Table of Contents
Definition and concept of International Law
Every society, irrespective of its population, makes a legal framework (law) under which it functions and develops. It is permissive in nature as it allows individuals to form legal relations with rights and duties and restrictive in nature as it punishes the wrong-doers. These laws are referred to as Municipal laws. The world today requires a framework through which interstate relations can be developed. International Laws fill the gap for this.
The term ‘International law’, also referred to as Laws of Nations was first coined by Jeramy Bentham in 1780. Every country is referred to as ‘state’ in International Law.
The modern international law system is a product of only the past four hundred years bearing witness to the influence of various writers and jurists of sixteen to the eighteenth century, who formulated some of its most fundamental principles.
International laws are a set of rules, agreements and treaties that are binding between countries. Countries come together to make binding rules that they believe will benefit the citizens. It is an independent system of law existing outside the legal framework of a particular state.
What is the aim of International law
The existence of international law is the result of increased interstate engagement. It mainly aims to maintain international peace and security among different states. It also helps in:
- promotion of friendly relations among the member states (members of the International community, for example, United Nations),
- providing for basic humanitarian rights,
- to solve International problems through international cooperation,
- to refrain the state from using threat or force over the territory of any other state to provide for the right to self-determination to people, and
- to use peaceful methods to settle international disputes are few of its functions.
Who are the subjects of International Law?
It is referred to as entities who have a legal personality, with certain rights and duties under the international legal system.
The state is considered to be the primary and original subject of international law. However, it also regulates the actions of other entities:
- Individuals – Common people of any state are also believed to be the subject of international law.
- International Organizations – It is an association of states, established by a treaty between two or more states. International Organizations too have a legal personality and are considered to be the subject of international law. For example, the United Nations.
- Multinational Companies – They own and operate their corporate entities in at least one other country aside from the place where it was incorporated, therefore it is established in more than one nation.
All are considered to be subjects of international law and are enshrined with both rights and duties.
However, in the past, states were the only subjects of the international law but with the increase in the scope of the international law, many other entities like the one discussed above have been given international personality. So now the question arises, whether they may be treated as the subjects of international law and if they are given the international personality, what is the criteria determining their qualification to be the subject of the international law. So there are different theories for determining the same. The most prominent of them are:
According to this theory, only the Nation/States are considered to be the subject of international laws. It relies on the principle that it is for the nation/state that the concept of international law came into existence. These nations/states are distinct and separate entities, capable enough to have their own rights, obligations and duties, possessing the capability to maintain their rights under international law.
Prof. L. Oppenheim being the strong supporter of this theory believes that as the law of nations is primarily a law between the states, to that extent, subjects of the law should be nations only.
However, the theory has been criticized on the fact that it fails to explain the case of slaves and pirates as under international law, slaves have been conferred with some rights, while the pirates are treated as enemies of mankind.
Supporters of this theory suggest that the subjects of international law are the individuals only and that legal order is for the well-being of the individuals. They firmly believe that the Nation/state are nothing but aggregate of individuals as subjects.
Prof. Kelsen is the supporter of the theory and believes that the duties of the states are ultimately the duty of the individuals of the states and there is no difference between the international law and municipal law and have been made to be applicable on the individuals only.
Even if the theory of Kelsen appears logically sound, it is seen that the international law’s primary concern is with the rights and duties of the states.
Both the Realist and the Fictional Theory take on an extreme course of opinion, but, according to Functional Theory, neither state nor individuals are the only subjects. They both are considered to be the subjects of modern International law as they both have recognized rights, duties and obligations. Along with them, several other entities, like African Union, have been accepted as subjects of international law.
In the present times, individuals have been conferred with certain rights and duties, for example, International Covenant on human rights. Moreover, it is agreed that international organisations are also the subjects of international law. The International Court of Justice held that the United Nation is an international person and is a subject of international law, capable of having rights and duties.
Branches of International Law
Referred to as ‘laws of nations’ in Latin, considered to be those set of rules part of those portions of law mutually governing a relationship between two nations and do not form part of a legal code or a statute.
Jus Inter Gentes
Referred to as ‘law between the peoples’, considered to be those agreements and treaties, mutually accepted by both countries.
Various Scholars on International Law
Various eminent scholars, international jurists, subject experts gave their interpreted definition of International law. Most popular among them are as follows:
- According to Prof. L. Oppenheim, “Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by the civilized states in their intercourse with each other.”
- As per Torsten Gihl, “The term International Law means the body of rules of law, which apply within the International Community or society of States.”
- As per J.L. Brierly, “The Law of Nations or International Law may be defined as the body of rules and principles of action, which are binding upon civilized states in their relations with one another.”
- Gray said, “International law or the Law of Nations is the name of a body of rules which according to their usual definitions regulate the conduct of states in their intercourse with each other.”
- In Queen v. Keyn (1876), Lord Coleridge, C.J., defined International law as “The law of nations is that collection of usages which civilized States have agreed to observe in their dealings with one another.”
Is International Law really a law?
It is one of the most controversial questions that has been debated and on which jurist’s opinions hugely differ. One view considers International law not a true law, rather, a code of rule of conduct backed by morality. On the other hand, International law is considered to be a true law and is regarded as a law, similar to that of ordinary laws of a state, binding upon the citizens.
Austin’s View – International law is not a true law
According to Austin, law is the command of the sovereign punished by sanctions in case the command is violated by the individual. There must be a legislative authority enacting the rule of conduct and enforcing physical sanction. So based on what he said, it can be concluded that any rule which is not enacted by any superior or legislative authority, cannot be regarded as a law and moreover, if laws are violated, sanctions must be imposed.
Based on that, it can be said that rules are only morally and ethically valid if they aren’t issued by any sovereign authority. If we apply this theory to International law, we will see there is no legislative power over the society, based on which Austin concluded that International laws are merely based on ethics and morality and are not true law.
Oppenheim’s View – International law
According to him, laws are nothing but a body of rules for human conduct within a community, which can be enforced by an external power if there’s a common consent of the community for the same. Based on what he said, we can conclude that, firstly, there must be a community, secondly, a body of rule of conduct governing the community must be there and thirdly, common consent among the community for the rules to be enforced power must be present. From this, we can conclude that it’s not necessary that rules should be enacted by a legislative authority within the community for them to be legally binding.
International Law can be broadly divided into three types: Public International law, Private International law and Supranational Law.
Public International Law
It refers to rules and regulations governing international relations between different states and international institutions. It sets rules concerning all mankind: the environment, international business, the ocean, human rights, etc.
Public international laws apply to international organizations like the United Nation (UN) and the World Trade Organization (WTO).
Aspects of Public International Law:
- Custom – consistent state practices relying on opinio Juris, that is, belief, that is to be carried out there is a legal obligation to do so.
- Standard behaviour globally accepted, jus cogens.
- Legal Codes referred to as treaties.
For example, the Kyoto Protocol, a climate agreement, has many countries as signatories for reduction of their greenhouse gases emissions in order to protect the environment.
We can take Convention on the Rights of the Child, a convention, ensuring the protection of child rights in the signatory countries.
The Sovereignty of states
It’s the idea that the state is supreme and it can’t be a subject to other states’ rules and regulations. No state can be forced to sign a treaty. They are free to accept or decline to sign an international treaty or agreement.
Private International Law
It is also referred to as, ‘Conflict of laws’ and the phrase was first used by Ulrich Huber in his book- ”De Conflictu Legum Diversarum in Diversis Imperiis” in 1689.
Private International Law establishes and deals with the relationship between citizens/private entities of different countries. People from different parts of the world are often interacting with each other forming legal relations.
For example, an American man and an Indian woman were married in India and now live in Los Angeles. In case they ever want a divorce, the rules of private international law will determine where they will be required to go, either to the US or to an Indian court to get divorced.
The same is applicable to business as well as. Globalization has led to business activities between various countries. For example, if you are defrauded by a foreign country’s personal/private entity or organisation, then the rules of private international law will apply if you want to sue.
It refers to a situation in which a nation/state surrenders to a court of their choice their right to make certain judicial decisions, which will take priority over the decision made by the national courts. This distinguishes it from the Public International Law. For example, the supranational law is represented by the European Union (EU). All the courts within the member states of the EU are overruled by the European Court of Justice in accordance with EU laws.
Merits/Demerits of International Law
- State’s Interest Protection
It can be said without a doubt that International laws have protected the interests of states, especially of those, which have no power to protect their own interests.
For example, the World Food Programme, a part of the UN, which is a subject of international law, is a large humanitarian agency which fights hunger worldwide and delivers food assistance in case of emergencies.
- Human Being Welfare
It has played a vital role in the welfare of human beings.
For example, there are various international treaties for the promotion of fundamental human rights, justice and equality, like the Universal Declaration of Human Rights.
- Unity and Strength
This law has brought unity among different nations/states as no one state can be separated from the other. Every state has become the need of the other one.
For example, the problem of global warming. Every country emits greenhouse gases which is further contributing to global warming and the impact of the same will be felt by all the countries. So, no country can combat global warming alone and will need international laws and cooperation to curb the problem.
- No Apparent Authority
There is no authority for the enforcement of the law. Only the International Court of Justice is present but it can’t settle certain matters. Moreover, once a decision is given by it, there is no such power or authority which can get it enforced.
- No Legislative Machinery
As the international laws are based on treaties and conventions, they are interpreted by states according to their self-interests.
- Lack of Effective Sanctions
There is no fear of sanctions, which has resulted in laws being violated frequently by the states.
- Inability to Intervene
According to Article 2(7) of UNO Charter, UNO cannot interfere in the domestic matters of the states. It has been seen in such situations, international laws are ineffective and weak.
International law is a set of rules which are binding between countries and aims to ensure security and peace among various nations. The subject of a question under international law isn’t only the Nation/state but can be an individual also. Moreover, it has emerged through a number of sources which are codified in Article 38 of the ICJ statute, according to which, customs, treaties and general principles are considered to be the source of International Law. International law is there to maintain world order and peace, settle various disputes among different nations/states and individuals and to provide fundamental rights. However, there are still various shortcomings due to which international relations are suffering.
While the modern international system can be traced back to some 400 years, the basic concepts of international law can be discerned in political relationships thousands of years ago. Around 2100 BC, a solemn treaty was signed between the rulers of Lagash and Umma, the city-state situated in the area known to historians as Mesopotamia.
The treaty was inscribed on a block of stone which dealt with the establishment of a defined boundary which has to be respected by both sides. The next major instance of a binding international treaty was concluded over 1,000 years later between Rameses II of Egypt and the King of Hittites for the establishment of eternal peace and brotherhood.
The foundations of international law (or the law of nations) as it is understood today lie firmly in the development of western culture and political organisation. Treaty of Westphalia provides Public International Law, the structure and order, for developing it in terms of the present-day society.
Ideas revolving around natural Law formed the basis of philosophies given by the early theorists. Their theories and philosophies depicted the merging idea of Christian themes and Natural Law that occurred in the philosophy of St. Thomas Aquinas.
In the middle ages, two sets of international law, namely Lex Mercatoria (Law Merchant) and the Maritime Customary Law were developed to deal with problems that transcended international boundaries. With the revival of trade in the 10th century, merchants started to travel all throughout Europe in order to sell, buy and place orders for various goods. These commercial activities required the establishment of a common legal framework.
The Evolution of Modern International Law was done by a British historical lawyer, Maine. The evolving concepts of separate, sovereign and competing states marked the beginning of what is understood as international law. International law became geographically internationalised through the expansion of the European empires. It became less universal in conception and more, theoretically as well as practically, a reflection of European values.
A Dutch Scholar Hugo Grotius, born in 1583, has been celebrated as the father of International Law. His treatise De Jure Belli ac Pacis has been acknowledged as the most comprehensive and systematic treatise of positivists international law. It is extensive work and includes rather more devotion to the exposition of private law notions than what seems appropriate today.
One central doctrine in Grotius treatise was the acceptance of the law of nature as an independent source of the rule of law of nations apart from customs. His work was continually relied upon as a point of reference and authority in the decisions of courts and textbooks and later writings of standing.
The rise of international law mainly happened during the 19th Century with the rise of powerful states surrounding Europe. With the greater technological advancement and development of new warfare methods, it became necessary to regulate the behaviour of these states with the help of a legal framework. The International Committee of the Red Cross was founded in 1863 which helped to promote the series of Geneva Conventions beginning in 1864. These conventions dealt with the ‘humanisation’ of conflict.
The Hague Conferences of 1899 and 1907 helped in establishing the Permanent Court of Arbitration which dealt with the treatment of prisoners and the control of warfare. Numerous other conferences, conventions and congresses emphasised the expansion of the rules of international law and the close network of international relations. Due to the above actions the development of the law of war and international bodies that adjudicated international disputes occurred.
The Permanent Court of International Justice was established in 1921 after World War I and was succeeded in 1946 by the International Court of Justice. The United Nations founded the International Court of Justice which has now expanded the scope of International Law to include different aspects of the issues that affect a vast and complex area of international rules such as International Crime, Environment law, Nuclear law etc.
The ICJ was created as a judicial body to hear cases involving disputes between nation-states. It is made up of 15 judges, elected for nine-year terms. The judges are elected by the U.N. General Assembly and the Security Council, based on nominations made to the Secretary-General.
Scope of International Law
Interstate relations and their regulation
The International Law has state subjects. When civilized states came into existence then interrelation was natural. A mutual understanding and natural interrelation became necessary. They have framed their own rules, regulations, and treaties for further transactions. The rules and regulations are laid down categorically in these relations because it facilitates the amicable working of the functions between the states. The rules and regulations broadly provide opportunities for different programs to be carried out by different states. The customs followed by the countries have culminated into laws. The same path of evolution is taken by the International Criminal Law that has been codified. The wide variety of subject matter has been covered under International Criminal Law such as extradition treaty, refugees, human rights, and sustainable development.
A major development in the 19th and 20th century in International Law is the prominent position of the International Organisations. The operations of these organisations is on the global, regional, and sub-regional level. These organizations seek to achieve the objective of the welfare of people. These organizations are funded majorly by the developed countries and they are actively supporting the developing countries for the betterment of the lives of the people. These organizations have multi-dimensional areas of operations. These are the major International Organisations:
- World Bank– The World Bank provides economic support to the countries for different kinds of infrastructural development, and also the availability of basic facilities in the developing countries.
- International Monetary Fund– The IMF helps the countries to manage their balance of payments. The Sovereign Debt Restructuring Mechanism of IMF aims to preserve asset value and preserve the creditor’s rights and also paves the way with the “help agreement” for debtors to grow.
- World Trade Organisation– The WTO supervise and regulate International Trade. This is the largest economic organization in the world. It deals with trade of goods, services and intellectual property among the countries. It provides a framework for negotiation and dispute resolution to countries for efficient trade.
- European Union– The objective of the European Union is to promote scientific and technological development, promotion of the internal trade among the European Countries, and solidarity during the time of War.
- SAARC– The South Asian Association of Regional Corporation is created with the objective of securing peace, and regional harmony among the South Asian Nations. It currently has 8 members. It aims to achieve scientific and technological development.
- ASEAN– The Association of Southeast Asian Nations is a regional intergovernmental organization comprising 10 countries, which facilitates the economic, social, political, military, educational, and socio-cultural integration among its nation.
- SCO– The Shanghai Cooperation Organisation is the intergovernmental international organization that aims to promote effective cooperation in politics, trade, economy, technology, and culture. The joint efforts will be made to maintain peace and security in the region.
Issues of non-state entities and individuals
The non-state actors have played a significant role in maneuvering different important tasks that fall within the ambit of International Law. The non-state actor is a newly emerged concept in the recent past. They are struggling to get legal recognition under International Law. They are economically, financially, and strategically capable of doing things on the ground level. The traditional International Law has not allowed the activities of the non-state actors and also not predicted their existence, but with the sharp rise in the number of people who faced discrimination and oppression in the hands of sovereign governments or the ethnic cleansing of a race from a country, these factors led to the rise of these non-state actors.
According to one definition suggested by Andrew Caplan:
The non-state actors, generally understood as, including any entity that is not a state, often referred to as a terrorist group, religious group, civil society, and corporations.
One of the pivotal reasons for not endowing the NSA with legal powers and giving them legal recognition was that the states in traditional International Law were reluctant to share their powers. The second reason being, when the International law will legitimize the actions of the non-state actors then they also legitimize the unlawful actions of the non-state actors.
The strength of this argument depends upon the nature of the non-state actors it is concerned with. The Civil Society is one of those non-state actors that complained against, President of Congo, for violating human rights on the International Forum. The President was summoned and enquired about the same and the appropriate action was taken against him. The intent and objective of the non-state actors by their activities becomes apparent, and it helps to figure out whether they are helpful or not. There are instances where many multinational corporations, non-governmental organizations, and non-state actors have economic, financial and institutional power, and also can dominate the politics of a country, or change the political symmetry of a country. The regulation through checks and balances must be done to stop the arbitrary actions of these non-state actors. The non-state actors are both a boon and a bane for the emerging economies.
Negative role of the Non-State Actors
- The state where authoritarianism prevails understood that on the International Forum, the legal responsibility of the non-state actor is not recognized and so they won’t be held liable for any of their deeds. The state uses them as the fig leaves to evade any kind of accountability.
- This relationship between state and non-state actors is evident when the state turns callous of their acts. The state uses the non-state actors with their contacts and agencies. The non-state actors having the similar ideologies with the state help them in their elections and remove any kind of hindrances in their campaigning.
- In some cases, the state may not be able to manipulate the non-state actors, but the non-state actors have robust establishment, with institutional and financial dominance in the state. They abuse their position and there are incessant violations of human rights.
Positive Roles of the Non-State Actors
- In the present scenario, the non-state actors have played an active role in the fields of human rights and the protection of the environment. The organization with the sole objective of advocating human rights has ensured and uplifted the condition of poor people in many countries. The active role played by these organizations has helped the people with disabilities too, as one of these organizations participated in the drafting process of the UN Convention on Rights of Persons with Disabilities.
- The non-state actors are allowed to participate in the drafting of conventions on special legal issues. The most effective change brought by the non-state actors is in the field of environmental law. The development of concepts like Sustainable Development and environmental protection got prominence when the non-state actors started campaigning against environmental degradation.
- The Non-State Actor is concerned with the enforcement of International Law and its norms. The non-state actors and non-government organizations have a positive impact on the national legal systems as they are aware of the International Laws and the non-state actors are also taking part in formulation of plans, and also draft different types of rules and regulations for protection of different entities in the world.
- The non-state actors play a vital role in supervising the states following international norms and standards. They actively participate in supervising tasks. They also monitor the conduct of the state as to whether they follow the international norms and standards or not.
Role of the Individual in International Law
The individual has been considered as an entity in international law after many decades. The individual has the least participation in international law during the inception stage. The term individual has a wide legal connotation, it is not something limited to a person, it may be an entity, an enterprise or big business conglomerate. The term individual may be a legal person whose job is to secure the rights of people across the globe. The individual is the basis on which the entire international law works because the objective of international law is to protect the interest of the individuals. All the treaties, regulations and customs have benefitted the individual in many capacities. The objective of the International Law is to achieve global justice and resolve the dispute amicably, that ultimately helps individuals.
The development of many areas in the International Law such as International Human Rights Law with the objective to protect the interest of the individual. The end of World War II led to the establishment of the United Nations Organisation, after which the concept of International Law flourished and went on to cover many areas. The International Law under the head of International Refugee Laws, seeks to achieve the freedom and rights of the refugees from all countries. The United Nations had signed various conventions for the protection of the environment and sustainable development goals. The individuals also play an important role in international law in various capacities.
Can International Law be termed as a true law
There has been a lot of controversy regarding this question. Some answered the question in negative while others in the affirmative. Some feel that International Law lacks the element of certainty, stability and predictability.
Not a true law
John Austin, a leading English writer on Jurisprudence supports the view that International Law is not a law. As per him, International Law is a code of moral force and rules of conduct only. In his opinion, International Law does not have any sanction behind it and it doesn’t emanate from a law giving authority. He described International Law as the one consisting of positive International morality and opinions or sentiments which are followed by the nations as per their own wish. Hobbes and Pufendorff are also of the view that International Law is not a true law as the law is not truly invested with true legal force and it is not backed by the command of a superior.
Holland is of the view that International Law is extremely different from ordinary laws as it is not supported by the State’s authority. As per him, the private law is writ large. He describes International Law as the vanishing point of Jurisprudence. He is of the view that as International Law lacks sanction (which is the most important element of Municipal Law) it can not be kept in the category of true law.
A true Law
Hall And Lawrence consider International Law as true law. According to them, International Law is derived from custom and precedents which are a source of law and it is habitually treated like a certain kind of positive law.
Sir Frederick Pollock observed that for International Law to be binding upon the members, the only essential conditions are the existence of a political community and the recognition by its members of settled rules binding upon them in that capacity. International Law wholly satisfies these conditions.
Sources of International Law
International Law is comprehensive in nature and due to that it is an amalgamation of various sources, there exists no single system of laws which can interpret and extend the law but international law still exists and is ascertainable.
There are ‘sources’ available from which the rules of international law may be extracted and analyzed. According to Lawrence, if we take the source of law which has all the authority required to give it binding force, then in respect of International Law there is one source of law and that is the consent of Nations. This consent may be either tacit (custom) or express (treaties).
Major sources which form the conventional source of International law includes the International Convention and Treaties. Sources of International Law can be bifurcated into primary and secondary sources which are explained below.
Primary Sources of International Law are considered formal in nature. They come from official bodies which include Treaties, Customs and principle of Law. Article 38(1)(a-c) of the ICJ statute is widely recognized as the backbone of the formal source of International Law. It is generally regarded as an authoritative statement of the sources of international law. Article 38 of the Statute of the International Court of Justice in The Hague has been treated as a convenient catalogue of international legal sources.
Article 38 of the ICJ statute
Article 38(1)(a-c) of the ICJ was adopted by the same provision of the statute of the Permanent Court of International Justice which operated under the auspices/support of the Legal of Nations in 1920. The article refers to the primary sources of international law which are enumerated below:
Custom as a Source of International Law
The original and the oldest sources Law is known as Custom. The rules of customary International Law involved a long historical process which gained recognition by the entire community. The presence of customary rules can be deduced from state practice and behaviour because it is not a written source of law. A rule of customary law is said to have two elements:
First, there must be widespread and consistent State practice.
Secondly, there has to be “opinio Juris”, a Latin term which means a legal obligation to believe in the existence of such law.
Features of Customary Law
Uniform and general
State practice to give rise to binding rules of customary International Law, that practice must be uniform, consistent and general and must be coupled with a belief that the practice is obligatory rather than habitual. In the Asylum Case, the court declared that a customary rule must be used constantly and uniformly throughout history which can be traced through state practice.
Continuous and regular use of particular conduct is considered as a rule of customary law. In the North Sea Continental Shelf cases, the ICJ stated that there is no precise length of time during which the practice must exist. It is simply that it must be followed long enough to show that other requirements of custom are satisfactory.
An opinion of Law
To assume the status of customary international law the rule in question must be regarded by the state as binding in Law i.e. the states must regard themselves as being under a legal obligation to follow the practice. In the Lotus case,opinio Juris was seen as an essential element of customary international law and this was affirmed in North Sea Continental Shelf Cases as well.
Convention as a source of International Law
Treaties and conventions are one of the most important sources of International Law. These conventions can be multilateral or bilateral. Multilateral conventions relate to the treaties which formulate the universal or general application of the law. On the other hand, bilateral conventions are those which are formed exclusively by two states to deal with a particular matter concerning these states.
Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties, gives the definition, “A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.” Treaties act as a direct source of rights and obligations for the states, they codify the existing customary source of law.
They are voluntary and cannot bind non-signatory to it, however, there are certain exceptions to it that is if any rule forms part of the Jus Cogens norm as they are part of the accepted principles of International law and every state has a peremptory duty of not breaching them due to their erga omnes obligations. (owed to the whole world)
General Principle of International Law
Most modern jurists accept general principles of law as common to all national legal systems, insofar as they are applicable to the relations of States. There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of ‘the general principles of law recognized by civilized nations’ and was inserted into article 38 as a source of law.
Some of the examples of General principles include:
- The rule of res judicata which has been affirmed by the court in the case of Genocide Convention Bosnia and Herzegovina v. Serbia and Montenegro,
- The rules of pacta sunt servanda made applicable,
- Reparation must be made for damage caused by the fault,
- The right of self-defence for the individual against attack on his person, family, or community against a clear and present danger,
- For one’s own cause no one can be a judge and that the judge must hear both sides.
Secondary source (Evidence of International law)
Article 38(1)(d) forms part of the material source of International Law also known as the secondary source. It states that judicial decisions and the teachings of the most highly qualified publicists of the various nations also help in guiding the formation of international law, however they are not binding but merely advisory in nature.
Under this, the court is authorised to apply previous decisions of the court which are also known as an evidence of international law, however, it is subject to the exception stated under Article 59 of the statute which states that the previous decision of the court can only guide the court, it is not binding on the court.
This article provides the court with a rule that it is not to be bounded by precedents but recourse can still be made by the court to its past decision’s res judicata and advisory opinion to substantiate current case as authoritative evidence of legal position.
ICJ plays a major role in the law-making process through its advisory opinions, case laws and judge’s rule. One of the major examples of this includes the principle of the prohibition against the use or threat of use of force laid down by the court in the case of Nicaragua vs. USA which is now considered as a part of Customary International Law. T
The judicial decision of the court also encompasses international arbitral awards and the rulings of national courts. One leading example is Alabama Claims arbitration, which marked the opening of a new era in the peaceful settlement of international disputes, in which increasing use was made of judicial and arbitration methods in resolving conflict.
Another illustration of the impact of arbitral awards is the Island of Palmas case wherein it has been referred that a unanimous, or nearly unanimous, decision plays an important role in the progressive development of the law. It helps in providing a single view for interpretation of the issue at hand which helps in avoiding controversy during the development of International Law.
Juristic writings and teachings
Other major parts of this source also include the teachings of the highly qualified writers such as Gentili, Grotius, and Vattel who were considered as the supreme authorities of international law in the 16th to 18th Centuries.
Textbooks are used as a method of discovering what the law is on any particular point rather than as the source of actual rules, and the writings of even the most respected international lawyers cannot create law. These are considered as an evidentiary source of law as they provide an explanation and understanding of the International principles. They carry an essential value because they provide to fill the grey areas of International Law where treaties or customs do not exist.
Other sources of International Law
International law is not based on a set of rules and therefore article 38 is not exhaustive. There are various other factors that develop the usage of International Law which include declarations of Security Council resolutions, declarations, and recommendations adopted by the UN General Assembly, International morality and equity, etc.
The world is constantly evolving and the problems are becoming more complex, the resolutions and declarations adopted by assembly act as an inevitable impact upon the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding as to the law.
For example, in the case of the USA vs Nicaragua, the General Assembly had asked the court for an advisory opinion on the question: “is the threat or use of Nuclear weapons in any circumstances permitted under International Law?” The court after a review of the relevant international legal instrument as well as the Security Councils’ General Assembly resolution of the matters reached a resolution that the threat or use of nuclear weapons would generally be contrary to the rules of International Law applicable to armed conflicts and in particular the principles and rules of humanitarian law.
The concept of equity has been referred to in several cases. In the Rann of Kutch Arbitration between India and Pakistan in 1968, the Tribunal agreed that equity formed part of international law and that accordingly, the parties could rely on such principles in the presentation of their cases.
UN has provided a true compliment for the gap created in what is supposed to be an accurate reflection of other sources of international law and its activities has positively affected lawmaking ways by resolutions and faster means by 15 members of the Security Council and 191 members of the General Assembly as greater needs arise for fast development of international law codified by International law commission.
States and International Organisation
International Law is a system of rights and duties given to a legal system so that they can exercise them at a global level. There are different International bodies that are subject to possession of such rights under customary law and therefore also have the privilege for bringing any claim if there is a violation of their rights.
The determination of the personality of these bodies depends mainly upon the nature and extent of particular rights and duties. With the evolution of International law, it is necessary to determine the inter-relationship between these bodies and their capacity to enforce claims as per their rights and duties. These bodies may include states, international organizations, regional organizations, non-governmental organizations, and individuals.
States have international legal personality to the fullest extent. They constitute one of the most important international organizations as they form the primary centre for the collection of the social activities of civilization.
The doctrine of Recognition – Creation of Statehood
Recognition of the state is an International Concept wherein a new state or an existing state is given a formal acknowledgement of being a member of the International community. According to Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933 and Oppenheim, the entity of a state can be created if it possesses the following characteristics:
- Defined Territory
- Capacity to enter into a relationship with another state
However, there is no set pattern recognized so far which forms a particular base for the recognition of statehood as per the above criteria. Such provisions are neither exhaustive nor immutable. Recognition of a statehood grants certain privileges in the form of rights, duties, and immunities which include the authority to enter into a foreign relation with another state, became a part of a treaty, the right to undergo succession and become a member of the United Nations. There are two theories on recognition which are:
The theory was propounded by eminent jurists such as Fisher and Brierly, under this theory the independence of a new state does not take into account its acceptance by other states. The theory has been given in Article 3 of the Montevideo Convention where it recognizes the existence of a new state does not depend upon the mind of the existing state’s consent.
Oppenheim proposed this theory wherein it stated that for a state to be considered as an International entity, it is necessary for it to be recognized by other sovereign states so that it can enjoy its rights and duties. The theory does not propose the non-existence of a state rather it places an emphasis on acceptance by other states for a state to enjoy their exclusive rights.
When a state is recognized, there are two ways by which it can be declared which is:
Expressed Recognition is done through an official notification or declaration by an existing state recognising the presence of a newly formed state. This category usually recognizes a de jure form of recognition unless provided otherwise by the recognizing state in the declaration for considering it under any other form.
The action of an existing act done impliedly which indicates acceptance to a new act as an International person is considered as a form of Implied Recognition. There can be several implied actions for instance speeches, declarations etc. It depends on a case-by-case basis.
Recognition of a government
The criteria laid down for recognition of a government is different from that of recognition of a state. In case of a newly formed government, it is necessary to check the constitutionality of the government to ensure a valid recognition of the same. When a new state comes into existence it becomes necessary to check the structure of the new government to ensure international standards are being followed.
