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Sources of International law

Sources of International law mean those origins from where it attains its authority and coercive
agency. According to the provisions of the Statute of International Court of Justice there are
following sources, on the basis of which Court can decide a case:
1. Treaties: – The term treaty may be defined as “the agreement entered into by Nation
states for their relations with each other and to undertake certain duties, obligations and
rights is said to be a treaty.” The statute declares that the Court shall have to decide any
dispute between Nation States in accordance with the provisions of the treaty between
them if existed.
2. Customs: – Customs are those habits and practices which the nation’s states commonly
observe and the violation of which is considered as against the courtesy of International
behavior. There are certain practices which the world community observes without any
express provisions but because of practice they honor the same. So if there is no treaty
between the parties to a dispute then the statute binds the Court to decide the case in the
light of such international customs.
3. General Principals of Law Recognized by Civilized Nations: – There are certain
principles of law, which have been incorporated, in the domestic laws of many countries
because of their universal application. So, in default of any treaty or international custom
the statute reveals that the court then shall have to decide the case in the light of such
general principles of law as recognized by civilized nations of the world.
4. Judicial Decisions: – Usually the Judicial decisions of the International Court of Justice
are not binding and they have no value in the sense that they are related and binding only
to that certain case for which they have given. And they cannot be cited as strict reference
in any other case. But despite the fact the Statute reveals that in case of default of all the
above sources the court shall resort to the prior judicial decisions.
5. Juristic Works: – The jurists or publicists also declares rules by legal philosophy and
analogy and also by comparing different legal systems of the world and they also analyze
the historical perspectives of the different legal systems of the world. So, as they have
devoted their lives for the legal study, they must be deserved to consult in deciding a
dispute. In other words, their opinion on a specific question of law weights because of the
their valuable experiments and sound study on the topic. So, the statute further reveals
that if there is no treaty, legal custom and general principles of law then the Court shall
resort to writings of these jurists.
6. Other Sources: – Beside the above sources there are also some other sources which
court can resort for the decision of a case. As for example “Equity” and the resolution by
the UN organization. Nowhere in the statute these sources have been declared for the
Court to derive law but by practice the common and universal principles of equity have
been observed by the courts while deciding cases. And also the UN organization when
passes a resolution on specific subject the Court feels its moral duty to decide the case in
the light of such resolution if there is no express provisions for deciding a case.
Definition of International Law
The term international law has been defined in a variety of ways by different jurists. Some of the
definitions may be given as under:
1. By Oppenheim: – “Law of Nations or international law is the name for the body of
customary law and conventional rules which are considered binding by civilized states in
their intercourse with each other.”
2. By Alf Ross: – Alf Rose defines the term international law as under: “International law
is the body of legal rules binding upon states in their relations with one another.”
3. By Lawrence: – According to him, “international law is the rules which determines the
conduct of the general body of civilized state in their mutual dealings.”
Modern Definition: – International law has always been in a continuous state of change. In
modern period the term International law may rightly be defined as under; “That body of legal
rules which regulates the relationship of the Nation States with each other, as well as, their
relationship with other International actors.” Beside the above definitions there are at least forty
well definitions of international law

What is International Law ?


International Law is a body of rules regarded by the nations of the world as binding on them in
their relations with each other , in peace and war and comprises the rights and duties of sovereign
States towards each other. In the words of Friedman, "International law is today actively and
continuously concerned with such divergent and vital matters as human rights and crimes against
humanity, the international control of nuclear energy Trade Organization, labour conventions,
transport control or health regulations."

Functions of International Law : -Some important functions of International Law are as


under –
1. To maintain International peace and Security
2. To achieve international co-operation in solving international problems of an economic,
social, cultural and humanitarian character.
3. To settle international disputes by peaceful means
4. To refrain from threat or use of force by a state against the territorial integrity or political
independent of any State
5. To provide right of self determination to peoples and
6. To provide fundamental freedom and human rights.
Subjects of International Law
International law is primarily concerned with the rights, duties and interest of the states. It
prescribes the rules of conducts which the states are to observe. A subject of rules is a being or
thing upon which their rules confer certain Personal rights and the capacity and at the same time
imposes duties and responsibilities. The law is the body of the rules which commands it
subjects. Generally International Law deals with the rights and duties of the states. It's rules for
the states to regulate the relationship interest the state. It is the states who enter into treaties with
each other and they are found by the terms and conditions of the treaties . International law not
only applies to the states but also applies of an individual and certain non-state entities.

1 Theories regarding subject of international law :- There are three main theories in respect to
the subject of international law.

