(I.law) Notes for International Law

7/28/2019 (I.law) Notes for International Law

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Notes for International law :

Law is a body of principles (legislature) recognized (courts) and applied (executive) by the

state in the administration of justice.

International law has not been defined comprehensively. Many of writers do not consider itas law. Greek scholar Aristotle says, man is a social animal. He said rightly because

human being needs co-operation, which is most essential and imperative part of life. Heneeds assistance of others. Man cannot survive alone in society. In pre-historic era, people

were living jointly. With the passage of time, society changed different shapes anddeveloped different groups. They thought the importance of co-ordination. They adopted the

principle of give & take. Survival (existence) became impossible without it. They thoughtthe need of international relations. As the man cannot survive alone, state also cannot

survive alone. Now, world has became global village. It became possible with theinternational relations.

International Law or the law of nations is the system of law, which governs relationsbetween states. At one time states were the only bodies which had rights and duties under

International Law, but now-a-days international organizations, companies, and individualsalso sometimes have rights and duties under International Law, however, it is still true tosay that International Law is primarily concerned with sates.

Importance: In the present developed era, its importance cannot be denied. International

law plays an important role in social welfare of society. If the international law is notfollowed then jungle law will come into operation and life will become miserable (unhappy or

uneasy). As municipal law plays an important role in the development of social well being,however International Law plays an important role in the establishment of peace among

states. Regardless the size of states, they are treated with the same and equal status. Theyhave same importance as the big state may have. It is at the option of the states as to how

they act upon.

Basis of International Law: These are the principles upon which International Law relies:

1. Doctrine of Fundamental Rights: Theory of Fundamental Rights is based upon thethoughts of pre-historic era. However state being a separate entity has some Fundamental

Rights which include integrity, equality, liberty, respect, and mutual co-operation. Theory ofFundamental Rights has played an important role in the development of International Law.

Relationship of states is based upon the alliance and mutual co-operation. If states do notobserve the Fundamental Rights then peace of world cannot come into force.

2. Consent theory: Oppenheim propounded (introduced, proposed, presented) this consent

theory. According to him International Law is collection of rules which states feel to observe

them and recognize them with mutual consent. If they don not agree upon certain law, then

no law can be developed. It exists either in customary law or conventional law, in bothcases it is consent. Customary laws are developed with mutual consents of states. They arebound to observe them in different ways and act upon. With the passage of time its roots

got strengthen and applied on different states. It was recognized compulsorily. Now the

consent of state became unimportant whether it will be applied on it.

The customary rules of International Law have grown up by common consent of the states,i.e., the different states have acted in such a manner as to imply their implied consent to

these rules. The intercourse of states with each other necessitated some rules of


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international conduct.

Now states, which come into existence and are admitted into the Family of Nations throughexpress or implied recognition thereby, consented to the body of rules for international

conduct in force at the time of their admittance. It is therefore not necessary to prove forevery single rule of International Law that every single member of the international

community has consented on it.

Some other sages favour the consent theory. Consents are either directly or indirectly. If

any rule is recognized which has binding force or show the consents of parties in treaties or

in different matters, then it shall be regarded as consent. Customs and usages are treatedartificial consent. Some writers have propounded theory against it that solely this theory

does not contribute in International Law. It cannot be understood in circumstances that asto why the rule is followed. States do not respect law before its recognition.

Also the principles which are set by the society are called law. International Law is a body of

principles prevailing between states. States solely and collectively are subject ofInternational Law. It deals states and its own.

International Law may be defined as that body of law, which is composed for its greater partof the principles and rules of conduct, which states feel themselves bound to observe, andtherefore, do commonly observe in their relations with each other, and which includes also:

a) rules of law relating to the functioning of international institutions or organizations, their

relations with each other, and their relations with states and individuals; and

b) certain rules of law relating to individuals and non-state entities so far as the rights orduties of such individuals and non-state entities are the concern of the international

community.

Professor Charles Cheney Hyde defines International Law as that law concerned with the

conduct of states and of international organizations, and with their relations inter se, as wellas some of their relations with persons, whether natural or personal.

It is also defined as law of Nations or International Law is the name for the body of customs

and treaties, which are considered legally binding by States in their intercourse with eachother. Such part of these rules as is binding upon all States without exception, as, for

instance, the law connected with the right of legation and treaties, is called universal

International Law, in contradistinction to particular International Law which is binding ontwo or a few States only.

According to Brownlie there are two types of sources of law, i.e., formal sources and the

material sources of law. Legal procedures and methods for the creation of rules of generalapplication, which are legally binding on the addressees, are the formal sources of law.

Formal sources refer our mind toward state law making machinery such as parliament rulesof which are binding to its people. Decisions of the International Courts, unanimous

resolutions of General Assembly are lacking the quality to bind states generally in the sameway that Acts of Parliament bind its people.

The material sources provide evidence of the existence of rules which, when proved, have

the statuses of legally binding rules of general application.

Material sources of International Law: Following are the material sources


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1. Customs.

2. Treaties.

3. Decision of judicial or arbitrate tribunals,

4. Juristic work.

5. Decision or determinations of the organs of international institutions.

Material sources of International Law may be defined the actual materials from which an

international lawyer determines the rule applicable to a given situation. Final question isthat whether what is the order of sources of international law, which is recommended under

Article 38, paragraph 1 of the statute of the International Court of Justice. It is as follows:

1. International treaties and conventions.

2. International customs as evidence of a general practice accepted as law.

3. The general principles of law recognized by civilized nations.

4. Judicial decisions, juristic opinion, and teachings of the most lushly qualified publicists ofthe various countries as subsidiary means for the determination of rules of law.

Following is the some detail of material sources of International Law:

1. Custom: Most part of International Law consists of customary rules. Article 38 refers to

international custom, as evidence of general practice accepted as law and Brierly remarksthat what is sought for is a general recognition among states of a certain practice as

obligatory. The international community evolves it after long historical process achieved

recognition. A custom in the intendment of law is such a usage, as hath obtained the forceof law. Customary rules are extracted from usages or practices which have evolved in three

sets of circumstances:

(a) Diplomatic regulations between states: There are the acts or declarations by statesmen,opinions of legal advisors to state government, bilateral treaties, and now press releases or

official statements by government spokesmen may all constitute evidence of usage followed

by states.

(b) Practice of international organs: Conduct or declaration of international organs such asILO who has power to regulate internationally the conditions of labour of persons employed

in an international disputes and UNO are the good example of practice of internationalorgans.

(c) State laws, decisions of state courts, and state military or administrative practices: A

British vessel Scotia was collided in mid-ocean with the American vessel Berkshire, whichwas not carrying the lights required by the new law. As a result, the Berkshire sank. It was

questioned that whether the old law of Britain or new customary rules should decide thismatter or International Law evolved through the wide spread adoption of the British

regulations. It was held that new law would govern the dispute.

2. Treaties: This is another important source of International Law. Its importance is


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constantly increasing. There are two types treaties:

(a) law making treaties, which lay down rules of universal or general application. These arealso may be categorized in two types, i.e.,

a) enunciating rules of universal International Law, e.g., the United Nations Charter.

b) laying down general or fairly general rule.

(b) treaty contracts for example a treaty between two or few states dealing with special

matter concerning with these states exclusively.

Common examples of law making treaties include General Agreement of Trade & Tariff(GATT), un-ratified conventions states have subscribed, limited participation of restricted

countries, regional or community rules, Final Acts, International Regulations etc.

Treaty contracts are CETO, CENTO, WARSA PACT, SAARC etc.