Following criteria needs to be checked for recognizing a newly formed government:
- Sufficient control and power by the government over its population.
- The capacity of the new government to fulfil its international obligations and duties.
There are various theories which have been accepted for recognizing the government but the most prominent amongst them is the so-called doctrine of legitimacy, it was initially used by the United States in relation to Central America, but the theory declined gradually.
Recognition practice as per the USA
In the USA only a recognized state can sue, there is a line of legal precedents on the practice of recognition by the USA, for instance in the Salimoff case the terms of the certificate tended to encourage the court to regard the Soviet government as a recognized government, on the other hand, in the case of the Market the tone of the executive’s statement on the Soviet Republic of Estonia was decidedly hostile to any notion of recognition or enforcement of its decrees.
In 1977, the United States declared that instead of focusing on the change in the government, they should try to establish the need for diplomatic relations and if the administration is willing to involve and conduct business with other governments.
Therefore, the US prefers to initiate diplomatic relations to recognize the government. It has been observed that the United States typically avoids taking the lead in recognition, waiting for the domestic politics to play out or for regional bodies like the Organization of American States to resolve the crisis before deciding whether to confer legitimacy on the new government. In the case of Honduras, for instance, the United States followed the lead of other Latin American countries in deeming Zelaya’s oysters illegitimate.
The International Community is an amalgamation of various voices and opinions, therefore with the growing need for international cooperation and to ensure peace in this community International Organization have emerged. An international organization has been defined as a form of co-operation of sovereign states based on multilateral international organizations and consisting of a relatively stable range of participants, the fundamental feature of which is the existence of permanent organs with definite competences and powers acting for the carrying out of common aims. The essential elements which describe International organization include:
- Multilateral International agreement
- Individual Personality of the Institution
- Permanent organs carrying out its Function
International Organizations are usually created amongst states or by their duly authorized representatives, however, there is no uniform rule on the same, states sometimes create legal entity based on a treaty though are there to enforce and uphold the principles of a treaty such as European Court of Human Rights but they are not considered as International Organisations.
An international organisation may come into existence by the formation of a treaty or through an existing organisation granting certain powers for forming an international organisation. UNICEF is an International organisation which was formed by the United Nations General Assembly.
Development of International organisation
The development of IO can be traced from the need for establishing the psychological notion of world government. It was only in the 19th-century major IO’s that emerged before that there were smaller councils like the Hanseatic League or the Swiss Confederation and the United Provinces of the Netherlands etc.
Embassies establishing bilateral needs were not sufficient and adequate to solve problems that arose between more than two states, there was a need to find a way so that interest of all the states can be represented so an International conference of all the representatives from several states was organized which came to be known as the principal originator IO namely Peace of Westphalia in 1648, which ended the thirty-year religious conflict of Central Europe and formally established the modern secular nation-state arrangement of European politics.
Till the first world war, the major issues were sought through conferences, for instance, in 1815 congress of Vienna marked the first systematic attempt to regulate international affairs by means of regular international conferences.
Due to several inconsistencies in the ad-hoc nature of these conferences, because they were only state-specific in nature and could only be called upon by the initiative of the interested states, international NGOs and public international unions like the International Committee of Red Cross and the inter-governmental associations emerged during the 19th Century for efficient functioning of vital arteries of communication such as the Rhine and Danube rivers.
With the continuous evolution of the society, it was noticed that an efficient body of IO can be established, and the League of Nations was the first international organization which was designed not just to organization operation between states in areas which some have referred to as ‘low politics’, such as transport and communication, or the more mundane aspects. However, after World War II, the league of the nation was disbanded due to its inefficiency and the United Nations was founded in 1919.
Relationship between International Law and Municipal Law
Law is the element of the society which helps to develop a framework within which rights and duties can be established. World order today requires a method whereby interstate relations could be conducted, and International law fills this gap.
The United Nations developed this body of International law for the purpose of promoting international peace and security. Countries come together to make binding rules that they believe benefit their citizens. International laws promote peace, justice, common interests and trade. States work together to strengthen International law because it plays an important role in society.
It is directly and strongly influenced, although not made, by the writings of jurists and publicists, instructions to diplomatic agents, by important conventions even when they are not ratified, and by arbitral awards.
Theories on the relationship between International law and Municipal law
The two principal theories of the relationship between International law and Municipal law are known as Monism and dualism. As per the beliefs of Monism, International law and state’s Municipal law are two components but complementary aspects of one single system. According to dualism, they are entirely distinct and different legal systems on their own. International law has an intrinsically different character from that of the state law, because in International law a large number of the State’s legal system are involved, the dualist theory is sometimes known as the pluralistic theory.
To know the relationship between International law and Municipal law, it is crucial to understand what these two laws actually are. The rules and regulations which deal with the conduct of states is known as International law. In order to simplify we can say, a set of principles which the states can invoke or apply while dealing with other states or international organizations. On similar grounds, it is also called “the law of the nations”. On the other hand, The Municipal law is known as the internal law of the land.
International law operates only at the International level and the Municipal law operates only on its local jurisdictional limits. However, the advocates of natural law believe that Municipal and International law form a single legal system, this approach is commonly known as Monism.
To have a better understanding of this topic it is crucial to understand what natural law is; natural law is something that exists in isolation with the positive law. As the name suggests, it is determined by nature, the law of nature is objective and universal in nature. From the time of inception, natural law is referred to analyze human nature to deduce moral behaviour from nature.
The argument from the side of a Monist is pretty simple, they believe Municipal law and International law if looked together is nothing but a single system. Modern writers who favor the monistic approach endeavors that a major portion of their views are based on a strictly scientific analysis of the Municipal structure of legal systems.
In a true monist country, there is no need for the translation of International law into Municipal law. Once the state gives assent to the treaty, it automatically gets incorporated in its municipal law. This act of giving assent to an International treaty or obligation will immediately incorporate international principles into states’s Municipal law, (this is inclusive of customary International law).
International law can be applied by a Municipal Court, and can be invoked by citizens, contingent on the fact that the international law is translated into the state’s Municipal law. A municipal court can declare a law as unconstitutional if it contradicts International principles.
In a true monist state, if a national law contradicts International law then it becomes null and void, no matter whether it is of constitutional nature or not. For example, a state gives assent to the Convention on the Rights of Persons with Disabilities, however, a few of its national laws are in contradiction with the conventions rights of the individuals who suffer from a disability. Then, a citizen of that country, who is not getting deprived of the rights conferred by the treaty, can ask the national courts to apply the treaty.
In a Monist State, the International law gets automatically accepted and the contradicting part automatically gets translated away the moment the State ratifies the treaty.
Kelsen: Grundnorm theory
For Kelsen, International and Municipal law is nothing but “manifestations of a single unit of law”. Kelsen’s belief in the supremacy of International law is the result of his “basic norm”, which states that: ‘states should behave as they customarily have behaved’.
International law is supreme in nature as it represents a legal order which is higher than Municipal laws, it is because the International law is derived from the state’s practice on the other hand the Municipal law gains its power from the state’s internal affairs.
Once it is accepted that International law is a system of rules of a legal character, it becomes impossible according to kelson to deny that the two systems constitute as a single system.
The theory of International law and Monism doesn’t have any halfway house. Kelson observed natural law and International law as a single and coherent system. According to him, International law is placed at the top of the pyramid (as per his grundnorm hypothesis).
Unlike Monists, dualists have stressed on the difference between International law and Municipal law and have argued for the adoption of International treaties in the Municipal law of the State. According to dualists, in absence of this adoption by the State the International law will not exist as a law.
The reason why dualists have this view is because they believe International law and Municipal law are two different aspects of law and it would be unreasonable to take the two as a unity. As per their belief, International law and Municipal law are two distinct and independent systems in itself.
In a dualist State, it is of utmost importance that International law has to be drafted in its Municipal law in order to give it an effect. Apart from drafting it is the duty of the state to omit those laws which contradicts the newly adopted International law.
If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating the treaty, then their act of non incorporation violates the International law. If the State has not incorporated the principles of a treaty as per its local laws which it has ratified earlier in the International sphere then, neither the citizens of that country can invoke the International laws nor the courts can give its decisions based on the principles of that treaty.
The United Kingdom is a country in which a dualist approach is dominant. International law becomes the national law in the UK only if it is translated.
Hersch Lauterpacht on Dualism
Judge Lauterpatch was an advocate of natural law, he accepted that International law observes the precepts of natural law.
For Lauterpacht, International law is more superior than municipal law, the rationale behind this view is because it offers the guarantee rights for the individuals notwithstanding anything from which state he belongs to. As per Lauterpacht the hierarchy of legal orders was:
- Natural law
- International law
- Municipal law
For him whether it is International law or Municipal law, it is the individual who is the definitive unit of all law. He answered a few fundamental questions of international law philosophy regarding the concept and origin of international law.
He Criticized the doctrine of Heinrich Triepel’s doctrine of international legal obligation, meanwhile agreeing with Kelsen that the binding force of law cannot be derived from the individual or common will of the states.
For Lauterpacht, the international law is for the states and not for governments. For him, the international community was a community of individuals, whose will is expressed by the states.
Triepel on dualism
Triepel treated the two systems of State law and International law as entirely distinct in nature. For him the International and Municipal law exist as two separated, distinct sets.
Triepel made following contentions on the relationship between International law and state law:
- Firstly he contended that International law and Municipal law differ in the particular social relations that they govern; State law deals with the individuals and International law regulates the relations between States.
- Secondly, he argues that their juridical origins are different; the source of Municipal law is the will of the State itself, the source of International law is the common will of States.
- There exist differences in: subjects, sources and content, also, it requires ‘transformation’ of International law into Municipal law to make International law binding on Municipal authorities.
Triepel accepted that the basic will of the States was the premise of the legitimacy of International law; he also pointed out that it is heavily relied upon the agreements between States, which not only includes treaties but custom too and the common will was the most important and inventive source of International law.
The problem of “lex posterior”
In a dualist country, International law must be translated into Municipal law, and the existing Municipal law which contradicts International law must be “translated away”. The international law must be translated into municipal law in order to conform to International law. However, the need for translation causes a problem with regard to Municipal laws which are developed after translation.
In a monist country, a law emerges after the International law has been accepted and if it contradicts the International law, it automatically becomes null and void. The International rule will continue to prevail.
In a dualist system, when the international law which is translated into a national law can be overridden by another national law on the principle of “lex posterior derogat legi priori“, which means: the later law replaces the earlier one.
This means that a dualist state willingly or unwillingly can violate international law. A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law.
Difference Monism theory and Dualist theory
- As per the advocates of natural law, Municipal law and International Law forms a single legal system.
- Monism is supported by the advocates of natural law.
- In Monism there exists no need for translation of International and Municipal law in order to give it an effect.
- In a true monisitc country if a national law contradicts International Law then it becomes null and void.
- If a monist state ratifies a treaty or a convention, and does not create a law explicitly incorporating the treaty then their act of non incorporation will not violate the International Law.
- In a monistic State International Law automatically gets embedded in the Municipal law and the contradicting part gets automatically translated away.
- Supporters of Monism: kelson.
- State which follows Monistic approach: germany.
- Municipal law and International Law are two different and distinct legal systems.
- It is supported by the advocates of positive law.
- In a dualist country there exists a need for translation of International and Municipal law in order to give it an effect.
- In a true dualistic country, if a national law contradicts International law then it becomes doesn’t becomes null and void, unless it is already translated in its municipal law
- If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating the treaty, then their act of non incorporation violates the International law.
- International law does not get automatically embedded in the Municipal law.
- Contradicting parts of the Municipal law has to be amended by the state, as it does not get automatically translated away in a dualist country.
- In the absence of translation of International law into Municipal law the International law will not exist as a law.
- Supporter: hersch lauterpatch, triepel.
- Country which follows: United kingdom.
Methods of Implementing Treaties
There are a few principle methods by which states implement treaties and some of them are; Adoption, Incorporation and Transformation.
As per the monist theory, if International law is adopted as Municipal law, then the treaty is automatically enforceable in Municipal law. However, some states need “translation” from the legislature for treaties to be enforceable and they are; France, Spain, Belgium, Netherlands, USA. Other countries like Germany and Italy require an order of execution prior to the ratification (pre legislative consent). It is usually called quasi-automatic incorporation, which authorizes the government to be committed towards the obligations of treaty and incorporating the treaty into the Municipal legal sphere.
Incorporation and Transformation
This theory is usually practiced by the dualist states. The theory of Incorporation involves enacting and implementing the legislation. International treaties have a higher status than that of the Municipal law (however not more than the Constitution).
The key difference between an incorporated treaty and an adopted treaty, is the form it takes in Municipal law. Thus adoption is heavily reliant on the attitude of municipal courts. On the same line of argument, incorporation and transformation which leads to enactment of legislation, is not necessarily without any barriers, as it is on the discretion of the court whether to apply the principles of treaty or not.
Judicial Discourse on Relationship Between International Law and Municipal Law
State of West Bengal v Kesoram Industries Ltd. & others
In this case, the Constitutional Bench of Supreme Court held that the Doctrine of Dualism is applicable in India and not the doctrine of Monism however if the municipal law isn’t limiting the extent of the statute, then, even if India is not a signatory to the treaty, the Supreme Court can Interpreted the Statute.
Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore v. Union of India and others
The High Court of Karnataka while deciding this case, defined the relationship between International Law and the Municipal Law held that, as the increasing relevance of International law on the global and municipal scenario, several unique and novel queries are starting to be raised regarding the relationship between the two. However the Hon’ble High Court held that Municipal Law & International Law are established on different sources and can make different systems go simply incompatible.
Monism and dualism are usually conceived as two opposing theories of the International law and Municipal law relationship. Monism and dualism are regarded by many modern scholars as having limited explanatory power as theories as they fail to capture how International law works within States.
Notwithstanding anything, Monism and dualism hold power as analytical tools. They go about as predictable beginning stages for examinations of the connection among International and Municipal law. Various late choices in Municipal courts have seen a few researchers find Monism and dualism as potential approaches to comprehend Municipal legal thinking on International law.
Recognition of States
Under International Law, recognition of a State can be defined as:
A state acknowledgment or acceptance as an international personality by the existing State of the international community. The declaration to fulfill certain essential conditions of Statehood as required by International Law.
Essentials of Recognition of a State
- Control should tend towards permanency.
If these conditions are fulfilled, then the State can be recognized.
Kelson’s view on the recognition of states
For a state to be recognized the following conditions must be fulfilled-
- Must be politically organised.
- Have control over definite territory.
- Must be permanent.
- Must be independent.
Process of Recognition
- State is not only an institution with international legal standing but they are the primary subjects of International Law and possess the greatest range of rights and obligations.
- Mixture of fact and law and the establishment of particular factual conditions and compliance with relevant rules are the process of creating new States.
- States are not bound to recognise new claimants of Statehood and make it a positive duty to recognize a State.
- Recognition is mainly a matter of intention.
In this dispute, India did not recognize Israel till 1999 and also South Africa till 1991 due to racism. Even though India got military support from Israel, still it didn’t recognise Israel. Where both the countries had all the parameters under Montevideo Convention. But Palestine got limited recognition by countries because they had large number of Zewish population.
In this dispute, 15 countries recognised Taiwan as a state all over the world. Taiwan was officially known as the Republic of China and is recognised by 19 member states of the UN. Other countries have business relations with Taiwan but they don’t recognise it as a state. Taiwan unofficially maintains diplomatic relations with 57 other members of the UN.
Political Recognition of State
- Political act in recognition is used to support or to reject a state or a government which is new in an international community.
- Mixture of fact and law and the establishment of particular factual conditions and compliance with relevant rules are the process of creating new States.
- Criteria of Statehood is laid down in the Montevideo Convention, which provides that the State must have a permanent population, a defined territory and a government and the capacity to conduct International relations.
- Recognition of State is a political act based on interest and assessment made by States individually, but legal arguments are important.
To consider a State as an international person, State should adhere to following qualifications-
- Permanent Population;
- Definite Territory;
- Capacity to enter into relations with other States.
Theories of Recognition
- Constructive Theory,
- Declarative Theory.
Constructive Theory of Recognition
- This theory is coined by Hegel and Oppemheim.
- According to this theory, the State is considered as an international person. This theory views that after the recognition a State gets its status of an International person and becomes a subject to International Law.
- This doesn’t mean that State doesn’t exist unless recognised, but in this theory State gets the exclusive rights and obligations and becomes a subject to International Law after its recognition by other existing States.
This theory is criticized by many of the jurists, few of them are-
- That except the State which is recognised by other existing States, rights, duties, and obligations of the Statehood community under International Law is not applicable to this theory.
- It also comes into confusion when a new State is recognised by some of the existing States and not recognised by other States.
Oppenheim’s View on Recognition of State
- A State is and will only be an international person if recognised as extraordinary. There is no agreement that countries have to give recognition to a State, there is no obligation on the countries, obligation lies under international law who will give recognition to a new State.
- Existing countries recognised a country as a member of the international community and believe that the State meets the requirements of international law outside the country.
Declarative Theory of Recognition
- Declarative Theory is coined by Hall Wagner and Fisher.
- This was developed in the 20th Century to address shortcomings of constitutive theory.
- Before the recognition of the State, a new State has the right to defend its integrity and independence under International Law.
- This theory is laid down under Article 3 of Montevideo Conference of 1933
- Followers of this theory consider this process of recognition as merely a formal existence of Statehood by other States.
This theory has also been criticized. It is criticized on the grounds that this theory cannot be applicable for recognition of the State.
When the essential characteristics are fulfilled by a State then it comes into existence. If international rights and obligations are exercised by the State then declarative theory applies. But when the State gets the legal rights of recognition then constructive theory applies.
Modes of Recognition
Recognition of a new State
Recognition specifies the willingness of recognizing State. Existing State is a member of the International Community who will deal with a new State.Under International law it allows the recognized State to exercise the rights and duties of the State. Recognition of the Government automatically involved in recognition of a new State.
Recognition of a new government
Through the medium of the government a State participates in the benefits of International Law largely. To recognise the government, recognising the State is important.
- Is there any opposition or not?
- Whether the new government has effective territory?
- Whether fulfilled the International Obligations?
Recognition of belligerency
Belligerency exists when a portion of the States territory and population is under the de facto control of the people who are fighting against the government to establish a separate State or to overthrow the existing government. A civil war may turn into a real war if the rebels are in possession of a substantial part of territory.
Recognition of belligerency was granted during most of the civil wars of the 19th Century, such as the American civil war and war during the Independence of the Twentieth Century.
Forms of Recognition
De Facto Recognition
- De Facto Recognition is mostly granted to governments.
- It is a temporary recognition of a State, this can be conditional or without any condition.
- This mode of recognition is granted when a new State holds a sufficient territory or control over a particular territory, but the other existing State consider that when they don’t have enough stability or any other unsettling issues. So we can take it as a test of control for newly formed States.
- The UK first recognized Soviet Government as de-facto recognition in 1921 and later recognised as de-jure in 1924.
De Jure Recognition
- De Jure Recognition is given to a new State when a new State fulfills all the essential characteristics of a State.
- De Jure recognition can directly be granted to a State who has or has not granted de-facto recognition.
- Newborn States grant the permanent status as a sovereign State through de-jure mode of recognition.
Difference between De Facto and De Jure Recognition
|De Facto Recognition||De jure Recognition|
|De Facto recognition is temporary and factual recognition.||De Jure recognition is a permanent and legal recognition.|
|De Facto recognition is granted to a State when it fulfills the essential conditions of the State.||De Jure recognition is granted to a State when all the essentials are fulfilled along with the permanent control of that essentials.|
|De Facto recognition is the primary step to grant De Jure recognition.||De Jure recognition can directly be granted without De Facto recognition.|
|De Facto recognition can easily be revoked.||De Jure recognition can never be revoked.|
|The States having De Facto recognition cannot enjoy diplomatic immunities.||The States having De Jure recognition can enjoy diplomatic immunities.|
|The States having De Facto recognition have only few rights and obligations against other States.||The States having De Jure recognition have absolute rights and obligations against other States.|
- When an existing State identifies a new State expressly by official declaration or notification, then it is considered to be a expressed form of recognition.
- Express recognition can be expressed through formal means such as sending or publishing a declaration or statement to the opposite party.
- It can also be expressed through personal messages from the head of State or from the minister of foreign affairs.
- When an existing State identifies a new State through any implied act then it is considered as implied recognition. There is no formal statement or declaration issued.
- The recognition through implied means may vary from case to case. The actions required for implied recognition must be ambiguous and there shouldn’t be any doubt in the intention of the State who recognises a new State.
- Some conditions are attached to the recognition of the State to obtain status as a sovereign State. The conditions attached may vary from State to State such as religious freedoms, the rule of law, democracy, human rights etc.
- The recognition of any State which is already associated with the essential conditions are needed to be fulfilled for the status of sovereign State, but when any additional condition is attached then it is Conditional Recognition.
- Jurists criticise conditional recognition. It was criticized on the grounds that recognition is a legal procedure and nothing additional can be attached unless the conditions are recognised by law.
Withdrawal of Recognition
Withdrawal of De Facto Recognition
- Under International Law, when a State has De Facto recognition but fails to obtain or fulfill the essential conditions then the recognition can be withdrawn.
- The recognition can be withdrawn through declaration or through communicating with the authorities of the recognised State. It can also be withdrawn by issuing a public Statement.
Withdrawal of De Jure Recognition
- Withdrawal of De Jure recognition is a debatable topic under International Law. Withdrawal of this recognition comes under as an exception.
- This recognition can be withdrawn when a State loses the essentials elements or other circumstances.
The recognition of the State is an essential procedure, so that the State can enjoy the rights and privileges as an independent community under International law. The recognition be it De Facto and De Jure, both provide rights, privileges and obligations.
When a state gets De Facto recognition, its rights, privileges and obligations are less but when De Jure is recognised by the State it gets absolute rights, liabilities and privileges. The recognition of the State has some political influence on the International Platform.
There are many situations where powerful States create difficulties in recognition of a newly formed State. This can be withdrawn when any State does not fulfill the conditions for being a sovereign State. De Jure and De Facto recognition may vary from case to case. De Jure recognition can be given directly to the State, there is no necessity of De Facto recognition even if De Facto is considered as the primary step to achieve De Jure recognition.
State succession refers to the merging of two or more States. It is different from government succession in the sense that in government succession there’s a change of government whereas in State succession the State loses control over its partial or whole territory. Art 2(1)(b) of the Vienna Convention on the succession of States in respect of treaties in 1978 defines the term State succession as ‘the replacement of one State by another in the responsibility for the international relations of territory’.
In essence, it deals with the succession of one state with another and the transfer of rights and obligations. This concept has assumed greater importance since World War II owing to its effects on the legal obligations of the States.
Circumstances of State Succession
State succession can arise in a number of defined circumstances, which mirror the ways in which political sovereignty may be acquired. They are:
- Decolonization of all or part of an existing territorial unit: This refers to situations where the nation partially or completely overcomes itself from the holding of a superior nation.
- The dismemberment of an existing State: This refers to a situation when the territory of the predecessor State becomes the territory of two or more new States who take over it.
- Secession: This refers to a situation where a part of the State decides to withdraw from the existing State.
- Annexation: This refers to a situation where a State takes possession of another State.
- Merger: This refers to the fusion of two or more free States into a single free State.
Types of State Succession
In each of these cases, a once-recognized entity disappears in whole or in part to be succeeded by some other authority, thus precipitating problems of transmission of rights and obligations. There are two types of State succession and they are discussed below:
This is also referred to as Total Succession. When the entire identity of the parent State is destroyed and the old territory takes up the identity of the successor State, it is known as Universal Succession. This can happen in cases of:
In certain cases of universal succession, the old State gets divided into multiple States. The dissolution of Czechoslovakia is an example of universal succession. The new States of the Czech Republic and Slovakia are both successor States.
Partial Succession occurs when a part of the territory of the State gets severed from the parent State. This severed part now becomes an independent State. This can occur when there is a civil war or a liberalization war. There are two important examples of partial succession.
- One is the separation of Pakistan from India.
- The other is the separation of Bangladesh from Pakistan.
The existing States continued with their legal obligations and duties while the new States got their own recognition and carried no rights or duties of the parent States.
Theories of State Succession
Universal Succession Theory
This is the oldest theory of succession propounded by Grotius, using the Roman analogy of succession on the death of any natural person. According to this theory, the rights and duties of the old State i.e., the predecessor State pass on to the new State i.e., the successor State upon succession without any exceptions and modifications.
In fact, there are two justifications behind this theory.
- First that the State and the Sovereign gain all their power from God and a mere change in Government shouldn’t cause any change in the powers.
- Second, it is permanent and nothing can cause it to secede.
The application of this theory can be seen in cases of fusion in the 20th century. The fusion of Syria and Egypt, Somali Land and Somalia, Tanganyika and Zanzibar are examples of this. However, this theory failed to get any attention from the majority of States from the world and has also been criticized by scholars from the world due to its Roman law analogy, a poor distinction between succession and internal change in governments, etc.
Popular Continuity Theory
The Popular Continuity Theory can be described as another version of the Universal Succession theory that was propounded by Fiore and Fradier following the unification of the German and Italian nationals. According to this theory, the State has a
- Political personality: It basically refers to the rights and obligations of the State towards the government.
- Social personality: lt basically refers to the territory and the population of the State.
Hence, upon succession, the political personality gets changed whereas the social personality remains intact. So, a State succession would not alter the rights and duties of the populace. However, this theory has not found its application in any country outside Europe and also has been criticised on the grounds that it functioned according to the municipal laws i.e, the local laws, which is why it was difficult to understand the effect of State succession using this theory.
Organic Substitution Theory
According to this theory, the rights and duties of the State continue even after succession by another State. Von Gierke had published a paper in 1882 regarding The execution of rights and obligations of a social body after its dissolution. It was from here that Max Huber derived his organic substitution theory. Huber drew the analogy that the problem of State succession was similar to that of dissolution of a social institution.
The factual element of the people and the territory have an organic bond i.e., the bond between the people and elements of State and upon succession by a new sovereign, the organic bond remains intact and only the juridical element changes. It offers a new explanation to the continuity of rights and duties i.e., the substitution of a successor State in the personality of its predecessor State. But, just like the other theories, this theory too has had no practical application and has been criticized for the same.
Self Abnegation Theory
This theory was propounded in 1900 by Jellinek and is another version of the universal theory of continuity. According to Jellinek, the successor State agrees to observe the rules of international law and performs the obligations towards other States created under them. Although, this theory considers that the performance of the international obligation is merely ‘moral duty’ of the successor State, but at the same time it gives the right to the other States, to insist upon the successor State to perform the existing obligation. If the successor State refuses to accept, the other States may even withhold its recognition or make the recognition conditional upon the acceptance of the predecessor’s commitment towards them.
This theory was developed during the mid-19th and early 20th centuries. After World War II, the jurists of the Soviet Nations started emphasizing on the right of self-determination and on giving complete freedom to the States to maintain their international relations. According to this theory, the successor State doesn’t absorb the personality of the predecessor State in its political and economic interests.
Upon succession, the new State is completely free of the obligations of the predecessor State. The successor State does not exercise its jurisdiction over the territory in virtue of a transfer of power from its predecessor but it has acquired the possibility of expanding its own sovereignty.
According to the Communist Theory of State Succession, a successor State is burdened by the economic and political commitments of the predecessor. Thus, this comes as something completely contrary to the Negative Theory of State Succession and unlike the Negative Theory, it doesn’t free the successor State from the obligations of the predecessor State.
The Successor State is bound to adhere to the commitments of the predecessor State. Political commitments involve peace, war and territorial treaties and agreements while economic commitments include any amount of money borrowed or lent. All these have to be fulfilled by the new State.The laws regarding State succession are still in a very nascent stage and keep evolving with the changing times. As seen above, along with the territorial and power transfers, there are transfers with regard to duties too. This section gives a brief idea about the transfer and non-transfer of political as well as non-political rights and duties.
Political Rights and Duties
- No succession takes place with regard to political rights and duties of the States.
- The peace treaties or the treaties of neutrality entered into by the previous State aren’t binding on the new State.
- But the only exception here is in case of human rights treaties since it would be desirable for the new State to adhere to such terms.
- Other than this, the new State would have to enter into new political treaties of its own.
Rights of Natives or Local Rights
- Unlike the political rights and duties, the local rights of the people do not secede with the succession of the States.
- These rights refer to the rights such as property rights, land rights or rights relating to railways, roads, water etc.
- In cases like these, the succeeding States are bound by the duties, obligations and rights of the extinct State.
Fiscal Debts (State or Public Debts)
- These refer to the financial obligations or debts of the predecessor State. The successor State is bound to pay back the debts of the predecessor State.
- This is because if the new State is enjoying the benefits of the loans, it becomes a moral obligation as well to pay back the money.
- Next, if there is a split in the State then the entire debt amount gets divided between the predecessor and successor State in accordance with the territory and population of each.
Effect of State Succession on Treaties
The law on State succession with regard to treaties has for a long time been dominated by two principles in general:
- One is the alleged principle of universal succession and
- The other is the tabula rasa approach i.e., clean State doctrine not granting State succession to treaties.
While the former principal keeps in mind the interests of third States regarding upholding or not upholding treaties, the latter favours a rather strict understanding of sovereignty i.e., functions only according to the interests of the successor and predecessor State. Neither of the two principles can, however, offer a practical solution for various scenarios where State succession takes place. Accordingly, under customary international law more nuanced solutions have been developed in the past or, at the least, are in the process of being formed. The Vienna Convention on State Succession provides that:
- In case of the border treaties, no such significant changes would be observed and the treaties would pass to the successor State.
- This is done keeping in mind the greater interests of the International Community. Similarly, other forms of local treaties related to land, territory, etc. would also pass on to the successor State upon succession.
- Treaties relating to Human Rights are passed on to the successors with all their rights, duties and obligations. In the case of treaties relating to peace or neutrality, no succession takes place.
Effect of State Succession on UN Membership
When Pakistan was separated from India, it claimed itself to be a member of the United States since India was a member of the UN. The then Secretary-General of the UN had then brought up the following:
- From the perspective of International Law, the circumstance is one in which part of the State breaks off from the original State.
- When Pakistan separated from India, there was no change in the status of India. India continued with all its treaties, rights and obligations.
