Pil

KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

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(An e-initiative by KCL)

NOTES

ON

Code : 107

Subject : Public International Law &

Human Rights

Course : VII

Class : LL.B. 1st

Yr

Note : Only KCL students are authorized to download the notes


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LL.B. Ist Year

International Law & Human Rights

Q.1 What are the different sources of International Law?

Ans. Sources :- Sources of International Law can be classified into the following Categories :-

1. International Conventions or Treaties :- The term “Conventions” applies to any treaty,

protocol or agreement, regardless of its title or form. According to Article 38 of the statute of

international Court of justice, it is the first source of International law. Art. 2 of Vienna

Convention on the Law of Treaties 1969, “A treaty is an agreement whereby two or more

states establish or seek to establish relationship between them governed by International

law.” International Treaties may be following two types :-

A) Law Making Treaties :- Law making treaties are those treaties which are entered into by a

large number of states. These are the direct sources of law. Treaties may be divided into

following two types.

(i) Treaties enuciating the rules of universal International Law :- Those treaties which are

signed by a majority of the states are called the Treaties enunciating the rules of universal

International Law. United nations charter is an example of type of treaties.

(ii) Those enunciating general principles :- Treaties which are entered into by a large number

of Countries enunciated general principles of International law 1958 and 1960. Geneva Con

ventions on the law of the Sea is good examples of such types of Treaties.

B) Treaty Contracts :- Treaty contracts are those treaties which are entered into by two or more

states Such type of treaties are also the source of International law because they held in the

development of customary rules of International law.

2. International Customs :- International Customs used to be the most important source of

International law in the past. In the modern period, their importance has lessened. In the

words of Viner, “A custom, in the intendment of law, in such a usage as hath obtained the

force of law.” Customary rules of international law have developed in the following three

Circumstances :- (a) Diplomatic relations between states (b) practice of organs of


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International Institutions and (c) State laws, decisions of the State‟s Courts and State‟s

parliamentary or administrative practices.

West Rand Central Gold Mining Co. Ltd. V.R. (1905) 2 K.B. 291 (Right of passage over

Indian Territory Case), Porttugal V. India (I.C.J. Rop. 1960 at 6) are good examples of

application of custom in international law.

3. General principles of law recognised by the civilized states :- The general principles of law

recognised by the civilized nations is an important source of law through which International

law adopts itself in accordance with the changing times and circumstances.

In the words of Lord Mc Nair, “it describes an inexhaustible reservoir of legal principles

from which the tribunals can enrich and develop public International Law,” Res Judicata,

estoppel, etc. are examples of the general principles of law recognised by civilized states.

Following are some of the important cases relating to the general principles of law

recognised by civilized states :-

a) R.Key (1876) 2 Ex. D.63 -

b) United States V. Schooner :-

c) Charzow factory (Indemnity Case), Pub. P.C.I. (1938), Serious A, NO.17 -

d) Bracelona Traction Case, Preliminary Objectives, (I.C.J Rep. (1964) P.6)

International Courts have recognised the following general principles :

(1) good faith

(2) responsibility

(3) prescription

(4) In the absence of any express provisions of the Contrary, every Court has a right

To determine the limits of its own jurisdiction

(5) a party to a dispute cannot himself be an arbitrator or judge

(6) resjudicata

(7) In any judicial proceeding, the Court shall give proper and equal opportunity of


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hearing to both parties.

4) Decisions of Judicial and Arbitral Tribunals - According to Art. 38 of the International Court

of Justice, the decision of Judicial and Arbitral Tribunals are Subsidiary means for the

determination of the rules of law, Art. 59 of the Statute of international Court of Justice

provides that they will have “no binding force except between the parties and in respect of that

particular case”.

5) Juristic Works :- The opinions of jurists are also regarded as subsidiary means for the

determinations of the rules of International law.

6) Decisions or Determations of the Organs of International Institutions :- In the modern

age the decisions of the organs of international institutions are also treated as sources of

International law. After the establishment of U.N. most of the development of International

law and its codification has taken place through the instrumentality of International

Organisation. The International Court of Justice has recognized it in a number of Cases such

as certain expenses of the U.N.(1962), South West African Cases (1966), Effects of Awards

of compensation made by the U.N. Administrative Tribunal (1954).

Some other Subsidiary sources of international law :- following are the other Subsidiary

sources of International law :-

1)International Comity

2) State papers

3) State guidance for their officers

4) Reason

5) Equity and justice

Q.2 Write a critical envoy on Universal declaration of Human Rights 1948.

Ans. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS :- In 1948, the General Assembly

passed the Universal Declaration of Human Rights. This has been hailed as a Victory of

Individuals in respect of Human Rights. There are 30 Articles in Declaration which describe in


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detail human rights and fundamental freedoms. For examples : Article I provides, “ All human

beings are born free and equal in dignity and rights, they are endowed with reason and

conscience and should act to one another in spirit of brotherhood.”

Some writers have expressed the view that the Universal Declaration has now assumed legal

value.

Dr. Nagendra Singh has remarked :- The Declaration, was not a mere resolution of the

General Assembly but a continuation of the charter and had the dignity f the Charter” This

seems to be the correct view.

Prof. Louis B.Sohn has also remarked that the Declaration “Constitutes an authoritative

interpretation of the Charter, which is binding upon Members to the extent that the charter is

binding,”

PROVISIONS OF THE U.N. DECLARATION ON HUMAN RIGHTS :-

Provisions of the Universal Declaration of Human Rights may be classified into four categories

:- General (Articles 1 and 2) Art.1 of the declaration provides that all human beings are born

free and equal in dignity and rights, they are endowed with reason and conscience and should

act towards one another in a spirit of brotherhood.

Art.2 provides that everyone is entitled to all the rights and freedoms set forth in the

Declaration without distinction of any kind, such as race, Colour, Sex, language, religion,

Political or other opinion, national or social origin, property, birth or other Status.

Civil and Political - Civil rights include rights such as right to life and liberty (Article 3)

Article 4 says that slavery and the slave trade shall be prohibited in all their forms.

Article 5 embodies that no one shall be subjected to torture or to cruel, in human or degrading

treatment or punishment.

Article 6 to 11 provides Rights to Equality before law and Legal Remedies.

Article 12 says that no one shall be subjected to arbitrary interference with his privacy, family,

home or correspondence, nor to attacks upon his honour and reputation.

Article 13 provides Right to Freedom of Movement to leave any Country and return to his

country.

Article 14 Right to seek asylum

Article 15 Right to Nationality. Article 17 Right to own property


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Article 18 provides Right to freedom of Thought, Conscience and Religion, Article 19 :- Right to

Freedom of opinion and Expression Article 20 and 21 provides Right to freedom of peace

Assembly and Association.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS :-

Article 22 :- Economic, Social and Cultural rights include the Right to Social Security.

Art 23 :- Right to work, free choice of employment.

