INTERNATIONAL LAW

                                   PUBLIC  INTERNATIONAL LAW


                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  PUBLIC  INTERNATIONAL LAW
                            
                                             Guess Paper
                                                 Unit - 1
                   Question:-   i) Discuss the nature and basis of International Law which source has         contributed to the development of International Law?    OR
      ii) Whether the International Law is law in the proper sense of the term. Give reasons for your answer.     OR
      iii) International Law is the vanishing point of jurisprudences. Explain.
       iv) Discuss the weaknesses of International Law.  Or
            International Law is a weak Law.  
       v) International Law and Municipal Laws are same or not. Explain.
                                                   Unit-II
Question :-2.(i)  What do you understand by recognition of a state? What are the theories of recognition?  What are the legal effects of recognition and consequences of non-recognition of a state? Discuss.
                    (ii) What is the difference between de facto and de jure recognition.
                   (iii) Discuss the conditional recognition.
                   (iv) What is meant by Intervention? Under what circumstances intervention by one state in the affairs of another state considered justified?
                                                                 Unit-III
Question:-3 (i) What are the categories of diplomatic agents ? What immunities do diplomat enjoy and how the immunities are lost?
                   (ii) Define Treaty. What do you understand by ratification of a Treaty? Explain?                (iii) Define Extradition? Explain the essential conditions for extradition? For which crime extradition cannot be claimed.  Discussed
                  (iv) Define Asylum, its essentials and types of asylum. What are the differences between extra territorial asylum and territorial asylum?
                                                                 Unit- IV
Question :-4 (i)  (v) Critically examine the various amicable and force-able means of settlement of International disputes between the states.
                    (ii) Define war. What are the legal characteristics and effects of a War?
                   (iii) Discuss the rights and duties of neutral state and belligerent states.
                 (iv) Define Prize Court.  
                 (v) Distinguish between Neutrality and Neutralization.
                 (vi) Discuss Blockade and right of Angry.
Write short note on the followings:-
1.   What do you mean by ex acquo ET bonod.
2.   What is ‘double veto’.
3.   Write about ‘jus cogens ‘.
4.   Difference between Retorsion and Reprisal.
5.   What do you mean by Blockade?
6.   What is meant by contraband?
7.   Explain the doctrine of Pacta sunt servanda.
8.   What is drago Doctrine?
9.   Explain Political crime in respect of extradition.
10.        Discuss Monroe Doctrine.
11.        Write a short note on Hijacking.


Discuss the sources of International Law Explain them.
Introduction:-The term sources refer to methods or procedure by which international law is created. A distinction is made between the formal sources and material sources of law. The formal, legal and direct sources consist of the acts or thing which gives that the content its binding character as law. The material sources provide evidence of the existence. The sources of international law may be classified into five categories:- 1.International Conventions: - In the modern period international treaties are the most important source of international law. This is because the reason that states have found in this sources. Article 2 of the Vienna Convention on the law of treaties 1969, a treaty is agreements whereby two or more states establish or seek to establish relationship between them govern by international law. Prof. Schwarzenbergr, “Treaties are agreements between subjects of international law creating a binding obligation in international law.” International treaties may be of the two types: - a) Law making treaties:- these are the direct source of international law and the development of these treaties was changing of the circumstances. Law making treaties perform the same functions in the international field as legislation does in the state field. b) Treaty contracts:-As compared to law making treaties treaty contracts are entered into by two or more States. This may happen when a similar rule is incorporated in a number of treaty contracts.
2.International Customs:-International customs have been regarded as one of the prominent sources of international law for a long time. However even today it is regarded as one of the important sources of international law. Usage is an international habit which has yet not received the force of law.  STRAKE Says, “Usage represents the twilight stage of custom, custom begins where usage ends. Usage is an international habit of action that has yet not received full legal attestation.” A custom in the intendment of law is such usage as that obtained the Force of law i.e.:- It is not necessary that the usage should always precede a custom. ii) In certain cases usage gives rise to international customary law. iii) When a usage is combined with a rule of customary law exists. iv) It is an important matter to see as to how international custom will be applied in international law. Refer a case of West Rand Central Gold Mining Compy.v/s R-1905, court held that for a valid international customs it is necessary that it should be roved by satisfactory evidence that the custom is of such nature which may receive general consent of the States and no civilized state shall oppose it. Porugal v/s India-1960, ICJ pointed out that when in regard to any matter or practice, two states follow it repeatedly for a long time, it becomes a binding customary rule. Still other resolutions amount to an interpretation of the rules and principles which he charter already contains and which are in binding upon States.
3. General Principles of Law recognised by civilized States: - Art.38 of ICJ provides that the Statute of International Court of Justice lists general principles of law recognised by civilised States as the third source of international law. In the modern period it has become an important source. This source helps international law o adapt itself in accordance with the changing time and circumstances. On the basis of this view the general principle of law recognised by civilized States have emerged as a result of transformation of broad universal principles of law applicable to all the mankind. Following are some important cases relating to the general principles of law recognised by civilized States:-1.R. v/s Keyn-1876, that I. Law is based on justice, equality and conscience which have been accepted by practice of States. 2. U.S v/s Schooner-held that I. Law should be based on general principles.
4. Decisions of Judicial or Arbitral Tribunals and Juristic Works:- i) International judicial Decisions:-In the modern period international court of justice is the main international judicial tribunal. It was established as a successor of the permanent court of I. justice. Art.59 of the statute of ICJ makes it clear that the decisions of the court will have no binding force except between the parties and in respect of that particular case. While in principle it does not follow the doctrine of precedent. Thus judicial decisions unlike customs and treaties are not direct sources of law; they are subsidiary and indirect sources of international law. State judicial decisions:- These decisions may become rules of international law in the following two ways:-1. State judicial decisions are treated as weighty precedents. 2. Decisions of the state courts may become the customary rule of I. Law in the same way as customs are. Decisions of International Arbitral Tribunals:- Jurists have rightly too pointed out that in most of the arbitral cases arbitrators act like mediators and diplomats rather than as judges as in Kutch Award-1968. Juristic Works. Juristic Works:- Art.38 of ICJ, the work of high qualified jurists are subsidiary means for the determination of the rules of I. Law. In Paquete Habana and Lola fishing vessels with Spanish flags on them in 1898 during war between America & Spain, held that they could not be seized or apprehended during the state of blockade.
5. Decisions or determinations of the organs of international institutions:-Art.38 of ICJ incorporated these sources and also introduced one new source namely general principles of law. In view of the strong reasons the decisions and determination of organs are now recognised as an important source of I. Law. The resolutions of the organs may be binding on the members in regard to the internal matters. Organs of international institution can decide the limits of their competence. 6. Some other sources of International Law:- Besides the above sources of I. Law, following are some of the other sources of international law: - 1. International Comity: mean mutual relations of nations. 2. State Paper:-In modern period diplomats send letters to each others for good relations are also the sources of I. Law. 3. State guidance for their officers: Numbers of matters are resolved on the advice of their legal advises. 4. Reasons: has a special position in all the ages.5. Equity & Justice: I t may play a dramatic role in supplementing the law or appear unobtrusively as a part of judicial reasoning.
What do you mean by subjects of International Law? Can an Individual be a subject of International Law? If so in what circumstances.
INTRODUCTION:-A subject of rules is a being upon which the rules confer rights, capacity and imposes duties and responsibility. Generally it is the State who enters into treaties with each other and is thus bound by its provisions. This does not however mean that other entities or individuals ar outside the scope of international law. International law applies upon individuals and certain non-state entities in addition to states. In the modern era the international law has expanded a lot. Now this law is applied besides States and individuals also.
THEORIS REGARDING SUBJECTS OF INTERNATIONAL LAW:- Following are the three main theories prevalent in regard to the subjects of international law:-1. Only States are the subject-matters of I. Law:- Certain jurists have expressed the view that only International law regulates the behaviour of states hence states are its subject matters. Percy E.Corbett says, “The triumph of positivism in the late eighteenth century made the individual an object not a subject of international law.
CRITCISM: - The jurists have bitterly criticised as this theory fails to explain the case of slaves and pirates. The pirates are regarded enemy of humanity and they can be punished by the State for piracy. In international arena by some ordinary treaties community of states have granted certain rights. But those jurists who say that states are the only subject-matter of international law but are object of it. To say that individuals are not the subject but object of the International law seems to be incorrect. Prof. Schwarzenberger, has aptly remarked that this view is controversial. He asserts that he individual who is the base of the society is only an object of the I. Law is not justified.
2. Only individual are the subjects of International law: - Just contrary to the above theory there are certain jurists who have expressed the view that in the ultimate analysis of international law it will be evident that only individuals are the subject of International Law. The main supporter of this theory is Professor Kelson. Before keelson this view was expressed by Westlae, who opined, the duties and rights of the States are only the duties and rights of men who compose them.  Kelson has analysed the concept of State and according to him it is a legal concept which as a mixture of legal rules applicable to all the people living in certain area hence the obligations of a State in international law in the last resort are the duties of individuals of which state consists. 
                     In fact there is no difference between international law and state law. In his view both laws apply on the individuals and they are for the individuals. However he admits that the difference is only this that the state law applies on individuals intermediately whereas international law applies upon the individuals mediately.
Criticism:-So far as logic is concerned the view of Kelson seems to be correct. An example is the Convention on the settlement of invest Disputes between States and Nationals of the other states, 1965. By this treaty provision is made to settle the disputes which arise by investment of capital by nationals of one state in other states. So it is clear that the view of Kelsen that international law is made applicable through the medium of a State seems justified.   
3. States individuals and certain non-state Entities are Subjects: - This view seems to be justified as against the above views. In support of this, the following reasons may be advanced: - i) in modern times many treaties grants rights and duties to individuals. ii) In case Danzing Railway PCIJ-1928, in case the State Parties of a treaty intended to grant rights to individuals then International Law would recognise such rights and International Court will enforce them. iii). Geneva Convention of Prisoners of War-1949 has also accorded certain rights o prisoners of war. iv) According to Nuremberg Court since crimes against International Law are committed by individuals the provisions of International Law can be enforced. vi) Genocide convention- 1948:- In the convention also individuals have been assigned directly certain duties. By article 4 of this convention those individuals who commit international crime of genocide should be punished whether they are public servants or ordinary person.
By the above description it is clear that only states are not subject matter of Internationals Law but in modern times individuals international Institutions, Non-state entities minorities are also the subject-matter of International Law.
PLACE OF INDIVIDUALS IN INTERNATIONAL LAW: - As pointed out earlier individuals are also treated to the subjects of international law although they enjoy lesser rights than states under international law. In the beginning they were accepted as subjects of international law as an exception of the general rule and number of jurists treated them as objects rather than the subject. In the recent times several treaties concluded wherein rights have been conferred and duties have been imposed upon the individuals. Some of the provisions are as under:-
1.   Pirates: Under I. Law pirates are treated as enemies of mankind. Hence every state is entitled to punish them.
2.   Harmful acts of individuals: - For the amicable and cordial relation of the state it is necessary that the individuals should not be involved in such acts as may prove detrimental for the good relations among states. A leading case ex parte Petroff-1971, wherein two persons who were found guilty of throwing explosive substances on the Soviet Chancery were convicted.
3.   Foreigners: to some extent international law also regulates the conduct of the foreigners.  According to international law it is the duty of each state to give to them that right which it confers upon its own citizens.4.War criminals: can be punished under international law. 5. Under some treaties individuals have been conferred upon some rights whereby they can claim compensation or damages.
4.   3. Discuss the basis and nature of International Law.  Or
Whether the International Law is law in the proper sense of the term? Give reasons for your answer.
INTRODUCTION: - Austin in his definition of law has given more importance to sanction and fear in compliance of law.  In case of International law there is neither sanction nor fear for its compliance hence it is not law in proper sense of the term. But now the concept has changed and International Law is considered as law. There is no consideration of fear or sanction as essential part of law. If fear and sanction are considered necessary then there are sufficient provisions in UNO charter for compliance of the International Law as Law :-
According to Bentham’s classic definition international law is a collection of rules governing relations between states. Two of the most dynamic and vital elements of modern international law.
1.   In its broadest sense, International law provides normative guidelines as well as methods, mechanisms, and a common conceptual language to international actors i.e. primarily sovereign states but also increasingly international organizations and some individuals.
2.   Although international law is a legal order and not an ethical one it has been influenced significantly by ethical principles and concerns, particularly in the sphere of human rights. International is distinct from international comity, which comprises legally nonbinding practices adopted by states for reasons of courtesy. e.g. the saluting of the flags of foreign warships at sea.)
                         INTERNATIONAL LAW AS REALLY LAW
According to Oppenheim, International Law is law in proper sense because:-
·      In practice International Law is considered as law, therefore the states are bound to follow them not only from moral point of view but from legal point of view also.
·      When states violate international law then they do deny the existence of international law but they interpret them in such a way so that they can prove their conduct is as per international law.
·      Starke while accepting International Law as Law has said, “that in various  communities law is in existence without any sanction and legal force or fear and such law has got the same acceptance as the law framed and enacted by state Legislative Assemblies.
·      With the result of international treaties and conventions International Law is in existence.
·      U.N.O. is based on the legality of International Law. According to Prof.Briely, “To deny the existence and legal character of International Law is not only inconvenient in practice but it is also against legal thoughts and principles.”
·      The states who are maintaining the international relations not only accept International Law as code of conduct but has also accepted its legal sanction and force. Prof. Hart, “There are many rules in practice which are honoured by states and they are also bund by them, now the State Government accept the existence of International Law.” According to Jus Cojens, “International Law may now properly be regarded as a complete system.”
It is pertinent to mention here that from the above noted contents it is clear that the following grounds  are supportive for accepting the International Law as law:-
·      Now so many disputes are settled not on the basis of moral arguments but on the basis of International Treaties, precedents, opinions of specialists and conventions.
·      States do not deny the existence of International Law. On the contrary they interpret International Law so to justify their conduct.
·      In some states like USA and UK international Law is treated as part of their own law. A leading case on the point is the, Paqueta v/s Habanna-1900.  Justice Gray observed that the international law is a part of our law and must be administered by courts of justice.”
·      As per statutes of the International Court of Justice, the international court of Justice has to decide disputes as are submitted to it in accordance with International Law.
·      International conventions and conferences also treat international Law as Law in its true sense.
·      The United Nations is based on the true legality of International Law.
·      That according to article 94 of UNO charter, the decisions of the International Court of Justice are binding on all Parties (States).
·      Customary rules of International Law are now being replaced by law making treaties and conventions.  The bulk of International Law comprises of rules laid down by various law-making treaties such as, Geneva and Hague conventions.
On the basis of above mentioned facts and arguments, the International Law is law in true sense of the term. United States and U.K., treat International Law as part of their law.  In a case of West Rand Central Gold Mining Company Ltd., v/s Kind- 1905, the court held the International Law has considered it as a part of their law. From the above analysis it is revealed that the International Law is law.  The International Law is law but the question arises as to what are the basis of International Law.  There are two theories which support it as real law:-
1. Naturalist Theory:- The Jurists who adhere to this theory are of the view that International Law is a part of the Law of the Nature.  Starke has written, “States submitted to International Law because their relations were regulated by higher law, the law of Nature of which International Law was but a part.”  Law of nature was connected with religion. It was regarded as the divine Law. Natural Laws are original and fundamental.  They incorporate the will of the Governor and governed and advance their consent or will.  That is why international law is also based on natural law.
Vattel Furfendorf, Christain, Thamasius, Vitona are the main supporters of this theory.It was viewed that natural law is uncertain and doubtful but it is accepted that Natural Law has greatly influenced the growth and has given the birth to International Law and its development.  Most of its laws are framed from Natural Law.
2. Positivist Theory:-  This theory is based on Positivism i.e. law which is in the fact as contrasted with law which  ought to be. The positivists base their views on the actual practice of the states.  In their view customs and treaties are the main sources of International Law.  According to German economist, Heagal, “International Law is the natural consent of states.  Without the consent of states, no law can bind the states. This consent may be express or implied.”   As pointed out by Starke, “ International Law can in logic be reduced to a system of rules depending for their validity only on the fact that state have consented to them.”   As also pointed by Brierly, “The doctrine of positivism teaches that International Law is the sum of rules by which states have consented to be bound.”  As said by Bynkeshock, “The basis of International Law is the natural consent of the states. Without the consent of states no law can bind the states.” 
The critics of the above views say that consent is not always necessary for all laws.  There are some laws which are binding on states irrespective of their consent e.g. Vienna Convention on the Law of Treaties.  Article 36 of the Treaty says that the provisions of the Treaty may be binding on third parties even if they have not consented to it.
CONCLUSION: - Gossil Hurst says, “That International Law is in fact binding on states, because they are states.” This is very much correct because every state in the world wants peace, Law and order and that is possible only through existence of International Law. Therefore it is in natural interest of States to accept the existence of International Law.