- On the other hand, Pakistan didn’t have any of those rights or obligations and of course, had lost the UN Membership.
- In International Law, the situation is similar to the separation of the Irish Free State from Britain, and Belgium from the Netherlands. In these cases, the portion which separated was considered a new State, and the remaining portion continued as an existing State with all the rights and duties which it had before.
Thus, in the case of succession, the UN Membership doesn’t get transferred.
Law of treaties
Article 38(1) of the International Court of Justice’s statute identifies treaties as a source of law, along with general principles and customs. Treaties occupy a very eminent position in international law. They ensure friendly and peaceful relations of states with one another and are a means by which international organizations take form, regulate and monitor their affairs. The concept of the treaty has undergone significant changes over time. In earlier periods, treaties used to be oral and a ceremony would be held where the parties would conclude it and swear an oath to God, which used to act as the binding force of the treaty. Now, treaties must be written and are legally binding between its parties.
Drafted by the International Law Commission of the UN and taking force on 27 January 1980, the Vienna Convention on the Law of Treaties set out some fundamental rules as to how treaties are to operate and take form. More than half of the member states of the UN are a party to the Convention.
Concept of treaty
Treaty in common parlance may be defined as written agreements between parties, which may or may not be stated, to identify and follow a set of rules. They may also be referred to as pacts, agreements, charters, etc. Declarations and political statements are excluded from the scope of the definition of a treaty.
Treaties have been classified on the basis of many principles. On the basis of the object, they have been classified as political treaties (including alliances and disarmament treaties), constitutional and administrative treaties (e.g. WHO’s constitution, which is responsible for setting up the international body and to regulate it affairs), commercial treaties (trade and fishery agreements), criminal treaties (which define certain international crimes and may require the offender to be extradited), treaties codifying international law, and treaties for ensuring civil justice.
A country that hasn’t signed the treaty has no obligation to follow its norms. However, like the ICJ had stated in the North Continental Shelf Cases, that some treaties may give rise to international conduct, customs and be of a “fundamentally norm-creating character.” Article 26 of the Vienna Convention on the Law of Treaties deals with the Latin maxim “pacta sunt servanda”, i.e. every signatory is to follow the treaty in good faith and is binding upon them. This forms the basis of every international agreement.
“Reservations” are the way in which a signatory may escape having to follow all the provisions of the treaty and is a tactic used to become a party by agreeing to the basic principles of a treaty. However, reservations can only be made in cases where such reservation is not contrary to the object of the treaty.
Interpretation of a treaty should be bona fide and the object and purpose of the treaty needs to be kept in mind while doing so. In case the text is vague, “travaux preparatoires” and other supplementary means of interpretation might be used. One such method of interpretation of a treaty is adopting a broader-purpose approach. Contrastingly, a purpose-oriented approach is adopted in cases where the treaty in question to be interpreted is the constitutional document of an international organization.
Kinds of treaty
Law Making treaties
The term “law-making” treaty seems to be confusing, as it raises the question- Can treaties create law? This term actually refers to the content and the subject matter of a treaty, which instead of being contractual shall be statutory. The emergence of a subsisting need of international legal order sparked a newfound interest in this type of treaty. The need of bringing rules which had statutory force was felt rather than the existing rules which governed voluntary legal relations between states. In cases of law-making treaties, the obligations are independent; they don’t require a subsequent fulfilment of rules by other parties to it. These obligations have binding force and the parties to these treaties must follow it. Unlike contracts, treaties have the power to make new international tribunals, international waterways, mandates, etc.
These are multilateral treaties which stand for a common cause. A commentary by Fitzmaurice takes human rights treaties and maritime regimes as law-making treaties. In the case of a multilateral treaty, this type of treaty can be broken down and thought of as a number of bilateral treaties, each of which are independent of one another and have to follow the obligations inherently. As for bilateral treaties, they can simply be viewed as dependent on each other as existence. Here, each party does not join to provide another party something it might require, but rather to stand for a mutual cause or support a rule binding on all.
They are usually applicable to treaties having a small number of parties and are most commonly seen in bilateral treaties. These are treaties where parties are mutually dependent on each other for specific treatment to gain benefits, and have rights and obligations towards each other. In reality, treaties need to take care of both the statutory as well as the contractual function. The scope of treaties is mostly perceived in a contractual framework. Unlike law-making treaties, which sets out rules for conduct, rights, and duties between parties which have to take effect on the conclusion of the treaty, contractual treaties are usually limited to, say, exchange of goods which one state might not possess and require, or conveyances. Here, one party agrees to provide the other party something it needs for something else in return, thereby forming a system like barter.
Types of treaty
Treaties involving two entities are bilateral treaties. It is not necessary that the treaty can only have 2 parties; there may be more than two parties, however, there should be only two states involved. For example, the bilateral treaties between Switzerland and the European Union(EU) have 17 parties, which are divided into two parts, the Swiss and the EU and its member states. It is important to note that by virtue of this treaty, obligations, and rights arise between the two entities to it, i.e. the EU and the Swiss. This treaty does not give rise to obligations between the EU and its member states.
Treaties between three countries or more are multilateral treaties. They might be international or domestic. They give rise to rights and obligations among all the parties, i.e. each signatory has obligations towards all the other signatories.
Treaties with a higher number of participating states gain more international significance since it reflects the importance of the treaty. However, there have been many crucial bilateral treaties too, such as those emerging from Strategic Arms Limitation Talks. All treaties have different purposes. Some set up international organizations through the UN Charter of 1945, whereas others deal with issues such as visa regulations.
The binding force of Treaties
Vienna Convention on the Law of Treaties,1969
The International Law Commission of the United Nations drafted the Vienna Convention on the Law of Treaties, which was adopted on May 23, 1969. Entering into force on January 27, 1980, it is an international agreement between the states to govern and regulate treaties.
The treaty is limited to and encompasses written treaties only. Divided into many parts, the first part sets out the object, terms, and scope of the agreement, and the second part lays down rules for adoption, ratification, the conclusion of the treaties. The third part deals with the interpretation of treaties. The fourth part talks about the modification of treaties, and lastly, the fifth part delves into withdrawal, suspension, termination, and invalidation of a treaty. It also includes a necessary clause which gives the International Court of Justice jurisdiction over any possible disputes. The final parts discuss rules for ratification and effects on treaties due to change in government.
The document has not been ratified by the US, however, it follows its provisions usually. Till 1979, all the 35 member states of the UN had ratified the treaty.
As per the Latin maxim “pacta sunt servanda”, or as mentioned under Article 26 of the Convention, all treaties are binding on its signatories and shall be followed bona fide. The binding nature which this treaty serves to all other treaties is a reason why the US isn’t a part of it. There exists a tussle between Congress and the Executive branch, over who has the authority to validate a withdrawal from treaties on behalf of the country. Since treaties are binding, there is too much at stake between the two organs of the US government.
Article 1 of the said Convention says that it is applicable to treaties between the states. It is also applicable to treaties entered into by international organizations. The Convention defines “treaty” as a written agreement between states which may be embodied in one or more than one instrument and is governed by International law. Article 2 further defines “ratification”, “approval”, “reservation”, etc. in the context of the treaty. It is important to note that none of the provisions of the said Convention are applicable to written agreements between an international body and a state, or between 2 subjects of international law. Article 3 thereby reiterates the scope of the Convention and states that if such an agreement has been entered, its legality would not be affected. The parties to such agreements do not have to follow the rules of the Convention either, however, they should ensure that the rules they follow to govern the treaty are acceptable in the eyes of international law. Such agreements shall also not have any effect on the relations between the States.
Role of treaties in International Law
Treaties form the basis of international law. They maintain stability and diplomatic relations between the States. They are thus the most important elements to guarantee international cooperation, peace, and security. This is one of the reasons why treaties are regarded as the fundamental source of international law. The preamble of the Vienna Convention on the Law of Treaties accords to treaties with the eminent position they hold in ensuring international order and emphasizes their existence as a continuum.
Treaties go as back into the past as one can remember. Perhaps, one of the first treaties ever known was the one created by rulers of Hittite with Ramesses II, who was the King of Egypt. The treaty between Kings of Elba and Ashur is the oldest treaty preserved in full text. It is said to be concluded in the third century BC. In earlier times, there was no concept of State and there was the existence of many sovereigns. At that time, treaties weren’t only between different states but also between officials of different ranks, or between other authorities. Swearing to God was what acted as the binding force at that time. As time passed by, the way in which treaties were concluded gradually became more streamlined and sophisticated. Treaties started taking the written form rather than being oral as in the earlier times. Treaties that dealt with subjects of peace and alliance began dominating and could now be given the force of a statute, for example, the Stadium in favorem principum. As the world started settling as states, treaties began gaining prominence. The creation of the international organizations gave treaties new-found importance. Then came the Law of Treaties which set into permanence and recorded treaties as being a source of international law.
Parties to a treaty
There are two types of parties to a treaty- state parties and third States. A state party has ratified and signed the treaty and is legally bound to follow it. “Third state” has been defined as a state which is not a party to the treaty.
Article 34 of the Convention says that a third State shall be free from any rights or obligations to a treaty. In case of treaties having a provision to extend obligations to a third State, such provision must have obtained the express consent of that third State for it to apply to them. Provided that the third state gives its consent, if the parties to a treaty wish to confer rights upon a third state/ group of states to which it belongs/all states, a right shall arise for the third state. This is mentioned in Article 36 of the Convention. A state which shall exercise this right conferred on it by the treaty must follow the directions and conditions as mentioned in it too. Article 37 deals with revocation/alteration of rights and obligations of third states and says that unless otherwise agreed, the obligation on the third State by virtue of Article 35 may be revoked/altered if express consent of parties to the treaty and the third state has been obtained. However, in case of a right conferred by Article 36, the same may not be revoked/altered by the parties if it was pre-decided that such right shall not be revocable/open to alteration without the consent of the third State. Lastly, by virtue of the customary rule of international law, rules of a treaty become binding even on third States.
Formation of a treaty
There is no concrete way of creating a treaty. It may be presented in different forms such as a contract or an exchange of notes, as seen in the Rush-Bagot Agreement between Great Britain and the U.S. for mutual disarmament on the Great Lakes. Most treaties, however, follow a similar structure. Every treaty begins by introducing its preamble, which states the object of the treaties and the parties to it. It is then followed by what the parties agreed upon. A statement of the period may or may not follow; it depends on the time period for which the treaty shall exist. Next up, reservations and then ratification clauses follow. Then, it ends with the signatures of the parties involved along with the date and venue of ratification.
Additional articles may be further attached along with the declaration that they are equal in value as to other clauses. Going by the Law of Treaty, the following steps form the essentials of formation of a treaty-
- Adoption of the text
Consent of all parties to a treaty is essential for adopting a text. If the treaty is being adopted at an international conference, a two-thirds majority shall be required for the adoption of text unless agreed upon otherwise.
- Authentication of the text
As per the procedure mentioned in the text, a treaty shall be established to be authentic. On the failure of such procedure, signatures or initials of representatives of the participating states may be sufficient to deem the text to be definitive.
- Expression of consent
This may be by way of signatures, ratification, acceptance, approval or accession or by exchanging instruments required for the treaty.
- Consent by signature
Provided that the treaty explicitly states that signature by the representative of a state shall be sufficient to be declared as a party, or the negotiating states have mutually consented to signature be sufficient, the representative’s signature expresses a state’s full intention to enter into a treaty.
- Consent by exchange of instruments required by the treaty
If the states agree that exchange shall be equivalent to the expression of the consent to enter into the treaty, then so shall be the case.
- Consent by ratification, acceptance or approval
If the negotiating states are of the opinion that ratification shall be equivalent to expressing consent, or the treaty provides for ratification, then it shall be an acceptable way of obtaining consent to the treaty. Similarly, the same condition applies to consent expressed by approval or acceptance.
- Consent expressed by accession
Consent to the treaty shall be obtained If the treaty provides for it or the negotiating states agree upon accession.
- Formulation of reservations
A state may while concluding the treaty expresses its reservations unless it’s prohibited by the treaty, or if permitted shall violate with the object and intent of the treaty.
Invalidity of treaty
Part V of the Vienna Convention on The Law of Treaties, 1969, particularly Section 2 deals with the invalidity of treaties. Articles 46-53 set out the ways to invalidate a treaty, i.e. make them void and unenforceable under international law. There are several reasons as to why an internationally binding treaty may be declared as invalid. One of the reasons for invalidity is that they might be riddled with problems ever since the time of formation. Content of the treaties and the mode by which consent is obtained are the two grounds on which treaties may be invalidated.
It is important to note that invalidation is different from withdrawal and termination; the former involves invalidation of consent right from the start, while the latter involves future alteration in consent to be a signatory.
Ultra Vires treaties
Article 46 of The Law of Treaties talks about the willingness of a state to invalidate and conclude the treaty on the ground that it goes against its internal law. No State shall invoke such a fact. However, exceptionally, such fact may be invoked if the violation was manifest and of fundamental importance to the State’s internal law.
The Law of Treaties in its preamble clearly regards treaties as a source of international law. This has two meanings- one, no matter if an act is approved by the internal law, it will not assume legality if it is condemned under international law, and two, in case of conflict between internal and international law, international law shall prevail.
Article 48 talks about invalidation on grounds of the presence of errors in a treaty. It is important to note that errors with respect to the wording of the text do not invalidate the treaty. If the error is to a substantial fact, i.e. one that was believed to be in existence at the time of signing the treaty and formed the basis for which the treaty was signed, such an error may be provoked by the state, provided that such state has not, by its own conduct, contributed towards the error.
Fraud and Corruption
If a state has become a signatory to a treaty due to fraudulent act or conduct of another state who is also a signatory to the treaty, such a state may invoke invalidating the treaty on grounds of consent being obtained by fraud.
If a negotiating state, by corrupting the representatives of another state directly or indirectly, has induced such a state’s consent into entering a treaty, the state may invoke invalidating its consent to be bound by the treaty.
Consent shall also be invalidated if it is obtained by coercing the representative of a state, or by threatening the use of force against a state.
Conflict with Jus cogens
Treaties that are in conflict with jus cogens, or “peremptory norm of general international law” such as piracy, genocide, apartheid, torture, etc are void.
Termination of treaty
Obligations in international law arise from the consent of the state. This is why treaties are mostly non-binding in nature, and they expressly allow a party to withdraw. For example, the Single Convention on Narcotic Drugs says that the treaty shall be terminated if the total number of signatories falls below 40.
Article 56 deals with withdrawal from treaties without a termination/denunciation/withdrawal clause. According to this article, such a treaty shall not be denounced unless:
–The intention of the parties as to the possibility of withdrawal was established.
–A right of denunciation was implied in the treaty.
It must be brought to notice that not all treaties can be withdrawn from; it depends on the terms of the treaty. For example, when North Korea declared its intention to withdraw itself from the International Covenant on Civil and Political Rights, the United Nations Secretary-General held that the parties there was a reason why the treaty did not provide for a withdrawal cause and it wasn’t put in the treaty on purpose. North Korea wasn’t allowed to withdraw.
If one party withdraws from a bilateral treaty, the treaty ceases to exist. When one party withdraws from a multilateral treaty, there is no effect on the treaty, only such a state’s obligations as per the treaty end.
One instance where Article 46 of the Law of Treaties was invoked was the treaty between Israel and the United States for the withdrawal of Israel from the Sinai peninsula. The US promised to provide supply as well as defense equipment in return. However, the treaty was signed without taking the consent of the US Senate, and it was contested that the treaty was thus void as per domestic law. Moreover, since this violated the U.S. Constitution, the treaty was invalid on international grounds too.
Suspension and Termination
Implied by the conclusion of a later treaty-
On account of drafting a later treaty dealing with the same subject matter as its previous version, the previous counterpart shall be deemed to be terminated, provided that the parties intend to be governed by the new treaty or the provisions of both the treaties are so incompatible with each other that both the treaties cannot be applicable at the same time. The previous treaty will be terminated if it’s the implied or established intention of the signatories.
As a consequence of its breach
There are different consequences for different kinds of treaties. If the treaty is bilateral and one of the parties has caused a material breach of the treaty, then the other may use it to bring the treaty to an end. If the treaty is multilateral, then default by one of the parties entitles the other parties to terminate/suspend such treaty, wholly or partly by unanimous consent. Material breach, as explicitly mentioned in Section 61 consists in the violation of a provision of the treaty which is of the essence to it and forsaking the treaty.
Impossibility of performance
The impossibility of fulfilling conditions as per the treaty is considered sufficient ground for the suspension/ termination of a treaty. If the impossibility is permanent, i.e. the devastation makes execution of the treaty impossible, the treaty may be terminated. However, if the impossibility is temporary, the treaty may be suspended for the required duration.
However, if the impossibility of performance is due to the conduct and action of one the parties, i.e. due to violation of a provision of the treaty or violation of any international obligations, the treaty may not be terminated/ suspended.
Fundamental change of circumstances
Unforeseen changes which fundamentally affect the treaty may be sufficient to invoke termination/ revocation of the treaty, provided that the changes are “fundamental” i.e. initial existence of the circumstances may affect the consent of parties to the treaty and that as a result, the obligations to be performed under the treaty have been changed and transformed radically.
If the change is due to breach of treaty or any international obligations by one of the parties to the treaty, then this article would not be invokable.
Rift of diplomatic or consular relations
Provided that the treaty demands the existence of hostile and diplomatic relations between its parties, disturbance or severance of such relations shall have no effect on the treaty since it doesn’t really affect the legal relationship among the parties.
Emergence of new jus cogens
If a new jus cogens or peremptory norm of general international law emerges after worldwide assent to it, any treaty in violation of it shall be deemed to be terminated.
The Vienna Convention on the Law of Treaties lays down basic and fundamental principles to govern treaties. The main principle on which the Convention operates is “pacta sunt servanda”, i.e. all treaties must be followed in good force. It provides for various provisions such as ratification, reservation, approval, conclusion, withdrawal, invalidation, termination of a treaty, etc. The Convention is legally binding on its parties.
Settlement of Disputes in International Law
Treaties play an important role as the source of international law and occupy a colossal pedestal in this field. There are binding as well as non-binding procedures available within the international order for the peaceful resolution of disputes and conflicts. Basically the techniques of conflict management fall into two categories- diplomatic procedures and adjudication. This article also talks about the landmark case of Kulbhushan Jadav, the peaceful settlement of the Farakka Barrage gunfire issue, the role of International court of Justice and the Naulilaa case. These cases along with other examples have been added for a better understanding of the topic.
Legal and Political Disputes
In order to understand the process of settlement of disputes in the International substructure, there is a prima facie need to understand the meaning of ‘disputes.’ The dispute has a wide range of interpretation and hence it becomes to give a precise definition of the same. In a rudimentary stage, it means a disagreement between two persons, on either a point of law or fact. The prerequisite of having a dispute is that the parties involved must show opposing views.
There are two grounds on which a disagreement can arise between two parties; political or legal. The distinction between the two is purely subjective. It is primarily the attitude of the states that decide whether a dispute is a legal or a political one. Owing to the involvement of the states, it becomes difficult to distinguish the two. For a dispute to be regarded as a legal one, States must desire to settle it on the basis of law, or else it becomes a political dispute.
However, the distinction between the two becomes extremely important because the procedure for settlement of disputes as laid down in International Law deals only with the legal disputes. In Nicaragua v. Honduras, a case concerning Border and Transborder Armed Action, the court clearly stated that it is only concerned with the legal aspects of disputes. If a case so arises involving both political and legal aspects, the court cannot concern itself merely with the political aspect. In an advisory opinion given in the Legality of the Threat or Use of Nuclear Weapons that the presence of a political aspect along with the legal aspect does not deprive the case of its a legal question. However, when a question arises whether the disputes of the State are legal or not, then such a question is solved in accordance with Article 36, para 6 of the Statue, that says the matter shall be settled by the decision of the court. Therefore in International Law ‘dispute’ must be taken in a restricted sense as it does not concern all forms of disputes but only legal disputes. In International Law, there have been two methods devised for settling legal disputes- amicable or pacific means of settlement, and coercive or compulsive means of settlement.
Amicable Means (Pacific Means)
Historically International Law has been regarded as an international community to ensure the establishment and preservation of global peace and security. The basic objective of the creation of the League of Nations, 1919 and the United Nations 1945 has been the maintenance of international peace and security. Various multilateral treaties have been concluded that aim for the peaceful settlement of disputes. One of the most important ones is the Hague Convention,1899 for the Peaceful Settlement of disputes. Article 2 para 3 of the UN Charter provides that all international disputes must be settled by the member by peaceful means while maintaining international peace, security, and ensuring justice is not endangered. The Charter under Article 33, Para 1 enumerates a number of means for the peaceful settlement of disputes. Negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies are among the few choices they have. The various peaceful methods of settlement can be broadly divided into two categories- extra-judicial and judicial method of settlement.
Extra-Judicial Peaceful Means
In the extra-judicial settlement, a dispute is settled by means of an agreement between the disputant parties. This method is also known as the political means or diplomatic measures.
This is regarded as the oldest and the simplest form of settling disputes. When the disputant parties settle the dispute themselves by discussion or by adjusting the disagreement, the process is called a negotiation. The dictionary meaning of negotiation defines it as a discussion aimed at reaching an agreement. Hence in a case of disagreement, the method of negotiation can be used to reach a state of peaceful agreement. This process of negotiation may be carried out by the Heads of the State, or by their representatives or by diplomatic agents. But the success of this method depends largely upon the degree of acceptability of claims of one party by the other. However, it has certain weaknesses too. On various occasions, it has been seen that it becomes difficult to come to a consensus. Another striking fact is that when the disputant States are unequal, the ‘small state’ has to abide by the decisions of the ‘big state’. India and Sri Lanka had settled their boundary dispute in the year 1974 by the negotiation method. In 1976, India and Pakistan settled their pending boundary disputes in the Simla Conference through the negotiation method. The Farakka Barrage gunfire issue, between India and Bangladesh, was also settled with this method.
Good offices and Mediation
Mediation and Good offices come into picture when parties are not willing to go for the negotiation method or they fail to reach a state of settlement through a healthy negotiation. A third person assists them in resolving their legal matters. Such a third person may either be appointed by the parties themselves or by the Security Council. There have been many instances where the appointment has been made by the Security Council. McNaughton in 1949, in 1950 Dixon, in 1951 Graham, in 1957 Jarring were a few. It is also important to note that the third party is under no obligation to accept such appointments. The good offices by Robert Menzie- the PM of Australia- were rejected by India for the settlement of the Kashmir issue. The views of the third party acquire the character of ‘advice’ and they by no means have a binding force. There are two ways of settling a dispute by the third party: mediation and good offices.
The third-party involved is known as the mediator. The mediator is always expected to be just and impartial. In the process of mediation, the mediator participates in the discussion, gives his views and suggestions in resolving the dispute. The mediator is usually known to settle the disputes as he may even help in signing the treaty embodying the settlement that is reached.
A famous example of mediation is when the Soviet Premier Kosygin settled the dispute between India and Pakistan by signing the Tashkent Agreement in 1966.
Where in mediation, the mediator is required to be present in the process, Good offices is basically the act through which the third party either arranges for a meeting between the disputant parties or he acts, in ways through which a peaceful settlement can be reached. It is important to note here that the third party is not directly involved in this process. When the parties have failed to come to terms through negotiation, it is the third party that provides for their good offices for the peaceful settlement of disputes. Once the disputant parties are brought under one roof the third party has no active role to play. Although Para 1 of Article 33 does not refer to good offices as a means of settlement of dispute but it may not be read in an exhaustive manner.
The Prime Minister of the United Kingdom, James Harold Wilson, had lent his good offices to India and Pakistan to reach an agreement in reference to the Kutch issue. In 1947, there was a dispute between the Republic of Indonesia and the Netherlands, wherein the Security Council rendered its good offices.
The process where a Commission or a Committee is appointed and the dispute is referred to them and it is required by them to find out about the facts and then to write a report for the settlement of the dispute, is called conciliation. Here an effort is made for a peaceful compromise, to sign an agreement but important to note that the proposals made by the commission are never binding on the parties to the dispute. This method is unique in its own way and completely differs from mediation, inquiry or arbitration. Here, proposals are made for the settlement after finding facts about the dispute but in mediation, the third party is part of the meetings with the parties in dispute. Also, it is not for the mediator to ascertain facts about the case, like in conciliation. Such commissions or committees that provide for conciliation may either be permanent or ad hoc in nature. The idea of the Conciliation Commission was born in 1899 and 1907 Hague Conventions for the Pacific Settlement of Disputes. Several treaties after the end of the First World War were made through the Conciliation Commission. The General Assembly under Article 10 and 14 and the Security Council under Article 34 has the power to appoint a commission to settle disputes.
Among the various treaties that have been signed through the Conciliation Commission the most important ones are:
- Pacific Settlement (1948)
- Pact of Bogota (1948)
- The Vienna Convention on Protection of the Ozone layer.
Earlier the Secretary-General was required to present the list of persons nominated by the member states for the inclusion in the panel for conciliation. The States, however, did not show an encouraging or positive. So, at present, the process of conciliation is mainly utilized by the States. In 1952, the Belgo-Danish Commission and the 1956 Greco-Italian Conciliation Commission were the key examples of the appointment of a conciliation commission for the settlement of disputes with reference to International Law.
One of the most common obstacles that prevent the successful settlement of disputes in International Law is the ascertainment of the facts, as it has been observed for the years that different views are put forward by the disputant parties. A majority of International disputes get stuck because of the unwillingness and inability of the parties to agree to the facts.
The dictionary meaning of the term ‘inquiry’ suggests that it is an act of asking for information. Similarly, for the settlement of disputes in International Law, a Commission is to be appointed, consisting of honest and impartial investigators, so that they can verify the facts of the issue. The sole function of the Commission is known to be the ascertainment of issues. This procedure for the settlement of international disputes was born at the Hague Conference 1899. It was said that the States who were not willing to end their disputes by agreement might use the process of inquiry.
It consisted of a ‘special agreement’ between the parties in dispute. The ‘special agreement’ was truly special as it enjoyed a wide range of powers, ranging from examination of the facts, mode of investigation and examination, the time frame for the formation of a Commission, the place where the Commission will sit, the language that is to be used. And the extent of the powers of the Commission. Article 11 states that Hague was chosen to be the place where the Commission would sit if the ‘special agreement’ chose to remain silent on the place of the meeting.
Towards the end of the First World War, the trend for settling International disputes was seen to shift to the process of Conciliation. States chose to invoke Conciliation rather than to sit for inquiry. In 1967, a United Nations Register of Experts was established by the General Assembly. Its function was primarily fact-finding, wherein the names of the persons whose services could be used by the States were mentioned in accordance with the fact-finding for the agreement required for the peaceful settlement of the dispute.
By the United Nations
Peaceful means of settlement of disputes is one of the principles of the United Nations provided under para 3 of Article 2 of the Charter. The General Assembly and Security Council are the two organs of the United Nations that have been empowered to discharge functions regarding the same.
Despite the fact that the Assembly has not been empowered to settle the disputes using any specific means, it holds a wide range of powers to discuss the same under Article 11 para 2 and may make recommendations under Article 14 to the parties in dispute which may help them to arrive at peaceful and friendly conclusions. Thus, in simpler words, it can be said that the Assembly holds the ‘general’ power for the peaceful settlement of international disputes.
There have been various instances where the Assembly has suggested for the peaceful settlement of disputes. In 1974, the Assembly called upon the Member States to make full use and seek improved implementation provided for in the Charter of the United Nations for the exclusively peaceful settlement of any dispute or any situation.
In 1982, the Committee successfully drafted a declaration that was to be adopted by the assembly. The same declaration was known as the Manila Declaration. The declaration mentioned that the States shall seek any peaceful way of settlement of a dispute in good faith and a spirit of cooperation. It also mentioned that the States had absolute liberty to make full use of the United Nations.
Declaration on Prevention and Removal of dispute
This declaration was drafted by the special committee, which was said to threaten International Peace and Security. This declaration is said to have been approved by the Assembly in the same year. Some of the important provisions of the declaration are as follows:
- Foreign Ministers level meetings to be held sometimes by the Security Council.
- The appointment of a Secretary-General as a rapporteur in a specific dispute must be considered by the Council.
- Fact-finding or good offices should happen at an early stage.
- In order to prevent a dispute, the Secretary-General must consider approaching the States concerned.
This declaration is said to be the first instrument that deals with the prevention of international disputes and promotes international peace, harmony, and security.
In 1990 the Special Committee was asked to give priority to the impending questions on maintaining international peace and security. For this purpose, the fact-finding activities were to be primarily considered. In 1991, a declaration on the fact-finding committee was adopted by the General Assembly. It had a major role in strengthening the role of the United Nations in the maintenance of international peace and security and also to promote the settlement of disputes through peaceful means. The fact-finding mission was either taken by the Security Council, the Assembly, and the Secretary-General. Secretary-general was expected to use the find finding activities at an early stage for an easier and more peaceful contribution in matters of dispute.
He was required to prepare a list of the experts in various fields who could carry out the fact-finding activities.
Hand-book on the peaceful settlement of disputes
Again with the help of Special Committee’s recommendations to the Secretary-General to prepare a hand-book on peaceful settlement of disputes and also to provide special powers, functions, and duties to the Assembly, the Council, and the Secretary. An elaborate draft handbook is said to have been drafted by 1992.
Chapter VI of the Charter provides the various modes by which the Council settles the disputes peacefully.
Judicial settlement is the process of solving a dispute by the ‘international tribunal’ in accordance with the rules set by the International Law. Here it is important to understand the expression ‘international tribunal.’ A tribunal acquires an international status because of its jurisdiction. At the present day, the International Court of Justice, although not the only tribunal but it is indeed the most important tribunal around the globe. There are ad hoc tribunals and mixed commission also. It is important to note that the International Tribunal is different from the Municipal Tribunal. As the name suggests, International Tribunal applies International Law and similarly Municipal Laws are applied by Municipal Tribunal. To what extent can International Laws be applied by the Municipal tribunal depends entirely on the relationship between the fields of law. Arbitration and settlement of disputes by International Law have become two very important modes of settlement of disputes today.
