PUBLIC INTERNATIONAL LAW

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

Discuss the sources of International Law Explain them.

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

2. International Law is the vanishing point of Jurisprudence.

Explain.
INTRODUCTION:- Holland has remarked that International Law is
the vanishing point of jurisprudence in his view , rules of international
law are followed by courtesy and hence they should not be kept in the
category of law. The international Law is not enacted by a sovereign
 King. It has also no sanctions for its enforcement which is the essential
element of municipal law. Holland further say that International Law ass
the vanishing point of Jurisprudence because in his view there is no
judge or arbiter to decide International disputes and that the rules of the
I. Law are followed by States by courtesy.
Austin also subscribes to this view, Justice V.R.Krishna Iyerformally
member of Indian Law Commission has also remarked, It is a sad
truism that international law is still the vanishing point of jurisprudence.
This view is not correct. It is now generally agreed that Hollands view
that international law is the vanishing point of jurisprudence is not
correct.
But now it is well settled that International Law is law. It is true that
International Law is not enacted by sovereign and has no agency for its
enforcement. But it is true that it is a weak law. A majority of
International lawyers not subscribe to this view is based on the
proposition that there are no sanctions behind international Law are
much weaker than their counterparts in the municipal law, yet it cannot
be successfully contended that there are no sanctions at all behind
international law.
The jurists who do-not consider international law as the vanishing point
of jurisprudence say that there is difference between state law and
International Law. International Law cannot be enacted by the state but
still there is agency for its enforcement. According to Dias,
International Law is obeyed and complied with by the states because it
is in the interests of states themselves.
For this object they give the following arguments:-
1. The judgements of International court of Justice are binding on States.
2. If any state does not honour the order/judgement of International court
of justice, the Security Council may give its recommendation against
that state for action.
3. The judicial powers of International Court of justice (Voluntarily and
compulsory) have been accepted by the States.
4. The judgement of International court of Justice has been followed till
date.
5. The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security,
under chapter VII of the U.N. Charter, the security council can take
necessary action to maintain or restore international peace and security.
Besides this the decisions of the International Court of Justice are final
and binding upon the parties to a dispute.
The gulf war 1991 Iraq trespassed and acquired the whole territory of
Quait in her possession by violation of International Law. The Security
Council passed a resolution against Iraq and asked her to liberate Quait.
But Iraq did not honour the resolution of Security Council; hence
therefore may economic and political restrictions were composed against
Iraq. But all in vain. Then USA and her allies were permitted to compel
Iraq to honour resolution of Security Council. Consequently USA and
her allies used force against Iraq and freed Quait.
The same action was taken against North Korea and Cango during the
year l948 and 1961. The Security Council imposed penalty against Libya
for shooting down American Plane in Lockerbie (Scotland) in 1992,
consequently two citizens were also killed. The Security Council forced
Libyan Government to surrender two terrorists who were involved in
this mishap and Libya obeyed the order of S. Council.
The greatest proof of its utility and importance is the fact that its
successor the International Court of Justice established under the United
Nations charter is based on the Statute of the Permanent Court of
International Justice, the United Nations & Security Council Charter
possess wide powers to declare sanctions against the states who are
guilty of violence of the provisions of the same under chapter-VII
Thus International Law is in fact a body of rules and principles which
are considered to be binding by the members of International
Community in their intercourse with other. The legal character of
International Law has also been recognized in 1970 Declaration on the
Principle of International Law Concerning Friendly relation and
Cooperation among states.
Conclusion:- On the basis of above discussion it may be concluded that
