilt of the accused. The requested State shall satisfy itself that the evidence submitted justifies prima facie judicial proceedings against the accused but it is not within the province of the Courts of such a State to try the case on its merits.Case Laws - 1. Savarkar's Case. - Savarkar, an Indian and a British subject, was being transported in the P. and O. boat Morea to India for the purpose of his trial on a charge of high treason and abetment of murder. He escaped to the shore on October 25, 1910, while the vessel was in the harbour of Marseilles. He was, however, seized by a French policeman, who in mistaken execution of his duty, handed him over to the captain without any extradition proceedings. France demanded that Great Britain should give him up and ask his extradition in a formal way in conformity with International Law. Great Britain did not comply with this demand. By consent the matter was referred to the Permanent Court of Arbitration at The Hague. The award while admitting that an irregularity had been committed by the handing over of Savarkar to the British Authorities, decided in favour of Great Britain, holding that there was no rule of International Law imposing in such circumstances any obligation on the power which has in its custody a prisoner to restore him because of a mistake committed by the foreign agent, who delivered him up to that power. 2. Godfrey's Case. - In Rex v. Godfrey the term 'fugitive' came in for interpretation and it was observed by Lord Hewart, C.J. that although "at the first blush it might appear that when a man is spoken of as a fugitive, what is meant is that he has fled from one country to another country..... it seems that the words 'fugitive criminal' are equally satisfied whether the man has physically been present in that country or not, if he committed the crime there." 3. Mubarak Ali's Case. - In re Government of India and Mubarak Ali Ahmed the Queen's Bench referred with approval to Re Castioni in which the Court refused extradition because the crime of the fugitive was considered to be political. The present case, however, concerned a man charged with forgery and, even if the case had some political implications into which the Court could not inquire there was no reason to suppose that he would not receive a fair trial and it would be an 'impossible position for this Court to take up' and 'an insult to the Courts of India' to say that he would not. 4. Eisler's Case. - In the Eisler Extradition Case (1949) Gerhart Eisler, an alien communist, convicted in America of some criminal offences, fled from New York to Poland. He was arrested by the British police officers and produced for trial before a Bow Street Magistrate. The British Magistrate discharged Eisler from custody on the ground that the offence for which Eisler had been convicted in America, viz., perjury, did not fall under the technical head of perjury in England. This emphasizes the principle of double criminality, i.e., the crime must be an offence in both the States. 5. Dr. Ram Babu Saxena v. The State. - Dr. Ram Babu Saxena, member of the U.P. Executive Civil Service, was appointed in 1948 as Administrator, Tonk State, which was then an Indian State and had extradition treaty with the British Government. It was alleged that while serving in Tonk State be had committed crimes of extortion and cheating. Dr. Saxena contended that both these offences being not included in the extradition treaty, he was not liable for extradition. Their lordships of the Supreme Court observed that extradition of an Indian subject under S. 7 for an offence which is not extraditable under the extradition treaty entered into between the British Government and the Tonk State in 1869, is not, in any sense, a derogation from the provisions of the treaty which provides for the extradition of offenders for certain specified offences, assuming that the treaty of 1869 still subsisted after the accession of the Tonk state to the Dominion of India. The learned Judges were accordingly of opinion that the arrest and surrender of the appellant under S. 7 of the Act was not rendered unlawful by anything contained in the treaty of 1869, assuming, that it still subsisted. 6. Sucha Singh's Case. - After having murdered the Punjab Chief Minister Pratap Singh Kairon in 1965, Sucha Singh absconded to Nepal. In view of the extradition treaty between India and Nepal, on the request of the Government of India, the Government of Nepal extradited Sucha Singh after initiating proceedings against him in accordance with do law of Nepal. Nepal did not regard the crime as political.
(1) A shelter which is more than a temporary refuge; and
(2) a degree of active protection on the part of the authorities which have control over the territory of asylum.Right to Asylum. - According to Article 14 of the Universal Declaration of Human Rights, "Everyone has a right to seek and enjoy in other countries asylum from prosecution." It may, however, be noted that the Declaration simply recognizes the right of asylum, it does not grant right to receive asylum. Thus although everyone has a right to seek asylum yet there is no corresponding duty of States to grant asylum. Types of Asylum and the distinction between them. - Asylum may be classified into two categories - (i) Territorial asylum; and (ii) Extra-territorial asylum. Territorial Asylum. - Territorial asylum is granted by a State in its own territory and is considered as an attribute of territorial sovereignty of the State which grants asylum. On March 28, 1945, a convention on territorial asylum was adopted at Caracas. Article (1) of the said Convention runs as follows : "Every State has the right in exercise of its sovereignty to admit into its territory, such persons it deems advisable .........." This right has also been recognised in the draft declaration on Asylum adopted by the United Nations Human Rights Commission. Article 3 of the declaration provides : "No one seeking or enjoying asylum in accordance with the Universal Declaration of Human Rights, should except for overriding reasons of the population, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or to remain in a territory if there is a well-founded fear of prosecution endangering his life, physical integrity or liberty in that territory ........" The above principle has also been incorporated in Articles 31, 32 and 33 of Refugee Convention of 1951. Example of Dalai Lama and his Tibettan followers. - The grant of asylum to Dalai Lama and his followers was an indication of the exercise of territorial sovereignty by India. India as a sovereign State was within her rights to grant asylum to Dalai Lama and his followers in the territory of India. Example of influx of refugees from Bangladesh. - As pointed out earlier, each sovereign State can admit or grant asylum to any individual within its territory. India was within her right to grant asylum to millions of refugees from East Pakistan (now Bangladesh) who fled from their native land due to repressive policies followed by and ruthless prosecution caused by the military regime of General Yahya Khan. Extra-territorial or diplomatic asylum. - A State may also grant asylum in its Embassy in foreign countries or in its public vessels. Extra-territorial or diplomatic asylum may be classified into following categories : (a) Asylum in foreign Legation or Diplomatic Embassies. - Since granting of diplomatic asylum involves a derogation from the sovereignty of the State, international law ordinarily does not recognise a general right of a head of mission to grant asylum in the premises of legation. In order to grant diplomatic asylum, it is necessary to establish its legal basis in each particular case, because of the obvious reason that such a decision leads to the withdrawal of the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. This was held by the International Court of Justice in the case of the Asylum (Columbia v. Peru.), ICJ Reports (1950), p. 266. A leading case on asylum in foreign legations is Haya Dela Torra case [I.C.J. Reports (1951) p. 71]. The facts of this case : Haya Dela Torra, a Peruvian citizen, was charged with rebellion. Columbia granted him Asylum, in her embassy in Peru. After granting asylum, Ambassador of Columbia requested Peruvian Government to provide facility to enable Columbia to take Haya Dela Torra outside Peru. This request was made on the basis of Bolivian Agreement, 1911 and Pan American Havana Convention on asylum, 1928. Columbia contended that asylum was granted because Haya Dela Torra was accused of a political crime. Peru did not agree with this contention and rejected this request. The matter was referred to the International Court of Justice. The Court held that "Columbia as the State granting asylum is not competent to qualify the offence (as political) by a unilateral and definitive decision, binding on Peru". However, the Court held that Peru had failed to prove that Haya Dela Torra was accused of an ordinary crime, and not a political crime. The Court added that asylum to Haya Dela Torra had been irregularly granted because three months had passed after the suppression of the military rebellion which clearly showed that the urgency prescribed by Havana Convention as a condition for the granting of asylum had ceased to exist. But since Haya Dela Torra was a political offender the court held that despite the fact that asylum had been irregularly granted, Columbia was not bound to surrender Haya Dela Torra. The International Court of Justice held : "to infer an obligation to surrender a person to whom asylum has been irregularly granted would be to disregard both the rule of the extra legal factors involved in the development of asylum in Latin America and the spirit of Havana Convention." (b) Asylum in Consular premises. - The above principles also apply in case of the grant of asylum in consular premises. (c) Asylum in the premises of international institution. - Generally speaking international law does not recognise any rule regarding the grant of asylum in the premises of international institution. However, temporary asylum may be granted in case of danger of imminent violence. (d) Asylum in War Ships. - There is a controversy in regard to the grant of asylum in War Ships. Some writers are of the view that asylum can be granted in war ships in the territorial waters of a coastal State. On the other hand, some writers have expressed the view that such fugitive should be immediately handed over to the local police but it is conceded that asylum may be granted to political offenders. (e) Asylum in Merchant Vessels. - Since merchant vessels do not enjoy immunity from local jurisdiction, they are not competent to grant asylum to local offenders. Distinction between Territorial and Extra-territorial Asylum. - The distinction between territory and extra-territorial asylum has been aptly explained by the International Court of Justice in the Asylum case (Columbia v. Peru), ICJ Reports (1950) p. 266. "In the case of extradition (territorial) asylum the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of territorial sovereignty, the refugee outside the territory of the State where the offence was committed, a decision to grant asylum in no way, derogates from the sovereignty of that State. In the case of diplomatic asylum, the refugee is within the territory of the State where offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws offenders from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in such particular case. To sum up, in case of territorial asylum international law allows a State to grant asylum in exercise of its territorial sovereignty. It may or it may not be treated as a friendly act, but there can be no legal objection to the grant of asylum by a State within its territory. In case of diplomatic asylum, the position is entirely different. Since the offender is within the territory of the State where asylum is to be granted, it is obviously a derogation of the sovereignty of that State and, therefore, in such a case asylum may be granted only in exceptional cases and it is necessary to establish its legal basis in each particular case.
(1) Pacific means of settlement; and
(2) Compulsive or forcible means of settlement.Pacific Means of Settlement of International Disputes. - Following are the pacific means of settlement of international disputes :- (1) Arbitration. - By arbitration we mean the method through which a dispute is referred to certain persons called arbitrators. Their decision is known as the award. These arbitrators are selected by the parties to the dispute. Although they are selected or appointed on the basis of the consent of the parties to a dispute, their decision or award is binding upon the parties. The history of settlement of international disputes through arbitration may be traced from very ancient times. But in modern times its history dates back from the Jay Treaty of 1794 between England and America. The next important event in the development of settlement of international disputes through arbitration was Albama Claims Arbitration, 1872. In this case, America had claimed compensation from Britain on the ground that it had violated the laws of neutrality. The Arbitrators gave their award in favour of America and held that Britain was liable to pay compensation. As remarked by Judge Hudson, "The success of Albama Claims Arbitration stimulated a remarkable activity in the field of international law decisions". Kutch Arbitration Award (1968). - It will be desirable to mention here briefly the facts and circumstances which led to the Kutch Arbitration Award (1968), and the details of the award. The Rann of Kutch is a place on the border of Gujarat and West Pakistan. There was a dispute between India and Pakistan in regard to some land in the Rann of Kutch. Pakistan claimed 3,500 sq. miles of the said land. This led to the armed conflict between the two countries in 1965. After the cease-fire both India and Pakistan agreed to refer this matter to arbitration. On arbitrator, Albes Beber of Yugoslavia, was nominated by India, the other arbitration, Nasrollah Entezam of Iran, was nominated by Pakistan, and the third was to be nominated with the mutual agreement of both the States. Since India and Pakistan could not agree upon a third arbitrator, on the request of both the countries, Judge Gunnar Lagergeren, the Chairman of the Arbitral Court was nominated by the Secretary-General of the United Nations. The Arbitral Court gave its award on 19th February, 1968. According to the award 320 sq. miles i.e. (about 10% of the Pakistani claim) of the land belonged to Pakistan and the rest belonged to India. It is one of the well recognized principles of international law that the award of an international arbitral court is binding upon the parties. Consequently, India accepted and implemented it. (2) Judicial Settlement. - Thus the International Court of Justice has rendered signal service for the development of International law. However, the Court has its own limitations. Its decisions have no binding force except upon the parties to a dispute and only in respect of particular dispute between them. (3) Negotiations. - Negotiations are also the means for the settlement of international disputes. It is a much less formal method than judicial settlement. Sometimes disputes are settled only through negotiations. But if negotiations fail to resolve the dispute, then other method, such as good offices, mediation, etc. may be used along with negotiations. (4) Good Offices. - When two States are not able to resolve their disputes, a third State may offer its good offices for the same. These offices may also be offered by international organisations or some individuals. The third State, individual or international organisation creates such an environment as may be conducive for the settlement of the disputes. Some general suggestions may also be put forward but the third party does not take active part in the negotiations. (5) Mediation. - Mediation is yet another method through which efforts are made to the settlement of international disputes. In the case of mediation, the third State or individual not only offers its services but also actively participates in the talks to resolve the dispute. (6) Conciliation. - In wider sense, conciliation is a method through which the other States or the impartial persons try to resolve the dispute peacefully through different means. After the matter is referred to a Commission or Committee which submits its report and recommends certain measures for the settlement of disputes. These proposals are, however, not binding upon the parties. In the words of Judge Hudson, conciliation is "a process of formal proposals of settlement after an investigation of the facts and an effort to reconciliate to accept or reject proposals formulated". The Hague Conventions of 1899 and 1907 made the provisions for a Conciliation Commission. In the present time also conciliation is adopted as a method of settlement of an international dispute. A recent example of this is the 1965 Convention on the Settlement of Investment Disputes between States and the Nations of other States which provides for Conciliation Commission for the settlement of dispute. (7) Enquiry. - Enquiry is also a method which is often resorted to for the settlement of disputes. It may be noted that it is not an independent method and is often applied alongwith other methods. The main objective of the enquiry is to make investigation of the relevant matters so as to establish facts which may hold the ultimate solution of the problem. For example, often Enquiry Commissions are appointed in relation to the settlement of border disputes. The Commission clarifies the facts after making enquiry into the relevant facts. (8) Settlement of international disputes under the auspices of the United Nations Organisation. - Briefly speaking, following are some of the provisions for the United Nations Charter :-
(i) It is one of the purposes of the United Nations that the member- States settle their disputes through peaceful means. Under Article 2 of the Charter, the member-States have undertaken to resolve their disputes through peaceful means and not to resort to force or threat of force to resolve international disputes.