A. States alone are the subject of international law.( Realist Theory)


B. Individual alone are subject of international law.(Fictional Theory)
C. States , individual and certain non state entities are subjects of international
law. (functional theory)
A ) State alone are the subject of international law /Realist Theory.
Some Jurist have Expressed the view that only States are the subject of international law. In their
view International Law regulates the conduct of the state and only state alone are the subject of
international law. According to them as per the positivism view, individual is an object and not a
subject of International law. International Law gives more Emphasis and stress upon the states,
their sovereignty ,etc .
Criticism
 This view has been criticized by various jurist because this theory fails to explain the case
of slaves and pirates. Under international law slaves have been conferred upon some
rights by the states. In the same way pirates are treated as Enemies of the mankind and
they may be punished for piracy by the state. The jurist who emphasis that States alone
are the subjects of international law, are of the view that slaves and pirates are exception
and are objects of international law.
 It is argued that the treaties which confer certain rights over the slave and
pirates impose certain obligations upon the states if there is no search obligation of the
states, the slaves cannot have any rights under international law.
 Professor Oppenheim is of the view that since the law of nation is primarily a
law between the States, state are to that extent, the only subject of the law of nations.
Professor Oppenheim subsequently has changed the view and mentioned that," States are
primarily ,but not exclusively, the subjects of International law.
 To the extent that bodies other than States directly possesses some rights, power and
duties in international law they can be regarded as subjects of international law
possessing international personality.
 Many of the rules of international law are directly concerned with regulating the position
and activities of the individual and many more directly affect them. Thus it is wrong to
say those individuals or not the subjects of international law.
B) Individuals alone are subject of international law/ fictional theory-
Some Jurist Express the view that in the ultimate analysis of International law , it will be evident
that only individuals are the subjects of international law. Professor Kelson is the chief exponent
of the theory . Even before kelson, Westlake had remarked," the duties and rights of the States
are only the duties and rights of man who composed them. Prof. Kelson has analysed the concept
of the state and Expressed the view that state is a technical legal concept and includes rules of
law applicable on the persons living in a definite territory. Hence under International Law duties
of the states are ultimately the duties of individual. and there is no difference between
International Law and State Law . as per Kelson both laws apply to the individual and they are
for the individual.
Criticism
 The view taken by the Kelson is more logical and practical. so far as the practice of the
state is a concerned, it is seen that the primary concern of international law, is with the
rights and duties of the states.
 It can be seen, certain treaties have been entered into which have conferred certain rights
upon individuals. As per International Court of Justices, statute, though States can be
parties to the international processing, a member of other international instruments have
recognised ready procedural capacity of the individual. There are number of examples
wherein international law applies on individual not only mediately but also directly. It is
wrong to say that pirate, slave,etc are only object of International Law.
 Philips C. Jessup , has taken the view that although individual possesses number of
rights under International Law , in most of the cases claim on his behalf can be brought
only by the state whose National he is. It is an elementary principal of international law
that state is entitled to protect its subjects when injured by the acts contrary to
international law committed by another states.

C) States, individual and certain non-state entities are subject of international law/
functional theory
This view not only combines the first and second view but Goes a step ahead to include
international organizations and certain other non state and entities as subjects of international
law. This view appears to be more practical and are better than the first two views.
The reason in support of this view are as under:-
1. In present times, several treaties have conferred upon individual certain rights and duties,
for example International Covenant on human rights .
2. Permanent Court of Justice in Danzing Railways official case, 1928, held that if any
treaties the intention of the parties is to enforce certain rights upon some individuals, then
International Law will recognize such rights and enforce them.
3. Geneva convention on Prisoners of War 1949, has conferred certain rides upon the
Prisoners of law.
4. The Nuremberg and Tokyo tribunals laid down the principle that International Law may
impose obligations directly upon the individuals.
5. The Genocide convention, 1948 ,has imposed certain duties upon the individual and
persons guilty of the crime of genocide maybe punished .
6. A new trend has started in the international field under which some rights has conferred
upon individuals even against the States. for example European convention on human
rights,1950, International convention on human rights 1966, optional protocol, by which
an individual who is the victim of the violation of human rights, May send petition
regarding violation of human rights by his own state to the United Nations Commission
on Human rights.
7. It is now agreed that International organizations are also the subject of international law.
United Nation is an international person under international law and it is held by
International Court of Justice that United Nation is a subject of international law and
capable of possessing rights and duties and it has capacity to maintain its right by
bringing International things.
8. The law making treaties in respect of international criminal law, have imposed certain
obligations upon the individuals , for example narcotic drugs convention, 1961, Hague
conversation of suppression of unlawful Seizure of aircraft 1970.

Thus the states are not only the subjects of international law. There is no doubt that states
are still the main subject of international law and most of the part of international law
concerns with the conducts and relationship of state with each other, but in view of the
developing and changing character of the International Law , International organisations and
some non-state entities individuals are also the subject of international law.
 It is apparent from the above discussion that the position of subjects of international law has
greatly changed with the passage of time. Originally, sovereign States were the only actors
in the international community, but in present century new non state entities such as
International organisations and Institutions and individuals have been given the status and
rank of international legal subjects.
Theories relating International Law and Municipal Law
 In principle, international law operates only at the international level and not within
domestic legal systems—a perspective consistent with positivism, which recognizes
international law and municipal law as distinct and independent systems. Conversely,
advocates of natural lawmaintain that municipal and international law form a single legal
system, an approach sometimes referred to as monism. Such a system, according to monists,
may arise either out of a unified ethical approach emphasizing universal human rights or out
of a formalistic, hierarchical approach positing the existence of one fundamental norm
underpinning both international law and municipal law.
 A principle recognized both in international case law (e.g., the Alabamaclaims case between
the United States and the United Kingdom following the American Civil War) and in
treaties (e.g., Article 27 of the 1969 Vienna Convention on the Law of Treaties) is that no
municipal rule may be relied upon as a justification for violating international law. The
position of international law within municipal law is more complex and depends upon a
country’s domestic legislation. In particular, treaties must be distinguished from customary
international law. Treaties are written agreements that are signed and ratified by the parties
and binding on them. Customary international law consists of those rules that have arisen as
a consequence of practices engaged in by states.
 International Law and Municipal Law are two separate legal orders existing independently.
An internal law cannot become an International Law. However, an International Law can
become an Internal (Municipal) Law.
Few theories that relate the two laws are:
Monistic Theory
 18th Century theory proposed by Moser and Martens
 This theory says only one set of legal system, the doctrine of legal order, shall exist
 Man is the root of all the laws
 International and Municipal are two branches of a single tree serving the needs of human
community in one way or the other
 Both laws emanate from a unified knowledge of law. They are species of the same genus -
law
 Both laws are applicable on human. Municipal law directly and international law indirectly
through States
 Neither of them is a system nor are they separate from the system
 Supporters of this theory include: Wright, Kelsen, Duguit etc.