the International Law is in fact law and it is wrong to say that it the
vanishing point of Jurisprudence.
3. Discuss the weaknesses of International Law. What are the
suggestions for removing/improving the International Law?
INTRODUCTION: - International Law is said to be a weak Law.
The weaknesses of International Law become evident when we compare
it with Municipal Law. Its weaknesses reflected in most of cases when
these are compared with the state law. The following are some of the
weaknesses of International Law:-
WEAKN ESSES
l. The greatest shortcoming of International Law is that it lacks an
effective executive authority to enforce its rues.
2. Lacks Of effective legislative machinery:- Since the International
Laws are based on international treaties and conventions. Therefore
these are interpreted by the states according to their self interest.
3. The International court of Justice lacks compulsory jurisdiction
in the true sense of the term :- The International court of Justice
which is situated in Hague (Netherland) is not authorised to take cases of
all states. The cases can be filed in this court with the mutual consent of
concerned states.
4. Due lack of effective sanctions, rules of International Law are
frequently violated:- There is no sense or fear of sanction in the
International Law with the results the laws are violated frequently by the
States.
5. Lack in right to intervene in Internal Affairs :- As per article 2(7)
of UNO Charter, UNO is not competent to interfere in the domestic
matters of states. International law cannot interfere in the domestic
matters. Keeping in view these facts in several cases International Law
proves to be ineffective and weak.
6. UNCERTAINTY:- There is one more reason behind the weakness of
International Law is its uncertainty. It is not certain as the laws of states
as well as Municipal law. In addition to this it has not been able to
maintain international peace and order.
It is now very much clear from the above facts that International Law is
weak. Paton says that , from institutional point of view International
Law is a weak. It has no legislative support though there is international
court of justice but that functions or takes case on the basis of mutual
consent of states. It has no power to get the decisions implemented.
According to Karbet, The main course of weakness of International
Law is the lack of social solidarity among highly civilised states.
A case of Queen v/s Ken 1876 :- There is no such institution or body
which can enact laws for sovereign states and there is no court also
which can enforce its decision and to bind the states.
SUGGESTIONS FOR IMPROVING INTERNATIONAL
LAW
Despite the above mentioned weaknesses, it has to be noted that
International Law is constantly developing and its scope is expanding. It
is a dynamic concept for it always endeavours to adopt itself to the needs
of the day. As compared to Municipal Law the International Law is
works in a decentralised system. This is because of the facts that the
International policies, Inter-dependence of states and the continuous
growth of the concept of International or world community. However
the weaknesses of the International Law may be improved in following
ways:-
l. The International Court of Justice should be given compulsory
jurisdiction, in the true sense of term overall international disputes.
2.An International Criminal Court should be established to adjudicate
cases relating to international crimes.
3. International Laws should be properly codified.
4. The machinery to enforce the decisions of the International Court of
Justice should be strengthened.
5. An International Police system should be established to check
international crimes and to enforce the rules & principles of
International Law.
6. An international Bureau of Investigation and prosecution should be
established for investigation of matters relating to International crimes
and the prosecution of International criminals.
7. The U.N.O. should be authorised to intervene in the internal matters
of states.
 8. For settlement of international disputes the use of judicial precedents
must be encouraged.
9. There must be constant review of International Law.
10. Last but not the least there must be basic recognition of the interest
which the whole international society has in the observance of its laws.
CONCLUSION: - It is pertinent to mentioned here that the General
Assembly of UNO should made fruitful efforts in this direction. The
above suggestions will make International Law equivalent to a
Municipal Law to some extent. With the growth of Internationalism and
the feeling of universal brotherhood international aw will also become
effective and powerful.