(ii) The General Assembly of the United Nations may make recommendation for the peaceful settlement of international disputes. (Article 14).
(iii) Articles 33 to 38 of Chapter VI of the Charter make the provisions for the peaceful settlement of international disputes.
(a) Reprisals are illegal unless they are based upon a previous act contrary to international law.
(b) There must be a certain proportion between the offence and the reprisal as a necessary condition for the legitimacy of the latter.
(c) Reprisals are legitimate only when they have been preceded by an unsuccessful demand of redress. In fact, the employment of force is justified only when it is necessary.Recent example of the use of this means for the settlement of the international dispute is the Israeli action in bombarding certain areas of Lebanon from where the Arab Guerillas operated attacks from time to time in different parts of the territory of Israel. United Nations Charter has greatly affected the right of the States is to resort to reprisal. No State is entitled to reprisal which may endanger international peace and security. (3) Embargo. - Embargo is yet another compulsive means for settlement of International disputes. It is a type of reprisal. By embargo we mean that if a State violates international law or commits some international crime then the affected State becomes entitled to create obstruction in the transport of its ships which are within the territory of the affected State. (4) Pacific Blockade. - Pacific blockade is yet another compulsive means of settlement of international disputes. Through pacific blockade the ingress and regress of the ports of the States are blockaded so that the ships of other States may not reach those ports and the shops of the blockaded State may not go out of the ports. However, there is a distinction between pacific blockade and the blockade which is used in peace time. It is often resorted to as a reprisal because through blockade of the ports of a State, that State may be compelled to settle its disputes. (5) Intervention. - Intervention is a dictatorial interference by a State in the affairs of another State for the purposes of maintaining or altering the actual conditions of things. In principle, International law prohibits intervention. (6) Under the Auspices of the U.N. - Chapter VII of the Charter of the U.N. deals with the provisions under which the Security Council can resort to compulsive means for the settlement of disputes regarding maintenance or restoration of international peace and security. These provisions have been discussed in chapter on the "Security Council". Please therefore see the chapter on "Security Council" for a discussion of these provisions.
(i) Public Enemy Property. - At the outbreak of war all movable public enemy property situated in the enemy State may be seized. The position in regard to the immovable public enemy property is, however, different. Immovable may be temporarily taken but cannot be permanently seized. After the outbreak of war, it is determined as to what should be done in regard to this property. Consequently, the sale or disposal of immovable public enemy property is not possible during war. It can only be used by the belligerent State during war.
(ii) Private Enemy Property. - The practice of the States shows that private enemy property situated in the territory of the belligerent State may be taken over for a temporary period. After the end of the war its fate is decided in accordance with the provisions of the peace treaty concluded if any, between the belligerent States. The belligerent State is not entitled seize the private enemy property, but can only take it if it is necessary for local needs.There are, however, certain exceptions in this connection. The rules of international law mentioned above are not applicable in case of enemy ship in the sea. The ships of enemy, whether, they are public or private, can be seized during war. (7) Combatants and Non-combatants. - Under International Law the soldiers of the belligerent States are divided into two categories - lawful and unlawful. At the outbreak of war, lawful soldiers can be killed, grievously hurt, arrested or made prisoners of war. Lawful soldiers are ordinarily those soldiers who are in the regular army. Unlawful combatants, however, enjoy certain facilities or concessions. They may also be arrested and made prisoners, but they cannot be killed or grievously hurt during war.
(a) Enemy character of individuals of the belligerent States; and
(b) Enemy character of the individuals of neutral States,(a) Enemy Character of the Individuals of the Belligerent States. - In regard to the enemy character of individuals there is no uniformity in the practice of different States. They determine the enemy character of individuals of belligerent States in accordance with the different tests and standards. For example, in Britain and America the enemy character is determined on the basis of their residence and domicile. On the other hand, enemy character of the individuals in the continental countries (European countries excepting England) is determined on the basis of their nationality. In other matters there is hardly any difference in practice of Britain and America on the one hand and continental country on the other hand. (b) Enemy Character of Individuals of Neutral States. - The individuals of the neutral States who do not reside in the territory or enemy State are not deemed to be having enemy character. But if they participate in activities against the belligerent State, then they may be deemed to having enemy character. Similarly, in accordance with the practice prevailing in America and England, if the individuals of the neutral State carry goods, etc., to the enemy State or territory or continue intercourse with them, then they will be deemed to be having enemy character or in other words they will be treated as enemies. But the citizens of the enemy still living in neutral States will not be deemed to be having enemy character. (2) Enemy Character of Corporations. - The enemy character of corporation can be determined mainly by the following two things :
(a) Their permanent residence, and
(b) Their registration.If a corporation is registered in enemy State, then it will be deemed to be having enemy character. Similarly the enemy character of the corporation is also determined by its permanent residence. By a permanent residence of the corporation means its existence and conduct of business. In regard to the enemy character of corporations, the leading case is Daimlaer Co. Ltd. v. Continental Tyre and Rubber Co. Ltd., 1916(2) A.C. 307, wherein important principles were propounded. In this case the most important principle that was propounded was that if the persons or agents of the corporation who are in de facto control of the company reside in the enemy State or territory then the company shall be deemed to be having enemy character. (3) Enemy Character of ships. - The enemy character of ships is determined by their flags. This rule was adopted in Declaration of Geneva, 1909. By the flag of the ship is meant flag which the ship is legally authorised to use. For example, if a ship of France uses the American Flag, then it will be unauthorised. If the ship of an enemy State unauthorisingly uses the flag of a neutral State and is seized by the belligerent State then such a ship shall be deemed to be having enemy character. Consequently those ships which use the flags of neutral States but are actually under the ownership of the enemy State, may assume enemy character under the following circumstances :
(i) If the ship is in the service of enemy State or carries arms or takes part in the conflict.
(ii) If the ship resists the valid right of the belligerent State to visit and search, then such a ship may be seized and it may be deemed to be having enemy character. If such a ship is seized the onus (burden) of proving rests on the owners of the ship that the ship belongs to neutral State. If it is not proved then the ship and its cargoes are deemed to be those of enemies.(4) Enemy Character of goods. - Originally, enemy character of the goods is determined by their ownership. If the owners of the goods are residents of the enemy State, then the goods may be deemed to be having enemy character. On the other hand, if the owners of the goods live in netural State, the goods will not be deemed to be having enemy character. Different countries have modified and amended this rule in accordance with their convenience and needs of times and circumstances. But the general rule which is evident from the general practice of the States is that the enemy character of the goods is determined by the ownership of the goods. (5) Transfer of Goods in Sea. - If the sale of the goods takes place before war or without its consideration, State Law is applied to determine whether the transfer of ownership has been effected. If the change in ownership is attempted during war or in view of the war, the goods are deemed to be of enemy character and such goods are not considered to be the property of neutral State and may be confiscated.
Q. 61. A joint stock company was formed is 1905 and has its registered office in London. The company was framed for the purpose of selling in the U.K. motor tyres made in Germany by a company incorporated in that country under German how. The German company held more than 90 per cent of shares in the company in question and all the directors were German subjects. Only one of the shareholders was a British national. During the first world war the question arose whether the assets of the company were enemy property. How would you decide this question ?
1. Bands of marauders, acting without the authority of the sovereign or the order of the military commander.
2. Deserters, captured among the enemy's troops.
3. Spies, even if they belong to the regular army. The laws of war provide for the execution of spies when found by a commander within the lines of his army, or giving information of his plans and movements to the enemy.Their treatment. - Prisoners of war must be cared for and treated with humanity. The captor may employ private soldiers not officers in useful work, not in any way connected with the operations of the war. The work should also not be excessive. In all cases they must be paid for their work. Non- commissioned officers under the Hague Convention of 1949 are only required to do supervisory work, but they may ask for other work. According to the Regulations of 1907, prisoners are to enjoy complete liberty of worship. They may be released on parole if the laws of the country permit that procedure. Prisoners caught in an attempt to run away may be shot in the last resort. If they are captured they may be punished. The Hague Conferences of 1899 and 1907 charged each belligerent with the task or establishing an information bureau in its territory and sending the necessary information to the government of the other belligerent after the termination of hostilities. The Geneva Convention of 1929 also made provisions for the treatment of prisoners of war. As between the ratifying States the Convention replaced those of 1864 and 1906. One of the Conventions concluded at Geneva in 1949 related to the treatment of prisoners of war, which applies to any armed conflict recognized or unrecognized arising between the contracting parties. The Convention prohibits violence to life and person of prisoners, taking of hostages and humiliating or degrading treatment. No physical or mental torture is allowed to be inflicted on prisoners to compel them to give information. After capture they have to be removed from the danger area. Captivity may be terminated by repatriation, accommodation in neutral countries, release, escape or death of the prisoner. Korean War Prisoners. - In the Korean war the main obstacle to armistice was the repatriation of war prisoners. The Communists demanded wholesale repatriation of North Korean and Chinese prisoners of war to Communist territory on the basis of Arts. 118 and 119 of the Geneva Convention Relating to the Treatment of Prisoners of War, 1949, which provides for the unconditional handing over of the prisoners to the authorities on whose behalf they came to fight without delay after the cessation of active hostilities. The United Nations negotiators objected to forced repatriation of unwilling prisoners to the Communists. The truce agreement signed on July 27, 1953, provided that prisoners not willing to return to their land would, in the first instance, be placed into the care of a neutral commission. The prisoners who were unwilling to return to North Korea or China were ultimately screened and dispersed after release. Pakistani War Prisoners. - The provisions of the Geneva Convention, 1947, lay emphasis on the release of civil internees while in the case of military prisoners of war on their repatriation. In the case of military prisoners of war, who in the present case constituted 93,000 imprisoned in India during 1971 Indo-Pakistan war, the Geneva Convention does not enjoin automatic repatriation. The phrase "cessation of active hostilities" used in Art. 118 of the Convention means not the suspension of hostilities in pursuance of the ordinary armistice which leaves open the possibility of a resumption of the conflict, but a cessation of hostilities so as to render a resumption of hostilities highly improbable. It is always a matter of negotiations and the question of repatriation should only arise simultaneously with the conclusion of a treaty or the prospects of durable peace in the subcontinent. (b) Treatment of sick and wounded combatants. - The rules for ameliorating the condition of the sick and wounded were laid down by the Geneva Convention of 1864. They were subsequently modified at Geneva in 1906. The Hague Conference of 1907 accepted the obligations of belligerents towards the sick and wounded in land warfare. The sick and wounded combatants, according to the Regulations, were to be cared for by the belligerent without distinction of the side or nationality. It was the duty of victorious commanders to protect wounded soldiers on the field from pillage or other maltreatment as also to collect all the personal belongings found on the persons of the dead and to forward those things to the authorities of the enemy's country for transmission to those interested. The Regulations further provided that it was the duty of the Government capturing the sick and wounded to feed and clothe them and treat them in these respects on a level with its own troops. After the First World War the Convention of 1906 was supplemented by another Convention of 1929, which revised the existing rules on the treatment of the sick and wounded in armies in the field. The Geneva Convention of 1864 was finally revised by an international conference at Geneva in the year 1949. The Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces the Field of 1949 provides that sick or wounded persons officially attached to armies must be respected, protected and cared for without distinction of nationality, sex, race, religion or political opinion. It protects air-crafts used as a means of medical transport for the time they are used in transporting medical personnel and material and evacuating wounded and sick.
(1) Declaration of Paris, 1856;
(2) Hague Convention, 1907;
(3) Geneva Submarine Protocol, 1936.Following are the main laws of maritime warfare : (1) Attack on public and private enemy ship. - During naval war the belligerent States are entitled to attack the enemy ships and destroy their property. The general rule admits the following exceptions :
(a) Hospital ships. - According to Hague Convention, 1907 hospital ship cannot be attacked.
(b) Vessels employed in religious, scientific and philanthropic works. - According to Hague Convention of 1907, vessels employed for religious, scientific and philanthropic missions, can neither be seized nor attacked. To attack or seize such ships has been declared illegal according to the said Convention.
(c) Cartel ships. - Cartel ships or ships carrying prisoners of war cannot be attacked. Attack on such ships has been prohibited by the rules of maritime warfare.
(d) Fishing Smacks and Market Boats. - In accordance with the provisions of the Hague Convention fishing smacks and market boats engaged in their local profession and which are unarmed cannot be seized or otherwise destroyed during naval war.
(e) Immunities of merchants. - Hague Convention of 1907 provides the following immunities to the merchants :
(i) After the beginning of the war, the merchants detained in the ports are given certain facilities.
(ii) Those merchants and persons who have reached the ports because of their lack of knowledge of war have also been provided certain facilities.
