International Law
Frequently Asked Questions on International Law
Ans. Definition :- The words "International Law" were used for the first time by Jermy Bentham in 1780. Since then these words have been used to denote the body of rules and principles which regulate the relations among the members of international community. The term `members of international community' now denotes States, International organisations, individuals and certain non-State entities.
(i) Oppenheim's Definition. - Prof. L. Oppenheim has defined International Law in the following words - "The Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other".
Criticism. - Oppenheim's definition, which was considered appropriate at one time, is now subjected to severe criticisms.
This definition can be subjected to the following criticisms :
(1) It is now generally recognised that not only States but international organisations have also certain rights and duties under International Law. This view has been finally affirmed by the International Court of Justice in its advisory opinion on Reparation for Injuries Suffered in the Service of the U.N. (1949).
(2) It is also recognised that to some extent individuals have some rights and duties under International law.
(3) It is also recognised that International law consists not only of customary and conventional rules but also of general principles of law recognised by the civilised States. This 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.Q. 2. Trace the contribution of the Jews, Greeks and Romans in the development of International Law.
Ans. Jews. - The Jews were in favour of foreigners. The Jews had the same laws for foreigners residing on Jewesh territory as for themselves. A reading of Bible, however, illustrates that on account of their monotheism the Jews did not recognise other nations who professed faith in polytheism as their equals. They carried ruthless battles in rowing to the winds all canons of warfare. Jews were having international relations only with their friendly nations. They faithfully observed treaties and considered ambassadors as sacrosant. They gave full protection to foreigners.
Greeks. - The Greeks were more civilized than their neighbours whom they regarded as barbarians. Their notion of superiority prevented them from developing mutual relations with their neighbouring nations. Before Macedonian conquest, the Greeks lived in numerous small city States which were independent of one another. The inhabitants of the States belonged to the same race, blood and religion. This close affinity, in course of time united these independent fragments into a community of States which observed certain rules inter se in time of war and peace, their dispute; They frequently resorted to arbitration for settlement of treated heralds and priests who carried the holy fire as inviolable; commenced no war without a previous declaration; gave burial to warriors dying the battle-field; changed prisoners of war; regarded the temple of the god Apollo as permanently inviolable; and gave special privileges to ambassadors who were ceremoniously received and their persons treated as inviolable.
Oppenheim observes that the Greeks left to history the examples that independent sovereign States can live in a community which provides a law for the international relations of the member States, provided that there exist some common interests and aims which bind these States together. It has, however, not to be forgotten that the Greeks never made the same distinction between law, religion and morality which the modern world makes. But the fact remains that the Greeks set an example to the future that independent States can live in a community in which their international relations are governed by certain rules and customs based on the common consent of the members of that community.
Romans. - The Romans had an advanced notion of International Law. They had a set of 20 priests, term fetiales who managed relations with foreign States by the laws called jus fetiales or jus sacrale. The Romans had one set of laws which were applicable exclusively to themselves, viz., jus civil, the law applicable to Romans, and another set for foreigners, jus gentium, the law which they had in common with other nations. The jus gentium was later on strengthened by the development of jus natural, which was the law that was constituted by right reason, common to nature and to man. It was ultimately this law or jus fetiales that governed the relation of Romans with foreign countries in times of peace and war also when they entered into treaties of friendship with them. There were three kinds of such treaties, viz., treaties of friendship (amicitia), of hospitality (hospitum), or of alliance (foedus).
Roman Law recognised four just reasons for war, viz., (a) violation of the Roman dominions, (b) violation of ambassadorial privileges, (c) violation of treaties, and (d) support given during war to an opponent by a hitherto friendly State. War could be ended according to Romans (i) through a treaty of peace, (ii) by surrender (deditio), or (iii) through conquest of the enemy's country (occupation).
Treaties as said above were divided into three kinds i.e.
(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.
Ans. The seventeenth and eighteenth centuries gave birth to three different schools of writers on the law of nations, viz., the Naturalists, the Positivists and the Grotians.
1. Naturalists. - The Naturalists denied that there was any positive law of nations based on custom or treaties, but maintained that it was only a part of the law of nature. Samul Pufendorff (1632-1694) led this school. He maintained that States were bound to regulate their conduct towards one another by the law of nature as they had no common superior. He agreed with Hobbes (De Cive) that natural law is divisible into natural law of individuals and of States, and that the latter is the law of nations. Pufendorff further observed that outside the natural law of nations there is no positive law of nations having the force of real law.
The German philosopher Christian Thomasius (1665-1728) was a great follower of Pufendorff. So were the English philosophers Francis Hutcheson and Thomas Ruthenford, the French philosopher Jean Barbeyrac (1674-1744) and the Genevan philosopher Jacques Burlamaqui.
2. Positivists. - The Positivists differed fundamentally from the Naturalists and ascribed the growth of International Law to custom and international treaties. They do not consider natural law as of any importance but regard customary law based on treaties and customs to be positive International Law and of highest importance. They gained importance in the 18th century. The Dutch jurist Bynkershoek (1673-1743), the German writer John Jacob Moser (1701-1785) and George Friedrich be Martens (1756-1821) were the leading exponents of this school. Bynkershoek observed that the law of nations was based on the common consent of nations, expressing itself either in international custom or international treaties. This school represents the modern view of International Law.
3. Grotians. - The Grotians occupied a position midway between the Naturalists and Positivists. They maintained the distinction between natural and voluntary law of nations as propounded by Grotians and kept both as the bases of the law, but unlike Grotians they considered the positive or voluntary law of nations as important as the natural law of nations. They gained enormous influence during the 17th and 18th centuries.
Ans. Whether International Law is law in the true sense of the term or not. - The controversy whether International Law is true law or not depends upon the definition of the word `law'. If we subscribe to the view of Hobbes, Austin and Pufendorf, that law is command of sovereign enforced by superior political authority, then international law cannot be included in the category of law. On the other hand, if we subscribe to the view that the term `law', cannot be limited to the rules enacted by the superior political authority, then international law can be included in the category of law.
According to Austin, law is given by a determinate superior political authority to political inferiors and is backed by a coercive enforcement agency. Thus, according to Austine, sanction occupies an important place in the enforcement of law. Hobbes also subscribes to this view. In the view of Hobbes, man is by nature nasty, brutish and violent and fear or sanction which is inherent in law in necessary to maintain order in society.
The definition of law by Austin is not correct. In the words of Prof. Oppenheim "This definition is not correct. It does not cover that part of municipal law which is termed as unwritten or customary law. There is, in fact, no community and no State in the world which exist with written law only". In his view, law is, "a body of rules of human conduct within a community which by consent of this community shall be enforced by external power." Brierly and Prof. Hart have also criticised the Austinian definition of law.
According to Oppenheim, the existence of law presupposes the existence of three pre-requisites :- (i) a community; (ii) a body of rules; and (iii) common consent of the community that if necessary these rules shall be enforced by an external power. The three requirements of this definition (i.e. Oppenheim's definition of law) are satisfied by international law, to a greater or lesser extent.
Conclusions :- On the basis of the above arguments it may be concluded that International Law is in fact law. International Law operate entirely in different setting. It operates in a decentralized system.
According to Strake, international law is a `weak law' because existing international legislative machinery operating mainly through law making conventions is not comparable in efficiency to State legislative machinery. International Law can be said to be `weak' only when it is compared with municipal law. Much of the controversy relating to international law is due to the fallacy that the system of municipal law is an ideal one and all legal systems and for that matter international law also must conform to that ideal. Municipal law operates in a centralized systems whereas International Law operates in a decentralized system. The comparison is therefore not a happy one. International Law must be understood in its own setting and the system in which it operates. It is as strong and as effective as it can be under the system in which it operates.
Ans. Various jurists have given their views on whether is International Law a mere positive morality ? A rule of morality applies to conscience and is, therefore, not biding. On the other hand a rule of law is binding and can be enforced by a external power. Most of the jurists agree that international law has binding nature whereas the rule of morality is simply a standard of right behaviour based on the personal judgment.
As pointed out by Edward Collins, "Although attitudes about morality, when widely shared, influence the development of international law, there is no recognised legal obligation to obey the norms of morality until they are accepted by authoritative decision makers a international law." Frederick Pollock has rightly observed, "If International Law were only a kind of morality, the framers of State papers concerning foreign policy would throw all their weight on moral arguments. But as a matter of fact, this is not what they do. They appeal not to the general feeling of moral righteousness, but to precedents, to treaties and to opinion of specialists." Prof. Heart also subscribes to this view. He adds, "The rules of international law, like those of municipal law, are often morally quite indifferent. A rule may exist because it is convenient or necessary to have some clear fixed rule about the subjects with which it is concerned but not because any moral importance is attached to the particular rule."
Ans. According to Holland, International Law is the vanishing point of jurisprudence. In this view International Law is followed by courtesy and, therefore, it cannot be kept in the category of law. Austin also subscribes to this view. The view of Holland does not seem to be correct. In the first place, sanction is not most essential element of law. Even if it is regarded as an essential element, it will to be proper to say that international law has no sanctions at all. War reprisals, retortion, Pacific Blockade etc., were regarded as sanctions under the traditional international law i.e., before the establishment of the United Nations. The Charter of the United Nations also contains a provision wherein the Security Council may recommend or decide upon the measures to be taken to implement the decision of the International Court of Justice. In the view of Holland, there is no judge or arbitrator to decide international disputes. This statement cannot be accepted because the International Court of Justice is the judicial organ of the United Nations and its decisions are binding upon the parties to a dispute.
It is true the International Court of Justice lacks compulsory jurisdiction in the real sense of the term; its decision cannot be applied to future cases as precedents; and, above all, the binding force of its decisions is very limited.
Under Chapter VII of the U.N. Charter, the Security Court possesses wide powers to declare sanctions against the States who are guilty of violation of the provisions of the U.N. Charter relating to international peace and security. U.N. action in the Gulf War (1991) is a glaring example of this. Reference may also be made to the U.N. sanctions against Libya in Lockerbie case i.e. bombing of Pan American (flight) airliner in 1988 over Lockerbie (Scotland) killing 270 persons. Earlier, the U.N. had taken enforcement action under Chapter VII of the Charter in several cases such as in 1948 against North Korea and in 1961 in Congo.
On the basis of above discussion, it may be concluded that International Law is, in fact, law and it is wrong to say, that it is the vanishing point of jurisprudence.
Ans. Distinction between Public International Law and Private International Law. - The main points of difference between Public and Private International Law are the following :-
(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.
Ans. Weaknesses of the International Law. - Following are the weaknesses of the International Law :-
(1) It lacks effective authority to enforce its rules.
(2) It lacks effective legislative machinery.
(3) The International Court of Justice has no compulsory jurisdiction in the true sense of the terms.
(4) The sanctions behind international law are very weak.
(5) It cannot intervene in the matters which are within the domestic jurisdiction of States.
(6) Many rules of international law are uncertain and vague.
(7) International Law has failed to maintain order and peace in the world.
Suggestions for improving International Law :-
(1) The International Court of Justice should be given compulsory jurisdiction in the true sense of the term.
(2) An International Criminal Court should be established to decide cases of International crimes.
(3) International Law should be properly codified and scientifically revised from time to time.
(4) The machinery to enforce the decisions of the World Court should be strengthened.
(5) The powers and scope of the activities of the International Law Commission should be expanded.
(6) The doctrine of judicial precedents should be applied in the field of international law.
(7) In order to strengthen the legislative machinery of international law, more law-making treaties and conventions should be made and there should be a provision for their revision from time to time.
(8) The legislative activities of the General Assembly should be further enlarged.
(9) Such activities of the U.N. should be encouraged as may develop the feelings of international community in the true sense of the term.
(10) The U.N. Charter should be amended as to authorise the U.N. to intervene in such matters with the domestic jurisdiction of State as are of international concern.
Ans. Sources - The first five sources find mention in Article 38 of the Statue of International Court of Justice.
(1) International Conventions - The term "convention" applies to any treaty, protocol or agreement, regardless of its title or form. According to Article 38 of the Statute of International Court of Justice, it is the first source of international law. In the modern period, international treaties are the most important sources of international law. As defined by Article 2 of Vienna Convention on the Law of Treaties. 1969, "a treaty is an agreement whereby two or more States establish or seek to establish relationship between them governed by international law."
(2) International Customs - International Customs used to be the most important source of international law in the past. In the modern period, their importance has lessened. Custom is a habit which has been repeated for a long time and has ultimately assumed the force of law. Usage is the earlier stage of the development of custom. By usages mean those habits which are often repeated by the States. Custom begins where usage ends. Usages may be inconsistent and opposed to each other, but so is not the case with custom.
(3) General Principles of Law recognised by the civilized States. - According to Article 38 of the Statute of International Court of Justice, the general principles of law recognised by the civilized nations are also one of the sources of international law. This is an important source of law through which international law adapts itself in accordance with the changing times and circumstances. Res Judicata, estoppel, etc are the examples of the general principles of law recognised by civilized States. The general principles of law are those principles which are recognised by most of the civilized States. When the court finds that a principle has received general recognition, the court may apply it as a principle of international law.
Chorzow Factory (Indemnity case), [Pub. P.C.I.J. (1938), Series A, No. 17). - In this case, the Permanent Court of International Justice applied the principle of res judicata also held that one who violates a rule is liable to make reparation.
(e) Mavrommatis Palestine Concessions Case, [Pub. P.C.I.J. (1924), Series A, No. 2] - In this case the Court applied the general principle of subrogation.
(g) Bracelona Traction Case, Preliminary Objections, (I.C.J. Rep (1964), p. 6] - In this case also the International Court of Justice applied the principle of estoppel.
(4) Decisions of Judicial and Arbitral Tribunals - The decisions of Judicial and Arbitral Tribunals are also the sources of International Law. But according to Article 38 of the International Court of Justice, they are subsidiary means for the determination of the rules of law. This source includes international as well as State decisions. As regards the decisions of the International Court of Justice, Article 59 of the Statute of International Court of Justice provides that they will have "no binding force except between the parties and in respect of that particular case". Since the doctrine of precedent does not apply in field of international law the international judicial decisions are not generally binding. They are regarded as subsidiary means for the determination of the rules of international Law. The arbitral decisions have still less value because it is generally said that arbitrators work more as mediators rather than as judges.
(5) Justice Works. - The opinions of jurists are also regarded as sources of International Law. But they are also subsidiary means for the determination of the rules of international law. While deciding the case, if the court does not find any treaty or judicial decision or legislative act or any established custom, the court may take the help of opinion of jurists as subsidiary means for the determination of rules of international law.
(6) Decisions or determinations of the organs of international institution - In the modern age the decisions or determinations of organs of international institutions are also treated as sources of International Law. International organisations have also become a subject of international law. The decisions and determinations of the organs of such institutions are also, therefore, regarded as the source of international law because they help in the development of customary rules or international law. The International Court of Justice has recognized it in a number of cases such as South West African Cases (1996), Military and Para Military Activities in and against Nicaragua, (1986).
Ans. Ingredients of Elements of Custom - Following are the main elements of an international custom :-
(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.
Ans. There are five theories regarding the relationship between International Law and State Law -
(1) Monism;
(2) Dualism;
(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.
Ans. Meaning and definition of the term codification. - By the term codification we ordinarily mean the process of reducing the whole body of law into Code in the form of enacted law. It generally connotes a systematic arrangement of the rules of law which are already in existence. According to R.Y. Zennings,....... `Codification' means any systematic statement of the whole or part of the law in written form, and that it does not necessarily imply a process which leaves the main substance of the law unchanged, even though this may be true of some cases.
History of codification. - The history of codification dates back to the 18th century when the idea of codification of international law was conceived by Bentham. Before him an unsuccessful attempt was made by the French Convention to draw up a Declaration of the Rights of Nations in 1792.
Declaration of Paris, 1856. - The Declaration of Paris occupies a place of significance in the development of codification of International Law. This Declaration was signed by Britain, France, Austria, Russia, Turkey, Prussia and Sardinia after the end of the Creamean War in 1856. This declaration laid down the principles relating to (a) abolition of privateering; (b) non-capture of neutral goods except contraband of war, under enemy flags; (c) Blockade to be binding must be effective; and (d) except contraband of war, enemy goods cannot be captured under neutral flag.
Codification under the United Nations. - Article 13(1) of the U.N. Charter lays done that the General Assembly shall initiate and make recommendations for the purpose of "promoting international co-operation in the political field" and "encouraging the progressive development of International Law and its codification." The U.N. General Assembly took the task of "encouraging the progressive development of international law and its codification" in all seriousness. On December 11, 1946, the General Assembly appointed a committee for the progressive development of International Law and its codification. In 1947, the General Assembly decided to set up an International Law Commission. An International Law Commission was elected and it met on April 11, 1949. As provided under Article 1 of the Statute of the International Law Commission, the Commission shall have for its object the promotion of the progressive development of international law and its codification. Further, Article 24 provides that the Commission shall consider ways and means for making the evidence of customary international law more readily available, such as, the collection and publication of documents, concerning State practice and of the decisions of national and international courts on questions of international law, and shall make a report to the General Assembly on this matter.
Work of the International Law Commission - The Commission began its work in 1949 and since then it has done commendable work in respect of the codification of International Law. It decided to give priority to the following three topics - (i) Law of Treaties; (ii) Arbitral Procedure; and (iii) Law Relating to the High Seas.
In addition to this the Commission has also worked on the various over.
Recent Conventions and Treaties. - Geneva Conventions on the Law of Sea, 1958, Vienna Convention on Diplomatic Relations (1961), 1965, Convention on Settlement of Investment Disputes between the State and Nationals of other States, Vienna Convention on the Law of Treaties, 1969 are some of the landmarks in the field of codification and progressive development of International Law. Besides these, U.N. Conventions on Bio-Diversity, 1992; U.N. Convention on Forestry, 1992; U.N. Convention on Climate Change, 1992, etc., deserve a special mention. Moreover, for the progressive development and codification of International Trade Law, a United Nations Commission has been established.
Ans. - Merits and Demerits of Codification. - Merits of Codification.
(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."
Ans. - Definitions of State - State is the main subject of international law. According to Salmond, "State is a community of people which has been established for some objectives such as, internal order and external security ?" In the view of Oppenheim, the existence of State is possible only when the people of State have settled under the highest governmental authority and habitually follow its order. Ideal definition of term `State' is not possible. However, in the modern period it is finally settled as to what are the essential elements of a State.
Essential elements of a State. - According to Article 1 of Montevideo Convention, 1933, the State as a person of International Law should possess for ingredients - (a) a permanent population; (b) a defined territory; (c) a government; and (d) a capacity to enter into relations with other States.
According to Oppenheim, population, a defined territory, government and sovereignty are the essential elements of a State. Holland has added one more essential element, namely, to some extent `civilisation' because of which the State becomes an international person.
Functions of State. - The modern period has witnessed revolutionary changes in regard to functions of a State. Previously the concept of a police State prevailed. According to this concept, essential functions of a State were to maintain internal peace and order and to defend it from external aggression. It cannot be denied that even today these are the essential functions of a State but in the present period the concept of State has undergone significant changes. Instead of the concept of police State, the present concept is that of welfare State. That is to say, for the benefit of the people, State has to perform many social, economic, educational and cultural functions. However, these functions may not be termed as essential functions. They are in fact subsidiary functions although the significance of these functions is constantly increasing.
Ans. Sovereignty :
Sovereignty of States. - Sovereignty is a legal term signifying the supreme power by which any State is governed. It denotes in ordinary parlance the unrestricted power of self-determination by the State of its external and domestic affairs. Austin termed sovereignty as essential, indivisible and illimitable. As a result of the exercise of sovereignty, there emerge two legal assumptions in the domain of international Law, viz., the independence and equality before the law of each sovereign State and the prohibition to interfere with the external and internal sovereignty of each independent State.
The doctrine of independence of State implies that it is free to adopt any constitution it likes, is free to deal with its own citizens, either inside or outside its territories, and aliens within its territory in any manner and is at liberty to shape its foreign policy, join any bloc or adopt a neutral attitude, conclude treaties with other States or make war or peace accordingly as it suits its interests.
In the modern period there have been revolutionary changes in the concept of sovereignty because of which it is not proper to say that State's sovereignty is essential, indivisible and illimitable. In the present time, State's have entered into many international treaties thereby surrendering a part of their sovereignty. For example, the members of the United Nations have accepted many obligations under the Charter. It has, therefore, been rightly remarked by Starke : "Sovereignty has a much restricted meaning today than in the 18th and 19th centuries, when with the emergence of powerful highly nationalised States, few limits on States' autonomy were acknowledged. At the present time there is hardly a State which in the interest of the international community has not accepted restrictions on its liberty of action."
In Union of India v. Sukumar Sengupta, AIR 1990 SC 1962 at p. 1701 Sabyasachi Mukherji, C.J. of the Supreme Court of India quoted with approval the above observation of Starke. His Lordship added, "Any State in the modern time has to acknowledge and accept customary restraints on its sovereignty in as much as no State can exist independently and without reference to other State. Under the general international law the concept of inter-dependence of States has come to be accepted".
Ans. (a) Confederation. - A Confederation or Statenbund is constituted by a number of full sovereign States linking together by an international treaty into Union with organs of Government extending over the member States but not over the subjects of those States. They unite by means of a compact for the purpose of mutual co-operation or defence, each constituent member retaining its sovereignty and separate identity. Such a Confederation is not a State. It is more or less a society of an international character and the member States remain full sovereign States and maintain their international position.
Federation. - A federation or Bundesstaat, on the other hand, is a perpetual union of several sovereign States which has organs of its own and invested with power, not only over the member State, but also over their citizens (Professor Oppenheim). The ordinary powers of sovereignty are partly vested in the federal government and partly in the separate State, both the authorities being co-ordinate within their respective spheres. It is a real and sovereign State within the sphere of the powers granted to it and has unlike a Confederation direct power not only over the member States but also over the citizens of those States.
The Federal State has the power to declare war, make peace or conclude treaties and the member-States exercise power and control within their competence and retain a considerable measure of autonomy.
(b) Real Union. - A special form of Confederation is the "real union" which exists when two or more sovereign States have the same monarch and for international purposes and external relations act as one State although the constituent elements retain their separateness in domestic matters. A real union is not itself a State, but merely a union of two full sovereign States, which together make one single but composite International person.
Personal Union. - A personal union is in existence when two sovereign States and separate international persons are linked together through the accidental fact that they have the same individual as monarch. These States retain their separate identities for external purposes.
Ans. Principle of the Equality of States. - As the members of international community, in principle, all States are equal. This equality is due to their international personality. Despite the dissimilarity in respect of their territories, population, power, civilization, prosperity, etc. all States as international persons are equal. According to Oppenheim following are the consequence of this legal equality :
(i) When any question is to be decided by consent each State is entitled to have one vote. But there are exceptions to this rule, such as the 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.
Ans. Difference between Protectorate and Vassal State
Distinction between a Neutral State and Neutralised State. - A neutral State is a State which does not support either belligerent State during war. A neutralised State on the other hand is a States whose independence and territorial sovereignty is collectively accepted by an international agreement. A neutral State may at its will, give up its neutrality, but a neutralised State without violation of the treaty, cannot give up its neutrality. Switzerland, Belgium, Austria are some of the neutralised State whose neutrality has been guaranteed by international agreements. Switzerland is an ideal neutralised State because it has not even joined United Nations. Austria became a member of the United Nations in 1955. Starke has expressed the view that a neutralized State may become a member of the U.N. because under Article 48, the Security Council may exempt a neutral State from giving support in any enforcement action. The view of Starke is only partly correct because the membership of the U.N. invariably and undoubtedly dilutes the neutrality at least to some extent because under Article 48, the Security Council may exempt neutral States from taking part in enforcement action but that is not a mandatory provision. In case the Security Council decides that such a State has to support the enforcement action, the neutrality of such a State will end as regards that particular case.
|
Protectorate State |
Vassal State |
|
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. |
Ans. (a) Bhutan. - Bhutan is a protectorate State of India. It is a hilly region in North-East of Nepal. In 1949, through a treaty Bhutan entrusted the matter of foreign affairs and defence to India. It thus became a protectorate State of India. Since a protectorate State retains a sufficient measure of sovereignty, Bhutan remains a State under international law. In 1971, Bhutan became a member of the United Nations.
(b) Tibet. - In Simla Conference, 1914, Tibet was declared a protectorate State of China. This was further confirmed by the Treaty of 1951. China accepted Dalai Lama as the spiritual head of Tibet. Tibet was autonomous in its internal matters, but China started interfering in the internal matters of Tibet. In 1959, the situation deteriorated so much that the conflict took the form of war between China and Tibet. China ruthlessly suppressed the movement of the people and Dalai Lama was compelled to leave Tibet. He fled away from Tibet and took asylum in India. China criticised action of India in granting asylum to Dalai Lama and claimed that it was an interference in her internal affairs. At its very face this argument is absurd because as a sovereign State, India was within her rights to grant asylum to Dalai Lama and his followers within her territory.