Dualistic Theory

 Also called Pluristic Theory


 Says both the laws are separate and different
 Individual is the subject of Municipal Law. State is the subject of International Law
 Municipal Law is the result of will of people of the state. International Law is the result
of the common will of all the States.

Recognition of state
According to International Law, Recognition is the formal acknowledgment of the status of an
independent State by other existing states.

 Every State has to have some essential features, called attributes of statehood, in order for
other States to recognize the State as independent.
 States are considered as the principal persons in International Law.
 The recognition of a state is often a political act of a state.
 Recognition is not a conclusive proof of the existence of the state.
Theories of Recognition
Recognition of a State is more of a political concept than a legal concept because there are no
specific rules for recognition of a State.
There are two popular theories laid down for the purpose of understanding the nature of
recognition:

 Constitutive Theory
 Declarative or Evidentiary Theory
Constitutive Theory
According to this theory, recognition is a necessary condition for statehood and personality. It is
a process by which a political community acquires personality and becomes a member of the
family of nations. A State comes into existence through recognition only and exclusively.
Examples:

 Poland and Czechoslovakia were recognized by the instrumentality of the Treaty of


Versailles.
 Germany was divided into two parts after the World War II by a treaty
 Korea was divided into two parts

Disadvantages of the theory

 Recognition is political and diplomatic but not legal. This theory imposes an obligation
on all member states to recognize a State. Practically, no states wants to do something on
obligation.
 There is no law the obliges established states to recognize new States.
Recognition of a State can be done by few States and others might refuse. According to this
theory, the recognition should be done by all the States.

 Palestine is recognized as country by 80 nations thought it does not have a definite territory,
population and a definite Government.
 Isreal is formed in 1947 by the United Nations Organization. Within few hours, many
countries too recognized it. However, India recognized it in 1992.
Declarative Theory or Evidentiary Theory
This theory states that declaration is a mere formality and has no legal effect as the existence of a
State is a mere question of fact.
Every new state becomes a member of the family of nations ipso facto by its coming into
existence. Recognition only provides the evidence to this fact. This theory says recognition is not
important.
Disadvantages
The theory fails to explain legal rights and consequent of a recognized state.
Example: Taiwan is a democratic country and is adjoining areas where Chinese territory. Only
few countries recognize Taiwan yet it had business dealings with almost every country.
Forms of Recognition

Express Recognition
1.
 An existing state recognizes another state by releasing a public statement by way
of notification or a declaration announcing the intention of recognition
 Grant is expressed in written words
2. Implied Recognition
 Does not release a formal state but recognizes the state by some acts which imply that
the state is being recognized.
 Unilateral Acts

 State entering into bilateral treaty establishes diplomatic relations with an


unrecognized state.

 Collective Acts

 A new state is recognized collectively by the existing states.


Modes of Recognition
There are two important modes of recognition:
1. De Facto Recognition
2. De Jure Recognition
1. De Facto Recognition
This is a provision recognition and not a permanent one. i.e it can be withdrawn by other States
at any time. It is the first step towards becoming a recognized country. Recognition is only by
fact and not legal. State may have more than one Governments. No exchange of diplomatic
representatives takes places. State succession might not happen. Mere de facto recognition is not
sufficient to get UN membership.
Example: Israel, Bangladesh, Taiwan, Sahawi Arab Republic etc.
2. De Jure Recognition
This is a permanent recognition which one granted cannot be taken back or withdrawn by other
States. It is regal and rightful. State will have only one Governments. Exchange of diplomatic
representatives takes places. State succession happens smoothly. de jure recognition by majority
states his essential for UN membership.

Mode of Acquiring of Nationality


1) Introduction :- Nationality is the medium through which an Individual can enjoy the benefits
from International Law. A State exercises jurisdiction over its nationals, traveling or residing
aboard, remain under its personal supremacy. International Law permits the exercise of such
jurisdiction and sets the limits within which it can be exercised. The term Nationality signifies
the legal tie between Individuals and the States.