(iii) Mail boats and mail bags. - Maritime rules of International Law provide certain immunities in regard to mail bags and mail boats. On the basis of the experience of the First World War, States have entered into treaties in this connection and have agreed to provide certain protections and immunities to mail boats and mail bags.(2) Merchant ships of enemy. - Merchant ships of enemy can be destroyed during maritime warfare. (3) The crew of the ship. - As pointed out earlier, enemy ships can be destroyed during naval warfare. However, it is provided that while sinking or destroying the ship, proper and necessary articles, papers, etc. on the board of the ship. Such crew and passengers of the ship cannot be attacked unless and until they resist valid right of the belligerent State to visit and search the ship. (4) Merchant ships are entitled to defend themselves against the attack of the enemy. (5) During maritime warfare, merchant ships can be converted into men of war (warships). According to British practice, the conversion of merchant ships into men of war can be made by belligerent State in its own port. It cannot be made in a neutral port. (6) Bombardment of the coastal cities. - According to Hague Convention coastal cities can be bombarded or otherwise attacked during maritime warfare but bombardment over undefended cities has been prohibited. This could be done only when the local inhabitants resist the supply of food materials and other essential supplies to the enemy. (7) Ordinarily only the places of military importance can be bombarded. Other places can be bombarded only when they are necessary for the achievement of military objectives. (8) Contact Mines. - It is laid down in the Hague Convention that the laying of anchor-less contact mines is contrary to International law. As regards the laying of floating mines under the sea, it is provided that they should not be laid indiscriminately. It is the duty of the belligerent State laying such mines to give intimation of the area where such mines have been laid to neutral and other States. As rightly pointed out by Starke, unfortunately the law as to mines is uncertain because of the weakness of the text of the Hague Convention VIII (Submarine Contact Mines) and because of the development of new types of mines and new kinds of mine-lying methods.
1. Arming of private aircraft even in self-defence is absolutely forbidden.
2. Aerial bombardment for the purpose of terrorising the civilian population, of destroying, damaging private property not of military character, or of injuring non-combatants is prohibited.
3. Aerial bombardment for the purpose of enforcing compliance with requisitions in kind or payment of contributions in money is prohibited.
4. Aerial bombardment is legitimate only when directed at military objective, the destruction of which would constitute distinct military advantage to the belligerent, e.g. military establishments, munition factories, and lines of communication used for military purposes.
5. Aerial bombardment is not legitimate even when directed at a military objective if it cannot be bombarded without the indiscriminate bombardment of the civilian population.
6. Bombardment of cities, towns or buildings not in the immediate vicinity of the operations of land forces is prohibited.
7. Bombardment in the immediate neigherbourhood of the operations of land forces is permitted only when there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment.
8. Buildings devoted to public worship, art, religion, science, charity, historical monuments and hospitals for refugees are to be spared.
9. The laws of war and neutrality applicable to land troops are applicable to aerial warfare also.
10. A belligerent State is liable to pay compensation for injuries to persons or to property caused by the violation by any of its officers or forces of the provisions of the above rules.The Geneva Protocol. - The Geneva Protocol of 1925 prohibited the use of gas and bacteria in warfare. Disarmament Conference. - The General Commission of the Disarmament Conference adopted a resolution in July 1932 which provided that air attack against civilian population shall be absolutely prohibited. Second World War. - The Second World War witnessed an utter disregard of the rules of aerial warfare. There was a complete violation of the rules by indiscriminate bombing by German aircraft. The British and American air-fleets also in their turn carried on an equally indiscriminate and ruthless bombing of German cities. The whole war was fought without any regard of the rules of warfare and non-combatants were mercilessly killed and buildings devoted to public worship, art, religion and historical monuments were bombarded. As the climax of it all came the use of the flying bomb by Germany and atomic bomb by America against Hiroshima and Nagasaki on August 6 and 9, 1945, respectively, without giving due warning of danger to non-combatants and in defiance of the protests of many of the scientists who had worked on the project. While the use of flying bombs was spread over a number of months, the atom bombs caused heavier destruction in a very short time. The use of atom bomb in the war was a violation of the rules of International Law governing civilized warfare from times immemorial. Its use is a crime against International Law and humanity. The Nuclear Test Ban Treaty, 1963, banned nuclear tests in the atmosphere, in outer space and under water. This agreement greatly reduced the dangers of radioactive fallout by restricting nuclear test to underground. The Outer Space Treaty of 1967 prohibited the stationing of nuclear arms in space. Under the Treaty on the Non-Proliferation of Nuclear Weapons, which came into force on March 5, 1970, the signatories pleaded not to assist other countries in any way to acquire nuclear weapons. The ban on emplacement of nuclear weapons on the sea-bed, banning nuclear weapons on the moon or in orbit around the earth, the U.N. Convention on the Prohibition of Bacteriological and Toxic Arms, 1972, and the U.S. Soviet Treaty on the Limitations of Antiballistic Missile Systems, 1972, are other achievements in the field of arms limitation. On July 3, 1974, the U.S.A. and the U.S.S.R. agreed on a partial ban on underground nuclear testing to be effective from March 31, 1976.
(1) Crimes against peace;
(2) War Crimes; and
(3) Crimes against humanity.(1) Crimes Against Peace. - Article 6 of the Charter of Neuremberg enumerated following crimes against peace : Planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. (2) War crimes. - An exhaustive definition of war crimes has been given in Principle IV of the said report. According to it war crimes are the violation of the laws and customs of war which include but are not limited to murder, ill-treatment or depradation to forced labour or for any other purpose of civilian population or in the occupied territory, murder or ill-treatment of the prisoners of war or persons on the seas, killing of hostages, plunder of public property, wanton depradation of cities, towns or villages or devastation not justified by military necessity. (3) Crimes Against Humanity. - The Neuremberg Charter described crimes against Humanity as the crimes such as : Murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war of persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated. While speaking before the committee of the General Assembly considering the report of the International Law Commission, Indian ambassador Mr. G.R. Gharekhan said that India extended her support to the formulation of a comprehensive code of crimes against peace and security of the mankind and that it should be made an effective instrument of international legal significance. Crimes such as genocide, apartheid and slavery should be included in the list of crimes against humanity. As regards war crimes he said that India favoured replacement of the term with 'violations of rules of armed conflict'. Recently i.e. in October, 1992, the U.N. Security Council authorised to investigate the war crimes committed in Bosnia. Though its scope is not very wide, it represents a landmark in the history of the United Nations. It is no doubt not a permanent machinery but it will certainly establish an important precedent.
Q. 75. A German officer instructed an escort of British airmen not to interfere with civilians who might molest the prisoners. When the prisoners were marched through Essen, a crowd collected and killed the prisoners. The officer who gave the instructions, the sergeant in charge of the escort and three civilians who are alleged to have actively participated in the killing are accused of having committed war crimes. Discuss.
(i) The terms of the instrument of surrender were not known to him as they were not intimated to him.
(ii) He did not know or receive the information of countermanding of the original order regarding cutting of U-Boats.The accused was held guilty and was sentenced to five years imprisonment. The Court held that by May, it had become clear that the U-Boats had become the property of the allied nations and could not therefore be destroyed. The Court propounded the following principles :-
(i) It the armed forces of a State surrender after an armistice agreement then the agreement shall be binding on both the States i.e., the surrendering State and the State to whom the surrender is made. If after the surrender, the soldiers do not observe and follow this agreement, they will be guilty of the violation of the law of war.
(ii) If a person scuttles the Boats or otherwise causes harm to them after the armistice agreement and surrenders in pursuance thereof, he will be guilty of war crimes because after the surrender war-boats become the property of the conquering State.Ans. (b) Tokyo Trial. - As Neuremberg Tribunal was established to try war criminals of Germany, the Tokyo Tribunal was established to try the war criminals of Japan. The Tokyo Tribunal was established by the victorious States by making an agreement and subsequently by issuing a Charter conferring jurisdiction upon the court. The Tokyo trial started hearing on June 4, 1946, and was presided by Sir William. A special feature of this trial was that its judges were not only from the victorious States, but some of the Judges belonged to other States also. For example, the eminent Indian jurist Dr. Radha Vinod Pal was one of the judges of the Tokyo Tribunal. Besides this, there were some judges from Philippines and other countries of the Commonwealth of the Nations. During the trial the accused objected that they could not get justice from this trial because most of the judges belonged to the nations which defeated Japan, but this objection was rejected by the Court. The Tokyo Tribunal awarded death sentence to those persons who were guilty of conducting and organising war and awarded imprisonment for different terms to other persons accused of war crimes.
(a) killing the member of the group;
(b) causing bodily or mental harm of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the groups;
(e) forcibly transferring children of one group to another group."Genocide" a crime under International Law. - The term 'Genocide" was coined by Lemkin, a private individual, whose efforts played a large part in promoting the United Nations work on genocide. Article I of the Genocide Convention, 1948, therefore, provides that the contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish. Under Article III of the Convention following acts are punishable : (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; and (e) Complicity in genocide, Article V of the Genocide Convention. Example of Genocide in Bangladesh. - The military regime of Pakistan under General Tikka Khan committed genocide which is unprecedented in the annals of world. As pointed out by M.K. Nawaz, "The Bengali people have a language and culture different from the people of West Pakistan, can accordingly be considered as ethnical group within the meaning of Article II of Genocide Convention." Justice V.R. Krishna Iyer, the then Member of the India Law Commission has also pointed out, "the Bengalli population of East Pakistan probably falls under the national and ethnical group not merely territorial or linguistic." Thus the genocide committed by Pakistani Military personnel in Bangladesh was clearly and without a shade of doubt an international crime. Justice V.R. Krishna Iyer has remarked : "The scenes of blood and bestiality ensuing from the military crackdown under General Tikka Khan's deadly direction was such the like of which no eye had seen and no tongue would adequately tell. Bangladesh is fortunately free today but its 'sweetest songs' of freedom are those that tell of 'saddest thought' of the million dead. The appalling human annihilation perpetrated by military personnel of Pakistan in Bangladesh, its dimensions and dastardliness prima facie constitutes an international crime."
(1) It does not apply upon the valid and lawful acts performed by the occupying power. They remain valid even when such occupation ends.
(2) This principle also does not apply in case of the realisation of taxes made by the occupying powers.
(3) The principle of postiliminium does not apply in respect of the neutral States.
(4) It does not apply when one State incorporates another State into its State conquest because conquest followed by annexation changes the status of things and persons.
(5) Another limitation of the doctrine of postiliminium is that it does not apply when an enemy State has finally incorporated the territory concerned as of its territory.Case of Elector of Hesse Cassel. - This case is related to the principle postiliminium. Hesse Cassel was a neutral State which was conquered and annexed by France in 1806. Consequently, Elector of Hesse Cassel fled away from its territory. In 1898, in accordance with a treaty, Elector regained his lost territory. After the death of former Elector, his son claimed to realise past debts on the basis of the principle of postiliminium. But he could not succeed. In this case, it was held that after the conquest, the conquering States is fully entitled to realise taxes, etc. Napoleon, was therefore, within his rights to realise debts, etc. Since it was a valid act performed by the occupying power and it was within the right of Napoleon, the principle of postiliminium could not be applied in this case.
(1) Attitude of Impartiality. - Neutral State is a State which does not take part in war and remains impartial. This impartiality is one of the essential elements of neutrality.
(2) Recognition of Impartiality by Belligerent States. - It is also necessary that this impartiality should be recognised by the belligerent States.
(3) Creation of rights and duties. - The recognition of attitude of impartiality of the neutral State gives rise or creates certain rights and duties. It gives certain rights to neutral States and also imposes certain duties upon it. Similarly, the neutral State also acquires certain rights because of the attitude of impartiality and adopted during the war between the two belligerent States. These rights and duties are recognised under international law and should be observed by the belligerent States as well as the Neutral States.Development of the Law of Neutrality. - The term 'Neutrality' has been derived from the Latin word 'Neuter' which means impartiality. In wider sense, by neutrality we mean an attitude of impartiality adopted by the States who do not take part in the war. So far as the modern international law is concerned, the law of neutrality started in the middle ages. In fact, the word 'neutrality' began to be used since seventeenth century. But its systematic development could not be achieved until eighteenth century. In eighteenth century, the two famous jurists Bynker Shock and Vattel contributed much to the development of the law of neutrality. In eighteenth century it was agreed that the States which do not take part in war are entitled to remain impartial and this impartiality may confer upon them certain rights. The development of the law of neutrality received a great impetus in the United States of America in nineteenth century. Much of the credit for this goes to the United States because in the Napoleonic wars of Europe, America remained a neutral country. The systematic development of the law of neutrality also owes much to the civil war of America. A leading case of this period relating to neutrality is Albama Claims Arbitration 1872. In the civil war of America, Britain was netural. But Britain provided the facilities to the Southern States for the fitting and construction, etc. of Alabama and others destroyers in its territory. America claimed that it was a clear violation of the neutrality adopted by Britain. America contended that it was the duty of Britain to prevent such types of acts in its territory. America, therefore, claimed compensation for the violation of law of neutrality by Britain. Britain and America agreed to entrust this matter to the Court of Arbitration. The Court of Arbitration gave its award in favour of America and ruled that Britain should pay 1,55,00,000 dollars in gold to America. The permanent neutralisation of Belgium and Switzerland in nineteenth century was also a landmark event so far as the development of the law of neutrality was concerned. This encouraged the development of the law of neutrality. The establishment of the League of Nations and then the United Nations greatly affected the law of neutrality in the twentieth century.
(1) Abstention. - It is duty of the neutral State to abstain from rendering direct or indirect help to the belligerent States. For example, the neutral States cannot assist either belligerent through forces or cannot guarantee the loans to be given to them.
(2) Prevention. - It is also the duty of the neutral States to prevent certain things within their territory. For example it is their duty to ensure that persons are not recruited for the war forces of belligerent States within their territory. They should also prevent the preparation of war in favour of either of the belligerent States.
(3) Acquiescence. - It is also the duty of neutral States to give their acquiescence in respect of certain matters. For example, they should give their acquiescence when a Ship using the flag of their State is seized for carrying contraband. If they oppose such seizure it will be deemed to be the violation of the law of neutrality on their part.In addition to the above-mentioned duties, the neutral States have certain other duties although the following duties are in consequence or connected with the above-mentioned three duties Such duties are as follows :
(1) Restoration. - It is the duty of the neutral States not to allow any act connected with the war within their territory and in case any such act takes, it is their duty to restore it. That is to say, if either of the belligerent seizes enemy ship within the territory of the neutral State then it becomes the duty of the neutral State to get such ship restored to the other belligerent State.