(c) Holy See or Vatican City. - Holy See or Vatican City is a place where Pope resides. In the middle of 19th century the rulers of Italy seized the territory of Pope and occupied his capital Rome. He, therefore, fled to his residential place called Vatican City. In 1871 Italy granted some guarantees to Pope. Next important change took place in 1929 when a treaty was concluded between Pope and Government of Italy. Vatican City comprising of 100 acres of land was accepted as a State and Pope was treated as a sovereign of this State. The present position of Vatican City is that it is an international person and possesses all the rights and duties of a sovereign State.
(d) Commonwealth of Nations. - Commonwealth of Nations is an association of those States (except Britain) which were at some time the colonies of the British Empire. Britain, Canada, Austria, Cyprus, Nigeria, New Zealand India, Pakistan, Ceylon, Malaysia, Singapore, etc. are its members. Before 1948 it was called the British Commonwealth of Nations. In 1948 the term `British' was dropped. It is now called, the Commonwealth of Nations. All the members of the Commonwealth of Nations are now sovereign States. Under International Law, Commonwealth of Nations is neither a State nor a federation. It is in fact a loose association of equal and sovereign States who are members of the United Nations and have agreed to follow certain general principles. Thus under International Law, Commonwealth is not a separate independent entity.
Ans. There are three main theories of International Law : (1) Only States are subjects of International Law. - According to this view, only States are the subjects of international law. This view has been severely criticised. It fails to explain the case of salves and pirates who have been conferred some rights under international law. But those who subscribe to the view that States are the only subjects of international law, say that they are not the subjects but objects of international law. They further point out that they get these rights only through the medium of the State.
In Reparation for Injuries Suffered in the Service of the U.N., ICJ Rep. (1949) p. 174, the International Court of Justice rejected the proposition that States only are subjects of international law "and hence the traditional view that States only are the subjects of international law is not a rule of modern international law". It is now well-settled that besides States, individuals, international organisations and certain non-State entitles are also the subjects of international law.
(2) Individuals alone are the subjects of International Law. - The chief exponent of this theory is Kelsen. According to Kelsen both State law and international law apply on the individuals. If we make an analysis, we find that individual is at the root of all laws. Thus there is no real difference between international law and State law. Kelsen, however, admits that the difference is simply this that State law applies on individuals immediately or directly, whereas the international law applies `mediately'.
It may be noted that the logic behind the views of Kelsen is very strong and it is very difficult to disprove it, although practice of the State is just contrary. In practice international law is generally regarded as comprising of the major part of its rules regulating the relations of State. This view seems to be a reaction of the view that only States are the subjects of international law. This is in fact a very extreme view and cannot be regarded as completely correct. Individuals are now recognized as subjects of international law and present practice shows that international organisations and certain non-State entities are also to some extent, regarded subjects of international law.
(3) States are main subjects of International Law but individuals, international organisations and certain non-State entities are also subjects of international law. - This view, besides making the synthesis of the first and second views goes a step ahead to include international organisations, certain other non-State entities as subjects of international law. This is definitely a better view than the first two views. As per this theory "equal attention is given to promoting the growth of a body of world law transcending States, and applicable on a footing of equality of individual, corporations, international organisations and States."
Conclusion - On the basis of the above discussion, it may be concluded that not only Stats, individuals, international organisations and certain another non-State entities are the subjects of international law. The fact, however, remains that major part of the rules of international law deal with the intercourse of States with each other.
Ans. - Place of Individuals in International Law. - As pointed out earlier individuals are also now treated to be the subjects of international law. In recent times several treaties have been entered into wherein certain rights have been conferred and duties have been imposed upon the individuals. In this connection following may be noted :
(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."
Ans. Meaning and Definition of the term 'Recognition'. - In the words of Prof. Oppenheim, "In recognising a State as a member of international community the existing States declare that in their opinion the new State fulfils the conditions of Statehood as required by International Law."
Conditions for recognition of a New State. - According to Kelsen, a community to be recognised as an international person must fulfil the four conditions -
(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."
Ans. Modes or Kinds of Recognition. - Following are the two kinds 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.
Ans. Recognition of Insurgency. - Insurgency presupposes a civil war or political revolt in a State. In fact, insurgency is an intermediate stage between tranquility and belligerency.
Essential conditions for recognising insurgents. - Following are the essential conditions for recognition of insurgency :
(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.
Ans. Recognition of Belligerency. - On the outbreak of rebellion or insurrection in any country the outside powers generally maintain an attitude of non-interference in the domestic affairs of that State. However, it may frequently render it not possible for other States to maintain an attitude of indifference either because the rebellious forces are in effective occupation of a large part of the territory of the parent Government or the actual war between the parent Government and the rebellious forces has reached a stage when outside powers will not treat it merely an intermediate struggle. In such cases the political communities struggling to attain a condition of separate Statehood are accorded a de facto recognition of belligerency pending the determination of the question whether they are formally admitted to membership or are formally brought back to subjection.
Recognition of belligerency is a question for the Executive Department of the Government whose declarations are binding on the Court. Such recognition is a question of policy and not of law. It depends on various considerations, e.g., whether the belligerent community has an organized Government capable of carrying on war according to recognised rules and methods; whether there exists actual war at time; and whether the interests of the State conceding such recognition are being affected by the outbreak of war.
Effect of recognition - Recognition besides conferring rights imposes duties on the insurgent, viz., the establishment of Prize Courts and issue of lists of contraband. Insurgents can, therefore, be recognised belligerents only if they are capable of fulfilling their obligations, to other States.
The recognizing State becomes entitled to neutral rights, which are respected by rival parties. Such recognition protects the belligerents from being treated as traitors on land or pirates on the sea. It also grants immunity to the parent State for acts of omission and commission on the part of the belligerents detrimental to the recognizing States.
Recognition of belligerency confers an international status on the belligerents for purposes of war. Although there is no exchange of embassy or the conclusion of a treaty, yet consuls are generally exchanged for the protection of commercial interests. The recognizing State also recognizes within its jurisdiction the flag of the revolted Government and the commissions it issues.
Ans. Definition - Oppenheim has described `State Succession' in the following words :-
"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.
Ans. Secession from parent State. - In the absence of treaty or in so far the provisions of the treaty may not extend, the following consequences ensue :
(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.
Ans. Cession of territory. - In the case of cession of territory the question of succession is generally dealt with in a treaty, but in its absence the following are the rights and obligations to the transferred State :
Two contingencies may arise in the case. If the Government of the absorbing State be a federal State not annexing X as an integral portion of its territory and maintaining the internal sovereignty of the constituent States, X will retain its internal sovereignty and the rights and obligations of X will inhere in the part ceded. But such debts or obligations will be enforceable only through the Government of the Union,
Treaties inconsistent with the terms of the Federal State will extinguish but personal treaties, e.g., extradition treaties may remain operative if not inconsistent with the Central Government or not denounced by it.
If, however, the absorbing State Z is a united Government so as to completely extinguish the identity of X, the consequences will be :
(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].
Ans. Intervention. - Oppenheim calls intervention as dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things. Mere friendly advice and general political influence do not strictly come under this term as the essential requisite of intervention, viz., use of force or a threat to use force, is lacking in them.
Kinds of Intervention. - There are three different kinds of intervention, viz.,
(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.
Ans. Intervention. - Professor Oppenheim observes that intervention is, as a rule, forbidden by the Law of Nations, but there are circumstances where interventions take place by right and still there are cases where, although they do not take place by right, are nevertheless admitted by the Law of Nations, and are excused in spite of the violation of the personality of the respective States which they involve.
Right or Intervention. - Oppenheim mentions seven reasons when a State may have a right of intervention against another State, viz.
(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.
Ans. (a) The Monroe Doctrine. - The doctrine embodies a principle of American policy enunciated by President Monroe of the United States in 1823 declining any European intervention in political affairs of the American continent. It was never affirmed by Congress nor made the subject of a treaty and as such is not a rule of International Law. The declaration was to the following effect :
(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.
Ans. Territorial Jurisdiction. - Jurisdiction of a State over its territory is called territorial jurisdiction. It implies that a State enjoys civil as well as criminal jurisdiction over all persons and things, within the territory of a State which falls under its territorial jurisdiction. The principle of territorial jurisdiction extends to land territory within boundaries, internal waters, territorial sea, air-space above the land territory and sub-soil under earth. To exercise jurisdiction by State over its territory is a right of State.
Limitations on Territorial Jurisdiction. - It is to be noted that a State has an exclusive jurisdiction over the territory. However, exclusive jurisdiction of a State within its own territory is not absolute. Certain limitations have been imposed upon the rule of territorial jurisdiction which have developed partly through customs and partly by the conclusion of treaties.
(1) Diplomatic Agents. - Diplomatic agents enjoy privileges and immunities from the civil and criminal jurisdiction of the receiving State, since a long time, there appears to be general agreement that a diplomatic agent, during the term of his office, is totally exempt from both - criminal and civil jurisdiction - in the State where he is accredited.
(2) Embassies. - Embassies situated in other States are immune from the jurisdiction of the State. The agents of the State cannot enter in the foreign embassies except with the consent of the head of the mission.
(3) Foreign Sovereigns. - Foreign sovereigns enjoy immunities and they are exception to the principle of territorial jurisdiction. No local jurisdiction, whether criminal or civil, could be exercised over them.
Under general International law immunity granted to foreign sovereigns includes immunities to head to States, prime minister, ministers residents acting in their official capacity, ministers, departments, agencies and offices.
(4) Property of Foreign Sovereigns. - The property of the foreign sovereigns remains immune from the jurisdiction of the State. As long as the foreign sovereign has some interest in the property it remains immune, and it is immaterial for what purpose the property was employed.
(5) Foreign Armed Forces. - Armed forces of a State remain in the foreign territory on several occasions in the service of their home State. Such forces are considered by some to be extra-territorial, and therefore they remain under the jurisdiction of the State to which they belong.
Ans. Maritime Territory - Beyond inland waters, the sovereignty of a coastal state extends to maritime belt or territorial waters. Besides territorial waters, the coastal state also exercises sovereign rights, for certain limited purposes, over continent held, exclusive economic zone and contiguous zone. Each of these maritime zones has been briefly discussed in a separate chapter entitled "The Law of the Sea."
International Rivers. - Rivers which run through several States are described as `non-national rivers'. Such rivers are owned by more than one State; each State owns that part of the river which runs through its territory. Rivers which are navigable from the open sea and pass through several States, between their sources and mouths, are called `International Rivers'. They are termed international "because freedom of navigation in time of peace on all such rivers in Europe and on many of them outside Europe for merchant-men of all nations is recognised by conventional International Law". As regards the utilization of flow of waters of non-national and international rivers Oppenheim has pointed out that "it is not within the arbitrary power of one of the riparian States for it is a rule of International Law that no State is allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State.
Reference may also be made here to the Indus Waters Agreement signed on 19th September, 1960 by India, Pakistan, and the International Bank for Reconstruction and Development for regulating the use of the Waters of Indus, Chenab and Jhelum rivers. This further confirms that in the absence of a treaty or agreement there can be no definite obligation of a riparian State in respect of the use of waters of a river.
Inter-Oceanic Canals. - Inter-Oceanic Canals are the canals which connect international water-ways and are available for the shipping of all states. Their use and control are governed by international treaties. The most important of oceanic canals are the following:
(1) Suez Canal. - It is the most famous Inter-Oceanic Canal. In the beginning, it was under the control of French Government. Later on, it came under the control of British Government in 1954. A treaty was concluded between British and Egypt whereby Britain withdrew its forces from the Suez Canal. In 1956, Suez Canal was nationalised by Egypt. France, Britain and Israel reacted strongly against this action of Egypt and made a joint armed intervention to prevent Egypt from nationalising the Suez Canal. The problem was resolved through the efforts of Russia, Security Council and the General Assembly. Subsequently, an agreement was entered into whereby it was provided that the Suez Canal remain aloof from international politics and all the States shall have the right of shipping over this canal. However, Egypt would be entitled to realise taxes from the ships passing through the canal. In the Arab-Israel conflict, the Canal was greatly damaged and had to be closed for several years. After the cease-fire between Israel and Egypt, the latter cleared the canal. But later on it was again opened for shipping etc., by States.
(2) Keil Canal. - It is another important inter-oceanic canal connecting Baltic Sea and North Sea. In the beginning this canal was under the control of Germany. After the First World War, it was thrown open for all the States. A leading case relating to Keil Canal is S.S. Wimbledon, PCJI (1923) Series A, No. 1 (WCR 163). In this case, the Permanent Court of Justice held that the canal should remain open for all the States who are not at war with Germany. If some States are on war and Germany remains neutral in that war, even then the canal should remain open for such States.
The facts of this case are as follows :
On March 21, 1921, the German Authorities stopped a British ship named S.S. Wimbledon on the ground that it contained military equipments being shipped to Poland who was at war at that time with Russia. The German Authorities contended that allowing the ship to pass through the Keil Canal would amount to violation of the German neutrality. The prominent allied nations filed case against Germany in the Permanent Court of International Justice. Deciding in favour of the allied nations the World Court held that under Article 380 of the Treaty of Versailles, Germany was bound to allow the passage through Keil Canal, to the S.S. Wimbledon. The Court, therefore, ordered that Germany should pay compensation for violation of its treaty obligations.
(3) Panama Canal. - Panama Canal connects Atlantic Sea with the Pacific Sea. Under the Treaty of 1901 the Panama Canal came under the control of United States of America. This is a very important canal for commercial and transport purposes. Recently there has been a lot of controversy between Panama and America regarding the control and use of this Canal. In March, 1973, the Security Council held a session on Panama. In the said session a proposal was brought which could have removed the control of America, over this canal. But this proposal was vetoed by America. America, however, expressed desire to enter into fresh treaty with Panama in connection with the use and control of this canal. Subsequently, Panama and the United States agreed on certain principles regarding the use and control of the canal and on the basis of the said principles, they hope to enter into a treaty in near future.
After prolonged negotiations for more than three years, the U.S.A. and Panama finally signed on 7th September, 1977 two treaties - (i) A treaty guaranteeing the permanent neutrality of the canals; and (ii) A basic treaty governing the use and defence of the canal through December 1999, changing the status of the Panama Canal. One of the two treaties provides that the U.S.A. will turn over control of the canal and the canal zone to Panama by the end of this century. The other treaty allows the U.S.A. to defend the strategic water way if needs be, for an indefinite period. The treaties guarantee the permanent neutrality of the canal.
Ans. Modes of acquiring territories. - Following are the modes of acquiring territories under international Law :
(1) Occupation. - According to Starke, "Occupation consists in establishing sovereignty over a territory not under the authority of any other State whether newly discovered or an unlikely case abandoned by the State formerly in control."
A leading case regarding occupation is Island of Palamas Arbitration, (1929) Award of the Permanent Court of Arbitration, (1929) Hindson case p. 361, see also AJIL, Vol (1968) pp. 867-912. In this case there was a dispute between America and Netherlands over the Island of Palamas. America claimed to have acquired it under a treaty of 1898 with Spain. This Island was discovered by the Spaniards. On the other hand Netherlands claimed to have occupied it since 1700. According to the Court of Arbitration, Island of Palamas was a part of Netherlands because although it was discovered by Spaniards, they never occupied it and established contracts with the inhabitants of the Island. Thus, for occupation of a territory it is not sufficient to have an intention to establish sovereignty over the territory concerned. It is also necessary to make some actual exercise of such authority.
(II) Prescription. - Yet another mode of acquiring territory is by prescription. In words of Starke, "Title by prescription is the result of peaceable exercise of de facto sovereignty for a very long period over a territory, subject to the sovereignty of another State." But international law does not prescribe any fixed period for prescription.
As pointed out by an eminent writer, D.H.N. Johnson, a State may acquire some territory by prescription only when the following conditions are fulfilled :
(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."
Ans. Distinction between Occupation and Subjugation. - As pointed out by Prof. Oppenheim, "Occupation is a mode of acquisition which differs from subjugation chiefly in that the subjugated territory previously belonged to another State." Thus while in the case of subjugation the territory previously belonged to another State, in case of occupation it did not belong to any other State.
Ans. Modes of loss of territory. - Following are the modes through which a territory may be lost :
(1) Cession. - As one State acquires the territory through cession, the other State 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.
Ans. Legal implications of the Accession of Kashmir - Jammu and Kashmir, the northernmost State of India, borders on the U.S.S.R., Sinkiang and Tibet in the north and north-east and Pakistan on the west and south-west. Before the dawn of independence, Kashmir, like other Indian States, was directly under the suzerainty of His Majesty the King of England. With the passing of the Independence Act, 1947, by the British Parliament transferring power to Indian hands, there lapsed the suzerainty of the Crown over the Indian States and the Indian States were left free to join either the Indian Dominion or the Dominion of Pakistan. The ruler of Kashmir was at liberty to choose the future constitutional status of the State.
Shortly after the conclusion of the standstill agreement with Pakistan for the continuance of the economic and administrative relations as also to maintain communications, supplies, etc., on the same basis as existed before the partition of India, the Government of Kashmir complained that the Pakistan authorities were withholding supplies of commodities like foodgrains, salt, sugar and petrol by denying transport facilities. This conduct on the part of the Government of Pakistan gave ground for a legitimate apprehension that pressure was being brought on Kashmir for its accession to Pakistan.
The strong economic pressure resorted to by Pakistan in the beginning later assumed the form of a full-scale blockade against Kashmir. In September 1947, there was concentration of tribesmen at the North-West Frontier Province, who along with the Western Punjab Muslims, trekked into the villages on the border of Kashmir and committed loot, arson and murder. The Kashmir Government lodged a strong caveat with the Government of Pakistan through whose territory the raiders entered Kashmir, but it was of no avail. The raiders were highly organized and soon they occupied a large portion of Kashmir territory in the Poonch area and threatened the occupation of Srinagar.
This mass invasion of tribal people, aided and abetted by Pakistan placed the Government of Kashmir in a very difficult predicament. They felt that they were unequal to the task and without outside assistance they could not resist the tribal onslaught on the independence of their State. Accordingly the Maharaja of Kashmir appealed to the Government of India for military aid. India had no jurisdiction to intervene in the internal affairs of the Kashmir State without its accession to India. To overcome the difficulty, on the 26th of October, 1947, the Maharaja in concurrence with Sheikh Abdullah, President of the National Conference, offered to accede the State of Kashmir to India. The Indian Independence Act, 1947, did not provide for the consultation of the wishes of the people of the princely States in order to determine the question of accession to either dominion, and as such India was free to accept the offer of the Maharaja of Kashmir acceding the State to India as final. On the 27th October, 1947, India accepted the accession of Kashmir by which Kashmir became an integral part of India. But for political rather than constitutional reasons, India volunteered that the accession should be subject to a plebiscite of the people to be held after the restoration of normal conditions in the State. The Indian Prime Minister observed that India could not finalize anything in a moment of crisis and without the fullest opportunity being given to the people of Kashmir to express their wish. It is, however, to be noted that above declaration by the Prime Minister of India was made after the acceptance of the accession, and accession was not made subject to that condition.
In February 1954 the Kashmir Constituent Assembly finally decided to accede to the Indian Union, thus ending a state of suspense, instability and uncertainty which impeded the progress of the people of Kashmir.
It is often argued that after August 15, 1947, the State of Jammu and Kashmir became an independent State and its negotiation about the accession of the State to India assumed the character of an international treaty between two sovereign States. Even assuming that position to be correct, the principles of International Law governing treaties will apply to the Instrument of Accession. International Law is explicit that the contracting parties cannot revoke the treaty obligation unilaterally unless it becomes obsolete owing to force majeure and impossibility of performance or due to vital change of the circumstances. The accession of the State to the Indian Union was further strengthened when the State of Jammu and Kashmir sent its representatives to the Constituent Assembly of India and accepted the Constitution of India. It thereby became a member State of the Indian Union. The undertaking given by the Prime Minister of India that the matter of accession could be reaffirmed or cancelled or cut by the people of Kashmir if they wished to, can at best only have moral value and has no semblance of any legal character. The accession of the State of Jammu and Kashmir was unconditional; it was not subject to any plebiscite.
Ans. Five Freedoms of the Air. - At the International Civil Aviation Conference held at Chicago in November 1944 an attempt was made to arrive at an agreement on commercial air traffic rights and the enlargement of the horizon of international civil aviation. The United States, the largest operator of international airlines, advocated very elaborate rights of aircraft undertaking transcontinental and transoceanic aviation, which have come to be known by the name of the Five Freedoms of the Air. These are:
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.
Ans. (a) Continental Shelf. - The International Law Commission has defined the "Continental Shelf" as that part of the seabed continuous to the coast, but outside the areas of marginal seas, where the depth of the superjacent waters admitted of the exploitation of natural resources of the sea-bed and sub-soil. The Commission has provided that the coastal States might exercise control and jurisdiction for the purpose of exploiting the natural resources of the shelf, but the legal status of the superjacent waters and of the air space above might not be affected thereby. "The main reason for the present near chaos of the law of the sea seems to be the elastic definition of the outer boundary of the continental shelf given by the relevant Geneva Convention."
(b) International Servitude - Starke defines an international servitude as "an exceptional" restriction imposed by treaty on the territorial sovereignty of a particular State whereby the territory of that State is put under conditions or restrictions serving the interests of another State."
Servitude may either be positive or negative in character. The former means that a State has a right to perform acts on the territory of another State. The latter connotes that the State bound by the servitude, must refrain from doing something on that territory or abstain from exercising its territorial rights in some ways.
Oppenheim mentions two more kinds of servitudes, viz., military and economic. The former is a servitude acquired for military purposes, such as the right to keep troops in foreign territory. The latter is a servitude which is acquired for the purpose of commercial interests.
Ans. In wider sense, hijacking is an act against the safety of traffic in the air, is comparable to piracy, an act against the safety or traffic on the open sea.
Article 1 of the Hague Convention, 1970, contains the concept of hijacking in the following words :
"Any person who on board an aircraft in flight :
(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.
Ans. Definition. - There has been a great controversy in respect of the definition of the term 'piracy'. Different jurists have given different definitions of the term 'piracy'. In an American case, The Amborse light, (25 Fed. Re. 408), the Federal Court expressed the view that the armed ship in the sea should be under the authority of some State and if such a ship is not under the authority of any State, it would be treated in the category of pirate ships, irrespective of the fact whether it has committed piracy or not. The law relating to piracy was condified in the Geneva Convention on High Seas, 1958. Article of the Convention defines 'piracy' in the following words :
Piracy consists of any of the following acts :
(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.
Ans. (a) Maritime Belt or Territorial Waters. - The 1958 Geneva Convention on Territorial Waters and Contiguous Zone provided that the coastal State exercises sovereignty over that part of the sea which is called maritime or territorial waters. The coastal State exercises sovereignty not only over the territorial waters, but also over air-space above it. Article 2 of the U.N. Convention on the Law of the Sea, 1982, contains a similar provision.
Problems of Width of the Territorial Waters. - Upto 18th Century the canon- shot rule was prevalent. According to Bynker-Shoek, the breadth of the maritime belt extends to that distance where a canon can fire. Upto 19th century the range of canon-shot was generally 3 miles. In the 19th century, the 3 mile canon-shot rule became very much prevalent. Scientific inventions and discoveries made this rule inadequate because the range of canon-shot increased considerably. According to Grotius the Sovereignty of a coastal State over maritime belt should extend to that area upto which it can exercise effective control. Famous jurist Vattel also subscribed to this view. Few countries of the world still voluntarily subscribed to 3 mile rule, but international law did not fix any width of the territorial waters. In order to fix the width of maritime belt the first important attempt was made in the Hague Conference of 1930, but with no success. The next important attempt was made in the Geneva Conference on the Law of the Sea, 1958, but no agreement could be reached. Different States claimed different width of territorial waters. The extreme case was that of Chile, Peru, Equator, claiming territorial waters extending to 200 miles. The general consensus was however, between a territorial waters extending from 3 miles to 12 miles. In order to solve this unresolved problem, another Geneva Conference was held in 1960 wherein the United States of America submitted a compromise formula. This formula envisaged 6 miles of territorial waters and outside this there should be another 6 miles given to the coastal State for fishing, etc. Unfortunately this proposal could not be accepted as it was defeated by a majority of a single vote.
India claimed territorial waters upto 3 miles upto the year 1956. In that year, India extended its territorial waters of 3 miles to six miles through a Presidential Proclamation and later on to 12 miles in 1967. The controversy finally ended with the adoption of the U.N. Convention on the Law of the Sea, 1982. According to Article 3 of the convention, breadth of territorial sea is 12 neutical miles measured from baseline.
(b) Contiguous Zone. - Contiguous Zone is that part of the sea which is beyond and adjacent to the territorial sea of the coastal State. According to Article 53 of the U.N. Convention on the Law of the Sea, 1982, in a zone contiguous to its territorial sea, the coastal State may exercise the control necessary to - (a) prevent infringement of its customs, fiscal, immigration or sanitary regulation within its territory or territorial sea; (b) punish infringement of the above regulations committed within its territory or territorial sea. The contiguous zone may not extend beyond 24 miles from which the breadth of territorial sea is measured. That is to say, it is twelve miles beyond the territorial sea.