2. International Law is the vanishing point of Jurisprudence. Explain.
INTRODUCTION:- Holland has remarked that International Law is the vanishing point of jurisprudence in his view , rules of international law are followed by courtesy and hence they should not be kept in the category of law. The international Law is not enacted by a sovereign King. It has also no sanctions for its enforcement which is the essential element of municipal law. Holland further say that International Law ass the vanishing point of Jurisprudence because in his view there is no judge or arbiter to decide International disputes and that the rules of the I. Law are followed by States by courtesy.
Austin also subscribes to this view, Justice V.R.Krishna Iyer formally member of Indian Law Commission has also remarked, “It is a sad truism that international law is still the vanishing point of jurisprudence. This view is not correct.  It is now generally agreed that Holland’s view that international law is the vanishing point of jurisprudence is not correct.
But now it is well settled that International Law is law.  It is true that International Law is not enacted by sovereign and has no agency for its enforcement.  But it is true that it is a weak law.  A majority of International lawyers not subscribe to this view is based on the proposition that there are no sanctions behind international Law are much weaker than their counterparts in the municipal law, yet it cannot be successfully contended that there are no sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of jurisprudence say that there is difference between state law and International Law.  International Law cannot be enacted by the state but still there is agency for its enforcement. According to Dias, “International Law is obeyed and complied with by the states because it is in the interests of states themselves.”
                        For this object they give the following arguments:-
1.  The judgements of International court of Justice are binding on States.
2. If any state does not honour the order/judgement of International court of justice, the Security Council may give its recommendation against that state for action.
3. The judicial powers of International Court of justice (Voluntarily and compulsory) have been accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security, under chapter VII of the U.N. Charter, the security council can take necessary action to maintain or restore international peace and security.  Besides this the decisions of the International Court of Justice are final and binding upon the parties to a dispute.
The gulf war 1991 Iraq trespassed and acquired the whole territory of Quait in her possession by violation of International Law.  The Security Council passed a resolution against Iraq and asked her to liberate Quait. But Iraq did not honour the resolution of Security Council; hence therefore may economic and political restrictions were composed against Iraq.  But all in vain. Then USA and her allies were permitted to compel Iraq to honour resolution of Security Council. Consequently USA and her allies used force against Iraq and freed Quait.
The same action was taken against North Korea and Cango during the year l948 and 1961. The Security Council imposed penalty against Libya for shooting down American Plane in Lockerbie (Scotland) in 1992, consequently two citizens were also killed.  The Security Council forced Libyan Government to surrender two terrorists who were involved in this mishap and Libya obeyed the order of S. Council.
The greatest proof of its utility and importance is the fact that its successor the International Court of Justice established under the United Nations charter is based on the Statute of the Permanent Court of International Justice, the United Nations & Security Council Charter possess wide powers to declare sanctions against the states who are guilty of violence of the provisions of the same under chapter-VII
Thus International Law is in fact a body of rules and principles which are considered to be binding by the members of International Community in their intercourse with other.  The legal character of International Law has also been recognized in 1970 Declaration on the Principle of International Law Concerning Friendly relation and Cooperation among states.
Conclusion:- On  the basis of above discussion it may be concluded that the International Law is in fact law and it is wrong to say that it the vanishing point of Jurisprudence.


3.   Discuss the weaknesses of International Law. What are the suggestions for removing/improving the International Law?
INTRODUCTION: -   International Law is said to be a “weak Law.”  The weaknesses of International Law become evident when we compare it with Municipal Law.  Its weaknesses reflected in most of cases when these are compared with the state law.  The following are some of the weaknesses of International Law:-
                                         WEAKN ESSES
l. The greatest shortcoming of International Law is that it lacks an effective executive authority to enforce its rues.
2. Lacks Of effective legislative machinery:-  Since the International Laws are based on international treaties and conventions. Therefore these are interpreted by the states according to their self interest.
3. The International court of Justice lacks compulsory jurisdiction in the true sense of the  term :- The International court of Justice which is situated in Hague (Netherland) is not authorised to take cases of all states. The cases can be filed in this court with the mutual consent of concerned states.
4. Due lack of effective sanctions, rules of International Law are frequently violated:-  There is no sense or fear of sanction in the International Law with the results the laws are violated frequently by the States.
5. Lack in right to intervene in Internal Affairs :- As per article 2(7) of UNO Charter, UNO is not competent to interfere in the domestic matters of states.  International law cannot interfere in the domestic matters. Keeping in view these facts in several cases International Law proves to be ineffective and weak.
6. UNCERTAINTY:-  There is one more reason behind the weakness of International Law is its uncertainty. It is not certain as the laws of states as well as Municipal law.  In addition to this it has not been able to maintain international peace and order.
It is now very much clear from the above facts that International Law is weak.  Paton says that , “ from institutional point of view International Law is a weak. It has no legislative support though there is international court of justice but that functions or takes case on the basis of mutual consent of states.  It has no power to get the decisions implemented.”
According to Karbet,  “The main course of weakness of International Law is the lack of social solidarity among highly civilised states.
A case of Queen v/s Ken – 1876 :- There is no such institution or body which can enact laws for sovereign states and there is no court also which can enforce its decision and to bind the states.”
                  SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW
Despite the above mentioned weaknesses, it has to be noted that International Law is constantly developing and its scope is expanding.  It is a dynamic concept for it always endeavours to adopt itself to the needs of the day.  As compared to Municipal Law the International Law is works in a decentralised system.  This is because of the facts that the International policies, Inter-dependence of states and the continuous growth of the concept of International or world community.   However the weaknesses of the International Law may be improved in following ways:-
l. The International Court of Justice should be given compulsory jurisdiction, in the true sense of term overall international disputes.
2.An International Criminal Court should be established to adjudicate cases relating to international crimes.
3. International Laws should be properly codified.
4. The machinery to enforce the decisions of the International Court of Justice should be strengthened.
5. An International Police system should be established to check international crimes and to enforce the rules & principles of International Law.
6. An international Bureau of Investigation and prosecution should be established for investigation of matters relating to International crimes and the prosecution of International criminals.
7. The U.N.O. should be authorised to intervene in the internal matters of states.
8. For settlement of international disputes the use of judicial precedents must be encouraged.
9. There must be constant review of International Law.
10. Last but not the least there must be basic recognition of the interest which the whole international society has in the observance of its laws. 
CONCLUSION: -   It is pertinent to mentioned here that the General Assembly of UNO should made fruitful efforts in this direction. The above suggestions will make International Law equivalent to a Municipal Law to some extent. With the growth of Internationalism and the feeling of universal brotherhood international aw will also become effective and powerful.