Art 26 :- right to Education

Art 27 :- Right to enjoy Arts and share in Scientific achievement

Concluding Articles :- These articles recognize that everyone is entitled to a social and

international order in which the rights and freedoms set forth in this Declaration can be fully

realized (Article 28) and they stress the duties and responsibilities which the individual owes to

the Community (Article 29). Lastly, Article 30 provides that nothing in the Declaration may be

interpreted as implying for any state, group, or person any right to engage in any activity or to

perform any act aimed at the destruction of any of the rights and freedoms set forth in the

Declaration.

The Declaration was originally conceived of as a statement of objectives to be achieved by

Governments and as such, not part of binding law. But now, 54 years later, it is accepted by

so many states that it is considered to be an international standard against which their

behaviour is measured.

Q.3 Define State and non state entities point out the difference between Vassal Status and

protectorates.

Ans State - State is the main Subject of International law.

According to Salmond,” State is a Community of people which has been

established for some objectives such as, Internal order and external Security.”

Different kinds of States and Non-State entities

1. Confederation:-It is formed by states who are independent in the international field. Under

International law Confederation has no international personality the states forming

Confederation are not treated as International persons.


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2. Federal State:- Generally a federal state is formed by the merger of two or more sovereign

states. A federal state is an international person under international law.

3. Condominium:- Condominium is a territory where two or more states exercise Sovereignty.

New Hebrides is a good example of Condominium.

4. Vassal State:- A Vassal state is a state which is under the Suzerainty of another state. Its

Independence is so restricted that it has no Importance under international law.

5. Protectorate State:- A protectorate state is a state which entrusts some of its important

functions to another Sovereign State. It retains a Sufficient measure of Sovereignty and

remains a state under International law. For example, Bhutan is a protectorate state of India.

6. Trust Territories-Composition of the TRUSTEESHIP COUNCIL:- As provided under Article

86 of the U.N. charter, Trusteeship Council Comprises of the following members of the U.N.

(a) Those members who are administering trust territories‟.

(b) The permanent members of the Security Council as are not administering Trust territories

and

(c) As many other members elected for three years‟ term by the general Assembly as may be

necessary to ensure the total number of members of the Trusteeship Council is equally

divided between those members of the United Nations which administer trust Territories

and those which do not.

FUNCTIONS AND POWERS

(1) It may consider reports submitted by the Administering Authority.

(2) It may accept petitions and examine in Consultation with the Administering Authority.

(3) It may provide for periodic Visits to the respective Trust Territories at times agreed upon with

the Administering Authority.

The Trusteeship Council has done Commendable work. The number of

inhabitants living in trust Territories has been Constantly decreasing every year. The

last territory was Palau which became a member of the U.N. in December1994.


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Difference between protectorate and Vassal state

Protectorate State generally

1. A protectorate State generally entrusts

its defence, external

affairs etc. to another State.

2. A protectorate State remains a

State Under International law.

3. Since a protectorate State retains a

sufficient measure of Sovereignty,

declaration of war or peace made by

the protecting State with another State

is not binding upon it.

Vassal State

1. Vassal State is generally

autonomous in its internal matters

, but is Completely dependent upon

another state in external matters.

2. A Vassal State is not treated a State under

international law.

3 A Vassal State is bound by treaty of

war or peace entered into by the State

under whose international

guardianship in remains.

Q.4(a) Explain the Maxim Pacta Sunt Servanda.

(b) Write a short note on United National Commission of Human Rights.

Ans.(a) Pacta Sunt Servanda – According to Anzillotti, the binding force of International law is

founded on the fundamental principles known Pacta Sunt Servanda, which means that the

agreements entered into by the States must be followed by them in good faith. This principle,

though a fundamental and very important principle of International law, fails to explain the

binding force of customary rules of international law.

as aply remarked by an author, “The realization that international customary law does not rest

on agreements and that the tenet of “pacta Sunt Servand” is itself a rule of decided on a

formula which takes into account of usage as the fact which is the origin of the rules of

International Law. “States ought to behave a they have customarily behaved.”

(b) U.N. Commission on Human rights – The Commission on Human Rights was established by

the Economic and Social Council in February, 1946. It is the nearest approach to permanent


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machinery for the supervision of the “problem of protection” of human rights. It is one of the six

functional commission established by the Economic and Social Council. Under its terms of

reference the commission was directed to prepare recommendations and reports on (1) an

International Bill of Human Rights (2) International Conventions or declarations on Civil

liberties : the status of women, freedom of information and similar other matters.

3. The protections of minorities

4. The prevention of discrimination on the basis of race, sex, language or religion, and

5. Other matters concerning human rights.

The Commission‟s terms of reference are extensive : under them, it may deal with any

matter concerning human rights. The Commission makes studies and recommendations

either on its own initiative or at the request of the General Assembly or the Economic and

Social Council. The Commission consists of 43 members elected for 3 years terms and meets

annually or a period of five or six weeks. At present, these are 53 members of the

Commission. All Commission decisions are made by a majority of the members present and

voting. The Commission submits a report on each session to the Economic and Social Council.

At its first session in 1947, the Commission established the Sub-Commission on prevention of

Discriminations and protection of minorities. 842

the commission was held from 14th March to 22nd April, 2005 and discussed the report of the

Commission in Iraq.

Q.5 How for the individual can be said the subject of International Law.

Ans. In recent times several treaties have been entered into wherein certain rights have been

conferred and duties have been imposed upon the individuals. In this connection following

may be noted :

(i) Pirates – Pirates are treated as enemies of mankind under international law. Every

State can apprehend and punish them.

(ii) Harmful acts of Individuals – Under certain circumstance States are responsible for

the harmful acts of their individuals. If a person causes harm to the personal property of

the Ambassador of another State, then under international law the State is responsible

for his act. Such persons are, therefore, given stringent punishment.


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(iii) Foreigners – To some extent international law regulate the conduct of foreigners. It is

the duty of each State to give them those rights which it generally confers upon its own

citizens.

(iv) War Criminals – War criminal can be punished under international law. According to

Nuremberg and Tokyo Tribunals, since war crimes are committed by the individuals, it is

by punishing them the provisions of international law can be enforced.

(v) Espionage – Espionage is a crime under international law and, therefore, spies can be

apprehended and punished.

(vi) The United Nations Charter gives a place of importance to the individuals. An individual

of any member State of the U.N. who claims to be the victim of violation of Human

Rights by his own State may send a petition to the Commission through the Secretary-

General of the U.N.

(vii) The 1965 Convention on the Settlement of Investment Disputes between the State and

the Nationals of other States is a glaring example of such benign trend.

Thus slowly and gradually individuals are occupying an important place under

international law

Q.6 Write a short note on –

(i) (W.T.O.) World Trade Organisation

(ii) UNESCO

Ans. Establishment of WTO – As a result of the culmination of Uruguary Round of GATT

Negotiations for more than seven years at Marrakesh (Morocco) on April 15, 1994. The

new World Trade Organisation (WTO) which came into effect on January 1, 1995,

replaced the GATT.

W.T.O. is in fact the main organ for implementation of Multilateral Trade

Agreements.

Membership – There are two types of members –(i) original; and (ii) other members. The

original members comprise :

(a) The members of the GATT as on the date of entry into force of the agreement : and


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(b) the European Communities which accept this Agreement and the Multi Trade

Agreements and of which schedules of Concessions and Commitments are annexed

to the Gatt 1994 and four which also schedules of specific commitment are General

Agreement on Trade in Services.