Ans. (a) Continental Shelf. - The construction of the oceans and seas is such that as we proceed seaward they become more and more deeper and a place from where sea becomes steepy. Around most continents there is a belt of fairly shallow sea, unusually less than 600 feet and this depends only as one passes through sea-ward from coast. The sea-bed and sub-soil of this fringe of shallow sea which may be several hundred miles wide, is called the 'Continental Shelf'. The legal concept of continental shelf came into limelight since Truman Proclamation of 1945 wherein it was declared that the United States of America considered the resources of the shelf contiguous to the United States as appurtenant to the United States and subject to its jurisdiction and control. It was, however, made clear that this was in no way to affect the character of the High Seas above the shelf. Being encouraged by the Truman Proclamation certain other States such as Mexico, Argentina and Cuba made similar Proclamations.
Article 1 of the Geneva Convention on the Continental Shelf, 1958, defined continental shelf in the following words : "The continental shelf is (a) the sea bed and sub-soil of the submarine areas adjacent to the coast but outside the area of territorial sea to depth of 200 metres or beyond that limit to where the depth of superjacent water admits all exploitation of natural resources of the said areas; (b) to the sea-bed and sub-soil of similar submarine areas adjacent to the coast of island."
The above definition has been severely criticised. It is said and rightly too that it has created more problems than solved them. The definition does not fix any outer limit of the continental shelf.
It was, therefore, urgently felt that the definition of the Continental Shelf contained in the Geneva Convention on the Continental Shelf, 1958, should be revised at an early date.
Outer Limits of Continental Shelf. - Though the problem of the definition of the continental shelf was satisfactorily solved, the problem of the outer limits of continental shelf still remained. This was due to the problem of precisely defining the outer limit of the continental margin. With a view to avoid any ambiguity in the legal regime of the continental shelf to be established and to fix precise outer limits of the continental shelf of coastal state, paragraph 4(a) of Article 76 of the U.N. Convention on the Law of the Sea, 1982 provides the following :
"For the purposes of this convention, the coastal State shall establish the outer edge of continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured by either :
(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.
Ans. (a) Freedom of the High Seas - Definition. - The concept of freedom of open sea or high seas is very old. In the modern time it has assumed an added significance. According to Fenwick, open sea or high sea is the sea outside the territorial waters, Charles C. Genwick International Law (Third Indian Reprint, 1971), p. 496. In 1958 a Convention was adopted on the High Seas which is known as the Geneva Convention on the High Seas, 1958. Article 1 of the said Convention provides, "The term 'High Seas' means the parts of the sea that are not included in the territorial sea or in the internal waters of a State, See U.N. Doc.A/CONF.13/L. 53". In view of the recent developments, particularly the emergence of the concept of exclusive economic zone, this definition has become obsolete and inadequate. Article 86 of the U.N. Convention on the Law of the Sea, 1982, therefore, provides that the provisions of this Part (i.e. Part VII) apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This Article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with Article 58.
Article 2 of the 1958 Geneva Convention on the High Seas provides that the freedom of the high seas comprises inter alia, both for coastal and non- coastal State :
(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.
Ans. The Outer Space Treaty. - Some of the important provisions of the Outer Space Treaty of 1966 are as follows :
(1) Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with law, there shall be free access to all areas of celestial bodies. There shall be freedom of Scientific investigation in outer space, Article I of Outer Space Treaty of 1966.
(2) Outer space, including the moon and other celestial bodies is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means, Article II. Therefore, if a State X lands craft on the moon and claims to have acquired an inchoate title to territory, the claim will be invalid. If the State concerned is the party to the Outer Space Treaty, the claim will be invalid by virtue of Article 11 noted above. The answer will be same even if the State concerned is not a party to the Treaty because of General Assembly Resolution 1962 (XVIII), entitled "Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space" which was adopted unanimously by the United Nations General Assembly on December, 1963.
(3) State Parties to the treaty undertake not to place on orbit around the earth any objects carrying nuclear weapons or any other kind of weapons of mass destruction, install such weapons on celestial bodies, or station such wearers in outer space in any other manner, 11. Article IV : see also General Assembly Resolution, 1884 (XVII), dated 17 October, 1963.
(4) The moon and other celestial bodies shall be used by all states parties in Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of, military manoeuvres on celestial bodies shall be forbidden (Article IV).
(5) State parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress or emergency landing on the territory of another State party or on the high seas. When astronauts make such a landing they shall be safely and promptly returned to the State of registry of their space vehicle. (Article V).
(6) State Parties to the Treaty shall bear international responsibility for national activities in outer space. (Article VI).
(7) And each State party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or judicial persons by such object or its component parts on the earth, in air space or in outer space, including the moon and other celestial bodies. (Article VII).
(8) A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object and over any personnel thereof, while in outer space on a celestial body. (Article VIII).
As remarked by an eminent author, B. Bhatt : Legal Controls of Outer Space (1973) pp. 276-277, at p. 278. "The Space Treaty is a landmark in the process of development of space law. It represents the common interests of mankind. It has ended the mere speculative phase. It represents in more specific and more binding terms the rules of customary law such as contained in various U.N. resolutions."
A major failure of Space Treaty is that it does not provide any international control machinery to look after the larger interest of the international community ..............The treaty does not provide for compulsory jurisdiction of the International Court of Justice (I.C.J.) for the settlement of disputes. Moreover, "the treaty has not resolved the boundary problem between air space and outer space."
Ans. Conquest of Moon and Mars. - According to Oppenheim occupation is the act of appropriation by a State through which it intentionally acquires sovereignty over such territory as is at the time not under the sovereignty of another State. It, therefore, relates to the establishment of sovereignty over a territory which had either been unoccupied or had recently been discovered. It is a means of acquiring territory not already in the dominion of any State. In order to constitute occupation there must be the intention or will of a State to take possession of unappropriated territory and settlement upon the land, i.e., establishment of some form of control over the occupied area. Oppenheim calls possession and administration as the two essential facts that constitute an effective occupation. By possession he means that the occupying State must take the territory under its sway (corpus) with the intention of acquiring sovereignty over it (animus). This is done by settlement on the territory, accompanied by some formal act which announces both that the territory has been taken possession of and that the possessor intends to keep it under his sovereignty. By administration, Oppenheim means that the possessor must establish some kind of administration on the territory which shows that the territory is really governed by the new possessor.
Now in the instant case there cannot be any territorial claim on the moon arising from the landing of cosmic rocket on the Moon's surface. Even the planting of flags on the moon or any other heavenly body is not enough to claim sovereignty over it. The assertion of sovereignty must be displayed. It should be actual and not merely a nominal one on a paper claim. The claimant must act in a way which is legitimate of an international sovereign to act in order to exercise sovereignty. Nothing is to happen by man's conquest of Moon and Mars. Mere discovery of a land or conquest of Moon does not constitute acquisition through occupation. It gives an inchoate title, which is incapable of perfection by effective control and administration, i.e., by means of settlement as an act of possession since the inchoate title cannot be perfected into a real title of occupation within a reasonably sufficient time, the inchoate title will wither away and no problem of International Law is to arise in the foreseeable future.
Article I of the Treaty of Principles Governing Activities of State in the Exploration and Use of Outer Space including the Moon and other Celestial Bodies, signed at Washington, London and Moscow on 27th January, 1967, specifically lays down that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries irrespective of their degree of economic or scientific development and shall be the province of all mankind. Outer space, including the moon and the other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. Article 2 lays down that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. Article 4 provides that the moon and other celestial bodies shall be used by all States parties to the treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of bodies shall be forbidden.
After tough negotiations lasting seven years, the 47 nation United Nations Outer space Committee reached agreement in July 1979 on a draft treaty on the moon, proclaiming that its unexplored natural resources shall be the common heritage of mankind and that the moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means. The draft treaty was then sent to the General Assembly for adoption.
Ans. Peaceful uses of seabed. - In June 1968, the General Assembly set up a standing committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction. It functions largely through two subsidiary bodies : a Legal Sub-committee which studies the legal principles to promote international co-operation and to ensure exploitation of the resources of the seabed and ocean floor for the benefit of mankind and a Scientific and Technical Sub-committee which deals with these specified aspects.
In 1962 the General Assembly declared that, pending the establishment of an international regime, States and persons should refrain from all exploitation of the resources of the seabed and ocean floor beyond national jurisdiction and no claim on the part of the sea or its resources shall be recognized.
On December 17, 1970, the General Assembly of the United Nations, while planning for a Third United Nations Conference on the Law of the Sea, adopted a "Declaration of Principles", which inter alia laid down that the seabed beyond that limits of national jurisdiction and its resources shall constitute a "common heritage of mankind", i.e., a space not subject to appropriation by individual States or persons and to be exclusively used for peaceful purposes for the benefit of mankind as a whole, to be administered and exploited by the international community as such.
Peaceful uses of Outer Space. - The Treaty on the Peaceful Uses of Outer Space, commended to the States by the General Assembly and containing principles to be observed in the exploration and use of outer space, was signed on January 27, 1967, and came into force on October 10, 1967. The accretion of this treaty to the law of nations has forged a permanent disarmament agreement for outer space.
This Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, provides that there shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and the States facilitate and encourage international co-operation in such investigation; and that outer space, including the Moon and other celestial bodies, was not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. Further, the Moon and other celestial bodies shall be used by all States parties to the treaty exclusively for peaceful purposes and the establishment of military bases, installations and fortifications, the testing of any type of weapons and conduct of military manoeuvres on celestial bodies shall be forbidden. In order to promote international co-operation in the peaceful exploration and use of outer space, States parties to the treaty conducting activities in outer space including the Moon and other celestial bodies, have agreed to inform the Secretary- General of the United Nations of the nature, conduct, locations and results of such activities to enable him to disseminate it immediately effectively.
Besides the treaty, there is an agreement which came into effect on December 3, 1968, on the rescue and return of astronauts and the return of objects launched into outer space, under which parties agree to procedures for aiding the crews of spacecraft in the event of accident or emergency landing.
On January 27, 1971, the Academy of Science of the USSR and the U.S. National Aeronautics and Space Administration signed an agreement for better co- operation in space efforts. It aims at exchange of information and joint endeavours in the fields of meteorology, environment space biology and medicine and space exploration.
The Convention on International Liability for Damage Caused by Space Objects as adopted by the General Assembly on November 29, 1971, provides that a State, or States, launching or jointly launching a space object shall be absolutely, or jointly and severally, liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in night.
Ans. "Nationality" is "the status of natural person who is attached to a State by the tie of allegiance", Harvard Draft Convention on Nationality, (1929) A.J.I.L., Special Supplement, p. 13. In the words of Hyde, "Nationality refers to the relationship between a State and an individual which is such that the former may with reason regard the latter as owing allegiance to itself", Hyde, International Law, Vol. II, p. 1064.
Acquisition of Nationality.
Following are the modes of acquisition of nationality :
(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.
Ans. (a) Distinction between Nationality and Domicile. - It has been pointed out earlier that basis of nationality is the membership of a man with an independent community. On the other hand domicile denotes the residence of the person. Thus, there is a great difference between `Nationality' and 'domicile'. While nationality denotes the relation of a man with his nation which protects him and the person is bound to follow the rules enacted by that State, on the other hand, domicile denotes the residence of the person. Consequently, a person may acquire nationality through domicile. In different countries there are different rules and processes in regard to the acquisition of nationality through domicile.
In Boldrini v. Boldrini, (1932) Probate 9, 15, it was held that a man may change his domicile without losing or changing his nationality. Conversely, it has been held in Wahl v. A.G., (1932) 147 L.T. 382, that a man may change his nationality without a change of his domicile. The Indian courts have also applied these principles. Attaullah v. Attaullah, AIR 1953 Cal. 530, and Michael Anthony Rodrigues v. State of Bombay, AIR 1956 Bom. 729 deserve mention in this connection. The point that a person acquired British Nationality would not imply that he had acquired the domicile of U.K. too. This was held by the Calcutta High Court in S.P. Ghouse v. Deputy Controller, Reserve Bank of India, AIR 1964 Cal. 422. It has been aptly remarked : "Though the two concepts are quite independent of each other, but sometimes, "domicile" is made one of the important criterion for the acquisition of the nationality or citizenship of a country, S.K. Agarwal, International Law - Indian Courts and Legislature (1965), p. 113."
(b) Distinction between Nationality and Citizenship. - Often nationality and citizenship are considered to be synonymous of each other. But the fact is otherwise. There is a great difference between nationality and citizenship. By nationality under international law, we mean the legal relationship which exists between the nation and the State. Citizenship on the other hand, denotes the relation between the person and the State law. In other words we may say, rights of a person may come under international law whereas the rights of citizenship are the sole concern of the State law. It is possible that all the citizens possess the nationality of a particular State, but it is not necessary, that all the nationals may be the citizens of that particular State. Citizens are those persons, who possess all political rights in that State. But a person who possesses only 'nationality in a particular State may possess all political rights. Thus, there is a great difference between nationality and citizenship. The distinction between 'nationality' and citizenship has been aptly summed up in the following words, ibid, at pp. 96- 97. "It is 'nationality' only which is of significance to international law and not 'citizenship'.
Citizens are included in nationals, but not all nationals are citizens. It may be noted here that the Indian Citizenship Act, 1955 does not make any distinction between the words 'nationality' and 'citizenship'.
Ans. Double Nationality and Nationality of Married Woman. - Because of the conflict of the laws of nationality of different countries, a situation often arises when a person may possess nationality of more than one State. To give example of such a case is that of a woman, who after her marriage acquires the nationality of her husband and also continues to possess her original nationality. The double nationality may also be acquired by birth if the parents are at the time of birth in a State whose nationality they do not possess. Consequently, treaties may provide that the persons may, by their will, select their nationality. The Hague Conference of 1930 made an attempt to remove the difficulty arising out of double nationality in consequence of war. Articles 3 to 6 of the Hague Convention contain the provisions in this connection. For example Article 5 provides that such a person shall be treated in their State as if he has only one nationality. The third State will either recognize the nationality of the State where he often resides or will recognise the nationality which is more relevant in accordance with the facts and circumstances of each individual case. Articles 8 to 11 provide for the nationality of married women. In these provisions, and endeavour has been made to remove the difficulties. According to the principles contained in these provisions if a woman marries, then she will automatically acquire the nationality of her husband. In the recent times the Convention on the Nationality of Married Women is yet another significant attempt to remove the difficulties and problems arising out of the double nationality.
Ans. Statelessness. - Sometimes it so happens that a person does not possess the nationality of any State. Such a State is referred to as the state of statelessness. In Stoeck v. The Public Trustee, (1921)2 Ch. 67, it was held that it is generally agreed that if a person is not a national of any State, he will be called a Stateless person. Lord Russell observed that such a status is recognised by British law as well as International Law. At present this is one of the burning problems of International Law. The person who does not possess the nationality of any nation cannot exercise the rights conferred upon him by international law. Prof. Oppenheim has compared such persons with the ships who are 'floating in the open sea, without flag of any country'. Serious attempt to remove the difficulties arising out of Statelessness was made in the Hague Convention of 1930. Later on, after the establishment of United Nations, attention was given to remove the difficulties arising out of this problem. According to Article 15 of the Universal Declaration of Human Rights, each person is entitled to have nationality and the nationality of any person cannot be taken away or snatched arbitrarily. The Universal Declaration of Human Rights inspires the State to regulate their conduct in accordance with the provisions of the Declaration so far as the problem of Statelessness is concerned.
Ans. Extradition. - Where a person who has committed an offence in one country escapes to another, what is the duty of the latter with regard to him ? Should the country of refuge try him in its own Courts, according to its own laws, or deliver him up to the country whose law he has broken ? To the general question International Law gives no certain answer. The universal practice of nations, however, is to surrender fugitive offenders only in consequence of some special treaty with the country which demands them, and few jurists now affirm any general duty or perfect obligation. This surrender in accordance with treaty and in compliance with formal demand is known as extradition.
Lawrence defines extradition as "the surrender by one State to another of an individual who is found within the territory of the former, and is accused of having committed a crime within the territory of the latter, or who having committed a crime outside the territory of the latter, is one of its subjects and, as such, by the law amenable to its jurisdiction.
Difficulties. - There are two practical difficulties about extradition which have prevented the growth of a uniform rule on the subject. They are the variations in the definitions of crime adopted by different countries and the possibility of the process of extradition being employed to get hold of a person who is wanted by his country not really for an ordinary crime, but for a political offence. Modern States almost invariably exclude offences of a political character from the operation of the law of extradition.
It is now generally agreed that surrender is a matter of community and not right. Each State is guided by treaty stipulations, and, in their absence, it has a right to refuse to surrender fugitives by granting them asylum in view of the territorial sovereignty.
Necessary Conditions. - The necessary conditions for extradition generally inserted in extradition treaties are as follows :
(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.
Ans. Meaning and Definition. - By the term "Asylum" we generally mean the Shelter and active protection which is extended to a political refugee from another State by a State which admits him on his request. As pointed out by Starke, Asylum involves two elements :
(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.
Ans. Asylum and extradition are mutually exclusive or Asylum stops, as it were, where extradition begins. - As noted earlier, asylum is the protection, which a State grants in its territory or in some other place under control of certain of its organs to a person who comes to seek it. On the other hand, extradition is the surrender or delivery of the fugitive criminal to the State on whose territory the alleged criminal happens to be. The institution of asylum confers right upon the State to bring the person concerned within its jurisdiction. In case of territorial asylum, the person is in the territory of the territorial State and hence under its jurisdiction. By granting asylum, it grants protection to the person concerned in its territory. In case of diplomatic asylum, the person is not under the jurisdiction of the State granting asylum protection is granted to the person concerned and he is brought under the jurisdiction of the granting State. It, therefore, involves derogation from the sovereignty of the territorial State for through the institution of the asylum the person concerned is withdrawn from the jurisdiction of the territorial State.
In both types of asylum, however, the ultimate purpose is to accord protection to the refugee or person concerned and to bring him under the jurisdiction of the granting State. The institution of extradition does just the reverse. In case of extradition the fugitive criminal is in the territory and under the jurisdiction of the territorial State and either under an extradition treaty (or arrangement) or otherwise, it surrenders or returns the fugitive criminal to the State where he is alleged to have committed the crime. Thus the fugitive criminal who is under the jurisdiction of the territorial State is transferred to the jurisdiction of the State where he is alleged to have committed the crime. Thus asylum and extradition are mutually exclusive. Once the territorial State decides to extradite the fugitive criminal, the question of asylum does not at all arise, that is to say, asylum stops where extradition begins. On the other hand, once the State concerned decides to grant asylum to a person, the question of his extradition at least for the time being does not at all arise. But after a State has granted asylum to refugee or fugitive criminal it may subsequently decide to extradite him at the request of the State where he is alleged to have committed the crime or to which State he belongs.
Ans. The method of the settlement of international disputes may be divided into two main categories :
(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.
Ans. If the States are not able to solve their disputes through peaceful means, they resort to compulsive or coercive means which are as follows :
(1) Retorsion. - When a State behaves in a discourteous manner with another State then international law confers right upon the State affected to resort to retorsion. The word 'retorsion' means retaliation. But the affected State can take only those means or measures as retorsion which are otherwise also permitted under international law. For example, in retorsion diplomatic relations may be ended, privileges of diplomatic agents may be withdrawn and economic facilities may be stopped. As rightly pointed out by Starke, the United Nations Charter has to some extent affected the right of retorsion because in accordance with the provisions of charter no State can take any action in the form of retorsion as may endanger international peace and security.
(2) Reprisal. - Another compulsive means of settlement of international disputes adopted by one State against another for the purpose of settling some dispute brought about by the latter's illegal or unjustified act. In the case of Naulillaa Incident, Special Tribunal : Germany v. Portugal, (1928)2 RIAA 1012, 1019, the tribunal held that the tight of reprisal is subject to the following restrictions :-
(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.
Ans. (a) The main distinction between 'good offices' and 'mediation' is that in case of good offices, the third party simply offers its services and does not actively participate in the talks, whereas, in the case of mediation, the third party actively participates in the talks and makes suggestions so as to resolve the dispute between the State. A good example of mediation and good offices is that of Tashkant Agreement in the end of 1965 and beginning of 1966, wherein Russia succeeded in bringing about an agreement between India and Pakistan.
Ans. (b) The main distinction between reprisal and retorsion is that while in retorsion only that action can be taken which is permitted under international law and depends upon the discretion and sweet will of the States, whereas in reprisal those actions can also be taken which might otherwise be illegal but are allowed as reprisal in certain special circumstances. As pointed out by Starke, "....reprisal consists of acts which would generally otherwise be quite illegal whereas retorsion consist of retaliatory conduct to which no legal objection can be taken."
Ans. Definition of 'War'. - According to Hall, "When difference between States reach a point at which both parties resort to force or one of them does acts of violence which the other chooses to look upon as a breach of peace, the relation of war is set up, in which the combatants may use regulated violation against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant."
Effects of Outbreak of War -
(1) General Effects. - Besides affecting neutral States, war mainly affects the belligerent States. According to Oppenheim, it is wrong to say that due to outbreak of war, all the relations of the belligerent States and of their citizens came to and end, although limitations and prohibitions and the relations of the belligerent States during war are governed by the laws of war.
(2) Diplomatic and Consular Relations. - At the outbreak of the war the diplomatic and Consular relations between the belligerent States are broken immediately. Consequently, the belligerent States recall their diplomatic agents from each other. Often at the outbreak of war the receiving belligerent States hands over the passport to the diplomatic agents of the enemy country which means that they should immediately return to their home States. In this connection Article 44 of the Vienna Convention on Diplomatic Relations 1961, provides that it is the duty of the receiving State to provide necessary facilities to such agents so that they may return safely to their home State.
(3) Treaties. - According to the old view all treaties are terminated between the belligerent States after the outbreak of war. In the present times many significant changes have come in this respect. The present practice of the States shows that all the treaties between the belligerent States do not come to an end. Some treaties are completely terminated, some remain in force, while some others are simply suspended during war times.
(4) Trading and Intercourse in Commerce. - All trading and inter-course between the belligerent States are prohibited during the war. It is a well recognised rule of international law that the treaties relating to trading and intercourse between the belligerent States stand terminated at the outbreak of war.
(5) Contracts. - The effect of the contracts at the outbreak of war between belligerent States is a matter of municipal law rather than that of international law. Consequently belligerent States are free to make rules and to enforce them in accordance with the contracts. International law leaves them free to make necessary laws regulating the validity or invalidity of contracts at the outbreak of war. The practice of the States, however, shows that the executory contracts become completely invalid whereas executed contracts remain unaffected at the outbreak war.
(6) Enemy Property. - Enemy property may be of two kinds public enemy property and private enemy property :
(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.
Ans. "Total War". - In accordance with the Traditional definition of war. War is a contest between the armed forces of the belligerent States. Its object is to overwhelm the enemy and impose conditions upon the enemy. As pointed out earlier, this definition has become inadequate in view of the scientific developments and development of destructive weapons in the modern times. In the modern time, war not only affects the armed forces but also the civilian and the nature of the war is such that observance of the rules of war becomes impossible. Such a war has, therefore, been called 'total war'. The term 'total war' was first used by Grotius. In this view thirty years war of Europe was 'total war'. According to Josef L. Kunz, the religious wars of 16th and 17th centuries were fought with such cruelty and barbarity that they can be called 'total wars'.
Ans. Immediately after the outbreak of war between the States, a significant change comes in their relations. States bring about changes in their behaviour against the of enemies in accordance with the objectives. States determine their behaviour or treatment in accordance with the enemy character of the individual, goods, corporations, ships, etc. Therefore, in order to regulate their activities and behaviour it is necessary to determine the enemy character of individuals, goods corporations etc. Once the enemy character of individuals, goods, corporations, etc. is determined the belligerent States regulates its behaviour towards the enemy State accordingly. From the practice of the States and the rules that have been formulated so far we can derive the following conclusions :
(1) Enemy Character of Individuals. - Enemy character of individuals can be studied under the two headings :
(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.
Ans. On the fact stated above it was held in Daimler Co. Ltd. v. Continental Tyre and Rubbers Co. Ltd. that the assets of the company were enemy property. The following principles of law were laid down in the above case :
1. The enemy character may be assumed by a corporation if its agents or the persons in de facto control of its affairs are resident in an enemy country, or wherever resident, are adhering to the enemy or taking instructions from or acting under the control of enemies.
2. A company incorporated in the United Kingdom could, as such, be neither friend nor enemy, yet such a company could only act through its agents and these might assume an enemy character in time of war when they were resident in the enemy country or were acting under the instructions of enemy shareholders.
3. The character of individual shareholders cannot, of itself, affect the character of the company. It depends on the question whether the company's agents, or the persons in de facto control of its affairs are in fact adhering to, taking instructions from, or acting under the control of enemies.
4. A company registered in the United Kingdom but Carrying on business in a neutral country through agents properly authorized and resident here or in a neutral country is prima facie to be regarded as a friend, but may through its agents or persons in de facto control of its affairs, assume an enemy character.
5. A company registered in the United Kingdom but carrying on business in an enemy country is to be regarded as an enemy.
Ans. Rules of land warfare. - The laws of war, which had their origin in custom and convention, have undergone rapid changes in recent times. The preamble to the Hague Convention IV of 1907 declared "that population and belligerents remain under the protection and rule of the principles of the Law of Nations as they result from usages established between civilized nations, the law of humanity and the requirements of the public conscience."