1. International Law and Municipal Law are the same. Please discuss. Or 
Discuss the various theories regarding relationship between International Law and Municipal Law.
INTRODUCTION: - Certain theories have been propounded to explain the relationship between International Law and Municipal Law.  In general it is notionally accepted that the state municipal law control the conduct of individuals within the state while International Law controls the relations of nations.  But now this concept has altogether been changed and the scope of International Law has increased and it not only determines and controls the relations of states but also the relations of members of International community.  Both the laws have co-hesion with each other and the relations between these two are more prominent.  These theories have been put forward to explain the relationship between International Law and State Law.  Of all these theories as per following details, the most popular are the Monism and dualism and they are diametrically opposed to each other:-
1.     MONISTIC THEORY:-It is also known in the name of Monism theory.  According to the exponents of this theory International Law and Municipal Law are intimately connected with each other. International Law and Municipal Law are the two branches of unified knowledge of law which are applicable to human community in some or the other way.   All Law are made for individuals. The difference is that municipal law is binding on individual while International Law is binding on states. Conclusively it can be said that the root of all laws is individual.
According to Strake, “International Law is part of state Municipal Law and therefore decisions can be given by Municipal courts according to the rules of International Law.”
According to O.Kornell, “The objective of all laws is human welfare whether it is state municipal law or International Law.”
2.   DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and state Law are two separate laws and contained legal systems.  The Monist view of law is part of philosophy according to which totality is a single structure.  But within the framework of the unitary universe is diversity of phenomenon.  International Law cannot become part of state municipal Law till the principles of International Law are applied under State Municipal Law.
According to Strake, “The main foundation of the proponents of dualistic theory is that state Municipal Law and International Law are two different legal systems because the nature of International law is fundamentally different from State Municipal Law.”
Angilotti has also recognised both the systems as two different legal systems.  According to him the fundamental principle of State Municipal Law in compliance of law enacted by state legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the agreements executed between the states.”
The main basis of separation of these two systems is as follows:-
·      The main source of International Law is customs and treaties while in case of Municipal Law are an enactment by sovereign power.
·      International Law controls the relations between state while state law controls the relations between state and individuals.
·      The main cause of compliance of state law is fear of sanction while the basis of compliance of International Law is the moral liability and vested interests of states.
3.   THEORY OF SPECIFIC ADOPTION: - International Law cannot be directly enforced in the field of State Law.  In order to enforce it in the field of Municipal Law it is necessary to make its specific adoption.  The theory of adoption is based on Hague convention-1970, Vienna Convention-1972 and Tokyo Convention-1975.  In case of Jolly George v/s Bank of Cochin-1980: The court held that any agreement does not become part of Indian constitution automatically, but the positive commitment of state parties inspires their legislative action.”
The use of International Law in different countries like India, Britain, America and Russia.  The rules of International Law and treads have been based in a different ways e.g.
·      INDIAN ADOPTION :- The International Law has been given important place and mention the customary rules of International Law in Article 51(6) of the Indian constitution with the following strive :
i)               To increase international peace and security.
ii)            To maintain just and good relations among states.
iii)         To increase faith and honour for use of International Law treaty, obligations in natural relations and conduct of organised people.
iv)          To act as mediator to encourage for settlement of international dispute.
Some of the cases in this regard are : i) Shri Krishna Sharma v/s State of west Bengal-1964 : It was decided that whenever the court interprets the domestic Municipal Law, it should be taken into consideration that it does not go against International Law.
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the implementation of Kutch Agreement between India and Pakistan on the basis of correspondence between them.  Similarly there are two other case viz: Vishakha v/s State of Rajasthan-1997. And Apparel Export Promotion Council v/s A.K.Chopra-1999: In both of the cases the court held that the right of sex equality of women has assumed the important rule of International Law and its convention, court said that in cases of violation of human right the court should always consider international documents and conventions and should make them binding.
British Adoption: In Britain International customs are treated as part of domestic law.  British courts apply international customs subject to the conditions (i) International customary  rules are not inconsistent with British Laws (ii) they are accepted by lower courts when the limit of these customary rules are fixed by High Court. For use of treaties, the case of International Tin Council v/s Dep’t., of Trade and Industry-1900: the Lord Council decided that in England treaties are not binding automatically. It is binding only when the Parliament makes it a part of English Law and incorporates in Law by enactment of law in this regard.
Adoption in America:  In America the courts interpret the state law in such a way that it does not go against International Law.  The rules of customary International Law are treated as part of State Law.  It has been done in the case of  Paqueta  Habana Case- 1900: It was held that International Law is part of our state Law and when any question or case relating International Law is filed before courts of proper powers then the rights based on these questions should be determined and enforced.
4. THEORY OF TRANSFORMATION:-  The exponents of this theory contented that for the application of International Law in the field of Municipal Law, the rules of international law  have to undergo transformation.  Without transformation they cannot be applied in the field of Municipal Law.
According to Strake:-  “That the rules of International Law can be applied when they are transformed in to domestic law, is not necessary in every case.”
5.THEORY OF DELIGATION:- The theory of transformation has been criticised by the Jurists with the result of this craterisation it put forward a new theory called Delegation theory.  The supporters of this theory say that according to the statutory rules of International Law, the powers have been delegated to the constitution of different states o ensure that how and what extent according to International Law.  States to determine as to how International Law will become applicable in the field of Municipal Law in accordance with the procedure and system prevailing in each state in accordance with its constitution.
CONCLUSION:-  Last but not the least in a recent case namely, Chairman, Railway Board & others v/s Mrs. Chandrima Das and others-2000: The supreme Court of India observed that the International Conventions and Declarations as adopted by the United Nations have to be respected by all signatory states and meaning given to the words in such declarations and covenants have to such as would help in effective implementation of those rights. 



                                            UNIT-II
1. What do you understand by recognition? What are the various kinds of it?  Also differentiate between de facto and de jure recognition. Explain those situations when de facto become de jure recognition. What are the disabilities of an unrecognised state?
 INTRODUCTION: -   It can be said that through recognition, the recognising state acknowledges that the recognised state possesses the essential conditions of Statehood, a Government and Sovereignty, a definite territory and has a complete control over his territory.  The community is independent.  So recognition has an important place in International Law.  By recognition only the state is accepted as a member of International community.
DEFINITION:-  Many of the Jurists has define ‘Recognition’ in different ways. Some of them have opined as under:
Prof.L.Oppenheim :-  “In recognising a State as member of International community, the existing states declare that in their opinion the new state fulfils the conditions of statehood as required by International Law.”
Fenwick: -   “That through recognition the members of the International community formally acknowledge that the new state has acquired international personality.”
In the words of Phillip C Jessup: - By recognition is such a function of a state by which she accepts that any political unit contains the essential elements of nationality.”
According to Prof. Schwarzenberger:-  “ Recognition can be absorbed easily by a procedure developing International aw by which the state have accepted the negative sovereignty of each other and willing to develop their legal relations on the basis of their natural relations.”
According to Kelson:  “A community to be recognised as an International person must fulfil the following conditions:-
i)               The community must be politically organised.
ii)            It should have control over a definite territory.
iii)         This definite control should tend towards performance.
iv)          The community thus constituted must be independent.
Thus the conditions of statehood are, People, a territory, a government and sovereignty.”
                              TYPES OF RECOGNITION
Recognition is of two types, De facto and de jure recognition.  The practice of States shows that in first stage the State generally give de facto recognition. Later on when they are satisfied that the recognised state is capable of fulfilling International obligations, they confer de jure recognition on it, that is why sometimes it is said that de facto recognition of state is a step towards de jure recognition. The detail of de facto and de jure recognition is as under:-
DE FACTO RECOGNITION: - According to Prof.G.Schwarzenberger:- “When a state wants to delay the de jure recognition of any state, it may, in first stage grant de facto recognition.”
        The reason for granting de facto recognition is that it is doubted that the state recognized may be stable or it may be able and willing to fulfil its obligations under International Law.  Besides this it is also possible that the State recognised  may refuse to solve its main problems.
          De facto recognition means that the state recognized possesses the essentials elements of statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :-  “The de facto recognition of a State or government takes place when the said State is free state and enjoys control over a certain fixed land but she is not enjoying the stability at a deserved level and lacking the competence to bear the responsibility of International Law.”  
For example :- De jure recognition had not been given to Russia by America and other countries for a long time because Russia was not having competence and willingness to bear responsibility of International Law. The same position was with China.
In view of the Judge Phillips C Jessup, “De facto recognition is a term which has been used without precision when properly used to mean the recognition of the de facto character of a government; it is objectionable and indeed could be identical with the practice suggested of extended recognition without resuming diplomatic relations.”
The de facto recognition is conditional and provisional. If the state to which De Facto recognition is being given is not able to fulfil all conditions of recognition then that recognition is withdrawn.
                                 DE JURE RECOGNITION
De jure recognition is granted when in the opinion of recognizing State, the recognized State or its Government possesses all the essential requirements of statehood and it is capable of being a member of the International Community. 
According to Prof.H.A.Smith :- “ The British practiced shows that three conditions precedent are required for the grant of de jure recognition of a new State or a new Government. The three conditions are as under:-
i)               A reasonable assurance of stability and performance.
ii)            The government should command the general support of the population.
iii)         It should be able and willing to fulfil its international obligations.
Further Recognition de jure results from an expressed declaration or from a positive act indicating clearly the intention to grant this recognition such as the establishment of diplomatic relations.
According to Phillips Marshall Brown: - “De jure recognition is final and once given cannot be withdrawn, said intention should be declared expressly and the willingness is expressed to establish political relations.”
DISTINCTION BETWEEN DE FACTO AND DE JURE RECOGNITION
As observed by Prof.G.Schwarznbeer, “De jure recognition is by nature provisional and may be made dependent on conditions with which the new entity has to comply. It differs from de jure recognition in that there is not yet a formal exchange of diplomatic representatives.  De jure recognition is complete implying full and normal diplomatic relations.”
       De  facto recognition

 1.   De facto recognition is conditional and Provisional.
2.   If the conditions are not fulfilled by the concerned state then it is withdrawn.
3.   To maintain political relation in this recognition is not necessary.
4.   De facto recognition is the first step towards de jure recognition.
  De jure recognition

De jure recognition is final.

De jure recognition cannot be withdrawn once given it is final.

The willingness is to be expressed for maintenance of political relations.

De jure recognition is the final step towards recognition.