Withdrawal from Membership - Any member may withdraw from this agreement by giving a

written notice to the Director-General of the W.T.O. The withdrawal takes effect after the expiry

of six months.

Structure – The W.T.O. consists of following bodies –

(i) The Ministerial Conference – It is the highest body comprising of the representatives

of all members. It is the executive of the W.T.O. and carries out functions of W.T.O. It

meets atleast once every two years.

(ii) The General Council – It is also comprised of the representatives of all members. It

meets between the meetings of Ministerial Conference and carries out the functions of

the W.T.O.

(iii) The Dispute Settlement Body

(iv) Trade Policy Review Body

(v) The Committee on Trade and Development, the Committee on Balance of

Payment Restrictions and Committee in Budget and Administration

(vi) Bodies provided under the plurilateral Trade agreements.

(vii) The Secretariat – The Secretariat is headed by a Director-General appointed by the

Ministerial Conference. On May 13, 2005, Pascal Lamy was elected the Director

General. He took over from Supachai Panit Chipakdi on September 1, 2005.

Functions of W.T.O. – According to Article III of the Agreement following are the

functions of the W.T.O.

(i) To facilitate the implementation operation, administration and the promotion of the

agreement (i.e. of 1994) and the Multilateral Trade Agreement and also of the

Plurilateral Trade Agreements;

(ii) To administer the rulers and procedures governing the settlement of disputes;

(iii) To administer the Trade Policy Review Mechanism (TPRM);


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(iv) To cooperate with International Monetary Fund (IMF), the International Bank for

Reconstruction and Development [IBRD or the World Bank] and its affiliated agencies to

bring about greater coherence in global economic policy making.

(ii) United Nations Educational<scientific and Cultural Organization. (UNESCO).- For

the establishment of the United Nation Educational, Scientific and Cultural Organization

a conference was held in London in November, 1945. It was finally established on

November, 14, 1946. Thereafter it was brought into relationship with the United Nations

through a special agreement which was approved by the General Assembly on

December, 14, 1946.

Objectives and Functions.- Article 1 of the Constitution of the United Nations

Educational, Scientific and Cultural Organization provides, “ Since wars begin in the

minds of men, it is in the minds of men that the defences of peace must be

constructed.” It aims to contribute for the maintenance of international peace and

security by creating respect for the rule of law, human rights and fundamental freedoms

through the medium of education, science and culture.

Composition.- Each member of the United Nations can become its member. Other

States may be made the member of the United Nations Educational, Scientific and

Cultural Organization through two-thirds majority of General Conference.

Q.7(a) How the Chairperson and members of National Human Rights are appointed under the

Human Rights Protection Act, 1993?

Ans. National Human Rights Commission :- Protection of Human Rights Act provides for the

establishment of the National Human Rights Commission consisting of the following :

(a) A chairperson who has been the Chief Justice of the Supreme Court;

(b) One member who is, or has been the Chief Justice of the Supreme Court.

(c) One member, who is or has been the Chief Justice of a High Court.

(d) Two members to be appointed amongst persons having knowledge of or practical experience

in matters relating to human rights.

Besides these, the chairpersons of National Commission for minorities the National

Commission for the Scheduled Casts and Scheduled Tribes and the National Commission


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for women shall be deemed to be the members of the commission for the discharge of the

functions specified in clauses (b) to (j) of Section 12 of the Act.

The headquarters of the National Human Rights Commission (NHRC) is located at

Delhi. The Chairperson and other members of the Commission are appointed by the President

by Warrant under his hand and seal after obtaining the recommendations of Committee

consisting of (1) Prime Minister (b) Speaker of the House of people (c) Minister in charge of

Home Affairs in the Government of India (d) Leader of the Opposition in the house of people

(e) Leader of opposition in the Council of States and (f) Deputy Chairmen of the Council of

State. The Chairperson and Members hold office for a term of five years.

Q.B What are the functions of the Human Rights Commission?

Ans Functions of the National Human Rights Commission :- According to Section 12 of the

Act the Commission shall perform the following functions :-

(a) Inquire, Sue Motu or on a petition presented by a Victim or any other person on his behalf into

complaint of –

(i) Violation of Human rights or abetment thereof; or;

(ii) Negligence in the prevention of such violation by a public servant;

(b) Intervene in any proceeding involving any allegation of violation of human rights pending

before a court with the approval of such Court;

(c) visit under intimation to the State Government any jail or any other institution under the control

of the State Government, where persons are detained or lodged for purposes of treatment

reformation or protection to study the living conditions of inmates and make recommendations

thereon;

(d) review the safeguards provided by or under the constitution or any other law for the time being

in force for the protection of human rights and recommend measures for their effective

implementation.

(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and

recommend appropriate remedial measures;

(f) Study treaties and other international punishments on human rights and make

recommendations for their effective implementation;

(g) Undertake and promote research in the field of human rights;


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(h) spread human rights literacy among various sections of the society and promote awareness of

the safeguards available for the protection of these rights through publications, media,

seminars and other available means;

(i) encourage the efforts of non-governmental and institutions working in the field of human right:

and

(j) such other functions as it may consider necessary for the promotion of human rights.

Under Section 20 of the protection of Human Rights Act, 1994, the National Human Right

Commission is required to submit an annual report to Central Government and to the State

Government, concerned and may at any time submit special reports on any matter which in its

opinions, if of such urgency or importance that it should not be deferred till submission of the

annual report. After the annual report is submitted by the commission the Central Government

and the State Government, as the Case may be, shall cause the annual and special reports of

the Commission to be laid before each house of parliament or the state Legislature

respectively, as the Case may be, along with a memorandum of action taken or proposed to be

taken on the recommendations of the Commission and the reasons for non-acceptance of the

recommendations, if any.

Q.8 International Law is Law in proper sense. Critically examine the statement. Give

your suggestions for improving International Law.

Ans. Whether International Law is law in the true sense of the term or not – The

Controversy whether International Law is true Law or not depends upon the definition of

the word „law‟. As remarked by “Prof. Glanville L.Williams, The largest of

jurisprudential controversy that as to the word „law‟ is a verbal dispute and nothing else.” If

we subscribe to the view of Hobbes, Austin and pufendorf, that law is command of

sovereign enforced by superior political authority, then International law cannot be

included in the category of law. On the other hand, if we subscribe to the view that the

term „law‟, can not be limited to the rules enacted by the superior political authority, then

international law can be included in the category of law.

The definition of law given by Austin is not correct. In the words of Prof.

Oppenheim, “This definition is not correct. It does not cover that part of Municipal law

which is termed as unwritten or customary law. There is, in fact, no community and no


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State in the word which exist with written law only, “In his view, law is, “a body of rules of

human conduct within a community which by consent of this community shall be enforced

by external power.”

Views of jurists, who regard international law as really law may be summed up as

follows –

(1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. It has

been established by Historical Jurisprudence that in many communities a system of law

existed although such communities lacked a formal legislative authority. As pointed out by

Starke, such law did not differ from any State law with true legislative authority.