The existing laws and customs of war are mostly regulated by customary and conventional law. The savage cruelty and ruthlessness with which wars in early times were fought and the great miseries that these wars brought, led thinkers and philosophers to formulate rules to regulate the conduct of war, which they found impossible to abolish.
The development of the laws of war began in the Middle Ages, under the influence of the Christian ideals of humanity and chivalry. Since then the rule-making process has been going on through the agencies of conference, conventions, treaties and through the persuasive writings of thinkers and jurists. Gradual development influenced by the principles of humanity, morality and chivalry witnessed great progress in the development of the laws of war because of the occurrences of huge political upheavals and because of the Great War that shook Europe. The Declaration of Paris, 1856, the Geneva Convention of 1864, the Declaration of St. Petersburg of 1868 and the Convention relating to the Laws of War on Land as a result of the First Hague Conference of 1899 are the most important general treaties which helped the development of the laws of war during the latter half of the nineteenth century. By the end of the nineteenth century an elaborate body of customs and usages of war found place in the works of eminent leading jurists but the law in certain respects was uncertain and doubtful and needed classification.
The important agencies of development of laws in the twentieth century were the general treaties that were concluded under the auspices of the Hague Conferences. The merit of these Hague Conventions lies in their classification of the uncertain customary rules of war that already existed. Some of these Conventions were expressed to be binding only in wars while the signatories to the Convention were the belligerents and thus they provided a loophole for evasion of rules laid down therein. But in spite of this "general participation clause" States in general regarded them to be binding and the British Courts held them to be valid.
The Nuremberg International Tribunal in 1946 expressed the view that those conventions embodied rules of customary law. The failure of several States to ratify some of these Hague Conventions did not affect their validity and binding force. They are now well-recognized as embodying customary laws of war.
The First World War with its new weapons of destruction found many of the rules of war inapplicable and the result was that belligerents felt themselves free in many respects in their conduct of the war. In consequence many of the rules of war perished under the stress of new conditions of warfare; only a few survived. In the presence of the League of Nations with its system of collective security the effort to revise and to formulate new rules of war took a concrete shape in the Washington Conference of 1921. The appearance of the Pact of Paris and other international attempts to abolish war did not allow the Conference to reach a final agreement on the subject. Then came the Second World War which shattered many established traditional rules of war and the principle of "military necessity" found its widest scope. After the Second World War the majority of States met at the Geneva Conference and concluded a Final Act in 1949 for the protection of war victims.
The development of the laws or land warfare may be traced through the following general treaties :
1. Geneva Convention, 1864. - The Geneva Convention of August 22, 1864, for the amelioration of the condition of wounded soldiers in armies in the field.
2. St. Petersburg Declaration. - The Declaration of St. Petersburg of December 11, 1868, prohibiting the use of any explosive or charged with fulminating or inflammable substances.
3. Hague Conventions of 1899 and 1907. - The Hague Conventions of 1899 and 1907, concerning expanding (dumdum) bullets, projectiles, and explosives launched from balloons, projectiles diffusing, asphyxiating or deleterious gases, concerning the opening of hostilities and concerning the rights and duties of neutral powers and persons, in land warfare.
Article 23 of the Hague Convention of 1907 forbade improper use of flag of truce, of the national flag or of military insignia and uniform of the enemy as well as the distinctive badges of the Geneva Convention. It also forbade killing or wounding an enemy who laid down his arms or surrendered at discretion having no longer his means of defence.
Non-combatants were made exempt from personal injury, except in so far as it resulted incidentally in the course of the lawful operations of warfare or was inflicted as a punishment for offences committed against the invaders. Article 25 prohibited the attack or bombardment by any means whatsoever of undefended cities, villages and buildings.
Article 23 of the Hague Regulations forbade a belligerent to compel subjects of the other side to take part in the operations of war directed against their own country, even if they were in his service before the outbreak of hostilities.
4. Treaty of Washington. - By Article 5 of the Treaty of Washington, 1922, the signatories agreed to prohibit the employment in war of asphyxiating, poisonous or other gases and all other analogous liquids, material or devices.
5. Protocol of 1925. - The Protocol of 1925 concerning the use in war of asphyxiating, poisonous and other gases.
6. Geneva Conventions, 1929. - The Geneva Conventions of 1929 concerning treatment of the sick, wounded and prisoners of war.
7. Geneva Conventions, 1949. - Four Conventions were concluded at Geneva in 1949 relating to (1) The Treatment of Prisoners of War; (2) The Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; (3) The Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; and (4) The Protection of Civilian Persons in time of war.
Ans. Prohibited means of warfare. - That the belligerents do not possess an unlimited right to injure their opponent has been recognized by the Fourth Hague Convention, 1907. Article 23 prohibited instruments of warfare of a destructive or painful character, prohibited the use of poison or poisoned weapons and employment of arms, projectiles or material calculated to cause unnecessary suffering and forbade the discharge of projectiles and explosives from balloons and by other new methods of a similar nature. The use of projectiles the sole object of which was diffusion of asphyxiating and deleterious gases was also abstained. It was also prohibited to use expanding (dumdum) bullets.
Article 23 forbade improper use of a flag of truce, of the national flag, or of military insignia and uniform of the enemy, as well as the destructive badges of the Geneva Convention. It also forbade killing or wounding an enemy who laid down his arms or surrendered at discretion having no longer his means of defence.
Non-combatants were made exempt from general injury, except in so far as it resulted incidentally in the course of the lawful operations of warfare or was inflicted as punishment for offences committed against the invaders. Article 25 prohibited the attack or bombardment by any means whatsoever of undefended cities, village and buildings.
Article 23 of the Hague Regulations forbade a belligerent to compel subjects of the other side to take part in the operations of war directed against their own country, even if they were in his service before the outbreak of hostilities.
The St. Petersburg Declaration, 1868, prohibited the use of any projectile of a weight below 400 grammes, which was either explosive or charged with fulminating or inflammable substances. The Hague Conference of 1899 adopted declarations renouncing the use of expanding bullets and the use of projectiles the sole object of which is the diffusion of asphyxiating and deleterious gases. By Article 5 of the Treaty of Washington, 1922, the signatories agreed to prohibit the employment in war of asphyxiating, poisonous or other gases and all analogous liquids, material or devices.
Ans. (a) Prisoners of war. - Prisoners of war are those soldiers who are captured by either of the belligerents in time of war.
Sir Robert Phillimore enumerates the following classes of persons having no claim to the treatment of prisoners of war :-
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.
Ans. Stratagem. - According to Lawrence stratagems are rules practised on the enemy in order to mislead him and put him off his guard, that they may be used at all is due to the fact that war is a conflict of its quite as much as a conflict of arms. Article 24 of the Hague Regulations permits ruses of war and the employment of methods necessary for obtaining information about the enemy and the country as lawful. Stratagems that do not violate any express or tacit understanding between the belligerents are perfectly lawful and legitimate, as every general is expected to guard against them by his own vigilance and prudence.
Stratagem and deceit. - Halleck distinguishes between 'stratagem' and 'deceit' (which he calls perfidy) by observing that, whenever a belligerent has expressly or tacitly engaged, and, is therefore, bound, by moral obligation to speak the truth to an enemy, it is perfidy to betray his confidence, because it constitutes a breach of good faith. Thus, for example, stratagems must not be applied where the enemy had been taken off its guard by any of the recognized signs, such as a flag of truce or the Red Cross emblems, of a desire to establish communication or enjoy immunity from attack; nor should they be resorted to in connection with the carrying out of capitulations, which must be done to the letter; assassination of enemy generals, soldiers or heads of the States, as also the feigning of surrender with the ultimate desire to entrap the enemy are all sheer perfidies and must not be looked upon as stratagems.
The laying of ambushes and traps, the concealing of military operations through false marches, erection of barriers, etc., the feigning of attacks or flights or withdrawals are examples of bona fide ruses of war. Use of pretended signals or the use of the enemy's watch word and giving wide publicity to deceitful intelligence are further examples of ruses of war. Troops engaged in actual conflict must not wear the uniform or carry the ensigns of the enemy. Article 23 of the Hague Regulations forbids belligerents from the improper use of the national flag or of the military insignia or the uniform of the enemy.
A stratagem may be retaliated by a stratagem. Thus, as Lauterpacht observes, "if a spy of the enemy is bribed to give deceitful intelligence to his employer, or if an officer, who is approached by the enemy and offered a bribe, accepts it feigningly, but deceives the briber and leads him to disaster, no perfidy is committed."
Ans. Espionage. - The use of spies in time of war was a measure of recognized legality notwithstanding the severe penalty inflicted upon the spy if caught by the enemy. In international practice, however, difficulties arose from lack of a sharp distinction between spies, scouts, dispatch bearers and war traitors. The Hague Regulations of 1899 followed the customary law in making the escape of spying to consist in acting "clandestinely or on false pretences" with the object of obtaining information in the name of operations of a belligerent and of communicating it to the enemy. It was further provided that soldiers not in disguise properly known as `scouts' might penetrate the enemy's lines to obtain information without being considered spies. So also despatch bearers, whether soldiers or civilians, were not considered spies if they carried out their missions openly. Persons sent in balloons to deliver dispatches or maintain communications between different parts of the army or territory came within the same category. Upon the outbreak of the Russo- Japanese war Russia announced the intention of treating as spies war correspondents who should communicate news to the enemy by wireless telegraphy ; but the threat was not carried into effect. The regulations provided for the trial of spies before punishment, and they emphasized the legality of the use of spies by providing that a spy who had escaped and was afterwards captured was to be treated as a prisoner of war. The American rules of land warfare emphasized the customary rules that no distinction of sex was made in respect to the penalty inflicted upon spies.
War treason. - A difficult problem of military occupation during both World Wars that arose was, what is technically known as, 'war treason'. The Hague Regulations forbade the military occupant to compel the population to "take the oath" to the hostile State but it was well established by customary law that individual citizens must refrain from communicating in any way with the armies of their own country and from giving them other aid and comfort. Customary law recognized that war traitors might be severely punished and the death penalty imposed for betraying information concerning the condition or operations of the occupying army.
Ruses and Stratagems. - Ruses of war are stratagems employed with a view to misleading the enemy in its military operations. Article 24 of the Hague Regulations does not disallow the employment of ruses of war for the purpose of deceiving the enemy. Laying of ambushes and traps, masking of military operations, the feigning of attacks or withdrawal afford examples of legitimate ruses of war.
Ans. Enemy Occupation. - Occupation is completed by taking possession of the territory and establishing an administration over the same in the name of the occupying or acquiring State. Article 42 of the Hague Regulations attached to the Fourth Hague Convention of 1907 declares that a territory is said to be occupied when it is actually placed under the authority of a hostile army and that such occupation is effective only when it is supported by a force sufficient to maintain the authority of the occupant.
The inhabitants of the occupied territory are under the military control of the occupant and have to render obedience to his commands.
Article 43 of Hague Regulations declares that the occupant shall take all steps in his power to re-establish and ensure, as far as possible, public order and safety while respecting, unless absolutely prevented, the laws in force in the country.
The Hague Regulations forbid the occupant to compel the population of the occupied territory to take an oath of allegiance to the hostile power, but permit him to demand from them an oath of neutrality as also an oath to give the same obedience and loyalty though temporary as the lawful sovereign was entitled to.
The occupant cannot compel the inhabitants of the occupied territory to give him information about their own troops.
Article 56 of the Hague Regulations expressly forbids the seizure or destruction of institutions dedicated to public worship, charity, education, science and art. Historical monuments and works of art or science are likewise to be protected.
Immovable property as a general rule is incapable of appropriation by an invader. It is bound up with the territory. The profits arising from them are free from confiscation, and the owners are to be protected in all lawful use of them. (Article 45). But troops may be quartered in private houses, though the inhabitants may not be ejected from their homes to make more room from the soldiery. Moreover the need of actual conflict may justify the destruction of buildings or the use of them as fortified posts.
Article 53 gives immunity to movable property of the non-combant population of occupied districts from its seizure unless it consists of arms, war material, etc.
Private property has to be respected and cannot be confiscated. (Art. 46).
Pillage of private property is strictly forbidden. The invader, however, can use neutral property found in the occupied territory on payment of proper compensation.
Article 54 provides that submarine cables connecting an occupied territory with a neutral territory are not to be seized or destroyed except in the case of absolute necessity. In the latter case they are to be restored at the conclusion of peace, and indemnities paid for them.
The invader, under the Hague Regulations, can punish severely acts falling under war treason.
Article 52 of the Hague Regulations forbids the occupant to compel the nationals of the hostile party to take part in the operations of war directed against their own country. The non-combatant inhabitants, however, can be forced to perform any service of non-military character. Non-combatants are prohibited under penalty of death from hostile operation against the occupant, such as giving information to the enemy.
Article 50 lays down that no collective penalty, pecuniary or otherwise, might be inflicted on the inhabitants for the acts of individuals, for which they cannot be regarded as collectively responsible. This rule was followed in breach by Germany both in the Great War of 1914-18 and the World War of 1939- 45 when that country imposed collective punishment on the inhabitants of that occupied territory in several cases.
Article 43 provides that the occupant must respect, unless prevented by laws in force in the country, but he may set up military courts instead of the ordinary courts. The courts, however, pronounce judgment in the name of the legitimate Government and not in the name of the occupant power.
Requisitions, Contributions and Fines. - The Hague Regulations permit requisitions so far as they are required for the necessities of the army of occupation and are in proportion to the resources of the country. They can be demanded only on the authority of the commander in the locality occupied. They should be made in writing and receipts are to be given for the articles supplied.
Contributions are permissible only when the yield is small from taxes and is insufficient to provide for the expenses of the administration. Receipts are to be given to the contributories, although no provisions have been made for the repayment.
Article 50 of the Hague Regulations declares that no general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of the individuals for which they cannot be regarded as collectively responsible.
Geneva Convention, 1949. - The ruthless atrocities committed by Germany as a belligerent occupant on the civilian population of the occupied territory during the Second World War necessitated revision of the Hague Regulations and the adoption of the Geneva Convention of 1949. Articles 47 to 78 of the Convention relating to the Protection of Civilian Persons in Time of War deal exclusively with occupied territories and are declaratory of existing provisions though in some respects they go beyond the provisions of the Hague Regulations.
Under Article 49 individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country, are prohibited.
The Convention forbids the occupying power to compel the inhabitants of the occupied territory to serve in its armed or auxiliary forces.
The occupying power may not alter the status of public officials of judges in the occupied territories. (Art. 54).
Destruction of real or personal property of individuals, of the State, or other public authorities is prohibited, except where such destruction is rendered absolutely necessary by military operations. (Art. 53).
The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the occupying power in cases where they constitute a threat to its security.
The death penalty may be imposed by the occupying power on a civilian inhabitant only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the occupying power or of international offences which have caused the death of one or more persons.
Protected persons shall not be arrested, prosecuted or convicted by the occupying power for acts committed or for opinions expressed before the occupation, with the exception of breaches of the laws and customs of war. (Art. 70).
Article 55 casts a duty on the occupying power of ensuring the food and medical supplies of the population.
Ans. Military occupation, Belligerent occupation and Annexation. - Military occupation is temporary de facto situation which does not deprive the occupied power of its sovereignty, nor does it take away its Statehood. All that happens is that pro tempore the occupied power cannot exercise its rights. In other words, belligerent occupation means that the Government cannot function and authority is exercised by the occupying force.
Annexation, on the other hand, occurs when the Occupying Power acquires and makes the occupied territory as its own. Annexation gives a de jure right to administer the territory. Annexation means that there is not only possession but uncontested sovereignty over the territory. As Greenspan put it, military occupation must be distinguished from subjugation, where a territory is not only conquered, but annexed by the conqueror.
There is, however, a difference between true annexation on the one hand and premature annexation, or as it is sometimes called 'anticipated annexation' on the other. Jurists regard annexation as premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is wholly excluded from the territory.
Anticipated annexation by unilateral action is not true annexation. True annexation is only so when the territory is conquered and subjugated.
In Rev. Mons. Sebastiao Francisco Xavier dos Remedios Monteiro v. The State of Goa (26th March 1969), the Supreme Court of India observed that the Geneva Conventions rightly lay down that annexation has no effect on the protection. But they speak of premature or anticipated annexation. Premature or anticipated annexation has no effect. Such a plea was negatived for the same reason by the Nuremberg Tribunal. In fact, when the Convention itself was being drafted the experts were half-inclined to add the word 'alleged' before annexation in Art. 47 to distinguish between annexation following conquest and subjugation and annexation made while hostilities are going on. Subjugation puts an end to the state of war and destroys the source of authority of the existing Government. In subjugation, which is recognized as one of the modes of acquiring title, not only the de facto but also the de jure title passes to the conqueror. After subjugation the inhabitants must obey the laws such as are made and not resist them.
Thus the principle which is accepted is that the Occupying Power must apply the Convention even when it claims during conflict to have annexed the occupied territory. However, when the conflict is over and there is hostile army in the field, annexation has the effect of creating a title to the territory.
The question, when does title to the new territory begin, is not easy to answer. Some would make title depend upon recognition. Mr. Stimon's doctrine of non-recognition in cases where a state of things has been brought about contrary to the Pact of Paris, was intended to deny root of title to conquest; but when Italy conquered Abyssinia, the conquest was recognized because it was thought that the state of affairs had come to stay. Thus, although the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (Art. 2, Para 4) events after the Second World War have shown that transfer of title to territory by conquest is still recognized. Prof. R.Y. Jennings poses the question : "What is the legal position where a conqueror having no title by conquest is nevertheless in full possession of the territorial power, and not apparently to be ousted ?" He recommends the recognition of this fact between the two States. If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title.
In the present case Goa, which was a Portuguese colony for about 450 years, was occupies by the Indian armed forces on December 19, 1961, following a short military action. The military engagement was only a few hours duration and then there was no resistance at all. The Geneva Convention ceased to apply after December 20, 1961. The Indian Government offered Rev. Father Monteiro Indian nationality and citizenship which he refused and retained his Portuguese nationality. As a Portuguese national he could only stay in India on taking out a permit. He was, therefore, rightly prosecuted under the laws applicable to him.
Ans. Laws of Maritime Warfare. - Before the nineteenth century, laws of maritime warfare were mostly in the form of customs. Since nineteenth century several International Conferences have been held and as a result of which at present besides the customs, the laws of maritime warfare are mainly in the following International Treaties or Declarations :
(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.
Ans. Law of Submarine Warfare. - Following are the main rules relating to the laws of submarine warfare :
(1) It was laid down in the Treaty of Washington, 1922 that the use of submarine to destroy merchant or commercial ship was against international law and hence it was prohibited.
(2) Next important treaty which laid down rules relating to submarine is the London Naval Treaty of 1930 signed by the U.S., U.K., France, Italy and Japan. Article 22 (Part IV) of the Treaty provided that rules of international laws relating to surface vessels would also apply to submarines, particularly in respect of the attack on merchant ships. Thus a submarine should not sink a merchant vessel without ensuring the safety of the passengers, crew and papers of the ship. As made clear in Article 23 of the Treaty, the treaty shall remain in force for an indefinite period.
(3) Yet another landmark is the London Submarine Protocol of 1936 which was signed by the U.S., U.K., France, Italy and Japan in London. It incorporated Part IV of the Naval Treaty of 1930 mentioned above. Germany and U.S.S.R. acceded to the Protocol in 1936 and 1937 respectively. But as pointed out Prof. D.P.O., Counsel, "In the case of submarine warfare, the rules in London of 1936 are viable only in the ideal circumstances which are unlikely to ever occur in practice. Self-defence is then the only criterion of submarine warfare and it becomes a matter of technological evaluation to ascertain the factors proportionality and necessity which legitimise submarine warfare in times of limited hostilities.
(4) Last but not the least instrument is the Nyon Agreement of September, 1937 dealing with the suppression of attacks by submarines against merchant vessel. A remarkable thing about this agreement is that it provided that the provision of the Treaty of 1930 and London Protocol of 1936 were "declaratory of international law."
As with other rules of war, the above rules were also flagrantly violated during Second World War.
Ans. Aerial Warfare. - The Second World War brought about a complete transformation in the conception of International Law in relation to aerial warfare by the use of atom bomb. The rules laid down at various conferences may, however, be summarized as under :
The Brussels Conference. - In 1874 at the Brussels Conference convened at the instance of the Emperor of Russia rules on law and usages of air warfare were laid down. The rules laid down that towns, agglomerations of houses, or villages, which were open or undefended, could not be attacked or bombarded. All necessary steps should be taken to spare, as far as possible, buildings devoted to religion, arts, science, and charity, hospitals and places where sick and wounded were collected, on condition that they were not used at the same time for military purposes.
The Hague Conference. - The First Hague Conference of 1899, attempted to prescribe definite rules with regard to aerial warfare. It laid down that the attack or bombardment of towns, villages, dwellings or buildings which were undefended was prohibited. It forbade the discharge of projectiles and explosives from balloons, or by other similar new methods for a period of five years. The Convention laid down that a neutral power was bound to see that no fight on the air took place.
The Institute of International Law at Madrid. - The Institute of International Law at Madrid in 1911 adopted the principle that "aerial war is allowed provided that it does not present for the person or property of the peaceable population greater dangers than land or sea warfare."
First World War. - During the first world war the distinction between combatants and non-combatants almost disappeared and by the end of the war bombardment of open towns outside the region of military objectives had almost become a common feature.
Washington Conference. - As a result of the first world war it was found that the regulations for the use of aircraft in war were utterly inadequate to meet the exigencies of the situation. Accordingly in 1922 at the Washington Conference on the Limitation of Armaments a resolution for the appointment of a commission of jurists to consider the problem of aerial warfare was passed ; and the Committee on Aircraft to the Washington Conference enunciated in 1923 various provisions of the proposed Code of Air Warfare Rules. The Code was, however, not ratified but still the various provisions serve as a guide for the use of aircraft in land and naval warfare.
The important clauses embodied in the Air Warfare Rules, 1923, may be summarized as under :
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.
Ans. The Pokhran Explosion. - On May 18, 1974, India successfully carried out her maiden underground nuclear explosion at Pokhran in the Thar desert of Rajasthan. While it was hailed by some countries as a significant achievement, others, for example, Canada, Japan, United States and Pakistan, reacted adversely to it. Indian Prime Minister and other Indian Government spokesmen repeatedly assured the world that the explosion was not designed to manufacture nuclear weapons, but to harness the energy for the peaceful purposes. The Pokhran Test raised the question whether it violated any rules of International Law. Two treaties are relevant to the present discussion, namely, the Nuclear Test Ban Treaty, 1963 and the Treaty of Non-proliferation of Nuclear Weapons of 1968. The Nuclear Test Ban Treaty under Article I prohibits nuclear explosion in the atmosphere including outer space, water and in any other environment if such explosion causes radio-active debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted. Thus under this treaty underground nuclear test is not prohibited. Moreover, a nuclear explosion which cause radio-active debris to be present at the territorial limits of the State under whose jurisdiction or control such explosion is conducted, will also be contrary to this treaty. It is now well established that the Pokhran Test was fully contained one. It did not lead to an considerable increase in radio-activity in the atmosphere and it did not at all affect the neighbouring or other sovereign states. A sovereign State is free to do anything within its territory so long as its act does not affect other States.
As regards the Treaty on non-proliferation of Nuclear Weapons 1968, India is not party to it and therefore, the question of violation of its provisions does not at all arise. It may be noted that India did not join this Treaty because in her view this treaty would perpetuate the already established monopoly of the big powers over nuclear weapons. Besides, being highly discriminatory the treaty places totally unjustified restrictions on the peaceful uses of atomic energy. Besides this, the Pokhran Explosion is also not contrary to general and customary international law.
In view of the above discussion, it may be concluded that nuclear test conducted by India at Pokhran is not contrary to the rules of general international law or applicable treaty norms. India was within her legal rights to explode the nuclear device. The criticism by some nations of India was clearly motivated by extra-legal and political considerations.
Case of shooting down of a Pakistani Plane by Indian Armed Forces during Kargil conflict. - Pakistan filed a case in the International Court of Justice against India claiming compensation for shooting down of a Pakistani plane by Indian Armed Forces. India challenged the jurisdiction of the World Court on the ground that under the Simla Agreement India and Pakistan had agreed to settle their disputes bilaterally and not to refer it to a third party. Accepting India's claim the World Court held that it had no jurisdiction to decide the case and dismissed the case. It was yet another Pakistani defeat in respect of the Kargil conflict.
Ans. Professor Oppenheim has given a wider definition of war crimes in the following words - "War crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders."
The Neuremberg Tribunal classified the crimes punishable under international law into the following three categories :-
(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.
Ans. (a) Nuremberg Trial. - The justification for the Nuremberg trial was sought on the ground that the League of Nations, including Germany, had declared aggressive war to be a crime, on September 24, 1927. Then the Kellogg-Briand Pact or the Pact of Paris, which was signed in 1928 on the initiative of Frank B. Kellogg, at the time U.S. Foreign Secretary, in co- operation with Briand, French Foreign Minister, condemned war as an instrument of settling international disputes and undertook to settle such disputes by peaceful methods. The signatory nations were almost all the nations of the world, including Germany, Japan and Itlay. They had bound themselves not to resort to war as an instrument of national policy.