3. Decisions of Judicial or Arbitral Tribunals: Decisions of courts and tribunals are a

subsidiary and indirect source of International Law. Article 38 of the Statute of InternationalCourt of Justice provides that, subject to certain limitations, the Court shall apply judicialdecisions as a subsidiary means for the determination of rules of law. They are not strictly

speaking a formal source, but in the some instances at least they are regarded asauthoritative evidence of the state of the law and the practical significance of the label

subsidiary means in Article 38(1)(d) is not to be exaggerated (overstated or distorted).Under Article 59 of its Statute the courts decisions were to have no binding force except

between the parties and in respect of that particular case.

4. Juristic work: The Statute of the International Court of Justice includes among theteachings of the most highly qualified publicists of the various nations. These opinions are

used widely.

It is indicative of the present potentialities of that particular source that the Court has so far

found no occasion to rely on it.

No doubt that juristic work played very important role in the development of InternationalLaw, but juristic works are not an independent source of law, although some times juristic

opinion does lead to the formation of International Law. According to experts, juristic

opinion is only important as a mean of throwing light on the rules of International Law andrendering their formation easier.

5. Decisions or determinations of the organs of international institutions: Decisions and

determinations of the organs of international institutions or international conferences, maylead to the formation of rules of International Law in a number of different way.

They may represent intermediate or final steps in the evolution of customary rules.

Declaration of Charter of General Assembly and Elimination of All Forms of RacialDiscriminations are the examples of decisions of international organs.

Resolution of the organs may formulate principles or regulations for the internal working of

the institutions may have full legal effect and binding on members.

Some organs are empowered to give general decisions or directives of quasi-legislative


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effect, binding on all whom they are addressed.

If the embassy is on fire, can a host State allow to her army to enter in an embassy?However half of the population may affect from the incidence, army cannot cross the doors

of an embassy, without permission. International Law says let the population burns out butarmy is not allowed to enter in.

What are the material sources of law which different writers elaborated and InternationalCourt of Justice have described in its statutes. It is just difference of preferences, however

they are more or less similar. Custom is very important source of law but it is less

emphasized by International Court of Justice thats why emphasize shifted from custom totreaty.

In 1863, British Government had enacted a law regarding the navigation that every ship

navigating in high seas would be duty bound to carry on lights while invisibility by such asfog, darkness, or other reasons. This domestic legislation was enacted for safety of

navigation. Later on right after one year, in 1864, America adopted this legislation. Andsoon after some other states adopted these sort of preventive measures. In 1871, a British

vessel Scotia collided with an American vessel Berkshire. In result of collision, American

vessel Berkshire sank.

It was thought at that time that how this case to be decided. Whether old customary law of

Britain would govern the decision made before 1863 or later law, which had been adoptedby many nations, should be the yardstick. American Court held that in the scenario of

widely adoption of the navigation rules about the carrying out of light, the legislation madeafter 1863 would decide the case rather than the customs relating before the 1863.

Is International Law a true law: There is one theory that International Law does not qualifyas true law but it is just a moral force.

Austins view: Austin and Thomes Hobbes insist that law is the command of a determinatesuperior and that constantly no law can exist where there is no supreme lawgiver and nocoercive enforcement. If there is no sovereign authority then the rules could not be legal

rules but rules of moral or ethical validity.

Positive morality: Austin and his subscribers say that it is not true law but positive

international morality or rules of conduct of moral force only, for there is not supreme

lawgiver and no coercive enforcement in it. In that time Austin was rigid. International Lawis not a true law but in this time International Law is part of our law, and must be

administrated by the courts of justice of appropriate jurisdiction.

Reply to Austins view: The reply to Austins view is as follows:

1. Choice to a penal statute: As Hert points out that the Austins theory of law approximatescloser to a penal statute enacted by the legislature of a modern state than to any other

variety of law.

2. System of law, without a formal legislature: Modern historical jurisprudence hasdiscounted the force of his general theory of law. It has been shown that in many

communities, system of law as in force and being observed, without a formal legislativeauthority. Such law did not differ in its binding force from the law of any state with a true

legislative authority.


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3. Questions of International Law: Questions of International Law are always treated as

legal questions by those who conduct international business and are regularly stated in legalterms and interpreted by legal methods.

Almost from the early stages of the development of the science of the Law of Nations the

question whether International Law is law in true sense has been a subject of muchspeculation. Has it binding force opinion sharply been divided on this vexed (disturbed)question?

A constantly evolving body of norms: International Law is a constantly evolving body ofnorms that are commonly observed by the members of international community in their

relations with each other for providing an orderly management of international relations.

Whether International Law qualifies as law or not - choice of the definition of law: Whetheror not one wishes to attribute a legal character to the norms of International Law depends

largely upon the definition of law he chooses to accept.

This question has been matter of discussion since long whether it is law? Some writers

object the use of word law. They say that states are free from external pressure. If theyconsent to follow the principles of International Law, it does not mean they are debarredfrom their sovereign powers. It does not affect their sovereign powers. In the opinion of

some writers law is the name of rule which every superior issues for inferior.

This rule binds the people to prepare its structure. Its compliance would be compulsory andits violation will result in punishment. There is no such compulsion in International Law. In

International Law there is not sovereign power that issues orders. If there is any sovereignpower in International Law, the sovereign power of the states will be lost.

There is no binding force behind it. It is not doubtful, that states observe the rules and

regulations in the compliance of international contracts with the feeling of betterment and

ethics. These rules and regulations are decided in their limits and are liable to revoke. Thereis no law force, which can stop them in doing such act.

International Court of Justice is a forum where states bring their disputes for settlement but

states are no more bound to accept them and may refuse. It all depends upon them.

There is no forum for its explanation or interpretation.

There is no concept of legislature in International Law for the enactment and enforcement.

In the opinion of different writers International Law is not real law. According to Austin it

has status of positive international morality. It is a collection of emotions of people andcommon opinions.

Merits of International Law: Presently an International Law is very important for every

state. In past there were some problems between states but at present it is very importantand all states feel that it should remain there.

1. Protection of states interests: It is doubtless that International Law has protected the

interests of the states. It helps those states, which have no such power to protect theirinterests. It also protects states from suffering of loss. It provides them rules and

regulations for which states are bound to follow. It relates with the boundaries, society,


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morality, ethics, and religious matters. Kuwait was protected by International Law.

2. Welfare of human being: In fact International Law plays an important role in the welfareof human being. Submission of these rules brings prosperity for humankind. It has different

institution, which perform its functions.

3. Equality: International Law gives importance to equality. It gives the same status ofequality to small state as the big state. In international relations all are equal. One state hasno superiority over other one. In international matters, every state plays its role.

4. Individuality: International Law also gives individual importance to each state. All theother states also recognize it. International Law has covered almost all the world and

formed a society and promoted brotherhood. Individuality has importance in it.

5. Unity and strength: This law has created the environment of the unity and strengthamong the different states. It has taken all the states in a line. No one state can separate

her from others. Every state has become the need of other one and plays an important rolein unity and strength.

6. Development of social values: This law has also played an important role in thedevelopment of social values. International Law has tried best to promote the social values.

Demerits of International Law: It has also some demerits as well as merits, which make itweaker. These demerits are as follows:

1. Limited scope: In the present circumstances it seems ambiguous and of limited scope.

There is no solid organ of International Law, which can resolve the matters of statesequitably. It could not devolve person into state.

2. Ambiguous law: Some of its rules and regulations are not only uncertain but also

ambiguous. Pace of its development and promotion is deadly slow. It cannot combat with

changing environment of the society.

3. No apparent authority: There is not executive class who can enforce the laws. It lacks theforce of law, which enforces the law, and gets exercised. Only International Court of Justice

exists. There is not existence of special courts that can decide the particular disputes.International Court of Justice cannot settle certain matters. States do not allow

International Court of Justice in the settlement of disputes. After the decision is given, there

is no such power that may get it enforced.

4. No administration power: There is no administrative power behind it that can get itsdecisions enforced.

5. Little enactment: It has little room of enactment. Mostly matters such as excise,

intercourse between two or more states, taxes, and market etc. are excluded from itsscope.