(2) As pointed out by Oppenheim, in practice, international law is recognized as law by the States

and they consider it binding on them.

(3) The Austiniam concept of law fails to account for the customary rules of International law.

(4) In some States (for example U.S.A. and U.K.), international law is treated as a part of their own

law.

(5) International conferences and conventions treat international law as law in the true sense of

the term,

(6) The statute of International Court of Justice provides that the court shall decide such disputes

as are submitted to it in Accordance with International Law.

(7) Those who deny the legal character of International law emphasize that it is frequently

violated. It is true that International law is frequently violated but it does not mean that it is not

law. Even State or municipal law is frequently violated. Frequency of violations of law and

the question of international law being law are two different things. Frequency of violation is

connected with the weakness or strength of the enforcement machinery. Though State or

municipal law is frequently violated, it is never said that it is not law. What is true of municipal

law should also hold good for International law.

Weakness of the International Law – Following are the weakness of the International Law –

1. It lacks effective authority to enforce its rules.

2. It lacks effective legislative machinery.

3. The International Court of Justice has no compulsory jurisdiction in the true sense of the terms.


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4. The sanctions behind international are very weak.

5. It cannot intervene in the matters which are within the domestic jurisdiction of States.

6. Many rules of International law are uncertain and vague.

7. International has failed to maintain order and peace in the world.

Suggestions for improving International Law –

(1) The international Court of Justice should be given compulsory jurisdiction in the true sense of

the term.

(2) An International criminal court should be established to decide cases of International crimes.

(3) International Law should be properly Codified and Scientifically revised from time to time.

(4) The machinery to enforce the decisions of the World Court should be strengthened.

(5) The power and scope of the activities of the International law Commission should be

expanded.

(6) The doctrine of judicial precedents should be applied in the field of International law.

(7) The legislative activities of the General Assembly should be further enlarged.

(8) The U.N charter should be amended as to authorize the U.N to intervene in such matters with

the domestic jurisdiction of States as are of international concern.

Q.9 What do you understand by „Intervention‟? What were the different grounds of

intervention.

Ans. Meaning and definition of Intervention:- The term „Intervention‟ has been defined by

Oppenheim in the following words: “ Intervention is dictatorial interference by a state in the affairs

of another state for the purpose of maintaining or altering the actual Condition of things”. In

principle, international law prohibik intervention. But as pointed out by Prof. Hans Kelsen,

international law does not prohibit intervention in all circumstances.

Article 2 (4) of the United Nations charter propounds the principle of non-intervention by states

in the following words,” All members shall refrain in their international relations from the threat or

use of force against the territorial integrity or political Independence of any state or in other

manner in Consistent with the purpose of the United Nations Charter.”

The principle of non-intervention by the United Nations finds incorporated in Article 2 (7) of the

United Nations charter.Article2 (7) provides:- “Nothing contained in the present charter Shall


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authorize the United Nations to intervene in matters which are essentially within the domestic

jurisdiction of any state or shall requires the members to submit such matters to settlement under

the present charter, but this principle shall not prejudice the enforcement measures under chapter

VII.”

Grounds of intervention

(1) Self-defence:- It has been a Valid ground of intervention by one state in the affairs of

another state for a long-time. But as pointed out by Oppenheim, the use of force is self-

defence can by justified only when it is necessary for self preservation. In this Connection

Mr. Webster, the Secretary of United States of America propounded a very important

principle in the famous case,” The Caroline”.

In this case Mr. Webster declared that the necessity of self defence should be “instant”,

overwhelming leaving no choice of means and no moment for deliberation.”

The Unites Nations charter Confers upon every state the right if individual or collective self

defence under Article 51. But the right of self-defence under Article 51 is subject to

following Conditions‟.

(1) „There should be an armed attack.

(2) The right exists until the Security Council has taken any action:

(3) It should be reported to the Security Council:

(4) It is subjected to the review by the Security Council:

(5) The right shall not affect the responsibility of the Security Council for the

maintenance of peace and security:

(6) This right is not available against a non-member of the United Nations.

(2) Intervention on Humanitarian Grounds – The history is full of cases wherein intervention

was permitted on humanitarian grounds. England, France,and Russia jointly intervence in

the conflict of Greece and Turkey in 1827 to check violation of human rights. In 1860

intervention was made in favour of Christians of Mount Lebanon. In 1878 intervention was

made to protect the independence of a Balkan State. It is clear that the intervention on the

ground of the Violation of Human Rights can be permitted, only when the violation of

human rights in a member state poses a threat to international peace and security, that is

to say, U.N. can take action under chapter VII only on the ground of international peace


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and security. Unless and Until Security Council first determines that the Violation of

human rights poses a threat to international peace and security, action under Chapter VII

cannot be taken Thus, on the ground of human rights alone even the U.N. cannot

intervene in the affairs of a member state.

(3) To enforce Treaty Rights – This used to be a valid ground in the past, but in the

presence of the United Nations Charter this has ceased to be a valid ground for

intervention.

(4) Intervention to prevent illegal intervention – In past this used to be valid ground but the

United Nations charter has greatly affected intervention on this account also.

(5) Balance of Power – Intervention on the ground of balance of power used to be a valid

ground in the past but is no more a permissible ground of intervention in the presence of

the United Nations Charter.

(6) For protection of persons and property – The charter does not recognize this ground

and permits intervention only on the ground of self-defence.

(7) Collective Intervention – Under the United Nations Charter Collective intervention means

the intervention by the United Nations as permitted by the provision of the charter.

(8) Intervention to maintain International Law - The Charter nowhere provides that an

intervention can be mad to maintain international law. The charter simply provides for

intervention on the ground of maintaining or restoring international action peace and

security which may come under the broad “international law”. But no intervention is

permissible for maintaining international law as much.

(9) Intervention in civil wars – Generally speaking Article 2 (7) of the charter prohibits united

nations from intervening in the domestic affairs of any State, and as such ordinary, United

Nations cannot intervene in the civil war of any State. But if the civil war, assumes such

magnitude that it poses threat to international peace and security. The United Nations may

intervene because Article 2(7) which prohibits United Nations from intervering in the

domestic affairs of any State also provides that the Principal of non-intervention by the

United Nations in the international affairs of any State shall not prejudice the enforcement


19

measures under chapter 7 of the charter. It may be noted that enforcement measures

under chapter 7 are taken by the Security Council to maintain or restore international

peace and security.

Thus, broadly speaking, there are only two grounds (one for member States of the

U.N. and one for the United Nations) ON which intervention is permissible under the

charter of the United Nations.

Q.10 Define Recognition. What are conditions for recognition of a new State. Critically

examine both – Constitutive and Declaratory theory in relation to the nature of

recognition under International law.

Ans. Meaning and Definition of the term „Recognition‟ :-

According to Prof. Oppenheim :- “ In recognizing a State as a member of international

community the existing states declare that in their opinion the new State fulfills the

conditions of statehood as required by International Law.”

The Institute of International Law has defined the term „recognition‟ in the following words :

“It is the free act by which one or more States acknowledge the existence of the

definite territory of a human society, politically, independent of any other existing State and

capable of observing obligations of International Community.”