Unprecedented atrocities aroused a united determination in all the Allied countries to exact retribution and the victory of the Allied armies by occupation of Germany enabled them to take immediate steps for the constitution of a Military Tribunal to avoid the fiasco of the Versailles war-trial provisions.
(b) Criticism of the Trial. - Great reliance was placed on the Pact of Paris or the Kellogg-Briand Pact of 1928. Such implicit reliance could not be placed on it for the launching of the prosecution of the vanquished leaders and generals. In the first place neither the Pact of Paris nor the Hague Conventions of 1899 prescribed any sanctions for the enforcement of the provisions contained in them. "The words of the pact were not those of a penal statute. They were the language of theology, not of law". In the second place, although the Kellogg-Briand Pact declared aggressive wars as illegal, such illegality could by no stretch be transformed into international crime so as to make each individual participant liable for the same. In the last place, the Pact of Paris ever since its inception was followed in breach.
Schick in his book "The Nuremberg Trial" entertains grave doubts about the correctness of the assertion of the Allies that the Charter of the International Military Tribunal was based on a historical legal precedent. It has also been suggested that the court of victors was not a proper Tribunal which should have been represented by neutral and German judges as well. It could by no stretch be termed an international court. Professor Smith contends that the trial violated the fundamental principle of impartiality - the ideal symbolised by the traditional figure of justice blindfolded and holding a balanced scale.
Although the Tribunal refuted the contention raised by the defendants that there can be no punishment of crime without a pre-existing law and that ex post facto punishment is abhorrent to the law of all civilized nations, eminent jurists have doubted the correctness of the principles of law laid down by the Tribunal on this point. Schick observes that the Charter applied with retrospective effect, which was a rule contrary to Municipal Law of civilized nations and was, therefore, in violation of International Law.
Professor Smith further observes that until 1942 the British Manual of Military Law contained an Article (Ch. XIV, Art. 443) to the effect that superior orders constituted a good defence to charges of war crimes. In April, 1942, the War Office by an amendment destroyed the defence of Superior orders. This, observes Professor Smith, was an extreme example of legislation ex post facto.
The main objection against the trial was that the prosecution of members and servants of a Government for leading their country into aggressive war amounted to retroactive criminal legislation and violated the salutary principle of criminal law that no punishment was to be imposed for an act not defined as a crime with stated penalties by law in force at the time of commission.
Importance of the Trial in International Law. - The Nuremberg Trial has set up a new precedent in the history of International Law and constitutes a milestone in its progress. The trial clearly establishes that the plea of obeying orders of a superior or of his Government does not relieve him from responsibility under International Law provided a moral choice was, in fact, possible to him.
This trial has enhanced the sanctity of solemn agreements and undertakings like the Kellogg Pact. International Law is now no more regarded a branch of ethics. It received new vigour and strength on account of the principles laid down at the Trial.
The Trial emphasized that International Law cannot work in vacuum and for its proper functioning with greater momentum it has to depend upon the spirit of co-operation of the individuals who are to be regarded as the pillars for the preservation of International Law by showing that it is no respecter of persons. Any person committing a crime under International Law, whether highly placed or not, shall be adjudged guilty and punished on a fair trial on the facts and law.
The Trial has enunciated in unambiguous terms the principles of International Law regarding preparation of war, occupation of enemy territory, execution of hostages and treatment of prisoners.
Ans. Ill treatment and killing of prisoners of war amounts to war crime because these are in violation of the recognized rules of warfare. So the German officer, the sergeant in charge of the escort and the three civilians who participated in the killing of the prisoners of war have committed war crime according to the established rules of International Law and custom.
Ans. (a) The Scuttled U-Boats case, [(1940) 1 Law Reports of Trials of Criminals 55]. - This case relates to war crimes and the punishment of war criminals. The North-Western Command of the German Armed Forces surrendered on May 4, 1945 before the allied nations. The surrender included all the sea vessels in the said area. The surrender was made in consequence of an armistice agreement. After the signing of the instrument of surrender but before it came into effect, the German officers ordered their subordinate officers to scuttle the U-Boats. Later on this order was countermanded. But the accused who was an instructor of the U-Boats ordered the scuttling of U- Boats and consequently the U-Boats were scuttled. The accused was arrested and was prosecuted for violating the laws of war in his defence, the accused put forward the following two arguments:
(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.
Ans. (a) Peleus Trial. - Peleus was a Greek ship which was sunk by the German-U-Boat. After sinking the ship the commanders of the U-Boat ordered firing upon the members of the crew of the ship who were trying to save their lives through life boats. Thus out of 35 people, 22 members of the crew lost their lives in consequence of firing. After some weeks when on account of air attacks, the U-Boats were compelled to come to the coast, officers on board of the boats were arrested and were prosecuted for war crimes.
The Court ruled that it is the fundamental usage of war that firing on unarmed enemies is prohibited. The Court referred to an old case, namely, Landovery Castle (1921), wherein it was laid down, "took war of land the killing of an unarmed enemies is not allowed.......... Similarly in war at sea the killing of ship-wrecked people who have taken refuge in life-boats is forbidden."
During the trial the accused contended that they were not guilty because they fired on the orders of the superior officers, but the Court rejected the plea of superior orders and held that they were bound to obey only lawful orders of their officers. There is no duty to observe orders which are not lawful. Consequently, the accused were held guilty and were duly punished.
(b) Eichmann Case (1962). - Under Hitler, Eichmann had committed many Nazi atrocities upon the Jews. The charge against him was that he was responsible for the murders of lakhs of Jews and for inhuman treatment towards them. The spies of Israel were after him for a long time, but he was fleeing from one country to another and escaping arrest and trial. Ultimately the Israeli spies caught him Argentina. But on account of the fear that the Government of Argentina might not extradite him for prosecuting him for having committed war crimes, the Israeli spies took him from Argentina to Israel in an irregular way. In Israel Eichmann prosecuted for war crimes and was sentenced to death. An appeal was filed in the Court of Israel. It was contended on behalf of Eichmann that the courts of Israel did not possess the jurisdiction to try him because when the crime were committed by him, Israel as a State did not exist. That is to say crime was committed during the Second World War and Israel came into existence after that. But the Supreme Court of Israel rejected this argument and propounded the principle of universal jurisdiction in respect of war crimes and genocide.
(c) Mai Lai Trial. - Mai Lai is a village in Vietnam, the whole of population which was killed by American military personnel. It was clearly a war crime. Consequently there was a great reaction in the international community. America was charged of having encouraged perpetration of war crimes of military officers in Vietnam. American nationals also expressed their resentment against atrocities and war crimes. Due to the reaction of the international community as a whole and the pressure of the American nationals at home, the Government of America was compelled to hold a trial of the officer responsible - Lt. Cale. The Court held the accused guilty and awarded punishment to him. Mai Lai trial is a landmark event, in respect of the punishment awarded to war criminals for the violation of the war crimes. Hitherto war trials were such wherein the victorious State had conducted the war crimes trials against the criminals of the vanquished nations, but Mai Lai trials marked the beginning of a new trend which shows that there will be circumstances wherein because of the reaction or public opinion of the International community, and the pressure of its own nationals, a State may be compelled to hold war criminals trials against its own officers. It is undoubtedly an auspicious beginning and augurs well for the observance of laws of war in future.
Ans. Meaning and Definition of Genocide. - Article II of the Genocide Convention defines the term 'Genocide'. According to it genocide means any of the following acts committed with intent to destroy in whole or in part a national, ethnical, racial or religious group as such :
(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."
Ans. Modes of Termination of War. - Generally, the following are the modes of termination of war -
(1) Simply cessation of hostilities. - Sometimes, during the war the belligerent States cease hostilities without any definite understanding being reached between them. The examples of such types of cessation of war are between France and Spain (1770), war between Russia and Prussia (1801), war between Spain and Chile (1878) etc. Termination of war through this mode is not in accordance with the present circumstances because in this mode of termination of war, no agreement or understanding is reached and it does not determine as to what will be the fate of prisoners of war, how shall boundaries be fixed or determined and what shall be the fate of the property under the occupation of the belligerent State or other type of property. Consequently, this mode of termination of war presents many difficulties.
(2) Conquest followed by annexation. - Sometimes it so happens that a belligerent State conquers another State and annexes it into its territory. According to international law, the annexed territory or State ceases to have any independent importance under international law. This mode of termination of war may present difficulties when the belligerent State concerned has annexed the territory in violation of the rules of international law. There is no clear rule of international law in this connection. However, it is definite that the war comes to an end after one belligerent State conquers the other belligerent State and annexes the territory of that State into its own territory.
(3) By a Peace Treaty. - War may also be terminated by the conclusion of a peace treaty. The advantage of this mode of termination of war is that some understanding is reached in regard to that treatment of prisoners of war, property and other relevant matters connected with war.
The principle of Postliminum also comes into force when war comes to an end through this mode. According to this principle, in the absence of any agreement to the contrary, the persons and things come to their original position after their release from the occupation of the enemy.
(4) By Armistice Agreement. - Sometimes wars are terminated by the conclusion of Armistice Agreement. Under this mode of termination of war, the hostilities cease for temporary period but since the state of war continues between the States, the war may errupt at any time.
(5) By unilateral Declaration of one or more of the victorious powers. - Sometimes war may come to an end by the unilateral declaration of one or more of the victorious powers. For example, Indo-Pak War of 1971 came to an end in consequence of the unilateral declaration by India to end the war. The war came to end because Pakistan also respected this declaration and ceased hostilities.
It is not essential that the date of the termination of war should also be the date of conclusion of peace treaty, or the date when the hostilities actually ceased. It is a matter to be determined by State Law. There is no rule of international law which bind States to treat the conclusion of war as the date of the conclusion of peace treaty.
Ans. Doctrine of Postiliminium. - The doctrine of postiliminium was incorporated into international law from Roman law. According to it, persons and things released from the occupation of the enemy come to their original position or they are restored to their original position after the end of war. According to Roman Law, this was applied on persons and things. According to international law, this is applied in the context of war. If any State remains under the occupation another State for a temporary period and then consequently becomes independent after its independence, persons and things come to their original position in accordance with the principles of postiliminium. This principle cannot, however, be applied in matters of neutral States.
Private movable property can be seized by the occupying power and therefore, the principle of postiliminium does not apply on such properties. However, public property can be seized by the belligerent States only when and insofar as is essential for the objectives of war. If after withdrawal of the enemy the properly remains, then it comes or is restored to its original position. The principle of postiliminium also applies on immovable property.
In fact, the principle of postiliminium applies only when the occupying power has exceeded its powers or has acted beyond its rights. Thus the legal and valid acts performed by the occupying power are beyond the scope of the principle of postiliminium.
Limitation of the doctrine of Postiliminium. - Following are the limitations of the doctrine of postiliminium :-
(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.
Ans. Meaning and definition of the term 'Neutrality'. - As pointed out by Oppenheim, neutrality is "the attitude of impartiality adopted by third States towards the belligerent and recognised by belligerent, such attitude creating rights and duties between the impartial States and belligerents".
On the basis of the above definitions we may conclude that there are following three essential elements of neutrality :
(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.
Ans. Position of Neutrality under the United Nations Charter. - Some jurists are of the view that the United Nations Charter has put an end to the old law of neutrality. Prof. Kelsen has remarked that the rule of impartiality by neutral States is superseded by the Charter. Some other jurists have supported this view.
In the view of these jurists, when a State resorts to war there could be only two conditions. It could either be an aggressor or a defender. If it is an aggressor then preventive or enforcement action can be taken against it under the Charter. If it is a defender then it should be assisted by the United Nations. Thus the member-States of the United Nations cannot remain netural. Before we criticize the view of these jurists, it will be desirable and necessary to refer to the relevant provisions in the United Nations Charter which have affected the old law of Neutrality. Such provisions are as follows :
(1) Article 2(5). - Article 2(5) provides that all members shall give the United Nations every assistance in any 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.
(2) Article 25. - Article 25 provides that the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. That is to say, if the Security Council decides to take any the (sic) member States have no option, but to carry out this decision. Under such circumstances they cannot remain neutral.
(3) Articles 41, 42 and 43. - Articles 41, 42 and 43 are relating to the right of enforcement action conferred upon the Security Council in respect of maintenance of peace and security. Under these Articles the Security Council has been empowered to ask other States to assist it. These provisions are in fact detrimental for the observance of the rules of the old law of neutrality.
(4) Article 49. - Article 49 provides that the members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council. It has also affected the old law of neutrality.
(5) Article 51. - Article 51 of the Charter confers upon all the member-States of the United Nations the right of individual or collective self-defence if any armed attack occurs against a member of the United Nations.
It is clear from the above provisions that the United Nations Charter has greatly affected the old law of neutrality. It is on the basis of these provisions that many jurists have expressed the view that the Charter of the United Nations has put all end to the old law of neutrality. But as against the above view, some jurists have expressed the view that although the provisions of the Charter have greatly affected the old law of neutrality they have not completely abolished it. That is to say neutrality can still be practised under certain circumstances.
Thus the old law of neutrality has not been completely abolished and can be practised by the member-States of the United Nations in certain special circumstances although in principle the member States of the United Nations cannot claim to remain neutral.
Ans. Rights and Duties of Neutral States and Belligerent States. - Ordinarily following are the duties of the neutral States:
(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.
Ans. Kinds of Neutrality and Distinction between them. - Neutrality may be of following kinds :
(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.
Ans. (a) Distinction Between 'Neutrality' and 'Neutralisation'. - Neutratisation is the permanent status of neutrality of a State. Often it is guaranteed by the international agreement or treaty. Such a State cannot participate in war without violating its neutrality. Prof. Schwarzenberger has clarified the distinction between neutrality and neutralisation in the following words : "Whereas under international customary law a neutral power remains free to exchange its status of neutrality for that of war, neutralised State which is a party to a treaty prescribing its permanent neutrality may not do so. It cannot resort to war without a breach of its treaty obligation or release from these by the other parties to the treaty. Switzerland represents this type of State."
Switzerland is an ideal neutralised State to the extent that in order to adhere to its neutrality it has not even joined the membership of the United Nations. Austria is also a neutralised State and its neutrality has also been guaranteed under an international treaty. But Austria has become the member of the United Nations. In the words of Starke, following is the distinction between Neutralisation and Neutrality : "Neutralisation differs fundamentally from neutrality, which is a voluntary policy assumed temporarily in regard to a state of war affecting other powers and terminable at any time by the State declaring its neutrality. Neutralisation on the other hand, is a permanent status conferred by agreement with the interested powers, without whose consent it cannot be relinquished."
(b) Distinction Between 'Neutrality' and 'Neutralism'. - According to Schwarzenberger, neutralism is a political and ideal concept, the meaning of which may change in different contexts and circumstances. There is a great difference between 'neutrality' and 'neutralism'. Neutrality is an attitude of impartiality as well as legal status. As compared to it, neutralism is only used to denote the political attitude of a State. As pointed out by Dr. Peter Lyon "neutrality is meant non-involvement in war while by neutralism is meant non-involvement in cold war." Prof Schwarzenberger has also remarked, "In contrast to neutrality which presupposes state of war between at least other States, neutralism understood as policy of non-alliance or non-involvement is available as a pattern of policy in times of both peace and war."
Ans. Right of Angary. - The right of angary denotes the right of a belligerent State in times of war or other public danger to use or even, when necessary, to destroy such neutral property as happens to be within its territorial jurisdiction at a particular time. It affords a belligerent State to requisition or appropriate, in times of public urgency, vessels, rolling stock, aircraft and other means of transport belonging to the nationals of neutral powers, but lying at the time within its own territorial jurisdiction This is founded on the principle that the supreme interest of the State overrides the law. It is as well based on the general principle the neutral property in belligerent territory is exposed to like risks as the property of belligerent nationals and is subject to similar liability to requisitions and contributions in time of war and other national emergency.
Oppenheim observes that in contradistinction to the original right of angary the modern right of angary is the right of belligerents to destroy, or use in case of necessity for the purpose of offence and defence neutral property on their territory, or on enemy territory, or on the open sea. According to him this right is a right deriving from the law of war and must not be confused with the right, which every State undoubtedly possesses, of seizing in case of emergency, and subject to compensation, any foreign property on its territory. One ought not, therefore, to speak of a right of angary belonging to neutrals as well as to belligerents, or of a right of angary in peace as well as war.
Limitations. - (i) The right of angary is a sovereign right and can be exercised by any sovereign State in case of national emergency, provided the goods and means of transport requisitioned are lying within the territorial jurisdiction of the State requisitioning them.
(ii) The right is confined to the territorial waters of the requisitioning State and does not extend beyond its territorial limits.
(iii) The right can as well be exercised by a neutral in grave national emergency. Such requisition can only be made subject to the payment of full compensation.
(iv) The right cannot be exercised by a belligerent in occupation of an enemy territory.
(v) The right of angary does not extend to the services of the foreign crew of the ships or aircraft.
(vi) The application of this right could not be extended to neutral property only passing within a belligerent State.
(vii) The right would not be used to justify destruction of property as distinguished from appropriation.
The Zamora. - In the case of Zamora it was observed by Lord Parker that a belligerent has in a proper case the power to requisition ships and goods of neutrals in the custody of the Prize Court for adjudication. The legal right or dominion is, no doubt, still in the neutral. The right of requisition is not an absolute right, but a right exercisable in certain circumstances and for certain purposes only. It was, therefore, held that requisition of a vessel or cargo of copper awaiting the judgment of the Prize Court was allowed provided that (a) the vessel or the goods in question must be urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security ; (b) there must be a real question to be tried; and (c) the Prize Court determines judicially whether, under the particular circumstances of the case the right is exercisable.
Ans. Contraband of War. - "Contraband of war is the designation of such goods as are forbidden by either belligerent to be carried to the enemy on the ground that they enable him to carry on the war with greater vigour." (Oppenheim). According to Kelsen "contraband of war are goods the transport of which to the enemy is forbidden by either belligerent in conformity with general International Law." Contraband of war denotes such articles as are considered objectionable to be carried by a neutral to a belligerent because they are calculated to be of direct service in carrying on war or otherwise assist one of the belligerents in time of war.
The same view is expressed in the given statement that "the principle of contraband is that you are entitled to stop and capture any cargoes which are going to help your enemy in carrying on the war."
Essentials of Guilt. - Lawrence sums up the essentials of guilt in the matter of contraband in the following words :-
In the first place, it is transport and not bargain and sale which the law of contraband aims at.
Secondly, a belligerent destination is essential.
And, thirdly, the offence is complete the moment a neutral vessel laden with contraband leaves neutral waters for belligerent destination. (The Imina).
Division of Commodities. - Grotius divided commodities into three classes : (1) things useful for war only, e.g., arms, projectiles, powder, etc. (2) things useless for warlike purposes, e.g., fashion and fancy goods, clocks and watches, soap, etc., and (3) things useful in war and peace indifferently, i.e., money, provisions, ships, naval stores, etc. According to him the first was liable to capture while on their way to an enemy destination ; the second was always immune from capture ; and the third depended upon circumstances in each case.
There is a divergence of opinion as to what articles are to be termed as contraband. The British view favoured a long list of contraband goods and divided articles into absolute contraband and conditional, occasional, or relative contraband. Absolute contraband included articles such as arms, machinery for manufacturing them, ammunitions, powder, clothing of military character, etc., while conditional, occasional or relative contraband consisted of articles such as provisions, coal, gold, etc., which were contraband or not according to circumstances. The French view, which was followed by other continental powers, deemed comparatively few articles to be contraband and held that there could not be conditional contraband articles. The same thing was either contraband or not and could not be both, i.e., contraband in one set of circumstances and innocent in another.
The unratified Declaration of London (1909) made an attempt to settle the long drawn out controversy between the two conflicting views., It divided articles into three categories, viz., absolute contraband, conditional contraband and non-contraband.
The subject of contraband engaged the attention of the Supreme Court of America in the case of the Peterhoff where it was observed that a strictly accurate and satisfactory classification is perhaps impracticable : but that which is best supported by American and English decision may be said to divide all merchandise into three classes : (1) Articles manufactured and primarily or ordinarily used for military purposes in time of war ; (2) Articles which may be and are used for purposes of war or peace according to the circumstances ; and (3) Articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or place occupied by the army or navy of a belligerent, is always contraband ; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent ; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege.
Article 30 of the unratified Declaration or London lays down that absolute contraband is liable to capture if destined to territory belonging to, or occupied by, the enemy, or to the armed forces of the enemy. There is a presumption of enemy destination when the ship's papers reveal that the goods are to be discharged in an enemy's port, or delivered to his armies or warships.
Article 33 provides that conditional contraband is only liable to capture if destined either for the armed forces for a government department of the enemy State. There is a presumption of enemy destination if the conditional contraband is consigned to a fortified place held by the enemy, to one of his bases of operations, to enemy authorities or to a contractor in the enemy country who supplies the enemy Government with articles of the kind in question.
During the two wars the Declaration of London underwent a great change as it was found impossible to adhere to any settled list of classified contraband goods in time of peace. The Orders-in-Council extended the various provisions of the Declaration of London so as to cover goods consigned 'to order', or where the ship's papers did not state the consignee, or where the consignee was shown in territory belonging to, or occupied, by the enemy.
Ans. Merger of law of contraband in the law of blockade. - The two essential elements of the conception of contraband are the character of goods and in enemy destination. Only such goods as are on the contraband lists and intended to be imported into the enemy territory are liable to seizure and condemnation. Blockade involves "the interception by sea of the approaches to the coasts or ports of an enemy with the purpose of cutting all his overseas communications. Its object is not only to stop the importation of supplies but to prevent exports as well." (Higgins and Colombos - International Law of the Sea, 2nd Ed., p. 538).
The essential difference between contraband and blockade is that unlike the case of contraband, in the case of blockade of any portion of the enemy's coast or any of his ports, all merchant ships of whatever description and of whatever nationality are subject to confiscation, no matter whether they have contraband, conditional contraband or non-contraband articles. The fact that the ship is attempting to enter or leave a blockaded port or coast is enough for its condemnation. The result is that the main difference between the law of blockade and the law of contraband has been that the former is limited in area and the latter in scope.
The old distinction between the law of blockade and the law of contraband seems to have disappeared with two great wars. Owing to the present day character of the total war where every thing is made subordinate to the overmastering dictates of war "the law of contraband has been adopted to perform the functions of blockade and without the narrow geographical limitations to which the old blockades were restricted. What has been done on both sides during the two great wars amounts to nothing less than an assertion of the right to destroy the whole of the sea-borne trade which serves the need of the enemy, under whatever flag it may be carried and through whatever countries it may pass."
"The methods used by the opposing belligerents differed widely and the policy adopted by the Allies was technically justified as a reprisal for the illegalities committed by the enemy but the purpose on each side was the same..." (H.A. Smith).
Ans. (a) Doctrine of Continuous Voyage. - "The doctrine of continuous voyage consists in treating an adventure which involves the carriage of goods in ulterior and hostile in the first instance to a neutral port and thence to some ulterior and hostile destination, as being for certain purposes, only one transportation, with all the consequences which would attach if the neutral port had not interposed." (Pitt Cobbett).
The neutral vessels sought to evade capture of contraband goods by breaking their voyage into two parts. When they carried contraband of war to an enemy country, they would start ostensibly for some neutral port according to their papers, would land their cargo at the outensible destination, viz., the neutral port, pay duties, if necessary, reload it and then try to reach their real destination viz., the belligerent port. Similarly for breaking the blockade they would take as their ostensible destination some neutral port adjoining the blockaded coast and would try to reship the goods to the blockaded port from that neutral port. The application of the doctrine of continuous voyage or continuous transportation, however, foiled the attempt of neutrals to evade the rule with regard to contraband of war or blockade. The doctrine laid down that goods which would be carried to an enemy port could be intercepted as contraband even though they were being carried ostensibly to a neutral port if they are really intended to be forwarded either by land or by sea from the neutral port to hostile destination.
The doctrine was first applied by British Courts to prohibited trade, when vessels attempted to evade the operation of the Rule of the war of 1765 by touching at a neutral port as their apparent destination. It was intended to breach of blockade (The Springbok) and to carriage of contraband (The Bermuda). The Court observed in the latter case : "It makes no difference whether the destination to the rebel port was ulterior or direct; nor could the question of destination be affected by transshipment at Nassau if transshipment was intended, for that could not break the continuity of transportation of the cargo .... A transportation from one point to another remains continuous, so long as intent remains unchanged, no matter what stoppages or transshipment intervene."
In the Peterhoff the doctrine was carried to the farthest extent when the alleged ulterior destination of the contraband cargo was applied to land transport as well.
The United States applied the doctrine of continuous voyage even to a blockaded port where there was an intention that the cargo after it landed at the neutral port was to be sent forward to the blockaded port by the same or another ship.