Arbitration is the process of using the help, advice and recommendation of a third party called arbitrator to settle disputes. The International Law Commission defines it as ‘a procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of a voluntarily accepted undertaking’. Owing to its tendency to blend civil law procedure and common law procedure, International arbitration is sometimes also referred to as a hybrid form of international dispute resolution. The International Court of Justice in the case of Qatar v. Bahrain, stated that the word arbitration for the purpose of international law, usually refers to ‘the settlement of disputes between states by judges of their own choice’.
An agreement was concluded between India and Pakistan to refer the Kutch dispute to an arbitral tribunal. Consent of the parties is also obtained before a dispute comes into existence. There are four main characteristics of arbitration:
- A tribunal is constructed to hear a particular case only and its composition is also majorly determined by the parties to the dispute.
- An arbitral tribunal does not determine its own jurisdiction but has to decide the dispute as submitted by the parties.
- It is required to make its award with reference to the rules adopted for that purpose or by rules which are otherwise binding.
- The parties are known to have control over the procedure to be followed.
The best-known rules of arbitration include those of the International Chamber of Commerce (“ICC”), the London Court of International Arbitration (“LCIA”), the International Centre for Dispute Resolution of the American Arbitration Association (“ICDR”), and the rules of the Singapore International Arbitration Centre (“SIAC”) and the Hong Kong International Arbitration Centre (“HKIAC”). Although the award in the Kutch case was vehemently criticised on the ground that it has political overtones, it was accepted by India.
International Court of Justice
The headquarters of the International Court of Justice is situated in Hague, Netherlands. It was founded on 26th June, 1945 San Francisco. Originally the purpose of Article 34, para 1 was to exclude individuals from bringing claims against States before the Permanent Court of Justice. However a proposal was made in 1929 to the Committee of jurists that Article 34 must be amended. However, presently although they still do not have access to the Court in contentious cases they can seek advisory opinion. The Permanent Court of International Justice is known to be the predecessor of the ICJ. Which means before the creation of the International Court of Justice, disputes of the parties were to be settled by the Permanent Court of International Justice. Its jurisdiction depends entirely on the willingness of the parties involved. This along with arbitration is commonly known as the judicial way of settling a dispute. Consent of the parties is a prerequisite for the cases to be heard in the ICJ. While the judges of the court are appointed by the General Assembly and the Security Council of the United Nations, the arbitrators are appointed by the parties themselves. There are three ways by which the International Court of Justice resolves the cases are that brought before it-
- Parties can settle their dispute by themselves and cases can be withdrawn by the state or the court can give the verdict.
- International Court of Justice uses International Laws are it’s guiding light.
- Writing by experts is also referred to.
ICJ’s primary function is known to be resolving disputes between sovereign states. Only States can be parties to the dispute that is brought before it. The International Court of Justice has recently decided the Kulbhushan Jadav case. India and Pakistan were the parties to the dispute in this case. Jadhav was a retired Indian Navy Officer and was sentenced to death by the Pakistani Military Court. The charges that were pressed against him were of terrorism and espionage. In a major win for India, after a 4year long battle from being arrested on 3rd March,2016, he finally sought relief after the suspension orders of his hanging were delivered by ICJ in 2019.
Compulsive or coercive means
The meaning of the words, compulsive and coercive itself suggests that these are non-peaceful means of settling a dispute. This method may sometimes also involve force and pressure to resolve the issue raised. Force in this method does not indicate to the extent of armed forces but methods that are short of war.
Retortion is based on the principle of tit for tat and is also a synonym for retaliation or to say it is the technical term. It is an act done by one state in a manner similar to what was done earlier by another state.Such acts done by the States are not illegal but are permitted under International Law. It is an effective tool of law enforcement although the method of implementation may seem unfriendly. There are numerous cases where retortion has been used as a means to settle disputes. The classic example for a better understanding is- if citizens are treated unfairly in another State, the former may also make similar rigorous rules in respect of citizens of the latter state. The very purpose of retortion is retaliation. It is employed not to secure redress. The legitimate use of retortion has been affected to a large extent by the UN Charter. In retortion those actions cannot be legitimately taken which are likely to endanger international peace and security. Such if taken are treated as illegal.
If the problem is not solved by Retorsion the States have the right to resort to Reprisal. In retaliation, the state can initiate such a proceeding where the problem may be resolved. However, reprisal is one such method that can only be resorted against a State when it has indulged in some illegal or inappropriate activity. The method and process of reprisals were clearly defined in the Naulilaa case, (Germany v. Portugal).
For example, Israel has resorted to reprisal many times against Lebanon. It has bombarded those regions of Lebanon where Arab terrorists attacked the territories of Israel. The members of the UN cannot indulge in reprisals of such a type which endangers international peace and security. It is commonly accepted that Reprisal becomes justified and legal when the other country has committed an international tort or violates the norms of International law. In the provocative action and reprisal, there must be an adequate proportion that is in proportion to the violation, the damage should be caused. The reprisal is valid only when demand for reparation was made and this was not fulfilled.
Embargo is of Spanish origin. It is also a kind of Reprisal. Ordinarily it means detention. But in International it has a technical meaning of detention of ships in port. If the ship belongs to a State which has committed an international tort or has committed some other international wrong and is available in the territorial waters of the State against which tort or wrong has been committed then such vessels can be restrained from traveling through that area as a matter of right by the other State. The purpose of such an embargo is to compel another state to settle the dispute. In reprisals also vessels of one state may be detained by another state.if the vessel is detainted for the purpose of seeking redressal, embargo is deemed as a form of reprisal. But if the detention is for any other purpose then it is not regarded as reprisals. Embargo may be applied individually or collectively under the authority of the United Nations. Maintaining international peace and security still remains the most important prerequisite.
A pacific blockade is a blockade used for the purpose of bringing pressure exercised by a great power to bear on a weaker state without actual action. When the coast of a state is blocked by another state for the process of preventing ingress of vessels of all nations by use of warships and other means in order to exercise economic and political pressure on that state, the act is specifically called a blockade. Requirements for a pacific blockade are similar to those that are needed for a normal blockade during a wartime. It has been regarded as an aggressive means for the settlement of international disputes because it consists in temporary suspension of commerce of the offending state by closing of access to the coasts. The numerous cases of blockade that have occured during the nineteenth century have established the admissibility of pacific blockade for the settlement of political as well as legal international differences. At present while blockade is illegal when it is applied by the state individually, collective blockade applied under the authority of the security council to settle the dispute is lawful.
Intervention by state in the affairs of another state is a recourse to the settlement of disputes. It is important to note that after the establishment of the United Nations a state has been substantially prevented from taking compulsive actions to settle international disputes. Any measure that is likely to threaten or endanger international peace and security has become illegal. Thus, the compulsive measures are lawful as long as they are able to maintain international peace. Intervention is therefore regarded as unlawful and is not justified.
In a nutshell, it is important to understand that in the long march of man from cave to computer and his journey from age of stones to the modern world, the central idea has always been that of order and security. Efforts and attempts have always been made so that any form of chaos is minimised and peace is promoted. Law has proved itself to be that element which binds the members of the society. It is fair to say that international law has always considered its fundamental purpose to be the maintenance of peace. Peaceful as well as compulsive means are used under International Law for the peaceful settlement of disputes. This article includes recent cases and other examples for a detailed understanding.
Generally, the question of nationality is a matter of domestic jurisdiction of a country. International human rights law recognizes the right to nationality of all, which means that each individual should be able to acquire, withdraw or retain his/her nationality. A person deprived of his nationality is placed in a vulnerable position. According to the report of UNHCR, the figures show that since World War II, there are more than 70 million people who have been forcibly displaced. Statelessness is a worldwide problem affecting millions of people.
Somewhere in the world, every 10 minutes a child is born stateless. Out of the 70 million displaced people, 24.9 million are refugees, 41.3 million are internally displaced and 3.5 million are asylum seekers. 80% of refugees are seeking refuge in nations that are neighbours to their origin country. Refugees are facing predicaments of war and persecution. They cannot return to their homes, even their own country is denying protection to them. Their basic human rights and even life are at risk.
What is Statelessness?
Under International Law, a stateless person means an individual who is not recognized as a national of any country. Article 1 of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.”. Hence if there is no link or bond between an individual and a country then such an individual will be termed as stateless.
A notable incident of statelessness is where Merhan Karimi Naserri, an Iranian refugee who was denied citizenship in his country, spent 18 years of his life at the Charles de Gaulle Airport in France. In 2004, his autobiography was published in the book “The Terminal”.
Causes of Statelessness
There are many causes leading to a person becoming stateless. Some common causes are discussed as under:
Many nations discriminate their citizens on the basis of ethnicity, race, colour, descent which is against the standards of international law. Not only this, there is an inconsistency between nationality law with respect to men and women. Some Nations do not grant nationality to children whose fathers are unknown or deceased. There are some countries that do not allow women to pass their nationality to their children.
As per UNHCR, equal rights to women in the matters of the nationality of their children have still not been attained in 27 countries. Another example of gender inequality law is where a child is denied citizenship if the father is stateless then the country does not confer citizenship under certain conditions on the grounds of missing or unknown.
Conflict and gap between laws
Nationality can be acquired in various ways – by birth, naturalization, descent, marriage, registration, etc. all countries have their own nationality law by which citizenship could be acquired or withdrawn. Around the world the most common way of acquiring nationality is through:
- Birth (Jus Soli): where nationality is acquired by way of birth in a country. For instance, in the United States, where a child has a birthright over citizenship if born anywhere in the territory of the country.
- Descent (Jus Sanguinis): where nationality is acquired or determined if one or both parents of a child belong to a certain country. For instance, In Indian nationality law, if a child is not born to at least one parent who has Indian citizenship, he will not be granted citizenship and hence be stateless.
Hence, if a person is unable to prove his link with a country will be at risk of becoming stateless. Let’s take an example, a child is born to an Indian father and a Chinese mother married in the UK. The child is living with his mother. Chinese nationality law doesn’t grant women the right to pass on their nationality to their children.
Indian nationality law provides that nationality will only be provided to a child who is born in India and UK nationality law provides that at least one of the parents needs to be a national of the UK. This creates the problem of conflict and the gap of laws.
Another significant determinant of statelessness is state succession. People moving from the country where they were born to another when their origin country disintegrates, dissolves, ceases to exist or their country comes under the control of another country leads to statelessness. Dissolution of the Soviet Union by Internal disintegration, the agreement of Belavezha Accord declared the ceasing of the Soviet Union is such an instance.
When a person voluntarily relinquishes his/her nationality or citizenship or refuses the protection of a state is said to renounce his citizenship. But this rarely happens.
The United Nations on Statelessness
Millions of people fled from their home country to seek refuge after World War I and II. Since its foundation after World War II, the United Nations has been dealing with situations of war and conflict. With war majorly leading to large-scale displacement of people.
The Economic and Social Council (ECOSOC) one of the six principal organs of the United Nations requested the United Nations Security General to undertake a study in this regard. Thereafter, three conventions were adopted to prevent people from becoming stateless. They are:
- 1951 Convention relating to the Status of Refugees
- 1954 Convention relating to the Status of Stateless Persons
- 1961 Convention on the Reduction of Statelessness
1951 Convention relating to the Status of Refugees
Also known as the Refugee Convention, a Multilateral Treaty of the United Nations dealing with the protection of refugees. It defines who is a refugee, sets forth the right of displaced persons and highlights the legal obligation of the states towards protecting refugees. The convention emphasises that refugees should not be sent back to the countries where they face the fear of persecution or danger of life except those who are war convicts or are considered as dangerous to the security of the country.
In addition, refugees are also required to abide by the asylum law of the country and maintain public order. Some provisions of this convention include:
- Article 21 – the right to have a house.
- Article 26 – the right to freely move within the territory.
- Article 31 – the right not to be punished for illegal entry while in the territory of a contracting state.
1954 Convention relating to Status of Stateless Persons
This convention deals with the international protection of stateless persons. It defines who is a stateless person, provides basic rights to them and strives to solve the everyday practical problems faced by them. The stateless person is obliged to abide by the laws, regulations and maintain public order of the country in which he currently is. Certain provisions of this convention are:
- Article 5 – the right to freedom of religion.
- Article 22 – The right to education.
- Article 27 – A stateless person not having a travel document to be issued with identity papers by the contracting state.
1961 Convention on the Reduction of Statelessness
This Convention was brought with the aim to eradicate statelessness dealing with the conferral of citizenship giving effect to Article 15 of the Universal Declaration of Human Rights – the right to nationality for all. Some important provision of the Convention:
- Article 1 – Subject to certain conditions, granting nationality to all stateless children born in their state, automatically or upon application.
- Article 2 – granting nationality to those children that are found abandoned in their state.
Universal Declaration of Human Rights (UDHR)
The Universal Declaration of Human Rights (UDHR) was adopted in 1948 with the objective of providing basic human rights to every person and to promote peace among all nations. It comprises a preamble and 30 articles. It contains provisions relating to the right to life and liberty, prevention from slavery, protection from inhumane, torturous and degrading treatment, etc.
United Nations High Commission for Refugees (UNHCR)
The United Nations High Commission for Refugees is an agency of the United Nations that addresses the issue of statelessness. It seeks to provide assistance with food, water, and shelter, safeguarding human rights and finding permanent solutions to refugee problems. Currently, UNHCR is working in 134 countries with a workforce of more than 16 thousand people.
The UNHCR Statistic Database provides necessary information relating to data, report, etc that is required for field operations. In 2014, The UNHCR launched a ten-year global campaign #IBelong to end statelessness by the year 2024. UNHRC believes that the issue of statelessness can be resolved with necessary assistance by political and public support.
Measures recommended by the UNHCR to end statelessness
- By ensuring that no child is brought into the world stateless.
- Resolving the current statelessness situation.
- Elimination of gender discrimination law.
- Preventing statelessness in the event of state succession.
- Facilitate naturalization of stateless migrants.
- By ensuring birth-registration.
- To accede to the UN Convention relating to statelessness.
Institute on Statelessness and Inclusion (ISI)
ISI is an NGO globally working for the rights of stateless persons. It has launched Strategic Plan 2018-2023 with a goal to create awareness about statelessness, promote inclusion and support the right to a nationality.
European Network on Statelessness (ENS)
This organization is a civil society alliance, established in the year 2012 dedicated to protecting stateless persons in Europe and providing them with basic human rights. It aims to prevent the arbitrary detention of stateless people in Europe.
Statelessness affects the basic, social, economic, civil and political rights of forcefully displaced people. As a citizen of a country, a person enjoys various benefits but a stateless person is deprived of many rights and benefits, such as:
- Right to vote;
- Right to employment;
- Right to home;
- Right to register for marriage;
- Right to education/cannot enrol children in school;
- Right to medical care.
Statelessness in the Indian context
In August 2019, the state of Assam released the list of people who were eligible. The purpose of the National Register of Citizens (NRC) was to prevent the influx of illegal migrants in the state of Assam. Around 19 lakh people in August 2019 were removed from NRC. To be legally recognized as an Indian citizen one needs to give proof that he has been residing in India before the cutoff date, that is 25 March 1971. Accordingly, one has to show documentary evidence that they or their ancestors have entered the country before the cutoff date.
What will be the fate of these excluded people?
People excluded from NRC’s Final List are required to file an appeal to Foreigner’s Tribunal and afterwards to the High Court and the Supreme Court. Ultimately, if a person is unable to prove his citizenship he will face arrest and will be sent to detention centres. Currently, Assam has 6 detention centres.
Statelessness is a serious matter and stateless persons are found in every country and often lead an invisible life as they and their rights are not recognized. The international community, especially the UN, is actively working to prevent and protect the rights of stateless persons. But despite this, new instances of statelessness keep on emerging and hence statelessness still possesses to be a major issue. More effective approaches need to be created and implemented to tackle this problem and protect the rights of these people.
Law of the Sea
Shipping and fishing are the main areas of the sea. Depending on human development, there were many cases of the use of technology, and sometimes they attempted to satisfy the needs of human beings. Many other resources and minerals, natural gas, oil, sand and gravel, diamonds, gold and other resources were made from the seabed. With the development of trade in the 20th century and the inexhaustible realization of sea use, the classic principle of “Freedom of the Sea ” was pushed into the background.
Codification of the Law of the sea
After 1945, once the UN was set up, it was decided by the UN security council and the Secretariat that there was a need to codify existing rules especially with regards to the Law of the seas and to come out with a permanent solution vis-a-vis the maritime territorial limit of any country.
With this view, the UNCLOS was passed, which codified the existing customary rules, and it came into force in 1999, even though the agreement was signed in 1982.
Since 1945, almost all the countries of the World have replaced the “cannon-shot rule” with 12 nautical miles rule under which an area of 12 nautical miles from a country sea coast is presumed to be the exclusive maritime limit of one country, and these rules are also acknowledged and accepted under the UNCLOS rules and regulations.
A classified example of maritime disputes existed between India and Sri Lanka, commonly known as the Ram Setu Bridge, connecting Dhanushkodi in India to Talaimannar in Sri Lanka.
What is UNCLOS?
UNCLOS stands for the United Nations Convention for the Law of the Sea. It is also known as the Law of the Sea. It is an international agreement or treaty which establishes rules and guidelines for using the world’s oceans and seas, so as to use and conserve marine resources and to secure the preservation and protection of all the living beings of the sea. The treaty was signed on 10 December 1982 in Montego Bay, Jamaica, as a result of the United Nations Conference on the Law of the Sea, which took place from 1973 to 1982, and came into force in 1994.
What is the role of this convention?
The convention defines several maritime zones. Namely the baseline, the territorial waters, the contiguous zone, the exclusive economic zone, the continental shelf, the International seabed area.The exclusive economic zone is international water, which can be accessed and used by each country for economic purposes. It is currently the dominant law of the sea.
There is no limit or boundary set for commercial or marine business in these International waters.
What is the history of this convention?
Several countries have expressed a desire to expand national maritime information, use natural resources, protect fish stocks and reduce pollution. For this purpose, the League of Nations held a conference at The Hague in 1930 but failed to reach an agreement. In the 20th century, technological development in fisheries and oil production have increased the maritime scope in which countries can find and use natural resources.
This motivated the President of the United States, Harry S. Truman, in 1945 to increase the U.S. jurisdiction outside of all of its continental shelf natural resources, far beyond the Country’s territorial waters.
Grotius’s concept “Freedom of the Sea” became practically universal in the 20th century due to the global dominance of European navies. National rights and jurisdiction over oceans are limited to certain water belts that stretch from the Country’s coast, usually 3 miles (5.6km), according to Bynkershoek’s “cannon fire” rules. According to the maxim “Mare Liberum” all water outside the Country’s border is considered as the International waters which is free for all countries, but not for anyone.
Responding to British lawyer Grotius, John Seldon argued in a saying called “Mare Clausum” that the sea was able to seize sovereign power like land and territory. Seldon rejected Grotius’s assumptions, arguing that there was no historical system for treating the sea differently from the mainland, and there was nothing inherent in the nature of the sea that prevented the State from controlling its parts. Basically, International Law can frame the National jurisdiction that appears above the sea.
Territorial rules with regard to the law of the sea
Under Customary International Laws, the Law of the seas were not codified only because of the fact that at that time the ocean was considered as an important maritime property, through which countries could claim their sovereignty, open up new trading rules and also capture new territories with the help of either trading companies or powerful navels.
Nevertheless, by the 17th century, a Customary International Law started evolving amongst countries, which categorically laid down the fact that a country’s territorial limit from the coastal sea shall be limited to 3 nautical miles, under which the Country shall exercise absolute jurisdiction and no foreign vessels or ships will be allowed within that territory, except for certain restricted conditions.
This 3-mile rule was known as the “cannon-shot rule” and the restrictions given for foreign ships to enter into the territorial waters at a host was known as the “Doctrine of innocent passage” and if a foreign vessel was exercising to the innocent passage, then no conditions were allowed to run any over or over operations against the territorial integrity of the host State.
India’s position on territorial waters
India’s position in relation to the Law of the sea is generally governed by Article 297 of the Indian constitution and laws on waters, continental shelf, EEZ and other maritime zones. Maritime zone Law defines Indian sovereignty over the waters and the seabed, as well as the land and airspace above those waters. An area of the boundary line is where each point is 12 nautical miles from the closet point to the baseline. All foreign vessels have the right pass that is innocent passage through territorial waters.
The South China dispute
5000 years ago, China was governed by the Ming dynasty, who were also famous as Terracotta warriors.
In a navel map, at the times of the Ming period, the entire region, boarding the south China sea along the coast of Vietnam, Indonesia and the Philippines were shown to be Chinese territory.
In the present times, the Chinese government has claimed these areas under the South China sea, coming within the territorial waters of many southeast Asian Nations as its own territory.
The Chinese called this new boundary as the (nine-dash line) territory.
In 1988, the Imperial Chinese navy with the support of the Chinese air force repeatedly intruded into the territory of water of the Philippines and started the construction of artificial islands called the Spratly and Johnson group of islands.
The Philippine government strongly protested this movement on the grounds that the disputed territory was within the maritime limit of Philippine sea waters and China had violated the territorial sovereignty of Philippine.
Repeated requests were made by the Philippino government to the Chinese authority to stop construction in the disputed territories, but it was openly ignored by the communist party of China and since1988, the Chinese government has built a series of smaller artificial islands, military installations, air force and naval bases to further strengthen the Spratly and Johnson islands.
In 2015, the Philippino government approached the PCA (Permanent Court of Arbitration) to resolve the South China Sea dispute, where the Chinese government did not appear before the PCA. The PCA categorically held that (nine-dash line) theory of China was grossly inaccurate, construction of Spratly and Johnson islands were illegal, China had violated almost all its treaty and obligations, which are coming under UNCLOS and violation of Customary International Law and more specifically in Article 2(4) of the UN Charter.
China refused to agree to the decision. After the decision of the PCA, the Chinese navy started building large seaports in the Spratly harbour, so that Chinese naval aircraft carrier fighter squadrons of the Chinese air force can be permanently posted in the Spratly armed forces base.
Since 2016, China has started building more islands in the territorial waters of even Vietnam, Indonesia and Malaysia and is now claiming that the nine-dash rule is actually correct and they would actually keep on building more islands in the south China sea.
The contiguous zone is the part of the sea that is outside and adjacent to the territorial waters of a coastal country. This is not the object of a subsidiary, but in this coastal country, they can exercise certain jurisdictional rights. The concept of an adjacent zone develops because countries cannot effectively protect all their interests because of the limited interference on the territorial sea. The 1982 convention established the concept of an exclusive economic zone (EEZ) which fully covers the contiguous zones.
According to Article 33 of the 1982 Convention, Contiguous zone must not be more than 24 nautical miles from the baseline where the territorial sea area is measured. Thus the area of the contiguous area is 12 miles from the territorial sea.
India’s position on contiguous zone
India has claimed the contiguous zone to the extent of 24 nautical miles by enacting the Maritime Zones Act of 1976.
According to W.Friedman, the continental shelf can be defined as the zone around the continent that extends from a low water line to depth and usually marked towards greater depth. What is commonly referred to as a “continental shelf” is a sloping platform that covers continents and islands? This is a submerged seabed that borders continental landmass and is found as an extension or part of that land. It usually extends to a depth of about 200 meters.
The coastal countries have limited sovereignty rights on the continental shelf to explore and use “natural resources”, not sovereignty.
India’s position on the continental shelf
The Maritime Zone Act defines India’s position that India has declared a continental shelf 200 nautical miles from land. Indian rights and obligations under this command are similar to those in other countries, as stipulated in international conventions. But, the government can declare the continental shelf and its magical waters for a certain area and take action to regulate it.
Exclusive Economic Zone
An exclusive economic zone is a sea zone prescribed by UNCLOS, over which a State has several rights regarding the exploration and use of marine resources including energy production from water and wind. It stretches from the baseline, until 200 nautical miles (370.4 km) from its coast. In geographical terms, the EEZ may also include the continental shelf.
The main difference between the territorial sea (12-mile rule) and the exclusive economic zone is that while the territorial sea confers full sovereignty over the waters, EEZ is merely a sovereign right which refers to the coastal State right below the surface of the sea.
An example of an exclusive economic zone is the Bombay High, between 73 to 74 nautical miles of the Indian coast which is used for oil exploration by the Indian government.
India’s position on EEZ
Section 7 of the Maritime Act of 1976 provides exclusive rights for the purpose of exploring and exploiting the natural resources within EEZ.
Flag State rule
For legal purposes, a vessel, ship, aircraft, the submarine has to be registered in a particular country, and for all practical purposes, it must fly or display the flag of the registered country.
The Flag State rule is applicable for both military and commercial ships, also for all kinds of oil tanks and even cruise ships.
As of now, Liberia and Panama are the two countries which have a maximum number of ships registered but most of the ships are broken down and sold as junk in Alang, Gujarat.
The Flag State rule principle has also been implemented under Part VII Article 92 of UNCLOS and even in environmental disputes, the Flag State rule can be implemented under Article 217(1) of UNCLOS, 1982.
S.S Lotus case (France Vs. Turkey, 1927)
In 1925, after Mustapha Kemal pasha started liberalising the Turkish economy, Turkey started to expand the trade abroad with other countries. Unfortunately, a French vessel S.S lotus and Turkish ship S.S Bozkurt collided, because of which the Turkish ship damaged and killed 8 Turkish Nationals on board of Turkish vessel. The remaining survivors of the Turkish ship were taken to Turkey onboard S.S lotus.
In Turkey, the captain of the French ship, and the first watch officer, Monsiver Demons, were charged with manslaughter and Demons was sentenced to imprisonment and fine. The French government demanded the release of Monsieur Demons and the transfer of his case to the French Court. Turkey and France agreed to refer the dispute to the PCIJ(Permanent Court of International Justice).
The French and the Turkish government were strongly blaming each other and Monsieur Demons was being charged by the Turkish government for knowingly causing the accident. The French government further contended that only they have a right to trial the individual because the incident involved a French ship and a French National.
The PCIJ held that Turkey had violated no norms of International Law by instituting a case against Monsieur Demons and also had no rights to prosecute him.
After this judgement, there was a huge criticism and after the formation of the United Nation, certain changes were brought in the Flag State rule.
Rights of the coastal States
The States cannot exercise sovereignty over the coastal State. They will exercise sovereignty rights to explore and exploit minerals, non-living resources of the ocean floor and soil during the primary 5 years of production at that place. The speed shall increase by 125th of the value of each resulting year till 12 years and shall stay seven-membered thereafter. If coastal States don’t explore or exploit shelf resources no alternative State could undertake these activities without its specific consent.
However, the rights of the coastal State over the seabed don’t have an effect on the regime’s freedom of navigation on the high seas or that of the airspace higher than the superimposed waters.
The high seas mean, all the parts which are not coming under EEZ, territory or inland waters of a country. This rule was formulated by Grotius in his maxim on “Mare Liberum” in 1609 and claimed that the sea could not be owned by anyone.
As a result, all States supported that ships can go and use freedom of navigation, fight, fishing and building artificial islands etc. But, the command has been considerably changed under the convention on the Law of the sea of 1982.
Article 87(2) of the convention lays down the limitation of the general nature on the freedom of high seas by stating that the freedom of the high seas “shall be exercised with due regard to the interests of other States in their exercise of the freedom of high seas”. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates a comprehensive command to govern the rights of nations in respect of the world’s oceans. International Maritime Organization (IMO) is a specialized agency of the United Nations responsible for improving maritime safety and preventing pollution from ships.
Life itself arose from the oceans. Even now, when the continents have been mapped and their interiors made accessible by road, river and air, most of the people in the world live no more than 200 miles from the sea and relate closely to it.
Space is an area that is not divided into parts for each country and has no boundaries. It is limitless. But have you ever wondered, to whom the moon, the stars, and the other celestial bodies belong to, who has the property rights conferred upon him/her and, what are the rules governing the exploration of space? Well, in this article we will discuss how the space laws govern the exploration of space and who is allowed to govern it.
Soon after the Soviet Union launched Sputnik in 1957, the United Nation framed the United Nations Committee on the Peaceful Uses of Outer Space. Let us discuss UNCOPUOS in-depth.
United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS)
The General Assembly in 1959 set up the United Nations Committee on the Peaceful Uses of the Outer Space. It was formed for the regulations of the exploration of space. It makes it mandatory that the usage of the space should be done in a peaceful manner for peace, security, and development. It was also set up to govern international co-operation with regards to peaceful usage of space. This committee studies all the activities related to space that could be performed by the United Nation and the legal issues and matters that would come on the way during the space utilization.
This committee concluded 5 treaties and created 5 principles. Every year during the sitting of this Committee, it discusses the handling of space-related activities to assure that the development goal is met globally. Now, we would agree that with the technologies evolving and advancing, space is also witnessing new challenges. Therefore, this Committee decides upon all the development programs and agendas.
In 1961, the Committee set up its two subsidiaries, Scientific and Technical Sub-committee and the Legal Sub-committee. This Committee meets at Vienna, Austria, every year, to discuss the future activities that would be undertaken. The following matters are a concern for the Committee and are governed by it:
- Maintenance of outer space for peaceful purposes,
- Operations conducted in the space to be safely carried out,
- Space debris,
- Weather in the space,
- Threat from asteroids in space,
- The use of nuclear power in outer space for peaceful purposes,
- Climate change,
- Water management,
- Global navigation satellite.
We will now analyze its two sub-committees, Scientific and Technical Sub-committee and Legal Sub-committee:
Scientific and Technical Sub-committee
The Scientific and Technical sub-committee meets for two weeks, annually. It analyzes the Scientific and Technical aspects of the activities related to space exploration. This committee discusses the following topics:
- Space weather,
- Objects near the Earth,
- Usage of space technology for socio-economic development,
- Disaster management,
- Global navigation satellite systems,
- Sustainability of outer space activities for the long-term.
It also meets for two weeks, every year. Unlike the Scientific and Technical sub-committee, it discusses the legal matters and issues arising out of space exploration and related activities.. It analyzes legal questions asked by the various countries and discusses them further.
- The status and application of the five United Nations treaties on outer space,
- Defining and creating limits of outer space,
- Legislating the matters of space,
- Legal mechanisms relating to space debris mitigation,
- International mechanisms for cooperation in the peaceful exploration and use of outer space.