In Luther v/s Sagor-1921:- “It was held that there is no distinction between de facto and de jure recognition for the purpose of giving effect to the internal acts of the recognized authority.”
Bank of Ethopia v/s National Bank of Egypt and Liquori- 1937:- The court held that in view of the fact that the British government granted recognition to the Italian Government as being the de facto government of the area of Abyssinia which was under Italian control, effect must be given to an Italian decree in Abyssinia dissolving the plaintiff bank appointing liquidator.”
But in the case of Luther v/s Sagore-1921 the court held that as far as   internal affairs of a state is concerned De facto recognition is interim and it can be withdrawn.”
                        CONSEQUENCES OF RECOGNITION
There are many political and legal advantages of getting recognition and many disadvantages of not getting recognition.  They may be said as disabilities of a state of not getting recognition.  The following are the advantages of getting recognition and disadvantages of not getting recognition.
          ADVANTAGES
1. Can establish diplomatic and commercial relation with the states granting recognition.
2. Recognised states can institute a suit in the courts of states granting recognition.
3. Can institute suit relating to property situated in the courts of state granting recognition.
4. The representatives of recognised states are entitled to enjoy diplomatic and political communities in the territories of state granting such recognition.
5. The recognised states can execute treaty agreement with states granting such recognition.
       DISADVANTAGES
The states who did not get such recognition cannot establish such relations.
The state which does not get recognition cannot do so.

Unrecognised states cannot institute suit relating to property.

The representatives of unrecognised states cannot enjoy such relations.



The unrecognised states cannot sign any treaty agreement with any states.

                                              CONCLUSION
 Recognition of any state means, that state become a member of International community and acquires International entity.  The state becomes entitled to all rights and special rights as a member of the International community.  In the absence of recognition any state cannot establish her diplomatic and political relations with any states and also unable to sign any treaty agreement with any state.



2. Define intervention?  Under what circumstances intervention by one state in the affairs of another state considered justified.
INTRODUCTION: - Intervention in fact principally prohibited under the provisions of International Law.  According to International Law no state has the right to intervene in the affairs of another state for the purpose of maintaining or altering the actual condition of thing. All members shall retrain in their international relations from the threat or use of force, against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations.  So in this way when any state interferes in the internal and external affairs of other state, then as per International Law, it becomes a matter of intervention.
DEFINITION OF INTERVENTION: - In simple words intervention means to interfere directly or indirectly by one or more states in the internal or external affairs of another state.
Prof.L.Oppenheim : “Intervention is dictatorial interference by a state in the affairs of another state or the purpose of maintaining or altering the actual condition of things.  Interference pure and simple is no intervention.” Hans Kelson pointed out that, “International Law does not prohibit intervention in all circumstances. He further says that when one state intervenes in the affairs of another state through force, then as a reaction against this violation International Law permits intervention.”
TYPES OF INTERVENTIONS:- It can be accessed from the above view of different Jurists regarding types of intervention that there are so many types of Interventions.  However some of them are as under:-
1.   Military interference:  It is done with military force.2. Political Interference: is done by giving threatening information.3. Dictatorial Interference: Is done in threatening tone.4. Interference without right: It is done without any purpose & right. 5. Internal Interference: is done in interfering in the internal affairs.  6. External Interference: It is also done in interfering in external affairs. 7. Penal Intervention; 8. Subversive Intervention: is done by another state through exciting the people against the state.9. Economic Intervention: is done by creating obstacles in the trade.
BASES OF INTERVENTION: - It is very much pertinent to mention here that what is the basis of doing of intervention and what type of interventions are valid under UNO Charter.  However the following have been considered as the main basis of intervention:-
i. On the basis of self defence ii) On the basis of humanity iii) for application of treaty rights iv) to stop illegal intervention v) to maintain balance of power vi) to protect individuals and their property vii) collective intervention viii) to protect International Law ix) at the time internal war.
All above basis of intervention have been recognised by the UNO except the followings :- i) for application of treaty rights.  ii) to stop illegal intervention iii) to maintain balance of power IV) to protect individuals and their property. V)  to protect International Law.
Despite all these the following types of intervention are in use and recognised:-
i)   Intervention for self defence and self protection: - Self defence and self protection is main traditional basis of intervention. The intervention for self defence is rather limited as compared to that self protection.  Oppenhein says that the use of power of intervention should have been made when it becomes necessary for self protection.” A famous case, The Caroline-1841: In this case Mr. Webster declared that the necessity of self defence should be instant overwhelming and leaving no choice of means and no moment for deliberation.  Art. 51 of UN Charter provide that the right of intervention is still available.  Under this the state has the right to individual and collectively protection. But this right is available only when: - i. There has been attack on any state. ii) No step has been taken by the Security Council for international peace and security.
1.  Intervention on the basis of humanity:-  Every person on this earth has a right to live with human dignity. The state cannot devoid her of this right. It the state behaves her citizens with cruelty then it is violation of International Law of human rights. The action for intervention by UNO can be taken only in case when the degree of violation of human rights is such that if created danger for maintenance of International peace and security.  The best example of such intervention is by UNO in 1991 in Iraq for the protection of Kurds.
2. Collective Intervention:-  In Chapter 7 of UNO Charter the Security Council is empowered to take action of collective intervention. The collective intervention means just and legal base of Modern times. UNO can intervene for maintenance of world peace and security and to stop or avoid attack on the following conditions:-
i)   When there is actual danger or possibility of danger for international peace and security. ii) Actual attack has been made by the concerned state.
The use of such right was made by UNO in Korea in 1950, Kango in 1961 and Iraq in 1991. 3. Intervention in case of internal war:-  When in any state there is possibilities of Internal war, the intervention is considered as legal and just basis because there are strong apprehensions of breach of International peace.  Under this situation the Security Council can decision to take collective action under Chapter 7 of UNO Charter.     The action taken by UNO in 1961 in Kango is the best example of intervention.  This action was taken to stop internal war. CONCLUSION: - It is absolutely fact that every state is entitled to manage willingly her own internal and external affairs and does not like interfere of another state.  Similarly it is also the duty of the other state not to interfere in the internal and external affairs of any state. International Law also like this.  The main motto of the Security Council is maintaining peace in all the member states.
6. Detail note on Acquisition and loss of territory.
INTRODUCTION:-The act of appropriation by a State by which it internationally acquires sovereignty over such territory as it is at the time not under the sovereignty of another state. Further it is therefore an original mode or acquisition is that the sovereignty is not derived from another State. Occupation can only take place by and for a State. The leading case on the point is Island of Palmas Arbitrations, as regards the sovereignty over the Island of Palmas there was a dispute between America and Netherlands.
The following are the modes of acquisition of territory: In International Law a territory may be acquired by the following means:-
1.             Occupation: - Oppenheim said that, “Occupation is such an action by which any State may obtain sovereignty on that territory over which there is no sovereignty of any other state.” According to Starke, “Occupation consists in establishing sovereignty over a territory not under the authority of any other State, whether newly discovered or an un-likely case abandoned by the State formerly in control.”
To decide whether on a territory occupation of a particular state exists or not, it is seen whether that State has an effective authority and control over that territory or not. A leading case on this topic Island of Palmas Arbitration, AJIl-1928.
2.             Accretion:-A territory by accretion may be obtained by a State. Sometimes by natural calamities also a territory comes within the jurisdiction of a State through the same was previously a portion of another State. For this here is no need of any formal action or declaration.
3.             Prescription: - By prescription a territory comes within a State when by continuous occupation and control of that territory for a long time creates a vested authority in the controlling State and by passage of time that State becomes the actual and real sovereign over that territory. Reference, J.G.Strake Introduction to International Law-1989.
4.             Cession: - By cession also a territory comes within the authority of a State. The cession may occur as a result of a war through pressure or it may be voluntary. The Cession will be valid only when the sovereignty over the territory is transferred from one state to another with the territory.  while in accretion only one party may act. Under article 368 Parliament may make a law to give effect to an implement the agreement in question covering Cession of a part of Berubari Union NO.12 as well as some of the Cooch-Behar Enclaves.
5.             Conquest: When a state gets victory over the other State then the sovereignty over the conquered state is not established only by victory. For sovereignty it is necessary that the victor State establishes an effective authority over the territory of the conquered state through annexation.  The importance of this means is more or less extinct because of the Charter of the U.N.O. by which intervention of one state on the affairs of another is prohibited.
6.             Lease: - The territory may also be acquired through lease. A state may give its territory o another state under lease for a certain period. For the said certain period some rights of sovereignty are transferred to another. A good example of this type of lease is transfer of certain Islands on lease by Malta to Great Britain for some years. Recently India had also leased three Bigha to Bangladesh. Case Union of India v/s Sukumar Sengupta-1990, it was held that the concessions given to Bangladesh over the said area amounted to servitude.
7.             Pledge:-Sometimes there arise certain circumstances under which a State becomes compelled to pledge a part of its territory in return of some amount of money for which it is in dire need.  In this case also a part of sovereignty over the territory concerned is transferred. For example in 1768 the Republic of Geneva had pledged the Island of Corsica to France.
8.             Plebiscite:-Some writers of the view that through plebiscite also new State may be acquired. Although in International Law there is no such rule but some modern writers have expressed the view that by plebiscite also a new territory can be acquired by a State. An example to this concern is of West Irian, Netherland and Indonesia both had put their claims on the territory of West Irian.  UNO decided for voting of the residents of west Irian. Irians voted in favour of Indonesia. Now Irian is a part of the Indonesia. Example of Kashmir, Govt. Of india have taken the position that since the merger of J&K with India several elections have taken place and the people have voted.
9.             Through Independence obtaining of territorial sovereignty:-those States which were colonies after attaining independence get sovereignty over the territory which consisted within the colonial setup. The difficulty in this context is that nationality and sovereignty in the concerned colonial territory comes only after it attains independence.
Mode of loss of State Territory:-1.According to Oppenheim, “A territory of a State is lost through cession means if one state gets some territory the same territory is lost by the other state. 2. National Calamity: By operation of nature also sometimes territory of a state is lost e.g. floods, by volcanic events. 3.Defeat in War: if by conquering a State gets some territory the same is lost by the defeated state. 4. Prescription: by occupation of a territory for a long time state gets that territory through prescription. Original States loses that very territory by prescription. 5. Revolution: through revolution a new state comes into being so it may be said that the state against which revolt occurred had lost its territory in the shape of a new state. Example: Netherland revolted against Spain. & in 1971Bangladesh was born by revolution. 6. Dereliction:- When any state abandons a territory completely or relaxes its authority over it then it loses that territory. In history there are lesser examples of this kind.