(2) Reparation. - If a neutral State contravenes the above-mentioned duties, it may be held liable to pay compensation for the same. A leading case on the point is Alabama Claims Arbitration, 1872. In this case Britain had to pay America 1,55,00,000 dollars in gold in the form of compensation for the violation of the laws of neutrality. Rights and duties of the neutral States have been mentioned in Hague Convention of 1907.Duties of the Belligerent States. - Following are the duties of the belligerent States :
(1) Abstension. - It is the duty of the belligerents to abstain from committing act of war within the territory of the neutral States.
(2) Prevention. - It is their duty to prevent bad treatment towards the ambassadors, citizens, etc. of the neutral States.
(3) Acquiescence. - Like the neutral States, belligerent States are under duty to give their acquiescence in respect of certain matters. For example, it a State gives asylum or refuge to some members of its forces or allows temporary asylum or refuge to the enemy within its port, or allows the enemy State to gets its ships repaired in its port then it is the duty of the other belligerent State not to oppose it and to give its acquiescence in this respect.Rights of the Neutral States. - According to Lawrence, following arc the rights of neutral States :
(1) The first right of neutral States is that no war like act should be committed in their territory.
(2) Secondly, their cable lines in seas, etc. should not be damaged as far as possible.
(3) The belligerent States should not use their territory for making preparation of war.
(4) They are also entitled to get certain rules formulated for the protection of their territory and to make the belligerent States observe them.
(5) Neutral States also possess right that if their neutrality is violated then they get compensation for the same. It may, however be noted that there is a lack of definite principles in this respect but at least this is definite that they should get adequate compensation for the violation of the law of neutrality and compensation should be proportionate to the loss or damage suffered by them.
(1) Perpetual or Permanent Neutrality. - When a State is neutralised through a special international treaty, then such a neutrality is called perpetual or permanent neutrality.
(2) General and Partial Neutrality. - When only a part of the State is neutralised, it is called partial neutrality. On the other hand, when the whole State adopts the attitude and policy of neutrality, it is called general neutrality.
(3) Voluntary Neutrality and Neutrality based on some Treaty. - A voluntary neutrality is a neutrality which is declared by a State voluntarily without being bound by a treaty. On the other hand, a State may become neutral being bound by any general or special treaty.
(4) Armed Neutrality. - When a State uses armed force for the defence or neutrality, it is called armed neutrality.
(5) Benevolent Neutrality. - When a State while remaining neutral, favours belligerent State or otherwise helps it, is called benevolent neutrality.
(6) Perfect and Qualified Neutrality. - When a State remain completely impartial and does not, directly or indirectly, assist either of belligerents, then it is called perfect neutrality. But if a State remains neutral generally but as a result of some provisions of treaties entered into before start of war, directly or indirectly assists any belligerent State, then, it is called qualified neutrality.
Q. 89. (a) What do you understand by the doctrine of 'Continuous Voyage' ? Illustrate your answer with examples and refer to leading cases. (b) A Turkish vessel, loaded with cloth for the distinct purpose of making coats for the German army, leaves the Turkish harbour for a neutral harbour where the coats are to be prepared, and therefrom transshipped to Germany. Can the goods be seized and the vessel condemned ?
"The examination into the continuous nature of voyage is, or may be necessary in reference alike to blockade, trade with enemies, un-neutral service, and carrying contraband, and indeed, to all cases where the destination of the vessel or cargo is material...... Examinations into continuity of voyages occur chiefly where a subject of the capturing power is supposed to be trading with the enemy, or a natural to be sending contraband goods to the enemy, or under what is called Rule of 1756. It also becomes important in case of suspicion of an intent to break blockade. If a cargo is destinated to be carried through blockade, it can be captured at any stage of the voyage. A neutral destination will often be interposed in such case, with all the ceremonies of landing, transshipping, sale, etc., as in the case of contraband; and the same test and principles of reasoning apply to both."The doctrine has, therefore, been applied in case of prohibited trade, cases of blockade, and cases of contraband. The Rule of War of 1756 enabled the belligerents to prohibit neutrals from carrying on a trade closed to them in time of peace. As regards the application of the doctrine to blockade, it permitted the cargo to be captured at any stage of the voyage if the same was destined to be carried through blockade. With respect to contraband Art. 39 of the Declaration of London provided that "absolute contraband" was liable to capture if destined to territory belonging to or occupied by the enemy or to his armed forces, it being immaterial whether the carriage of the goods was direct, or entitled transshipment or even a subsequent transport by land.
Q. 92. (a) Define blockade. What are the essentials of an effective and binding blockade ? When does it terminate ? Refer to leading cases. (b) Is mere intention to break a blockade sufficient to incur condemnation ? What would be the precise effect of proof that a ship has made a suspicious change of course to avoid man-of-war, or `an unnecessary deviation from warranted course,' or that it refuses to lie when notified to do so, on a charge of attempting to run a blockade ?
(1) on the termination of war;
(2) when the government which instituted the blockade withdraws it;
(3) when it ceases to be effective;
(4) when the blockading squadron is defeated and driven off by a hostile force;
(5) when it is withdrawn for a cause or an action; and
(6) when the place or port under blockade is occupied by a victorious belligerent.In the case of Frederik Molke it was held that a vessel coming out of a blockaded port with a cargo was prima facie liable to seizure. In the Betsey, Sir William Scott observed that on the question of blockade three things must be proved : first, the existence of an actual blockade ; secondly, the knowledge of the party ; and thirdly, some act of violation, either by going in, or by coming out, with a cargo laden after the commencement of the blockade. In the case of the Prize Cases in re. Hiawatha it was observed by the United States Supreme Court that a vessel being in a blockaded port is presumed to have notice of the blockade as soon as it commences. In the case of the Zamora, Lord Parker observed that an order declaring a blockade will prima facie justify the capture and condemnation of vessels attempting to enter the blockaded ports, but will not preclude existence to show that the blockade is ineffective and therefore unlawful. (b) Mere intention to break a blockade is not sufficient to incur condemnation. - There must be some act of violation or an attempt to break the blockade. A suspicious change of course to avoid a man-of-war or an unnecessary deviation from warranted course may be taken as prima facie evidence of attempting to run a blockade. Refusing to lie when notified to do so would be even stronger evidence of an attempt to run a blockade. But in all these cases it must be near about the zone blockade.
Q. 94. (a) State briefly the essential features of unneutral service and illustrate your answer by reference to some decided cases. (b) A year after the outbreak of the last war when Japan and the U.S.A. were both neutral, ten Germans aged between 25 and 35, five Germans between 70 and 75 and eight Germans between 8 and 10 were coming to Japan on a Japanese passenger ship from New York. While the ship was in Japanese territorial waters, a British, cruiser forced them to disembark and detained them. Discuss the justification or otherwise of the act.
Q. 97. What is meant by `exterritoriality' in respect of the personnel of diplomatic corps ? Has it really anything to do with their territory ? What is the exact basis of exemption? An English national is in the employ of the Chinese embassy in London. His name has been included in the list of employees submitted by the Chinese embassy to the British foreign office. The English national has not paid the local rates which every Englishman is bound to pay under the law. His effects have been attached in execution to recover the said dues. He pays the dues under pressure of the process. He files a suit to recover what has been extracted from him on the ground that he is liable to no process of the English Courts. Will he get money back ? Give reasons.
Q. 98. The Ambassador of State `F' in New Delhi goes to see Taj Mahal in The Embassy car driven by an Indian driver. On the way due to the negligence of the driver two Indians are seriously injured. Discuss if the (i) Indian driver and (ii) the ambassador can be sued or prosecuted in Indian Courts for the accident.
(i) If the appointment of a particular person as diplomatic agent is considered harmful for the receiving State;
(ii) If the diplomatic agent has by his declaration or conduct, done some inimical thing;
(iii) If he is a citizen of receiving State.It may be noted that it is not necessary for the receiving State to assign any reason for refusing any particular person as diplomatic agent. But such a situation arises very rarely because in the recent times before appointing a diplomatic agent, the receiving State is generally sounded. In case the receiving State shows any reluctance to receive any particular person as diplomatic agent, such a person is not appointed as diplomatic agent for the obvious reason that the main function of the diplomatic agent is to improve the relations between receiving State and the appointing State.
1. Recall of the envoy by his accrediting State on account of rupture of diplomatic relations;
2. Fulfilment of the object of the mission;
3. Revolutionary change of Govt. in either State, in consequence change of headship;
4. Death of the envoy;
5. Death or abdication of the head of either State;
6. Return of the regular Minister to his post;
7. Change in the rank of the diplomatic agent;
8. War between the sending and receiving States;
9. The extinction of either State by merger or annexation;
10. Dismissal of the envoy by the sending or receiving State;
11. Demand for recall of the envoy by the accredited State on account of being obnoxious to the Govt. of the country;
12. Request for passport on the ground of ill-treatment by the receiving State; and
13. Expiration of letters of credence, if for a limited duration.
(a) Treaties having the character of conveyances
(b) Treaties having the character of contracts
(c) Law-making Treaties which may be sub-divided into :
(1) Treaties creating constitutional law, e.g., the Statutes of the Permanent Court of International Justice (now the International Court of Justice) ;
(2) Pure law-making treaties, e.g. the Labour Conventions negotiated by the International Labour Oganization ;
(3) Treaties, akin to Charters of Incorporation, e.g., treaties which established the Universal Postal Union, 1874.Power to enter into treaties. - A sovereign State which has not parted with any portion of its sovereignty either by confederation of treaty of alliance possesses full treaty-making power. The power of semi-sovereign States to enter into treaties with other States is limited and depends upon the nature of freedom that they enjoy. In the case of a federation the constitution defines the powers of the member States to enter into treaties with other sovereign in the case of the vassal State or protectorate the power of the vassal State or protectorate to enter into treaties with foreign States depends upon the freedom allowed to them by the suzerain of the protecting State. Conclusion of treaties. - Consent of both the parties is necessary, although duress in International Law will not invalidate a treaty. Immoral obligations imposed by treaties or treaties opposed to public morality are not binding on the parties. There is no specific form for the conclusion of treaties. An oral agreement between representatives of the States charged with the task of conducting negotiations and empowered to bind their respective countries is sufficient to have binding effect if it is the intention of the representatives to conclude a legally binding transaction. The enormous importance of the issues involved in such agreements, however, necessitates the compliance of formal requirements and reducing the agreements into a document. Each of the States conducting negotiation appoints a representative or plenipotentiary for this purpose. The two plenipotentiaries exchange their full powers before entering upon their task. They then proceed with negotiations and draw up a final draft for signature, which is affixed at a formal closing session. A treaty generally comes into force on signature, unless States desire to subject it to ratification. Ratification. - It is an act of adopting an international treaty by parties thereto. In other words, ratification implies the confirmation of the treaty entered into by the representatives of the different States. So long as a treaty is not ratified by proper authority under the constitution of the country, it lacks the formal validity or sanction. Ratification of a treaty may be withheld on the following grounds :
(1) if the representative or plenipotentiary has exceeded his powers;
(2) if any deceit as to matters of fact has been practised upon him;
(3) if the performance of treaty obligations becomes impossible;
(4) if there has not been consensus ad idem, i.e., there has not been agreement as to the same thing.Registration. - After the treaty has been so ratified, it has to be registered at the headquarters of the international organization. Article 18 of the Covenant of the League provided that every treaty of international engagement should be registered with the secretariat of the League and published by it as soon as possible. To the same effect are the provisions contained in Article 102 of the United Nations Charter. Termination of Treaties. - Treaties may terminate on any of the following grounds :-
(a) On expiry of the specified period for which a treaty was concluded ;
(b) When the main object of the treaty is fulfilled;
(c) By mutual consent of the parties to the treaty;
(d) Non-performance of certain essential conditions;
(e) When the obligations of the treaty become incompatible with the Charter of the United Nations;
(f) When a war breaks out between the contracting parties
(g) When one of the contracting parties is extinguished by annexation or merger;
(h) Force Majeure and Impossibility of Performance;
(i) The Doctrine of rebus sic stantibus justifies the avoidance of treaties when they are dangerous to the life or incompatible with the independence of the State.Interpretation of Treaties. - There is a striking similarity in the principles governing the interpretation of treaties and contracts. The various provisions are construed literally and grammatically, giving the words their ordinary and natural meaning, unless it leads to an obvious absurdity or an established custom or usage connotes a different sense. In such a case the reasonable meaning should be preferred to the unreasonable by keeping in view the spirit of the treaty. If a treaty is drawn up in two languages which give somewhat contradictory meaning, the interpretation which accords with the intentions of the parties and harmonizes both the version must be adopted. (The Mavrommatis Case). A narrow interpretation is to be placed on the provisions of a treaty which curtails the sovereign right of a State. Where a document is ambiguous it should be construed in such manner which may make it less burdensome to the person responsible for the burden under the treaty. Vienna Convention on the Law of Treaties, 1969. - A Convention on the Law of Treaties was adopted by the U.N. Conference in Vienna in May 1969, by 79 votes to 1, with 19 abstentions. The Convention is a major work of codification and progressive development of the law of treaties and is the result of the efforts of the International Law Commission covering a period of about 20 years. It broadly reflects existing international law and practice on the subject of treaties. The final text of the Convention consists of 85 articles is divided in seven parts and covers the whole range of topics falling within the law of treaties. Article I (a) (contained in the Introductory part of the Convention (comprising Arts. 1-5) defines the term 'treaty' as an international agreement concluded between States in written form and governed by International Law. The Convention does not cover treaties between States and International Organizations or between two or more international organizations. As regards capacity to enter into treaties, Art. 6 provides that every State possesses capacity to conclude treaties. Part II of the Convention deals with conclusion and entry into force of treaties (including reservations) (Arts. 6-25); Part III with the observance, application and interpretation of treaties (Arts. 26-38); Part IV with the amendment and modification of treaties (Arts. 39-41); Part V with the invalidity, termination and suspension of the operation of treaties (Arts. 42-72); Part VI with certain miscellaneous provisions (Arts. 73-75); Part VII with depositories, notifications, corrections and registration (Arts. 76-80); and Part VIII with final provisions, viz, signature, ratification accession, etc. (Arts. 81-85). The Vienna Convention on the Law of Treaties, termed by Richard C. Kearney and Robert E. Dalton as the treaty on treaties, "does not approach perfection. The international legislative process remains much too primitive a mechanism to approach to perfection. The convention is, however, in an unspectacular and earthbound way, a giant step for mankind toward a world in which the rules of law will be not a dream but a reality."