Conditions for recognition of a new State : According to Kelson , a Community to be

recognized as an international person must fulfil the four conditions

(a) The Community must be politically organized.

(b) It should have control over a definite territory.

(c) This control should tend towards permanence; and

(d) The Community thus constituted must be independent.

But International law does not provide as to how those essential conditions are to be

determined. International Law leaves the members of International Community free to

determine whether the States to be recognized contain essential conditions of Statehood. It is

because of this reason that recognition is very often said to be a political diplomatic function.


20

THEORIES OF RECOGNITION :- There are two main theories of recognition :-

(1) Constitutive Theory

(2) Declaratory or Evidentiary Theory

(1) Constitutive Theory :- According to Oppenheim – “a State is, and becomes, an

international person through recognition only and exclusively”. According to this theory,

recognition clothes the recognized State with duties and rights under international law,

Recognition is a process through which a political community acquires international

personality of becoming a member of the family of nations. Hegel, Anzilloti Holland,

Oppenheim, etc are the chief exponents of this theory. Judge Lauterpacht has written that

there is a legal duty on the part of the States to recognize any community that has in fact

attained Statehood.

Criticism :- This theory has been severely criticized by many jurists. In practice, States do

not accept any obligation to recognize a community that has attained statehood, although

they may normally recognize it. According to this theory, unrecognized State can have

neither rights nor duties under International law. This is a very absurd suggestion.

(2) Declaratory Theory :- According to this theory, statehood or the authority of the new

government exists as such prior to and independently or recognition. Recognition is merely

formal acknowledgement through which established facts are accepted. The act of

recognition is merely declaratory of an existing fact that a particular State or government

possess the essential attributes of statehood as acquired under International law. The

chief exponents of this theory are Hall, Wagner, Brierly, Pitt Carbett and Fisher.

Brierly has remarked that :- the granting of recognition to a new state is not constitutive,‟

but a declaratory‟ act.

Criticism :-The view that recognition is only a declaratory of an existing fact is not

completely correct, In fact when a state is recognized, it is declaratory act. But the moment


21

it is recognized, there ensue legal effects of recognition which may be said to be of

constitutive nature.

Conclusion :- On the basis of the above discussion it may be concluded that recognition is

declaratory as well as constitutive.

Oppenheim has admitted that :- “recognition is declaratory of an existing fact but

Constitutive in nature”.

Q.11(a) Write a short note on International Criminal Court.

(b) Write a short note on Hijacking.

Ans.(a) International Criminal Court

Establishment of the Court :- Article 1 of the Statute which establishes the International

Criminal Court provides that it shall be a permanent institution and shall have power to

exercise jurisdiction over persons for the most serious crimes of international concern, as

referred to in this statute and shall be complimentary to national criminal jurisdiction. It is

further provided that the court shall be brought into relationship with the U.N. through an

agreement to be approved by the Assembly of State parties to this and thereafter

concluded by the President of the court on its behalf. The seat of the Court shall be

established at the Hague in the Netherlands.

Jurisdiction :-The jurisdiction of the Court shall be limited to the most serious crimes of

concern to the international community as a whole. The Court has jurisdiction in

accordance with the statute with respect to the following crimes;

(1) The Crime of genocide

(2) Crimes against humanity;

(3) War Crimes;

(4) The crime of aggression.

(B) Hijacking :_


22

Meaning and definition of the term „Hijacking‟ :- As pointed out by “Allona E.Evans,

“Aircraft Hijacking is a contemporary addition to the roster of International and national crimes

and the necessity for its control at international and national level is only beginning to be

recognized by the States”. In wider sense, hijacking is an act against the safety of traffic in the

air, is comparable to piracy, an act against the safety or traffic on the open sea.

Article 11 of the Tokyo Convention, 1963, which came into force on December 4, 1969,

provides;

1. When a person on board has unlawfully committed by force or threat thereof an act of

interference, Seizure or other wrongful exercise of control of an aircraft in fligh or when an

act is about to be committed, contracting states shall take all appropriate measures to

restore control of the aircraft to its lawful commander or to preserve his control of the

aircraft.

2. In the cases contemplated in the preceding para, the contracting state in which the aircraft

lands shall permit its passengers and crew to continue their journey as soon as practicable

and shall return the aircraft and the cargo to the person lawfully entitled to possession.”

The essentials elements of hijacking are as follows :

1. use of force or threat thereof, or any other form of intimidation committing the offence of

any attempt to do so;

2. the use of the means mentioned in (1) or attempts to use them should be for the purpose of

seizing or exercising control of an aircraft;

3. The use of force or threat there of is unlawful, &

4. The act mentioned above must be committed while the aircraft is in flight.

Q.12 What are the different categories of diplomatic agents ? Describe in short different

immunities and privileges of these agents in International law.

Ans. Classification :- In accordance with their status the following classification of diplomatic

agents was first made in the congress of Vienna, 1815:

1. Ambassador and Legates;

2. Minister pleni – potentiary and Envoys Extra- Ordinary; and

3. Charged‟ affairs.


23

Some change was brought about in the above classification by the Congress of Aix-la –

Chappele, 1818. In this congress a fourth Category of diplomatic vagent namely. Minister

Resident was added and kept on the third place in order of priority. Thu the diplomatic agents

were the classified as follows :

(i) Ambassadors and Legates: - They are diplomatic agents of first category and are the

representatives of completely Sovereign States. The representatives appointed by Pope

are called legates.

(ii) Ministers pleni – Potentiary and Envoys Extra – Ordinary –Being the second category of

diplomatic agents, these representatives enjoy lesser privileges and immunities as

compared with those of the first category.

(iii) Minister-resident:-This Category was added in 1818 the Congress of Aix –La Chappele.

They are below the second Category and enjoy lesser privileges and immunities.

(iv) Charged‟ affairs – Charge d‟ affairs are the diplomatic agents of the last Category. They

are not appointed by the head of the State. They are appointed by the Foreign Minister of

State and in rights and duties they are Considered below the Ministers-Resident.

Article 14 of the Vienna Convention on Diplomatic Relations,1961, now once again

recognizes the following three Categories of diplomatic agents:-

1. Ambassadors or Nuncios accredited to Heads of States, and other Heads of Missions of

equivalent rank:

2. Envoys, Minister and Internuncios accredited to Heads of States, &.

3. Charged‟ affairs accredited to Minister of Foreign Affairs.

Immunities and Privileges of Diplomatic Agents;- Following are the immunities and

privileges of diplomatic agents.

(1) Inviolability of the person of Envoys :- This principle has been incorporated in

Article 29 of the Vienna Convention on the Diplomatic Relations,1961. Article 29

provides, “The person of diplomatic agent shall be inviolable. He shall not be liable

of any form of arrest or detention, the receiving State shall treat him with due respect

and shall take all appropriate steps to prevent any attack on his person, freedom or

dignity”.

(2) Immunity from criminal Jurisdiction of courts- The diplomatic agents are

immune from criminal jurisdiction of the Court of the States in which they are


24

appointed, if a Case is filed in a court of law against diplomatic agent, it is sufficient

for such an agent to Inform the court that he is immune from the jurisdiction of the

Court.