2) Definitions of Nationality :
Charles G. Fenwick -
Nationality may be defined as a bond which unites a person to a given State, which constitutes
his membership in the particular State, which gives them a claim to the protection of that state
and which subjects him to the obligations created by the laws of that State.
J.G Starke -
Nationality may be defined as the legal status of membership of the collectivity of individuals
whose acts, decisions and policy are vouchsafed through the legal concept of the State
representing those individuals.
3) Nationality and Citizenship :
Nationality and Citizenship are often considered to be synonymous with each other. But the
term nationality differs from citizenship. Nationality has reference to the jural relationship which
may arise from consideration under International Law. On the other hand, citizenship has
reference to the jural relationship under municipal law. In other words, nationality determines the
civil rights of a person, natural or artificial, particularly with reference to the International law,
whereas citizenship is intimately connected with civil rights under the municipal law. Hence all
citizens are nationals of a particular state, but al nationals may not be citizens of the State. In
other words, citizens are those persons who have full political rights as distinguished from
nationals, who may enjoy full political rights and are still domiciled in that country.
4) Modes of Acquiring Citizenship : -According to Oppenheim there are five modes of
acquiring of Nationality are as follows -
1) By Birth -
The first and the most important mode of acquiring nationality is by birth. Nationality is
conferred to a person by many States on the basis of birth. All those persons take birth within
territorial limit of a State acquire the nationality of the State. This principle is called jus soli.
United States, U.K and many other States of Latin American follow the principle of jus soli.
Section 3 of the Indian Citizenship Act 1955 had provided nationality on the basis of birth.
2) By Naturalization - The second mode of acquiring a Nationality is by naturalization. A
person requires nationality at birth. However, his nationality may later on change. When the
nationality of a person changes subsequently, and he acquires the nationality of some other State,
the process of acquisition is known as naturalization. A person may acquire nationality through
naturalization in different ways. There are six ways which are as follows -
(1) Through marriage. Example wife assuming her husband's nationality.
(2) legitimation,
(3) Option.
(4) Acquisition of domicile,
(5) Appointment as Government official
(6) Grant on the application of the state. Adoption of the child by parents who are
nationals of the other States also entitled the children to acquire the nationality of his parents.
Section 6 of Indian Citizenship Act 1955 provides that a person make acquire citizenship by
naturalization upon fulfillment of certain conditions.
3) By Resumption -
The third mode of acquiring Nationality is by resumption. Sometimes a person may lose his
nationality because of certain reasons. Subsequently, He may resume, recover his original
nationality after fulfilling certain conditions. Section 20 of the Citizenship rules 1956 provides a
procedure for restoration of nationality.
4) By Subjugation -
The fourth mode of acquiring nationality is subjugation. Section 7 of the Indian Citizenship Act
1955 Lays down that if any territory becomes a part of India those persons from such territory
shall automatically become Citizen of India.
5) By Cession -
The fifth mode of acquiring Nationality is Cession. When a part of the territory of a state is
ceded to another State. All Nationals of the former acquires the nationality of the latter State.
6) By Option -
The Sixth mode of acquiring Nationality is by Option. When a state is proportioned into two or
more States, the nationals of the former state have an option to become the nationals of any of
the successor States. The same principle applies in the case of exchange of territory.
7) By Registration - A person may acquire the nationality of a State through Registration. The
process of registration may be different from one State to another depending upon the laws of
that State. It takes place when a person becomes the subject of a state to which he was before an
alien.
Extradition: Meaning, Definition and Purpose of Extradition
1) Introduction
It is quite possible for a person to escape to another State after committing a crime in his own State
because of the development of technology of air-traffic. Extradition is the official process whereby one
nation or State surrenders a suspected or convicted criminal to another nation or state. Between nation,
States Extradition is regulated by treaties. Extradition Comes to end when Asylum Starts.

2) Meaning of Extradition :- Term 'extradition' denotes the process whereby under a concluded treaty
one State surrenders to any other State at its request, a person accused or convicted of a criminal offense
committed against the law of the requesting State,, such requesting State being competent to try the
alleged offender.
In Extradition, there are two States involved, the territorial State for example - State, where an
accused or convicted, is found and to whom the request is made. And another state is requesting State,
for example, a State where the crime has been committed. The request is made normally through the
diplomatic channel.
3) Definition of Extradition :- The Extradition may be defined as the surrender of an accused or
convicted person by the State on whose territory is found to the State on whose territory he is alleged to
have committed or to have been convicted of a crime.
Some eminent jurist defines extradition as follows -
i) Lawrence - Lawrence defines Extradition as "the surrender by one State to another of an individual
who is found within the territory of the former, and is accused of having committed a crime within the
territory of the latter; or who having committed a crime outside the territory of the latter is one of its
subjects and as such by its law amenable to its jurisdiction."
ii) Oppenheim - According to Oppenheim, "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 by the state on whose territory the alleged criminal happens for the crime to be."
4) Purpose of Extradition - A Criminal is extradited to requesting State because of the following reasons
(i) Extradition is founded on the broad principle that it is in the interest of the civilized
communities that criminals should not to go unpunished and on that account it is recognized as a part of
the comity of nations that one State should ordinarily afford to another state assistance towards bringing
offenders to justice.
(ii) Extradition has a deterrent effect because extradition act as a warning to criminal that they
cannot escape punishment by playing to another State

(iii) Criminals are surrendered as to safeguard the interest of territorial State.


(iv) Extradition is done because it is a step towards the achievement of international co-operation in
solving international problems of a social character.
(v) Extradition is based on reciprocity.
(vi) The State on whose territory the crime has been committed is in better position to try the
offender because evidence is more freely available in that State only
Asylum
 Asylum, in international law, the protection granted by a state to a foreign citizen against
his own state. The person for whom asylum is established has no legal right to demand it,
and the sheltering state has no obligation to grant it.
 The right of asylum falls into three basic categories: territorial, extraterritorial, and
neutral. Territorial asylum is granted within the territorial bounds of the state offering
asylum and is an exception to the practice of extradition.
 It is designed and employed primarily for the protection of persons accused of political
offenses such as treason, desertion, sedition, and espionage. It has become a widespread
practice, however, to exclude from this category persons accused of the murder of a head
of state, certain terrorist acts, collaboration with the enemy in time of war, crimes against
peace and against humanity, and war crimes.
 Extraterritorial asylum refers to asylum granted in embassies, legations, consulates,
warships, and merchant vessels in foreign territory and is thus granted within the territory
of the state from which protection is sought. Cases of extraterritorial asylum granted in
embassies, legations, or consulates (generally known as diplomatic asylum) are often
occasions for dispute.
 For example, after an unsuccessful uprising against the communist government
of Hungary in 1956, the United States controversially granted diplomatic asylum to
dissident Hungarian Roman Catholic József Cardinal Mindszenty, who was given refuge
in the U.S. embassy and remained there for 15 years. Neutral asylum is employed by
states exercising neutrality during a war to offer asylum within its territory to troops
of belligerent states, provided that the troops submit to internment for the duration of the
war.
 It is the right of a state to grant asylum to an individual, but it is not the right of an
individual to be granted asylum by a state. This perspective is reflected in the Universal
Declaration of Human Rights(UDHR), which, though recognizing (article 14) the right “to
seek and to enjoy in other countries asylum from persecution,” does not explicitly provide
a right of asylum.