(a) On expiry of the specified period for which a treaty was concluded;
(b) When the main object of the treaty is fulfilled;
(c) By mutual consent of the parties to the treaty;
(d) Non-performance of certain essential conditions;
(e) When the obligations of the treaty become incompatible with the Charter of the United Nations;
(f) When a war breaks out between the contracting parties;
(g) When one of the contracting parties is extinguished by annexation or merger;
(h) Force Majeure and Impossibility of Performance;
(i) The Doctrine of rebus sic stantibus justifies the avoidance of treaties when they are dangerous to the life or incompatible with the independence of the State.
(i) Treaties which concern the right of the third party (Article 36). Under this provision even third party can be conferred some rights under the treaty.
(ii) Multilaterial treaties declaring the established customary rules of international law may bind even non-parties (Article 38).
(iii) Multilateral treaties which create new rule of international law may also bind non-parties.
(iv) Some universal treaties such as a U.N. Charter may apply to even non-parties.
(v) When a treaty imposes some obligation on a third party and third party accepts that obligation, then such a third state party becomes bound by that treaty. (Article 35)(b) Pacta Sunt Servanda. - This principle means that States are bound to fulfil in good faith the obligations assumed by them under agreements. In its advisory opinion in 1922 on the Designation of Workers Delegation in the International Labour Conference, the Permanent Court of International Justice emphasised that the contractual obligation was not merely "moral obligation" but was "an obligation by which, in law, the parties are bound to another". Later on, the international Court of Justice in its advisory opinion in 1951 on the Reservation to the Genocide Convention stated that "None of the contracting parties is entitled to frustrate or impair by means of unilateral decisions or particular agreements, the object and raison de'etre of the convention." This principle has been incorporated in Article 26 of the Vienna Convention on the Law of Treaties, 1969, which provides that every treaty in force is binding upon the parties to it and must be performed by them in good faith. (c) Rebus Sic Stantibus. - The maxim rebus sic stantibus means that when the fundamental or material circumstances under which a treaty is concluded are changed, then this change becomes a basis for the avoidance, change or termination of the treaty. This principle is known as Doctrine of Clausula. 'Rebus sic standibus is based on the assumption that there is an implied clause' in every treaty that provides that the agreement is binding only so long as the material circumstances on which it rests remain unchanged." (d) Jus Cogens. - The provision relating to Jus Cogens is one of the most controversial provisions incorporated in the Vienna Convention on the Law of Treaties, 1969. Article 53 of the Vienna Convention provides that a treaty is void, if at the time of its conclusion, it conflicts with a peremptory norm of general international law. A peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Reference may also be made to Article 64 of the Vienna Convention which is a Corollary of Article 53 referred above. Article 64 provides that if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. Article 66 provides that if, under paragraph 3 of Article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, any one of the parties to a dispute concerning the application or the interpretation of Article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration. This is undoubtedly a great achievement.
(i) The "reductions of national armaments of the lowest point consistent with national safety."
(ii) To "preserve as against external aggression, the territorial integrity and existing political independence of all members of the League."
(iii) To settle international dispute peacefully.
(iv) To bring about peaceful change in international relations.
(v) Last, but perhaps the most important function was to maintain international peace and security.Principal Organs of the League of Nations. - (1) Assembly. - All the members of the League of Nations were represented in the Assembly. Each member was entitled to send 3 representatives, but each Member State was entitled to have only one vote. (2) Council. - The Principal allied associate powers (America, Britain, France, Italy and Japan) were the permanent members of the Council. Besides this, four other members were elected by the League Council. But America never joined it. Consequently, the place of America was filled by a smaller State which was elected by the Assembly. Although the functions of the Assembly and the Council were not clearly demarcated, yet there were certain functions which were exclusively performed by the Council. These functions included the nomination of the additional members in regard to the defence from external aggression and for maintaining territorial integrity of the members. (3) Secretariat. - The League of Nations deserves credit for establishing for the first time an International Civil Service in the real sense of the term. The Secretariat of the League of Nations comprised of 600 officers and subordinate officials. The Secretary General was the Chief Administrative Officer and was appointed by the unanimous decision of the Council.
(1) One of the main defects of the Convenant was that all the decisions of the Council were taken unanimously. This unanimity principle proved to be detrimental for the working of the League of Nations.
(2) The Covenant did not completely prohibit war. It simply imposed certain restrictions.
(3) Although President Wilson of America contributed much for the establishment of the League of Nations, yet it was unfortunate that America could never become its member.
(4) The Covenant provided that if any amendment of the Covenant was not acceptable to any State, then such a State would cease to be the Member of the League of Nations. In the course of time a number of States ceased to be the members of League of Nations due to this provision.
(5) The League of Nations also provided for the withdrawal of the members from the League. In the beginning the League of Nations comprised of 62 members which in the course of time were reduced to only 32.
(6) The Council of League of Nations did not have the capacity to settle the international disputes peacefully.
(7) The League of Nations also failed to prevent great powers from attacking and exploiting smaller states.
(8) The League was based on the policy of discrimination between great powers and smaller States.
(9) Another cause for the failure of the League of Nations was that the great powers always considered their selfish interest over and above all things.
(10) Lastly, the League failed and failed miserably to perform its main and primary function of establishing peace in the world.Factors and Events Leading to the Dissolution of the League. - In addition to the above defects and weaknesses, certain events which took place, also led to the decline and dissolution of the League of Nations. Following are some of the main events in which the League failed to take effective step :
(1) Attack by Italy on an Island named Corfu belonging to Greece in 1923.
(2) Japan attacked on Manchuria in 1931.
(3) Attack of Italy on Ethiopia in 1935.
(4) Russian invasion oil Finland in 1939.In addition to the above events the failure of Disarmament Conference convened under the auspices of the League of Nations in 1932 also proved to be detrimental for the League. The League of Nations proved to be a weak international organisation and failed to maintain or establish international peace and security. However, it must be noted that the League of Nations ultimately failed not because of the constitutional defects of its Covenant, but because of the members which failed to fulfil the obligations assumed by them under the Covenant. Prof. Goodspeed has rightly remarked, "The League of Nations was abandoned by those who failed to abide by their solemn obligations." The League of Nations was finally dissolved by a Resolution of the Assembly in April, 1946. Fortunately, due to the untiring efforts of the statesmen of the world, the United Nations was established. It not only took the place of the League of Nations, but proved to be a much more effective and successful organisation.
(i) Panel of Experts:
(ii) Administrative Council and
(iii) International Bureau.(i) Panel of Experts. - Article 23 of the Hague Convention, 1899 provides, "Each signatory power shall select 4 persons at the most, of known competency in questions of International law, of the highest moral reputation and disposed to accept the duties of arbitration." The persons thus selected shall be inscribed as members of the court in a list which shall be notified by the Bureau to the knowledge of the signatory powers. The aggrieved States could select 5 experts from this panel and thus the temporary arbitration court could be constituted. Some reforms were made under the Hague Convention, 1907. For example, a summary procedure was provided for the settlement of matters of ordinary importance. (ii) Administrative Council. - It comprises of the diplomatic representatives of the parties to the Convention. It is situated in Hague (Netherlands) and had a small secretariat. (iii) International Bureau. - The International Bureau is also situated in Hague. It comprises of a General Secretary and certain other employees. Its function is to carry on the administration and keep the records. States who want to use the service of the Court for the settlement of disputes are helped by this office through correspondence, etc. and it also serves as a mediator through the States who want to make use of the Court. Some Important Cases decided under the Permanent Court of Arbitration. - (1) North Atlantic Fisheries case (1910). - Under the peace Treaty of 1783 between the United States of America and United Kingdom, the American citizens had been given some fisheries rights in some part of Labrador, New Foundland and North Atlantic Coast. Formerly these rights were used in collaboration with the British citizens. According to Britain, the said Treaty came to an end in consequence of the Treaty of 1812. On the other hand, America contended that the said Treaty was only suspended. A treaty relating to American Fisheries was also entered into 1818. In 1905 Britain captured certain American Fisheries shops. In this connection there arose a dispute regarding the interpretation of the Treaty of 1818. In 1909, America and Britain had entered into an agreement to refer this dispute to the Permanent Court of Arbitration. The Permanent Court of Arbitration had to decide whether Britain could regulate the rights conferred under the Treaty of 1818 and in case the Britain had these rights, could she exercise these rights without the consent of America. The Permanent Court of Arbitration decided that "the right of Great Britain to make regulations without the consent of the United States, as to exercise of the liberty to take fish.....in Article 1 of the Treaty.....is inherent to the sovereign of Great Britain". Further, the exercise of the right by the Great Britain is, however, limited.....in that such regulations must be made bona fide and must not be in violation of the treaty." (2) Savarkar's case (1911). - Savarkar was an Indian revolutionary who was being brought to India to be prosecuted. When the ship was in the Port of Marcelese, Savarkar escaped. He was later on apprehended by the French Naval Police. But the Captain of the French Ship returned Savarkar to the Captain of the British Ship under the wrong impression that it was his duty to do so. Later on, the French Govt. requested the British Govt. to return Savarkar on the ground that the rules relating to his extradition were not strictly observed. This case was entrusted to the Permanent Court of Arbitration for its award. The Permanent Court of Arbitration in its award made it clear that international law does not impose any obligation to return the criminals after getting them successfully extradited. By this view has been severely criticised in French and Indian circles. It is pointed out that the above rule is not based on the sound principle of justice. (3) Russian Indemnity Case (1912). - This case was in between Russia and Turkey. Russia had claimed money along with interest and damages as indemnity for Russian citizens and institutions under the Treaty of 1879. Russia and Turkey referred this matter to the Permanent Court of Arbitration. The Court of Arbitration decided the case in favour of Russia. However, the court in its decision made it clear that Turkey was not bound to pay the interest and damages because Russia had waived this right by its conduct.
Permanent Court of International Justice
Permanent Court of Arbitration
1. Under Article 13 of the Convent of the League of Nations, the members agreed to resolve their disputes through arbitration or judicial settlement.
1. There was no such provision in Article 20 of the Hague Convention 1899 (under which the Permanent Court of Arbitration was established).
2. The Permanent Court of International Justice was in fact a permanent institution.
2. The Permanent Court of Arbitration was in fact a panel of experts from which temporary arbitration court could be established.
3. Last but not the least, improvement over the Permanent Court of Arbitration was that the Permanent Court of International Justice could also give advisory opinions. It was a novel thing in the field of international Judicial settlement.