1. International Law and Municipal Law are the same. Please

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

UNIT-II
1. What do you understand by recognition? What are the various
kinds of it? Also differentiate between de facto and de jure
recognition. Explain those situations when de facto become de jure
recognition. What are the disabilities of an unrecognised state?
INTRODUCTION: - It can be said that through recognition, the
recognising state acknowledges that the recognised state possesses the
essential conditions of Statehood, a Government and Sovereignty, a
definite territory and has a complete control over his territory. The
community is independent. So recognition has an important place in
International Law. By recognition only the state is accepted as a
member of International community.
DEFINITION:- Many of the Jurists has define Recognition in
different ways. Some of them have opined as under:
Prof.L.Oppenheim :- In recognising a State as member of
International community, the existing states declare that in their opinion
the new state fulfils the conditions of statehood as required by
International Law.
Fenwick: - That through recognition the members of the
International community formally acknowledge that the new state has
acquired international personality.
In the words of Phillip C Jessup: - By recognition is such a function of
a state by which she accepts that any political unit contains the essential
elements of nationality.
According to Prof. Schwarzenberger:- Recognition can be absorbed
easily by a procedure developing International aw by which the state
have accepted the negative sovereignty of each other and willing to
develop their legal relations on the basis of their natural relations.
According to Kelson: A community to be recognised as an
International person must fulfil the following conditions:-
i) The community must be politically organised.
ii) It should have control over a definite territory.
iii) This definite control should tend towards performance.
iv) The community thus constituted must be independent.
Thus the conditions of statehood are, People, a territory, a government
and sovereignty.
TYPES OF RECOGNITION
Recognition is of two types, De facto and de jure recognition. The
practice of States shows that in first stage the State generally give de
facto recognition. Later on when they are satisfied that the recognised
state is capable of fulfilling International obligations, they confer de jure
recognition on it, that is why sometimes it is said that de facto
recognition of state is a step towards de jure recognition. The detail of de
facto and de jure recognition is as under:-
DE FACTO RECOGNITION: - According to
Prof.G.Schwarzenberger:- When a state wants to delay the de jure
recognition of any state, it may, in first stage grant de facto recognition.
The reason for granting de facto recognition is that it is doubted that
the state recognized may be stable or it may be able and willing to fulfil
its obligations under International Law. Besides this it is also possible
that the State recognised may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the
essentials elements of statehood and is fit to be a subject of International
Law.
According to Prof.L.Oppenheim :- The de facto recognition of a
State or government takes place when the said State is free state and
enjoys control over a certain fixed land but she is not enjoying the
stability at a deserved level and lacking the competence to bear the
responsibility of International Law.
For example :- De jure recognition had not been given to Russia by
America and other countries for a long time because Russia was not
having competence and willingness to bear responsibility of
International Law. The same position was with China.
In view of the Judge Phillips C Jessup, De facto recognition is a term
which has been used without precision when properly used to mean the
recognition of the de facto character of a government; it is objectionable
 and indeed could be identical with the practice suggested of extended
recognition without resuming diplomatic relations.
The de facto recognition is conditional and provisional. If the state to
which De Facto recognition is being given is not able to fulfil all
conditions of recognition then that recognition is withdrawn.
DE JURE RECOGNITION