6. Non interference: International Law does not intervene in the matters, which takes place

in any member state.

7. Uncertainty about facts: There may be a genuine uncertainty about the facts. Forinstance, before one who decide whether United States participation in the Vietnam fighting

is legal or illegal, has to decide whether the National Liberation Front (Viet-cong) in South


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Vietnam represents spontaneous internal revolt or whether it represents subversion fromNorth Vietnam.

8. Uncertainty about law: There may be a genuine uncertainty about the law. For instance,

some states think it is lawful to nationalize foreign property without compensation, othersdisagree. When dispute arises between a state in the first group and a state in the second

group, each will be convinced that it is in the right, and it is impossible to predict how aninternational Court would decide the case.

9. Internal disintegration: Sometimes international dispute may cause internal

disintegration such as demand for the increase of wages in employment. However wagesare fixed by the contract of employment and contracts can be altered by mutual agreement.

10. Unfriendly legal act: International Law does not prevent a state increasing its tariffs on

goods coming from another state, even though the result may be to cause severeunemployment in the other state.

11. Dualism: Dualism can easily be observed in the solution of the international disputes.

Dispute of North Tamour has been solved whereas dispute of Kashmir stands unresolved.

Terrorism in Israel has not been condemned while liberation struggle of Palestine iscondemned.

It is weaker law in the eyes of J. G. Starke. Another writer says that it is not only a weakerlaw but it contains mostly on customary law.

Despite the existence of International Court of Justice many hurdles came in its

development. This law does not resolve the disputes.

How it can grow: Following are the some suggestions, which can determine its pace:

1. Rules and regulations of this law should be revised and taken into writing.

2. It should be given the form and shape as the ordinary law of the state.

3. It should be formed globally.

4. It should be developed through courts.

Many activities are being taken place in this regard. Conferences and other importanttreaties are playing an important role in its growth. Changing political environment and

expertise are trying in changing the International Law. Also courts are playing importantrole for its development.

Present day International Law: Austins views however rigid for his time are not true of

present day International Law. In 20th century a great mass of international legislationhas come into existence as a result of law making treaties and conventions.

Procedure for formulating rules: The procedure for formulating the rules of international

legislation is practically as settled if not as sufficient as any state legislative procedure.

Conclusion: International Law is law but a weak one, the cumulative evidence against theposition taken by Austin and his followers should not bind us to the fact that International

Law is a weak law.


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Its enforcement devices: It is obvious that there are gaps and ambiguities in the law, that

its enforcement devices are often inadequate and it has not succeeded in eliminating theuse of force in international relations.

There is no world legislature, no international police, and no international Court with

compulsory jurisdiction.

Historic background of International Law: It has not certain period of its beginning. It is

explored that it came into existence right from the commencement of human life on earth.

States had established mutual relationship and played an important role in social life.International Law has been developing time to time and its form has been changing with the

passage of time.

In thirteenth century B. C. a contract took place between Egyptian King Pharaoh and SyrianKing after a war. It was consisted on the conditions of peace and co-operation and land

acquisition. It was written on a silver plate. It reveals that no doubt this system wasavailable since long before and states were made treaties as the same now is. In old time

there was neither travelling arrangements nor concept of states, but agreements were

made. There was also diplomatic representation. Disputes were settled with arbitration.There was tradition of asylum in that age.

Greek period: Greek nation was reluctant to maintain relationship with non-Greeks. Theywere habitant to make slaves others. They had thought that only Greeks are born to be

rulers. In words of Aristotle, nature has created non-Greeks only for to be slaves. Stateseither democratic or imperial had mutual relationship and rules and regulations among

them. Mostly matters were decided with arbitration. They were not remain civilized butbecame cruel during war. War was not started without declaration. Religious places were

not destroyed. Killed/deceased people were buried. Prisoners of War were exchanged. Theyhad formed Greek union of nations. In that age treaties were made. Such like states may

enjoy peace and prosperity.

Roman period: Till 753 B. C. states were not too big. International Law was clarified till 3rd

century B. C. after the evaluation of big state founded. Relations were developed with Persiawhile making the treaties with others. Roman were taken into consideration the principles

set out by that former states and they provided the legal protection. They made a treaty forcommon defence of states. Non-member states could not enjoy such facility. War was

formerly declared. Treaties were taken into consideration without which existence was

impossible. Principles they had formed played an important role in International Law eventoday.

Jews period: Jews were considered superior themselves than others. They had superior

standard than others. They had treated other inferiors. Thats why they did not contributedin the development of International Law. They were severe enemy of many nations. During

the peacetime they had not good moral character. They had bad treatment for others duringwarfare. They were killed children and aged people. They had good relationship with alien

friends. They had respect for diplomatic representatives. Their national law was applied inthe territory of subjugated (beaten) country. Agreements were made at the end of war.

Indian period: Historic period of India begins since thousand years back. Age of Raja Geet

is supposed with Alexander the Great. Brahmans, Khashtari, Waish, and Jain were alsoHindus. They had mutual co-operation. They had good relations among themselves.

Agreements were made in that age.


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Three stages of the development of International Law: Development of International Law is

observed into three ages. Its roots are found in the beginning of history of human life. Butits clear form is 400 years old. A writer has divided its development in three stages.

First period: First period of International Law is started right from the beginning of human

history and ends at formation of Roman empire. In this period there was respect of samerace and same religion. For the achievement of peace, ambassadors were sent. They hadcertain immunities. They were not treated enemy but friend and had better relations.

Romans applied rules relating with peace and war. War was ceased upon the peace and

friendship. Tradition of internationalism became ceased after the fall of Roman Empire.Geographic boundaries were not defined. They were united upon common race. Kings were

the rulers over certain territories. Same principles of International Law had been developedin this age.

Second period: In this age religious movements came into force. They left certain effects.

They emphasized on the importance of International Law.

Roman Empire: Second era was started with the creation of Roman state. It was spreaded

over the large part of the world. Need for the importance of International Law became end.Off and on any incident took place which showed the importance of International Law.According to the law of Rome, agreements were made and protected. In the failure to

become friend, they were made slaves.

Christian influence: Christian religion gone to Italy. It became official religion of Italy State.This era eliminated the question of International Law. Continuous crusades were started.

They treated Muslims their great enemy. Their revenge passions grown up after theconcurrence over Bait-ul-Maqdas of Muslims. Christian priests declared all the agreements

prohibited with Muslims from religious point of view. The crusades were remaining inoperation till long. Despite of the fact, agreements were made. In that age, there was also

trend toward International Law.

Islamic influence: After the dawn of Islam, complete change took place. Infidels started

harassment to Hazrat Muhammad . In these circumstances they migrated from Makka toMadina. They founded state, which became first Islamic State over the global map (Atlas).

They fought many wars. Muslims were martyred and concurred. Moral values were takeninto consideration. Killing of women, children, and aged people, if they remain peaceful,

transgression of limits, devastation of crops, destruction of buildings and houses, ruin of

gardens, killing of animals, and arson of public places became prohibited. Weaker peoplewere remitted. Muslims were spreaded over from east to west.

Hazrat Muhammad said in his Tradition, O people you are followers of one Allah and are

progeny of Adam. The best among you is who refrains from evils. All the Muslims arebrothers. An Islamic state act upon the light of Quran. They do not discriminate, the

matters of the world and hereafter. Islam has made all the principles. Islam is code of lifeand teaches us in all spheres of life. Islam has also clarified the International Law. Western

writers have negated the importance of Islam in the development of International Law. Theperiod of Muslims was so brilliant.

Third period: There was a long war between king and church. German king created a big

state. In an agreement Pope took over the matters of religion and secular matter left forking. Despite of this agreement the war period remains continue. In fifteenth century Pope

became weaker. In seventeenth century many small states came into existence that made


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mutual treaties. Despite of war many contracts and peace pacts took place.