Although the principles of continuous voyage were accepted in the main by the nations, there existed diversity of opinion with regard to the conditions under which contraband was liable to capture. The unratified Declaration of London of 1909 evolved a compromise whereby the doctrine of continuous voyage was fully maintained as regards absolute contraband and it was declared that it was immaterial whether the carriage of goods was direct or entailed transshipment, or a subsequent transport by land ; but it was not applied to the carriage of conditional contraband except in the rare cases where the ultimate destination, was a belligerent country with no sea-board or coast- line. The Declaration, however, remained unratified and during the two wars the above rule was flagrantly violated inasmuch as the doctrine of continuous voyage was applied to the carriage of conditional as well as of absolute contraband.
In the First World War the British Courts extended the doctrine of continuous voyage much beyond the rule laid down in the Declaration of London. In the case of Kim, Sir Samuel Evans observed that "the doctrine of continuous voyage, or transportation, both in relation to carriage by sea and to carriage over land, had become part of the law of nations at the commencement of the present war in accordance with the principles of recognized legal decisions, and with the view of the great body of modern jurists, and also with the practice of nations in recent maritime warfare." With regard to the partial immunity of conditional contraband articles granted by the Declaration of London, the learned Judge disagreed with the compromise reached at the conference. It was also observed that "contraband articles are said to be of an infectious nature, and they contaminate the whole cargo belonging to the same owners. The innocence of any particular article is not usually admitted to exempt from the general confiscation."
(b) Problem. - The goods can be seized and the vessel condemned. The ultimate use to which cloth is to be put, namely, coats for the enemy, makes it absolutely contraband. The fact that it is first destined to a neutral port does not make any difference for it is ultimately to reach Germany and this makes the doctrine of continuous voyage applicable. In the parallel case of The Balto (2 B. & C.P.C. 398) similar decision was given by the British Court.
Ans. Continuous voyage applicable to contraband and blockade. - "The doctrine of continuous voyage," observes Hyde, "offend a device which was employed by the Prize Courts to frustrate evasion by neutral traders of belligerent prohibitions such as those forbidding participation in the colonial trade of the enemy, or the carrying of contraband to its territory, or the attempting to break a blockade of its coasts."
"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.
Ans. Rule of the War of 1756. - The doctrine of continuous voyage is generally regarded as connected with the application of the "Rule of the War of 1956" which enabled the belligerents to prohibit neutrals from carrying on a trade closed to them in time of peace. During the seven years' War with England, France finding that the naval superiority of England did not enable her to carry on her colonial trade, permitted the Netherlands, which was a neutral, to carry on that trade by license. The British Government ordered the seizure of Dutch ships with their cargoes on the ground that they had incorporated with the enemy's merchant-marine and were as such liable to capture. Shorn of all detail, the Rule of 1756 expressed the practice in fact older than 1756 that the innocent but ordinarily closed trade in time of peace between one port of a belligerent and another such port or between the mother country and one of her colonies was not allowed by the other belligerent to be carried on by neutral vessels.
Ans. (a) Meaning of Blockade. - "Blockade is the blocking by men-of-war of the approach to the enemy coast or a part of it, for the purpose of preventing ingress and egress of vessels or aircraft of all nations." (Oppenheim).
The above definition brings out the following characteristics of blockade. In the first place, blockade must be by men-of-war though it may be reinforced by other means. In the second place, only enemy coast or part of it or enemy ports are to be the objects of a blockade. In the third place blockade may prevent ingress or egress or both. In the fourth place, blockade to be admissible must be impartially applied to vessels or aircraft of all nations. And, lastly, blockade is a warlike operation.
Blockade is not to be confused with siege, which aims at the capture of the besieged place blockade intercepts all intercourse by sea.
Essentials of Real and Binding Blockade. - The essentials of a real and binding blockade are as under :
1. Proper Establishment. - In order that a blockade may be valid it must be established under the authority of a belligerent government, or naval commander specially authorized to declare a blockade.
2. Effectiveness. - The blockade must be duly effective. It should not be a fictitious or paper blockade, but should be maintained by a force sufficient to prevent access to the coasts of the enemy. This aspect of blockade was emphasized both by the Declaration of Paris (1856) and the Declaration of London (1909). There must be a real and pressing danger to vessels in any attempt to pass through.
There is no unanimity as to the essential requirements for an effective blockade. The Rt. Hon. Dr. Lushington observed in the Francisco [(1885) Spinks, 287] in the High Court of Admiralty that the blockaded place must be watched by a force sufficient to render the egress or ingress dangerous ; or, in other words, save under peculiar circumstances, as fogs, violent winds and some necessary absences, the force must be sufficient to render the capture of vessels attempting to go in or out most probable.
Lord Chief Justice Cockburn observed in Geipal v. Smith [1872] L.R. 7 Q.B. 404] that in the eye of the law a blockade is effective if the enemy's ships are in such numbers and positions as to render running the blockade a matter of danger, although some vessels may succeed in getting through.
3. Continuously Maintained. - The blockade must be continuously maintained. When the blockading squadron is driven off by superior force of the enemy, it has been held that the blockade is null and defective from the beginning. The blockade will, however, not be impaired if the blockading squadron is temporarily withdrawn due to bad weather.
4. Notification. - The Declaration of London laid down that in order to establish a blockade it is essential that it should be notified. The notification must be made either by a belligerent government or by a commander of a naval force acting on behalf of his State and must specify the date when the blockade begins, the geographical limits of the coast line under blockade and the period within which neutral vessels may come out.
5. Impartiality. - The blockading force must enforce the blockade impartially against all vessels. Any relaxation of restrictions in favour of a belligerent to the exclusion of neutrals renders the blockade inoperative. In the case of the Francisco the British blockade of Riga during the Crimean War against Russia was declared by the Privy Council to be invalid because relaxations were granted to belligerent merchant vessels to the exclusion of neutrals.
6. Must not bar access to neutral Ports. - The blocking force must not bar access to neutral ports or coasts.
7. No extension beyond the operation area. - A blockade cannot extend beyond the aim covered by the operation of the forces which maintain it.
Cessation of Blockade. - A blockade ceases to exist on the happening of either of the following contingencies :
(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.
Ans. (a) Strategic and Commercial Blockade. - It has been indicated earlier blockade is an act of war through which the sea coasts of the enemy State are partly or completely blockaded. The chief objective of this is that supplies of foc-materials, etc. may not reach the enemy country so that the enemy may be defeated or may be compelled to accept the conditions of the other belligerent State. This is called strategic blockade. On the other hand, blockade may also be peaceful and commercial. A commercial blockade is one, the objective of which is to prevent sea coast of enemy for the purpose of trade. Commercial blockade, strictly speaking war.
(b) Long Distance Blockade. - Long distance blockade was started for the first, time in the First World War. It was a new method of blockade. During the First World War Germany laid contact mines under the seas. In reaction to this Britain declared North Sea as area of danger and laid contact mines in it. As a reaction to it Germany declared the seas throughout the British Island as war areas and declared that if the ship of any country entered that area, it would be destroyed. In reply to this Britain declared that if the ship of any enemy State entered that area or its owners shall be enemies, it shall be destroyed. Consequently, both Germany and Britain adopted the new methods of long distance blockade. Some neutral countries (the prominent among them being America) opposed this type of blockade and contended that it was not a legal blockade. Great Britain, however, contended that it was a legal blockade and argued that it was the blockade adopted under special circumstances. However, on the pressure exercised by America and certain other neutral States, the long distance blockade was ended in the First World War, but it was again resorted to during the Second World War.
Ans. (a) Unneutral Service. - The term "unneutral service" denotes "acts sometimes performed by neutrals which involve an entry for the time being into the service of a belligerent, and the doing for him what is of direct advantage to him in his war." (Lawrence). Such unneutral service is rendered by neutral vessels by giving material assistance to a belligerent. The other belligerent State has a right to inflict on them a penalty varying according to the immensity of the unneutral act.
The unratified Declaration of London (1909) declared for the first time a coherent law on unneutral service. Article 45 provided that, if neutral vessel was on a voyage specially undertaken with a view to either (a) the transport of individual passengers who were embodied in the forces of the enemy, or (b) with a view to the transmission of intelligence in the interest of the enemy, the vessel was liable to condemnation if the service was rendered knowingly, though it need not necessarily be an exclusive service. But the vessel was not liable to condemnation, if there was ignorance of the outbreak of hostilities, or lack of opportunity for however, discharging passengers after becoming aware of it. Article 47, however, provided that the belligerent cruiser might demand the surrender as prisoners of war of any individuals embodied in the armed force of the enemy found on board a neutral merchant vessel, even though there might be ground for the capture of the vessel and the vessel may be allowed to go her way. Article 46 provided that unneutral services of the graver and more serious kind rendered the vessel and any goods on board belonging to her owner liable to confiscation by placing her in the position of a capture enemy merchantman. Such cases arose when a neutral vessel took a direct part in hostilities, or was under the orders or control of an agent placed board by the enemy government, or when the neutral vessel was in exclusive employment of the enemy government, or when the vessel was exclusively engaged in transporting troops or intelligence in the enemy interests.
Case law : (1) The Orozembo. - It was an American ship which during the war with Great Britain and Holland in 1807, was carrying senior Dutch military officers and two Dutch civil servants to Batavia under the orders of the Government of Holland. In the course of the voyage it was captured by the British. It was held that the vessel was a transportship which was in the service of the enemy, and liable to condemnation.
(2) Friendship. - The American vessel Friendship was condemned in 1807 for having, under contract with the French Government, U&en to transport French military officers and marines. It was a vessel hired by the enemy for the conveyance of military be considered as a transport subject to condemnation.
(3) The Atlanta. - The Atlanta was a neutral ship, carrying despatches hidden in a tea-chest from the Government Isle de France to the minister of marine at Paris. These despatches were being taken within the knowledge of the captain of the neutral ship was acquired by the British Government. Both the ship and the were condemned by a British Prize Court, which held that of dispatches was a service, which, in whatever degree it existed, could only be considered in one character as an act of the most hostile nature and the vehicle in which they are carried must also be confiscated.
(4) In the Affairs of the Trent. - The British mail 8 was stopped on its way from Habana to St. Thomas by an cruiser in 1861 during the American Civil War, and two of its Mason and Slidell, who were proceeding as envoys of the So. Confederacy to Great Britain and France, were forcibly removed along with their two secretaries. The United States contended despatches were clearly contraband, the bearers or couriers who undertook to carry them fell under the same category. Great Britain, on the other hand, repelled the contention of U.S.A. by observing that the character and office of the persons captured did not make them contraband, inasmuch as they were being sent out as envoys to neutral powers and the seizure was unjustified as a neutral State had absolute right to maintain diplomatic relations with the belligerents. After protracted negotiations the United States released the prisoners and the law of contraband was held inapplicable to their case.
(5) S.S. China. - In the well-known case of the S.S. China, which was an American mail and passenger ship sailing between Shanghai and American ports, there were in 1916 on board the ship several Austrian and Turk passengers who were bound for Manila. A British on inspection removed these passengers. The Washington Government entered a strong caveat on the ground that the persons did not come within Article 47 of the Declaration of London, which only allowed the capture of persons belonging to the army and navy only. The British Government replied that these persons were carrying on subversive activities, being engaged in the smuggling of arms. While this controversy had not yet settled the United States entered war, and the prisoners were released.
(b) Problem. - It is the case of a neutral vessel sailing from neutral port for a neutral territory with civilians on board the vessel, the civilians being of German nationality and Germany and Great Britain being at war with each other. It was contended on behalf of Japan that as the vessel in question was sailing from a neutral port for neutral territory with civilians on board it was improper for Britain to detain them. The rule laid down in the S.S. China and the Affairs of Trent is that persons belonging to the armed forces of a country at war with another could be captured from a neutral ship even on the high seas. But there could be no justification for capturing the civilians.
The British Government pleaded that as under the German Army Code every civilian from the age of 18 to 45 must bear arms for the country, the passengers in question must be treated as future combatants and as such they were liable to capture. The contention was obviously untenable as it was unfair to judge the fate of civilians before they had actually landed in their country and had been enrolled in the armed force. At any rate the capture of Germans between 8 and 10 and 70 and 75 was altogether unjustified as even according to the British contention, they could not be expected to render military service, in the immediate future.
It may be noted that similar facts arose in the case of the Asama Maru in the last war and eminent jurists shared the view as noted above.
Ans. (i) Unneutral Service and Contraband. - Unneutral service essentially differs from contraband in the following respects : In the first place, as Lawrence points out, "there is a difference in the character of the acts themselves. What takes place in cases of contraband is done purely as a matter of trade. Its subjects are commodities and its objects gain. In unneutral service the acts are not acts of ordinary commerce. The predominant attributes are warlike rather than mercantile." In the second place, for legal confiscation of the contraband merchandise enemy destination is essential, while destination is immaterial in unneutral service. In the third place there is difference in the penalty also. Cargo is confiscated only in rare instances in case of unneutral service. In contraband the noxious cargo is primarily confiscated and the vessel is condemned in aggravated cases. In the last place, Oppenheim distinguishes by pointing out that carriage of contraband need not necessarily, and in most cases in practice does not, take place in the direct service of the enemy, while in unneutral service carriage of persons and despatches for the enemy usually take place in the direct services of the enemy.
(ii) Unneutral Service and Hostile Service. - The case would be of unneutral service where the service is only partial, e.g., where the vessel was engaged in carrying military persons or despatches concurrently with her employment partly of an innocent character. Article 46 of the unratified Declaration of London (1909) enumerates four instances of hostile service where the neutral vessel acquires enemy character and may be treated as such. They are : (i) when a neutral vessel takes a direct part in hostilities ; (ii) when she is under orders or control of an agent placed on board by the enemy government ; (iii) when she is in the exclusive employment of the enemy government; and (iv) when she is exclusively engaged in the transport of enemy troops or the transmission of intelligence in the interest of the enemy.
Ans. Diplomatic Representation. - Diplomatic agents are ambassadors residing in a foreign country as representatives of the States by whom they are despatched. Lawrence says that the introduction of the practice of sending permanent ambassadors to reside at foreign courts is due more to statecraft than to utility.
Classes of Diplomatic Representatives. - The Congress of Vienna, 1815, classified diplomatic representatives into three classes, to which the Congress of Aix-la-Chapelle, 1818, added a fourth. They are as under in order of seniority of rank.
1. Ambassadors, Papal Legates and Nuncios. - They are representatives of the person and dignity of the sovereign or head of the State accrediting them. On presenting the sealed letter of credence, they are entitled to public audience from the Head of the State to whom they are accredited. They have also the privilege of negotiating with the Head of the State personally. They have a right to be addressed as "His Excellency". Only States enjoying royal honours can send ambassadors.
2. Ministers Plenipotentiary and Envoys Extraordinary. - They are not the personal representatives of the sovereigns or heads of their States, though they are, no doubt, accredited to them. They have a private audience from the head of the State when on their arrival at foreign capital they present the letter of credence, They have also no audience as of right with a head of State personally and are addressed as "Excellency" by courtesy only.
3. Ministers Resident. - They are accredited to sovereigns and rank below the Ministers Plenipotentiary and Envoys Extraordinary.
4. Charges d'Affairs. - They are accredited not by a head of State to another head of State but by a Minister of Foreign Affairs to a Minister of Foreign Affairs.
The diplomatic envoys sent by the Holy See are called Papal Legates or Nuncios. The diplomatic envoys exchanged between the members of the Commonwealth are called High Commissioners.
The distinction between the different classes of diplomatic agents is purely ceremonial for all of them enjoy the same diplomatic immunities.
Diplomatic Immunities. - A diplomatic envoy is deemed for the purpose of jurisdiction and control to be outside the territory of the State in which he really is. He is regarded just as sacrosanct as the head of the State that he represents and enjoys immunities to enable him to discharge his functions efficiently and in an atmosphere of absolute fearlessness. The immunities are founded on common usage and tacit consent of nations.
Immunity from Criminal Jurisdiction. - A diplomatic envoy accredited to a State enjoys absolute immunity from criminal jurisdiction as he is in no sense considered to be under its legal authority. His person is inviolable, and the receiving State can only arrest or detain him in cases of necessity or self- preservation. [Gyllenborg case]. If a diplomatic agent commits a crime the only remedy open to the accredited State is to report the matter to his home Government and demand his retail and punishment according to the law of his country.
Personal Safety. - The person of a public minister is sacred and inviolate. A diplomatic agent may, however, be expelled and, if necessary, arrested for being sent home if he plots against the head of the receiving State or the State itself is guilty of conspiracy or espionage.
Immunity from Civil Jurisdiction. - A diplomatic agent as well as his is exempt from the local jurisdiction [Magdalena Steam Navigation Co. v. Martin], he is free from local process as well as from personal restraint. No civil action of any kind can be brought against him in the civil courts of the accredited State. He cannot be compelled to appear in court and plead, but if he elects to waive his privilege the courts will deal him as an ordinary citizen.
By the law of nations neither an ambassador, nor any of his train or comites, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside.
Immunity of Envoy's Retinue. - The retinue of an envoy consists of
(a) officials and other servants of the legation; (b) wife, children and other members of his family living with him ; (c) his private servants; and (d) couriers.
A diplomatic agent has complete immunity with regard to his person and that of his suite. The immunity, though in a lesser degree, extends to the ambassador's wife, children, his official staff, secretaries, interpreters, naval and military attaches, chaplain and servants, which are the necessary accompaniment for his comfort and convenience.
Personal inviolability from the jurisdiction of the State, however, does not extend to visitors and dangers on of the embassy.
The other members of the retinue of the diplomatic agents, such as official and other servants of the legation, also enjoy the immunity detailed above. But such privileges are extended only to those who are officially attached to the legation.
The dependent relatives of the diplomatic agent living with him are also immune from the jurisdiction of civil and criminal courts and enjoy other privileges.
As regards immunity of private servants of diplomatic agents, the practice is not yet clearly established. They are no doubt exempt from civil jurisdiction, but in criminal matters Great Britain claims jurisdiction if the offence is committed by servants outside the residence of the diplomatic agents.
Courtiers or despatch-bearers being officially connected with the embassy are immune from civil and criminal jurisdiction. They have a special passport for their duties and a right to innocent passage through third States.
Immunity connected with residence. - The official residence of the ambassador, with goods and furniture, stables and carriage, is considered as though it is situate outside the territory of the accredited State. It is regarded as sacred and is exempt from the local jurisdiction. It is virtually held to be a portion of the accrediting State. In other words, the fiction of exter- territoriality is applied to the residence of the diplomatic agents.
Exemption from Taxes. - The envoy is free from the payment of taxes levied upon his residence as the receiving State has no jurisdiction over such residence. He is expected to pay the charges for sewerage, light and water- taxes, but he cannot be compelled to pay the same since he is immune from legal process. Very often such taxes are also not charged from him.
Exemption from seizure of goods. - The ambassador cannot be sued for debts whether contracted before or in the course of his mission; he is free from arrest and his furniture cannot be seized or attached for the same.
Right to worship. - An ambassador has the right of having a private chapel in his hotel according to his own religion. This is known as the droit de chapelle.
Freedom of Communication. - A diplomatic agent enjoys freedom of communication to enable him to discharge his functions properly. His despatches are immune from local jurisdiction and censure, even in third countries.
Vienna Convention on Diplomatic Relations, 1961. - The General Assembly resolution adopted on December 7, 1959, inter alia decided that an international conference of plenipotentiaries shall be convoked to consider the question of diplomatic intercourse and immunities and to embody the results of its work in an international convention, together with such ancillary documents as may be necessary and requested by the Secretary-General to convoke the conference at Vienna not later than the spring of 1961. The conference accordingly met in Vienna, Austria, from March 2 to April 14, 1961, in which 81 States participated. The Vienna Convention on Diplomatic Relations was signed on April 18, 1961.
The Convention on Diplomatic Relations consists of a preamble and fifty-three articles. It divides itself into four parts : The first part consisting of the first nineteen articles deals with problems of diplomatic relations in general - defines the terms used in the Convention such as head of the mission, members of the diplomatic staff, etc., deals with the appointment of the staff of the mission, appointment of nationals of the receiving State and the size of the mission, and with the question of declaring the head of the mission or any member of the staff of the mission persona non grata. The second part comprises articles 20 to 28 and deals with well-established privileges and immunities accorded to the premises of the mission and to its archives such as inviolability which includes means of transport of the mission, exemption from all national, regional duties and or municipal taxes, etc., freedom of movement, freedom of communication, etc. The third part comprising articles 29 to 36 specifies the privileges and immunities, etc., to be enjoyed by a diplomatic agent as personal inviolability, inviolability of residence and property, immunity from civil, administrative and criminal jurisdiction, exemption from security regulations, taxation and customs duties, etc. The last part of the Convention comprising articles 48 to 53 contains final provisions on signature, accession, ratification, entry into force of the Convention, etc.
Besides the Convention on Diplomatic Relations, the conference adopted an Optional Protocol Concerning Acquisition of Nationality and an Optional Protocol Concerning the Compulsory Settlement of Disputes. The Conference also adopted, amongst others, two important resolutions. The first resolution affirmed the importance of the subject of special mission and recommended to the General Assembly of the United Nations that it should refer the subject to the International Law Commission for further study in the light of the Convention on Diplomatic Relations adopted by the Conference. The second resolution entitled "Consideration of Civil Claims" recommended that the sending State should waive the immunity of members of its diplomatic mission in respect of civil claims of persons in the receiving State when this can be done without impeding the performance of the functions of the mission, and that, when immunity is not waived, the sending State should use its best endeavours to bring about a just settlement of the claims.
The Convention represents a great stride in the field of the codification and development of the rules of international law on diplomatic intercourse and immunities, a subject which had hitherto been regulated by customary international law or by bilateral arrangements.
Ans. (a) Exter-ritoriality in respect of personnel of diplomatic corps. - The principle of exter-ritoriality in respect of the personnel of the diplomatic corps means that some persons though residing within the territorial jurisdiction of a particular State and as such ordinarily citizens of that State, are yet to be regarded as immune from the application of the civil and criminal law of the State and subject only to the law of the country to which they belong. The principle has nothing to do with their territory. The ambassador represents the person and dignity of his sovereign. He is the representative of the head of the State and as such is entitled to the privileges and honours due to the head himself. The ambassador would not be able to attend to the interest of the country which he represents with perfect freedom and absolute fearlessness if he were liable to be dealt with on par with ordinary citizens. This is the exact basis of his exemption.
Modern Public International Law rejects the theory of exter-ritoriality and prefers rather the necessity of recognizing a full dignity in the State which delegates an ambassador. In other words, the State recognizes a parity of rights and privileges amongst themselves and concedes a perfect equilibrium of authority and of jurisdiction. [Rose v. The King, (1947)3 D.L.R. 618].
(b) He is entitled to get his money back. He belongs to the suite of a duly accredited ambassador. The fact that he is of English nationality is immaterial for the immunity is not governed by territory. As a member of the suite he is not liable to pay any tax and having paid it under duress he may certainly get the money back.
Ans. A diplomatic envoy accredited to a State enjoys absolute immunity from criminal jurisdiction and police action as he is in no sense considered to be under its legal authority. If a diplomatic agent commits a crime the only remedy open to the accredited State is to report the matter to his home Government and demand his recall and punishment according to the law of his country. If, however, he conspires to overthrow the accredited State, he may be arrested for the time being so that he may be safely sent home in due course. (Art. 31(1) of the Vienna Convention on Diplomatic Relations, 1961). As regards the Indian driver if he is on the envoy's retinue he will be exempt from any liability ; but if he is not in the list of persons filed by the envoy with the Foreign office he will not be exempt from criminal liability. The law is that the immunities in the case of servants extend to the indoor and outdoor domestic servants including chauffeurs and gardeners. It is usual for the envoy to deposit with the Foreign Office a list of such persons for whom immunity is claimed. If the driver has been engaged by the envoy only for the trip to see the Taj Mahal, he will not be ex (sic).
Ans. Can State Refuse to accept Diplomatic agents. - The receiving State may refuse to accept diplomatic agents on the following grounds :
(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.
Ans. A diplomatic mission may terminate on any of the following grounds :
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.
Ans. Can a Diplomatic Agent waive or lose his immunity. - As pointed out earlier diplomatic agent may wave his immunity. For example, if he is called as a witness in a court of law and instead of claiming his immunity, he presents himself unconditionally in the court, it will be deemed that he was waived his immunity. He will thus lose his immunity. In such a case he cannot subsequently claim immunity from the jurisdiction of the court.
Article 32 of the Vienna Convention requires that waiver must always be express. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 32 shall preclude him from invoking immunity from jurisdiction in respect of any counter claim directly connected with the principal claim. It is, however, provided that the waiver of immunity from jurisdiction in respect of civil or administrative proceeding shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary. Thus at the time of the execution of the judgment of the court, the diplomatic agent may successfully claim his immunity.
Ans. Treaty. - A treaty is an agreement or contract entered into between two or more States whereby they undertake to carry out obligations imposed on each of them.
Kinds of Treaties. - Oppenheim classifies treaties into law-making treaties and treaties concluded for any other purpose.
Treaties classified according to the subject-matter are treaties of alliance, treaties of guarantee, treaties of commerce, treaties neutralizing State, etc.
Vattel classifies treaties as equal and unequal and real and personal.
Then treaties may be distinguished as unilateral and bilateral, according as they bind one party or both the parties. There are also multilateral treaties which bind more than two States as parties.
Treaties classified according to objects are political, commercial, social, and treaties of guarantee, neutrality, cession or extradition.