De jure recognition is granted when in the opinion of recognizing State,
the recognized State or its Government possesses all the essential
requirements of statehood and it is capable of being a member of the
International Community.
According to Prof.H.A.Smith :- The British practiced shows that
three conditions precedent are required for the grant of de jure
recognition of a new State or a new Government. The three conditions
are as under:-
i) A reasonable assurance of stability and performance.
ii) The government should command the general support of the population.
iii) It should be able and willing to fulfil its international obligations.
Further Recognition de jure results from an expressed declaration or
from a positive act indicating clearly the intention to grant this
recognition such as the establishment of diplomatic relations.
According to Phillips Marshall Brown: - De jure recognition is final
and once given cannot be withdrawn, said intention should be declared
expressly and the willingness is expressed to establish political
relations.
DISTINCTION BETWEEN DE FACTO AND DE JURE
RECOGNITION
As observed by Prof.G.Schwarznbeer, De jure recognition is by
nature provisional and may be made dependent on conditions with
which the new entity has to comply. It differs from de jure recognition in
that there is not yet a formal exchange of diplomatic representatives. De
jure recognition is complete implying full and normal diplomatic
relations.
De facto De jure recognition
recognition
De jure recognition is
 1. De facto recognition is final.
conditional and
Provisional. De jure recognition
2. If the conditions are not cannot be withdrawn
fulfilled by the concerned once given it is final.
state then it is withdrawn.
The willingness is to be
3. To maintain political
expressed for
relation in this
maintenance of political
recognition is not
relations.
necessary.
4. De facto recognition is De jure recognition is the
the first step towards de final step towards
jure recognition. recognition.
In Luther v/s Sagor-1921:- It was held that there is no distinction
between de facto and de jure recognition for the purpose of giving effect
to the internal acts of the recognized authority.
Bank of Ethopia v/s National Bank of Egypt and Liquori- 1937:- The
court held that in view of the fact that the British government granted
recognition to the Italian Government as being the de facto government
of the area of Abyssinia which was under Italian control, effect must be
given to an Italian decree in Abyssinia dissolving the plaintiff bank
appointing liquidator.
But in the case of Luther v/s Sagore-1921 the court held that as far as
internal affairs of a state is concerned De facto recognition is interim
and it can be withdrawn.
CONSEQUENCES OF RECOGNITION
There are many political and legal advantages of getting recognition and
many disadvantages of not getting recognition. They may be said as
disabilities of a state of not getting recognition. The following are the
advantages of getting recognition and disadvantages of not getting
recognition.
ADVANTAGES DISADVANTAGES
1. Can establish diplomatic and The states who did not get such
commercial relation with the recognition cannot establish such
states granting recognition. relations.
2. Recognised states can The state which does not get
institute a suit in the courts of recognition cannot do so.
states granting recognition.
3. Can institute suit relating to Unrecognised states cannot
property situated in the courts institute suit relating to property.
of state granting recognition.
The representatives of
4. The representatives of
unrecognised states cannot enjoy
recognised states are entitled to
such relations.
enjoy diplomatic and political
communities in the territories of
state granting such recognition.
5. The recognised states can The unrecognised states cannot
execute treaty agreement with sign any treaty agreement with
states granting such recognition. any states.
CONCLUSION
Recognition of any state means, that state become a member of
International community and acquires International entity. The state
becomes entitled to all rights and special rights as a member of the
International community. In the absence of recognition any state cannot
establish her diplomatic and political relations with any states and also
unable to sign any treaty agreement with any state.