International Law: International Law is the law, which governs the relations among statesand other international legal persons. The sources of International Law are customs grown

up among states and lawmaking treaties concluded by them.

International Law regulates relations between states.

International Law is a law not above but between sovereign states and it therefore a weaker

law.

Municipal law: Municipal law is the law of a state, which governs the domestic affairs of the

state. The sources of Municipal Law are customs grown up within the boundaries of thestate concerned and statutes enacted by the law giving authority.

Municipal Law regulates relations between the individuals under the sway (influence) of a

state and the relations between the state and the individual.

Municipal Law is a law of a sovereign over individuals subjected to his sway.

Relationship between International Law and municipal law: There are certain questionswhich come before international lawyer whether what are nice considerations between

international and municipal law. The most important practical problem of more immediateconcern to municipal courts are as to what extent may courts give effect International Law

in municipal courts both where such rules are, and where they are not in conflict withmunicipal law. It is a practical problem, which requires consideration of the practice of

states.

It is the practice of national courts that the relationship of international law to municipal lawis of fundamental importance which means that to what extent they are interrelated with

each other, or where they conflicts which will be preferred or the system are to oppose or to

coordinate with each other.

Theories in this respect: There are two theories as to relation between International Lawand municipal law, i.e., dualism and monism.

Dualism: In nineteenth and twentieth centuries philosophers emphasized on the sovereignty

of the state-will and the complete system of legislation in a state. It has developed that

trend toward the duelist view. According to dualistic both international and municipal laware distinct systems. There are two basic differences between the two systems:

1. Subject of law: In state law subjects are individuals whereas states are solely and

exclusively subjects of International Law.

2. Juridical origin: In state source of law is will of the individuals for which they areconcerned while in international source of law is common will of the states concerned.

Distinct legal systems: According to dualism, these two systems are entirely distinct legal

system, international law having an internally different character from that of state law.

Chief exponents of the theory: The chief exponents of dualism have been the modernpositivist writers Triepal and Anzilotti.


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Anzilottis view: Anzilotti distinguished international law and state law according to thefundamental principle by which each system is conditioned in his view.

State law is conditioned by the fundamental principle or rule that state legislation has to

obey, while International Law is conditioned by the principle pacta sunt servanda. Itmeans that agreements between states are to be respected.

International Law binds individuals and entities other than states. B section is somethingmisleading to the extent of the superior state in International Law. Superior has definitely

dominant role in International Law despite the common will of the states.

State law is based upon the principle and norm, which sates legislation, has to be obeyed.

In International Law main principle is agreements between states that are to be respected.Thus the two systems are entirely different. This theory not only has received support from

positivists but non-positivists writers and jurists. State law mainly is consisted on judgemade law and the statutes passed by legislature whereas International Law is comprised on

the customary rules and treaties among the states.

Monism: This is strictly scientific analysis. It is single unity composed of binding legal rules

whether those rules are obligatory on states, on individuals, and on entities other thanstates.

If it is generally accepted that International Law is a true law then there is no doubt to denythat the two systems constitute part of that unity.

Kelsons view: In the view of Kelson and other monist writers, there cannot be any escape

from the position that the two systems, because they are both systems of legal rules, areinterrelated parts of one legal structure.

States responsibility to enforce International Law: It is the duty of state to enforce the

International Law as the state law in its jurisdiction.

Mortenson v peters: In this case High Court of Scotland gave effect to a municipal law

against the International Law but the state was under obligation to conform theInternational Law, therefore, the executive in fact demolished the judgement in order to

make Britains behavior conform with her international obligation.

Question of priority: Monists are somewhat divided on this point whereas dualists assert

that the two systems are not to supersede, but to coordinate with each other, therefore,there arises no conflict between the two.

Practice as to priority - case before International Tribunal: When the case in which conflict

arises between International Law and municipal law before an International Tribunal, thepractice is to prefer the International Law over the municipal law.

Practice as to priority - case before Municipal Court: Where conflict arises in a case before a

municipal Court (except where the state has adopted the International Law to supersede, byconstitution or law), the municipal law is preferred.

Question of primacy: Where does primacy reside in International Law or in state law. Rule

of ultimate primacy of state law was claimed to break down in two crucial cases:


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1. If International Law has drew its validity only from state constitution, it would necessarily

cease its validity when authority rested upon disappears. But valid operation of

International Law does not invalidate its importance and regard. After the Belgium became

independent state, treaties had not lost their force despite internal constitutional changes.

2. When new states enter in international society then International Law binds them withouttheir consents. Every state is duty bound to bring not only its laws but also its constitution

in accordance with International Law.

State practices: There are certain state theories where International Law is applied in

municipal courts and upto what extent. Whether its conflict with municipal law loses its

validity or not.

Application of International Law by municipal courts: In states, the practice as to apply

International Law by municipal courts is different from each other.

Some states have interpreted in their constitution to apply International Law and therefore,their municipal courts are bound to apply International Law such as Germany, Korea, USA,

etc. But in most states, the municipal courts apply International Law conditioned upon the

precedence and the practices of the state.

British practice draw a distinction between:

1. Customary rule of International Law.

2. Rules which are laid down by treaties.

British practice: The rule as to customary International Law to the current of modern judicialauthority as that customary rules of International Law are deemed to be a part of the law of

the land and applied as such by British municipal courts.

Subject to qualifications: International Law is deemed to be part of the law of land and

applied in municipal courts, subject to two important conditions:

1. Whether such rules are not inconsistent with British statutes even statute is earlier or

later in date than particular customary rule concerned.

2. Once the British courts of final authority have determined the customary rule, all British

courts are thereafter bound to follow them even though a divergent customary rule ofInternational Law later develops.

Chung Chi Chaung v R: In this case Lord Atkin declared that, the courts acknowledge the

existence of a body of rules which nations accept among themselves.

Practice as to treaties: The British practice as to treaties, as distinct from customary rules of

International Law, is conditioned primarily by the constitutional principles governing the


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relations between the Executive and Parliament.

Treaties requiring approval by Parliament: Treaties which effect the private rights of British

subjects, or involve any modification of the common or statute law by virtue of their

provisions, must receive assent of parliament through an enabling Act of Parliament.

Treaties inconsistent with statutes: Where a statute contains provisions inconsistent with

those of an earlier treaty, a British municipal Court must apply the statute in preference to

the treaty.

The law of nations, wherever any question arises which is properly the object of its

jurisdiction is here adopted in its full extent by the common law and it is held, to be a part

of the law of the land. The courts acknowledge the existence of a body of rules which

nations accept among them. On any judicial issue they seek to ascertain what the relevant

rule is, and having found it, they will treat it as incorporated into the domestic law, so far as

it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.

It is a recognized prerequisite of the adoption in British municipal law of a doctrine of public

International Law that it shall have attained the position of general acceptance by civilized

nation as a rule of international conduct evidenced by international treaties and

conventions, authoritative textbooks, practice, and judicial decisions.

American practice: American practice is similar with as British practice is, as for as the

matters of the customary rules of International Law is concerned. They are administrated as

part of the law of the land. Also an American Court is entitled to ascertain the rules of

International Law on a particular point by referring to textbooks, state practice, and other

sources.

Practice as to customary International Law - similar to the British practice: In the matter of

customary rules of International Law, the American practice is very similar to the British

practice.

Part of the law of land: Such rules are administered as a part of the law of the land.

Construction of the Acts: The American courts construe the Act of the US Congress so as to

conflict with the customary International Law.

Suggestions of the Executive: The suggestions of the Executive regarding such matter as

the public character and immunity from legal jurisdiction of foreign vessel, and the status ofdiplomatic envoys, has preference over the customary rules of International Law.

Latter clear statute: A latter statute prevails over an earlier customary rule of International

Law.