Treaties may also be classified according to form as to whether they are permanent or transitory.
The most perfect classification is to be found in that given by McNair (British Year Book of International Law, 1930), which is as follows :-
(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."
Ans. Pact of Paris. - The Pact of Paris also known as the Kellogg-Briand Pact of 1928 was originally a pact between the U.S.A. and France but in 1928 it was adopted by almost all the important States of the world. It was epoch making inasmuch as it was for the first time that the States of the world agreed to renounce war as the instrument of national policy.
The Treaty though renouncing war did not define it nor did it provide for any sanction behind its provisions. There was no authority to punish a State Government committing breach of peace. Moreover the was no positive agreement to settle disputes by peaceful means except that "the settlement of all disputes shall never be sought except by pacific means".
In view of such loopholes the Treaty remained a pious wish and a dead letter. It was honoured more in the breach than in observances. In 1931 Japan invaded China in Manchuria ; in 1935 Italy invaded Abyssinia ; then there was the annexation by Germany of Austria and Czechoslovakia in 1939. The Pact of Paris remained a dead letter all the time till it was dug out from the lumber room when convenient for the victorious powers to set out on trial the Nazi leaders.
In his book "From Geneva to San Francisco", Norman Beatwich describes the pact as "an international kiss, purely platonic, promising nothing for future". It embodied a solemn declaration of renunciation of war but it was not backed with the will of the member States.
It was improper to have charged the leaders of Germany with the violation of the Pact in the Nuremberg Trial. The nations who were the victors had themselves been guilty of several breaches of it in the past.
Ans. Is there a duty to Ratify. - International law does not impose any duty upon a State to ratify a treaty signed by its representatives. It depends upon the sweet-will of the State concerned whether to ratify or not to ratify a treaty. This is based on the principle of the sovereignty of the State. Every sovereign state is entitled to keep away from the treaty or to repudiate it if it so desires. Thus under international law, there is no general duty imposed upon a State to ratify a treaty.
Consequences of Non-Ratification of a Treaty. - If a treaty is to come into force only after ratification and State does not ratify it then such a State will not be bound by the treaty without ratification. However, as pointed out earlier, whether a treaty is to come into force after ratification or without ratification depends upon the intention of the parties. The practice of the State, however, shows that they do not regard themselves bound by a treaty unless and until they ratify it.
Ans. Termination of Treaties. - Treaties many 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.
Ans. (a) Pacta terties nec nocent nec prosunt. - It is fundamental principle of the Law of Contract that only parties to a contract are bound by the contract. Similarly, it is a general principle of International Law that only a party to an international treaty is bound by it. This principle is expressed in a Latin maxim called 'pacta terties nec nocent nec prsunt'. This principle has been incorporated in Article 34 if the Vienna Convention on the Law of Treaties 1969. This principle is subject to certain exceptions contained in Articles 35 to 38. They are :
(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.
Ans. Origin. - Although the desire for the establishment of an effective international organisation had been expressed long before the first World War, yet it took the real form in the Treaty of Versailles, 1919. By the end of the first World War, the statesmen of the world had finally decided to establish League of Nations. Several drafts were prepared and finally the American and British proposals were compiled as in a joint draft, known 'Herst-Millar Draft' which was presented before the League of Nations Commission of the Peace Conference. On April 28, 1919, the Peace Conference accepted the draft which was given the final shape by the Commission. Thus the Covenant of the League of Nations was adopted. Finally the League of the Nations was established on January 10, 1920.
Functions of the League of Nations. - The League of Nations performed the following main functions :
(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.
Ans. Weaknesses and Defects of the League of Nations. - Following were the main defects and weaknesses of the League of Nations :
(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.
Ans. Origin and Nature. - By the end of Nineteenth Century arbitration had become popular method of settlement of disputes. The Permanent Court of Arbitration was established by the Hague Convention of 1899. In the Hague Convention, it was also agreed that international disputes should be settled through peaceful means and decision to establish a Permanent Court of Arbitration was incorporated in Article 22 of the Convention.
Composition. - The Permanent Court of Arbitration comprises of the following 3 institutions :
(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.
Ans. Origin. - The Permanent Court of International Justice was established under Article 14 of the Convenant of the League of Nations in 1921. Article 14, provides that, "The Council shall formulate and submit to the members of the League for adoption plan for the establishment of a Permanent Court of International Justice. The court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give advisory opinion upon any dispute or question referred to it by the Council of Assembly." In pursuance of Article 14, the League Council constituted a committee of eminent jurists and asked to it submit a plan for the establishment of a Permanent Court of International Justice. The said committee submitted a plan which was approved by the League Assembly and the League Council. Thus the Permanent Court of International Justice was established.
Some Important Cases Decided by the Permanent Court of International Justice :
(1) S.S. Wimbledon, P.C.I.J. (1923), Series A, No. 1. - On March 21, 1921, the German Authorities stopped a British ship named S.S. Wimbledon on the ground that it contained military equipments being shipped to Poland who was at war at that time with Russia. The German Authorities contended that allowing the ship to pass through the Keil Canal would amount to violation of the German neutrality. The prominent allied nations filed case against Germany in the Permanent Court of International Justice. Deciding in favour of the allied nations the World Court held that under Article 380 of the Treaty of Versailles, Germany was bound to allow the passage through Keil Canal, to the S.S. Wimbledon. The Court, therefore, ordered that Germany should pay compensation for violation of its treaty obligations.
(2) S.S. Lotus, P.C.I.J. (1927), Series A, No. 10. - In 1926, in open or High Seas, a French Mail ship named S.S. Lotus collided with a Turkish shop named BOZ Kourt. As a consequence of collision, the Turkish ship sank resulting in the death of 8 Turkish nationals. After the collision, when S.S. Lotus reached Constantinople, Mr. Demons a French national and the officer on the Board were arrested and proceedings were started against them according to the criminal law of Turkey. Mr. Demons argued in the Turkish Court that it had no jurisdiction to try him. The Court rejected the said contention of Mr. Demons and convicted him. The French Govt. protested against the said act of Turkey and claimed Mr. Demons should be immediately released. The French Govt. claimed that Turkey had no jurisdiction to try and punish Mr. Demons. In its support France cited Article 15 of the Convention of Lausanne, 1923 and claimed that Turkey had violated the said provision. In order to resolve the dispute, France and Turkey signed a special agreement according to which it was decided to refer the matter to the Permanent Court of International Justice for its decision. The Court had to decide whether Turkey violated Article 15 of the Convention of Lausanne, 1923. Article 15 provided the following : "Subject to the provisions of Article 16, all questions of jurisdiction shall as between Turkey and other contracting parties be decided in accordance with the principles of International Law."
The Permanent Court of International Justice gave its decision in favour of Turkey. The Court gave its verdict that by prosecuting and convicting Mr. Demons Turkey did not violate International Law.
Ans.
|
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. |
Ans. Origin. - After the first World War the League of Nations was established but it failed to prevent the Second World War. The Second World War once again compelled the nations of the world to endeavour to establish an international organisation which could prevent future war and maintain peace and security in the world. During the Second World War itself the great powers had started making efforts in this direction. Their efforts led to the holding of the San Francisco Conference in which the United Nations Charter was adopted and signed by 51 nations of the world. After the Charter was ratified by the prescribed number of States, it came into force on October 24, 1945. Thus the United Nations was finally established. It may, however, be noted that it was the untiring efforts for a number of years which led to the establishment of the United Nations. The more important factors and efforts which led to the establishment of the United Nations may be briefly mentioned below :
(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.
Ans. Membership. - Charter of the United Nations provides for two types of members : (i) Original Members, and (ii) States admitted as members according to Article 4 of the Charter.
Original members of the United Nations are those members which participated in the United Nations Conference on International Organisation at San Francisco or previously signed the United Nations Declaration of January 1, 1942, and subsequently signed the present Charter and ratified it in accordance with Article 110 of the Charter.
As regards the admission of members, Article 4 of the Charter provides that a State may be admitted to the United Nations on the affirmative recommendation of the Security Council and by election of the General Assembly by two-third majority. Admission of States being an important matter, it is necessary that the Security Council must recommend it by a majority of 9 members including the five permanent members. Further, Article 4 provides that for a State to become a member of the United Nations; (i) It must be a State; (ii) It must be peace-loving; (iii) It must accept the obligations of the Charter; (iv) It must be willing to carry out those obligations; and (v) It must be able to carry out those obligations.
Is withdrawal of a member State from the United Nations possible. - Charter of the United Nations does not provide for the withdrawal of members. It may be noted that the Convenant of the League of Nations contained the following provisions in regard to the withdrawal of members :
(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.
Ans. Composition. - The General Assembly of the United Nations is the most democratic and representative organ. In a sense it is the true representative of "the People of the United Nations". Each member of the United Nations is represented in it. Each member is entitled to give one vote, but may send 5 representatives in the General Assembly. (Article 9). At present there are 190 members in the General Assembly.
Voting Rights. - In accordance with the provisions of Article 18 of the Charter, each member of the General Assembly is entitled to give one vote. Decisions on important or substantial matters are taken by the majority of two-third members important present and voting. According to Article 18, important and substantial questions include maintenance of international peace and security, election of Economic and Social Council, election of members of Trusteeship Council, admission of new States to the United Nations and suspension and expulsion of the members of the United Nations. As regards to other matters the decisions of the General Assembly are made by the majority of the members present and voting,
Procedure. - The Annual Sessions of the General Assembly may be convend either by the Security Council or by the majority of the members (Article 20). The General Assembly is entitled to formulate its own rules and procedures (Article 21). The General Assembly is also empowered to establish subsidiary organs for the performance of its functions. The session of the General Assembly begins with the discussions on the report of the Secretary-General on the work of the organisation.
Each member is represented in the General Assembly and can send 5 representatives. Consequently, the General Assembly is a big body. It has, therefore, formed certain main and other committees through which it performs its major functions. The Committees of the General Assembly are of following types :
(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.
Ans. Composition. - The Security Council is one of the principal organs of the United Nations which comprises of 15 members out of which 5 are permanent and 10 are non-permanent members. China, Russia, America, France and Britain are the permanent members of the Council. The 10 non-permanent members are elected by the General Assembly for a term of 2 years. Each member-State is entitled to send one representative in the Council.
Voting Rights. - Each member of the Security Council is entitled to give one vote. Decisions on procedural matters are taken by a majority of 9 members. Decisions on important and substantial matters require the affirmative vote of 9 members including of 5 permanent members. If any permanent member give a negative vote (called Veto), the Security Council becomes unable to take decision on that matter. When the Security Council has taken decision on the matter related to Article 62 para 3 of the Chapter VI, the party to the dispute cannot participate in the voting.
I - Maintenance of International Peace and Security. - For detailed study see : S.K. Kapoor, "Maintenance of International Peace and Security", Lawyer (Nov., 1972) p. 170 - In order to ensure prompt and effective action by the United Nations, State-members have conferred upon the Security Council the primary responsibility for the maintenance of international peace and security. The members have also agreed that in carrying out its duties the Security Council acts on their behalf, Article 24 of the U.N. Charter. The members of the United Nations have also agreed to accept and carry out the decisions of the Security Council with the least diversion for the armaments and the world's human and economic resources. The Security Council is also responsible for formulating, with the assistance of the military staff, plans to be submitted to the members of the United Nations for the establishment of a system of regulation of armaments. (Article 26)
II - Elective Functions. - The Security Council also performs some elective functions. For example, Security Council and the General Assembly separately elect the judges of the International Court of Justice. In this way the Security Council participates in the election of the Judges of the World Court. Besides this, the Security Council also recommends the appointment of the Secretary-General of the United Nations,
III - Supervisory Functions. - The Security Council also performs some supervisory functions. That is to say, it supervises the functions of the organization as a whole although its supervisory functions are not as wide as that the General Assembly. But since it has been conferred upon some very important functions in regard to file expulsion and suspension of members, it may not be wrong to contend that through this it exercises supervision upon the United Nations as a whole. Last but not the least, the Security Council is responsible for control and supervision of the strategic areas of the Trust Territories under the Trusteeship System of the United Nations.
IV - Constituent Functions. - The constituent powers of the Security Council are very important. Article 108 of the Charter provides that amendments to the present Charter shall come into force for all members of the United Nations when they have been adopted by a vote of two-thirds of the members of the General Assembly, and ratified in accordance with their respective constitutional processes by members of the Security Council. It is clear from this that no amendment of the Charter is possible unless and until all the permanent members of the Security Council give their affirmative vote on it and it is subsequently ratified by their respective.
Ans. Need for enlargement of the Security Council - With a view to reflect the increased strength of the General Assembly and the new power configuration in the world after the Gulf War (1991) and the breaking up of the Soviet Union, the need for democratization of the U.N. system has emerged as a recurrent theme. One way of democratization the U.N. would be by reviewing the membership of the Security Council. When the membership of the Security was increased from 11 to 15 in 1965 the membership of the U.N. was 113. Since then the membership of the U.N. has increased to 190 at present but the membership of the Security Council remains the same. Besides this, there are other imbalances in the existing composition of the Security Council. Africa and Latin America are un-presented. China is the representative of Asia, the largest continent from the point of area and population.
The two economic Super Powers Germany (especially after the unification of two Germanys) and Japan (which alone contributes 12.5 per cent of the U.N.'s total budget, nearly half the U.S. contribution and larger than what Britain and France are together giving to it), are not the permanent members. Moreover, some developing countries like India and Brazil have acquired international status. In view of these reasons the membership of the Security Council ought to be increased from 15 to 25 including 10 permanent members. The new five permanent members should be chosen from amongst the countries such as Japan, Germany, India, Egypt, Brazil and Nigeria. Besides this 5 new non-permanent members should be elected on geographical basis to make the Security Council more representative.
On 12 December, 1992, the United Nations General Assembly passed a resolution asking the Secretary-General to seek views of member States on equitable representation and increasing the membership of the Security Council. The resolution seeks a report from the Secretary-General, Dr. Boutros Ghali before the next session of the Assembly i.e., September 1993. It may, however, be noted that none of the 5 permanent members - the U.S., Russia, U.K., China and France - who resent expansion of their exclusive club joined in sponsoring the resolution. Obviously any change in the structure of the Security Council would need approval of all the five as they have the power to veto any such resolution. Even a suggestion made in diplomatic circles that new members may be given veto power did not find favour among the fivel.
There is no denying the fact that for any amendment of the Charter, affirmative votes of five permanent members is essential. It is therefore necessary to build public opinion and to put pressure on the existing five permanent members and especially on the U.S. before in the present unipolar world much will depend on the attitude adopted by the U.S., the sole super power.
A consensus seems to have emerged that both Japan and Germany should be made permanent members. Japan is even prepared to increase its contribution to the U.N. if it is made a permanent member. As regards India, after initial opposition the U.S. has now agreed that there ought to be a permanent member from Asian region and this region should itself decide about its member. But this proposal is not acceptable to India who has already put forward its claim formally. India's claim for permanent membership of the U.N. is backed by a considerable number of countries. Besides India, Egypt, Brazil and Nigeria are other strong contenders for permanent membership of the U.N.
Ans. Veto and its effect on the efficiency of the Security Council. - In accordance with the provisions of Article 27 of the Charter, the affirmative vote of 9 members of the Security Council including the permanent members is necessary for a decision on substantive or important matters. In other words, we may say that China, Russia, America, Britain and France (the permanent members of Security Council) have been conferred upon the veto power. The right of veto given to the permanent members of the Security Council has greatly impaired the efficiency of the Security Council. Because of this, the Security Council has become a weak organ of the United Nations and has not been able to perform functions entrusted to it under the Charter. It is often claimed that Security Council was responsible for stopping the North-Korea from overrunning South Korea in 1950. But as remarked by Prof. Goodspeed, "Nothing could be more misleading since the United States was able to obtain United Nation's blessing for military action on that occasion because the Soviet delegate had absented himself from the Security Council and could not interpose his veto in time." When the Soviet representative returned to the Security Council, the Security Council became unable to take any further action in Korea. Similarly, in other important matters the Security Council is not able to perform its functions of maintenance of peace and security because of the exercise of veto power. An example of this is the Indo-Pak War of 1971. In the beginning the Security Council could not take any decision because Russia exercised its veto in favour of India. Thus, the veto has greatly impaired the efficiency of the Security Council. But there does not seem to be any alternative to it because the Permanent Members are not prepared to give up this privilege. Thus the system can be termed as, "necessary evil". Since it is very difficult to remove this necessary evil, efforts should be made to find out procedures and methods through which the abuse of this right may be checked or at least restricted.
Ans. Contribution of the Security Council for the maintenance of peace and security. - As pointed out earlier, the veto has greatly affected the efficiency of the Security Council. But it would be wrong to contend that the Security Council has not made any contribution for the maintenance of international peace and security. As a matter of fact, the Security Council has been able to perform its functions properly in cases where the interests of the permanent members were not directly involved. In such cases the Security Council has performed creditable functions.
The Security Council has been able to contribute to the maintenance of peace and security in cases of Indonesia (1949), Palestine problem, Indo-Pak Conflicts (1948, 1965 and 1971), Congo (1960), Cyprus and Arab Israeli Conflicts (1973), lran-Iraq war and Gulf war (1991). It would, therefore, be wrong to say that the Security Council has proved to be a complete failure. It has been successful in a number of cases to prevent escalation of armed conflict and to effect cease-fire. It is also one of the great achievements of the Security Council that since the inception of the United Nations there has been no world war. However, the Security Council has been successful only to prevent escalation of war and, to effect temporary cease fires. It has failed to find out permanent political solutions of the problems. This has been mainly due to mutual fears and distrust, non-co-operation and conflict among great powers.
Ans. Double Veto. - Article 27 provides that the decisions of the Security Council on all important matters shall be made by an affirmative vote of 9 members including the concurring votes of permanent members. That is to say, no important decision can be taken by the Security Council unless and until 5 permanent members give their affirmative votes. Whenever a question arises whether a matter is procedural or substantial, double veto may be used. By 'double veto' we mean the permanent members of the Security Council can use their veto two times. Whenever a matter or resolution is to be voted, the President of the Security Council determines the procedure of voting and rules whether only 9 affirmative votes are required or whether these 9 affirmative votes should include the affirmative votes of the 5 permanent members. In other words in the first place, it is the President of the Security Council which gives his decision as to whether the matter is substantial or procedural. The decision of the President of the Council can be challenged. If any permanent member of the Security Council challenges the said decision of the President of the Council or it gives negative vote or veto against such decision, the matter which the President ruled as procedural becomes substantive. This is the first item when a permanent member can use his veto. Once a matter becomes substantive, a decision on it can be vetoed by any permanent member of the Security Council. This is the second time when a permanent member can use his veto. Thus a permanent member can use his veto two times and this is generally known as 'double veto'. Russia used double veto on the question of Greece, Czechoslovakia and Spain. The essence of 'double veto' has been aptly summed up by Prof. Goodspeed in the following words :-
"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."
Ans. Relationship between Security Council and the General Assembly. - In accordance with the provisions of Article 7 of the Charter both Security Council and General Assembly are the principal organs of the United Nations. These two organs occupy a place of prominence in the whole set-up of the United Nations. Many matters under the Charter require recommendations of the Security Council and a decision of the General Assembly. That is to say, no decision can be taken on such matters unless the Security Council has recommended and the General Assembly has also concurred with that decision. For example, the Security Council and the General Assembly separately elect the Judges of the International Court of Justice. Besides this their participation is necessary for admitting a new State to the United Nations. A new State can be admitted to the United Nations only when the General Assembly elects it by two-thirds majority upon the recommendation of the Security Council. Similarly both participate in the suspension and expulsion of members. All these matters can be decided only when there is an affirmative recommendation of the Security Council and concurring decision of the General Assembly. Similarly, the Secretary-General is appointed by the General Assembly on the recommendations of the Security Council.
Moreover, there are certain other provisions under which the Security Council and the General Assembly are connected with each other. The Security Council sends its annual report to the General Assembly. The Budget of the Security Council is also passed by the General Assembly. So far as the maintenance of world peace and security are concerned, its 'primary responsibility' rests upon the Security Council (Article 24) but if Security Council fails to perform its functions or fails to make its affirmative recommendation in regard to any conflict, the General Assembly may step in and perform certain functions relating to peace and security. These powers have been conferred upon the General Assembly under the Uniting for Peace Resolution, 1950. Thus we see that the General Assembly and Security Council are intimately connected with each other. In fact, the United Nations can achieve its objective only when these two principal organs of the United Nations cooperate with each other in solving the problems confronting the Organisation.
Q. 121. What is the binding character of resolution of Security Council ? What are its limitations ?
Ans. Binding Character of the Resolution of Security Council. - The resolutions of the Security Council are binding upon the Members. This is evident from Article 25 of the Charter which provides that the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. There is no controversy in respect of the binding effect of the resolutions of the Security Council relating to enforcement measures, under Chapter VII of the Charter. But there is some controversy in respect of the binding character of other decisions of the Security Council, especially those made under the provisions of the Charter relating to international disputes and dangerous situations. In advisory opinion concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa). Notwithstanding Security Council Resolution 270 (1970), ICJ Reports (1971), p. 16 the International Court of Justice laid these doubts to rest. The World Court observed : "It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but, applies to the decisions of the Security Council adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that Part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement actions under Articles 41 and 42 of the Charter is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since the effect is secured by Articles 48 and 49 of the Charter ICJ Reports (1971), at pp. 52-53."
But this was all advisory opinion of the court and some States, particularly France, pointed out that it was consultative opinion and not a decision. Italy approved Court's opinion in respect of Namibia but disagreed with the Court's interpretation on Articles 25 and 24 of the Charter. After detailed discussion on the Court's opinion, the Security Council adopted by 13 votes to the Court's opinion vide resolution 301 (1971). As pointed out by all author, S. Azadon Tiewal, "Binding Decisions of the Security Council within the Meaning of Article 25 of the United Nations Charter", UJIL Vol. 15 (1975), p. 195 at p. 213 :
"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.
Ans. Composition. - Originally the Economic and Social Council comprised of 18 members elected by the General Assembly. In the year 1963, the Charter was amended and the membership of the Economic and Social Council was increased to 27. It came into force on 31 August 1965. In the year 1971, the Charter was once again amended and the membership of the Council was increased to 54. It came into force on 24 September, 1973. At present the Economic and Social Council comprises of 54 members. Since the membership of the U.N. has now swelled to 190, a plea can be made for further increase in the membership of the Economic and Social Council.
Voting. - Each member of the Economic and Social Council is entitled to have one vote. The decisions of the Council are made by a majority of members present and voting.
Powers and Functions. - The Economic and Social Council performs the following functions :
(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.
Ans. Composition. - As provided under Article 86 of the U.N. Charter, Trusteeship Council comprises of the following members of the U.N. :
(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.
Ans. According to Article 7 of the United Nations Charter, the Secretariat is one of the principal organs of the United Nations.
Composition. - The Secretariat comprises of a Secretary-General and such staff as the organisation may require. The Secretary-General is appointed by the General Assembly upon the recommendation of the Security Council. He is designated as "the Chief Administrative Officer of the Organisation" (Article 97). It is pertinent to note that he is not only the Chief Administrative Officer of the Secretariat but of the whole organisation. Kofi Anan of Ghana is the Secretary General of U.N.
He has become Secretary-General at a time when the U.N. is confronted with several formidable problems, the most formidable of them, being financial crises and Iraq-America conflict. In order to maintain the international character of the Secretariat and to make it impartial, the Charter clearly provides that the Secretary-General and his staff shall not take direction from any Govt. and the member States of the United Nations shall also respect exclusively international character of the responsibilities of the Secretary- General and the Staff and shall not seek to influence them in the discharge of their responsibilities (Article 100). The staff of the Secretariat is appointed by as the Secretary-General in accordance with the rules determined and established by the General Assembly.
Functions of the Secretary-General, For detailed study, see also S.K. Kapoor, "Constitutional and Legal norms Governing the Rule of Secretary-General and his Functions" (1973) SCJ 1st March, 1973, p.5 - The Secretary-General performs the following functions :
(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.
Ans. Composition. - According to Article 7, International Court of Justice is one of the principal organs of the United Nations. It is the chief judicial organ of the United Nations and is based upon a Statute which is integral part of the United Nations Charter (Article 92). All members of the United Nations are ipso-facto the members of the Statute of the International Court of Justice. Any State which is not a member of the United Nations may also become a party of the Statute of the International Court of Justice on the recommendation of the Security Council and on the conditions laid down by the General Assembly (Article 93). The International Court of Justice consists of 15 Judges which are elected by the General Assembly and the Security Council separately. These judges are elected for a term of 9 years and can also be re-elected after the expiry of their teem. All the decisions of the Court are made on the basis of the majority of the judges. The President of the Court is empowered to give casting vote in case of a tie.
Law applied by the International Court of Justice. - According to Article 38(1) of the Statute of the International Court of Justice, the Court shall decide the disputes submitted to it in accordance with International law and shall use the sources of international law in the following order :
(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.