2. Define intervention? Under what circumstances intervention by

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

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

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

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

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

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

The legal relationship which exists Denotes the relations between the
between the nation & Individual. person and the state law.

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

10. What do you mean by Treaty? How it is signed and what is the
procedure of ratification.
INTRODUCTION:-In the modern period International treaties have
been the first and foremost source of international law. Whenever an
international court has to decide an international dispute its first
endeavour is to find out whether there is an international treaty on the
 point or not. In case there is an international treaty governing the matter
under dispute the decision of the court is based on the provisions of the
treaty. International treaties occupy the same significant position in the
field of international law as the legislation occupies in the municipal
law.
DEFINITION OF TREATY: - International treaty is an agreement
between two or more states under the international law to create mutual
relationships. According to Oppenheim, International treaties are those
agreements between the states which are of contractual nature and
produce legal rights and obligations.
According to Starke, Usually in all cases, the purpose of treaties is to
create binding nature of obligations on the parties to the treaties.
According to Vienna Convention on treaties-1969, Treaties and
contracts are document under which two or more states under
international law establish or try to establish their relations.
CLASSIFICATION OF TREATIES:- One of famous jurist Mc Nair
has classified treaties in the following manner:-
1. Treaties having the character of conveyance.
2. Treaty contracts.
3. Law making treaties: a) Treaties creating constitutional law just as
charter of ICJ. b) Pure law making treaties e.g. labour conventions
negotiated by ILO.
4. Treaties akin to charter of incorporation e.g. treaty by which
International Posta Union -1874 came into existence.
5. Vattel has classified treaties into four categories i.e. equal, unequal,
real and personal.
6. Prof.Oppenheim has classified the treaties into two categories:-
1. Law making treaties. 2. Treaties made for other purposes.
HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of binding
nature, the following conditions are to be fulfilled:
1. Accreditation of persons on behalf of contracting parties:- The
intending parties of treaties should appoint persons as their
representatives to negotiate on their behalf authoritatively for arriving at
terms and conditions of a treaty.
2. Negotiations and adoption:- After due negotiations the terms and
conditions of a treaty are clunched and for its adoption a decision is
made by both the parties.
3. Signature: - The representatives sign on each and every terms of a
treaty to make it enforceable. A treaty becomes enforceable against a
party only after the signature of the party or its representative is obtained
on the treaty papers.
4. Accession and Adhesion: - The practices of the States show that by the
process of accession and adhesion a state which is not a party to a treaty
may become a party to it by signing it afterwards.
5. Enforcement of a treaty:- Usually the enforcement of a treaty depends
and begins according to the terms and provisions as laid down in the
treaty itself. Many treaties commence after the signature is affixed by
the authorised person while those which need ratification by the other
states in certain number begin after the required number of states have
ratified. The general rule of International Law is that a treaty is
enforceable against the parties only which have entered and signed a
treaty.
6. Registration & Publication:- It is necessary after the treaty comes into
force, it may be got registered and published. Under the provisions of
article 102 of UNO charter. If it is not registered with the UNO that in
case of any dispute comes into existence for its settlement through the
organs of UNO the treaty which is not registered cannot be referred to
for the settlement of that dispute.
7. Basis of binding force of the International treaties:-According to
Angilotti, Binding force of International treaty gains its binding force.
PROCEDURE OF RATIFICATION:- Ratification is a very important
processes ordinarily the terms and conditions of a treaty. Treaty does not
become enforceable without ratification. The President of a State or
Chief of the Govt. Ratify the signatures of its representatives who
negotiated for arriving at the agreed terms and conditions of a treaty.
11. What do you understand from the term of Extradition? Is it
different from Asylum? Difference between Extra Territorial &
territorial Asylum.
INTRODUCTION: - Each State exercises complete jurisdiction over
all the persons within its territory. But sometimes there may be cases
when a person after committing crime runs away to another country. In
such a situation the country affected finds itself helpless to exercise
jurisdiction to punish the guilty person. This situation is undoubtedly
very detrimental for peace and order. There is a social need to punish
such criminals and in order to fulfil this social necessity the principle
of extradition has been recognised.
Meaning & Definition of Extradition:- Extradition is the delivery of an
accused or a convicted individual to the State on whose territory he is
alleged to have committed or to have been convicted of a crime.
According to Starke, The term extradition denotes the process
whereby under treaty or upon a basis of reciprocity one state surrenders
to another at its request a person accused or convicted of a criminal
offence committed against the laws of the requesting state.
According to Grotius:- It is the duty of each state either to punish the
criminals or to return them to the States where they have committed
crime.
Under International Law extradition is mostly a matter of bilateral
treaty. In principle each state considers it a right to give asylum to a
foreign national, thus there is no universal rule of customary
international law in existence imposing the duty of extradition. Afamous
case Music director Nadeem who was accused of the murder of
Gulshan kumar. Nadeem fled to Britain. Lack of providing sufficient
evidence England refused to extradite Nadeem.
IS EXTRADITION IS DIFFERENT FROM ASYLUM
There is a great difference in between extradition and
Asylum. Extradition means delivery of an accused or a convicted
individual to the state on whose territory he is alleged to have
committed or have been convicted of a crime whereas
inAsylum the active protection extended to a political refugeefrom
another state by a state which admits him on his request.
DIFFERENCE BETWEEN EXTRA TERRITORIAL &
TERRITORIAL ASYLUM:- In the asylum case Colombia v/s Peris-
ICJ-1950.
Extra territorial Asylum Territorial Asylum

In case of diplomatic asylum the The refugee is within the territory of

refugee is within the territory of the the state of refuge
state where the offence was
committed.
Territorial asylum is granted by a
Grant of diplomatic asylum involves State in its own territory.
a derogation from the sovereignty of
that state. Every state has right in the exercise
of its sovereignty to admit into the
It withdraws the offender from the
territory such persons as it deems
jurisdiction of the territorial state
advisable without exercising the
and constitutes an intervention in
Declaration of Asylum.
matters which are exclusively within
the competency of the state. The grant of territorial asylum is an
incident of territorial sovereignty
Grant of extra territorial asylum is
itself.
rather a derogation from the
sovereignty. Each state has a plenary right to
grant territorial asylum unless it has
Right to grant extra-territorial
accepted some particular restriction
asylum is exceptional and must be
in this regard.
established in each case.

12. What are the different classes of Diplomatic Agents? Describe

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

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

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

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

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

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

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

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

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

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

Relation between International Law and Municipal Law.