Practice as to treaties - different from British practice: There is radical difference in matter

of treaties as the British practice. American practice does not follow the reconciliation


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between the prerogative powers of the executives and the legislative domain of parliament,

but upon the provisions of the constitution of America.

Supreme law of the land: The American practice as to treaties depends upon the provisions

of the constitution, which declares that treaties are the supreme law of the land.

Conclusion: Each and every system is supreme in its own field and neither has dominance

over the other. Arguments offered just provide a background to the complex relations

between the two systems. Three factors operate on the subject matter:

1. To what extent state organs are willing to apply rules of International Law internally and

externally. This raises the responsibility, sanctions, and non-recognition of illegal effects.

2. The second factor is difficulty of proving the existence of particular rules of International

Law. In case of difficulty municipal courts may rely on advice from the executive or existing

internal precedents, and the result may not accord with an object appreciation of the law.

3. Thirdly, courts, both municipal and international, will often the concerned with the more

technical question as to, which is the appropriate system to apply to particular issues

arising.

What is an international dispute: According to Professor Lawrence, in order to

acquire the status of international dispute the requisites must be fulfilled as:

1. The dispute must be between states.

2. The disputes must relate to reasonable well-defined subject matter.

3. The dispute must lead to some action by the aggrieved state.

Kinds of settlement: There are two types of settlement of international disputessuch as amicable or peaceful and forcible and coercive.

Amicable or peaceful sources of settlement: Amicable means of settlement of

international disputes are as follows:

1. Negotiation: The term negotiation signifies intercourse between states for the

purpose of arriving at a settlement of the dispute.

According to Starke, full fledge sovereign states alone are the regular parties tointernational negotiation.

Such negotiations are carried on either by the heads of the states or by theiraccredited (recognized, accepted, admitted) agent. There are many international

transactions but negotiation is the most important. Negotiation is conducted:

(1) With a view to reaching on agreement.


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(2) Conferring, discussing, or bargaining to reach an agreement.

Case: Permanent International Court of Justice in the case of Railway Traffic vLithuania and Poland, and in the case of North Sea Continental Shelf, emphasized

on the obligation of the parties to negotiate and to purge them as for as possiblewith a view to concluding agreement. The various attempts made by India and

Pakistan to settle some of their outstanding differences by exchange of note, suchas, Indo-Pak Agreement on Minorities, 1950 and Indo-Pak Water Treaty, 1960.

2. Enquiry: Enquiry is also a method of amicable means of international disputes

whereby facts are investigated. It may be noted that it is not an independentmethod and often used along-with other methods. In case of navigation disputes,

enquiry report is sent to UN. The main object of enquiry is to make investigation ofthe relevant matters so as to establish fact, which may help the ultimate solution

of the problem. For example, often Enquiry Commission is appointed in relation tothe settlement of boarder disputes. The commission clarifies the facts after

making enquiry into the relevant facts, for example, North Sea incident enquirymay be referred as a good example.

3. Good offices: When two states are not able to resolve their disputes, a thirdstate may come forward and tender its good offices for the purpose of conciliation.International organization or some individuals may also offer these offices.

The third state creates such an environment as may be conducive for the

settlement of disputes. Some general suggestions may also be put forward but thethird party does not take active part in the negotiation. Certain examples can be

referred in this regard such as:

(1) Role-played by the Russian Prime Minister Kosigin at Tashkent between Indiaand Pakistan.

(2) Settlement of Shaat-al-Arab River boundary between Iraq and Iran in 1975through good offices.

(3) United Nations Secretary General offered its good offices in the disputes

between Indonesia and Netherlands in 1947.

(4) France offered its good offices to America and North Vietnam to settle their

mutual dispute so as to end the Vietnam war.

4. Mediation (reflection, consideration): Mediation is yet another method throughwhich efforts are made to settle international disputes. In the case of mediation

third party not only offers its services but also actively participates in the talk toresolve the disputes.

The suggestions of mediators are not binding and parties are free to accept, reject,

or modify them according to their own reservations.

Role of American President Roosevelt, as a mediator in the Russia-Japanese War isgood example of this sort of peaceful settlement. Also Pakistan offered to America

Government to play role of mediator between India and Pakistan to settle Kashmirdispute.


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5. Conciliation: The term conciliation implies the various methods adopted by athird party to amicably settlement between two or more states. Often matter is

referred to a commission or committee, which submits its report and recommendscertain measures for the settlement of disputes. These proposals are, however,

not binding upon parties. In the words judge Hudson, conciliation is a process offormal proposals of settlement after an investigation of the facts and an effort to

re-conciliate to accept or reject proposals formulated.

Example: The 1965 Convention of the Settlement of investment disputes between

states and the national of other states which provides for conciliation commission

for the settlement of dispute.

6. Arbitration: This is very important method of resolving international dispute bypeaceful means. By arbitration we mean the method through which a dispute

referred to certain persons called arbitrators. Their decision is know as award.

The parties to the dispute select these arbitrators. Although they are selected orappointed on the basis of the consent of the parties to a dispute, their decisions or

awards are binding upon the parties.

Article 15 of the Hague Convention of 1899, provides, international arbitrator hasfor its object the settlement of differences between states by judges of their own

choice and on the basis of a respect for law.

Following examples can be put to clarify the importance of arbitration:

(1) Argentina - Chile Frontier Arbitration.

(2) Runn of Kutch Arbitration.

(3) An important event in the development of settlement of international dispute

through arbitration was Albama Claims Arbitration, 1872.

(4) The most important decision or award given by permanent Court of arbitrationare:

(i) Mascot - Dhouis Case, 1905.

(ii) North Atlantic Coast Fisheries Case, 1910.

(iii) Savarkar Case, 1911.

7. Judicial settlement: At present International Court of Justice occupies the mostimportant place so far as the settlement of international disputes through judicial

process is concerned.

Article 38 of the statute of International Court of Justice enunciates that thefunction of the Court is to decide in accordance with the International Law, such

disputes as are submitted to it and represented by the states. The decisions ofInternational Court of Justice have not binding force except between the parties

and in respect of that particular matter.

Following are the good examples of the judicial settlement:


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(1) Settlement of I. D. Anglo Iranian Oil Dispute, 1953.

(2) Anglo Norwegian Fisheries Case, 1951.

8. Under the auspices (medium, means, power, instrument) of United Nation

Organization: As successor to the League of Nations, the United NationsOrganization, created in 1945, has taken over the bulk of the responsibility foradjusting international disputes. One of the fundamental objects of the

Organization is the peaceful settlement of differences between states, and by

article 2 of the United Nations Charter, Members of the Organization haveundertaken to settle their disputes by peaceful means and to refrain from threats

of war or the use of force. The General Assembly is given authority, subject to thepeace enforcement powers of the Security Council, to recommend measures for

the peaceful adjustment of any situation, which is likely to impair general welfareof friendly relations among nations.

Article 38 of the statute of International Court of Justice (ICJ): International

conventions are stated in the article 38 of the statute of International Court of

Justice, the first and the most important source of International Law.

The term international conventions: The term convention is used in a general

and inclusive sense. It would seem to apply to any treaty, convention, protocol,agreement, and arrangement, regardless of its title or form.

Treaty - Oppenheim: According to Oppenheim, treaties are agreements of a

contractual character between states or organizations of states, creating legalrights and duties or obligations between the parties.

Sehwarzanberger: Sehwarzanberger states that treaties are agreements between

subjects of International Law creating a binding obligation in International Law.

Vienna Convention 1969: In is convention, treaty is defined as an agreement

concluded between states in writing form and governed by International Law.

J. G. Starke: A treaty may be defined as an agreement whereby two or more statesestablish or seek to establish a relationship under International Law between

themselves.

Types of treaties: Treaties may be divided in two groups, i.e., law making treaties

and treaty contracts.