Kinds Of Asylum: - There are two types of Asylum are as follows:


A) Territorial Asylum; and
B) Extra-territorial Asylum
A) Territorial Asylum :
 Territorial Asylum is granted by a State on its Territory, it is called Territorial Asylum.
The right to grant asylum by a State to a person on its own territory flows from the fact
that every State exercises territorial sovereignty over all persons, on its territory to anyone.
 The grant of territorial assylum therefore depends upon the discretion of a State which is
not under a legal obligation to grant asylum to fugitive, As no precise rules as to grant of
territorial asylum. General Assembly call upon the International Law Commission in
1959 to undertake the codification of the principles and rules of international law relating
to right of asylum. On 14th December 1967 General Assembly adopted Declaration of
Territorial Asylum through the adoption of resolution.
 The declaration consists of a Preamble and four Articles dealing with the principles
relating to the grant of refusal of asylum. This Declaration provides that the right to seek
and enjoy asylum may not be invoked by any person with respect to whom there are
serious reasons for considering that he has committed a crime against peace, a war
crimes and crimes against humanity.
 Article 4 of the this Declaration provides that the State granting asylum shall not permit
persons who have received asylum to engage in the activities contrary to the purpose and
principles of United Nations. From the above provisions of the declaration it is clear that
State does not have absolute right to grant asylum. The grant of asylum is a part of which
cannot be exercised in respect of International crimes including genocides.
Some examples of territorial Asylum -
 Idi Amin have been given by Saudi Arabia.
 Baby Dok have been given asylum by France.
 Dawood Ibrahim mafia Don is given asylum by Dubai Government.
 Salman Rushdie for his controversial novel Satanic Verses given Asylum by Great
Britain.
 Taslima Nasreen a Bangladeshi writer for her novel Lajja granted asylum by Sweden.
 Tiger Menon, wanted in Bombay Bomb blast case, granted asylum by Pakistan.
 Dalai Lama and his followers was granted asylum by government of India.
B) Extra-territorial Asylum -
 Active protection is given outside the territory not belonging to the state granting it. Thus
when Asylum is granted by a State at places outside its own territory.
 It is called extra-territorial Asylum'.It usually describes to those cases in which a State
refuses to surrender a person demanding who is not upon its own physical territory but is
upon one of its public ships lying in foreign territorial borders or upon its diplomatic
premises within foreign territories.
 Thus Asylum is given at legation, consular premises and warships are the instances of
extra-territorial asylum.
1. Diplomatic Asylum / Asylum in Legation :
 Since granting extra-territorial Asylum or diplomatic Asylum involves a derogation from
the sovereignty of the State, International law ordinarily does not recognize a right to
grant asylum in the premises of legation. But asylum may be granted in the legation
premises in the following exceptional cases.
 Individual who are physically in danger from violence.
 Where there is well established and binding local custom.
 When there is a special treaty between territorial State and the state of Legation concern.
Asylum in consular premises -
2. The above principle also apply in the case of Grant of asylum in consular premises.
3. Asylum in the premises of international institution -
 Though International Law does not recognize any rule regarding the grant of asylum in
the premises of International institution, however, temporary Asylum may be granted in
case of danger of imminent violation.
4. Asylum in Warship -
 There are conflicting views to grant of asylum in warship, but it is argued that Asylum
may be granted to political offenders.
 As far as a asylum Warship is concerned, it may be granted on the ground of humanity, in
cases if extreme danger to the individual seeking it. Thus , right to grant asylum on
Warship may be granted in the same way in the case of Legation and also subject to the
operation of the same conditions.

5. Asylum in Merchant Vessels -


 Since merchant vessels do not enjoy immunity from local jurisdiction, they are not
competent to Grant asylum to local offenders. Thus, if a person after committing a crime
on shore seeks asylum on board a foreign merchant ship he may be asserted by the local
police, either before the ship leaves the port or when it comes into another port of the
same State. There is, therefore a rule that asylum is not granted on merchant vessels .
However, State may grant asylum if they conclude a treaty to this effect.
6.Asylum in the premises of international Institutions :
 Whether a person taking refugee in the premises of an international institution or
organization would be granted asylum is a question which cannot be given with certainty
in the absence of any rule in this regard and also because of lack of practice. However, a
right to grant temporary refuge in an extreme case of danger from mob cannot be ruled
out.
 Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional
cases and it is necessary to establish legal basis in each particular case.

Law of Treaties: - Meaning, Definition and Types of International Treaties


Introduction: In the modern period, International Treaties are the most Important Sources
of International Law. A treaty is a formally concluded and ratified agreement between two or
more states there are two types of International Treaties 1) Law Making Treaty and another
2)Treaty Contracts

Meaning:-A Treaty means a formal agreement between two or more Independent Nations
with reference to peace, alliance, commerce or other International relations.

Definition :- A treaty is defined under Article 2 of Vienna Convention on the law of treaties
1969, " A treaty is an agreement whereby two or more States established or seek to establish
the relationship between them governed by International Law. It is reduced form of
International treaties. Treaties are an agreement between the Independent States creating
rights and obligation. There are bilateral or multilateral treaties based on the numbers of
States.
Types of Treaties:- International Treaties may be divided into two groups 1) Law making
Treaty 2) Treaty Contracts

1) Law making Treaty-


Law making treaties are those treaties which are entered into by a large number of States.
These are the direct source of International Law. These treaties are binding. Law making
treaties may be divided into i) treaty giving the rule of Universal International Law. ii) Treaty
giving general principles.

(i) Treaty giving the rule of Universal International Law - These treaties are signed
by a majority of the State. For Example United Nation Charter.
(ii) Treaty giving general principles - These treaties are entered into and signed by a large
number of countries giving thereby general principles of International Like. Geneva
Convention on Law of sea and Vienna Convention on Diplomatic Relations, 1961are
examples of such a treaty.

2) Treaty Contracts:
These are the treaties which are entered into by two or more States. The provisions of such
treaties are binding only on the parties to the treaty. Such type of treaties are also sources of
International Law because they help in the development of customary rules of International
Law.