 There are certain theories have been propounded to explain the
relationship between International Law and Municipal Law. In general it
is notionally accepted that the state municipal law control the conduct of
individuals within the state while International Law controls the
relations of nations. But now this concept has altogether been changed
and the scope of International Law has increased and it not only
determines and controls the relations of states but also the relations of
members of International community. Both the laws have co-hesion
with each other and the relations between these two are more
prominent. These theories have been put forward to explain the
relationship between International Law and State Law. Of all these
theories as per following details, the most popular are the Monism and
dualism and they are diametrically opposed to each other:-
1. MONISTIC THEORY:-It is also known in the name of Monism
theory. According to the exponents of this theory International Law and
Municipal Law are intimately connected with each other. International
Law and Municipal Law are the two branches of unified knowledge of
law which are applicable to human community in some or the other
way. All Law are made for individuals. The difference is that municipal
law is binding on individual while International Law is binding on
states. Conclusively it can be said that the root of all laws is individual.
According to Strake, International Law is part of state Municipal Law
and therefore decisions can be given by Municipal courts according to
the rules of International Law.
According to O.Kornell, The objective of all laws is human welfare
whether it is state municipal law or International Law.
2. DUALISTIC THEORY: - In view of the dualistic theory writers,
International Law and state Law are two separate laws and contained
legal systems. The Monist view of law is part of philosophy according
to which totality is a single structure. But within the framework of the
unitary universe is diversity of phenomenon. International Law cannot
become part of state municipal Law till the principles of International
Law are applied under State Municipal Law.
According to Strake, The main foundation of the proponents of
dualistic theory is that state Municipal Law and International Law are
two different legal systems because the nature of International law is
fundamentally different from State Municipal Law.
Angilotti has also recognised both the systems as two different legal
systems. According to him the fundamental principle of State Municipal
Law in compliance of law enacted by state legislature while principle of
International Law is Pacta Sunt Servanda i.e. to honour the agreements
executed between the states.
De-Facto- RECOGNITION
Recognition are two types, 1. De facto 2. de jure recognition.
The practice of States shows that in first stage the State generally
give de facto recognition. Later on when they are satisfied that the
recognised state is capable of fulfilling International obligations, they
confer de jure recognition on it, that is why sometimes it is said that de
facto recognition of state is a step towards de jure recognition. The detail
of de facto and de jure recognition is as under:-
DE FACTO RECOGNITION:- Prof. G. Schwarzenberger:- When a
state wants to delay the de jure recognition of any state, it may, in first
stage grant de facto recognition.
The reason for granting de facto recognition is that it is doubted that
the state recognized may be stable or it may be able and willing to fulfil
its obligations under International Law. Besides this it is also possible
that the State recognised may refuse to solve its main problems.
De facto recognition means that the state recognized possesses
the essentials elements of statehood and is fit to be a subject of
International Law.
According to Prof.L.Oppenheim :- The de facto recognition of a
State or government takes place when the said State is free state and
enjoys control over a certain fixed land but she is not enjoying the
stability at a deserved level and lacking the competence to bear the
responsibility of International Law.
For example: - De jure recognition had not been given to Russia by
America and other countries for a long time because Russia was not
having competence and willingness to bear responsibility of
International Law. The same position was with China.
In view of the Judge Phillips C Jessup, De facto recognition is a
term which has been used without precision when properly used to mean
the recognition of the de facto character of a government; it is
objectionable and indeed could be identical with the practice suggested
of extended recognition without resuming diplomatic relations.
The de facto recognition is conditional and provisional. If the state to
which De Facto recognition is being given is not able to fulfil all
conditions of recognition then that recognition is withdrawn.