It consists of five offices, which are:
- 1st Vice-Chair
- 2nd Vice-Chair
- Rapporteur of the Committee
- Chair of the Scientific and Technical Subcommittee
- Chair of the Legal Subcommittee
At a time, all of these offices are held for a period of two years. It rotates among the five regional offices, which includes, African Group, Asia-Pacific States, Eastern European States, Latin American and Caribbean States, and Western European and other States. It makes certain that the committee and the sub-committees discharge their functions properly and all the sessions are successful in their operation.
Treaties concluded by UNCOPUOS
The 5 treaties which were concluded by the United Nations Committee on the Peaceful Uses of Outer Space are:
- Outer space treaty
- The Moon Treaty
- Rescue Treaty
- Liability Treaty
- Registration Treaty
Through these Treaties, UNCOPUOS upheld that the moon and other celestial bodies belong to all the countries and the space is open for exploration and usage by every country in the world, provided that it is for peaceful usage.
Let us quickly have a look at them.
Outer space treaty
The Outer Space Treaty is a very famous treaty that provides for the framework for the exploration of space in a way that does not harm the space environment or cause any kind of damage. It should be peaceful in all aspects.
The Moon Treaty
The Moon Treaty is a multilateral treaty which talks about the activities carried out on the Moon and other celestial bodies. Basically, it has jurisdiction regarding the Moon and other celestial bodies, over every participant nation.
In the Rescue Treaty of 1968, it provides that in case an astronaut in space is in danger or is suffering, then the States will take all the possible actions to rescue that astronaut and bring him back to the launching site. It also includes bringing back space objects. The states can further provide assistance to the state from where the space object was launched.
By January 2019, ninety-eight states had ratified the Rescue Agreement of 1968. In its early stages, it was considered and negotiated by the Legal sub-committee of the UNCOPUOS.
Liability Convention, also known as the Convention on International Liability for Damage Caused by Space Objects, talks about the rules related to liability. By 2019, ninety-six states have signed and ratified it whereas 19 states have signed but have not ratified it as of now. Talking about the four international intergovernmental organizations that are, the European Space Agency, the European Organisation for the Exploitation of Meteorological Satellites, the Intersputnik International Organization of Space Communications, and the European Telecommunications Satellite Organization, they have accepted their rights and have obligated themselves to follow the rules provided in it.
This Treaty generally provides that if one state has launched any space object and the same cause any damage thereto, the state will be completely liable for the damage caused. To give you an illustration, “State Y” launched a space object which caused some sort of damage, for instance, adds to the debris in the space, then “State Y” will only be held liable for it.
Registration Convention, also known as The Convention on Registration of Objects Launched into Outer Space, obligates the States to provide for the orbit of each space object. A registry to provide for the information related to launching is already being maintained by the United Nations as a result of the General Assembly Resolution of 1962.
By the end of 2018, 69 states had already signed and ratified it.
We will now discuss one of the most famous treaties, the Outer Space Treaty.
The Outer Space Treaty
We will discuss the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies which is contained in Part A of this Treaty.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies- Part A
The exploration of space will be the territory of all the states, irrespective of the socio-economic conditions or the scientific and technical development of the nations.
The exploration of the uses of outer space will be done for the benefit and development of every state.
The participant states are free to conduct a scientific investigation in matters related to outer space, including the Moon and other celestial bodies.in this case, all the participant states should facilitate and encourage international cooperation and avoid hindrance in such investigation.
We will discuss Article 2 while discussing property rights on the Moon, so, for now, we will be discussing Article 3.
All the participant states, carrying out activities on the moon and other celestial objects with regards to the exploration of space, will do it in accordance with the international laws and also, in accordance with the United Nations Charter.
This will make sure, such activities maintain peace and security of all the states and promote international cooperation and peace among all the participating states.
This Article instructs the States to not place any space object in the orbit of space that carries any nuclear weapon or a weapon that can lead to mass destruction. It also prohibits the state from installing such weapons on celestial bodies or station nuclear weapons in space in any other manner.
It further provides that the Moon and other celestial bodies are reserved for peaceful exploration, exclusively by all the states. So, the establishment of any military base and installations and fortifications, the testing of any kind of weapons and the conduct of military maneuvers on celestial bodies are forbidden completely.
Anyways, the use of military personnel for any scientific or technical research or for any other peaceful purposes is not prohibited under this Article. Also, the use of such equipment or facility for the exploration of the Moon and other celestial bodies is not forbidden.
All the nations who are a part of this Treaty will consider astronauts as diplomat of mankind and will provide all the necessary and needed assistance which could be provided, under the circumstances when their life is in danger, such as when there is an accident, condition of distress or when the spacecraft had to follow an emergency landing on the State of another territory or on the high seas.
In such cases, the astronaut will be brought back with all safety measures. This Article also instructs the astronauts to provide each and every assistance possible to the astronauts of other states in carrying out space activities.
The astronauts on discovering any activities or phenomena on outer space(including the Moon and other celestial bodies) of such a nature that can cause danger to their health and life, shall immediately inform it either to the Secretary-General of the United Nation or to the other members or participants to the Treaty.
All the participant states shall have international responsibility for all the national activities carried out in outer space, including the Moon and other celestial bodies. The carrying out of these activities by government entities or a non-governmental agency does not matter.
The states should make sure that these activities satisfy the provisions laid down in the present Treaty.
It would be required on the part of the concerned participant state to supervise and authorize all the activities of the non-governmental agency.
If activities are carried on by some international organization, the responsibility to govern and authorize shall lie to both the International organization and the state party to such a treaty related to the International organization.
A state party who is a participant nation in the treaty launches or acquires the launching of the space object into outer space, including the Moon and other celestial bodies or the state party from whose territory the launch is made, will be internationally liable for all damages incurred by the other state party to the treaty.
The damage covers every damage caused by the object as a whole or any of its parts to the earth, air space or to outer space itself.
The jurisdiction over the space object and the personnel therein will be of the state from whose territory the space object was launched until the space object is in outer space.
The ownership of the objects landed on the space or constructed on the celestial body or any part of the space object, is not affected by their presence on the space or on the celestial body or their return to earth.
If such objects are found beyond the territorial limits of the particular state to which it belongs, it will be returned to that state provided that the owner state gives some identification data relating to the space object.
The exploration of space, including the Moon and other celestial bodies should be carried out on the principles of mutual cooperation and assistance. Every state shall take care of the interests of the other participant states and would give due respect to each other.
The Participants states will conduct studies of the space activities and conduct such activities which will help avoid the harmful contamination and also to avoid the inducing of such adverse changes in the environment of the Earth which will introduce extraterrestrial matter.
In such a case if necessary, the states should adopt appropriate measures for this purpose.
Let us look at some situations.
- In case, the state party to the Treaty has reason to believe that an activity or experiment that is taken up by itself or its nationals and can cause damage to any other states party to the Treaty, it should undertake appropriate international consultations before it proceeds with such activity on the space including the Moon and other celestial bodies.
- In case, the state has a reason to believe that a space activity or experiment planned by some other state who is a party to the threat, can in future cause damage or can prove to be a danger, can request a consultation regarding such activity or experiment.
The member state should consider any requests by other States Parties to be afforded an opportunity to observe the flight of space objects launched by those States This order is necessary to ensure the activities related to the exploration of outer space, including the Moon and other celestial bodies, are carried out in a manner which ensures equality and co-operation among all the member states.
The nature of such activities to be carried out and the conditions under which it can be afforded will be decided by an agreement between the participant states.
To promote international cooperation among the state party to the treaty, for the exploration of outer space, including the Moon and other celestial bodies, the state parties should agree to inform the Secretary-General of the United Nation as well as the public and the international scientific community. The information should contain the nature, conduct, locations and the result of the activities undertaken, to an extent that is feasible and practicable.
All stations, installations, equipment and space vehicles on the Moon and other celestial bodies can be accessed by all the representatives of other States Parties to the Treaty. This could be done on the basis of reciprocity.
All of these representatives will give prior notice of a projected visit which should be reasonable enough. This would be done in order to ensure that appropriate consultations are held and to let maximum precautions be taken to assure safety, also, to avoid interference with normal operations conducted in the facility to be visited.
The provisions of this Treaty shall apply to every activity of States Parties to the Treaty in the exploration and use of outer space, including the Moon and other celestial bodies.
It is irrespective of such activities carried on by a single State Party to the Treaty or jointly with other States. It involves cases where such activities are carried out within the superintendence of international intergovernmental organizations.
The States Parties to the Treaty will resolve any relevant questions that arise in regards to the activities carried on by international intergovernmental organizations towards the exploration and use of outer space, including the Moon and other celestial bodies.
It has to be done with either the appropriate international organization or with one or more States members of that international organization, which are parties to this Treaty.
- This Treaty should be signed by all states without any discrimination. In case, any state has not signed this Treaty before it came into force then according to paragraph 3 of this article, the state can agree to it at any time after.
- This Treaty shall be subject to ratification by the signatory states. Instruments of ratification and instruments of accession will be preserved by the Governments of the following countries:
- Union of Soviet Socialist Republics,
- The United Kingdom of Great Britain,
- Northern Ireland,
- The United States of America.
These are designated as the Depositary Governments.
- This Treaty will enter into force when the deposit of instruments of ratification by five Governments including the Governments designated as Depositary Governments under this Treaty, is complete.
- For States whose instruments of ratification or accession are deposited after this Treaty has come into force, so, it will be included on the date of the deposit of their instruments of ratification or accession.
- The date of each signature, the date of deposit of each instrument of ratification of and accession to this Treaty, the date of its entry into force and other notices should be informed without any delay to all signatory and acceding States by the Depositary Governments.
- This Treaty shall be registered by the Depositary Governments subsequent to Article 102 of the Charter of the United Nations.
Any participant state of the Treaty can give proposals to bring certain amendments to this Treaty. Amendments will be done only after the proposal is accepted by a majority of the States which are party to the Treaty.
These amendments will come into force for the member state, who proposed it just after it is accepted by the majority and for the rest of the member states on the date they accept it.
Any participant state to the Treaty can withdraw by giving notice to the Depositary Governments regarding its withdrawal from the Treaty.
This could only be done one year after its entry into force whereas such withdrawal shall take effect one year from the date of receipt of this notification.
This Treaty shall be deposited in the archives of the Depositary Governments. It may contain texts in Chinese, English, French, Russian and Spanish.
Also, certified copies of this Treaty which are duly signed will be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.
Who owns the Moon
Well, hasn’t this question ever bothered you? The fact is that many persons and organizations have claimed Moon to be owned by them. We will be learning about those claims but firstly, we will look at what the Outer Space Treaty and the Moon Treaty have a say in this matter.
Article 1 of the Outer Space Treaty says that outer space including the Moon and other celestial bodies is free for access by all states of the Treaty the activities related to the exploration of space. It means that it will be available without any discrimination to all the participant states and no particular state will have its right over the Moon and the other celestial bodies.
It will work on the principles of equality and with respect to international law.
Now let us look at Article 2 of the Outer Space Treaty, which says that the 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.
It clearly states that no country can claim such property rights on the Moon. Therefore, the Outer Space Treaty upheld the concept of res communis (common heritage of the man).
Some significant claims on the Moon and other celestial bodies:
- Dennis Hope- he is an American entrepreneur. He is said to sell extraterrestrial real estate. Now, what is extraterrestrial real estate? It is the claim to own on planets other than Earth or natural satellites or any other part of the space. It could be made by any organizations, individuals, and scam artists. Such claims are not recognized by any authority and have no legal standing.
Now apparently, in 1980, he established his own business name, the Lunar Embassy Commission. Lunar Embassy is not recognized by any authority but Denis Hope has claimed to have sold 2.5M 1-acre of land on the Moon, for around US$20 per acre.
He keeps the map of the Moon in front of him and points out to the plot to be sold while his eyes closed. This is how he allocates the land to be sold. He claims that two former US presidents Jimmy Carter and Ronald Reagan were his customers.
- Adam Ismail, Mustafa Khalil, and Abdullah al-Umari: In the year 1997, these three men belonging to Yemen, sued NASA for invading Mars. They claim that they inherited Mars from their ancestors before Mohammed. Their argument was based on the mythologies of the Himyaritic and Sabaean civilizations that were in existence before several thousand years B.C.
- Gregory W. Nemitz- Do you remember “Asteroid 433 Eros”, on which “NEAR Shoemaker” landed in the year 2001. Well, he claimed the ownership of Asteroid 433 Eros and named his company “Orbital Development”. Further, his company issued NASA an invoice of $20 for parking the spacecraft at the asteroid.
But, NASA, ultimately declined to pay, citing the lack of legal standing of the claim.
Commercial Space Launch Competitiveness Act of 2015
This Act is also known as the SPACE Act of 2015 or Spurring Private Aerospace Competitiveness and Entrepreneurship, was passed by the House of Representatives in May 2015. The Bill was passed unanimously by the Senate, however, few amendments were made, which was further than assented by Barack Obama, US President.
This Act provides an update for the government of the United States for the use of space for commercial purposes.
This United States law allows its citizens to commercially explore the space and exploit its resources such as water and minerals. It does not, however, cover extraterrestrial life.
It forbids the United States to declare any sovereign right on any celestial body.
But arguments prevail, contending that the use of the resources of the space is an act of declaring sovereignty. And that it is violative of the Outer Space Treaty.
If we look at the Space Act 2015, it was a great achievement for private companies.
One of such companies is the Moon Express, it has plans to mine the surface of the Moon.
It is just not limited to the Moon Express but indeed, there are many private companies making some objectives to mine water on the surface of the Moon. even NASA has two plans for doing the same.
Let us look at some features of the Act:
- It encourages private sector companies to involve in the activities related to the exploration of outer space and using their resources.
- It also provides for the learning period which allows fledgling spaceflight companies to carry out their operations without much government oversight.
- It gives private companies the right to exploit resources from asteroids like platinum, minerals, and water.
The arbitrariness in the Outer Space Treaty provides mixed views about the rights concerning the mining. It is still a matter of debate that the Outer Space Treaty though provides for not claiming sovereign rights on the celestial bodies but does not speak about asserting rights on the resources which are obtained through mining. If we look at the Space Act 2015, it does allow the US citizens to exploit the resources.
Debates regarding economic incentives are currently prevailing. Many people believe, if a country is using its resources to discover things, for instance, a mineral, on outer space (including the Moon and other celestial bodies), then it should in return get some incentive or a right over it.
As we have talked about the Moon Express and other private companies to mine water on the Moon, let us talk about their rationale behind it. According to them, bringing water to the Moon is way more difficult than mining it on the surface of the Moon itself. But the Outer Space Treaty, though vaguely, forbids the use of the resources on the Moon. As it is not made clear completely there is a necessity to affirm the exact rules governing it.
Jurisdiction in International Law
Jurisdiction is a practical authority given to a legal body to deal with legal matters by implications. In Public International Law, the concept of jurisdiction has a strong link with sovereignty. Jurisdiction allows the State for sovereign independence which they pass on with the global system of equal States stating the laws related to persons or activities in which they have a legal interest.
Territorial Jurisdiction of the States
It is derived from State sovereignty and constitutes several features. It is the authority of the State over persons, property and events which are primarily within its territories.
The State Authority has the power to prescribe, enforce and adjudicate the Rules of Law.
The territorial jurisdiction of the State extends over to its with:
- national airspace,
- internal water,
- territorial sea,
- national aircraft,
- national vessel,
It does not only encompass the crime committed on its territory but also the crimes that have effects within its territory. In such a case, a concurrent jurisdiction occurs.
Liechtenstein v. Guatemala
In this case, Nottebohn a german lived in Guatemala for 34 years. He has his German citizenship and then he also applied for Liechtenstein citizenship a month after the outbreak of World War ll.
The application was approved by Liechtenstein. After this approval, he travelled to Liechtenstein and during his return to Guatemala he was not allowed to enter because he was deemed to be a German citizen. Liechtenstein filed a suit before the court on Guatemala to allow him as a citizen.
The Court held that granting citizenship is solely the concern of the granting nation. But in this case, there is no relationship between Liechtenstein and Nottebohn. This happened because of the war that they became two nations. Hence, the court said that Nottebohn wasn’t forced by the Guatemala country to recognise him as a citizen and in result, the suit was dismissed.
UK vs. Norway (North Atlantic Fisheries Case)
In this case, the UK requested the International Court of Justice (ICJ) to determine how far Norway’s territorial claim extended to sea and to provide some compensation because Norway interfered in the fishing vessel of the UK and also claimed that Norway’s claim to such extent was against International Law.
The Court held that Norway’s claim to the waters was consistent with the International law regarding the part of the sea space.
Criminal jurisdiction is where the powers of the Court are described in dealing with a case where a person is accused of an offence. Criminal Jurisdiction is used in many laws like Constitutional Law and Public International Law.
The three distinct situations where only the accused person can file a suit are:
- To control the relation between States, or between one State and another;
- To control the relationship between the Federal Courts and Domestic Courts;
- Only where he has committed the offence and not in any other State. Also, the law of that State should be a codified law.
SS Lotus Case (France vs. Turkey)
In this case, there was a declaration by Turkey over the French citizen who was the first officer of the ship that collided with a Turkish ship on the High Sea. It was challenged by France as a violation of International law.
The Court stated that Turkey has the authority to arrest the French officer under the Treaty of Lausanne. It also stated that if someone challenges the jurisdiction of a Sovereign State, then the burden of proof will lie on the plaintiff.
International law is a system of freedom- countries can act in any manner which is not expressly prohibited. This case is reviewed as a high mark of positivism; that the State must keep control over sovereignty.
The Court also stated that France and Turkey had concurrent jurisdiction over cases arising abroad on a French flag vessel on the high seas. Many treaties have overruled these and said that only the flag State has jurisdiction.
Types of Criminal Jurisdiction
This includes the geographical boundary of a court’s jurisdiction. We can take an example where the Municipal Courts do not have jurisdiction over the crimes that occur outside the city limits. Let us understand this with a case law.
Mubarak Ali Ahmad vs. the State of Bombay
In this case, Mubarak Ali with a dishonest intention made a false representation to the complainant in Bombay saying that he has a ready stock of rice so that the applicant should send the receipt of money to the complainant who was anxious to import rice urgently and to receive the amount on the belief of such representations. It was contended on the grounds that the Pakistani national, during the period of the commission of the offence has not stepped in India and he was in Karachi, so he cannot be tried in the Indian Courts nor he can be held punishable under the Indian Penal Code. In the extradition proceeding the trial which is pending in a court cant be tried for the second time. Hence the conviction was unsustainable.
The Court held that all the ingredients constituting the offence of cheating under Section 420 of the Indian Penal Code have been done in Bombay, even though the offence is committed there and though the applicant was not present in India during the commission of the offence, his conviction is valid under Indian Penal Code.
As the appellant surrendered to the Indian Authorities under the Fugitive Offenders Act, 1881. There is no such provision in this Act preventing arrest in India for trial of a fresh offence. His conviction was valid. The appellant who was a Pakistani national was convicted for cheating in business under Section 420 of the Indian Penal Code.
Director of Public Prosecution vs. DOOT
In this case, the defendant was charged for unlawful acts which are for the import of dangerous drugs into the UK. Defendants counsel said that they shouldn’t be tried in England because the offence was committed abroad.
The Court held that the respondents were aliens which had a secret plan to import Cannabis in the U.K.
The House of Lords stated that English Courts have jurisdiction over the offences committed in England.
Lord Wilberforce, in this case, stated that it constitutes international elements- that the suspect were aliens and an unlawful act is done abroad.
Hence, there is no question that if there is any breach in the rule of the law then they will be prosecuted in the country where the crime has been committed.
This principle permits a country to exercise its criminal jurisdiction over the nationals accused of criminal offences in other States. In the UK it is generally limited to treason, murder and bigamy committed by British nationals abroad. Hence common Law countries never protested against the extensive use of the nationality principle to decide jurisdiction in criminal matters by other States.
The two types of Nationality Jurisdiction are:
- This principle is for the protection of interest of the State from abroad.
- Strict application on territory could be harmful to the peaceful existence of international society.
- The State has its fundamental right to apply its laws to prosecute illegal conduct.
- Treaty-based passive nationality is more effective than Statute based passive nationality.
- Jurisdiction can be exercised by the State where the offence took place.
- This has been opposed by common law States but due to the transnational crimes, it gets approved.
The Universality principle implies that a State can claim jurisdiction over certain crimes committed by any person from anywhere in the world, without any relation to territory, nationality or special State interest.
Before the Second World War, the Universal Jurisdiction was considered as similar to the International Law by the common law countries, except for the acts which were regarded as crimes in all countries and crimes against the international community as a whole such as piracy and slave trade. After the Second World War, Universal jurisdiction has been universally identified over certain acts considered as international crimes(war crimes, a crime against humanity, genocide).
International crimes committed against the international community are punishable under International Law. Under the universality principle, each and every State has jurisdiction over the international crimes that are committed by people.
The Schooner Exchange vs. McFaddon
In this case, There were two Americans who laid down their claims of ownership and entitlements to the Schooner Exchange.
The Court held that the national ships during the war are free from any obligation imposed due to the friendly relations with another State. A nation’s jurisdiction within its sovereign territory is exclusive and perfect.
It is also a type of criminal jurisdiction, but we will deal with this principle separately.
The protective principle identifies that a sovereign State can adopt a statute that criminalises an act or any conduct which occurs outside the borders and where that conduct affects the sovereign State. Under this principle, a nation can adopt laws related to crimes which obstruct the functions of government or pressurize its security.
Article 51 of the UN Charter
Article 51 provides the countries to engage in self-defence and against an armed attack. A case relating to Self-Defense is:
Nicaragua vs. USA
In this case, In 1979, when a pro soviet government called the Sandini States came to power in Nicaragua, the US authorities were alarmed, as this was the height of the cold war.
In 1981, the Reagan administration decided to support the rebel forces in Nicaragua called Somosistas, who was a USA citizen.
The Central Intelligence Agency ran extensive illegal and secret operations targeting the Nicaraguan army and air forces, supplied arms, ammunition, money and frequently kidnapped Nicaragua citizens.
Nicaragua citizens brought a case against the USA for violating the Treaty of the UN Charter.
The Court held that the US contested that ICJ did not have jurisdiction to hear this case but ICJ nevertheless proceeded with the case because of the 1955 treaty of friendship between Nicaragua and the USA.
The ICJ found out that the USA had knowingly and intentionally violated the provisions of the UN Charter, general rules of International Law and had clearly violated the territorial sovereignty of Nicaragua.
In 1992, because of tremendous pressure Nicaragua took back the complaint and unofficially apologized to the US Government.
Abdul Kader Mahomed Jhaveri vs. Union of India
In this case, the petitioner was a foreign national and a citizen of the Republic of South Africa. The passport issued by the Republic of South Africa on the basis of which he came to India and in the meantime passport expired and again he asked the Republic of South Africa for the issue of a new passport which was still valid.
The respondent who is the authority, initiated the legal proceedings against him for the breach of the provisions of the Foreign Exchange Regulations Act, that he is not a citizen of India but a resident of India.
He carries on his business activity in India. But had done without the permission of the Reserve Bank. And it was contended that the petitioner should be penalised for the breach of the provision. Due to the pending proceedings, the passport has been seized by the respondent. The petitioner contended that the seizure was null and void and without the permission of any jurisdiction. So the respondent should be directed to return the passport.
The commission of inquiry headed by Justice Shah stated that the period for which the passport was impounded cannot be said to be definite and certain and it may extend for an indefinite time. This would clearly make the validity of an order unreasonable and the validity of the passport of the petitioner is confirmed by the Central Government. The duration of the validation will not exceed more than a period of six months from the date of the decision that may be taken on the petitioner’s representation.
Cross Frontier Jurisdiction
In this, the Court may recognize jurisdiction over any conduct that applies outside its jurisdiction.
While taking any legal action of disputes between multiple parties and those other parties who will be examined, similarly in various jurisdictions in which proceedings to resolve the disputes may properly be commenced and the decisions from the outcomes will be made in such location.
Achille Lauro Incident
The US had originally planned to charge the terrorists with piracy under its Criminal Code of 1909 “whoever, on the high seas, commits a crime of piracy as defined by the law of nations, will be brought into or if found in the United States, shall be sentenced to imprisoned for life.”
This would be a problematic situation because the US government follows International Law, specially Law of the Seas, 1982 which states that if a ship is seized for any political purpose then it’s not a piracy. Due to the murder of the passengers and crew members of the ship, the US government can claim jurisdiction under passive personality principle and can accuse the terrorists under Crimes Act, 1970.
1994 Israel-Jordan Peace Treaty
Under which the Israel criminal laws are applicable for the Israelii nationals and the activities only involve them in the specified areas. Under Jordan’s sovereignty, the measures can be taken in the areas by Israel to enforce certain laws.
Principles of this Treaty
- Borders– The international boundary separates between Israel and Jordan which follows the Yarmouk River and the Gulf of Aqaba.
- Diplomatic Relations and Cooperation– parties were agreed to establish full diplomatic and consular relation and grant visas, seaports, etc. This agreement prohibits hostile information.
- Security and Defense- Each country promised to respect their sovereignty and territory and not to enter in other territories without any permission.
- Water- Israel and Jordan develop their water reservoirs and can help each other. And also for additional water, Israel agreed to help Jordan.
- Palestinian Refugees- Both countries agreed to help the refugees.
Multiple Jurisdictional Grounds
Tokyo Convention, 1963
It is also known as the convention on offences. Tokyo Convention can be applicable for the offences against the Penal Laws and Acts that risks the safety of the persons or property on board civilian aircraft while in flight and engaged in international air navigation.
This conference was for the purpose of further consideration, finalization, adoption and opening for the signature of Rome Draft. Sixty-one States and Five International Organizations were present at this conference.
Montreal Convention for the Suppression of Unlawful Seizure of aircrafts against the safety of civil aviation
It is a multilateral treaty by which States agree to prohibit and punish, who threatens the safety of civil aviation. It only applies exclusively to civilian aircrafts but does not apply to customs, law enforcement or military aircraft.
This convention criminalises the following behaviour:
- If an act is committed on a person who is onboard an aircraft and is likely to endanger the safety of the aircraft.
- Destroying or damaging such an aircraft in such a way which is likely to endanger the safety in flight.
- A device of substance placed or for causing destruction or damage to an aircraft.
- Any information which is known to be false, thereby endangering the safety of an aircraft in flight.
It lays the principle of aut dedere aut judicare that the party to the treaty must either-
- Prosecute a person who commits one offence.
- Send the individual to another State that requests extradition for the prosecution of the same crime.
What are the conflicts that arose in Jurisdiction?
- The jurisdiction of the State is parallel with the jurisdiction of another State. More than two-State can exercise the jurisdiction against the same person or on the same matter.
- Even the State having territorial jurisdiction cannot claim over the States having custody over the accused.
What are the Immunities from Jurisdiction?
It refers to the legal rules and principles which determine the condition from which the State can claim the exemption of sovereign immunity from the jurisdiction of another State. This immunity is a creation of the customary international law which is derived from the principles of independence and equality of sovereign States.
The rules here are the most accepted and uncontroversial rules of International Law. This helps in the maintenance and conduct of the relations between the States.
Diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State.
The consular officer is like a diplomatic agent who represents the State who will be receiving State. Not granted the same degree of immunity from jurisdiction as a diplomatic agent.
However, the individual State plays a leading role in the worldwide organisation in spite of having multilateral agreements and centralized agreements. There must be friendly relations between the States to avoid conflicts on the territorial borders. Territorial jurisdiction and State jurisdiction plays an important role as it is very important to follow all the rules stipulated in different provisions.
Extradition is the act by one jurisdiction of delivering a person who has been accused of committing a crime in another jurisdiction or has been convicted of a crime in that other jurisdiction into the custody of a law enforcement agency of that other jurisdiction.
To simplify the definition, let us take into consideration an example: If A has committed a crime in the jurisdiction of Country X and fled to Country Y, then depending upon the relations of the two countries, the accused or convicted person can be extradited to the law enforcement agency of Country X by Country Y.
The extradition process is solely based upon the relation the two jurisdictions have with one another. If the two nations have a healthy relationship between them and they do have a treaty to that effect, then the process of extradition can be processed much easily. Extradition is a two-way process where the accused may be sent from one country to another or the other way around.
Procedure for Extradition
The initial procedure for extradition involves:
- The extradition process is put in motion by the receipt of information/requisition regarding fugitive criminals wanted in foreign countries. The source of information may be directly from the diplomatic channel of the concerned country, General Secretariat of ICPO/Interpol in the form of red notices or other settled modes of communication.
- After the requisition/information is received, a magistrate is asked to carry forward the inquiry in that particular case.
- After a detailed inquiry, the magistrate shall issue a warrant of arrest against the fugitive.
- A formal request by one sovereign nation to another sovereign nation is made on the basis of the warrant.
- If the accused person is found guilty in the country where the request for the same has been made, the accused may be arrested.
- The country that arrests the accused may subject him/her to the extradition process where he/she may be deported to the country who has made the request.
- It is to be taken into consideration that the accused is subjected to the laws of the nation in which he/she is found.
Extradition Laws in India
In India, the extradition of a fugitive (accused or convicted) is governed by the Extradition Act,1962. The extradition of a fugitive depends upon the treaties/conventions/arrangements entered into by India with other countries. Thus, the extradition act has to be read along with the treaty/convention/arrangement that India has with other countries.
It must be noted that it is not essential to have the treaty to extradite a person from India. If there is no extradition treaty made by India with any foreign state, the Central Government may treat any convention as an extradition treaty only to the extent of offences mentioned in the convention to which India and the foreign country is a party.
Extradition treaty means a treaty agreement or arrangement made by India with a foreign State relating to the extradition of fugitive criminals. Extradition treaty contains the conditions that need to be fulfilled to continue with the process of extradition and also a list of crimes on the basis of which a fugitive may be detained in the foreign country.
India currently has signed 42 extradition treaties with countries around the globe to ease the process of extradition. Some of the countries are Australia, Brazil, UK, USA, etc. India also has nine extradition arrangements with countries like Sweden, Singapore, Italy, etc. A list of all the treaties entered by India can be accessed from (here).
With the ever-growing connectivity across the globe, there has been a humongous growth in the crimes committed internationally. Thus, extradition is a very effective way in which cooperation among foreign nations shall help in curbing these crimes at international level and at the individual level as well.