Kinds of Treaties/ Classification of Treaties:


Treaties may be distinguished as unilateral and bilateral, accordingly as they bind on one party or
both the parties. There are also multilateral treaties which bind more than two states as parties.
Such treaties may be either political or non-political

1) Bilateral Treaties:
There are the treaties in which participation and rights and obligations arising from the treaty is
limited only to two parties. They are sometimes called bipartite treaties and sometimes refer as
treaty contract.

2) Plurilateral Treaties:
Those treaties where the participation is open to a restricted number of State are described as
plurilateral treaties. The purpose of such treaties varies from treaty to treaty, e.g, it may be
either to maintain peace and security within a specific region or to promote and develop
the commerce among the participating members etc. Article 52 of the United Nations Charter
provides for the national arrangements and are included under this category. Organization of
Petroleum Exploring Countries (OPEC), North Atlantic Treaty Organization (NATO), League
of Arab States, South Asian Association for Regional Co-operation (SAARC)are some of the
examples of Plurilateral Treaties.
3) Multilateral Treaties:
 Multilateral Treaties are those which are open to participation for all the states without any
restrictions. Some multilateral treaties set up an International organization for a specific
purpose or a variety of purposes. United Nations Charter is an example of a multilateral
treaty. These treaties sometimes described as law making treaties
 Law-making Treaties e.g. Pat of Paris, Covenant of the League of Nation and the Charter of
the United Nations.

The most perfect classification is made by NcNair which is as follows.


1. Treaties having the character of conveyances;
2. Treaties having the character of contracts;
3. Law making Treaties which may be sub-divided into :
i) Treaties creating constitutional law, e.g, Status of Permanent Court of International Justice.
(Now the International Court of Justice)
ii) Pure Law making Treaties, e.g several Labour Conventions negotiated by the International
4. Labour Organization.
d) Treaties akin to Charters of Incorporation, e.g. Treaties which established the Universal
Postal Union,1874,

Termination of Treaties
Introduction
A treaty is an agreement or contract entered into between two or more states whereby they
undertake to carry out obligations imposed on each of them. The law making treaties are an
important Source of International Law. There are various grounds for the termination of
the treaty such as expiry of specified period for which a treaty was concluded, fulfillment of
purpose or object, termination by mutual consent etc.
Treaties Meaning and Definitions -
Oppenheim :
According to Oppenheim International Treaties are agreements, of a contractual character
between States or organizations of States, creating legal rights and obligations between the
Parties. A treaty is an important Source of International Law and an Instrument for imposing
the binding obligation.
Starke :
According to Starke, a treaty is an agreement whereby two or more states establish or seek to
establish a relationship under International Law. In short Treaties are International Agreements.
Termination of Treaties : Treaties may terminate on any of the following grounds :
1) Expiry of Specific Period :-When a treaty is concluded for a particular period, which
expressly provided in treaty contract then after the expiry of that period, treaty ipso facto comes
to an end.
2) Where the main purpose/object of the treaty is fulfilled :-In case of treaties imposing no
continuing obligations, they cease to operate on the fulfillment of the object.
3) Termination by Mutual Consent :- It is an outcome of consensus. Treaty comes into
existence by the consent of the party State. So it can come to an end by mutual Consent.
4) One of the Party State Extinct :-When the existence of one of the party state comes to an
end, generally in case of the merger of one state into another state, the treaty stand terminated.
5) When that obligation of the treaty becomes incompatible with the Charter of United
Nations : -Article 103 specifically provides that in the event of a conflict between the
obligations of the members of the United Nations and their obligations under any
other agreement, their obligations under the Charter shall prevail.
6) War Between Party States :-In a War, If the Party States are the enemy against each other,
then contractual obligations come to an end and treaty ipso facto stand terminated.
7) Dissolution by Withdrawal by Notice :-The treaties can be dissolved by a notice by either
party to the other party. If no period of the existence of the treaty is prescribed by the parties,
then treaty can be determined by the requisite period of the termination of treaties by a notice.
When a prescribed period of notice is given expressly in the treaty then it is to be strictly
complied with.
8) Terms of treaty becoming injurious to State :- By such treaty either wholly or partly the
terms of treaty become injurious to one of the party state, thereby interest of one party state,
likely to be adversely affected. In such circumstances, there is conflict as to term and sovereignty
of the state, whereby sovereignty of that state is in danger. Its survival is more important than
such obligations. In such cases of conflict, the law makes it very clear and contractual obligation
comes to an end.

9) Non- Performance of certain Essential Conditions :- If the Treaty grants a unilateral right
of denunciation to one or all of the consenting States in case of failure of certain essential
conditions, the treaty comes to an end on the happening of such contingency.
10) Doctrine of Rebus sic stantibus :- The meaning of doctrine Rebus sic stantibus is if by any
unforeseen change, or circumstances an obligation provided for in the treaty should imperil the
existence of one of the State. and such state has a right to demand and to be released from the
contractual obligations. It means when the terms of the agreement are injurious to one of the
party State, or the purpose of treaty is over or there are changes in the circumstances, or there is
conflict with the status of or existence of one of the party State, or when the object of treaty is no
more there, then in such cases doctrine of Rebus Sic Stantibus is made applicable and Treaty
concluded comes to an end. This is based on the basic principle of self Preservation and
Development in accordance with the growth and requirement of the nation.
11) Doctrine of Jus Cogens :
Lastly, a treaty may be declared void if it conflicts with a peremptory norm (it also called jus
cogens)of general International Law.

Functions of Treaty
A treaty is an express agreement under International Law entered into by actors in International
Law, namely sovereign states and International organizations. According
to Oppenheim International Treaties are agreements, of a contractual character between States
or organizations of States, creating legal rights and obligations between the Parties. A treaty is an
important Source of International Law and an Instrument for imposing the binding obligation.