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

DIPLOMATIC AGENTS
During the Ramayana and Mahabharata period some aspects of
International Law were in their developed stage. Examples of
international law relating to diplomatic agents may be cited in this
connection. The permanent appointment of diplomatic envoys began
from the seventeenth centaury. The rights, duties, immunities and
privileges etc., of the diplomatic in 18th. & 19th. Centaury was mostly in
the term of customary rules. The first great landmark was the Congress
of Vienna in 1815, wherein the customary law regarding diplomatic
agents was clarified and codified. The contents of Vienna Convention
were adopted finally in 1961. The Indian Parliament passed the
Diplomatic Relations on the basis of Vienna Convention-1972 to give
effect to this convention. This law relating to the diplomatic and
consular affairs remains the strongest section of International
 Law. DIFFERENT CLASSES OF DIPLOMATIC AGENTS:-The
diplomatic agents have been classified according to their status and
functions. The first classification of diplomatic agent was made in the
Congress of Vienna in- 1815 under which diplomatic agents were
classified under the following categories:-
1. Ambassadors and Legates:-These are the first category of diplomatic
agents and are the complete representatives of the sovereignty states.
Their designation is Ambassadors or Permanent Representatives of their
respective countries of U.N. They are appointed by POP.
2. Ministers Pleni-potentiary and Envoys extraordinary:- Are the
diplomatic agents of second category and as compared to the diplomatic
agents of the first category. They enjoy less privileges and immunities.
3. Charge-d affairs: - They are the diplomatic agents of the last
category. The main reason for this is that they are not appointed by the
head of State but are appointed by the Foreign Minister of the State.
Their status is considered below the Minister Resident.
4. Minister Resident: - In the congress of Aix-la-Chappele-1818, this
category was added at category No.3, but it was again dropped by 1961
Convention.
PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As
observed by the International Court of Justice on 15.12.79 in a case of
United States Diplomatic and Consular Staff in Tehran: For enabling
states irrespective of their differing constitutional and social systems to
achieve mutual understanding. One of the pillars of modern International
Law is the diplomatic immunities of the Ambassadors.
However the following are the immunities and
privileges of the diplomatic agents:-
1. Inviolability of the person as envoys: - The diplomatic agents are
extended personal safety and security. If an envoy is attacked it is
deemed that attack was on the country to which the envoy is belonging.
2. 2. Immunity from criminal jurisdiction of the court:- The courts of
the state where the envoy is posted do not treat the envoys within its
criminal jurisdiction.
DEFINE TREATY& ITS RATIFICATION
 In case there is an international treaty governing the matter under dispute
the decision of the court is based on the provisions of the treaty.
International treaties occupy the same significant position in the field of
international law as the legislation occupies in the municipal law.
DEFINITION OF TREATY: - International treaty is an agreement
between two or more states under the international law to create mutual
relationships. According to Oppenheim, International treaties are those
agreements between the states which are of contractual nature and
produce legal rights and obligations.
According to Starke, Usually in all cases, the purpose of treaties is to
create binding nature of obligations on the parties to the treaties.
According to Vienna Convention on treaties-1969, Treaties and
contracts are document under which two or more states under
international law establish or try to establish their relations.
CLASSIFICATION OF TREATIES:- One of famous jurist Mc Nair
has classified treaties in the following manner:-
1. Treaties having the character of conveyance.
2. Treaty contracts.
3. Law making treaties: a) Treaties creating constitutional law just as
charter of ICJ. b) Pure law making treaties e.g. labour conventions
negotiated by ILO.
4. Treaties akin to charter of incorporation e.g. treaty by which
International Posta Union -1874 came into existence.
5. Vattel has classified treaties into four categories i.e. equal, unequal,
real and personal.
6. Prof.Oppenheim has classified the treaties into two categories:-
2. Law making treaties. 2. Treaties made for other purposes.
HOW THE TREATIES ARE SIGNED
FORMULATION OF TREATIES: - For making the treaty of binding
nature, the following conditions are to be fulfilled:
1. Accreditation of persons on behalf of contracting parties:- The
intending parties of treaties should appoint persons as their
representatives to negotiate on their behalf authoritatively for arriving at
terms and conditions of a treaty.
2. Negotiations and adoption:- After due negotiations the terms and
conditions of a treaty are clunched and for its adoption a decision is
made by both the parties.
PROCEDURE OF RATIFICATION
Ratification is a very important processes ordinarily the terms and
conditions of a treaty. Treaty does not become enforceable without
ratification. The President of a State or Chief of the Govt. Ratify the
signatures of its representatives who negotiated for arriving at the agreed
terms and conditions of a treaty.