3. There was no such provision in the Permanent Court of Arbitration.
(1) The Declaration of St. James Palace (June 12, 1941)
(2) The Atlantic Charter (Aug. 14, 1941)
(3) The United Nations Declaration (January 1, 1942)
(4) Moscow Declaration (October 30, 1943)
(5) The Teheran Conference (December 1, 1943)
(6) Dumbarton Oaks Conference (19441)
(7) The Yalta Conference (Feb. 11, 1945)
(8) San Francisco Conference (June 25, 1945)Preamble of the United Nations Charter. - The Preamble indicates that the Charter of the U.N. is born as a result of the experiences of a devastating war and that it holds out hope for a lasting peace based on recognition of fundamental human rights which have been the casualties of war, on a recognition of sovereign equality of all States and on better economic and social conditions for the millions who have been victims of the oppressions and exploitation. We the People of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to re-affirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of International Law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends, to practise tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles, and the institution of methods, that armed forces shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims. Accordingly, our respective governments, through representatives assembled in the city of San Francisco who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organisation to be known as the United Nations. Purposes of United Nations. - The purposes of the United Nations are mentioned in Article I of the Charter. They are : (a) To maintain International Peace and Security. - The most important purpose of the United Nations is to maintain international peace and security. Article 11 provides that one of the purposes of the United Nations is to "maintain international peace and security" and to that end, "to take effective and collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of peace and to bring about by peaceful means and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situation which may lead to a breach of peace. This purpose is so important that it led Prof. Han Kelsen to remark, "The purpose of the United Nations is world peace." (b) To Develop Friendly Relations among Nations. - Yet another purpose of the United Nations is to develop friendly relations among nations or, respect of the principles of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace. (c) International Co-operation in Solving International Problems of Social, Cultural and Humanitarian character. - The third purpose of the United Nations is to achieve international co-operation in solving international problems of economic, social, cultural and humanitarian character and promoting and encouraging respect of human rights and fundamental freedom for all without distinction as to race, sex, language or religion. (d) To make the United Nations a centre for the attainment of above common ends. - The last purpose of the United Nations is to make it a centre for harmonising the actions of the nations in the attainment of the above mentioned ends. Principles of the United Nations. - Article 2 of the United Nations describes the principles of the United Nations and provides that the organisation and its members, in pursuit of the purposes described in Article 1, shall act in accordance with the following principles:- (1) The Principle of Sovereign Equality of all Members. - The first principle of the United Nations is that the organisation is based on the principle of sovereign equality of all members. Thus in the eye of law all members are equal. It may, however, be noted that it is to an absolute principle and admits certain exceptions, for example the Permanent Members of the Security Council possess more powers than other members. For decision on all important matters in the Security Council the affirmative votes of all the permanent members is essential. Similarly no amendment of the charter can take place unless and until it is accepted or ratified by five permanent members. (2) Members to fulfil in good faith the obligations assumed by them. - The second principle of the United Nations is that all members, in order to ensure to all of them the rights and benefits the membership shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. (3) Peaceful Settlement of International Disputes. - According to the third principle of the United Nations all members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. (4) Principles of Non-Intervention (The principle of non-intervention has already been discussed in detail in Chapter on 'Intervention') - The fourth principle of the United Nations is that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or any other manner inconsistent with the purposes of the United Nations. (5) Members to Assist the United Nations in Common Action. - The fifth principle of the United Nations is that all members shall give the United Nations every assistance in common action it takes in accordance with the present Charter and shall refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action. (6) Non-members also to act in accordance with the Principles of the United Nations for the maintenance of International Peace and Security. - The organisation shall ensure that States which are not members of the United Nations act in accordance with these principles so far as may be necessary, for the maintenance of international peace and security. (7) Non-Intervention in Domestic Matters of Member States. - Seventh and the last principle of the United Nations prohibits the United Nations to intervene in the domestic affairs of a member State. This principle, undoubtedly, is a great limitation upon the powers of the United Nations. But the term 'domestic jurisdiction' is very vague. Its meaning changes with the change of time and circumstances. Some time matters which were considered to be within the domestic jurisdiction of the State at the time of the establishment of the United Nations are now considered matters of international concern. Racial discrimination, apartheid, etc. are glaring examples of such matters. It is, therefore, very difficult to lay down any general guidelines as to what is a matter within the domestic jurisdiction of any state.
(1) "Any member could withdraw from the League of Nations by giving a two years' notice".
(2) "If any amendment was opposed by a member or otherwise not acceptable to it, then it means that particular member ceased to be member of the League of Nations."In San Francisco Conference, 1945 after heated debates it was finally decided that no provisions regarding withdrawal of the members should be inserted in the Charter. However, a statement of special circumstances was formally issued on which members could withdraw from the organisation in special circumstances. Fenwick has expressed the view that members can withdraw from United Nations under the following two circumstances :
(1) "Withdrawal or some form of dissolution could be obviously inevitable if the organisation was revealed to be unable to maintain peace or could do so only at the expense of law and justice."
(2) "If any State did not give its consent for any amendment of the Charter or gave its vote against the amendment or found itself unable to accept the amendment, then such a situation may entitle him to withdraw from the organisation."In the history of the United Nations, the question of withdrawal of a member from the organisation has arisen only once. In January 1965 Indonesia declared withdrawal from the United Nations. Indonesia took this step because Malaysia had been elected as one of the non-permanent members of the United Nations. Indonesia claimed a part of the territory of Malaysia, but her withdrawal was not effective because later on she joined the United Nations as if nothing had happened As rightly remarked by Michael Akehurst, "If her withdrawal had been effective, she would have had to seek re-admission under Article 4; instead, she simply assumed her seat. Nothing had happened to suggests that her withdrawal had been void." Expulsion of a member of the United Nations. - Article 6 of the Charter provides that a member of the United Nations which has persistently violated the principles contained in the present Charter, may be expelled from the organisation by the General Assembly upon the recommendation of the Security Council. Suspension of members. - Article 5 of the U.N. Charter provides that a member of the U.N. against which preventive or enforcement action has been taken by the Security Council, may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendations of the Security Council. But the exercise of these rights and privileges may be restored by the Security Council. Present Number of Members. - At present, there are 191 members of the U.N. Recently East Timor has been admitted as the new member. Principal organs of the U.N. - There are the 6 principal organs of the United Nations : (1) General Assembly; (2) Security Council; (3) The Economic and Social Council; (4) The Trusteeship Council; (5) The Secretariat, and (6) The International Court of Justice.
(i) Main Committees;
(ii) Procedural Committees;
(iii) Standing Committees;
(iv) Ad-hoc Committees.The main committees of the General Assembly generally consider the agenda of General Assembly and prepare recommendations for the General Assembly. Each member of the United Nations is entitled to have its representatives in the main committees. Functions and Powers. - According to Article 7 of the United Nations Charter the General Assembly is one of the principal organs of the United Nations. Professor Leonard has classified the powers and functions of the General Assembly under the five headings -
(i) Deliberative functions;
(ii) Supervisory functions;
(iii) Financial functions;
(iv) Elective functions;
(v) Constituent functions.(I) Deliberative Functions. - By deliberative functions we mean the functions of the General Assembly regarding discussions, studies and recommendations and passing resolutions on different matters. The General Assembly performs the following deliberative functions :-
(i) The General Assembly may discuss any question or any matter within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter (Article 10). There is, however, an exception to this. Article 12 provides that while the Security Council is exercising in respect of any dispute or situation, functions assigned to it in the present Charter, i.e. General Assembly shall not make any recommendation with respect to that dispute or situation unless the Security Council so requests.
(ii) The General Assembly may consider general principles of co- operation in the maintenance of international peace and security including the principles governing disarmament and regulations of armaments, and may make recommendations with regard to such principles to the members or to the Security Council or to both. (Article 11.1).
(iii) The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security (Article 11.3).
(iv) The General Assembly has also been entrusted upon important responsibilities under Article 13 which provides that "the General Assembly shall initiate studies, and make recommendations for the purpose of - (a) promoting international co-operation in the political field and encouraging the progressive development of international law and its codification; (b) promoting international co-operation in the economic, social, cultural, education and health fields and assist in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion."(II) Supervisory Functions. - By supervisory functions we mean those functions through which the General Assembly supervises the functions of other principal organs and specialised agencies of the United Nations. The General Assembly particularly exercises sufficient control over the two principal organs of the United Nations, namely, the Economic and Social Council and Trusteeship Council. The General Assembly exercises control over those organs and performs many supervisory functions in this connection. (III) Financial Functions. - The General Assembly also performs important financial functions. It considers and approves the budget of the United Nations. Article 17 provides that the General Assembly shall consider and approve the budget of the organisation. Article 17 further provides that the expenses of the organisation shall be borne by the members as appointed by the General Assembly. Further, the General Assembly shall consider and approve any financial and budgetary arrangements with specialised agencies and shall examine the administrative budgets of such specialised agencies with a view of making recommendations to the agencies concerned. (IV) Elective Functions. - The General Assembly performs two types of elective functions : (a) Regarding admission of new States to the United Nations; and (b) Election of members for other organs. (a) Regarding admission of new States to the United Nations. - General Assembly performs important functions in respect of admission of new States to the United Nations. A new State is admitted to U.N. by decision of the General Assembly by two-third majority of the members present and voting upon the recommendations of the Security Council. Besides this, the General Assembly also possesses certain powers in respect of suspension and expulsion of members. (b) Regarding election of members for other organs. - The General Assembly performs important functions in regard to the election of members for other organs of the United Nations. In this connection the General Assembly performs the following functions :-
(a) It elects 10 non-permanent members of Security Council;
(b) It elects 54 members of the Economic and Social Council;
(c) It also elects some members of the Trusteeship Council;
(d) It also takes part in the election of the Judges of the International Court of Justice; and
(e) The General Assembly also takes part in the appointment of the Secretary-General. In this connection, Article 27 provides that the Secretary-General shall be appointed by the General Assembly upon recommendation of the Security Council.(V) Constituent Functions. - The General Assembly has performed important functions in the social, economic and cultural fields and in the fields of human rights. Thus there has been a constant development of the powers and functions of the General Assembly.
"The essence of veto is to manoeuvre the Council in voting whether a question is substantive or not. The veto is possible on such a vote which thereby guarantees that the question will become substantial if so desired. Once declared substantive, the question itself can be vetoed."
"However this was perhaps not conclusive of the matter. The abstaining States for instance, explained that they had abstained because they could not support a resolution which implicitly accepted the advisory opinion of the International Court, of Justice." Further, "In conclusion it should be observed that the controversy as to the scope of Article 25 persists, at least in the attitudes of several States, and that the majority view in the Namibia Advisory opinion has not been accepted as a definite disposal of the issue."Despite some controversy the correct legal position seems to be, as has been stated by the International Court of Justice, the decisions of the Security Council in respect of enforcement measures under Chapter VII as well as other decisions are binding upon the Member States by virtue of the provisions enshrined in Article 25 of the Charter.
(1) The Economic and Social Council may make or initiate studies and reports with respect to economic, social, cultural, educational, health and related matters and may make recommendations with respect to any such matters to the General Assembly, to the members of the United Nations and to specialised agencies concerned (Article 62.1).
(2) It may make recommendation for the purpose of promoting respect for, and observance of human rights and fundamental freedoms for all (Article 62.2).
(3) It may prepare draft conventions for submission to the General Assembly with respect to matters falling within its competence (Article 62.4).
(4) It may call, in accordance with the rules prescribed by the United Nations, International Conference on matters falling within its competence (Article 62.4).
(5) The Economic and Social Council may furnish information to the Security Council and shall assist the Security Council upon its request (Article 65).
(6) The Economic and Social Council shall perform such functions as fall within its competence in connection with the carrying out of the recommendations of the General Assembly (Article 66.1).
(7) It may, with the approval of the General Assembly, perform services at the request of the members of the United Nations and at the request of the specialised agencies (Article 66.2).
(8) It shall also perform such other functions as are specified elsewhere in the present Charter or may be assigned to it by the General Assembly (Article 66.3).The Economic and Social Council helps in the establishment of world peace by improving the lot of the poor, wounded, and illiterate people. It endeavours to improve the life of the people in many respects. Besides the above- mentioned functions, the Economic and Social Council is responsible for improving the standard of living of the people, to provide full employment and to develop social and economic conditions of the world.
(a) Those members who are administering Trust territories;
(b) The permanent members of the Security Council as are not administering the Trust territories, and
(c) As many other members elected for three years' term by the General Assembly as may be necessary to ensure the total number of Members of the Trusteeship Council is equally divided between those members of the United Nations which administer Trust Territories and those which do not.Voting. - Each member of the Trusteeship Council possesses one vote. The decisions of the Trusteeship Council are made by a majority of the members present and voting. Functions and Powers. - Trusteeship Council performs the following functions under the authority of the General Assembly :
(1) It may consider reports submitted by the Administering Authority.
(2) It may accept petitions and examine in consultation with the Administering Authority.
(3) It may provide for periodic visits to the respective Trust Territories at times agreed upon with the Administering Authority.
(4) It may take these and other actions in conformity with the terms of the trusteeship Agreement.
(5) The Trusteeship Council shall formulate a questionnaire for each Trust Territory within the competence of the General Assembly and shall make annual report to the General Assembly upon the basis of such questionnaire (Article 88).
(6) The Trusteeship Council may avail itself of the assistance of the Economic and Social Council and of the specialised agencies in regard to matters with which they are respectively concerned (Article 91).The Trusteeship Council has done commendable work. The number of inhabitants living in Trust Territories has been constantly decreasing every year. The work of the Trusteeship Council is rapidly lessening. It would not be wrong to foresee that in a very near future the Trusteeship Council will probably have no work at all to do. At present, it simply receives reports from the United States as the Administering Authority of the sole remaining trust territory, the Pacific Islands of which the future of Palau has remained undecided. It is one of the principal organs of the United Nations which has almost successfully completed its work. Leaving aside the case of South-West Africa, it has achieved success almost in all the Trust-Territories which were under its control and auspices.
(1) The Secretary-General is the Chief Administrative Officer of the Organisation (Article 97).
(2) The Secretary-General acts in the capacity of the Chief Administrative Officer of the Organisation in all meetings of the General Assembly, of the Security Council, of the Economic and Social Council and of the Trusteeship Council and performs such other functions as are entrusted to him by these organs (Article 98).
(3) The Secretary-General makes annual report to the General Assembly on the work of the organisation. In fact the Annual Session of the General Assembly begins with the discussion of the report of the Secretary- General on the work of the organisation as a whole.
(4) The Secretary-General may bring to the notice of the Security Council any matter which in his opinion threatens the maintenance of international peace and security (Article 99).
(5) The Secretary-General gets collected all the statistics in regard to the economic conditions of the whole world and submits those datas to the Economic and Social Council.Conclusion. - However, there are certain limitations on the functions and capacities of the Secretary-General. The Secretary-General cannot be successful in the performance of functions relating to the maintenance of peace and security until there is co-operation among the major powers namely, the permanent members of the Security Council. Yet the fact remains that as an effective instrument of conciliation in the hands of principal organs of the U.N. such as the Security Council and the General Assembly and as a mediator for the member states, the office of the Secretary-General has become very important rather indispensable.