Ans. Problems for the Enforcement of the Judgments of the International Court of Justice. - Under Article 94 of the U.N. Charter, the Security Council is empowered to implement the judgments of the International Court of Justice in case one of the parties fails to implement it and the other party to the dispute brings the matter to the Security Council. The problem of enforcement of the judgments of the World Court which came before the U.N. was not experienced by the League of Nations. For example in Corfu Channel Case, ICJ Reports (1949) p. 4, Albania refused to implement the decision of the court. A similar problem arose in Nuclear Test Case, ICJ Reports (1973) p. 106. This problem also arose when on 15 December, 1979, the International Court of Justice indicated provisional measures in case concerning United States Diplomatic and Consular Staff in Teheran (U.S. v. Iran). The framers of the Charter were of the view that enforcement of judgments was not the function of the Court and they entrusted this work to the Security Council. However, as pointed out by Fawcett, except in Corfu Channel case, the problem of the enforcement never seriously arose and even in that case on the refusal of Albania to pay compensation, England had confiscated Albanian money in England. Recently, the problem of the enforcement of judgments of the court has once again assumed serious magnitude in the case Concerning Military and Para-Military Activities in and Against Nicaragua (Nicaragua v. U.S.). On refusal of the U.S. to comply with a decision of the Court, Nicaragua invoked Article 94, paragraph 2 of the U.N. Charter. Thus "there are not more than a few cases out of many hundreds which have involved the refusal by the losing party to give effect to an award rendered." Though Charter has empowered Security Council to implement the decision of the court if one of the parties to dispute before the court it is doubtful whether it will be able to exercise this power effectively if the losing party is one of the permanent members of the Security Council or even a member of the U.N. which has the support of any such permanent member. The case of Nicaragua v. U.S. (1986) is a glaring example of this.
Ans. (a) International Labour Organisation (I.L.O.). - International Labour Organisation was established in 1919 as an autonomous partner of the League of Nations. Its Head Office is situated in Geneva. It was brought into relationship with the United Nations in 1946 through a special agreement. This special agreement was approved by the General Assembly on December 14, 1946. International Labour Organisation functions in close collaboration with the United Nations.
Composition and Functions. - Its membership is open for all the States. In 1970 it had 121 States as its members. Following are the main organs of the International Labour Organisation :-
(a) General Conference. - Each Member State gets representation in the General Conference. Each State has 4 representatives in the General Conference - two representatives of the State Govt. and one each representative of the workers and employers. Each representative has one vote. Most of the decisions of the Conference are in the form of Conventions and recommendations and they require the majority of two-third members present and voting.
(b) Governing Body. - The Governing body comprises of 54 members and is a tripartite body and includes the representatives of State Govts., employers and workers. The Governing Body appoints the Director General and supervises the functions of the organisation.
(c) International Labour Offices or Secretariat. - The head of the International Labour Office is a Director-General. Its head-office is situated in Geneva and its branches are in New York and in several countries of Europe and Asia. Its main function is to collect informations related to industrial life and labour and to assist the members to make laws in accordance with the decisions of the General Conference.
Ans. (b) World Health Organisation (W.H.O.). - As pointed out by Prof. Stephen S. Goodspeed, the World Health Organisation "is typical of the specialised agency with multi-purposes functions and well-defined objectives."
Objectives and functions. - The main function of the world Health Organisation is to raise the standard of health of the people.
(a) Assembly. - It comprises of all the members. Its session is held every year and each member has one vote. However each member is entitled to have three representatives in the Assembly. The Assembly lays down the General Policy and passes the Budget of the Organisation.
(b) Executive Board. - This is a technical and non-political organ. It comprises of 24 members who possess high technical education in the field of health and who are elected by the Assembly. It holds its session twice in a year and implements the decisions taken by the Assembly.
(c) Secretariat. - The chief of the Secretariat is a Director who is appointed by the Assembly. He is also the chief and the technical officer of the organisation.
The World Health Organisation has rendered signal services by its endeavours to eradicate diseases and to raise the standards of health of the people of the world. It performs both advisory and technical functions. It has performed commendable work in checking diseases such as Malaria, T.B. and Influenza. This organisation also gets research work done for the solution of world-wide problems relating to health.
Ans. (c) United Nations Educational, Scientific and Cultural Organisation. (UNESCO). - For the establishment of the United Nations Educational, Scientific and Cultural Organisation a conference was held in London in November, 1945. It was finally established on November, 14, 1946. Thereafter it was brought into relationship with the United Nations through a special agreement which was approved by the General Assembly on December, 14, 1946.
Objectives and functions. - The United Nations Educational, Scientific and Cultural Organisation has laid a great emphasis on the development of basic education. It also encourages research work in the field of science. It has rendered signal services for the development of knowledge and its dissemination. In order to achieve these objectives, it assists State and non-State institutions.
Composition. - Each member of the United Nations can become its member. Other States may be made the member of the United Nations Educational Scientific and Cultural Organisation through two-thirds majority of General Conference. Following are the main organs of the United Nations Educational, Scientific and Cultural Organisation :
(A) General Conference. - All the member-States get representation in the General Conference which holds its sessions twice in every year. It is the policy-making organ of the United Nations Educational, Scientific and Cultural Organisation. For adopting International conventions two-thirds majority is required, but only simple majority is required for adopting recommendations. The General Conference elects the members of the Executive Board and appoints the Director-General of the Secretariat.
(B) Executive Board. - It comprises of 24 members who are elected by the General Conference for a term of four years. Its chief function is to implement the decisions of the General Conference.
(C) Secretariat. - The Chief of the Secretariat is a Director General who is elected by the General Conference on the nomination of the Executive Board. The Director General participates in the meetings of the General Conference, the Executive Board's meeting of the Technical Committees and performs routine functions of the organisation.
Ans. (a) Food and Agricultural Organisation (F.A.O.) - It was established on 16th October, 1945 when its constitution was adopted. Thereafter, it was brought into relationship with the United Nations and this agreement was approved by the General Assembly in December, 1946.
Objectives and functions. - It aims to raise the living standards; to increase the production of food-stuffs and to enhance the capacity of their distribution; to improve the conditions of the rural population and thus to improve the economic system of the world. In order to achieve these objectives, the organisation performs various types of technical functions. It collects informations related to food and agriculture and disseminates them. It also assists the member-States in their endeavours to increase production of foodstuffs.
Composition. - The following are the three main organs of the Food and Agricultural Organisation :
(A) Conference;
(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 :(A) Assembly;
(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) President
The 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.
Ans. Meaning. - Human rights have been talked about in our society many a time. Recently its importance has been increased as more and more people are becoming aware about human rights.
In order to understand the correct and national meaning of the term `Human Rights', we are to understand the meaning of the word 'Human'.
In Chamber's Twentieth Century Dictionary, the word human has been explained to mean "belonging or pertaining to man having the qualities of a man".
In Oxford Advanced Learner's Dictionary, the word has been said to mean "of or characteristics of people, contracted with God, animals or machines".
The meanings assigned In Chamber's Dictionary as 'having qualities of a man' and in Oxford Dictionary as `contrasted with God, animals or machines', lead to the conclusion that the persons who do not possess the qualities of man but behave as wild animals, like the extremists, who behave as animals or in a mechanic have take massacring people cannot claim to be human beings and protection or shelter of Human Rights. Human Rights are for humans and not for animals or extremists, or hardened criminals.
Now let us consider the definitions of human right as given in the Indian and the International statutes and covenants.
Under the Human Rights Protection Act, 1993 of India, "Human Rights" mean the "rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution, or embodied in the International Covenants and enforceable by Courts in India".
Under the International Covenants on Human Rights, the Universal Declaration of Human Rights. 1948, is the basic and the most important covenant on the subject. But, this covenant does not define 'Human Rights' and leaves it to be interpreted by the Great Powers according to their choice and impose them on weak, poor and developing nations. Article 1 of the Declaration declares that "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood". This provision is an anomaly in its own terms. Are the extremists, territorists and fundamentalists entitled to claim human rights who have proved themselves to be brutes to human society. Common sense and humanity is beyond their conception. That is why the Indian Act on human rights does not accept the concepts of human rights as they have been declared under the Universal Declaration of Human Rights. Under the Indian law only those rights are accepted to be the human rights which are enforceable by Courts in India.
Section 2(d) of the Protection of Human Rights Act, 1993 very wisely defines `human rights' to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. The Instrument of Accession by India to the Human Rights Covenants (1979) also declares with reference to Article 9 of the International Covenant on Civil and Political Rights that the Government of the Republic of India takes the position that the provisions of this Article shall be so applied as to be in consonance with the provisions of Article 22 (3) to (7) of the Constitution of India. Further under the Indian legal system there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State. With respect to Articles 4, 7, 12, 13, 19 (3) and 22 of the covenant it is declared that Republic of India accedes to same, subject to the Declarations made by it.
Ans. The origin of the concept of the human rights may be traced far back in the Babylonian laws, Assyrian laws, Hettlie laws and the Dharm Shastra in the Vedic period of India. Plato and other Greek and Roman philosophers also advocated the atoms of human rights.
In the city-State of Greece there was freedom of speech, equality before law, right to vote, right to be elected to a public office, right to trade and right of access to justice to the citizens. Romans also secured similar rights to their citizens by Jus Civilli (Civil Law) of the Romans.
Magna Carta was granted by King John of England to the English barons on June 15, 12, 15 which ensured feudal rights and dues and the guarantee that the king would not encroach upon their privileges. This document set for the principle that the power of the king was not absolute. In 1216-17 when Henry III, the son of King John ruled England, the Parliament confirmed Magna Carta. In 1297 Edward I modified it a bit and confirmed it. It was buttressed in 1628 by the Petition of Rights. In 1969 the Bill of Rights formed platform for Parliamentary Supremacy over the Crown.
In other States also some declarations and Constitutional instruments gave way to fundamental rights of human beings. In 1976, the United States of America made the Declaration of Independence of theirs. In the same sequence of the development of human rights, the Virginia Bill of Rights, 1776, the Constitution of the United States of 1787 with subsequent amendments of 1789, 1865, 1869 and 1919 paved the higher steps of human rights. The French Declaration of the Rights of Man of 1789 proved to be the landmark in the history of human rights. It led other European countries to include the provisions for the protection of human rights in their laws. In the beginning of the 19th century most of the States recognised the fact that human beings possess certain rights to develop their personalities.
In 1919 the British Parliament passed the Government of India Act, 1919 by which certain local Self-Government laws were enforced where the First World war had begun. In 1935 another Government of India Act, 1935 was enacted by the British Parliament to appease the Indian people by giving them certain better Self-Government rights and to have the feet of democracy in the country when there were symptoms of blasting the Second World War. During this war shocking crimes were committed by the Nazi leaders of Germany, wherein there had been a total suppression of fundamental human rights. There had been established a regime of total lawlessness and tyranny and the State was rightly called as the Totalitarian State. Under the leadership of Mussolini, Italy also followed the pattern of Germany and Japan also shaked hands with Germany. The dictators barbarously neglected human values and dignity within the territories occupied by them. It was at the claim of the Second World War that the alied Nations felt the unavoidable need for restoration of freedoms and rights to the people which was the most essential requirement for the establishment of international peace and security. On January 6, 1941 President. D. Roosevelt made a Proclamation of Four Freedoms, that is the Freedom of Speech. Freedom of Religion. Freedom from want and Freedom from fear. He declared that Freedom means the supremacy of human rights every where. Our support goes to those who struggle to gain these rights or keep them."
A number of conferences were held to establish a powerful United World Organisation where the World War II was in progress. In different conferences declarations were made adopting the importance of human rights. President Roosevelt of the United States of America and Prime Minister Winston Churchil of the United Kingdom of Great Britain had issued a Joint Declaration on August 14, 1914 which is known as the Atlantic Charter which proclaimed that the protection of human rights in all countries was one of the aims and objects to be obtained from victory over the Axis countries. Dumbarton Oak's proposals were in reference to the promotion of human rights as one of the activities of the proposed General Assembly and under its authority, the Economic and Social Council was also conceived.
In the Charter of the United Nations it has been declared in its Preamble :
"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.
Ans. - The nature and concept of human rights can be understood in two ways.
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.
Ans. Importance of Human Rights in the existence of human society as a whole and different nationalities. - The most important work before the United Nations was to lay down and implement the principles of respect for human rights and fundamental freedoms as provided in the U.N. Charter. The importance of human rights has been envisaged by the United Nations in their Charter known as U.N. Charter in its Preamble which is in the nature of its aims and objects to be achieved.
The Universal Declaration of Human Rights, 1948 enumerated the basic postulates and principles of human rights very comprehensively. It was affirmed that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. These rights and freedoms include:
(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.|
Universal Declaration |
Constitution of India |
|
Article 7 |
= Article 14 |
|
Article 7(2) |
= Article 15(1) |
|
Article 21(2) |
= Article 16(1) |
|
Article 19 |
= Article 19(1)(a) |
|
Article 20(1) |
= Article 19(1)(b) |
|
Article 23(4) |
= Article 19(1)(c) |
|
Article 13(1) |
= Article 19(1)(d) |
|
Article 17(1) |
= Article 19(1)(d) |
|
Article 11(2) |
= Article 20(1) |
|
Article 9 |
= Article 21 |
|
Article 4 |
= Article 23 |
|
Article 18 |
= Article 25 (1) |
|
Article 22 |
= Article 29(1) |
|
Article 28(3) |
= Article 30(1) |
|
Article 17(2) |
= Article 31 |
|
Article 8 |
= Article 32 |
Ans. According to Louis B. John Human rights can be classified into the following three categories :
1. Human Rights of First Generation. - Human Rights had found their origin and development far back in the track of time. They were generated mostly in Greak City State in ancient times. They were concretised in the form of Magna Carta in United Kingdom in the Middle Age of their history, therefore in the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen. In the modern times they have been incorporated in the Constitutions of many States; in the International Covenant on Civil and Political Rights in the European Conventions on Human Rights and in American and African instructions.
They represent an overwhelming consensus of international community giving rise to the rules of international customary law of general application. The provisions of the Covenant on Civil and Political Rights are so widespread that now they can be taken to be as part of the law of mankind.
2. Human Rights of Second Generation. - The Civil and Political Rights originated in the American and French Revolution and Social Rights had their origin in the Russian Revolution of 1917 and in the Paris Peace Conference of 1919. The International Labour Organisation developed many international labour standards in the form of conventions and recommendations coupled with effective system of supervision and investigation of complaints.
President Roosevelt of U.S.A. on January 6, 1941, in his message to the Congress referred to four essential freedoms of speech and expression of worship in one's own way from want and from fear. Freedom from want formed the basis of concept of economic and social rights. In 1944, in another message to the Congress he made the concept of freedom from want more clear, the importance of which he stressed in the words that "true individual freedom cannot exist without economic security and independence," "people who are hungry and out of job are the stuff of which dictatorships are made." The economic truths are accepted as self-evident. He advocated for drastic economic and social reforms. "True individual freedom cannot exist without economic society and independence" was his most valued opinion.
3. Human Rights of Third Generation. - These are collective rights. Individuals are essentially members of family, religions community, social club, trade union, professional association, racial group, people, nation and State. Hence, International law recoginses not only the individual rights but also certain collective rights exercised jointly by individuals who are grouped into larger communities, the people and the nations. The third generation of human rights refer to fraternity of brotherhood. In India this has been the First Generation of the Vedic period. In Vedas all the Ved Mantras represent we or us meaning thereby the whole society or the nation and not I, a single individual. In all prayers the word NAH meaning we or to us is used and nowhere Aham or Mam `I' or `mine' nor `to me' is used. The most prominent Gayatri Mantra says Dhiyah Yah Nah Prachodayat which concentration (of God) may prosper no all-round. The right of self-determination is a misconception of the modern international trend of human rights, it is allowed to flourish then some day the States will after division after division take the shape of small villages or of cities or towns fighting together against each other paying no heed or respect to human rights. It is a cunning device of the developed countries to victimise the developing countries by sowing the seeds of disintegration under the title of the right of self-determination. Grow more and more children and clamour for partition of the country or capture it by means of the foul democracy of today, a foul play of modern politicians play hide and seek and villarity with the people of the country for their selfish ends. Economic, social and cultural development may be even a fundamental right of citizens individually but not as a class of fundamentalist, or terrorists who indulge in disintegration of the country. A nation is indivisible, the different class living therein may have their social and political right which can never include treason and felony. They have right to develop as individuals but not as a separate class displaying their identity quite different from the National Community or the people at large. Right to peace also is an important collective right which is generally disturbed by some anti-national class or minority so called. In the present day world, all human rights are interdependent and there can be no independent human right such as self-determination. India has rejected the right of self- determination in independent countries. It applies only to countries under foreign domination.
Ans. Enforcement of Human Rights at International Level.
Some of the important International Conventions are the following -
1. Convention on the Prevention and Punishment of Genocide (1946). - This Convention came into force on January 12, 1951. 127 States are now Member States to this Convention.
Article I of this Convention defined the crime of genocide as an international crime irrespective of the fact whether the crime is committed at the time of war or in peace.
Article II has enumerated the acts which may be termed as the crime of genocide, e.g., acts intending to destroy in whole or in part a national ethnic, racial or religious group, killing, causing serious bodily or mental injury, wilfully inflicting conditions of life which are calculated to bring about physical destruction in whole or in part imposing measures intended to prevent birth or forcible transfer of children.
Under Article III duty has been imposed upon the member States to prevent and punish the acts of genocide. This Article provides punishment for genocide, conspiracy to commit genocide; direct and public incitement to commit genocide and complicity in genocide.
Article IV mandates that persons committing the aforesaid crimes shall be punished whether they are constitutionally responsible rulers, public officers or private individuals.
Article V instructs that the contracting parties shall enact necessary legislation for providing effective penalties.
Article VI rejects the plea of superior order taken by the persons committing the crime of genocide. Such persons shall be tried by a competent tribunal of the State in the territory of which the act is committed, or by such international penal tribunal as may have jurisdiction.
The International Court of Justice has been given the jurisdiction to try cases relating to genocide.
2. The International Convention on the Elimination of All Forms of Racial Discrimination (1969). - Provides a machinery for its implementation. The parties to this Convention set up a Committee of Experts to look to the implementation of the Convention. All parties are required to submit reports regarding the manner in which the terms of the Convention can be implemented. Provision has also been made for setting up conciliation commissions to settle disputes regarding the interpretation of the Convention.
3. The U.N. General Assembly's grave concern on violations of Human Rights. - In 1969, the U.N. General Assembly expressed its grave concern on the violations of the Human Rights in the territories occupied by Isael. It condemned the policy of collective punishment and deportation of the people of those territories. It may be noted here that U.S.A. who is playing eminent role in the U.N.O. has her benefactor hands over Isael as well as on Pakistan where also human rights are vehemently being crushed, and wherein the minority community of the Hindus and Christians is tried to be totally vanquished or/and converted to Islam.
To desist forthwith from its reported repressive practices and policies towards the civilian population in occupied territories" and it set up a committee to report on the matter.
4. U.N. General Assembly's adopting a Declaration on protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment on December 9, 1975, and another convention on December 10, 1984. - For forwarding the struggle against torture, the General Assembly adopted another Convention on December 10, 1984. This Convention is known as the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, this Convention came into force on June 26, 1987. It was ratified by 20 States. Now 110 States are the Member States of this Convention. In Article I of this Convention the term Torture, has been defined as any act by which severe pain or suffering, whether physical or mental, is intentionally implicated on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person or for any reason based on discrimination of any kind when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. But it does not include pain or suffering arising only from inherent in or incidental to lawful sanctions.
5. Enforcement of recommendations of the Economic and Social Council and of the U.N. General Assembly. - The Economic and Social Council is authorised under Article 64 of the U.N. Charter to lay down procedures for obtaining reports from the specialised Agencies and the governments of the Member States as to implementation of resolutions of the Council as well as of the General Assembly on Human Rights. To comply with the terms of this Article, the General Assembly adopted a resolution on October 31, 1947 requiring the Secretary General to obtain reports from the governments of the Member States on the steps taken by them to implement such recommendations and to transmit the same to the Council, which in, term was required to send the report to the General Assembly.
The Economic and Social Council, by its resolution 1503, adopted on May 27, 1970, established the Sub-Commission on Prevention of Discrimination and Protection of Minorities, to consider all communications and replies of the governments which reveal a consistent pattern of gross and reliably attested violation of human rights and fundamental freedoms. The Secretary General also has been assigned certain functions in this concern.
II. Regional Systems for Enforcement of Human Rights
Some regional arrangement have been made for the protection of Human Rights. These regional States are
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.
As the Preamble of the Act states this Act has been enacted to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.
Territorial Scope of the Act. - It extentds to the whole of India. [Section 1(2)]. But however it shall apply to the State of Jammu and Kashmir only in so far as pertains to the matters relatable to any of the entries enumerated in List I or List III in the Seventh Schedule to the Constitution as applicable to the State.
List I of the Seventh Schedule 10 the Constitution is the Union List and List III is the Concurrent List.
The Act has been deemed to have come into force on the 28th day of September, 1993; because on this day the Protection of Human Rights Ordinance, 1993 had come into force.
Ans. (a) "Commission" means the National Human Rights Commission as constituted under Section 3 of the Act [Section 2 (c)].
(b) "Human Rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. [Section 2(d)].
(c) "Human Rights Court" means the Human Rights Court specified under Section 30. [Section 2(e)].
Under Section 30, for the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Courts to try the said offences, but nothing herein shall apply if a Court of Sessions already specified as a special Court or a special Court is already constituted, for such offences under any other law for the time being in force.
(d) "International Covenants" means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966. [Section 2(b)].
(e) "Public Servant" shall have the meaning assigned to it in Section 21 of the Indian Penal Code, (45 of 1860). [Section 2(m)].
Under Section 21 of the Indian Penal Code, 1860, "Public Servant" has been defined to denote a person falling under any of the descriptions, namely -
(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.
Ans. Constitution of the National Human Rights Commission. - Section 3 of the Protection of Human Rights Act, 1993 provides for the constitution of the National Human Rights Commission. The Central Government shall constitute a body to be known as the National Human Rights Commission to exercise the powers conferred upon and to perform the functions assigned to it under this Article. [Section 3(2)]. The Commission consists of - (a) a Chairperson (male or female) who has been a Chief Justice of the Supreme Court; (b) one Member who is, or has been, a Judge of the Supreme Court; (c) one Member who is, or has been the Chief justice of a High Court : A two Members to be appointed from amongst persons having knowledge of or practical experience in, matters relating to human rights; [Section 3(2)]. The Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions in Section 12(b) to (j). (Section 3(u)). There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers, and discharge such functions of the Commission as it may delegate to him. [Section 3(4)]. The headquarter of the Commission shall be at Delhi and the Commission may with previous approval of the Central Government establish offices at other places in India. [Section 3(5)].
Appointment of Chairperson and other Members. - The Chairperson and other Members shall be appointed by the President by warrant under his hand and seal. [Section 4(1)]. But every such appointment shall be made after obtaining the recommendations of a Committee consisting of -
Besides it, no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed except after consultation with the Chief Justice of India.
No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Committee. [Section 4(2)].
Term of Office of Members. - A person appointed as Chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years whichever is earlier. [(Section 6(1)]. Similarly, person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for reappointment for another term of five years. [Section 6(2)]. Rut no Member shall hold office after he has attained the age of seventy years. [Section 6(2) Proviso]. On the ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of India or the Government of any State. [(Section 6(3)].
Terms and Conditions of Service of Members. - Section 8 lays down that the salaries and allowances payable to and other terms and conditions of service of, the Members shall be such as may be prescribed. But neither the salary and allowances nor the other terms and conditions of service of a member shall be varied to his disadvantage after his appointment.
|
(a) |
The Prime Minister |
- |
Chairperson |
|
(b) |
Speaker of the House of People |
- |
Member |
|
(c) |
Minister in charge of the Ministry of Home |
- |
Member |
|
(d) |
Leader of the Opposition in the House of the People |
- |
Member |
|
(e) |
Leader of the Opposition in the Council of States |
- |
Member |
|
(f) |
Deputy Chairman of the Council of States |
- |
Member |
Ans. Functions assigned to the National Human Rights Commission. - Section 12 of the Protection of Human Rights Act, 1993 provides that the Commission shall perform all or any of the following functions; namely -
(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.
Ans. Status of the National Human Rights Commission. - It is quite-evident from the provisions of the Protection of Human Rights Act, 1993 that the National Human Rights Commission is not a Court of Justice where the human rights criminals or wrongdoers may be prosecuted and punished or may be taken to task even by civil proceeding by issuing injunctions against them.
The Commission can only inquire into complaints before it, and if it comes to a conclusion after inquiring into the matter that some crime against humanity is Committed by some person or persons, it can refer or commit the matter to a Judicial Magistrate to deal with the accused or it may move a suitable writ petition before the Supreme Court or a High Court against such persons, which task can be done by any person who is not even a victim to the crime or by the victim of the crime himself.
This comment is evident from the provisions of Section 18 of the Act under which steps which may be taken after inquiry by the Commission that the Commission may take any of the following steps upon the completion of an inquiry held under this Act namely -
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.
Ans. State Human Rights Commissions.
Constitution of State Commission. - Under Section 21(2) of the Protection of Human Rights Act, 1993, the State Commission shall consist of -
(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.