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7/4/2017 Law Notes (LL.
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INTERNATIONAL LAW
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7/4/2017 Law Notes (LL.B Notes): 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 Benthams 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

http://kuklawnotes.blogspot.in/p/international-law_72.html Law. According to 7/46
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 Hollands 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
http://kuklawnotes.blogspot.in/p/international-law_72.html is customs and treaties while 13/46
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
Dept., 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 De jure recognition
1. De facto recognition is De jure recognition is final.

conditional and
Provisional. De jure recognition cannot
2. If the conditions are not be withdrawn once given it
fulfilled by the concerned is final.
state then it is withdrawn.
3. To maintain political The willingness is to be

relation in this recognition expressed for maintenance
is not necessary. of political relations.
4. De facto recognition is the
first step towards de jure De jure recognition is the
recognition. 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 DISADVANTAGES
1. Can establish diplomatic The states who did not get such
and commercial relation with recognition cannot establish
the states granting recognition. such relations.
2. Recognised states can The state which does not get
institute a suit in the courts of recognition cannot do so.
states granting recognition.
3. Can institute suit relating to Unrecognised states cannot
property situated in the courts institute suit relating to property.
of state granting recognition.
The representatives of
4. The representatives of
unrecognised states cannot
recognised states are entitled to
enjoy such relations.
enjoy diplomatic and political
communities in the territories
of state granting such
The unrecognised states cannot
recognition.
sign any treaty agreement with
5. The recognised states can
any states.
execute treaty agreement with
states granting such
recognition.
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 states 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 CITIZENSHIP
The legal relationship which Denotes the relations between

exists between the nation & the person and the state law.
Individual.
The rights of citizenship are the
Through Nationality the civil & sole concern of state law.
natural rights of a person may
come.
All citizens may possess the It is not necessary that all the
nationality of a particular state. nationals may be the citizens of
that particular state
A person who possesses only Citizens are those persons who

nationality in a particular state possess full political rights in
may not possess all political the state.
rights.
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 Territorial Asylum
In case of diplomatic asylum The refugee is within the

the refugee is within the territory of the state of refuge
territory of the state where the
offence was committed.
Territorial asylum is granted by
Grant of diplomatic asylum a State in its own territory.
involves a derogation from the
sovereignty of that state. Every state has right in the
exercise of its sovereignty to
It withdraws the offender from
admit into the territory such
the jurisdiction of the territorial
persons as it deems advisable
state and constitutes an
without exercising the
intervention in matters which
Declaration of Asylum.
are exclusively within the
competency of the state. The grant of territorial asylum
is an incident of territorial
Grant of extra territorial asylum sovereignty itself.

is rather a derogation from the
sovereignty. Each state has a plenary right to
grant territorial asylum unless it
Right to grant extra-territorial has accepted some particular
asylum is exceptional and must restriction in this regard.
be established in each case.
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
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 its 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 guerrillas volunteers
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

http://kuklawnotes.blogspot.in/p/international-law_72.html when directed at military 39/46
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,
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 states 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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PUBLIC INTERNATIONAL LAW

2. What is double veto.

Discuss the sources of International Law Explain them.

receive general consent of the States and no civilized state shall

decide the limits of their competence. 6. Some other sources of

concept which as a mixture of legal rules applicable to all the

be involved in such acts as may prove detrimental for the good

U.N.O. is based on the legality of International

U.N.O. is based on the legality of International Law. According to

of nature was connected with religion. It was regarded as the

2. International Law is the vanishing point of Jurisprudence.

Austin also subscribes to this view, Justice V.R.Krishna Iyer

The Security Council forced Libyan Government to surrender two

3. Discuss the weaknesses of International Law. What are the

1. International Law and Municipal Law are the same.

The main source of International Law is customs and treaties while

that in England treaties are not binding automatically. It is binding

DEFINITION:- Many of the Jurists has define Recognition in

For example :- De jure recognition had not been given to Russia

1. De facto recognition is De jure recognition is final.

3. To maintain political The willingness is to be

In Luther v/s Sagor-1921:- It was held that there is no distinction

2. Define intervention? Under what circumstances intervention

was taken to stop internal war. CONCLUSION: - It is

victory. For sovereignty it is necessary that the victor State

territory completely or relaxes its authority over it then it loses that

7. Short notes on Non State entities or State Succession.

lost while personality and legal responsibility remain unimpaired

8. State Jurisdiction. What are the exemptions to the territorial

jurisdiction and sovereignty is close jurisdiction is not co-extensive

court to refuse jurisdiction on the ground of sovereign immunity.

it was held that a State has no obligation in granting nationality to a

The legal relationship which Denotes the relations between

A person who possesses only Citizens are those persons who

10. What do you mean by Treaty? How it is signed and what is

representatives to negotiate on their behalf authoritatively for

11. What do you understand from the term of Extradition? Is it

Meaning & Definition of Extradition:- Extradition is the delivery

DIFFERENCE BETWEEN EXTRA TERRITORIAL &

Extra territorial Asylum Territorial Asylum

In case of diplomatic asylum The refugee is within the

Grant of extra territorial asylum sovereignty itself.

12. What are the different classes of Diplomatic Agents?

enabling states irrespective of their differing constitutional and

territorial waters of the State against which tort or wrong has

4. Pacific Blockade: - By this method the outer boundary of a State

14. Explain the purpose and principles of United Nation. How

3. For removal of social, economic, cultural and human

constant development of the powers and functions of UN. United

15. Short notes on i) Neutrality ii) Blockade.

Neutrality get more development and credit for this goes to

TERMINATION OF BLOCKADE: The blockade comes to an

16. State briefly the rules of Land and Aerial warfare.

according to Hague Convention, unauthorised use of flag or

Aerial Bombardment is legitimate only

Aerial Bombardment is legitimate only when directed at military