7. Short notes on Non State entities or State Succession.
INTRODUCTION: - State is the main subject of International Law and it is very difficult to define the term State. In principle all States are equal and this equality is due to their international personality. All states as international persons are equal. According to Oppenheim when any question is to be decided by consent each state is entitled to have one vote. Several efforts have been made to formulate and codify rights and duties of States. Declaration of Rights and Duties of Nations proclaimed by the American Institute of International Law.
Different kinds of Non State entities:- Here are some different kinds of Non-State entities:-
1.   Confederation: - It is formed by independent States. Under International Law confederation has no international personality. The aim and objective of confederation is to establish a sort of co-ordination among the States.
2.   Federal State:- Generally a federal state is formed by the merger of two or more than two sovereign states. Under international law a federal state is an international person. In a Federal State generally there is a division of powers between the central authority and states through a contribution. The main difference between a confederation and a Federal State is that while the Federal State in an International person under international law and Confederation is not an international person.
3.   Condominium:- When two or more states exercise rights over a territory it is called condominium.  It exists when over a particular territory joint dominion is exercised by two or more external powers. New Hebrides is a good example of a condominium. Both England and France exercised control and had rights over the territory of New Hebrides between 1914 &1980.
4.   Vassal States:-A state which is under the suzerainty of another State is called a Vassal State. Its independence is so restricted that it has no importance under international law. According to Starke, “Vassal State is one which is completely under the suzerainty of another State. Internationally its independence is so restricted as scarcely to exist at all.”
5.   Protectorate State: - Starke, “Although not completely independent a Protectorate State may enjoy a sufficient measure of sovereignty to claim jurisdictional immunity in the territory of another state. In the Lonian Ship Case-1855: the court held that a State may remain international person even though it is dependent upon some other State.
KINDS OF STATE SUCCESSION:- State succession is of two types:-
i)               Universal succession ii) Partial succession.
If the legal identity of a community is completely destroyed there is said to be a total succession of States.  If the territory is lost while personality and legal responsibility remain unimpaired the process is described as partial succession. This does not imply a total or partial succession respectively to the legal relation of the previous sovereign but is merely an abbreviated way of defining the extent of the change.
The following are the different kinds of state succession:-
1.   Universal Succession: - i) Universal succession occurs when one state occupies or annexes the State completely or amalgamates fully whether voluntarily or through winning of war.
ii) When a state is divided into two or more parts or limits and every such unit becomes a separate international entity or a state.
2.   Partial Succession: - i) Partial succession occurs when any portion of a state revolts and separates itself and attains independence and becomes an international person or state. Example of Bangladesh who revolted against Pakistan and became independent separate state is a good illustration of partial succession.
ii)            Or when a state gets some portion of another state through Cession.
iii)          When a sovereign state amalgamates itself with some Union of States and loses some portion of its independence or comes within the sovereignty or protection of any other state.
  





8. State Jurisdiction. What are the exemptions to the territorial Jurisdiction of state?
INTRODUCTION:-State jurisdiction is the power of a state under international Law to govern persons and property by its municipal law.  It includes both the power to prescribe rules and the power to enforce them. The rules of State jurisdiction identity the persons and the property within the permissible range of a state’s law and its procedures for enforcing the law. A State may regulate its jurisdiction by legislation through its courts or by taking executive or administrative action. Thus the jurisdiction of a State is not always a co-incident with its territory Case of  KTMS Abdul Cader and others v/s Union of India-1977, the court held that act has no extra-territorial application and hence the State government has no power under the Act to pass orders of detention against persons who at the time when the orders were made were not within India but were out-side its territorial limits.
                                 STATE JURISDICTION
In general every State has exclusive jurisdiction within its own territory but this jurisdiction is not absolute because it is subject to certain limitations imposed by international law. Thus in practice it is not always necessary that a State may exercise jurisdiction in its territory on the other hand in some circumstances may exercise jurisdiction outside its territory. Though the relationship between jurisdiction and sovereignty is close jurisdiction is not co-extensive with State Sovereignty. Each state has normally jurisdiction over all persons and things within its territory.
Illustration:-A French armed public ship flying the flag of France was in the British territorial waters when M, the Cabin boy of the ship committed the offence of murder by shooting dead D the captain of ship. Both M &D were British nationals. During the trial that took place that the British courts had no jurisdiction to try him for the murder committed on board a French cruiser flying French flag. The defence cannot succeed because he theory that the pubic ship of a state should be treated to be a floating portion of that state has long been discarded. Secondly the offence was committed within the territory of Britain. Thirdly seeking good office of British police and medical aid amounted to a waiver of the immunity. Thus M could be tried by British court.
                 EXEMPTION TO THE TERRITORIAL JURISDICTION
There are some exceptions of the exercise of jurisdiction which definitely recognizes the protective jurisdiction of one state to deal with foreign nationals acting in their country against its security and integrity:-
1. DIPLOMATIC AGENTS:- Diplomatic agents enjoy certain privileges and immunities. They are immune from the jurisdiction of the civil and criminal courts of the receiving State. In this connection the old view was tha the diplomatic agents enjoy these immunities and privileges because they were deemed to be outside the jurisdiction of receiving State. In the present time this theory has been discarded. Modern view diplomatic agents enjoy certain immunities and privileges because of the special functions they perform. This was affirmed in a case Ex-parte Petroff-1971 by the Supreme Court of Australia.
2. Foreign Embassies: - Foreign embassies are often considered to be outside the jurisdiction of the State in which they are situated. For sake of convenience embassies are to be treated a part of their home States. The correct view however is that though not part of their home States embassies enjoys certain immunities because of the special functions performed by the diplomatic agents.
3. Foreign Sovereigns:-Foreign sovereigns are often treated to be outside the jurisdiction of other states and possess many privileges and immunities. In the case of Christina-1938, Lord Wright observed that there are general principles of International Law according to which a sovereign state is held to be immune from the jurisdiction of another sovereign State.
The principle of immunity of immunity of Foreign Sovereign was developed in the early years of the nineteenth century. In the case of the Schooner Exchange v/s McFaddon-1812, A French Naval Vessel stayed in Philadelphia for repairs after a storm. Some persons sought possession of the ship on the ground that in reality the ship Schooner Exchange. An American ship which they owned and was seized by French on the High Seas in 1810 in pursuance of a Napoleonic Decree. The U.S. Govt. however requested the court to refuse jurisdiction on the ground of sovereign immunity. Court held that the vessel was exempt from U.S. Jurisdiction.
The jurisdiction of the nation within its own territory is necessary exclusive and absolute.  It is susceptible of no limitation not imposed by it. In another case of  Vavasseur v/s Krupp-1878, the plaintiff contended that the Japanese Govt., has violated his patent rights and therefore he demanded that the delivery of the goods by it be stopped. But the court had that it had no jurisdiction over the property of the foreign sovereigns more especially with what we call the public property of the State of which he is sovereign.




                                             UNIT-III
9. what is Nationality? What are the various modes of acquiring and losing nationality? Is there any difference between nationality and citizenship in India?
INTRODUCTION:- Starke, “Nationality has been defined as the status of membership of the collectively of individual whose acts decision and policy are vouch safed through the legal concept of the State representing these individuals.”
Prof. Oppenheim, “Nationality of an individual the quality of being a subject of a certain State and therefore its citizens.”
Fenwick:-“Nationality is such a bond which binds an individual with a state and makes him a member of that specific State and provides for right of protection from that State with an obligation to abide the laws promulgated by that State,”
Kelson:- “Citizenship or Nationality is the status of an individual who is legally an member of a state and ornamentally he can be called a member of that community.”
IMPORTANCE OF NATIONALITY: - i) The right of protection of diplomatic representatives are available because of nationality.
ii) If any state does not restrain a person of its nationality from such disadvantageous action which are affecting other States then the fist State shall be responsible to other states for such actions of its nationals.
iii) Ordinarily states do not refuse to accept its nationals in extradition.
iv) One of the effects of the nationality is that the state has a right to refuse extradition of own national.
vi) By the practice of many States, at the time of war the Enemy character is determined on the basis of nationality.
MODES OF ACQUISITION OF NATIONALITY:- According to International Law nationality can be obtained by following means :-
1.   By Birth: - In the country in which a person is born he obtains the nationality of that country by birth or at the time of birth person gets the same nationality which his parents are having.
2.   By Naturalization: - By naturalization also nationality can be obtained. When an alien living in a country obtains the nationality of that country it is called naturalization. In Nottebohm case-1955, it was held that a State has no obligation in granting nationality to a person through naturalization if that person has no relations with that state. The court propounded the real and effective nationality doctrine. If any person obtains nationality of two states then in case of controversy between the two nationalities the nationality of that state shall be accepted with which the person fundamentally has real and effective relationship.
3.   By Resumption:-Sometimes it so happens that a person may lose his nationality because of certain reasons subsequently he may resume his nationality after fulfilling certain conditions.
4.   By Subjugation:-When a State is defeated or conquered all the citizens acquire the nationality of the conquering State.
5.   Cession:-When a state has been ceded in another State all the people of the territory acquire nationality of the State in which their territory has been merged.
                                LOSS OF NATIONALITY
1. By Release:-In some states there are such legal provisions are available by which they grant permission to release their nationals from its nationality. For this type of release an application is necessary. If the application for release is accepted then the applicant is released from the nationality of that state.
2. By Deprivation:-Often in many states such legal provisions are available by which if a national of that state enters into service of another state without the permission of home state. He would loss nationality.
3. By long residence abroad:- The loss of nationality may take place on the ground that the individual stayed abroad beyond a certain time limit. Many states have such type of legal provisions which terminates the nationality for the stay of beyond limit.
4.By Renunciation:- It may also be the cause of loss of nationality, when a person is having nationality of two or more states, he has to choose the nationality of one & has to renounce the nationality of other state.
5. By Substitution:-In some states the nationality is terminated by substitution. A person gets nationality of one state in place of other states.
                    DIFFERNCE BETWEEN NATIONALITY & CITIZENSHIP
      NATIONALITY

The legal relationship which exists between the nation & Individual.

Through Nationality the civil & natural rights of a person may come.
All citizens may possess the nationality of a particular state.

A person who possesses only nationality in a particular state may not possess all political rights.

    CITIZENSHIP

Denotes the relations between the person and the state law.

The rights of citizenship are the sole concern of state law.



It is not necessary that all the nationals may be the citizens of that particular state
Citizens are those persons who possess full political rights in the state.






10. What do you mean by Treaty? How it is signed and what is the procedure of ratification.
INTRODUCTION:-In the modern period International treaties have been the first and foremost source of international law. Whenever an international court has to decide an international dispute its first endeavour is to find out whether there is an international treaty on the point or not. In case there is an international treaty governing the matter under dispute the decision of the court is based on the provisions of the treaty. International treaties occupy the same significant position in the field of international law as the legislation occupies in the municipal law.
DEFINITION OF TREATY: - International treaty is an agreement between two or more states under the international law to create mutual relationships. According to Oppenheim, “International treaties are those agreements between the states which are of contractual nature and produce legal rights and obligations.”
According to Starke, “Usually in all cases, the purpose of treaties is to create binding nature of obligations on the parties to the treaties.”
According to Vienna Convention on treaties-1969, “Treaties and contracts are document under which two or more states under international law establish or try to establish their relations.”
CLASSIFICATION OF TREATIES:- One of famous jurist Mc Nair has classified treaties in the following manner:-
1.   Treaties having the character of conveyance.
2.   Treaty contracts.
3.   Law making treaties: a) Treaties creating constitutional law just as charter of ICJ.  b) Pure law making treaties e.g. labour conventions negotiated by ILO.
4.   Treaties akin to charter of incorporation e.g. treaty by which International Posta Union -1874 came into existence.
5.   Vattel has classified treaties into four categories i.e. equal, unequal, real and personal.
6.   Prof.Oppenheim has classified the treaties into two categories:-
1.   Law making treaties.  2. Treaties made for other purposes.
              HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of binding nature, the following conditions are to be fulfilled:
1.   Accreditation of persons on behalf of contracting parties:- The intending parties of treaties should appoint persons as their representatives to negotiate on their behalf authoritatively for arriving at terms and conditions of a treaty.
2.   Negotiations and adoption:- After due negotiations the terms and conditions of a treaty are clunched and for its adoption a decision is made by both the parties.
3.   Signature: - The representatives sign on each and every terms of a treaty to make it enforceable. A treaty becomes enforceable against a party only after the signature of the party or its representative is obtained on the treaty papers.
4.   Accession and Adhesion: - The practices of the States show that by the process of accession and adhesion a state which is not a party to a treaty may become a party to it by signing it afterwards.
5.   Enforcement of a treaty:- Usually the enforcement of a treaty depends and begins according to the terms and provisions as laid down in the treaty itself.  Many treaties commence after the signature is affixed by the authorised person while those which need ratification by the other states in certain number begin after the required number of states have ratified. The general rule of International Law is that a treaty is enforceable against the parties only which have entered and signed a treaty.
6.   Registration & Publication:- It is necessary after the treaty comes into force, it may be got registered and published.  Under the provisions of article 102 of UNO charter. If it is not registered with the UNO that in case of any dispute comes into existence for its settlement through the organs of UNO the treaty which is not registered cannot be referred to for the settlement of that dispute.
7.   Basis of binding force of the International treaties:-According to Angilotti, “Binding force of International treaty gains its binding force.
PROCEDURE OF RATIFICATION:- Ratification is a very important processes ordinarily the terms and conditions of a treaty. Treaty does not become enforceable without ratification.  The President of a State or Chief of the Govt. Ratify the signatures of its representatives who negotiated for arriving at the agreed terms and conditions of a treaty.
  