(1) International conventions;
(2) International customs;
(3) General principles of law recognised by civilised nations; and
(4) Judicial decisions or the works of jurists, etc. as a Subsidiary means determining the rule of International law.Binding force of the decisions of the International Court of justice. - According to Article 59 of the Statutes of the International Court of Justice, the decisions of the court shall not have a binding force except upon the parties to dispute and only in respect of a particular dispute between them. Jurisdiction. - The International Court of Justice is open for all States of the world. Only the States may be a party to any dispute before the Court. Individuals cannot be a party to a dispute before the Court. International organisations may request the Court to give advisory opinion on legal matters. Broadly speaking, the jurisdiction of the Court may be divided into the following two main heads :- (I) Contentious; and (II) Advisory. (I) Contentious Jurisdiction. - Contentious jurisdiction may be further divided into the following two heads :
(1) Voluntary jurisdiction, and
(2) Optional Jurisdiction.(1) Voluntary Jurisdiction. - In accordance with Article 36(1) of the Statute of International Court of Justice, the Court has jurisdiction over all such cases which the parties entrust to it and also those matters which are expressly mentioned to be within the jurisdiction under the United Nations Charter or under International Treaties. This type of jurisdiction is called voluntary jurisdiction. (2) Optional jurisdiction. - Article 36(2) of the Statute confers optional jurisdiction upon the Court which provides that the existing parties to the Statute the may confer compulsory jurisdiction upon the Court by making such declaration in respect of any other State which also accepts similar obligations. This can be done without any special agreement to the same effect. This is called optional jurisdiction of the Court. Under this provision the State party to the Statute may confer compulsory jurisdiction upon the Court in respect of the following matters : (II) Advisory jurisdiction. - The International Court of Justice may also give advisory opinion to the Security Council and the General Assembly and also to other organs of the United Nations and the specialised agencies of the United Nations if they are authorised by the General Assembly in this connection under Article 96 of the U.N. Charter. Article 65 of the Statute of the International Court of Justice provides that the Court may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of the U.N. to make such a request. Article 68 of the Statute further provides that in the exercise of its advisory functions the Court shall further be guided by the provisions of the present statute which apply in contentious cases to the extent to which it recognizes them to be applicable.
(B) Council; and
(C) Director-General.The Conference is the representative body and is represented by the member- States. It lays down the general policy of the Organisation. The Council comprises of 27 members who are elected by the Conference. The Council elects its president. The Director-General is appointed by the Conference. Ans. (b) International Civil Aviation Organisation (I.C.A.O.). - From November 1 to December 7, 1944 an International Civil Aviation Conference was field in Chicago. In this Conference it was decided to establish an International Civil Aviation Organisation. It was finally established on 4th April, 1947. The chief aim of this Organisation is to encourage and develop international Civil aviation. This organisation has the following main organs :
(B) Council.The Assembly is the representative body and all the member-States are its members. The Council comprises of 27 members which are elected by the Assembly for a term of 3 years. The Council collects informations for the development of international civil aviation; conducts investigations and publishes information relating to civil aviation. It also makes recommendations in regard to the standards and practices of the international civil aviation. If on account of certain circumstances there are obstructions in international civil aviation, the Council conducts investigations and acts as an Arbitration Council to decide the disputes amongst the States. A leading case relating to International Civil Aviation Organisation is I.C.A.O. Jurisdiction case (India v. Pakistan), ICJ Reports (1972), pp. 46-ff. The facts and decision of this case have been discussed under the chapter on "Aircraft Hijacking." Ans. (c) International Bank for Reconstruction and Development (Bank) (IBRD). - It was established on December 27, 1946. Therefore, it was brought into relationship with the United Nations through a special agreement which was approved by the General Assembly on November 15, 1947. Its main objective is to assist the member-States in re-construction and development by investing capital. It also encourages investment of foreign capital by giving guarantee for the same. It also aims to encourage the balanced development of international trade. Its membership is open for all those States who were the members of International Monetary Fund before 31st December, 1945. Others may be admitted as members through the majority decision of the Board of Governors. The Bank has the following main organs :
(A) Board of Governors;
(B) Executive Directors; and
(C) PresidentThe Board of Governors comprises of a Governor and an alternate member. It is constituted for a term of 5 years and holds its session once in a year. All the powers of the Bank are concentrated in the Board. The Board has delegated its powers to 18 Executive Directors who perform the general functions of the Bank. The Executive Director elects a President who is responsible to the organisation and presides over the meetings of the Executive Directors. Ans. (d) International Monetary Fund (I.M.F.). - It was established in December, 1945 and was brought into relationship with the United Nations through a special agreement in November, 1947. Its main functions are to encourage the balanced development of international trade, to establish exchange system of foreign-exchange among the members and in this connection endeavours to discourage mutual competition, to make available funds to members and thereby creating confidence in them so as to minimise the inequalities in the matters of international payments, etc. Besides the original members, other States may be admitted as members by simple majority of the Board of Governors. The capacity of a member-State to cast votes is in accordance with the money deposited by it in the Fund. Besides 250 votes, each States may give one additional vote for $100,000,00 deposited by it in the Fund. International Monetary Fund has the following main organs :-
(A) Board of Governors;
(B) Executive Directors; and
(C) Managing Director.All the powers of the International Monetary Fund are concentrated in the Executive Directors who elect one Managing Director from amongst themselves. There are 18 Executive Directors and the Executive Directors are responsible for the general functions of the Organisation. The Managing Director acts as the Chairman of the Executive Directors. The head office of the International Monetary Fund is in Washington. It may be noted here that inspite of the International Monetary Fund settling of the three crucial issues facing it, the rich and the powerful countries still retain the last word in decision making, a point about which India and other developing countries are rather sore. The two issues it has settled are the role of gold and the quotas and voting rights of member countries. As regards the voting rights, both the I.M.F. and the World Bank have recently increased the share of the members of Petroleum Exporting, countries. The share of the U.S. has been reduced from 23 per cent to 20 per cent but it still retains the veto power. However, it now requires a vote of three-fifths of the members with 85 per cent (instead of 80 per cent) of the voting rights to change the rules of the Fund. It is argued that the developing countries should be happy that the increase in the total size of the Fund quotas from $29 billion to $39 billion should give the I.M.F. additional resources for every thing it needs, including more money with which to help the poor. But the concept that an increase in the additional resources of the I.M.F. means an increase in development and is being questioned on the premise that the agreement on gold would be to the advantage of the developing countries. While a sum of $3 billion may ultimately be available to the developing countries, it has already been pointed out that it will be a "one shot" affair and not the same as the link sought by India and others between S.D.Rs. and development assistance. The official price of gold which was S.D.Rs. an ounce or about $42, has been abolished. The obligation of countries to use gold in their transactions with the Fund has also been abolished. The Secretary of the U.S. Treasury, Mr. William E. Simon, hailed these steps as having settled "the thorny issue involved in phasing gold out of the international monetary system" while India's Finance Minister Mr. C. Chidambaram, criticised the arbitrary manner in which it has been done. It may, therefore, be concluded that despite the recent changes in the I.M.F. the rich and the powerful countries still retain the last word in decision making. IMF Loan of $5.68 Billion for India. - On 9 September 1981, the IMF gave its approval for $5.68 billion loan to India which is its largest loan in history. This loan has been given to India to meet its current balance of payments problems created by higher import costs of oil and other items. India suffered a 4 billion deficit in its balance of payments in the year 1980 mainly because of oil imports which accounts for 40 per cent of her total imports. Request of IMF Loan by India Due to Gulf War (1991) and Balance of Payment Problem. - The hike in petroleum prices due to Gulf War (1991) had brought an unprecedented financial crisis for India and has forced India once again to request IMF to grant considerable amount of loan to bail India out of the present crises. India has thus fallen into the debt trap for it has to seek further loan to pay instalments and interests of earlier loans.
"We the Peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.
In Article 1B one of the purposes of the United Nation has been declared to achieve international co-operation in Solving international problems of an economic social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language, or religion."In Article 54-C, it has been said that the United Nations shall promote :- Universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion; Article 62 authorises the Economic and Social Council to make recommendations for the purposes of promoting respect for and observance of human rights, and such other commissions as may be required for the performance of its functions. Article 76-C declares that one of the basic objectives of the trusteeship system is to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion and to encourage recognition of the interdependence of the people of the world. Position of Human Rights under Indian Constitution. - Part II of the Constitution guarantees certain Fundamental Rights which are protected by and enforceable at the Courts of Law, the Supreme Court specifically under Article 32 and the High Courts generally under Article 226 and by other Courts and Tribunals through reference to the High Court. The Human Rights as recognised by International Covenants may be categorised as:
I. The Right to life, liberty and security of person.
II. Abolition of slavery and enslaving practices.
III. Protection against torture and other forms of cruel inhuman or atrocious acts.
IV. Abolition of forced or compulsory labour.
V. Protection against arbitrary arrest and detention.
VI. Human Rights in the process of justice.
VII. Right to leave the country and to return to it.
VIII. (Right to own property). This right has been repealed.
IX. Freedom of thought, conscience and religion or belief.
X. Freedom of opinion and expression.
XI. Freedom of association, and
XII. Right to take part in the governance of the country.The Fundamental Rights under the Constitution of India resemble in most of the characters of the Human Rights as declared in the U.N. Charter and the Universal Declaration of Human Rights. The Fundamental Rights guaranteed under the Constitution are the following :-
1. Equality before law. (Article 14)
2. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (Article 15)
3. Equality of opportunity in matters of public employment. (Article 16)
4. Abolition of untouchability. (Article 17)
5. Abolition of titles. (Article 18)
6. Protection of certain rights of regarding freedom of speech. (Article 10)
7. Protection in respect of conviction for offences. (Article 20)
8. Protection of life and personal liberty. (Article 21)
9. Protection against arrest and detention in certain cases (Article 22)
10. Prohibition of traffic in human beings and forced labour. (Article 23)
11. Prohibition of employment of children in factories etc. (Article 24)
12. Freedom of conscience and free profession, practice and propagation of religion. (Article 25)
13. Freedom to manage religious affairs. (Article 26)
14. Freedom as to payment of taxes for promotion of any particular religion. (Article 27)
15. Freedom as to attendance of religions instruction or religions worship in certain educational institutions. (Article 28)
16. Protection of interests of minorities. (Article 29)
17. Right of minorities to establish and administer educational institutions. (Article 30).
18. Right to constitutional remedies. (Article 32).These rights, however, are not absolute and exclusive but are subject to certain restrictions. Besides some of these rights are apt to disintegrate the nation. There are rights enumerated under item Nos. 12 to 17 above. Nation is the saviour of human rights and the rights which are apt to disintegrate the nation itself and disrupt the society and its peace and tranquility cannot and should not be counted as human rights. Right of self-determination also under International Covenants cannot be adopted as a human right. The Great Powers and Organisations like NATO are often indulged in victimising and interfering in the domestic affairs of developing of small countries under the prevention of saving human rights certain minorities which themselves are involved in atrocities against other classes the country. After enforcement of the Constitution the Indian Parliament and State legislatures have passed several Acts for protection of Human Rights e.g., Suppression of Immoral Traffic in Women and Girls Act, 1954, Juvenile Justice Act, 1986, various Labour Acts etc. Lastly the Indian Parliament has enacted the Human Rights Protection Act, 1993 and has also established a National Human Rights Commission at New Delhi.
I. Philosophical or Theoretical Approach
II. Pragmatic or Utilitarian Approach.I. Philosophical or Theoretical Approach - This approach can be explained through five different theories. (a) Natural Right Theory. - The Natural Rights Theory has remained and understood to be the mother of human rights, that is, the original creator of such rights. In the words of D.D. Raphael. The rights are rights against other people, and the duties are duties to other people. Thus a system of natural law, a system of duties which all men have to others is at the same time a system of rights which all men have against others. But this theory of natural rights has its own limitations that -
(i) the duties according to the traditional conception of natural law do not connote duties simplicitor to other persons. Theology recognises all duties to be owed to God. But no rights are recognised against God. Therefore the rights claimed against other persons and not against God there can be no co-existence of or correlation between rights and duties;
(ii) The correlation of duties and rights is based on contractual relations. In this sense human rights have no existence since they are claimed on behalf of all men without any contract among them;
(iii) Correlatively of rights and duties depend on specific person who may vindicate relative rights whereas human rights are claimed generally against political authorities or against the State and are secured through political activism.Elaine Pagels, in his treatise, the Roots and Origin of Human Rights, remarks that the idea that the individual has right : claims upon society, or against society; that these rights which society must recognise, on which it is obliged to act are intrinsic to human beings. This definition of human rights is an advanced concept to that of the eighteenth century, on the human rights. Human rights are pervading all human beings ab initio since the creation of man. These rights are not claimed in Courts or before the State, but they are inherent in human beings against the human society as a whole. Hence these have the Universal or International background and are not concerned only with a State. Carlos Santiago Nino, in his Ethics of Human Rights declares the natural law to be a normative system which is characterised by the fact that the criterion for the validity of its norms is based not on their enactment or recognition by certain individuals but on their intrinsic justification. He further says that the human rights being derived from the principles of natural law do not depend for this validity on being formulated or accepted by any authority. It is a positive legal system which does not recognise human rights as the law of any State. These rights are inalienable, natural and inherent. They are not identified with the norms of positive law. All human beings are admittedly equal with each other. It is an established fact that human rights are derived straight forward from the nature of man itself. They are inherent in man, in humanity, the human class of creatures as a whole. (b) Legal Right Theory. - Germy Bentham may be said to be the propounder of the legal right theory, he has criticised the natural right theory as 'nonsense upon stilts. In the view of the supporters of the legal right theory, all rights are the creations of State. They are neither absolute nor inherent in the nature of man. For example, right to life, liberty or property which are now declared human rights are artificially created by the law of State and not by nature. This theory also is wanting in universal application of human rights, because recognition of a right by State is essential for its implementation. If the State does not recognise a right, it cannot be enforced and all the universally declared human rights are not recognised by different States and cannot be enforced in those States through process of law. (c) Historical Theory. - According to historical theory the rights and the creation of historical process, such as long standing customs coming in existence and recognised by the State as customary law. But customs are generally not recognised as the law of a particular local area or a tribe or class in the State. The customs are generally betrayed enacting law on the topic influenced by a particular custom. (d) Social Welfare Theory. - The propounders of Social Welfare Theory of right advocate that law, custom and natural rights, are conditioned by social expediency. The main supporters of this theory are Roscoe Pound and Prof. Chafee. Under this theory a number of human rights have come into recognition. A large number of economic and social rights are incorporated in the Universal Declaration of Human Rights; and also in the International Covenant on Economic, Social and Cultural Rights in which it is expressly provided that these right may be available `in accordance with the organisation and resources of each State'. This theory also has its limitations. Ronald Dworkin, in his treatise Taking Rights Seriously, declares that the social welfare measures are collective goal and goals cannot be said to be rights. In his view, individual rights are distributive and individualised providing resources or opportunities to each member of the class of individuals who enjoy the rights in question. Collective goals on the contrary, are aggregative and non-individualised admitting the possibility of unequal distribution of resources or opportunities among individuals in order to maximise the (general) benefit. Thus, the social welfare theory lays stress upon the social goals to be achieved by the society and not on the rights of individuals. Besides, the measures taken in pursuit of ordinary collective goals may involve infringement of individual rights. Thus the social expediency theory is apt to produce dangerous results. The social welfare measure are generally more important than the individual rights. (e) Idealist Theory - As to the idealist theory of Rights, which is also known as Personality Theory of Rights, it insists on the inner development of man, on the development of his full potentiality. It raises personality as a supreme and absolute right. All other rights are derived from this one right of developing personality which only has been recognised to be an absolute right. But social good and individual good are conflicting concepts. This theory process to follow the latter, i.e., the individual good, which comes in direct conflict with the social welfare theory. II - The Pragmatic or Utilitarian Theory. - The Pragmatic or Utilitarian Approach has led to another track of evaluating the nature of human rights. Human rights cannot exist and operated in any sense without institutional settings as a room cannot take shape without its walls. A social order has no existence without individuals. Utopia is something different from laws in practice. The U.N. Charter has accepted the natural law concept of human rights, the rights in which all human beings are entitled not only today but since time immemorial and they will be everlasting.