Treaties may be bilateral or multilateral and also may be law making treaties ortreaty contracts. In nearly all cases, the object of a treaty is to impose binding

obligations on the states that are parties to it.

Law making treaties - Brierly: Law making treaties are those which a large numberof states have concluded for the purpose:

1. Either of declaring their understanding of what the law is on a particular

subject, or

2. Of laying down a new general rule for future conduct, or


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3. Of creating some international institutions.

Adopted by all or most of the great states: Generally to be law making a treaty

should be adopted by all or most of the great states as then the rules approved bysuch states have very great weight in practice even among states which have

never expressly conducted to them.

General norms for the future conduct: Treaties create general norms for the

future conduct of the parties in terms of legal proposition.

Direct source of International Law: The provisions of a lawmaking treaty are

directly a source of International Law. This is not so with the treaty contractswhich simply purport to lay down special obligations between the parties only.

International Legislation: There is no legislative organ in the field of International

Law comparable to legislature within the state, but the lawmaking treaties fulfilthe gap quite sufficiently and are labeled as International Legislation.

Example of lawmaking treaties: The examples of lawmaking treaties are asfollows:

1. Declaration of Paris 1856.

2. The Geneva Convention of 1864, 1906, 1929, & 1949.

3. The Suez Canal Convention 1888.

4. Hague Conventions of 1899 & 1907.

5. The Convention of the League of Nations 1919.

6. A great treaty for the renunciation of war and the charter of the United Nations

1945 are pure law making treaties.

Treaty contracts: Following are the characteristics of the treaty contracts:

Indirect source: In contrast to lawmaking treaties, treaty contracts are not

directly a source of International Law. They may, however, as between the partiesof signatories thereto, constitute particular law.

Lead to the formation of International Law: Such treaties lead also to the

formation of International Law through the operation of the principles governingthe development of customary rules.

A series or recurrence (reappearance, return) of treaty contracts: A series or a

recurrence of treaties laying down similar rule may produce a principle ofcustomary International Law to the same effect.

Generalized by subsequent acceptance or imitation: It may happen with a treaty

originally concluded between a limited number of parties only that a rule in it begeneralized by subsequent independent acceptance or imitation of other states.


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Crystallized into law by independent process of development: A treaty may be ofconsiderable evidence such as to the existence of a rule which has crystallized into

law by an independent process of development.

Importance of treaties in International Law: The present day International Lawcannot survive without lawmaking treaties. The reasons are as follows:

1. Industrial and economic changes: Modern industrial and economic changeshave brought states into closer intercourse with each other which can be

regularized only by treaties.

2. To meet the urgent demands: The lawmaking treaties are the only source by

which International Law can meet the urgent demands of international society ofstates for the regularization of the common interests.

3. Effective regulation of international communication, trade, travel etc.: Treaties

effectively regulate the international communications, trade, travel, and otherimportant activities.

Summing up: It may be said that the treaties are the eminent source forregularizing the relations of modern interdependent states with each other andInternational Law cannot be completed without treaties.

Termination of treaties: Treaties may be terminated either by act of the parties or

operation of law.

1. Termination of treaties by act of parties: Parties may terminate the treaties inthe following way:

a) By mutual agreement: The parties to a treaty may terminate it by mutual

agreement in the same way as they concluded it.

b) By denunciation (charge, blame): A party may terminate its treaty obligations

by act of denunciation if this right was provided in the treaty or with the consentof other parties if it is not provided in the treaty.

2. Termination of treaties by operation of law: Sometimes operation of law

terminates the treaty. Such situation may arise in the following cases:

a) Extinction of either party: Extinction of either party to a bilateral treaty may

discharge the instrument. Thus treaty between USA and Tripoli ceased to existwhen Italy annexed the latter in 1912.

b) Expiration of the specified period: A treaty specifically concluded for a fixed

period of time, for example, five years, terminates on the expiration of that period.

c) Fulfillment of the object: In case of treaties imposing no continuing obligation,they cease to operate on the fulfillment of the object.

d) Non-performance of certain essential conditions: If a treaty is conditioned on

the happening of a certain event or on performance of certain act, the treaty willbe not operative until such happening or performance and if a such performance

becomes impossible the treaty will become void.


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e) Obligations incompatible with the charter of UN: Article 103 of the charter

specifically provides that in the event of a conflict between the obligations of themembers of the UN and their obligations under any other agreement, their

obligations under the charter shall prevail.

f) Impossibility of performance: A treaty may terminate when the performance ofobligations imposed by treaty becomes impossible.

g) Outbreak of war: Treaties may come to an end on the outbreak of war between

the parties. The modern view, however, is that the outbreak of war does notnecessarily bring a treaty to an end.

h) Number less than required for convention: If successive denunciation (charge,

blame) of a treaty reduce the states parties to less than the number provided forby the convention, the treaty ceases to be in force.

i) Doctrine of rebus sic stantibus (major change in the state of fact): Treaties may

be discharged as a result of the rebus sic stantibus doctrine. According to this

doctrine a treaty may become null and void in case there is a fundamental changein the state of facts which existed at the time, when treaty was concluded.

j) Doctrine of jus cogen: According to this doctrine, a treaty may be declared voidif it conflicts with peremptory (authoritative) norms of general International Law.

Article 53 of the Vienna Convention on the Law of Treaties, 1969 lays down, that atreaty is void if, at the time of its conclusion, if conflicts with a peremptory norm

of general International Law.

Ratification of a treaty: It is an act of adopting an international treaty by theparties thereto. In other words, ratification implies the confirmation of the

treaty entered into by the representatives of the different states.

According to J. G. Starke: In theory, ratification is the approval by the Head of

State or the government of the signature appended to the treaty by the dulyappointed plenipotentiary.

Form of ratification: As regards the form of ratification, there is no express rule, it

may be made express or implied.

Rational grounds for ratification: The practice of ratification rests on the following

rational grounds:

a) Opportunity of re-examining: States are entitled to have an opportunity of re-examining and reviewing instruments signed by their delegates before

undertaking the obligations specified therein.

b) Sovereignty: By reason of its sovereignty, a state is entitled to withdraw fromparticipation in any treaty if it desires.

c) Approval of parliament: The time between the signature and actual ratification

affords an opportunity to obtain the approval of parliament.

d) Consult pubic opinion: It also gives the government an opportunity to consult


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public opinion.

According to Brierly: There is neither legal bar nor even by its own plenipotentiary.It can only be said that refusal is a serious step which ought not to be taken

lightly.

Conclusion of treaties: There is no specific form for the conclusion of treaties. Anoral agreement between representatives of the state charged with the task ofconducting negotiations and empowered to bind their respective countries is

sufficient to have binding effect if it is the intention of the representative to

conclude a legally binding transaction.

The enormous importance of the issues involved in such agreements howevernecessitates the compliance of formal requirements and reducing the agreements

into a document. The various steps towards the conclusion of a treaty are:

1. Accrediting (charge, assign) of representatives: Once a state has decided tocommence negotiations with another state or other states for a particular treaty,

the first step in the appointing representatives of a state is provided with a very

formal instrument given either by the Head of State or by the Minister for ForeignAffairs. It shows his authority to conduct such negotiations, which is known as theFull Power.

2. Negotiation: The plenipotentiaries exchange their full powers or a copy thereof

before entering upon their task. They then proceed with negotiation. In the case ofa bilateral treaties negotiations are conducted through pour-parlers but they take

the shape of a diplomatic conference when a multilateral treaty is to be adopted orconcluded.

3. Signature: When the final draft of a treaty is drawn up, the instrument is ready

for signature. The signature is affixed at a formal closing session. A treaty

generally comes into force on signature by plenipotentiaries of the contractingstates unless the states desire to subject it to ratification. Treaties and

conventions are generally always sealed.

4. Ratification: The next stage is that the delegates who signed the treaty orconvention refer it back to their governments for approval if such further act of

confirmation be expressly or implied is necessary.