11. What do you understand from the term of Extradition? Is it different from Asylum? Difference between Extra Territorial & territorial Asylum.
INTRODUCTION: - Each State exercises complete jurisdiction over all the persons within its territory. But sometimes there may be cases when a person after committing crime runs away to another country. In such a situation the country affected finds itself helpless to exercise jurisdiction to punish the guilty person. This situation is undoubtedly very detrimental for peace and order. There is a social need to punish such criminals and in order to fulfil this social necessity the principle of extradition has been recognised.
Meaning & Definition of Extradition:- Extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have been convicted of a crime.
According to Starke, “The term extradition denotes the process whereby under treaty or upon a basis of reciprocity one state surrenders to another at its request a person accused or convicted of a criminal offence committed against the laws of the requesting state.
According to Grotius:- “It is the duty of  each state either to punish the criminals or to return them to the States where they have committed crime.”
Under International Law extradition is mostly a matter of bilateral treaty. In principle each state considers it a right to give asylum to a foreign national, thus there is no universal rule of customary international law in existence imposing the duty of extradition. A famous case Music director Nadeem who was accused of the murder of Gulshan kumar. Nadeem fled to Britain. Lack of providing sufficient evidence England refused to extradite Nadeem.
                  IS EXTRADITION IS DIFFERENT FROM ASYLUM
There is a great difference in between extradition and Asylum.  Extradition means delivery of an accused or a convicted individual to the state on whose territory he is alleged to have committed or have been convicted of a crime whereas in Asylum the active protection extended to a political refugee from another state by a state which admits him on his request.

DIFFERENCE BETWEEN EXTRA TERRITORIAL & TERRITORIAL ASYLUM:- In the asylum case Colombia v/s Peris- ICJ-1950.

           Extra territorial Asylum

In case of diplomatic asylum the refugee is within the territory of the state where the offence was committed.

Grant of diplomatic asylum involves a derogation from the sovereignty of that state.

It withdraws the offender from the jurisdiction of the territorial state and constitutes an intervention in matters which are exclusively within the competency of the state.

Grant of extra territorial asylum is rather a derogation from the sovereignty.

Right to grant extra-territorial asylum is exceptional and must be established in each case.
         Territorial Asylum

The refugee is within the territory of the state of refuge


Territorial asylum is granted by a State in its own territory.


Every state has right in the exercise of its sovereignty to admit into the territory such persons as it deems advisable without exercising the Declaration of Asylum.

The grant of territorial asylum is an incident of territorial sovereignty itself.

Each state has a plenary right to grant territorial asylum unless it has accepted some particular restriction in this regard.





12. What are the different classes of Diplomatic Agents? Describe briefly their privileges & Immunities.
INTRODUCTION: - During the Ramayana and Mahabharata period some aspects of International Law were in their developed stage. Examples of international law relating to diplomatic agents may be cited in this connection. The permanent appointment of diplomatic envoys began from the seventeenth centaury.  The rights, duties, immunities and privileges etc., of the diplomatic in 18th. &19th. Centaury was mostly in the term of customary rules. The first great landmark was the Congress of Vienna in 1815, wherein the customary law regarding diplomatic agents was clarified and codified.  The contents of Vienna Convention were adopted finally in 1961. The Indian Parliament passed the Diplomatic Relations on the basis of Vienna Convention-1972 to give effect to this convention. This law relating to the diplomatic and consular affairs remains the strongest section of International Law.  DIFFERENT CLASSES OF DIPLOMATIC AGENTS:-The diplomatic agents have been classified according to their status and functions. The first classification of diplomatic agent was made in the Congress of Vienna in- 1815 under which diplomatic agents were classified under the following categories:-
1.Ambassadors and Legates:-These are the first category of diplomatic agents and are the complete representatives of the sovereignty states. Their designation is Ambassadors or Permanent Representatives of their respective countries of U.N. They are appointed by POP.
2.Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic agents of second category and as compared to the diplomatic agents of the first category. They enjoy less privileges and immunities.
3.Charge-d affairs: - They are the diplomatic agents of the last category. The main reason for this is that they are not appointed by the head of State but are appointed by the Foreign Minister of the State. Their status is considered below the Minister Resident.
4.Minister Resident: - In the congress of Aix-la-Chappele-1818, this category was added at category No.3, but it was again dropped by 1961 Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed by the International Court of Justice on 15.12.79 in a case of United States Diplomatic and Consular Staff in Tehran: For enabling states irrespective of their differing constitutional and social systems to achieve mutual understanding. One of the pillars of modern International Law is the diplomatic immunities of the Ambassadors. However the following are the immunities and privileges of the diplomatic agents:-
1. Inviolability of the person as envoys: - The diplomatic agents are extended personal safety and security. If an envoy is attacked it is deemed that attack was on the country to which the envoy is belonging.
2. Immunity from criminal jurisdiction of the court: - The courts of the state where the envoy is posted do not treat the envoys within its criminal jurisdiction. It ordinarily believed that envoys will not violate the laws of the host country.  But there are certain circumstances when the envoys lose their immunity for example when they indulge in conspiracy against the host state.
3. Immunity from civil jurisdiction:- the envoys also enjoy the immunities of civil nature also no suit is filed in the civil court of the host state against envoys. As per Vienna convention three exceptions when immunity is not available: i) for any immovable property within the jurisdiction of host state he has. ii) in a matter of inheritance where the envoy is a successor or executor in his personal capacity. iii) The commercial activities of the envoy in personal capacity.
4. Immunity regarding residence:-His premises are inviolable and no search is allowed in his residence. If any person intrudes the premises of envoy to avoid arrest, it is the duty of envoy to deliver such person to the host government to decide.
5. Immunity from presence in a court as a witness:- Any envoy cannot be compelled to give an evidence in any Court but he himself  can waive this privilege and appear before a court.
6. Immunity from Taxes:-Vienna convention provides this immunity to envoys for payment of local taxes. But water, electricity, telephones etc. not included.
a. Right to worship:-Within the premises of their embassy, envoys are free to follow according to their choice the mode of worship. B) Right to exercise jurisdiction over the staff and family in the embassy:- Envoys are free to exercise their jurisdiction over the subordinate staff & family in the Embassy to keep the embassy going on.
c. Right to travel freely in the territory of receiving state:-Vienna convention has provided a new right to envoys, they can travel freely within the territory of host state and go anywhere.
d. Freedom of communication for official purposes:- Vienna convention-1961 the envoys have freedom to communicate with his own state in context to their official work.
e. Immunity from Military and other local obligations :- Vienna convention granted the immunity to envoys from military and other local obligations of the host state. BASIS OF IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS:- Theory of extra territoriality: - According to Grotius diplomatic agents though physically present upon the soil of the country to which they are accredited. It is justified base when they are treated to remain for all purposes upon the soil of the country to which they represent. Functional Theory: - the reasons for granting privileges and immunities to the diplomatic agents are that they perform special type of functions that is why they are called functional and in modern times this theory is accepted as correct.


                                                   
UNIT-IV
13: Discuss the various compulsive means of settlement of International disputes. OR write notes on Retorsion, Reprisal as compulsive means of settlement of International disputes.
Introduction:- The primary purpose of the United Nation is that there should be complete peace and security in all the members of UNO. First of all to seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.  In the other meaning when it deems necessary call upon the parties to settle their dispute by such mean which shall be convenient to them. Compulsive or coercive means of settlement of International disputes are as under:-
1. Retorsion:- Retorsion is the technical term for retaliation. If any state behaves in unequal or in courteous way with the other State, then the other state under the International Law gets the right of retorsion.  In this way the meaning of Retorsion is retaliation.  But in connection with Retorsion the State can initiate only that proceeding which is permitted by the International Law. For example in retorsion the diplomatice channels can be terminated and immunities and privileges of the diplomat can be withdrawn together with the existing economic subsidies.  In the past Pakistan declared the diplomat of Iraq as persona non grata and that diplomat had to leave Pakistan.  Pakistan took this action because in the Embassy of Iraq a lot of arms and ammunition was stored.
2. Reprisal:- If the problem is not solved by Retorsion the States have the right under the International Law to resort to Reprisal that is, in Retaliation the state can initiate such a proceeding that violator of the problem may be solved. The reprisal can be resorted against a State when it has indulged in some illegal or inappropriate activity. For example Israel has resorted to Reprisal many times against Lebnon and has bombarded those regions of Lebnon where from Arab Terrorists attacked on the territories of Israel. The members of UN cannot indulge in Reprisals of such a type which endangers the international peace and security. It is commonly accepted that Reprisal becomes justified and legal when the other country has committed an international tort or violated the norms of International Law. In the provocative action and Reprisal there must be adequate proportion i.e. 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.
3. Embargo:- Embargo is also a kind of Reprisal. If the ship belongs to a State which has committed 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 travelling through that area as a matter of right by the other State.


4. Pacific Blockade: - By this method the outer boundary of a State is blocked peacefully.  It is resorted during the peace time against a State.  The coming and going ship is stopped. By blockade of Ports of a country compelled that state to solve the problem.
5. Intervention: - Under article 2(4) of the U.N. Charter, the principle of non-intervention in the internal affairs of a State has been propounded. But according to Kelson, he has asserted that International Law does not prohibit intervention in all circumstances, meaning thereby that in certain circumstances intervention is valid and legal.