Functions of Treaty

1. Important Source of International Law:- Law making treaties are an important source of
International law. Since the treaty is defined as an agreement among the states, the long standing
practices of agreement between two or more states are followed in future by the same state or
other States.and they acquire the weightage of a usage Thus they Become the very Source of
International Law.

2. Source of International Constitutional Law:- The multipartite treaties play an important


role of making Constitutions of International Organizations such as the Charter of the united
nations which is the outcome of International Conference at San Fransisco in 1945.

3. An Instrument for Imposing binding obligation :- It provides for security because of its
binding force which is given to it by the maxim Pacta Sunta Servanda i.e. basis of the binding
force of International Treaty.

Methods of settlement of industrial Disputes


In the interests of the industry in particular and the national economy in general, cordial relations
between the employer and employees should be maintained.To ensure cordial labor management
relations and to achieve industrial harmony, the following methods of settlement of industrial
disputes are provided under the Act ---
1) Collective Bargaining
2) Conciliation
3) Voluntary Arbitration and ;
4) Adjudication

1) Collective Bargaining ---


Collective Bargaining or Negotiation is one of the methods for settlement of an industrial
dispute. It plays significant role in promoting labour management relations and in ensuring
industrial harmony. Collective Bargaining is a process/Method by which problems of wages and
conditions of employment are settled amicably, peacefully and voluntarily between labour and
management. In collective bargaining, the parties to the dispute I.e., the employer and the
employees/workmen settle their disputes by mutual discussions and agreements without the
intervention of a third party. Such settlement are called "bipartite settlement". Therefore,
settlement of labour disputes by direct Negotiation or settlement through collective bargaining is
always preferable as it is the best way for the betterment of labour disputes. Collective
Bargaining is recognized as a right of social importance and greater emphasis is placed on it by
India's five year plans. The term 'Collective Bargaining' was coined for the first time by Sidney
and Webb in their famous book 'Industrial Democracy' published in 1897. It means Negotiation
between an employer and group of workers to reach agreement on working conditions. N. W.
Chamberlain (in his 'Source Book on Labour : 1958 p. 327) described collective bargaining as
"the process whereby management and Union agree on the terms under which workers shall
perform their duties". In simple word, collective bargaining means "Bargaining between an
employer or group of employers and a bonafide Labour Union".
2) Conciliation ----
Conciliation is a process, by which a third party persuades the parties to the industrial dispute to
come to an amicable settlement. Such third party is called 'Conciliation Officer' of Board of
Conciliation. Sections 4 and 5 of the act provide for the appointment of Conciliation Officer and
the constitution of the Board of Conciliation respectively.
3) Voluntarily Arbitration -----
The expression 'Arbitration' simply means "the settlement or determination of a dispute outside
the court". Parties to the dispute, without going to the Court of law, may refer the dispute/Matter
to a person in whom they have faith, to suggest an amicable solution. Such person, who acts as a
mediator between the disputants to settle the dispute is called "Arbitrator". The decision given by
the parties, which is binding on the parties is called "Award". Therefore Arbitration is a judicial
process under which one or more outsiders render a binding decision based on the merits of the
dispute. Section 10-A of the industrial dispute act, 1947 confers on parties, power to enter into
Arbitration agreement. The agreement must be in prescribed form and must specify the
name/names of the arbitrator or arbitrators.
4) Adjudication -----
When an industrial dispute could not be settle either through bipartite negotiations or through
the Conciliation machinery or through the voluntary Arbitration, the final stage resorted to, for
settlement of an industrial dispute is Adjudication or compulsory Adjudication, which envisages
Governmental reference to statutory bodies such as Labour Court or Industrial Tribunal or
National Tribunal. Section 7, 7-A and 7-B of the Industrial disputes Act, 1947 provide for the
constitution of Labour Court, Industrial Tribunal and Labour Tribunal respectively.
Settlement of international Disputes- by Amicable or Peaceful
1. Definition of International Dispute : -There is no universally acceptable' precise and perfect
definition of International Dispute. In a wide sense, International dispute means a "disagreement
on a point of law or fact a conflict of legal views or of interest between the States." This
disagreement between the parties may arise either on legal(justifiable) or political grounds (non-
justifiable).
Legal Differences: According to Prof. Oppenheim, legal differences are those in which the
parties to the dispute base their respective claims and contentions on grounds recognized by
International Law
Political Differences: All other differences are usually referred to as political disputes or as
conflicts of Interests.
Political or legal differences depends more or less upon the attitude of the States.it is,
therefore, difficult to distinguish the dispute from legal to political.

2. Settlement of International Dispute :- As above mentioned the Dispute may be political


(non-justifiable) or legal (justifiable). There are various modes of settlement of the political and
legal differences between the nations. Such differences may be resolved either by amicable
means or by Compulsive means short of war.
A) Amicable or Peaceful Means:- The various amicable means of settling disputes may be
enumerated as follows :
(1) Negotiation (2)Good Offices (3) Mediation (4) International Commission of Inquiry (5)
Conciliation (6) Arbitration (7) Machinery of the United Nations Organization - i) General
Assembly ii) Security Council. (8) Judicial Settlement through International Court of Justice
(ICJ)
(1) Negotiation : -When disputant States settle their disputes themselves by discussion or by
adjusting their differences, the procedure is called Negotiation. Negotiation may be carried on by
their Heads of the States or by their accredited representatives or by diplomatic agents. It is the
simplest form of settlement of disputes. It helps the disputant State Parties to bring about
necessary change by mutual consent. The success of negotiation depends largely upon the
degree of acceptability of claims of one party by other and the spirit of accommodation which
the negotiations are conducted. Negotiations has certain weakness also, On many occasions it
becomes difficult for the disputant State to ascertain the precise facts of the dispute.Moreover,
when the parties are unequal it is likely that the small power may be subjected to the will of big
power.
Examples: Here are some examples of Negotiation