There are more than 60 criminals that have been extradited from various countries to India in respect to various crimes committed by them from the year 2002 to date. List of Fugitives Extradited by Foreign Governments to India can be accessed from (here)
Provisions in CrPC which state the procedure to be followed for Extradition
There are several sections of CrPC which lays down the procedure that needs to be followed in the process of extradition of a fugitive from a foreign country or for sending a criminal involved in a crime in a foreign country to that country. These sections provide a guide to deal with the process of extradition.
Sections dealing with the process of extradition are:
- Section 41- When police may arrest without warrant
- Section 166A- Letter of request to a competent authority for investigation in a country or place outside India.
- Section 166B- Letter of request from a country or place outside India to a Court or an authority for investigation in India
- Section 188- Offences committed outside India.
We will discuss in detail each above-mentioned sections that are guidelines for the working out extradition.
- Section 41- When police may arrest without warrant
Section 41(1) of the Code of Criminal Procedure, 1973 lays down the condition upon which a police officer has the right to arrest an individual without a warrant. Sub-Section (g) of Section 41 provides that if the police have a reasonable complaint or a credible information against an act of an individual which is committed at a place outside India and if such an act would have been committed in India would be punishable as an offence, the police has the right to arrest or detain such individual without a warrant in India. In other words, this subsection gives the police the power to arrest a person without a warrant if such individual is involved in an act outside India which would be punishable as an offence in India.
- Section 41- When police may arrest without warrant
- Section 166A of CrPC – Letter of request to a competent authority for investigation in a country or place outside India.
This section says that if during the course of investigation for an offence, an application is made by an investigating officer who states that evidence may be available in a country or place outside India, then any criminal court may issue a letter of request to a Court or any authority in that particular country who is competent to deal with the request. The request may involve examining the person who may be acquainted with the facts and circumstances of the case or retrieving any document which may be in possession of the person being questioned pertaining to the case. Each document or statement shall be treated as an evidence as received in the course of the investigation. The court issuing the letter of request must follow the rules as specified by the Central Government on this behalf. The country requesting to conduct an investigation in another country shall have to be bound by the extradition treaty that the two countries have. If a country does not have any treaty to that effect, the request will be rejected.
- Section 166B of CrPC – Letter of a request from a country or place outside India to a Court or an authority for investigation in India
This section of the CrPC provides for that if a letter of request is received from a foreign country by India for the purpose of investigation in India which involves examination of a person or production of any document, the Central Government may forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall exercise his discretion and either shall summon the person before him and record his statement or cause the document to be brought forward or send the letter to any police officer for investigation, who shall then investigate into the offence in the same manner, as if the offence had been committed within India. After the investigation is completed all the pieces of evidence collected during such investigation shall be forwarded by the Magistrate or police officer to the Central Government for channelling such information to the Court or the authority issuing the letter of request, in such manner as the Central Government may deem fit.
The Central Government can accept or reject the request based upon the extradition treaty that India has with that particular country requesting for an investigation.
- Section 188 – Offences committed outside India
Section 188 of the CrPC recites that when an offence is committed by a person (whether citizen or not) outside India, whether on the high seas or elsewhere, or on any ship or aircraft registered in India, he may be dealt with regard to such offence as if it had been committed at a place within India at which he may be found. For the purpose of enquiry or trial for an offence, a sanction is required from the Central Government. A person who commits a crime outside India but is subsequently found in India, he may not fall within the purview of Section 188 of the Code.
The Central Government may refuse to extradite an offender if he has already been tried in Indian court for an offense wanted for the same in a foreign country. The government may also refuse to prosecute an offender already tried in a foreign country for a particular offence.
“Extradition is thus delivered on the part of one state to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the courts of the other state.” Extradition in India is governed by the Extradition Act, 1962 which lays down the procedure for extradition. Countries for the purpose of extradition need to enter into an agreement which is called a treaty that will govern the extradition process. Some procedures regarding the extradition are mentioned in the Code of Criminal Procedure under the sections 41, 166A, 166B and 188. Thus, extradition is governed by several statutes and treaties.
The quote by Warsan Shire depicts the harsh reality of how the persecution or its fear drives millions to leave their homes and seek asylums. As per the United Nations Human Rights Commission(UNHRC)’s 2018 data, 70.8 million people were forcibly displaced worldwide out of which 3.5 million were asylum-seekers.
Around 1 million asylum-seeking applications were filed in the first half of the year 2019. It is believed that the concept of asylum is as old as life on earth, and with developing years it has taken a structured meaning and implications.
This article describes the concept, types, needs, and other factors related to the concept of an Asylum and Asylum-seekers.
Asylum in International Law
It is pertinent to first understand the term ‘Asylum’. It has been derived from a Greek word whose Latin counterpart is ‘Asylon’ and it means ‘freedom from seizure’. There is no specific definition of Asylum but it can be understood as legal protection granted to the people who have fled their home countries due to warship, conflict, persecution, or fear of persecution. It is a possibility to remain in a country either permanently or for a temporary period. A person who seeks International asylum i.e. an asylum seeker is known as an ‘Asylee’.
The process is that an individual has to apply for asylum in a particular country, while their application is pending they are made to stay in a detention camp. Once, the applications are accepted i.e. their claims are accepted, then these people get the status of a refugee and the rights that come along with it.
It is worth noting that there has been a continuous conflict on the question of whether the right to asylum is a right of an individual or of the state?
There are few declarations that provide the ‘Right to Asylum’ like the Universal Declaration of Human Rights(UHDR), the Vienna Declaration on Human Rights and Programme of Action and the Convention on Political Asylum which was concluded by the Seventh International Conference of American States in 1933.
Article 14 of the Universal Declaration of Human Rights provides the right to an individual to seek asylum in any country to protect them from persecution. Provided as per clause 2 of Article 14 that any individual who has a criminal record of anything which is not acceptable as per the principles of the United Nations, cannot seek asylum and in case of non-political reasons, the asylum can be denied. It is considered as the fundamental law. However, India is not a party to it.
Article 33(1) 1951 Refugee Convention prohibits the expulsion or return of refugees and asylum-seekers if their life or freedom is in danger based on their race, religion, membership of a social group, political opinion, or nationality.
New York Declaration for Refugees and Migrants by the UN General Assembly in 2016 also reaffirms the ‘right to seek asylum’ and freedom of an individual to leave or return to their country.
Article 18 of the Charter of Fundamental Rights of the European Union also provides that as per the rules of the Geneva Convention(28 July 1951) and 1967’s protocol, the right to Asylum is guaranteed.
In 1993, the Vienna Declaration and Programme of Action also reaffirmed the right to seek and enjoy asylum in other countries and the right to return to their own country.
However, the articulation of the law of the right to asylum signifies that it is not the right of an individual, but rather is a right of the state to grant asylum. It depends on the discretion of the State whether it grants the asylum or not. The decision of the state must be respected by all the other states. States have to take into account their economic status before granting asylum as it is the duty of the state to ensure its economic stability.
Various countries have provided the right to asylum in their Constitutions to the people who have fled from persecution, for example- Constitution of France, Article 10 of the Italian Constitution, Article 31 of Yugoslavia Constitution, etc.
‘Right to Asylum is a right to seek and not to receive.
It is granted when the state provides asylum to asylee within its territory. The exclusive control of every sovereign state over its territory backs up the right of a state to grant territorial asylum. It is an exception to the extradition.
- If an individual, ‘A’ from Syria comes to Turkey and applies for asylum due to the horrifying condition in Syria and apprehension of danger to his life.
- If the individual is granted by the Turkey government within the country itself, it is an example of Territorial asylum.
In 1947, the topic was first raised by the Commission on Human Rights and later was incorporated in the UDHR under Article 14. Later in 1967, after a rigorous attempt, the General Assembly had passed a ‘Declaration on Territorial Asylum’ at its twenty-second session.
Article 1(1) of the Declaration on Territorial Asylum states that a state can grant asylum by exercising its sovereign power to an individual who invokes his/her right under Article 14 of UDHR. Article 1(2) provides that if an individual that has a record of crime against humanity, peace, or a war crime cannot seek asylum in another country. Article 1(3) provides the power to the state to evaluate based.
Article 2 provides that if any state feels overburdened in providing asylum to the people then States shall either individually or through the United Nations help that particular to lighten the burden.
Article 3(1) provides safety to the individuals and assures that once they are provided asylum in a country they cannot be expelled or forced to return to a place where they might be persecuted. Article 3(2) and 3(3) act as exceptions to Article 3(1). Article 3(2) provides that a State can expel or force to return the person to protect the national security of the state and Article(3) provides that if the State feels justified to send away an individual then it shall give the opportunity to allow it to go to another state. Article 31, 32, and 33 of the Refugee Convention of 1951 support the said principle.
An individual must not be provided Asylum to engage in activities that are contrary to principles of the United Nations, this is provided in Article 4 of the declaration.
In case of an extradition treaty between two countries, the countries are bound to extradite the offender in terms of the other country’s law. In Territorial Asylum, the state has the power to impose restrictions on asylum-seekers’ movement, etc.
Some famous examples of this type of asylum include:
- The asylum that was given by India to Dalai Lama and his followers in India in 1955 as those people were facing atrocities for a long time in China.
- Salman Rushdie, a writer who was in controversy for his novel ‘Satanic Verses’ was given Asylum by the United Kingdom.
It is granted when the state provides asylum outside the territory of its state, such as in warships, legation consular premises, international headquarters, or its Embassy situated in a different country i.e. one of its public places situated/ lying in foreign territorial borders. The term extra-territorial means beyond the jurisdiction of the authorities of the state where such establishment is i.e. the local authorities. The immunity is granted to the diplomats and other officials to protect their country’s interests. The local authorities are not allowed to enter the Embassy of any country situated in their country without having special orders.
- If ‘A’ from Syria approaches the US Embassy in Syria for grant of Asylum due to imminent danger to his life.
- If the US Embassy grants the Asylum, it becomes an example of Extra-Territorial Asylum.
Earlier the practice of extra-territorial asylum was often exercised but with the development of time, it has been restricted to only in urgent cases, once it is assured that the local government cannot keep the asylum-seeker safe. It is granted on a temporary basis and ends once the emergency is over. The reason being that it is seen as a derogation of the sovereign power of the state over its territory. Providing asylum in such cases, to an extent deprive the local country’s jurisdiction over all the individuals present on its territory. There have been instances of people misuse of the right to seek asylum by hiding people who have committed political crimes.
The Convention on Asylum held in Havana in 1928 to which only a very few countries have ratified, provides that it is not allowed for states to grant asylum to people who are accused of common crimes or deserters from the navy or army in their legations, military camps, warships or military aircraft. There are the following types of extra-territorial asylum:
Asylum in Diplomatic Asylum
It is granted when the state provides asylum in the Embassies, foreign legations, and consular premises(premises of a consul-an individual who heads a particular mission in that local country). It has not been recognized as a right because it is often believed that it interferes with the sovereign power of the host country over its territory. Normally, the right to asylum, it is not recognized in International law but asylum can be granted in the following exceptions:
- If individuals are in physical danger due to violence.
- In case of a binding local custom.
- In case of a special treaty between the State of Legation concern and the territorial State.
The two reasons for not recognizing it are: firstly, it violates the territorial sovereignty of the state; and secondly it is the violation of diplomatic or consular immunity. The receiving party cannot enter the foreign legations and consular premises without the consent of the mission head.
In Latin America ‘right to seek extra-territorial asylum’ is recognized not as an International law but as a local law due to increased violence and government instability. Britain does not recognize the right to asylum in diplomatic or consular premises or ships but it has granted asylum in cases of emergency on humanitarian grounds. Similarly, other countries also do not recognize it as an International law but provide it in case of an emergency.
In fact, India also does not recognize such rights but exceptions have been seen. For instance, Aziz Olough Zade, a Soviet defector was granted asylum in the USA embassy in India after which foreign missions were urged to respect the International practice and not grant asylum unless urgent.
A remarkable example is an asylum provided by the USA to the Hungarian Roman Catholic Jozsef Cardinal Mindszenty who was unsuccessful against Hungary’s communist government in 1956. He was later provided with the refugee title and he stayed for 15 years in the USA.
Like various countries, the US and Cuba entered into a consular convention in 1926 whose Article VIII provides that a Consular officer will have to hand over the individual to whom asylum has been provided in the consular office.
Asylum in the premises of the International Institution
There is no general right to grant asylum in International institutions. In terms of International law, there is no recognition of such a rule. International institutions include the United Nations Organization (UNO), the World Trade Organization (WTO), etc. The absence of any agreements of the United Nations or other agencies in this regard has kept the answer to this inconspicuous.
However, looking closely at the laws and precedents it can be concluded that in the premises of International institutions one cannot be granted asylum. However, every case might be considered based on a humanitarian basis.
Asylum in Warship
The situation in this aspect is very uncertain as there are no specific guidelines regarding this. However, the laws are similar to those of asylum in legations, consular premises, and embassies. When a warship is in the territorial water body of another state then the coastal state only has the power to require the ship to leave their territorial waters and do nothing else.
The Havana Convention on Asylum’s Article 1 provides that people who are accused of common crimes and not political crimes if taking refuge under a warship, military camps, or aircraft or legations shall be handed over to the local government on request.
Article 2 of the Convention provides that asylum at such places be provided only in urgent cases. Once the asylum is granted the foreign minister of the asylee’s country should be informed to ensure his/her safety. The convention basically permits the grant of asylum to political offenders.
Certain countries like the USA and UK accept the practice to grant asylum on warships on humanitarian grounds for a temporary time.
A significant example of this was the conflict between Argentina and Paraguay. In 1911, revolution broke out in Paraguay due to which various revolutionaries sought refuge on the Argentine vessels. This led to conflict between the two counties as Paraguay contended that the asylum-seekers were not political refugees rather were common criminals or deserters. The incident led to the breaking of ties between the two countries.
Asylum in Merchant Vessels
Merchant vessels include the commercial ships, the territory in which they are the law of that country is binding upon them. They do not exercise or enjoy immunity similar to warships. For instance, if an individual commits a crime and then asks the merchant vessel of the UK which is in the water body of France, to grant him asylum. In such a case the French government can assert the individual either before leaving the port of France or when it reaches another port of France. Asylum can be granted if there is a treaty between the two Nations.
The laws of maritime state that if the asylum-seeker is in life-threatening trouble and facing serious persecution then he/she will be allowed the asylum. In 2013 a British merchant ship on the wharf of Christmas Island rescued around 78 asylum seekers from a stricken vessel.
To conclude, asylum is granted in consulates, embassies, legations, warships, merchant vessels, and not just to political offenders but also in certain cases to common criminals. The purpose behind it is to save human beings from persecution, retribution.
Benefits of asylum
Leaving your home and moving to a different country without having any certainty about future settings is the biggest challenge humans can face in their lives. It provides protection to the people who had been forced to leave their home countries. It provides freedom from torture or degrading treatment. They are imbibed with the right to freedom of opinion and expression.
It is basically granted to save the lives of people from the local authorities’ jurisdiction when the person fears that he/she might not be provided with a fair trial and if he/she stays any longer in that place will have to face persecution either physical, mental or economic.
Humanity shall always prevail, a quote that every country tries to abide by. The benefit of asylum is that it protects the individual from being forced to return to their home country. Their families stay protected at a place where they no longer have to worry about their lives.
Despite some restrictions which may be imposed by the host country, one can be allowed to work and earn. Once the asylum seekers get the title of refugees, they are provided with the same rights subject to exceptions like political rights and respect as that given to a citizen of that country. Some might even obtain the citizenship of the country where they have been granted asylum. Some can also opt for the resettlement option in case of strong reasons.
To conclude it provides a new shot at life to the traumatized group of people.
Role of Nationality in the Asylum
The 1951 Refugee Convention contains the provision that no individual can be discriminated against on the basis of race, religion, or country of origin. However, when the State is deciding upon the question of whether one should be granted asylum or not, various factors are considered. The individual after submitting the application is interviewed to gather all the information regarding his/her background, the reason for pleading for asylum, etc. the state often considers the nationality, background of an individual to decide whether the person is in actual need or not.
For instance, a person who belongs from Syria or South Sudan gives the reason that they fear persecution and imminent danger to their lives due to the ongoing unsettlement among middle east countries shows the genuineness of the reason for leaving their home country.
It is not a sign of arbitrary discrimination rather it is seen whether the people of a particular nationality or belonging to a linguistic group are facing persecution in their home country, this question helps the host state to conclude the application process.
Difference between Asylum and Extradition
These two terms are extreme poles of each other i.e. totally opposite to each other. Asylum is providing protection and a safe place by the host country to all those who have been exposed to risk and persecution and therefore have left their home countries. On the other hand, extradition is the process of sending back a fugitive by one country to another, the main purpose is to criminally prosecute the fugitive. It is a process that takes place only when the two countries involved have a certain ad hoc agreement or bilateral treaty regarding it.
Extradition is the process to make sure that the fugitives are punished and justice is served and criminal cooperation is strengthened between sovereign states. Whereas, asylum is to provide safety and freedom from torture and a chance to live a peaceful life. If Asylum has been granted to the person then the court of law will not hear the expedition case and similarly, if a case of the expedition is pending against an individual, he/she would not be granted asylum.
If a country wants to request the extradition of an individual, it needs to ensure that the request made is in compliance with Article 33 of the 1951 Geneva Convention which deals with the International law’s principle of non-refoulement. It is decided by the court whether the person should be extradited or not. Whereas, the executive decides whether an individual should be granted asylum in their country or not based on factors like practical and political possibilities and grounds.
Famous cases of Asylum
Assange v. The Swedish Prosecution Authority
The recent case that has captured a lot of media attention is of Julian Assange. He is an Australian editor, publisher, and founder of WikiLeaks who was accused of a rape case and a molestation case by the Sweden government. The Sweden government had filed for the extradition of Assange and the UK Supreme Court had ordered for his extradition to Sweden in May 2012. In June 2012, he was granted asylum in England at the Embassy of Ecuador.
The reason was given that his human rights would be violated if he is sent to Sweden. In 2015 Sweden dropped the charges against Assange. In February 2012, the UN declared that he had been ‘arbitrarily detained’ by the Ecuador embassy. In May 2019 he was sentenced for 50 weeks jail for breaching bail conditions.
He has also been accused of committing a crime against the United States of America by releasing the confidential documents of the United States of America on his website named ‘WikiLeaks’. The USA has been trying to extradite him to their country.
Colombia v. Peru 1950
It is a landmark case that has described in detail the law on diplomatic asylum.
A national of Peru who was a political leader named Victor Raul Haya de la Torre, he was accused of instigating a military rebellion. He was granted asylum by the Colombian embassy at Limo. However, he was not allowed to leave the country. The dispute arose between Peru and Colombia and the matter was then referred to the International Court of Justice. The main question raised was regarding the right to grant diplomatic asylum.
The court carefully observed that:
- Diplomatic asylum is the derogation of territorial sovereignty and it should not be recognized unless in each case a legal basis is established.
- The state providing such a grant must prove that it has the right to grant diplomatic asylum and it should be respected by the territorial State.
The Court also observed that there is no international treaty related to Diplomatic Asylum, only Latin American and Central American countries have such rights. Diplomatic Asylum is defined as the asylum provided to people who are political offenders and fear that if they are prosecuted, they will have to face an unfair trial and therefore want to escape the persecution. The Court held that it is a settled fact that common criminals cannot be granted asylum.
In 1997, in the case of A and Another v. Minister for Immigration & Ethnic Affairs Chinese nationals asked for asylum in Australia and claimed that they fear prosecution because they are expecting a second child which might land them in trouble. The reason being that China has adopted the one-child policy and the fear arose that they would be subjected to sterilization as the community from which they belonged had only one child and whosoever surpassed the limitation was forced or coerced to undergo sterilization. The Court of Australia did not accept it to be a sufficient ground of persecution. Whereas, the US Congress has recognized that forced sterilization amounts to and is enough to be considered as a ground for persecution.
In India, there is no specific law related to asylum-seekers. They are categorized as ‘foreigners’ under various acts like Registration of Foreigners Act,1939, Foreigners Order, 1948, Passport Act,1920 and The Foreigners Act, 1946. India is not even a party to the Universal Declaration of Human Rights(UDHR). Still, India has provided asylum in certain cases, the main one being the asylum provided to the Dalai Lama and his followers in 1955 despite being highly criticized by the China government. India had the power to do so by exercising its sovereign power.
Asylum is a very crucial part of International law. Now more than ever, when the middle-east countries are under turmoil, with increasing wars among countries, CAA-NRC debate in India, etc. It has become necessary to ensure the proper implementation of the right to grant asylum with prudence and forethought. There is still a need to remove the layer of obscurity over the Diplomatic Asylum concept. Various countries including India need to have a clear Asylum law in their countries. As the principle that every country needs to abide by is the principle of humanity.
Diplomats are the persons who reside in foreign countries as the representative of the country by whom they are dispatched. They act as a link between the country who dispatch them and by whom they are accredited. Therefore, they perform the act of diplomacy, which in International Law means by which the States maintain or establish mutual relations and carry out their legal or political transactions based on their foreign policies.
Act of diplomacy may be performed by the head of State, Government, Minister of Foreign Relations or by and by diplomatic agents.
Law on Diplomatic agents
The practice of sending and receiving diplomatic agents has been followed by states since ancient times. In ancient times ‘Doors’ were sent from one Rajya to another. However, in ancient times the practice was not uniform nor were they sent permanently to another Rajya. The practice of permanently sending diplomatic agents started in the seventeenth century.
By the second half of the seventeenth-century permanent legation became a general institution and certain rights and duties almost identical in nature were provided to the diplomats.
The Congress of Vienna of 1815 for the first time codified customary rules of International Law on ranks of diplomatic representatives. The institution of diplomacy continued to develop after 1815 and after the establishment of the United Nations, the task for codifying the law relating to diplomatic agents was given to the International Law Commission.
The Commission prepared the draft article and submitted them to the General Assembly. The Assembly convened a conference in 1961 and adopted Vienna Convention on Diplomatic relations.
Classification of Diplomatic agents
Diplomatic agents accredited to a State differ in class. The Vienna Convention on diplomatic relations, 1961 under Article 14 divides diplomatic agents into three classes. They are:
- Ambassadors accredited to head of State.
- Envoys, ministers accredited to the head of State.
- Charges d’ Affairs accredited to Ministers of Foreign Affairs.
Functions of Diplomatic Agents
Functions of diplomatic agents are determined by the rules and regulations of International Law and municipal law (law of country) of the States. Article 3(1) of the Vienna Convention of Diplomatic Relations, 1961 lays down various functions of diplomatic agents which are as follows:
- Representation: Diplomatic agents represent the policies and beliefs of the State by which they are dispatched to the state where they are accredited. The function of representation is primarily entrusted to the head of the mission. Oppenheim, in his book, says that “diplomats are the mouthpiece of the head of his own State and the Foreign Minister for communication to be made to the State where they are dispatched.
- Protection: Diplomatic agents protect the rights and interests of sending State and also of nationals, within the limits allowed by the municipal law of respective State. The limit of diplomats is not prescribed by the International Law but by the municipal law of the State.
- Negotiation: Negotiation is the most important function which is performed by the diplomatic agents. Generally, the head of the diplomatic mission negotiates on various aspects on behalf of the sending State with the State to which they are accredited in order to maintain a friendly relationship. Diplomatic agents are required to communicate the outcome of the negotiation to sending State from time to time,
- Observation: Diplomatic agents are required to observe those events and happenings which take place or which may take place in the State where they are accredited, especially those which may affect the interests of the State by which they are sent. After making observations of the events, they are required to make periodical reports to the government of the sending State.
- Promotion of Friendly Relations: Diplomats are required to promote friendly relations between the sending State and the receiving State. They also have the function to develop the social, cultural and economic relations between the two States.
- Consular Functions: Vienna Convention lays down that diplomatic agents can also perform consular functions which may be allotted to them from time to time such as death, birth and marriage registrations of the subjects of home State, issue of passports etc.
Diplomatic immunities and privileges
International Law confers diplomatic immunity on diplomats from the exercise of jurisdiction by receiving States. The principles governing diplomatic immunities and privileges are among the most ancient and universally recognised principles of International Law.
Basis of Diplomatic immunity and privileges
Different international jurists have divergent views as to the basis for giving immunities to diplomatic agents. Their views led to the emergence of three important theories which are as follows:
- Extra-territorial Theory: This theory is also known as the fictional theory. According to this theory, diplomatic agents are considered not within the territorial jurisdiction of the State to which they are accredited, but to all times within that of the sending State. Extra- territorially of diplomatic agents means that though diplomats physically present upon the soil of the country to which they are accredited but they remain for all purposes on the soil to which they represent.
- Representational Theory: According to this theory, diplomatic agents are regarded as personal representatives of the sovereign of the sending State. Therefore, they are given the same degree of privileges and rights which are given to the head of the sending State.
- Functional Theory: According to this theory, diplomatic agents are given immunities because of the nature of their functions. The duties which the diplomats perform are far from easy. In other words, their actions of duties are of typical or some special nature. They are allowed immunities from the legal and other limitations of the State to which they are accredited to effectively perform the tasks they are allotted.
Privileges and immunities of a Diplomat
Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and privileges which are granted to diplomatic agents. They are as follows:
- Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle which is recognized in International Law much before the adoption of the Convention of 1961. Article 29 of the Vienna Convention lays down that “the person of a diplomatic agent shall be inviolable”. He shall not be liable to any form of arrest or detention, and the receiving State shall treat him with all due respect and should take all appropriate measures to prevent an attack on his personal freedom and dignity.
- The Government of the receiving State by virtue of Article 29 is under a duty to abstain from any form of conduct which is injurious to the diplomatic agents and also under a duty to prevent such injurious conduct if attempted by another.
This does not mean that the immunity given to the diplomats is absolute. The receiving State has the power to arrest or detain the diplomatic agent in exceptional cases For instance, a drunken diplomat with a loaded gun in a public place can be arrested or if a diplomatic agent commits an act of violence which disturb the order and peace of receiving State in such a manner that it becomes necessary to put him under restraint for the purpose of preventing similar acts.
Inviolability of Staff of Mission
In addition to the head of mission, immunities are also given to the staff of the mission, which is defined in Article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna Convention lays down that members of the administrative and technical staff shall enjoy the immunities and privileges as mentioned from Article 29 to Article 35 if they are not nationals or are not permanent residents of the receiving State.
Thus, administrative and technical staff only enjoys personal inviolability (Article 29), inviolability of residence (Article 30(1)), immunity from criminal jurisdiction (Article 31(1)), exemption from certain taxes and duties (Article 34) and immunity from civil and administrative jurisdiction exists when they are performing service duties [Article 31(1)].
Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff if they are not nationals or permanent residents of the receiving State. It provides immunity to the acts performed in course of their duties, exemption from taxes and duties on emoluments received and exemptions on social security provisions.
Inviolability of family members
Vienna Convention of Diplomatic Relations in its Article 37 Para 1 states that “immunities and privileges to the family members of diplomatic the diplomatic agents having diplomatic ranks may be given, if firstly they are not nationals or permanent resident of receiving State and secondly, so long as they form the part of household, i.e. they live under one roof”.
So if the son of a diplomat is studying in any University of the receiving State and just comes on weekends to meet his parents, then he will not be provided with any immunity as he is not forming part of the household.
- Inviolability of premise: Article 21 of the Vienna Convention lays down that, “a permanent diplomatic mission needs premises to operate and the receiving State must help the sending State to obtain the premises from the mission”. The sending State has the right to use its flag and emblem on the premises (Article 20). Article 22 of the Vienna Convention of Diplomatic Relations stipulates the customary rule of International Law by stating that “the premises of the mission shall be inviolable”. Further Article 30 also provides that “private residence of a diplomatic agent shall also enjoy inviolability”. The agents, police or any officer of the receiving State are not allowed to enter the premises without the consent of the head of mission. However, the inviolability of premises is also not absolute; it can be compromised in certain exceptions. Article 41 of the Convention itself lays down that “premises of the mission should not be used in any manner as incompatible with functions of mission or by rules of general International Law”. So, if the inviolability of premises is abused then the receiving State should not bear it passively and can take all the necessary steps to stop the actions of agents.
- Inviolability from being a witness: Diplomatic agents are completely immune from being a witness in any civil or criminal or administrative court of State to which they are accredited. He is also immune from giving evidence before the Commissioner. However, they may appear before any court by waiving of their immunity. Article 31(2) lays down that “diplomat agent is not obliged to give evidence as a witness”.
- Immunity from taxes and customs duties: Article 34 of Vienna Convention lays down that, “diplomatic agents shall be exempted from all dues and taxes, personal or real, national, municipal or regional”. Initially, before the convention, this right was given to the agents due to Courtesy but Convention has incorporated it with more precise definition.
- Immunity from inspection of Personal Baggage: The bag used by the diplomatic agents for sending articles, letters or documents to the sending states or any other missions of its State to abroad be known as a diplomatic bag. Para 3 of Article 27 of the Vienna Convention lays down that “diplomatic bag should not be opened or detained’. But according to Article 36 Para 2, this right is not absolute. It lays down that, “general practice of exempting the diplomats’ personal baggage from a custom inspection is qualified by the provision that inspection can be conducted in presence of a diplomatic agent or his agent if there are serious grounds for suspecting that the article is not for official use”.
- Freedom of Communication: Diplomatic agents are free to communicate any information for official purposes to the State by which they are accredited. Article 27 of the Vienna Convention lays down that “the freedom of communication also involves the use of code messages and couriers”.
- Freedom of movement and travel: Article 26 of Vienna Convention empowers diplomatic agents to move and travel in the territory of receiving State but subject to laws and regulations of International Law and rules made by receiving State concerning security zone.
- Right to worship: Under Article 3(1) of Vienna Convention diplomatic agents have the right to worship any religion they like within the mission premises or residence. But they cannot invite any nationals of the receiving State to take part in the worship and have no right to preach their religion in the receiving State.
- Immunity from the Local Jurisdiction: Diplomatic agents enjoy immunity from the jurisdiction of local courts. The immunity extends both to criminal as well as civil jurisdiction.
Article 31, paragraph 1 of the Vienna Convention provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. Thus, the receiving State has no right to prosecute and punish diplomatic agents. Immunity of diplomatic agents from civil and administrative jurisdiction also a well- recognized principle of International Law.