(3) Immunity from civil Jurisdiction- The diplomatic agents are also immune from the

jurisdiction of the Civil Court, Suits for recovery of debts, breach of Contract, etc.

cannot be filed against diplomatic agents.

(4) Immunity regarding residence – The residences of diplomatic agents are generally

regarded inviolable.

(5) Immunity from being present as witness- Diplomatic agents cannot be presented

as witness in the Court. But a Diplomatic agent may himself waive this immunity and

personally present himself in the Court as a witness.

(6) Immunity from taxes- Under International Law the diplomatic agents are also

immune from payment of taxes, etc. These immunities are incorporated in Art 34

to36 of Vienna Convention on the Diplomatic Relation.

Relations :

(7) Immunity from police rules – The diplomatic agents are also immune from the

police rules of the State in which they are appointed.

(8) Right to worship – The diplomatic agents enjoy the right to worship. They are free

to follow any religion or perform the religious rituals and ceremonies, etc. in their

own way.

(9) Right to exercise control and jurisdiction over their officers and families –

(10) Right to travel freely in the territory of the receiving State under 26 of the

Vienna Convention on Diplomatic Relations, 1961, the diplomatic agents can travel

freely in the territory of the receiving States.

(11) Freedom of Communication for official purposes :- According to Article 27 of

the Vienna Convention on Diplomatic Relations, 1969, the diplomatic agents have

freedom to communicate with the home State in connection with their functions and

duties.

(12) Immunity from the local and military obligations – This provision finds

mention in Article 35 of the Vienna Convention on Diplomatic Relations, 1961.


25

(13) Immunity from Inspection of Personal Baggage – Article 36 (2) of the Vienna

Convention provides that personal baggage of diplomatic agent be exempt from

inspection, unless there are serious grounds for presuming that it contains articles

not covered by exemptions mentioned in paragraph of this article or articles the

import of which is prohibited by the flaw or controlled by the quarantine regulations

of the receiving State.

(14) Immunity from Social Security provisions :- According to Article 33 of the

Vienna Convention, a diplomatic agent shall with respect to services rendered for

the sending State be exempt from social security provisions which may be in force in

the receiving State.

Duties of Diplomatic Agents : Following are the duties of diplomatic agents –

(1) Duty to respect laws and regulations of the receiving State ;

(2) Duty not to interfere in the internal affairs of the State;

(3) Official Business to be conducted with or through the Minister of Foreign Affairs

of receiving State or such other Ministry as may be agreed;

(4) Premises of Mission not to be used in any matter incompatible with the function

of the Mission; and

(5) Diplomatic agents not to practice for personal profit any professional or

commercial activity.

Q.13 How far various human rights have been included within the Constitution of India.

Explain

(Reference International law and Human Rights (Nutshell)13th edition, central law agency.

Ans. The Indian Constitution bears the impact of Universal Declaration of Human Rights, 1948.

When the Constitution of India was being drafted and adopted.

The universal declaration had already been passed by the General Assembly of

the U.N. The Supreme Court of India has recognized the influence of the universal

Declaration of Human Rights on the Indian Constitution. he Indian Constitution

incorporates human rights

in following three ways :

(1) Specifically inumerated Rights.

(2) Other Rights or Rights not specifically Enumerated.


26

(3) Unenumerated Rights (and also not yet recognized rights).

(1) Specifically Enumerated Rights – By specifically enumerated rights we mean human

rights which find mention in international instruments such as Universal Declaration of

Human Rights and International Covenants on Human Rights and are also enumerated in

Indian Constitution either as fundamental rights or Directive Principles of State Policy. For

example a number of human rights which have been proclaimed in the Universal

Declaration on International Covenants on Human Rights have also been enumerated in

Indian Constitution. The following Charts will make the position clear.

(A) Civil and Political Rights :

_____________________________________________________________________

Universal Declaration of Human Rights Indian Constitution

_____________________________________________________________________

1. Right to Life and Security of Person (Article 3) ……………………………. Article 21

2. Prohibition of slavery, slavery trade etc. (Article 4) …………………………Article 23

3. Equality before law and non-discrimination (Article 7) ……….….Arts. 14 and 15(1)

4. Right to effective remedy (Article 8) …………………………………….…….Article 32

5. Right against arbitrary arrest, detention etc. (Article 9) ……………………..Article 22

6. Right against ex post facto laws [(Article 11 (2)]……………………..……Article 20(1)

7. Right to freedom of movement [(Article 13(1)] …………………….….Article 10(1) (d)

8. Right to own property and not to be deprived of

Property (Article 17)…………………………………………………..……Article 19(1)(f)

[ But it was omitted by the

Constitution of India, (42nd

Amendment) Act, 1978]

9. Right to freedom of thought, conscience and

Religion (Article 18)………………………………………………………….Article 25(1)

10. Right to freedom of opinion and expression

[(Article 19 ......................... ……………………………………………. Article 19(1)(a)

11. Right to freedom of peaceful assembly and

Association [(Article 20(1)] ……………………………………….……..Article 19(1)(b)

12. Right to equal access to public service [Article 21(2)] …………….……Article 16(1)


27

13. Right to social security (Article 22)…………………………………….…..Article 29(1)

14. Right to form and to join trade Unions [Article 23(4)] ……………… Article 19(1)(c)

(B) Economic, Social and Cultural Rights :

____________________________________________________________________

Universal Declaration of Human Rights Indian Constitution

1. Right to work, to free choice of an employment,

To just and favourable conditions of work etc.

[ Article 23(1) ………………………………………………………………….. Article 41

2. Right to equal pay for equal work [Article 23(2)] …………………….…..Article 39(d)

3. Right to just and favourable remuneration [Article 23(3)] …………………Article 43

4. Right to rest and leisure (Article 24)………………………………………….Article 43

5. Right to everyone to a standard of living adequate

For his and his family [Article 25(1)]…………………………. Article 39(a) & Article 47

6. Right to education and free education in the „

Elementary and fundamental stages [Article 26(1) …………………Articles 41 & 45

7. Right to a proper social order (Article 28) ………………………..…………..Article 38

(C) Civil and Political Rights :

_____________________________________________________________________

International Covenant on Civil and Political Rights) Indian Constitution

1. Right to life, liberty security of person [Articles

6(1) & 9(1)] …………………………………………………………………….Article 21

2. Freedom from forced and compulsory labour [Article 8(3)] ……………….Article 23

3. Freedom from unlawful arrest and detention [Article 9(2), (3) & (4)]……… Article 22

4. Liberty of movement and choice of residence [Article 12(1)] ………..Article 19(1)(d)

5. Equality before courts & tribunals [Article 14(1)] ………………………….…Article 14

6. Right not to be compelled to testify himself or to

Confess guilt [Article 14(3) (g)]………………………………….…..Article 20(3)

7. Right against Double Jeopardy [Article 14(7)] ……………………..…….Article 20(2)

8. Right against ex post facto laws [Article 15(1)] …………………….…….Article 20(1)


28

9. Freedom of thought, conscience and religion [Article 18 (1)] ………..…..Article 25

10. Right to hold opinion without interference and right to

Freedom of expression [Article 19(1) & (2)] ……………………Article 19(1)(a)