a) India and Pakistan Settled their outstanding differences in the Shimla Conference (1976).
b) India and Bangladesh Settled Farraka Barrage (gunfire) Issue through Negotiation. (1977)
c) Inda and Sri-Lanka Settled their Boundry dispute through Negotiation. (1974)
d) Australia and Newsland Settled their disputes by Neotiation (1965)
(2) Good Offices : :- When the Parties refuse to negotiate, or when they fail to Negotiation, they
may take the assistance of a third party. The third party may be appointed by the parties
themselves or by the security council. The third party may be a State or an Individual. To settle
the Kashmir dispute between India and Pakistan the Security Council had appointed
McNaughton in 1949, Mr. Dixon in the year 1950, Graham in the year 1951 and Jarring in the
year 1957 as representative of United Nations.
The term "Good Offices" connotes the bringing about the conflicting parties together
and the counseling of advice or the suggesting of a settlement without participating in the
negotiation. Such suggestions or advices may be disregarded by a party to a dispute without any
compunction or breach of the law.
Example : -The Prime Minister of United Kingdom, Mr. Wilson provided his good offices to
India and Pakistan which resulted in the parties to reach an agreement to refer Kutch issue to an
Arbitral Tribunal.
In the year 1949, the Security Council rendered good offices in the dispute between the
Netherland Government and Republic Indonesia.
(3) Mediation :- Mediation is the conducting of negotiation between the disputing States
through the agency of the third party. In simple words, when the third party participates in the
discussion along with the disputant States and also gives its own proposals or suggestions in
resolving the dispute, it is called as Mediation. The Mediation presupposes the active
participation of the third State in Negotiations, but the mediator's suggestions have no binding
force and the parties are free to accept or reject or modify them.
Article 34 and 35 of the Charter also provide for collective mediation on the part of United
Nations whenever there is a situation which might lead to international friction.
Examples:-Soviet Union President Kosygin mediated in the Dispute between India and Pakistan
which resulted in the conclusion of Tashkant agreement in 1966.
(4) International Commission of Inquiry:
An inquiry is also a method which is often resorted to for the settlement of disputes. It may be
noted that it is not an independent method and is often applied along-with other methods. The
main objective of the inquiry is to make an investigation of the relevant matters so as to establish
facts which may hold the ultimate solution of the problem. For example, often inquiry
Commissions are appointed in relation to the settlement of border disputes. The commission
clarifies the facts after making inquiry into the relevant facts.
The first convention of the Hague Conference of 1899 suggested the establishment of
the international commission of inquiry for the international disputes involving neither honor nor
vital interests and relating to points of fact with a view to elucidating the facts and dispelling
ignorance that ultimately leads to hostilities. The conference provided that such Commission
might be constituted by special agreement between the parties, the members of such
Commissions being appointed in accordance with the scheme laid down in Article 32 of the
Convention for the appointment of the members of Arbitral Tribunals.
Examples : -The North Sea Incident Inquiry, the Tavignano, Camouna Gaulois Inquiry and the
Tubantia are instances of such Commissions of Enquiry
(5) Conciliation:
When a dispute is referred to a Commission of persons to investigate the basis of dispute and to
make a report containing proposals for settlement after finding out the facts, this process is
known as conciliation. Such proposals have no binding force on the parties to the dispute.
According to Hudson, "Conciliation is a process of formulating proposals of settlement after
an investigation of the facts and an effort to Reconcile opposing contentions, the parties to the
dispute being left free to accept or reject the proposals formulated."
The term implies various methods adopted by the third party to amicably settle the dispute
between two or more States. It involves the formulation of proposals for settlement after an
investigation of the facts. The dispute may be referred to a Commission for the favor of
proposals to the parties for the settlement.
(6) Arbitration :
Arbitration is the most important method of settling International difference (disputes) by
amicable means. According to Lawrence, " Its value resides in its judicial or quasi-judicial
character. It signifies the reference of the dispute to an individual, or small groups of individuals,
to whom the parties state their respective cases, and whose decision they are in honour bound to
obey, and in fact have always obeyed, the only instance to the contrary being due to the fact that
the arbitrator had exceeded his powers... When a dispute is submitted to arbitration, the matter
takes on the semblance of a trial before a Court ". States are however under no obligation to
submit their dispute to arbitration unless they have bound themselves beforehand by a Treaty.
But once they have referred the matter to arbitration, they disregard to the award means a breach
of promise and the award is final, unless it is vitiated by fraud, collusion and the like, or the
arbitrator, as pointed out above, has exceeded his powers.
Examples:
The settlement of the dispute by arbitration in Alabama of Claims between the United States and
Great Britain went a long way in emphasizing the importance of arbitration as a means of
settlement of the dispute.
(7) Machinery of the United Nations Organization -
According to Article 2 para, 3 of the United Nations General Assembly and the Security Council
have been empowered to discharge certain functions in this regard.
i) General Assembly: General assembly may make a recommendation after the discussion to
the disputant parties under Article 14 of The United Nations Charter. Thus the assembly has a
general power for the peaceful settlement of the dispute. The general assembly has been insisting
from time to time, to the disputant parties to settle their disputes peacefully.
ii) Security Council: Under Article 24 para 1 of the United Nations Charter, maintenance of
International Peace and Security is the responsibility of Security Council. Charter provides
various modes by which the council settles the dispute which is likely to endanger international
peace and security. Security Council can take the following Action to settle disputes.

(a) Investigation of the Disputes

(b) recommendation for appropriate procedure or methods of adjustment

(c) recommendation for the terms of the settlement

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