5. Accession and adhesions: A third state can become a party to an already

existing treaty by means of accession. This may be brought about by formalentrance of the third state with the consent of the original contracting parties.

Adhesion denotes the entrance of a third State into an existing treaty with regardto certain stipulations or certain principles only embodied in the treaty.

6. Entry into force: The treaty, unless where ratification is necessary, comes into

force on the date of signature. In case of ratification the treaty comes into forceafter the exchange or deposit of ratification by the state signatories. Multilateral

treaties come into operation on the deposit of a prescribed number of ratificationand accessions.

7. Registration and publication: Article 102 of the UN Charter provides that

treaties and international agreements entered into by members of the United


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Nations Organization shall as soon as possible be registered with the secretariatof the organization and be published by it.

8. Incorporation in Municipal Law: The final stage of the treaty making process is

the actual incorporation, where necessary of the treaty provisions in the municipallaw of the state parties.

Rules for interpretation of treaties: Numerous rules, canons, and principles havebeen laid down by international tribunals and by writers to be used as tools in the

interpretation of treaties.

J. G. Starke prescribe the following as a summary of the more general rules:

1. Grammatical interpretation: Words and phrases are in the first instance to be

construed according to their plain and natural meaning. However if thegrammatical interpretation would result in an absurdity, or in marked

inconsistency with other portions of the treaty, it should not be adopted.

2. Intention of the parties: It is legitimate to consider what was the purpose or

plan of the parties in negotiating the treaty. What must be ascertained is theostensible intention of the parties, as disclosed in the Four Corners of the actualtext.

3. Object and context of treaty: If particular words and phrases in a treaty are

doubtful, their construction should be governed by the general object of the treatyand by the context.

4. Reasonableness and consistency: Treaties should be given an interpretation in

which the reasonable meaning of words and phrases is preferred, and in which aconsistent meaning is given to different portion of the instrument. In accordance

with the principle of consistency, treaties should be interpreted in the light of

existing International Law.

5. The principle of effectiveness: This principle requires that the treaty should begiven an interpretation which on the whole will render the treaty most effective

and useful, in other words enabling the provisions of the treaty to work and tohave their appropriate effects.

6. Recourse (support) to extrinsic (foreign, external) material: Normally, theinterpreting tribunal is limited to the context of the treaty. However, the following

may be resorted to, provided that clear words are not thereby contradicted:

a) Past history, and historical usage, relevant to the treaty.

b) Preparation work, i.e., preliminary drafts, records, etc.

c) Interpretative protocols, resolution, and committee reports, setting out agreedinterpretations.

d) Subsequent conduct of the state parties, as evidencing the intention of the

parties and their conception of the treaty.

e) Reservations.


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f) Notes.

Recognition: According to Fenwich recognition is a formal acknowledgement by an existingmember of the international community of the international personality of a state or political

group not hitherto (previously, formerly) maintaining official relations with it.

Recognition of state may be defined that the free act by which one or more states

acknowledge the existence on a definite territory of human society politically organized,independent of any other existing state which is capable of observing the obligations of

International Law.

Recognition is, one of the most difficult topic, in International Law. It is a confusing mixture

of politics, International Law, and municipal law.

Elements of new emerged state requiring recognition: New emerged state, which requiresrecognition must have certain elements such as, population, territory, government,

sovereignty, and capability of agreement.

Legal nature of recognition: Recognition is as the practice of most states shows much morea question of policy then of law. There are two theories as to legal nature of recognition,

such as, constitutive theory and declaratory theory.

1. Constitutive theory - Holland and Oppenheim: According to the constitutive theory, it isthe act of recognition alone which creates statehood, or which clothes a new government

with any authority or status in the international sphere.

2. Declaratory or evidentiary theory: According to this theory, statehood or the authority ofa new government exists as such prior to and independently of recognition. The act of

recognition is merely a formal acknowledgement of an established situation of fact.

German - Polish Arbitral Tribunal 1929: The tribunal observed that recognition of a state isnot a constitutive but merely a declaratory act inasmuch as (because, since, due to the fact

that, for the reason that) the state exists by itself. Recognition is nothing but the

ascertainment (estimation, conclusion, measurement) of that existence.

Retroactive (backward) effect of recognition: Recognition of state has retroactive effect and

dates back to the time when the recognized community possesses the necessary elementsof statehood.

Modes of recognition: Following are the different modes of recognition, such as express and

implied recognition and de facto and de jure recognition.

Express recognition: Recognizing state may make the act of recognition expressly throughmere declaration to that effect. Normally, when a state recognized another state or

government, it says so expressly.

Implied recognition: Implied recognition is very much a matter of intention of the state saidto have given recognition. It is sometimes said that recognition cannot be implied from a

states conduct unless the state intends that it should be implied but law may deduceintentions from behavior, which are different from a states real intention. It is just as a

person who signs a contract without reading it will be deemed by the law to have intended


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all sorts of things, which he never intended in fact.

The implication is made solely when the circumstances unequivocally (openly, frank)indicate the intention to establish formal relations with the new state or new government.

Implied recognition may be inferred from:

1. Entering some form of relations with new state or government.

2. Common participation in a multilateral treaty.

3. Participation in an international conference.

4. Initiation of negotiation between a recognizing and recognized state.

De facto recognition: Recognition de facto means that in the opinion of the recognizingstate, provisionally and temporarily and with all due reservations for the future, the state

and government recognized fulfills the requirement laid down by International Law foreffective participation in the international community.

De jure recognition: Recognition de jure means that according to the recognizing state, thestate or government recognized formally fulfills the requirements laid down by InternationalLaw for effective participation in the international community.

Conditions for recognition: New emerged state is subject to recognize provided it has

certain ingredients such as:

1. Politically organized community.

2. Community must have a specific territory.

3. Strong occupation.

4. Free and independent community.

5. Establishment of constitutional system.

Difference between de facto and de jure recognition: Following points can be referred as

distinction in both the recognitions:

1. Durability:

(1) De jure: It is permanent and durable.

(2) De facto: It is temporary and transitory.

2. Revocation:

(1) De jure: It cannot be revoked.

(2) De facto: It can be revoked.

3. Succession:


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(1) De jure: Legally or constitutionally recognized government succeeds formergovernment.

(2) De facto: De facto recognition does not follow succession.

4. Status:

(1) De jure: State having de jure recognition can sue.

(2) De facto: State having de factor recognition cannot sue.

5. Diplomatic relations:

(1) De jure: This recognition enjoys diplomatic relations and immunities as well.

(2) De facto: Diplomats do not enjoy immunities.

6. Demand of property:

(1) De jure: State, which is recognized de jure, can demand her share in state property.

(2) De facto: This recognition lacks demand of property.

7. Treaties:

(1) De jure: State may make treaties with other states.

(2) De facto: State cannot make treaties with other states and if so, temporarily and with

due reservations.

Legal effects of recognition: Following are the points notable as legal effects of recognition:

1. Right to sue: Right of suing in the courts of the recognizing state.

2. Effect on enactment: Have effect of its legislation by these courts.

3. Certain immunities: May claim immunity from suit in regard of its property and its

diplomatic representatives.

4. Right to demand property: Entitles to demand and receive property.

5. Certain privileges: Privileges of membership of international community.

6. Right of treaties: Capacity to conclude treaties.

7. International obligations: Subject to various obligations under International Law.

Territorial waters: Waters adjacent to the territory of a state may be either national orterritorial. Territorial waters lie within a definite maritime zone or belt adjacent to a states

territory.

National waters: National or interior waters consist on internal ports, rivers, lakes, canals,


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gulfs, bays, and harbors etc.

Maritime belt: The maritime belt is that part of the sea, which is under the sway (power,authority, dominance, influence, control) of the littoral (beach, coast) states.