(a) the right to life, liberty and security of person;
(b) freedom from slavery and servitude;
(c) freedom from arbitrary arrest and detention;
(d) the right to a fair trial by an independent and impartial tribunal;
(e) the right to be presumed innocent until proved guilty;
(f) inviolability of the home and secrecy of correspondence;
(g) freedom of movement and residence;
(h) the right to a nationality;
(i) the right to marry and to found a family;
(j) the right to own property;
(k) freedom of thought, conscience and religion;
(l) freedom of opinion and expression;
(m) freedom of peaceful assembly and association;
(n) the right to vote and to participate in government;
(o) to right to social security;
(p) the right to work;
(q) the right to an adequate standard of living;
(r) the right to education; and
(s) the right to participate in the cultural life of the community.The Declaration is in the nature of a recommendation only having no strictly binding character. However its legal value cannot be evaded. It contains an authoritative interpretation of the provisions of the charter of the United Nations. The General Assembly of the United Nations has proclaimed the Declarations as 'a common standard of achievement for all people and all nations'. The human rights through the Universal Declaration of Human Rights exercise profound influence upon the minds of man and the statesmen inspiring a number of other Declarations and International contravention concluded under the auspices of the United Nations. In the International Conference on Human Rights held in Teheran in April-May 1968, U. Thant the Secretary General of the United Nations said that the constitutions of forty-three nations are clearly inspired by the Universal Declaration of Human Rights in some cases they have reproduced its provisions textually. The Human Rights expressed in the Declaration have been given place in the Constitution of India also as the following table shows.
Constitution of India
= Article 14
= Article 15(1)
= Article 16(1)
= Article 19(1)(a)
= Article 19(1)(b)
= Article 19(1)(c)
= Article 19(1)(d)
= Article 19(1)(d)
= Article 20(1)
= Article 21
= Article 23
= Article 25 (1)
= Article 29(1)
= Article 30(1)
= Article 31
= Article 32
1. East European States;
2. American States;
3. African States; and
4. Asian States.1. East European States. - Under Article 3 of the Statute of Council of Europe "every member must accept the principles of the rule of law and of the enjoyment of all persons within its jurisdiction of human rights and fundamental freedoms." Under the auspices of the Council two conventions have been concluded. The first is the European Convention on Human Rights and the Second is the European Social Charter. To adhere to the human rights envisaged by these Convention is an essential condition for obtaining the membership of the Council. The Human Rights Convention was signed on November 4, 1950 in Rome and it came into force in September, 1953. Under Article 13 of this Convention every one whose rights and freedoms as set forth in this Convention, are violated shall have effective remedy before a national authority notwithstanding that the violation has been committed by person acting in an official capacity. 2. American States. - The Organisation of American States adopted the American Convention on Human Rights, at its inter-Governmental Conference held in San Jose, Costa Rica, in 1969. This Convention came into force in July 1978. It established two institutions for the protection of Human Rights :
(1) The Inter-American Commission on Human Rights; and
(2) The Inter-American Court of Human Rights.The American Convention declared the following human rights:
1. The right to judicial personality;
2. The rights to life, humane treatment and personal liberty:
3. The right to fair trial;
4. The right to privacy;
5. The right to name and nationality;
6. The right to participate in Government;
7. The rights to equal protection of law and to judicial protection;
8. The right to freedom of conscience, religion, thought and expression;
9. The right to freedom of association movement and residence; and
10. The right against ex post facto laws and penalties.3. Asian Countries. - No inter-Government organisation or arrangement has so far come into picture on the Asian lands for the protection of human rights simply because most of the States are either Theoretical Dictatorships under the cover of Islamic Shariat though pretending to be Islamic Republics or Communist Dictatorships having no respect for democracy or human rights, even though they have been admitted as members of the U.N.O. being an anomaly in terms of the United Nations Organisations itself, its charter and Conventions on human rights. India has, however, ab initio its independence, been the supporter and protector of Human Rights in her territory. The Parliament of India has recently enacted the Protection of Human Rights Act, 1993 and National Human Rights Commission has been constituted under this Act. Provision has also been made for the Constitution of State Human Rights Commissions in States and Human Rights Courts in Districts of the States for better and swift actions for the protection of human rights. 4. African Countries. - The African Charter on Human and People's Rights was finally adopted in Nairobi in 1981 and came into force on October 21, 1986. This charter has this speciality that it contains provisions dealing with rights and duties of the member States on the one hand and provisions for protection and promotion of those rights and duties on the other hand. The charter place emphasis on the enforcement of the rights as well as the duties. The rights and duties are made applicable to people as well as to individuals, special emphasis has been laid on the rights and duties of the community. The right to development has been specially emphasised. The rights to peace, solidarity, healthy environment and development having regard to Africa's place in the concept of nations have also been incorporated in the charter. The following two bodies have been constituted to ensure the Promotion and Protection of Human and People's Rights :
1. The African Commission on Human and People's Rights; and
2. The Assembly of Heads of States and Governments of O.A.U.
(1) Every Commissioned Officer in the Military, Naval or Air Forces of India;
(2) Every Judge including any person empowered by law to discharge whether by himself or as a member of any body of persons, any adjucatory functions;
(3) Every officer of a Court of Justice, including a liquidation, receiver or Commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authentiate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath or to interpret, or to preserve order in the Court and every person specially authorised by a Court of Justice to perform any of such duties;
(4) Every juryman, assessor, or member of a Panchayat assisting a Court of Justice or public servant :
(5) Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
(6) Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(7) Every officer of the Government whose duty it is, as such officer, to prevent offences to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
(8) Every officer whose duty it is, as such officer to take, receive, keep or expend any property, on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government or to execute any revenue process or to investigate or to report, on any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government or to prevent the infraction of any law of the protection of the pecuniary interest of the Government :
(9) Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, or make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make authenticate or keep any document for the ascertaining of the rights of the people of any village town or district;
(10) Every person who holds any office in virtue of which he is empowered to prepare publish, maintain or revise an electoral roll or to conduct an election or part of an election:
(11) Every person -
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any duty by the Government :
(b) in the service or pay of a local authority a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies 1956.
The Prime Minister
Speaker of the House of People
Minister in charge of the Ministry of Home
Leader of the Opposition in the House of the People
Leader of the Opposition in the Council of States
Deputy Chairman of the Council of States
(a) inquire suo motu or on a petition presented to it by a victim or any person on his behalf into complaint of -
(i) violation of human rights or abatement thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending before a Court with the approval of such Court;
(c) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations therein;
(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend appropriate remedial measures;
(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;
(g) undertake and promote research in the field of human rights;
(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;
(j) such other functions as it may consider necessary for the promotion of human rights.Powers of the National Human Rights Commission relating to inquiries. - Section 13 of the Act confers certain powers to the Commission relating to inquiries. These are - 1. The Commission shall while inquiring into complaints under this Act, have all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 and in particular in respect of the following matters namely -
(a) summoning and enforcing the attendance of witnesses and examining them on oath:
(b) discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court or office;
(e) issuing Commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.2. The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject-matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Sections 176 and 177 of the Indian Penal Code, 1860. 3. The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject-matter of the inquiry may be found, and may seize any such document or take extracts of copies therefrom subject to the provisions of Section 100 of the Code or Criminal Procedure, 1973, in so far as may be applicable. 4. The Commission shall be deemed to be a civil Court and when any offence as is described in Sections 175, 178, 179, 180 or 228 of the Indian Penal Code, 1860 is committed in the view or presence of the Commission, the Commission may after recording the facts constituting the offence and the statement of the accused as provided in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under Section 346 of the Code of Criminal Procedure, 1973. 5. Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purposes of Sections 196 of the Indian Penal Code, 1860, and the Commission shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. Investigation by the National Human Rights Commission. - Section 14 of the Act empowers the Commission to make investigation itself or through some other officer or agency relating to an inquiry before it. Sub-section (1) provides that the Commission may, for the purposes of conducting any investigation, pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central Government or the State Government as the case may be. Under sub-section (2) for the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission -
(a) summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document; and
(c) requisition any public record or copy thereof from any office.Sub-section (3) protects the right of the accused for not utilising statements made before the Commission : against him. Under the prohibition of Section no statement made by a person in the course of giving evidence before the Commission shall subject him to or be used against him in any civil or criminal proceeding except a prosecution for giving false evidence by such statement if the statement is made in reply to the question which he is required by the Commission to answer or is relevant to the subject-matter of the inquiry. Sub-section (4) provides for a report to be submitted to the Commission by the officer or agency investigating into a matter at the direction of the Commission pertaining to the inquiry before it. Sub-section (5) makes a precaution to the Commission before coming to a conclusion in the inquiry that it shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under sub-section (4) and for this purpose the Commission may make such inquiry including the examination of the person or persons who conducted or assisted in the investigation as it thinks fit. Section 16 requires an opportunity to be given to hear the person or persons inquired into. It says if at any stage of the inquiry, the Commission -
(a) considers it necessary to inquire into the conduct of any persons; or
(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry,it shall give to the person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. But this provision shall not apply where the credit of a witness is being impeached.
Q. 139. "The National Human Rights Commission has no judicial or executive powers to prosecute and punish the persons committing crimes or wrongs against human rights it does not possess even the powers of an Executive Magistrate who at least prevent the commission of crimes coming into their notice. Discuss.
1. where the inquiry discloses, the Commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceeding for prosecution or such other action as the Commission may deem fit against the concerned person of persons;
2. approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary
3. recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary
4. subject the provisions of Clause (5) provide a copy of the inquiry report to the petitioner or his representation;
5. the Commission shall send a copy of its inquiry report together with its recommendation's to the concerned Government or authority and the concerned Government or authority shall within a period of one month, or such further time as the Commission may allow, forward its comments on the report including the action taken or proposed to be taken thereon, to the Commission;
6. the Commission shall publish its inquiry report together with the comments of the concerned Government or authority if, any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.Thus the National Human Rights Commission may be said to be a recommendatory body of the State having eyes to see tongue to speak but no hands to protect the victims of crimes against humanity or human rights which also have not been defined in the precisely but with vague reference to International Covenants if they are enforceable by Courts in India. Where is that specific law which says that these particular rights are admitted to be human rights to the Union of India or its States. The provisions of the Act appear to be mere attempts beating in the bush.
(a) a Chair-person who has been the Chief Justice of a High Court :
(b) one Member who is or has been, a Judge of a High Court;
(c) One Member who is or has been, District Judge in that State:
(d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.Section 21(3) provides for a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him. Vide Section 21(4) the head quarter of the State Commission shall be at such place as the State Government may by notification, specify. Functions of the State Commission. - Section 21(5) lays down that a State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List 11 (State List) and List III (Concurrent List) in the Seventh Schedule to the Constitution : But if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force the State Commission shall not inquire into the said matter. Besides in relation of Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures "List II and List III in the Seventh Scheduled to the Constitution the words and figures "List III in the Seventh Schedule to the Constitution as applicable in the State of Jammu and Kashmir and in respect of matters in relation to which the legislature of that State has power to make laws" had been substituted. Section 22 provides for the appointment of Chairperson and other members of the State Commission on the same lines as that of the National Commission with slight changes of Governor as the appointing authority on the recommendation of a Committee headed by the Chief Minister. Under Section 24, the term of office of the member's of the State Commission is the same as that of the members of National Commission, i.e., five years; or attaining age of seventy years whichever expires earlier Section 29 makes certain provisions relating to National Commission applicable to State Commissions. These provisions are of Sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 with slight modifications. Thus the status of the State Commissions is no better than that of the National Commission.