Diplomats are provided immunity to effectively perform their function because of the typical nature of functions and diplomats being the representative of the head of State. All the rights and immunities provided to the diplomats are not absolute; they can be compromised within certain exceptions. At present, the institution of diplomatic representatives has become the principal machinery by which intercourse between States is conducted.
Key Principles of Diplomatic Immunity
Exemptions and Immunity from State Jurisdiction
Jurisdictional immunity states that the persons with diplomatic immunity cannot be brought before the courts for the allegations of any unlawful acts or offenses committed while being in the State in which they were accredited during the tenure of their dealings in that mission. This extends to all jurisdictions whether civil, criminal, or administrative. Thus, a diplomatic envoy who commits an unlawful act in the state where he is accredited for the diplomatic mission cannot be prosecuted in the local courts. The general reasoning behind the jurisdiction of criminal matters is to prosecute and punish those people who commit unlawful or illegal acts. Immunity from criminal jurisdiction of a diplomatic agent which is provided in Article 31 states that the diplomatic agent cannot be put forth before the courts of criminal jurisdiction of that host state for any illegal acts or offenses committed in that State, which is contrary to the very spirit of the rule of law and justice.
Theory of Non-Interference
The principle of non-interference states that the Sovereign state shall not intervene in each other’s internal affairs.
It is the common principle of contemporary international law that the basis of non-interference in each other’s internal affairs is the duty of “respect for state’s sovereignty and territorial integration” which further governs the relations between the states in regards to their rights and obligations. It is also considered as a general rule of International law in compliance with the purposes and principles of the UN charter.
Rule of Reciprocity: (Absolute immunity)
Reciprocity in international law can be best described as a creator of a balance between the interests and actions of the state.
The Reciprocity principle plays a prominent role in a decentralized system of public international law where there is no overruling legal authority to establish, adjudicate, or to enforce all International rules. The principle or rule of reciprocity in international relations suggests creating an environment where the states help and support each other under a reciprocal relationship for a particular, short, or long-term advantage through the means of balance in their rights, interest, and duties.
Mighell V. Sultan of Johore Case
Facts of the case:
- The sovereign status of a Sultan was an Issue in one of a court case in England.
- When Miss Mighell sued the Sultan of Johor who was traveling incognito in the State of the United Kingdom for breach of promise of marriage.
- The Court granted the Sultan an “independent sovereign” immunity from its jurisdiction.
- The decision was on the basis of a letter from the Secretary of State for the Colonies stating that “generally speaking, [the Sultan] exercises the usual attributes of a sovereign ruler without any sort of question.” This further demonstrates the British recognition of the Sultanate of Johor as an independent State.
Issue: Whether sultan Johor will get diplomatic immunity or not?
Decision: Court held that the Sultan of Johor will get the diplomatic immunity as an “independent sovereign”.
Principle: Foreign sovereign shall be treated as an independent sovereign and therefore should have immunity from the local jurisdiction.
The principle of personal inviolability is a very old established rule of diplomatic law which has a very close relation to the concept of diplomatic immunity.
Article 29 of the Vienna Convention provides that “a diplomatic envoy shall not be liable to any form of arrest or detention and the receiving state shall give him due respect or care and shall take all the necessary steps to prevent any attack on him, his dignity or freedom”.
Doctrine of Restricted Sovereign Immunity
The increasing involvement of states in World Trade activities led to the development of a more restrictive approach to State Immunity, where a distinction is drawn between acts of a foreign sovereign nature (acta jure imperii) and acts of a commercial nature (acta Jure gestionis). Under this restrictive approach, Immunity is only available in respect of acts resulting from the exercise of a Sovereign power. As such States may not claim immunity in respect of commercial activities or over commercial assets.
The principle of diplomatic immunity is a very well-established principle of International law. Diplomacy is a foundational fact of international life without which international life will be at risk. The concept of Diplomatic Immunity is very important for the promotion of friendly and healthy relations among the states- be it for the purpose of trade, security, peace, or their cultural relations.
The Vienna Convention is considered as the major success stone of the United Nations. In this, the Diplomats are provided immunity to effectively perform their functions being the representative of the Head of State. Although, all the rights and immunities provided to the diplomats are not absolute they can be compromised within certain exceptions provided.
United Nations Organisations
“In many respects, the world is shifting beneath our feet. Yet the Charter remains a firm foundation for shared progress.” -Ban Ki-Moon
In 1945, after the event of World War II causing irreparable damage to many nations of the world, it was a time where the world wanted peace. In the same year, 51 countries met at a conference held in San Francisco to sign a document which was the United Nations Charter founding the United Nations Organization (UNO). The United Nations Organization headquartered in San Francisco was created for the purpose of maintaining international peace and security. Presently, there are 193 member states in the UNO.
History of the United Nation
The Atlantic Charter (1941)
After the failure of the League of Nations and when World War II started, a dire need for a new organization for promoting international peace was felt. The Atlantic Charter was a Joint Declaration issued by two leaders American President Roosevelt and British Prime Minister Churchill in 1941. Initially, the word ‘United Nations’ was used by President Roosevelt and it indicated the countries that are allied against Germany, Japan, and Italy. On 1st January 1942, 26 nations signed the Declaration at Washington DC stressing their adherence to the principles of the Atlantic Charter.
Dumbarton Oaks Proposal (1944-1945)
A meeting was held at Dumbarton Oaks for the formation of the United Nations, where the principles of the organization were laid down. On 7th October 1944, a proposal was submitted by the Big Four (China, Great Britain, USSR, and the United States) regarding the structure of the world organization to all the UN Governments. But, there was still disagreement on the question of voting in the Security Council. For this purpose, Roosevelt, Churchill, and Stalin met at a conference at Yalta and on 11th February 1945 announced that the question was resolved and summoned the San Francisco Conference.
On the 25th of April 1945, the leaders gathered at the San Francisco Conference (United Nations Conference on International Organization) to determine the final structure of the United Nations Charter. On 24th October 1945, the 5 permanent members and other signatory nations ratified the official UN Charter.
Principal organs of the United Nations
The United Nations have six principal organs that were established when the United Nations was founded. The Principal organs are:
The United Nations General Assembly (UNGA) is headquartered in New York and all the member states of the United Nations have equal representation. The member states gather to discuss various issues relating to international law, security, peace, etc
The Security Council has the responsibility to maintain international peace and security whenever peace is threatened. It constitutes 15 members, having one vote each and a residency rotating and changing every month.
Economic and Social Council (ECOSOC)
The ECOSOC promotes sustainable development with regard to economic, social and environmental matters. It comprises 54 members that are elected by the General Assembly.
The Trusteeship Council is dealt with under Chapter XII of the UN Charter. It was established in order to supervise the 11 Trust Territories that were placed under the administration of 7 member states. The Council suspended its activities in 1994. All territories are now independent.
The International Court of Justice (ICJ)
The International Court of Justice (also called the world’s court) established by the United Nations Charter in the year 1945. The ICJ is the principal judicial organ of the United Nations having its headquarters at Hague, Netherland being the only organ among the six organs of the UN to be not situated in New York (USA). It consists of a panel of 15 judges for a term of nine years. The judges are elected by the General Assembly and the Security Council. ICJ succeeded the Permanent Court of International Justice. It resolves disputes between the member states of the UN.
United Nations Secretariat
The UN Secretariat comprises a Secretary-General who is appointed by the General Assembly on the Security Council’s recommendation. Other members of the Secretariat are appointed by the Secretary-General as per the regulations of the General Assembly. The Secretariat carries out the day to day work of the UN such as preparing the report, making analysis, research, etc that the General Assembly and other principal organs have mandated.
The United Nations Charter
While drafting the Charter of the United Nations, the experiences and practices of the League of Nations were mostly relied upon. The UN Charter is a document that sets forth the principles to be followed by the organization and its members.
Purposes and Principle
Chapter I of the Charter lays down the purposes and principles of the United Nations.
Article 1 of the UN Charter
Article 1 of the 1 UN Charter talks about the purposes of the United Nations. They are:
- Maintaining international peace and security;
- Developing friendly relations amongst the nations;
- Achieving international cooperation to solve international issues of social, economic, cultural or humanitarian nature;
- Being a centre to harmonize the actions of the state to accomplish these common goals.
The main objective of these purposes was binding the organization and its members to coordinate their activities in order to accomplish these common goals.
Article 2 of the UN Charter
Article 2 talks about the principles of the United Nations. These principles are:
- Ensuring sovereign equality of all its members. This rule implies that all the members of the UN have equal representation.
- All the members of the UN are required to fulfil in good faith the obligations assumed by them in accordance with the Charter.
- All the members of the UN are obliged to settle their disputes by peaceful and amicable means in such a manner as to not endanger or jeopardize international peace, security, and justice.
- All the members of the UN are required to desist from giving threats or using force over and against any states’ territorial integrity or political independence.
- All the members of the UN are required to abstain from helping or assisting any state against which the UN is taking preventive actions or enforcement actions.
- Ensuring that non-members do not act inconsistently with the Charter. This rule empowers the United Nations in order to maintain peace and security to enforce obligation in the non-members of the state. Further, a non-member state as per Article 35(2) is empowered to bring any dispute before the General Assembly or the Security Council.
- Non-interference of the United Nations in matters relating to the domestic jurisdiction of any state. This rule mandates the United Nations not to interfere where the matter is solely of domestic jurisdiction of a state.
Nicaragua v. the United States
In this case, Nicaragua alleged that the United States carried illegal military and paramilitary operations against Nicaragua by supporting and assisting the Contras causing an extensive loss of lives by attacking its mining ports, naval base, air space, etc. It was also alleged that certain attacks were done not by the Contras but by the United States itself.
The claims of Nicaragua was that:
- the United States has violated Article 2(4) of the Charter of the United Nations to ‘refrain from threat and use of force’ and has breached the customary international law obligation.
- The actions of the United States amounted to an interference with the internal affairs of Nicaragua.
The ICJ, in this case, held that the United States has violated international law by involving itself in the unlawful use of force against Nicaragua.
Article 51 of the UN Charter: Maintenance of peace
Article 51 empowers the United Nations Security Councils to take measures regarding the maintenance of peace and security. Article 51 provides that the member states have an inherent right of self-defence (individually or collectively) to defend any armed attack against a member of the UN. A member state has to immediately report to the Security Council if it has taken any measures for the exercise of its self-defence.
It further provides that the Security Council’s authority and responsibility can not be affected to take any action that is necessary for the restoration and maintenance of international peace and security.
Article 13(1) of the UN Charter
Article 13(1) empowers the General Assembly to initiate studies and make recommendations to:
- Promote international cooperation in the political, social, cultural, educational, economic, and health fields.
- Encourage progressive development of international law and codification of international laws.
- Assist in the realization of Human Rights and fundamental freedom for all.
- Non-discrimination on the basis of race, sex, language, religion.
Article 24, 25 and 26 of the UN Charter
Chapter V of the UN Charter deals with the functions and power of the Security Council under Article 24 and 25 of the Charter.
Article 24 states that:
- The members of the United Nations confer a primary responsibility upon the Security Council of maintaining peace and security for ensuring a prompt and effective action by the UN.
- The Security Council while discharging these duties is obliged to act in accordance with the purpose and principles of the UN.
- The Security Council is required to submit to the General Assembly the annual and special report for its consideration.
Article 25 makes the members of the United Nations accept and carry out the decisions of the Security Council in accordance with the Charter”.
Under Article 26 the Security Council with the aid and assistance of the Military Staff Committee is responsible to formulate plans that are to be submitted to the members for establishing a system for regulation of armaments. Further, the security council is required to do so with the slightest diversion for armaments of human and economic resources of the world.
United Nations General Assembly resolutions (UNGA)
All the members of the United Nations are required to vote on a resolution relating to issues of poverty, development, peace, and security, etc in the General Assembly of the United Nations. Generally, a simple majority vote (50%+1) is required. In case if the General Assembly is of the view that a certain issue is an important question (pertaining to matters of international peace and security) then it requires a 2/3rd majority. Some important resolutions of the General Assembly:
Resolution 3314: Definition of Aggression
The UNGA on 14th December 1974 adopted this resolution which provided for the definition of aggression. The definition as per Article 1 states that “ aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”
Resolution 31/72: Environmental Modification Convention (ENMOD)
The Convention bars the use of military or other environmental modification techniques that have destructive, long-lasting or severe effects. The definition of Environment Modification Techniques as provided under the treaty is “any technique for changing- through the deliberate manipulation of natural processes- the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere, and atmosphere, or of outer space.”
Resolution 194: Right of return for Palestinian refugees
The UNGA on 11 December 1948 adopted this resolution after the Arab-Israeli war of 1948 regarding the return of the Palestinian refugees. Article 11 of the resolution permitted the return of those refugees who wished to return to their homes and live at peace with their neighbours at the earliest practicable date. It also provided the Government or the authorities responsible should make payment of compensation to those who chose not to return for the loss or damage of property.
The United Nations was formed with the motive to find ways to maintain worldwide peace. Since its inception, it has been helping nations deal with the economics, social and humanitarian issues, protecting refugees promoting sustainable development and more.
International Court of Justice
The international community is a dynamic one. This leads to clashes between the various members of this community. States disagree on where their border is, contest islands of maritime borders, violate treaties and other rules of international law. Then to who do states turn to for help? Resolving matters of these natures is the job of the International Court of Justice (ICJ). The ICJ is not only needed for resolving international disputes. Even the UN seeks their help when they need an opinion on a legal question.
The court has existed since 1946. The official languages are English and French. The United Nations Charter is an integral part of the ICJ. Thus, all UN member states automatically recognize the authority of the ICJ and can call for its help in any legal matter.
The ICJ has, up till now, dealt with 177 cases. It does not try individuals and only disputes between states can be submitted to it.
It is the successor court of the Permanent Court of International Justice. The Permanent Court of International Justice was created in 1922 and by the league of nations. Between 1932 and 1940, it handled 60 cases. It was dissolved after World War II. The ICJ succeeded the permanent court on the 18th of April 1946. It inherited not only its statue but also its jurisprudence and its traditions.
The court consists of 15 judges and they are elected for a term of 9 years by the General Assembly and the Security Council. Five posts are renewed every three years. Here, judges may be re-elected. The members of the court must all be from different countries. But, we must keep in mind that they do not represent their country and they are independent judges.
The composition of the court represents the following geographic balance.
- Three seats on the bench are occupied by African judges.
- Two seats are occupied by judges from Latin America and the Caribbean.
- Three are occupied by Asian judges.
- Five judges are occupied by judges from Western Europe and other Western States.
- Two judges are from Eastern Asia.
Usually, there is one judge from each of the countries who are permanent members.
Ad Hoc Judges
When a case is presented before the ICJ, and a state party does not have a judge on the bench from their state, then they can choose a judge, known as a judge ‘ad hoc’. These judges can be from any nationality and not necessarily have to be from the state party. They have the same rights and duties as an elected judge.
President and Vice President
After every three years, the court elects its President and Vice President. The president chairs all sittings of the court. He or she directs its work and supervises its administration. Annually, the President presents a report on the workings of the ICJ to the General Assembly.
Like it’s predecessor, the ICJ has two roles. The first is to decide disputes between states. These are known as Contentious Cases. The second role is to analyze legal questions submitted to it by the General Assembly, the Security Council and other organisations and agencies under the UN. These cases are known as Advisory Proceedings.
The court’s first role is to judge legal disputes between states. This constitutes a large part of its work. In the past, these cases would relate to border disputes, maritime delimitation and diplomatic protection. But now cases such as human rights, environmental rights and the responsibility of states are brought in front of the court.
The court’s jurisdiction is general and can consider any issue of international law. All UN members can bring cases of contentious nature before the court. Non-member nations can also access the court but are subject to certain conditions. Thus, the court’s jurisdiction extends throughout the world.
It must be kept in mind that states are sovereign and they can decide how to resolve their disputes. The ICJ can not ask sovereign states to act without them approaching the court. Thus, the ICJ can only hear a case if both the national parties have freely consented to it.
Once they have appeared before the court, the proceedings take place in two steps.
First, the states submit their arguments, evidence and submissions in writing. Then, their representatives and their lawyers present oral arguments before the court.
The court then begins its deliberations. These deliberations are confidential and questions or issues of the case are decided by the judges present. On an average, deliberations last from 4-6 months.
Once a decision is made, the judgment is released in the court’s two official languages and reproduced in several sealed copies.
All judgements of the court are final and without appeal. By coming before the court of justice on their own consent, the state parties take an oath to comply with the judgement and such judgements are binding upon the parties. If one of the parties refuses to comply with the decision, the aggrieved party may seek recourse from the Security Council. The Security Council may then, under Article 94 of the UN Charter make recommendations or decide measures on how to give effect to the judgement.
The second role is of advisory procedures where they deal with legal questions given by the organisations and the agencies of the UN. A majority of these requests come from the General Assembly.
Unlike judgements, advisory opinions are not binding per se. It is up to the organisations and the agencies to follow up on them. But, regardless of them being binding or not, these opinions are important as they usually lead to the festering of international law.
Their decisions go beyond states directly involved in the cases. On many occasions, the court has helped to defuse crises and normalize relations between states and to restart deadlock negotiations, either by the settlement of disputes by judicial means or by stating the law for the issue in question.
The Rohingya Genocide
The Rohingya Genocide is a chain of persecutions by the Myanmar government and the Buddhist community of Myanmar against the community of Muslim Rohingyas. The Myanmar military and police cracked down on Rohingya Muslims and failed to check the growing islamophobic sentiments against them. This resulted in thousands of Rohingyas being killed, refugees fleeing to other countries, destruction of Rohingya villages, schools and businesses, wide-scale violation of human rights by the military and gang rapes and other sexual violence against women and girls of the Rohingya community.
The Gambia (or Republic of The Gambia) had brought a case against Myanmar for the Rohingya genocides. It was noted by the ICJ that thousands of Rohingya refugees were made stateless due to state-sponsored violence.
The court observed that the Rohingyas were a ‘protected group’ under Article II of the Genocide Convention. They stated that despite Rohingya Muslims living in Myanmar prior to independence, they were ‘made stateless by the 1982 Citizenship Act and disfranchised in 2015 from electoral processes’.
The bench ruled that Myanmar must keep in mind the duties given under the Genocide and ensure all acts of prejudice against Rohingya Muslims are stopped.
The following points are common criticisms of the ICJ-
- The ICJ has been accused of being biased. Judges usually rule in favour of states which their own country looks favourably upon. Bias also plays a great role in voting for the President and Vice President of the bench.
- The ICJ can only rule on cases where both the states have given their consent. Thus, even if there is a case where the authority of the ICJ is much needed, the ICJ can not do anything unless they get consent from the other states involved.
- Only states can seek recourse under the ICJ, not organisations, private enterprises or even individuals. Thus, in cases where minority groups are being exploited by their state, the individuals of these minority communities can not seek recourse under the ICJ
- Other International courts like the International Criminal Court are not under the umbrella of the ICJ. Thus, conflicting opinions from various international courts make it difficult for the international community to collectively enforce peace.
- The ICJ does not enjoy the separation of powers and is sometimes at the mercy of the Security Council. Permanent member states can veto attempts to enforce the decision of the ICJ.
Cases where the ICJ has failed to enforce peace:
United States occupation of Nicaragua- The Contra Rebellion
The Contra rebellion was a right-wing rebel group against the socialist government of Nicaragua. These rebels violated numerous human rights and used terrorist tactics to usurp the government. They have been accused of targeting health centres, kidnapping, torturing and even executing civilians (some were children), raping and committing other sexual crimes against women, seizing civilian property and burning civilian houses.
Nicaragua stated that the American government had funded the Contra Rebellion against the Nicaragua government. They were also accused of planting naval mines in their territorial waters.
There was established evidence that the Contra Rebellion was not only funded by the CIA but was also established by Ronald Reagan’s administration. To fund the rebellion, the USA sold weapons to Iran and assisted the Colombian cocaine trade.
The ICJ held that the US had grossly violated international law as well as Nicaragua’s sovereignty. Nicaragua asked for 17 billion dollars in reparations.
In response, the US withdrew its support of the International Court of Justice and as a permanent member, vetoed any attempt to enforce the ICJ’s judgement.
Till this day, Nicaragua has seen no compensation.
Israel and Palestine
One of the greatest violations of international law has to be the West Bank wall constructed by Israel that cuts through Palestine communities, homes and farmlands. Under the guise of protecting Israel against terrorism, the wall goes deep into the West Bank which is Palestine’s territory. It seeks to redefine borders by annexing Palestine and thus is a grave violation of not only Palestine’s sovereignty but international laws as well.
15 years ago, the ICJ had ruled through an advisory opinion that the wall was illegal. While such opinions are non-binding, they also said the wall violates international law and should be dismantled. It also stated that Israel should pay reparations.
But such orders fell on deaf ears and Israel was not willing to comply. The UN General Assembly tried to force Israel to cooperate but that was a failure as well.
Till the present date, the wall strangulates the West Bank and the present government continues to expand it, pretending like the ICJ ruling never happened.
As the principal judicial organ of the United Nation, it is an important facet for promoting and maintaining peace. They regularly host visits by heads and dignitaries of states. It settles cases of extreme international complexity in less than five years. The court accounts for less than 1% of the UN’s budget. It is unique to the world. Through its judgement, opinions and orders, ICJ lends its support to the United Nations so that it can achieve its primary purpose which is to maintain and promote international peace and security.
But despite having so much authority, it fails to achieve its purpose. In many cases, we have seen that Countries do not comply with rulings from the International Court of Justice. Thus despite being a giant in the world of International law, it seems to grow increasingly less influential on States and regulating its compliance with international law.
Violation of International Law
To understand the consequences of violation of international law it is imperative that we first understand the term international law. Today’s world has advanced to the extent that international law does not just remain as a set of rules and regulations to direct the conduct of one state towards another. International law is a consistently developing set of complex rules and influential practices, principles, and assertions that are not necessarily binding. It defines legal responsibilities of sovereign states and individual and international organisations, not only concerning their conduct with each other but also encompasses their treatment of the individuals within the state boundary.it is an independent system of laws that exists outside the legal orders of particular states.
International law has no defined area or governing body but consists of a collection of international treaties, accords, charters, agreements, tribunals, protocols, memorandums, legal precedents of the International Court of Justice, and more. Since there is no unique governing and enforcing body it is largely a voluntary endeavor, wherein the power of enforcement only exists when the parties consent to abide by an agreement. Its domain encompasses a wide range of issues of international concern such as environment, migrant labour, drug trafficking, terrorism, disarmament, international crime, etc. It regulates global commons such as space, environment, global communication and world trade, international waters, etc.
The basic aim of international law is to promote social and economic development and maintain international peace and security. It can be divided into public international law and private international law. The former covers the rules, and laws that govern the conduct and dealings between nations and/or their citizens and the latter handles disputes between private citizens of different nations. There being no definitive governing body to legislate and enforce international law, the United Nations is the most widely recognised international organisation and the International Court of Justice is its judicial counterpart.
Who can be held responsible for violating international law
Obligations must be respected, they lose their meaning without proper adherence to the rules thereof. International law, not being governed by a global police, is at times violated. Thus, it sets out clear consequences for such violations and these consequences are both collective and individual in nature.
International law not only set outs prohibitions to acts against basic human rights such as torture of the civilians in an armed conflict but also provides for legal ramifications if such acts take place. These ramifications can be broadly divided into state responsibility and individual responsibility. The states are the principal actors in the international legal system, international law deals with the legal responsibility of the states in their conduct with each other. It is also concerned with the treatment of the individuals living in the state boundaries. Thus, only states are not the stakeholders to international law, recent interpretations of international human rights law, international trade law, and international humanitarian law have also included corporations and certain individuals.
All the international treaties which a state has signed are binding on that state, a state is also bound by the customary international rules and regulations. When a state violates any of the treaties to which it is a signatory, or it breaks internationally recognised customs and rules it is said to have committed an internationally wrongful act which constitutes a violation of international law. In such situations, a state can be held responsible for violating international law and it has to face consequences. Such states are obliged to stop the illegal activities immediately and are also entrusted with the responsibility to make reparations to the injured. In addition, the states violating international law must offer guarantees that such violations will not be repeated in the future. The states are legally responsible both towards other states and individuals and it can be held responsible for all the actions of its officials.
it has also been provided for the individuals to be held criminally responsible for international crimes. Each armed force member is directly held responsible for the breaches committed by him/her. Individual criminal responsibility also allows persons who aid, assist, attempt, facilitate, abet, plan, or instigate the commission of a war crime to face accountability for their actions. The military commanders who order their subordinates to violate international humanitarian law are held responsible by the law of armed conflicts.
Corporate accountability implies holding companies responsible for their involvement in violations of international human rights, illegal activities, and international humanitarian law. They are not just held responsible for their direct actions, but also for their complicity in violations of international humanitarian laws and human rights. A corporation’s knowledge of the crime, its intentions, and its actions which helped in the commission of the violation all determine the liability of the corporations.
Who has jurisdiction to deal with the matter concerning violation of International Law
The legal environment of the international law does not have an overreaching sovereign, thus its enforcement differs from that of the domestic law. The absence of a compulsory judicial system to settle a dispute or a coercive penal system to ensure compliance had left the international law compliance largely voluntary. The nations entered into a treaty with a perceived notion of self-interest. But this was not enough to ensure their compliance with the international law at all times. In some cases, the norms upon which the laws are based are self-enforcing, in other cases, during a changing environment, when enough powerful states continually ignore a particular aspect of the international law, that aspect or norm changes according to the customary international law. For example, by World War II unrestricted submarine warfare was so commonly being practised that the authorities ordering this activity were no longer charged with violation of international law.
The states also oversee the compliance of international laws by the other states. When a state violates international law, it may be subject to diplomatic pressure, or economic sanctions. The states may also adopt unilateral sanctions against those who flout international law provisions. In some cases, domestic courts may render judgement against a foreign state for an injury. This comes under the ambit of private international law, it is a complicated area of law as the international law intersects with domestic law. The compliance of such a judgement is not easy to enforce and depends upon the wishes of the subject of the respective judgement, i.e., the state which caused the injury.
There are certain international bodies that claim jurisdiction to deal with the matter when international law is violated. These are discussed below:
The United Nations General Assembly is a deliberative policymaking and representative organ and is empowered to make recommendations. It does not codify international law, nor is it entrusted with making binding resolutions. The resolutions passed by the United Nations General Assembly are generally non-binding in nature towards its member states. The binding resolutions passed by the assembly are internal in nature and are concerned with matters such as budgetary allocations, staff regulation, etc. The violation of the United Nations Charter by the member states may be raised in the General Assembly for debate by the aggrieved members. International bodies created by treaties have jurisdiction over the matters concerning international conflicts. The universal jurisdiction is claimed by the United Nations Security Council, one of the six principal organs of the United Nations, charged with the function of maintaining international peace and security. The other bodies having jurisdiction over the matters concerning violation of international law are the United Nations International Court of Justice (ICJ), headquartered at Hague, the International Criminal Court, and the Court of Arbitration for Sport.
The International Court of Justice, also known as the World Court, is the primary organ of the United Nations for the settlement of disputes. The court addresses international disputes involving the right of passage, non-interference, non-use of force, economic rights, diplomatic relations, right of asylum, hostage-taking, etc. The court prevents the escalation of disputes by giving an impartial solution based on law.
The individuals who commit crimes against humanity such as genocide and war crimes can be prosecuted by the International Criminal Court(ICC). The crime of aggression is also sought to be brought under its jurisdiction and is being given a definition. The International Criminal Court is not a part of the United Nations, it is functionally as well as legally independent from the United Nations.
When does a country violate international law
A country is said to have violated international law when it violates the treaties to which it is a signatory or when it breaks the internationally accepted customs and regulations. The breach of an international obligation is referred to as an internationally wrongful act. Thus, a country committing an internationally wrongful act is liable and can be punished. The customary international law is binding on all states and the International Law Commission’s Article on State Responsibility provides the regulations regarding the violations of the customary law and the consequences thereof. An act of any state organ is also considered as an act of the state under international law.
A state violates international law when it breaches the obligations that are binding upon it at the time such violation occurs.
A state is also liable for violating international law when it aids or assists another state in committing an internationally wrongful act with knowledge of the circumstances.
When a state directs or coerces or controls another state in doing an internationally wrongful act, with full knowledge of the circumstances, it is held liable for the violation of international law.
There are following exceptions to the liability of a state violating international law:
An act is not held as a wrongful act if it is committed by one state over another state with the consent of the latter. In such a case it is important that the act committed by the former state is limited to the consent given by the latter state. Thus, a state is empowered to allow another state to use its waters or air space, and such use, if allowed, would not be constituted as an invasion.
The acts committed by a state in order to defend itself against another state or organisation do not count as violations of international law provided that such acts are in conformity with the United Nations Charter (Article 15).
Countermeasures in respect of an internationally wrongful act
If the acts of a state violate the obligations by which such state is bound towards another state but are committed as countermeasures taken against such state, then these acts will not be constituted as a violation of international law.
Force majeure refers to an unforeseeable event because of the irresistible force which is beyond the control of the states. In case of force majeure conditions which render it impossible for a state to fulfil its obligations towards another state, such acts, which the state commits or is unable to commit in order to fulfil the obligation by which it is bound, are not considered a violation of international law.
If an illegal act is committed by a state as a last resort in order to safeguard an essential interest against an imminent threat, the state is not said to have violated its international obligations.
Precedence in such matters
The role of the International Court of Justice extends to the settlement of the disputes brought to it by the states and to give advisory opinions on the legal questions referred to it. The International Court of Justice has dealt with over 170 cases since its establishment. The important decisions given in this matter have contributed to the development of international law. One such case is the Consequences of building a wall in the occupied Palestinian territory. The ICJ issued an advisory opinion in this matter finding the building of such a wall, and thus occupation of Palestinian territory by Israel, contrary to international law. It put Israel under the obligation to cease the illegal act and demolish the whole structure, in addition, it also required Israel to make reparations for the damages caused by the said illegal act.
The ICJ also set precedence in the case of Military and Paramilitary Activities in and against Nicaragua by ruling against the United States for the breach of customary international law. The United States was accused of supporting the Contras (a right-wing rebel group) in their rebellion against Sandinistas (a socialist political party in Nicaragua) and mining Nicaragua’s harbours. The acts of the United States were found to be interference in the internal affairs of Nicaragua and it was convicted of using force against another state. It directed the United States to cease all the illegal acts and to make reparations to the Republic of Nicaragua.