11. Right to peaceful assembly (Article 21)…………………………………Article 19(1)(b)

12. Right to freedom of association with others

(Article 22(1)] ………………………………………………………………Article 19(1)(c)

13. Right to have access, on general terms of equality

To public service in his country [Article 25(c)] …………………………...Article 16(1)

14. Equality before law & equal protection of law

Without any discrimination (Article 26) …………………………..…..Arts. 14 & 15(1)

15. Right of minorities to enjoy their own culture, to

Profess and practice own religion or-to use their

Own language (Article 27)………………………………………..………Arts. 29 & 30

(D) Economic, Social and Cultural Rights :

________________________________________________________________________

The International Covenant on Economic Indian Constitution

Social and Cultural Rights, 1966

_______________________________________________________________________

1. Equal pay for equal work [Article 7(a)(i)] ……………………………………..Article 39(d)

2. Protection of Children and young persons [Article 10(3)……………………Article 39(f)

3. Right to work [Article 6(1)] …………………………………………….…………. Article 41

4. Right to safe and healthy working conditions and

Right to protection of mothers before child birth

[Arts.7(b) & 10(2)] ……………………………………………………….…………Article 42

5. Right of workers of decent living for themselves

And their families and their right of rest, leisure

And reasonable limitation of working hours [Arts.

7(a)(ii) : 7(d)] ………………………………………………………………………..Article 43

6. Obligation of States to make secondary education

Generally available [Article 13(2)(A)] ……………………………………….……article 45


29

7. Right of to an adequate standard of living for

Himself and his family (Article 11)………………………………………….…….Article 47

The human rights which are incorporated or specifically Indian enumerated in Part III of

the Constitution are of special importance. They are called fundamental rights. They are

fundamental in the sense that they are enforceable by courts. Moreover, they cannot be taken

away or abridged by the Executive or Legislature.

(Reference International Law and Human Rights (Nutshell) the Edition, Central Law Agency)

Q.14 Write a short note on

(a) Five freedoms of Air

(b) Maritime Belt or Territorial water

Ans. Five freedoms of Air – Convention of 1944 declared the following 5 freedoms of the air.

(i) Freedom to fly across the foreign territory without landing;

(ii) Freedom to land for non-traffic purposes;

(iii) Freedom to disembark in foreign territory, traffic originating in the state of the origin of the

craft;

(iv) Freedom to pick-up in foreign country, traffic destined for the state of the origin of the air

craft;

(v) Freedom to carry traffic between two foreign countries. In order to give a concrete shape of

the above five freedoms the following two agreements were entered into-

1. The International Air Service Agreement, 1944 – This agreement incorporated the first two

freedoms.

2. The International Air Transport Agreement, 1944 – This agreement incorporated the last three

freedoms.

The first agreement was signed by the majority of the states whereas the second was signed

only by a few states.

(B) Maritime Belt or Territorial waters – The 1958 Geneva convention on Territorial waters

and contiguous Zone provided that the coastal state exercises sovereignty over that part


30

of the sea which is called Maritime or Territorial waters. The coastal state exercises

sovereignty not only over to territorial waters, but also over air space above it. Art 2 of the

U.N. convention on the law of the sea, 1982 contains a similar provision.

Problems of Width of the Territorial Waters –Up to 18th century the canon-shot rule was

prevalent. According toe Bynker-Shoek, the breadth of the maritime belt extends to that

distance where a conon can fire. Up to 19th century the range of canon-shot was generally

3 miles. In the 19th Century, the 3 mile canon-shot rule became very much prevalent. Scientific

inventions and discoveries made this rule inadequate because the range of canon-shot

increased considerably. According to Grotius the Sovereignty of a coastal state over maritime

belt should extend to that area up to which it can exercise effective control..

Q.15 Write a short note on

(i) Contiguous Zone

(ii) Prize Courts

Ans.(i)Contiguous Zone – Contiguous Zone is that part of the sea which is beyond and adjacent

to the territorial sea of the coastal state. According to Article 53 of the U.N. Convention on

the law of the Sea, 1982, in a zone contiguous to its territorial sea, the coastal state may

exercise the control necessary to – (a) prevent infringement of its customs, fiscal

immigration or sanitary regulation within its territory or territorial sea; (b) punish

infringement of the above regulations committed within its territory or territorial sea. The

contiguous may not extend beyond 24 miles from which the breadth of territorial sea is

measured. That is to say, it is twelve miles beyond the territorial sea.

(ii) Prize Courts – The enemy properties seized in the sea in violation of rules of blockade or

contraband are called prizes. But it should be noted here that simply by seizing such properties

or ship as prize, the belligerent State does not acquire the ownership over them. In order to

acquire ownership over such goods or ships the general practice is that such goods or ship are

produced before the courts which are called Prize-Courts.

Nature of Prize Courts – Prize Courts are national courts. They acquire validity from State

Law. They are not international courts. It was laid down in the famous case of The Zamora


31

that the British Prize Courts are, in fact, national tribunals. They acquire validity from national

orders and notifications.

Jurisdiction of Prize Courts – The Prize Courts derive jurisdiction from the belligerent States

which establish them. The belligerent State establishes there courts because it is necessary

for them to get the validity of the goods or ships seized by them certified or verified by such

courts. Since Prize Courts are national courts, the State law and notifications are binding upon

them.

Q.16 What do you mean by Neutrality? What are the essential elements of Neutrality.

Ans. Meaning and definition of the term „Neutrality” - As pointed out by Oppenheim, neutrality is

“the attitude of impartiality adopted by third States towards the belligerent and recognized by

belligerent, such attitude creating rights and duties between the impartial States and

belligerents”. According to Lawrence, neutrality is the “condition of those States which in time

of war take no part in the contest but continue pacific intercourse with the belligerents.”

According to Starke, “In the popular sense, neutrality denotes the attitude of a State which is

not at war with belligerents and does not participate in the hostilities. In its technical sense,

however, it is more than an attitude, and denotes a legal status of a special nature, involving a

complex of rights, duties and privileges at international law, which must be respected by

belligerents and neutrals alike”.

On the basis of the above definitions we may conclude that there are following three

essential elements of neutrality :

(1) Attitude of Impartiality – Neutral State is a State which does not take part in war and

remains impartial. This impartiality is one of the essential elements of neutrality.

(2) Recognition and Impartiality by Belligerent States –It is also necessary that this

impartiality should be recognized by the belligerent States.

(3) Creation of rights and duties – The recognition of attitude of impartiality of the neutral

State gives rise or creates certain rights and duties. It gives certain rights to neutral States

and also imposes certain duties upon it. Similarly, the neutral State also acquires certain

rights because of the attitude of impartiality and neutrality adopted during the war between

the two belligerent States. These rights and duties are recognized under international law

and should be observed by the belligerent State as well as the neutral States.


32

Q.17 What are the different modes through which new state – territories can be acquired

under international legal system.