There is considerable unanimity of opinion that the open sea cannot be state property and

only such part as stated above of the sea would be the state property of the littoral states.

Marginal belt: Territorial waters are also termed as marginal belt over which the littoral

state has completed territorial sovereignty.

Territorial sea: The International Law Commission of UN has expressed a preference for the

term Territorial Sea over Territorial Waters for the maritime belt of coastal waters,because the latter term may include inland waters.

Extent of jurisdiction over Territorial Waters: The extent of jurisdiction over territorial water

has not been specifically determined. The customary rules and the jurists prescribes theextent of jurisdiction as follows:

1. Range of cannon shot: Bynker Shoek published his work, (Essay on Sovereignty over theSea), in which he adopted the rule that the littoral state could dominate only such width ofcoastal water as by within range of cannon shot from shore batteries; and the territorial

sovereignty extends as far as the power of arms carries.

2. Three miles limit: The three mile limit was suggested by France in certain eighteenthcentury negotiation with demand as a compromise between the cannon shot rule and the

Scandinavian measured belt.

3. Universally accepted rule: The three mile rule is so universally accepted as a minimumthat one may safely postulate (assume, suppose, presume) a customary rule of

International Law that the recognized minimum breadth or width of the maritime belt is

three miles.

4. Grotius: Grotius introduced the principle of limiting the dominion to the distance to whichprotection could reach it from the shore.

5. According to Valtel: Valtel observed that in general the dominion of the state over the

neighboring sea extended as far as her safety rendered it necessary and her power was able

to assert it.

6. English law: Great Britain by enacting S. 7 of the Territorial Waters Jurisdiction Act, 1879,also prescribed the width of the belt as one maritime league, i.e., three geographical miles

from the low water mark and extended the jurisdiction of English Court over offencescommitted in the territorial waters.

7. Sea convention adopted by the law of Sea Conference, 1982, signed by 117 countries:

The convention provides for a twelve nautical (naval) miles territorial sea in which a coastalstate can exercise its sovereign power with few exceptions. But foreign vessels would be

allowed innocent passage through these waters for purposes of peaceful navigation.

8. International conference on the law of sea held in Geneva in March 1958, the consensus(agreement) of opinion approved to be to prescribe the breadth of territorial width to six

miles.


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Rights of the coastal state over the territorial sea: The coastal states sovereignty over the

territorial sea includes the following rights:

1. An exclusive right to fish, and to exploit the resources of the seabed and subsoil of theterritorial sea.

2. Exclusive enjoyment of the air space above the territorial sea, unlike ship, foreign aircrafthave no right to innocent passage.

3. The coastal states ships have the exclusive right to transport goods and passengers fromone part of the coastal state to another.

4. If the coastal state is neutral in time of war, belligerent (hostile) states may not fight, or

capture merchant ships, in the coastal states territorial sea.

5. The coastal state may enact regulations concerning navigation, health, customs duties,and immigration, which foreign ships must obey.

6. The coastal state has certain powers of arrest over merchant ships exercising a right ofinnocent passage, and over persons on board such ships.

Pirates (sea robber) are enemies of mankind: A pirate is an enemy of the whole human racehostis humani genris. He is outlawed (unlawful, illegal, prohibited, and wrong) by the law

of all nations, his act being one directed against the whole body of civilized states.

Molley: Molley defines a pirate as a sea thief who to enrich himself either by surprise oropen face sets upon merchants or other traders by seas.

Kenny: Piracy is any armed violence at sea which is not a lawful act of war.

Moores Digest of International Law: A pirate is defined as one who without legal authorityfrom any state, attacks a ship with intention to appropriate what belongs to it.

Story: Robbery or forcible depredation (stealing, theft) upon the sea is piracy.

L. Oppenheim: Piracy, in its original and strict meaning, is a very unauthorized act of

violence committed by a private vessel on the open sea against another vessel with intent

to plunder (robbery or theft).

If the members of the crew revolt and convert the ship, and the goods thereon, to their ownuse, they are considered to be pirates, although they have not committed an act of violence

against another ship.

If unauthorized acts of violence, such as murder of persons on board the attacked vessel, ordestruction of goods thereon, are committed on the open sea without intent to plunder,

such acts are in practice considered to be piratical.

Object of piracy: The object of piracy is any public or private vessel, or the person or thegoods thereon, whilst on the open sea. In the regular case of piracy the pirate wants to

make booty, it is the cargo of the attacked vessel, which is the centre of his interest, and hemight free the vessel and the crew after having appropriated the cargo.


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Piracy according to the International Law Commission: Piracy consists of an illegal act ofviolence, detention, or any act of depredation, committed for private ends by those aboard

(on board, loaded, shipped) a private ship or private aircraft, and directs either on the HighSea, against a ship or persons or property thereon, or, in the territory or waters of nature of

terra nullius.

Essential ingredients of piracy: The essential ingredients of an act of piracy are:

1. It is an act performed by a person sailing the High Sea.

2. Such an act is without the authority or commission of any state.

3. Actual robbery is not an essential element in the crime of piracy; frustrated attempt tocommit robbery is equally piracy jure gentium.

4. Such act of robbery is committed by a private vessel against another vessel or by the

mutinous (rebellious, seditious) crew against their-own vessel.

5. The essence of piracy consists in the pursuit of pirate, as contrasted with public, ends.

Universal jurisdiction: Piracy subject to universal jurisdiction is one, which comes under thejurisdiction of all states wherever it is committed.

It is treated as a delict jure gentium and all the states are to apprehend and punish the

offenders.

Protection of flag state: By this conduct, the pirate is deemed automatically to lose theprotection of his flag state and any privileges due to him virtue of his nationality.

Piratical acts authorized by a government: Professor Hyde maintains that national

authorization of the commission of piratical acts would not free pirates from their

intentionally illegal aspects.

Right of visit and seizure of pirate ship: All warships (aircraft carrier) are entitled to visit avessel deemed to be piratical for the purpose of ascertaining her true character.

Ownership of property in piracy: A robbery by piracy does not deprive the rightful owner of

his property, which has to be restored to him when recaptured.

UN contention (contest, struggle) on the Law of Seas, 1982: Article 102 of the convention

lays down that the act of piracy committed by a warship, government ship, or governmentaircraft, whose crew has mutinied (revolt, sedition) and taken control of the ship or aircraft

are assimilated (amalgamated) to acts committed by a private ship or aircraft.

Right to arrest pirates and seize pirate ship: Article 105 further provides that on the HighSeas or in any other place outside the jurisdiction of any state every state may seize a

pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates,and arrest the persons and seize the property on board.

Decision by the Court in good faith: The courts of the state which carried out the seizure

may decide upon the penalties to be imposed, and may also determine the action to betaken with regard to ships, aircraft, or property, subject to the rights of third parties acting

in good faith.


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Article 105, further provides that where the seizure of a ship or aircraft on suspicion of

piracy has been effected without adequate grounds, the state making the seizure shall beliable to the state the nationality of which is possessed by the ship or aircraft for any loss or

damage caused by the seizure.

Article 107 states that a seizure on account of piracy may only be carried out by warships ormilitary aircraft or other ships or aircraft clearly marked and identifiable as being agovernment service and authorized to that effect.

Nationality -J. G. Starke: Nationality is a status of membership of the collectively of

individuals whose acts, decisions, and policy are vouchsafed (accord, bestow, confer)

through the legal conception of the state representing those individuals.

Fenwick: Nationality is the bond that writes a person to a given state which constitute his

membership in a particular state, which gives him a claim to the protection of that state and

which subjects him to the obligation created by law of that state.

Hyde: Nationality refers to the relationship between a state and individual that the former

may with reason regard the latter as owing allegiance (faithfulness, loyalty) to itself.

L. Oppenheim: Nationality of an individual is his quality of being a

(I.law) Notes for International Law

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