  





14. Explain the purpose and principles of United Nation. How for United Nation has been successful in achieving its object?
INTRODUCTION:-In the 20th. Century two world wars of highly destructive nature were fought.  After the First World War the league of Nation was established. The main objects of the League of Nations were established and maintain world peace and security.  The League of Nations failed in its mission. The large scale destructive effects of the second World War forced the Nations of the world once again to establish some institution of International Statute which may solve peacefully the disputes amongst them and establish peace and security world over. On 26th.anuary, 1945 at Sanfransisco different Nations buttressed the establishment of U.N.O. and after it’s the membership of the UNO increased substantially and now it stands at 192.
PURPOSES OF UNO: - The purposes and objects for which the UNO has been established are laid down in Article 1 of the Charter:-
1. To maintain international peace and security:- In the preamble of the charter it is resolved to save the succeeding generations from the scourge of war and be united to achieve these ends. To achieve the target the Organisation shall prevent or remove threat to the peace, breach of peace and acts of aggression by taking effective and collective measures. The international problems were to be solved by peaceful means under the norms provided in the International Law and canons of justice.
2. To develop friendly relations among nations:- The friendship should be prosper on the basis of respect for the norms of equal rights and equality in self determination of people. So this thought which developed friendly relations & universal peace among the nations was set-up by UNO.
3. For removal of social, economic, cultural and human problems soliciting of international co-operation:- In the preamble of the charter of UNO it has been resolved to energize the International machinery for the development of economic and social status of the people. A belief is to b developed in promoting and encouraging the respect for human rights and fundamental freedom for all without distinction to race, sex, language or religion.
4. To make the UN an International Centre for harmonization:- The general purpose of UNO has to be made a centre for co-ordination of activities executed by different nations in this regards to avoid clashes in choosing priority, the UNO is to harmonise the different activities of different nations to achieve the main purpose.
PRINCIPLES OF UNO:- There are following principles of UNO:-
1. Principle of sovereign equality: - Principle of Sovereign Equality means that all the members of UNO are equal in the eye of International Law. No discrimination in dealings with them is permitted.
2. Principle of honouring of obligations:- Being member of UNO, they enjoy certain rights and benefits. Members are required to fulfil in good faith the obligations assured by them in accordance with the Charter of UNO.
3. All nations shall settle their disputes through the principals of peaceful settlement:-All the international disputes are to be settled by peaceful means with the results that peace and security and justice of any region may not endanger.
4. Principle of non-use of force:-All members of UNO should refrain from the use of force or threat of force against the territorial integrity or political independence of any State.
5. Principle of assistance to the UNO:-It is the essential duty of every members of UNO to support and assist to take action against the State who is not following the UNO charter.
6. Principle for non-member States: - As provided in Art.2 of UNO charter that the States which are not members of UN, act in accordance with the principles of UN for maintaining international peace and security.
7. Principle of non-interference in domestic affairs of a state: - Art.2 (7) provides that the UN shall not intervene in the matters which are essentially within the domestic jurisdiction of any State or to compel any members to submit such matters settlement.
If all the above principles are faithfully followed by all the members of UNO, than there will be no doubt at all that this path will lead to World Peace and the sayings of Kelson that UNO is World Government will remain in existence.
HOW FOR U.N. HAS BEEN SUCCESSFUL IN ACHIEVING ITS OBJECTS
The United Nation has performed important functions in the social, economic and cultural fields as well as in the fields of human rights. Besides this Uniting for Peace Resolution. There has been constant development of the powers and functions of UN. United Nations has become the symbol of democratisation in the world.
                      Public opinion is an important factor which comes into play in the new international law. The Gulf War-1991 and the breaking up of the Soviet Union are likely to bring about the revolutionary changes in the U.N. in the present Uni-polar world (United State as the super power), majority of the member-State are now demanding democratization of the world body. Un-doubtly the United Nations has achieved its objects in maintaining the peace, security and canons of justice at the International Level.


15. Short notes on i) Neutrality     ii)  Blockade.
INTRODUCTION: - The term neutrality has been derived from the Latin word ‘Neuter’ which means impartiality. In wider sense by neutrality which can be means an attitude of impartiality adopted by the States who do not take part in the war. Ordinarily by neutral States it may be presumed that states which try to keep themselves aloof from the war of their neighbours.  Neutrality is the attitude of impartiality adopted by third States towards the belligerents and recognized by belligerents. Such attitude creating rights and duties between the impartial States and belligerents.
DEFINITION: - According to JG Strake, “Neutrality denotes the attitude of a state which is not at war with belligerents and does not participate in hostilities.  In its technical sense however it is more than an attitude denotes a legal status or a special nature involving a complex of rights and duties and privileges at International Law which must be respected.
According to Lawrence: Neutrality is the status of such States which do not participate in war and maintain their relations with belligerents. Lawrence has emphasized only on the point that neutrality is such a position of a state by which they do not participate in a war and maintain their peaceful transactions and journey with belligerents.
ESSENTIAL ELEMENTS OF NEUTRALITY:-Impartial Attitude:-states who do not takes part in war and remain impartial. Impartiality is an important element of Neutrality.
Recognition of the attitude of impartiality by the belligerent States: - Impartiality of Neutrality State is accepted or recognized by the belligerents
Emergence of certain rights and duties because of impartial attitude and its recognition by the belligerents.
Development of the law of Neutrality:-During 18th.Century it began to accept that the countries which do not participate in war have a right to remain impartial. During 19th.Century Law of Neutrality get more development and credit for this goes to America.
Rational basis of Neutrality: - Neutrality usually because of the following reasons:
1. It helps in limiting the area of war. 2. It discourages war. 3. Because of it the States keep themselves aloof from the war. 4. It regulates the international relations.
Provisions regarding Neutrality in the Charter of UNO:-1. The right to commence a was suspended. 2. Wars which are fought even without violating the conventions/treaties entered into the charter of UNO or where there is lack of no war treaty then the member States have freedom to solve matters of disputes either by enquiry through Security Council.3. If any States begins a war after the violation of Art.12 to 15 of the UN Charter then such war shall be deemed to be a war against all the members of States of the UNO.
                                          BLOCKADE
DEFINITION:-According to JG Strake, blockade occurs when a belligerent bars access to the enemy coast or part of it for purpose of preventing ingress or egress of vessels or air-crafts of all Nations.” And according to Oppenheim, “It is blocking men of war of the approach to the enemy coast or part of it for the purpose of preventing ingress and egress of vessels or aircrafts of any nations.” The law as to blockade represents a further restriction on the freedom of neutral States as to trade with belligerents.
Essential elements of Blockade:-i) It should be done by men of war. ii) The part of coast or whole coast of the enemy can be blockade. iii) The ingress and egress of the ships should be prevented through blockade. iv) Blockade is an act of war. v) Blockade should be such that no discrimination is made between the ships of different countries.
Besides the above elements the additional necessary elements are also to follow :- i) Declaration and Notification ii) Geographical limits of the blockade area: It is essential to clarify the areas where the blockade will operate and vessels and aircrafts shall be prohibited from entering. iii) Exemption to neutral parts: Neutral ports should be exempted from blockade. iv) Impartiality: There should not be any discrimination with the vessels of any Nation; the vessels should stop impartially by the country which has imposed blockade. v) Effectiveness: For making blockade binding it is necessary that it should be effective. For effectiveness it is essential to utilize the force and such measures which are fit for stopping the ingress and egress of the vessels.
TERMINATION OF BLOCKADE: The blockade comes to an end in the following:-
1. By termination of war.
 2. The country which has imposed blockade can itself terminate it.
3. When the blockade is continuously violated and it does not remain effective then it is understood that blockade has terminated.
4. The blockading State captures and occupies the blockaded coast or port.
5. When blockading forces are vanquished by the enemy forces.
6. When the military vessels blockading area leave the blockaded coast it is understood that blockade has ended.



16. State briefly the rules of Land and Aerial warfare.
INTRODUCTION: - The law of war consist of the limits set by International Law within which the force required to over-power the enemy may be used and the principles there under governing the treatment of individual in the course of war and armed conflict. The objective of the rules of war is not to govern the war or regulate it as rules of games.
Law of Land Warfare:-The Hague Convention-1907 is a landmark in respect of rules of land warfare. Hague convention clarified the status of belligerent states and clarified the distinction between combatants and non-combatants.  According to it the persons in the regular army having specific regiment number etc., are lawful combatants. Besides this is the guerrilla’s volunteer’s corps etc., may also be included in the category of combatants provided they fulfil the following three conditions:-
1. They serve under a definite and specific authority. 2. They have specific emblem which may be recognised from distance. 3. The conduct was in accordance with the rules and customs of war.
Prohibited Means in Land Warfare:-War is contest between Armed forces of two or more States wherein force can be used within certain limits laid down by Laws and Customs of war. International customs, treaties have prohibited certain means in land warfare.  Hague Convention- 1907, the use of poisonous weapons, gas, pollute, food material, poison water, projectiles which cause unnecessary sufferings and pain etc., have been prohibited and it will also violation of the laws and customs of war. During land war undefended cities, villages cannot be attacked or destroyed. Killing of wounded and sick persons of the armed forces during war has also been prohibited. However they can be made prisoners of war. Ruses of War or Stratagem : It is a permitted way during land warfare. By ruses of war or stratagem we mean that for the attainment of its military objectives a belligerent State can misguide or mislead the enemy. According to modern concept of war, war is not only the test of physical strength but also intelligence provided under article 24 of Hague Convention. Deceit:- Ruses of war are permitted but in Deceit which is different from stratagem is contrary to International Law. For example, according to Hague Convention, unauthorised use of flag or emblem of the armed forces has been prohibited. Flag of peace or emblem of red- cross cannot be used to deceive the enemy. ESPIONAGE:- The position of Espionage is very peculiar. On one hand I.Law recognises espionage during land war and on the other hand it also recognised the punishment can be awarded to those who are caught or apprehended while spying. Hague Regulation-1907 has defined ‘spy’ as one who under false pretences obtain information. True spy acting in disguise or under the pretences is himself responsible.
                                   LAWS OF AERIAL WARFARE
INTRODUCTION: - In the modern times the importance of aerial warfare has greatly increased. Aircrafts were used in large scale for the first time during the First World War. Since the First World War he aircrafts have been used in all the major wars that formulation of definite rules of International Law to regulate their use during war. Bombing by aircrafts causes excessive loss of public and private property.  In order to regulate use of aerial warfare many conferences have been called for from time to time and many rules have been formulated.
LAWS OF AERIALWARFARE: - Brussels Conference of 1874: laid down the following rules/laws: 1. Bombardments on undefended cities, villages and towns was prohibited. 2. Bombing of buildings and works relating to art, science, religion and culture and philanthropic works was prohibited. 3. It was also laid down that the buildings of public utility should not be destroyed during aerial warfare.4. Bombing on hospitals etc., was completely prohibited. Hague Convention- 1899, approved the rules formulated in Brussels Conference, 1874 and also laid down the following additional rules: - 1.Bombing on civilian people and their property without just and appropriate cause was prohibited. 2. Bombardment for the realisation of money or things was declared illegal. 3. Bombardment of those cities and villages which are away from the war areas was also prohibited. 4. It was also laid down that bombardment should be made only for the achievement of military objectives.
Washington Conference-1922: The use of aircrafts during the First World War had made it clear that the rules of aerial warfare formulated so far were not in conformity with the changing facts and circumstances. In order to amend these rules and to frame certain rules a conference was called in Washington in 1922:-1. Aiming of private aircrafts with weapons for self-defence was prohibited. 2. Bombardment to frighten civilian population was prohibited.3.villages and towns and buildings which are unconnected with or are away from war areas should not be destroyed. 4. Building connected with religion culture or the philanthropic works cannot be destroyed. 5. Hospitals and other places where the patients are treated cannot be destroyed.
Further the main object of The Hague Air warfare Rules was to propose a legal regulation of the special problems raised air warfare.
·      Aerial Bombardment is legitimate only when directed at military objectives.
·      Belligerent non-military aircraft can be fired upon unless they make the nearest available landing on the approach of enemy military aircraft.
·      Aerial bombardment for the purpose of terrorising the civilian population of destroying or damaging private property not of military character of injuring non-combatants is prohibited.
                                               