Ans. Modes of acquiring territories – Following are the modes of acquiring territories under

International Law :

(1) Occupation – According to Starke, “Occupation consists in establishing sovereignty over a

territory not under the authority of any other State whether newly discovered or an unlikely

case – abandoned by the State formerly in control.”

A leading case regarding occupation is Island of Palamas Arbitration (1929).

In Eastern Greenland case, the Permanent Court of International Justice laid down the

following two tests :

(1) For occupation it is necessary that there must be an intention and will to act as Sovereign

over the territory concerned.

(2) There should be some actual exercise or display of such authority. The facts in this case

are as follows :

(II) Prescription – Yet another mode of acquiring territory is by prescription.

As pointed out by an eminent writer, D.H.N. Johnson, a state may acquire some territory

by prescription only when the following conditions are fulfilled :

(i) When it has not accepted the sovereignty of any other state over the said

territory.

(ii) Possession should be peaceful and uninterrupted.

(iii) Possession should be in public.

(iv) Possession should be for a definite period.

(III) Accretion – As pointed out by Starke, “Title by accretion occurs when new territory is

added mainly through natural causes, to territory already under the sovereignty of the acquired

State,” No formal act or assertion of title is necessary.

(IV) Cession – Territory may also be acquired through cession. It may either be a voluntary act

or in consequence of a war. Cession is generally considered valid only when the sovereignty of

the territory concerned is transferred to another State Case refer In re Berubari Union and

Exchange of Enclave


33

Refer case Union of India v. Sukumar Sengupta (popularly known as Tin Bigha

case).

(V) Annexation – A territory may also be acquired by annexation. It is, however,

necessary that after conquest, sovereignty must be established over the territory. That

is to say, effective occupation after conquest is necessary. This mode has become obsolete

after the commencement of the Charter of the U.N. Article 2 (4) of the Charter make it

incumbent upon Member States to refrain in their international relations from the threat or use

of force against the territorial integrity or political independence of any state, or in any other

manner inconsistent with the purposes of the United Nations. In view of this provisions

acquisition of territory by annexation is no more legal. A recent example of this is the

annexation of Kuwait by Iraq.

(VI) Lease – Yet another mode of acquiring territory is by way of lease. A State may lease a

part of its territory to another State. For example, State of Malta has leased an island to Britain

for some time. Similarly, Panama leased Panama canal area to the U.S.A.

(VII) Pledge – Sometimes a State may pledge a part of its territory to another State in return of

some money.

(VIII) Plebiscite – There is controversy as to whether a territory may be acquired through

plebiscite or not. A recent example of acquiring territory by this mode is that of West Iran which

was claimed both by Netherlands and Indonesia. A plebiscite was held under the auspices of

United Nations.

(IX) Acquisition of territorial sovereignty by newly emerged State – Yet another method of

acquiring territorial sovereignty is through the emergence of a newly independent State. This is

particularly true in case of those states who were previously the colonies of some states. In

this connection the difficulty is how the territory which was previously part of another State ca

acquire sovereignty after becoming independent.

Q.18 Define Asylum. Write its classification.

Ans. Meaning and Definition – By „the term “Asylum” we generally mean the shelter and active

protection which is extended to a political refugee from another State by a State which admits

him on his request. As pointed out by Starke. Asylum involves two elements : (1) A shelter


34

which is more than a temporary refuge; and (2) a degree of active protection on the part of the

authorities which have control over the territory of asylum.

Types of Asylum (i) Territorial asylum; and (ii) Extra-territorial asylum

Territorial Asylum – Territorial asylum is granted by a State in its own territory and is

considered as an attribute of territorial sovereignty of the State which grants Asylum.

This right has also been recognized in the draft declaration on Asylum adopted by the United

Nations Human Rights Commission.

Example of Dalai Lama and his Tibettan followers – The grant of asylum to Dalai Lama and

his followers was an indication of the exercise of territorial sovereignty by India. India as a

sovereign State was within her girths to grant asylum to Dalai Lama and his followers in the

territory of India.

Example of influx of refugees from Bangladesh – As pointed out earlier, each sovereign

State can admit or grant asylum to any individual within its territory. India was within her right

to grant asylum to millions of refugees from East Pakistan (Now Bangladesh) who fled from

their native land due to repressive policies followed by and ruthless prosecution caused by the

military regime of General Yahya Khan.

Extra-territorial or diplomatic asylum – A State may also grant asylumin its Embassy in

foreign countries or in its public vessels. Extra-territorial or diplomatic asylum may be classified

into following categories :

(a) Asylum in foreign Legation or Diplomatic Embassies – Since granting of diplomatic

asylum involves a derogation from the sovereignty of the State international law ordinarily

does not recognize a general right of a head of mission to grant asylum in the premises of

legation.

In the view of Starke asylum may be granted in the legation premises in the following

exceptional cases :

(i) Asylum may be granted, for a temporary period, to individuals who are physically in

danger from mob-violence or in case of fugitive who is in danger because of political

corruption in the local State.

(ii) Asylum may also be granted where there is a well-established and binding local

custom.


35

(iii) Asylum may also be granted if there is a special a treaty between territorial State

and the state of the legation concerned.

(b) Asylum in Consular premises – The above principles also apply in case of grant of

asylum in consular premises.

(c) Asylum in the premises of International Institution – Generally speaking 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 violence.

(d) Asylum in War Ships – There is a controversy in regard to the grant of asylum in War

Ships. Some writers are of the view that asylum can be granted in war ships in the territorial

waters of a Coastal State.

(e) Asylum in Merchant Vessels – Since merchant vessels do not enjoy immunity from

local jurisdiction, they are not competent to grant asylum to local offenders.


36

Important Questions

Q.1 Explain in brief the object short title extent and commencement of the

Protection of Human Rights Act 1993.

Q.2 Write a critical envoy on universal declaration of Human rights 1948.

Q.3(a) How the Chairperson and members of National Human rights.

(b) Describe relevant provisions of the Protection of Human Rights Act 1993

regarding the tenure, conditions of service and the removal of above

mentioned members of the commission.

Q.4 What do you understand and by the term all facts and all fure recognition is

there any distinction between these two types of recognition.

Q.5 Write a short note on Indian

(A) Territorial Waters

(B) Write a short note on Amnesty International.

Q.6 International Law is Law in Proper Sense. Critically Examine the statement

is it true to call it a weak law.

Q.7 Define State and non state entities Point out the difference between vassal

status and protectorates.


37

Q.8(a) Explain the Maxim Pacta Sunt Servanda.

(b) Write a short note on United National Commission of Human rights.

Q.9 Attempt a critical energy on Universal Declaration of Human Rights 1948.

Q.10(A)What are the functions of the National Commission for minority Act 1992.

(B) Duties of Prize Courts.

Q.11 What are the different sources of International Law?

Q.12 Discuss the composition of National Human rights commission. How far in

your opinion this commission has been able to protect the human rights of

Poor Indians uptil now.

Q.13 Where could you find the human rights in the Indian constitution. Write

down four such rights.

Q.14 How Human Rights have been defined in the Protection of Human rights

Act 1993?

Pil

Documents

law of treaties

international treaties

force of law

intendment of law

general principles of

international conventions

international customs

direct sources of law