The area of international law is complex and, to an extent, ambiguous. With the involvement of a number of nations, each having its own set of laws and customs, and in the absence of a worldwide police or enforcing mechanism, it becomes extremely difficult to make the countries agree to a particular set of norms to be followed. Yet, through the development of various organisations such as the United Nations Security Council, International Court of Justice, International Criminal Court, etc. this much sought compliance of the countries has been achieved. There are various ways in which a country may be made to adhere to the treaties to which it is signatory, many of which are diplomatic and economic sanctions The countries can also approach an unbiased third party that is the International Court of Justice.
If a country is found guilty of violating the international law by breaching its obligations under the treaties to which it is a signatory or by flouting the customary international laws, it can be directed by the Court to immediately cease the illegal acts and make reparations for the damages caused by the said act. The country in default also needs to assure that it will not repeat such behaviour in the future. Thus, international peace and security are maintained and the interest of all the nations is furthered by peaceful cooperation.
How blessed the countries are, as we are surrounded by beautiful nature and wildlife. In our surrounding, so many species are there which require a need to protect them as well as to conserve the environment. The exploitation of the environment can deplete the natural resources and in result will make everyone’s survival difficult. For human beings to survive, the environment needs to be clean, fresh and eco-friendly. It has been rightly said by Margaret Mead that “We won’t have a society if we destroy the environment”. Indeed it is true and we can see the effects of exploitation in the changing environment.
Issues of environment protection
The need to protect the environment has arisen and it is important to understand the key areas where all the countries have to look upon and work.
The main reasons for the protection are:-
- Ozone depletion, greenhouse effect and global warming–
Ozone is a thick layer which acts as a shield to protect the earth from the ultraviolet radiations coming from the sun. This layer is of great importance because of the but obvious reason that its depletion will result in ultraviolet radiations. The concern or agitation arises towards the environment when this layer starts depleting or gets reduced. Earlier also the depletion of the ozone layer was the issue and now also it is the prevalent and significant issue which within the timeframe if not tackled then can cause a lot of problems to the environment as well as to the human beings.
For example, skin cancer, premature ageing, eye damage, weak immune system etc. The main reason affecting the ozone layer is Chlorofluorocarbons (CFCs) which are mostly produced by the industries discharging chemicals and can also be found in household products. The ozone layer depletion is linked to the greenhouse effect and also with global warming.
Greenhouse effect- It is caused by the emissions of the pollutant gasses like methane, CFCs etc. When these gases are released or get mixed in the atmosphere, it results in the temperature to rise and this is known as global warming.
In simpler terms, this issue means land degradation. The destruction of the potentiality of the land which ultimately at the end results in a drought-like situation.
The example of land degradation is deforestation, change in climate etc. Where this kind of a situation arises, it forces the people residing there to migrate to another land or place.
It is a very recurring issue which every country faces. Deforestation not only affects climate but it also affects the animals living in the forests. It is an alarming issue which every now and then the country has to deal with.
- Loss of biodiversity–
It is related to the extinction of the species from the earth and the reason is deforestation. Biodiversity means the variety of life on earth. Many of the species have already become extinct from the earth. Extinction of the species disturbs the balance of the ecosystem as well as disturbs the balance of the living species and also human beings. Earth’s biodiversity provides various sources from which we can get food and also medicinal plants. Besides deforestation the other reasons for the loss of biodiversity are fragmentation, using chemical fertilizers, pesticides, overexploiting the resources available etc.
- Disposal of wastes–
Disposing of the waste is also an important and significant issue. The major portion of waste is contributed by the industries and households. These industries or household wastes are either dumped in water or in empty unused land.
As a result, the water gets contaminated and there are likely chances to get many diseases from that- for example, diarrhoea, typhoid fever etc. Industrial wastes consist of chemicals, metal compounds, nuclear waste etc. Nuclear waste is radioactive waste which gives rise to the large quantity of heat. These wastes are serious health hazards and endanger the environment and life.
Treaties and conventions- for the improvement and protection of the environment
It was finalized in the year 1987 and adopted on 15 September 1987. It is a multilateral environmental agreement and this protocol is the only UN treaty ever up to date which was initially approved by only 46 countries but now it is ratified by all 197 UN member countries/states. This protocol regulates the production and consumption of man-made chemicals which can deplete the ozone layer.
This treaty was made for the reason that certain substances or chemicals when released in the atmosphere damage the stratospheric ozone layer which is earth’s protective shield that protects humans and as well as the environment from the harmful levels of ultraviolet radiations of the sun. The stratospheric layer in fact filters out the harmful radiation. If it doesn’t get filtered then there are increasing chances of having skin cancer and cataracts, and also reduces agricultural productivity and damages marine ecosystems.
Under this treaty, the developed and developing countries have equal but differentiated responsibilities towards the ozone-depleting substances (ODS) but both groups countries have binding, time-targeted and measurable commitments. All countries have been given specific responsibilities relating to the curtailment of the ozone-depleting substances.
India became the signatory member of this treaty on 19th June 1992.
Hydrochlorofluorocarbons (HCFCs) is the gas which is used worldwide. It is present in the refrigerator, air-conditioners etc. It is more harmful and powerful than carbon dioxide.
The Montreal protocol has taken steps to control this harmful substance.
On 15th October 2016, parties of the Montreal Protocol adopted the Kigali amendment to curtail the consumption and production of the hydrofluorocarbons (HFCs). Countries have agreed to add HFCs to the list of controlled substances. The Kigali Amendment came into force on 1 January 2019 for those countries that have confirmed this amendment.
Second commitment of Kyoto Protocol (2013-2020), bridges the gap between the end of the first commitment and the start of the second commitment with further emission cuts. The Kyoto Protocol is an international agreement within the United Nations Framework Convention on Climate Change (UNFCCC), which commits its Annex B-Parties (the countries which have adopted the targets to reduce the greenhouse emissions) with legally binding emission reduction commitments.
Whereas, in Annex A- six greenhouse gases are there where the Kyoto Protocol is applied the six greenhouse gases are:- Carbon dioxide (CO2), Methane (CH4), Nitrous oxide (N2O), Hydrofluorocarbons (HFCs), Perfluorocarbons (PFCs), and Sulphur hexafluoride (SF6).
It is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC) which focuses on reducing the greenhouse gas emissions. It is replaced by its predecessor, the Kyoto protocol which is also the international treaty for similar purposes and its second commitment expires this year i.e. 2020. The Paris Agreement came into force on 4th November 2016 and has been signed by 197 countries and as of November 2019- 187 countries have confirmed. India has also given its consent to this agreement. In the whole world, India stands at third after China and the US when it comes to the emission of the greenhouse effect according to May 2019.
The primary motive of this agreement is to fight back against climate change. This agreement also aims to curb the emission of the greenhouse to a certain level
Kyiv Protocol on Pollutant Release and Transfer Registers
On 8 October 2009, it became an International Law and is the only instrument which is legally binding upon the parties. The objective of this protocol is to increase public access to information through the formation of a systematic pollutant release and transfer registers.
All the UN member states can join this Protocol as it is designed by an ‘open global treaty’.
Vienna Convention for the Protection of the Ozone Layer 1985
Initially, this convention was agreed in 1985 and it came into force on 22 September 1988. It is a multilateral agreement. Montreal protocol comes under this convention. This convention was formed with a purpose to globally monitor and report on the ozone depletion. Under this convention, it made structures for the improvement of protocols and also for taking a more binding action.
The Vienna Convention and its Montreal Protocol are the first and the only global environmental treaties to obtain universal acceptance, with 197 member countries. The Vienna Convention does not include any goals which are legally binding on the countries.
These legally binding goals are framed under the Montreal protocol with regards to the substances that can deplete the ozone layer.
This United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters often referred to as Aarhus convention. It was adopted on 25th January 1998 and it came into force in October 2001. Only 47 Parties have ratified to this Convention till 16 October 2017.
In conjunction with its Kyiv protocol, it also aims to protect every person’s right to live in an environment which is sufficient enough for his/her health and also the well-being and also in accordance with the provision of this convention, each Party must guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters.
Basel Convention on the control of transboundary movements of hazardous waste and their disposal 1989
Commonly it is known as the Basel Convention. The Basel Convention was adopted in March 1989 in Basel, Switzerland, and came into force in 1992 and 187 parties are members of this convention till October 2018. It is an international treaty which formulated plans against the adverse effects of hazardous wastes in order to protect human health and the environment.
Basically, it made a structure or a framework in such a way so as to reduce the movement of hazardous waste between the nations and also to restrain the movement of waste from developed countries to less developed countries because the less developed countries are unable to dispose of the hazardous waste in an environment-friendly way and it pollutes the environment tremendously. On 24th June 1992, India ratified this convention and included some of the provisions from this convention in its Act i.e the Hazardous and Other Wastes (Management and Transboundary Movement) Rules of 2016.
Basel Ban Amendment 1995
This amendment intends to prohibit the export of hazardous/dumped waste for any purpose to the developing countries. After Croatia ratified this amendment on 6th September 2019 it has become an International Law. It entered into force on 5th December 2019. Till now the countries who haven’t ratified this amendment are- the US, Canada, Japan, Australia, New Zealand, South Korea, Russia, India, Brazil, and Mexico.
Berne Convention on the conservation of European wildlife and natural habitats
This convention is a binding international legal instrument. The purpose of introducing this convention is to protect and conserve the species of flora and fauna and also their habitats.
After the discussions at the Council of Europe, the Berne Convention was introduced and has been in force since June 1982. By April 2019 there are 177 states that are parties to this Convention and since April 1928, India has been a member of the Berne Convention.
This was the first international treaty which looked into the matter relating to the protection of both species and habitats. And it also seeks to bring all the countries together so that they can determine an action to protect nature and to promote sustainable development.
The ratifying parties to be a part of this convention have to maintain biodiversity in the long term, according to different scientific and ecological requirements.
Convention on Biological Diversity, 1992 (CBD)
This convention provides a legally binding framework which came into force in 1993 with a purpose to conserve the biodiversity and use biodiversity feasibly. The main objective of this convention is to encourage those actions which will lead to a sustainable or viable future. The governing body of this convention is the Conference of the Parties (COP).
India gave effect to the provision of this convention enacted the Biological Diversity Act in 2002 which also provides a framework in order to tackle the issues related to biodiversity. Following this convention, India has taken part in many conventions which are related to conserving biodiversity.
In October 2020, the Governments have decided to gather at the UN Biodiversity Conference on Biodiversity (CBD COP15) in Kunming, China to decide upon an agreement regarding the new framework. To develop the post-2020 global biodiversity framework, it requires wide-range consultations, working of the groups and also meetings of the expert person involved in this convention.
The motive of this gathering regarding the Post-2020 Global Biodiversity Framework is to define the mission for 2030 and to define a long-term vision for 2050 which has to be achieved with goals and targets, in order to encourage and synchronize the global efforts for conserving the planet’s biodiversity.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
This convention is an international agreement between the countries and entered into force in 1975 which aims to protect wildlife from over-exploitation due to international trade. Basically under this agreement, the government regulates the traded wildlife and its products so that it does not threaten the survival of the species in the wild, for example, leather goods, animals, food etc.
Convention on Long-Range Transboundary Air Pollution (CLRTAP)
This convention came into force on 16th March 1983. This convention aims that the contracting parties should make efforts to protect the environment against the adverse effects of the pollution, to ensure that the parties take several and necessary steps to fight against the release of the air pollutants and also to create committees for the further progress and imposition of the convention.
Convention on the Conservation of Migratory Species of Wild Animals (CMS)
This convention is an international treaty under the aegis of the United Nations Environment Programme. It came into force on 1st November 1983. Since 1983 India has been a party to this convention. The primary focus of this convention is to provide for the conservation and sustainable use of migratory animals and their habitats. This convention tries to complement and co-operate the provisions with a number of international organisations, NGOs, corporate sectors etc.
The recent event regarding this convention will be hosted by India from 15th to 22nd February 2020 at Gandhinagar in Gujarat, which will be the 13th Conference of Parties (COP). The eminent conservationists, international NGOs working in the field of wildlife conservation and representatives from 129 Parties are expected to attend the Conference.
Convention on the Conservation of Migratory Species of Wild Animals (CMS)
This convention came into force on 1st January 2005 and as of February 2018, only 39 Council of Europe member states have ratified the Convention.
The motive of this convention is to protect and manage the landscapes and to organise the international co-operation on landscape issues. The parties of this convention in order to implement the provision should undertake the activities which are set to raise public awareness, defining the quality of landscapes etc.
Minamata Convention on Mercury
This convention is a global treaty and entered into force on 16 August 2017 and as of 1st March 2019- a total of 105 parties (including India also) have ratified this convention.
The objective of this convention is to protect humans and the environment from the dangerous effects of mercury. In Japan, there is a city named Minamata where the local communities got poisoned by contaminated mercury industrial wastewater at the end of the year 1950 and suffered untreatable and disabled effects. So the convention is named after this town.
Ramsar Convention on Wetlands
This convention is an intergovernmental treaty adopted on 2nd February 1971 and it entered into force on 21 December 1975. It provides a framework for international and national cooperation so that they can achieve sustainable development throughout the world by taking efforts towards the conservation and judicious/wise use of the wetlands. As of January 2016, 170 nations have joined the Convention as Contracting Parties.
But the question arises why we should conserve wetlands? Let’s first understand what wetlands are: they are those areas where water is the main source or part for controlling the environment and the related plant and animal life over there. They occur where the water table is either there or near to the surface of the land. And the conservation of wetlands is important because they are the only source of biological diversity which provides the water to the countless species of plants and animals who are depending on wetlands for its survival.
They help or contribute to the high masses of birds, mammals, reptiles, amphibians, fish and invertebrate species. Over-exploitation of freshwater resources by humans puts all the other people and as well as the environment at risk.
By degrading the wetlands, the certainty to avail the access to safe water, human health, food production, economic development and geopolitical stability becomes difficult and also the degradation of wetlands has rapidly widened the gap between water demand and supply.
The Ramsar convention under its fourth strategic plan set off a period from 2016-2024 with almost the same objectives mentioned earlier.
Stockholm Convention on Persistent Organic Pollutants
This convention is a legally binding international treaty which was adopted on 22nd May 2001 in Sweden and it came into force on 17th May 2004. Its objective is to protect human health and the environment from the dangerous outcomes from the organic pollutants (Pesticides, Industrial chemical, Aldrin etc.). POPs are the chemicals that remain intact in the environment for long periods and it gets widely distributed in the overall area which collects or gathers the fatty tissue of the living organisms which are toxic to humans and wildlife. These POPs circulate globally which in result can cause damage wherever they travel.
United Nations Framework Convention on Climate Change (UNFCCC)
It is an international environmental treaty which was adopted on 9th May 1992, and it was opened for signature at the United Nations Conference on Environment and Development. It is also known as Rio de Janeiro Earth Summit or Rio summit. It came into force on 21st March 1994. Almost every country on earth has ratified this convention.
It is an agreement made on climate change and mainly focuses on the prevention of dangerous actions or interference by humans on climate change or on the environment. The parties also agreed towards the stabilization of the greenhouse gas emissions. Every party/country by signing to this convention have dedicated themselves to do the regular reporting regarding the level of greenhouse emissions and also their initiation to reduce the interference.
World Heritage Convention
This convention was adopted by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) in 1972 and as of 31st January 2016- 193 state parties (including India) have ratified to this convention. The primary objective of this convention is to protect the world’s natural and cultural heritage. It also manifests an idea that few places are so important that their protection is not only the responsibility of a single nation, but is also the duty of the international community as a whole, and not only for this generation but for all those to come.
International organizations concerned with the environment destruction
Earth System Governance Project (ESGP)
It started in January 2009. This is a research project and focuses on global change by the human’s action. The objective of the ESGP is to publish research which is concerned with the difficulties of regulating and controlling global environmental change. By this analysis on the research, the researchers to an extent better understand the roles and responsibilities of organizations institutions and governments in the matter related to the environmental changes.
Intergovernmental Panel on Climate Change (IPCC)
The IPCC was established by the World Meteorological Organisation (WMO) in 1988. For the assessment of climate change, it is the leading international body and is also the source of scientific information and technical guidance for Parties. The purpose of this organisation/ panel is to offer the world an unbiased, scientific assessment of climate change and its effects.
World Nature Organization (WNO)
The WHO entered into force on May 1st 2014. Several countries- mainly emerging and developing countries were in favour of setting up a permanent international platform. It committed the protection to the international level and mainly focuses on energy efficiency, protection of the climate, sustainable development and a sustainable energy supply
United Nations Environment Programme (UNEP)
The UNEP was founded in June 1972 and its headquarter is in Nairobi, Kenya. It’s a coordinating body of the United Nations environmental activities and played an important role in analysing the identified problems related to the environment, took efforts to develop environmental programmes and conventions at regional and international level and encourages the environmental science
International Union for Conservation of Nature (IUCN)
The IUCN was established in 1948 on the 5th of October and it includes government and non-government members. Its goal is to promote nature conservation and the sustainable use of natural resources around the globe. It also focuses on issues such as poverty, gender equality etc.
Global Environment Facility (GEF)
In the year 1991, the GEF was established as an alliance among 183 nations. Regarding climate change, land degradation, intentional water, biodiversity and the ozone layer, the organisation finances issues. The GEF provides grants for projects related to biodiversity, climate change, international waters, land degradation, the ozone layer, persistent organic pollutants (POPs), mercury, sustainable forest management, food security, sustainable cities. Basically, the purpose of this facility is to fund these subjects or problems.
Community-based Adaptation (CAB) Conference
Any change in the climate such as earthquakes, drought, floods etc. adversely affects the poor or vulnerable people more than the settled and civilized one. The local communities, academics and project managers develop ways to cope up or tackle climate change and the International Institute for Environment and Development (IIED) has worked to help them by sharing the knowledge developed by them.
IIED organises Community-based adaptation to climate change (CBA) which focuses on granting the communities to use their own knowledge and decision-making processes to take action on climate change. The upcoming conference will take place in May 2020 at Bangkok, Thailand which will be the 14th conference on Community Based Adaptation to climate change. This conference will bring forth an open and interactive space for the community to meet and explore the transformative solutions.
Youth Climate Summit 2019
The UN Youth Climate Summit, 21st September 2019 took place at the United Nations Headquarters in New York prior to the UN Secretary-General’s Climate Action Summit on Monday, September 23, where the young climate action leaders were given a platform to tell the solutions as they think at the United Nations.
UN Climate Action Summit 2019
The UN climate action Summit was organised by the UN Secretary-General António Guterres where all leaders were called to New York on 23 September 2019 with a realistic and detailed plans to strengthen their determined contributions by 2020, which was regarding the reduction of the greenhouse gas emissions by 45 per cent over the next decade, and to reduce it to zero emissions by 2050.
This summit on climate action and also the Youth climate action succeeded as it gathered the attention of the world leaders, government, private sector and civil society on the extremity for action to tackle the climate disaster
The Summit also exhibited the need to urgently update and reinforce their short-term commitments by 2020, and the mid-term commitments by 2030, that will be shown or represented in their national climate plans, known as Nationally Determined Contributions to the Paris Agreement.
The Summit gave them a good opportunity to exhibit the political leadership of 70 countries which were anxious and also were committed to delivering more aspiring and assertive plans on climate change in 2020 and the strategies to reduce the emission to zero by 2050.
It is the need of the moment for people, government, leaders etc. to cater to environmental degradation which is getting worse day-by-day due to the ignorance of the people towards the environment. Many government organisations, NGOs etc. have taken initiative to protect the environment but it can only be protected when the people with the understanding and enthusiasm protect and conserve the environment.
Few of the examples where we can see the environment changing due to global warming are:- Kerala floods India in 2019, where almost all the districts of Kerala were affected, Australia bushfire 2019- in 2020 is still ongoing where many species have died, environment is fully destroyed, pollution has risen in that country and many more issues.
According to Argentinian research station thermometer, on 7th February 2020, Antarctica has recorded the hottest temperature so far which is 65 degrees Fahrenheit (18.27-degree Celsius) though officially WMO has not verified the finding yet as it will require a panel of atmospheric science experts from around the world to discuss the station’s data.
Concept of Human Rights
International humanitarian law is that branch of the law of nations that seeks to impose limits on the destruction and suffering caused by armed conflicts. It lays down the principle of Article 22 of the Hague Regulations. A major part of International humanitarian law is contained in the Geneva conventions of 1949.
Article 4 and Article 27 of the Geneva Convention occupy a key position among the Articles of the convention. It is the basis of the convention proclaiming as it does the principles on which the whole of ‘geneva law’ is founded. It proclaims the principle of respect for the human person and the secured character of the basic rights of individual men and women.
Most principles of the Humanitarian law include the principle of humanity, the principle of distinction between civilians and combatants, and between civilian objects and military objectives, the principle of proportionality and the principle of military necessity. These principles of law are recognized by civilized Nations and it can also be called a domestic law principle which is common to all legal orders. However, because of the diversity of countries and their legal systems, only some of the principles can work well. Principles such as good faith and proportionality, which have also become customary law and have been codified, can be used in supplementing and implementing International Humanitarian Law. Other principles may be real to the ideal law and based on logic rather than a legal rule which has been implemented. If any kind of attack is prevented by imposing restrictions on the civilians, it is not law, but the logic that attacks should not be directed at a military object as it can harm the civilians.
History of International Humanitarian Law
In the Indian epic Mahabharat approx 400 BC, the Laws of Manu incorporated provisions outlawing the killing of surrendering adversaries who were no longer capable of fighting. These included people who were aged, soldiers who were injured and lost their hands, legs and any other body part likewise. Let’s take an example of a king named Hammurabi who was the king of Babylon. He drafted “Code of Hammurabi” thinking how to protect weaker civilians from the stronger ones. This code also says that the hostages shall be released on payment of a ransom.
The modern world has placed its hopes in internationalism. Similarity alone is often the idea for universality, and in formulating and perfecting this law, the International Committee of the Red Cross has sought exactly this footing and suggests rules acceptable to all or any because they are fully consistent with human nature. Meanwhile, despite this universal concern to limit the suffering caused by war, the regulation of the impact of war had been attempted many times.
The 19th century, however, was the instant in history when a movement won energy to codify the laws of war and when modern international humanitarian law was born. International lawyers ask the Lieber Code (a document written to control the conduct of the Union forces during the American Civil War) because the first example of the codification of the laws of war, named after Francis Lieber (1800-1872), a German-American professor of politics and law at Columbia University, New York, who prepared on the behalf of Lincoln, a manual, which was enacted in 1863 for the Union Army of the US within the American war (1861-1865). This Code was the primary code with one set of instructions for forces within the field, governing laws of war and customs of war. The 157 articles of the Code were based on the ideas flowing from enlightenment, as it, for example, stressed that armed enemies should be attacked and the unarmed civilians and their properties should be respected and also the prisoners and the wounded should be humanely treated. One merchant named Henry Dunant from Geneva, Switzerland witnessed the fight of 40000 of Austria, French, and Italian soldiers during the Italian war for unification who were wounded on the battlefield of solferino in 1859.
Basic principles of International Humanitarian law
International humanitarian law has mainly two basic foundation principles. The Principle of Humanity and the Principle of military necessity. Finding the balance between these two principles is the role which can be loosely described by the legislature. The state shall adopt the convention regarding the international humanitarian law or contribute through their practice for the formation of customary international law rule that applies armed acts. According to the principle of humanity, the state and the civilians or combatants should help each other and according to the principle of military necessity, the armed forces which are trained by the government of the state should always be ready for any type of dispute in the state.
Principle of Humanity
This principle specifies that all humans have the capacity and ability to show respect and care for all, even their sworn enemies. Modern International Humanitarian Law is not naive and accepts that harm, destruction and death can be lawful during armed conflicts, International humanitarian Law simply looks to limit the harm, and the principle of humanity is very much at the spirit of this ambition. Many rules of International humanitarian law are inspired by this idea, specifically those setting out protections for the wounded and sick.
Principle of Military Necessity
No principle is more central to the content and understanding of Military necessity. Military necessity, as understood by modern civilised nations, consists in the necessity of those measures which are needful for securing the end of the war, which are lawful according to modern law.
These include principles like:
- The distinction between civilians and combatants,
- The distinction between civilian objects and military objectives,
- Prohibition on causing unnecessary suffering.
These principles are not based on a separate source of international law but are based upon treaties, customs and the general principles of law. These principles can be derived from the existing rules or expressing the rule substance and meaning and also they support the existing rule, inspire them and get an easy way to make them understand anyone.
Specially Protected Persons and Objects
There are specifically protected persons and objects in International Humanitarian Law such as:
- Medical and religious personnel and object,
- Humanitarian relief personnel and object,
- Some protected zones,
- Cultural properties,
- The natural environment,
- Work and installations containing dangerous forces,
- Personnel and objects involved in a peacekeeping mission.
Major weapons and IHL treaties associated with them
|Explosive projectiles weighing less than 400 grams.||Declaration of Saint Petersburg (1868).|
|Bullets that expand or flatten in the human body.||Hague Declaration (1899).|
|Poison and poisoned weapons.||Hague Regulations (1907).|
|Chemical weapons||Geneva Protocol (1925): Convention on the prohibition of chemical weapons (1993).|
|Biological weapons||Geneva Protocol (1925): Convention on the prohibition of biological weapons (1972).|
|Incendiary weapons||Protocol III (1980) to the Convention on Certain Conventional Weapons.|
|Blinding laser weapons||Protocol IV (1995) to the Convention on Certain Conventional Weapons.|
|Mines, booby traps and “other devices”||Protocol II, as amended (1996), to the Convention on Certain Conventional Weapons.|
|Anti-personnel mines||Convention on the Prohibition of Anti-Personnel Mines (Ottawa Treaty), 1997.|
|Explosive Remnants of War||Protocol V (2003) to the Convention on Certain Conventional Weapons.|
|Cluster Munitions||Convention on Cluster Munitions (2008).|
Distinction Between International Armed and Non-International Armed Conflict
Traditionally the law of international armed conflict was applied to war only between states. The distinction between international and non-international armed conflicts can be explained by the history of the development of International law in general and International humanitarian law in particular. Additional protocols of the Geneva convention of 1949 dealt separately with international conflict and non-international conflict. Additional protocol I dealt with international conflicts. These treaties contain the rules relating to the conduct of hostilities and rules relating to the protection of those who do not take part. On the other hand, the non-international armed conflicts have a limited number of treaty rules as mentioned above, they are restricted to common Article 3, provisions of the additional protocol II and Article 8(2)(c) and Article 8(2)(e) of the ICC statute.
The mine bar convention
The mine bar convention is also known as the “Ottawa treaty”. It was the result of the Ottawa process which was launched by the Canadian Government by following the first review conference for the 1980 conventions or conventional weapons which was not allowed on anti-personnel mines or not able to adopt far-reaching prohibition. An adaptation in December 1996 of UN general assembly resolution 51/45S which called upon all the countries to conclude a new international agreement prohibiting anti-personnel mines as soon as possible. The Government of Austria circulated a draft treaty to all Government and many international organizations so that there won’t be any problem and the meeting would be in peace. Normally exchange of views on the content of the Austrian draft took place in Vienna from 12th to 14th of February 1997. The government of Germany hosted a meeting inborn to discuss the verification of such a treaty on 25th and 26th April 1997. From 24th to 27th June 1997 the Belgian Government hosted the official follow up to 1996 Ottawa conference “The Brussels international conference for a total global ban on anti-personnel mines”. This was the largest ever gathering of the government to date for a conference devoted specifically to the issue of landmines where there were representatives of 154 countries. 97 countries signed the “Brussels Declaration” calling for a diplomatic conference in Oslo to formally negotiate a comprehensive ban treaty based on the Austrian draft text on the closing date.
The Geneva Conventions and their additional protocols are the core of the International humanitarian law and also the body of international law that regulates the conduct of armed conflict and seeks to limit its effect. They specifically protect people who are not taking part in the hostilities like civilians, health workers, aid workers and those who are no longer participants in the hostilities like wounded and sick soldiers and prisoners of war.
This is an international agreement governing treaties between states that was drafted by the International law commission of the United Nations and adopted on May 23, 1969, and that entered into force on January 27, 1980.
The convention applies only to the written treaties between states. The first part of the document defines the terms and scope of the agreement and the second part lays out the rules for the conclusion and adopted treaties.
From the late 1980s, the ICRC has put its energies into a measure to encourage governments to implement international humanitarian law and to teach its provisions at relevant levels within the state administration-notably. The ICRC also works with governments and national red cross and red crescent societies to promote knowledge of the law in academic circles, youth and the media.
Case: Hungary v. Slovakia, 1997, ICJ
In 1978 Hungary and Chekoslovokia signed the Danube treaty to build a dam jointly over river Danube, the construction of the dam then began. In 1989, Hungary wanted to revoke the terms and conditions of the treaty because of environmental concerns, lack of funding and also called fundamental change of circumstances. In 1993, the new nation of Slovakia started to negotiate with the Hungarian government and decided jointly to take the matter to the ICJ.
ICJ prima facie held that Hungary was liable on all grounds for not respecting the doctrine of pacta sunt servanda (agreement must be kept), and other treaty violations as contained in the Danube treaty. ICJ also found Slovakia guilty on one count. The court also held Slovakia liable for one ground, and it was the 1st in which the judges of ICJ actually wanted a spot to determine the environmental repercussions of the construction of the dam.
The law of armed conflict looks torn between 2 contradictory impulses– the need, to wage war effectively and the desire to protect people and property against the ravages of such warfare. The law of armed conflict tries to reconcile these impulses, in a very fundamentally pragmatic way. International humanitarian law compels States and non-State parties alike to try their utmost to guard and preserve the life, limb and property of civilians and others hors de combat (out of action due to injury), whereas at the identical time giving parties to a conflict leave to commit acts of violence among bounded boundaries.
However, once those boundaries are transgressed, once perpetrators of war crimes aren’t delivered to account for his or her transgressions, there’s a natural impulse to dismiss International humanitarian law as lacking any “real” normative force. This can be a visible response, however, it fails to understand the complexities of International humanitarian law.
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