Unit-V
Intervention
DEFINITION OF INTERVENTION: - In simple words intervention means to interfere directly or indirectly by one or more states in the internal or external affairs of another state.
Prof.L.Oppenheim : “Intervention is dictatorial interference by a state in the affairs of another state or the purpose of maintaining or altering the actual condition of things.  Interference pure and simple is no intervention.” Hans Kelson pointed out that, “International Law does not prohibit intervention in all circumstances. He further says that when one state intervenes in the affairs of another state through force, then as a reaction against this violation International Law permits intervention.”
TYPES OF INTERVENTIONS:- It can be accessed from the above view of different Jurists regarding types of intervention that there are so many types of Interventions.  However some of them are as under:-
1.   Military interference:  It is done with military force.2. Political Interference: is done by giving threatening information.3. Dictatorial Interference: Is done in threatening tone.4. Interference without right: It is done without any purpose & right. 5. Internal Interference: is done in interfering in the internal affairs.  6. External Interference: It is also done in interfering in external affairs. 7. Penal Intervention; 8. Subversive Intervention: is done by another state through exciting the people against the state.9. Economic Intervention: is done by creating obstacles in the trade.
BASES OF INTERVENTION: - It is very much pertinent to mention here that what is the basis of doing of intervention and what type of interventions are valid under UNO Charter.  However the following have been considered as the main basis of intervention: - i. On the basis of self defence ii) On the basis of humanity iii) for application of treaty rights IV) to stop illegal intervention v) to maintain balance of power vi) to protect individuals and their property vii) collective intervention viii) to protect International Law ix) at the time internal war.  All above basis of intervention have been recognised by the UNO except the followings :- i) for application of treaty rights.  ii) to stop illegal intervention iii) to maintain balance of power IV) to protect individuals and their property. V)  To protect International Law.



Relation between International Law and Municipal Law.
There are certain theories have been propounded to explain the relationship between International Law and Municipal Law. In general it is notionally accepted that the state municipal law control the conduct of individuals within the state while International Law controls the relations of nations.  But now this concept has altogether been changed and the scope of International Law has increased and it not only determines and controls the relations of states but also the relations of members of International community.  Both the laws have co-hesion with each other and the relations between these two are more prominent.  These theories have been put forward to explain the relationship between International Law and State Law.  Of all these theories as per following details, the most popular are the Monism and dualism and they are diametrically opposed to each other:-
1.   MONISTIC THEORY:-It is also known in the name of Monism theory.  According to the exponents of this theory International Law and Municipal Law are intimately connected with each other. International Law and Municipal Law are the two branches of unified knowledge of law which are applicable to human community in some or the other way.   All Law are made for individuals. The difference is that municipal law is binding on individual while International Law is binding on states. Conclusively it can be said that the root of all laws is individual.
According to Strake, “International Law is part of state Municipal Law and therefore decisions can be given by Municipal courts according to the rules of International Law.”
According to O.Kornell, “The objective of all laws is human welfare whether it is state municipal law or International Law.”
2.   DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and state Law are two separate laws and contained legal systems.  The Monist view of law is part of philosophy according to which totality is a single structure.  But within the framework of the unitary universe is diversity of phenomenon.  International Law cannot become part of state municipal Law till the principles of International Law are applied under State Municipal Law.
According to Strake, “The main foundation of the proponents of dualistic theory is that state Municipal Law and International Law are two different legal systems because the nature of International law is fundamentally different from State Municipal Law.”
Angilotti has also recognised both the systems as two different legal systems.  According to him the fundamental principle of State Municipal Law in compliance of law enacted by state legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the agreements executed between the states.”

De-Facto- RECOGNITION
Recognition are two types, 1. De facto  2. de jure recognition
The practice of States shows that in first stage the State generally give de facto recognition. Later on when they are satisfied that the recognised state is capable of fulfilling International obligations, they confer de jure recognition on it, that is why sometimes it is said that de facto recognition of state is a step towards de jure recognition. The detail of de facto and de jure recognition is as under:-
DE FACTO RECOGNITION:- Prof. G. Schwarzenberger:- “When a state wants to delay the de jure recognition of any state, it may, in first stage grant de facto recognition.”
        The reason for granting de facto recognition is that it is doubted that the state recognized may be stable or it may be able and willing to fulfil its obligations under International Law.  Besides this it is also possible that the State recognised may refuse to solve its main problems.
          De facto recognition means that the state recognized possesses the essentials elements of statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :-  “The de facto recognition of a State or government takes place when the said State is free state and enjoys control over a certain fixed land but she is not enjoying the stability at a deserved level and lacking the competence to bear the responsibility of International Law.” 
For example: - De jure recognition had not been given to Russia by America and other countries for a long time because Russia was not having competence and willingness to bear responsibility of International Law. The same position was with China.
In view of the Judge Phillips C Jessup, “De facto recognition is a term which has been used without precision when properly used to mean the recognition of the de facto character of a government; it is objectionable and indeed could be identical with the practice suggested of extended recognition without resuming diplomatic relations.”
The de facto recognition is conditional and provisional. If the state to which De Facto recognition is being given is not able to fulfil all conditions of recognition then that recognition is withdrawn.

  


                                    STATE JURISDICTION
State jurisdiction is the power of a state under international Law to govern persons and property by its municipal law.  It includes both the power to prescribe rules and the power to enforce them. The rules of State jurisdiction identity the persons and the property within the permissible range of a state’s law and its procedures for enforcing the law. A State may regulate its jurisdiction by legislation through its courts or by taking executive or administrative action. Thus the jurisdiction of a State is not always a co-incident with its territory Case of KTMS Abdul Cader and others v/s Union of India-1977, the court held that act has no extra-territorial application and hence the State government has no power under the Act to pass orders of detention against persons who at the time when the orders were made were not within India but were out-side its territorial limits.
                                 STATE JURISDICTION
In general every State has exclusive jurisdiction within its own territory but this jurisdiction is not absolute because it is subject to certain limitations imposed by international law. Thus in practice it is not always necessary that a State may exercise jurisdiction in its territory on the other hand in some circumstances may exercise jurisdiction outside its territory. Though the relationship between jurisdiction and sovereignty is close jurisdiction is not co-extensive with State Sovereignty. Each state has normally jurisdiction over all persons and things within its territory.
Illustration:-A French armed public ship flying the flag of France was in the British territorial waters when M, the Cabin boy of the ship committed the offence of murder by shooting dead D the captain of ship. Both M &D were British nationals. During the trial that took place that the British courts had no jurisdiction to try him for the murder committed on board a French cruiser flying French flag. The defence cannot succeed because he theory that the pubic ship of a state should be treated to be a floating portion of that state has long been discarded. Secondly the offence was committed within the territory of Britain. Thirdly seeking good office of British police and medical aid amounted to a waiver of the immunity. Thus M could be tried by British court.
The jurisdiction of the nation within its own territory is necessary exclusive and absolute.  It is susceptible of no limitation not imposed by it. In another case of Vavasseur v/s Krupp-1878, the plaintiff contended that the Japanese Govt., has violated his patent rights and therefore he demanded that the delivery of the goods by it be stopped. But the court had that it had no jurisdiction over the property of the foreign sovereigns more especially with what we call the public property of the State of which he is sovereign.




                                        DIPLOMATIC AGENTS
During the Ramayana and Mahabharata period some aspects of International Law were in their developed stage. Examples of international law relating to diplomatic agents may be cited in this connection. The permanent appointment of diplomatic envoys began from the seventeenth centaury.  The rights, duties, immunities and privileges etc., of the diplomatic in 18th. & 19th. Centaury was mostly in the term of customary rules. The first great landmark was the Congress of Vienna in 1815, wherein the customary law regarding diplomatic agents was clarified and codified.  The contents of Vienna Convention were adopted finally in 1961. The Indian Parliament passed the Diplomatic Relations on the basis of Vienna Convention-1972 to give effect to this convention. This law relating to the diplomatic and consular affairs remains the strongest section of International Law.  DIFFERENT CLASSES OF DIPLOMATIC AGENTS:-The diplomatic agents have been classified according to their status and functions. The first classification of diplomatic agent was made in the Congress of Vienna in- 1815 under which diplomatic agents were classified under the following categories:-
1. Ambassadors and Legates:-These are the first category of diplomatic agents and are the complete representatives of the sovereignty states. Their designation is Ambassadors or Permanent Representatives of their respective countries of U.N. They are appointed by POP.
2. Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic agents of second category and as compared to the diplomatic agents of the first category. They enjoy less privileges and immunities.
3. Charge-d affairs: - They are the diplomatic agents of the last category. The main reason for this is that they are not appointed by the head of State but are appointed by the Foreign Minister of the State. Their status is considered below the Minister Resident.
4. Minister Resident: - In the congress of Aix-la-Chappele-1818, this category was added at category No.3, but it was again dropped by 1961 Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed by the International Court of Justice on 15.12.79 in a case of United States Diplomatic and Consular Staff in Tehran: For enabling states irrespective of their differing constitutional and social systems to achieve mutual understanding. One of the pillars of modern International Law is the diplomatic immunities of the Ambassadors.                             However the following are the immunities and privileges of the diplomatic agents:-
1.   Inviolability of the person as envoys: - The diplomatic agents are extended personal safety and security. If an envoy is attacked it is deemed that attack was on the country to which the envoy is belonging.
2.   2. Immunity from criminal jurisdiction of the court:- The courts of the state where the envoy is posted do not treat the envoys within its criminal jurisdiction.

                              DEFINE TREATY& ITS RATIFICATION
In case there is an international treaty governing the matter under dispute the decision of the court is based on the provisions of the treaty. International treaties occupy the same significant position in the field of international law as the legislation occupies in the municipal law.
DEFINITION OF TREATY: - International treaty is an agreement between two or more states under the international law to create mutual relationships. According to Oppenheim, “International treaties are those agreements between the states which are of contractual nature and produce legal rights and obligations.”
According to Starke, “Usually in all cases, the purpose of treaties is to create binding nature of obligations on the parties to the treaties.”
According to Vienna Convention on treaties-1969, “Treaties and contracts are document under which two or more states under international law establish or try to establish their relations.”
CLASSIFICATION OF TREATIES:- One of famous jurist Mc Nair has classified treaties in the following manner:-
1.   Treaties having the character of conveyance.
2.   Treaty contracts.
3.   Law making treaties: a) Treaties creating constitutional law just as charter of ICJ.  b) Pure law making treaties e.g. labour conventions negotiated by ILO.
4.   Treaties akin to charter of incorporation e.g. treaty by which International Posta Union -1874 came into existence.
5.   Vattel has classified treaties into four categories i.e. equal, unequal, real and personal.
6.   Prof.Oppenheim has classified the treaties into two categories:-
2.   Law making treaties.  2. Treaties made for other purposes.
              HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of binding nature, the following conditions are to be fulfilled:
1.   Accreditation of persons on behalf of contracting parties:- The intending parties of treaties should appoint persons as their representatives to negotiate on their behalf authoritatively for arriving at terms and conditions of a treaty.
2.   Negotiations and adoption:- After due negotiations the terms and conditions of a treaty are clunched and for its adoption a decision is made by both the parties.
                       PROCEDURE OF RATIFICATION

Ratification is a very important processes ordinarily the terms and conditions of a treaty. Treaty does not become enforceable without ratification.  The President of a State or Chief of the Govt. Ratify the signatures of its representatives who negotiated for arriving at the agreed terms and conditions of a treaty.

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