Public International Law & Human Rights

KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India,
New Delhi
(An e-initiative by KCL)
NOTES ON
Code Subject
: :
107 Public International Law & Human Rights
Course Class
: :
VII LL.B. 1st Yr
Note : Only KCL students are authorized to download the notes
KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi
LL.B. Ist Year International Law & Human Rights
Q.1
What are the different sources of International Law? International Conventions or Treaties :- The term Conventions applies to any treaty, protocol or agreement, regardless of its title or form. According to Article 38 of the statute of international Court of justice, it is the first source of International law. Art. 2 of Vienna Convention on the Law of Treaties 1969, A treaty is an agreement whereby two or more states establish or seek to establish relationship between them governed by International law. International Treaties may be following two types :-
Ans. Sources :- Sources of International Law can be classified into the following Categories :1.
A)
Law Making Treaties :- Law making treaties are those treaties which are entered into by a large number of states. These are the direct sources of law. Treaties may be divided into following two types.
(i)
Treaties enuciating the rules of universal International Law :- Those treaties which are signed by a majority of the states are called the Treaties enunciating the rules of universal International Law. United nations charter is an example of type of treaties.
(ii)
Those enunciating general principles :- Treaties which are entered into by a large number of Countries enunciated general principles of International law 1958 and 1960. Geneva Con ventions on the law of the Sea is good examples of such types of Treaties.
B)
Treaty Contracts :- Treaty contracts are those treaties which are entered into by two or more states Such type of treaties are also the source of International law because they held in the development of customary rules of International law.
2.
International Customs :- International Customs used to be the most important source of International law in the past. In the modern period, their importance has lessened. In the words of Viner, A custom, in the intendment of law, in such a usage as hath obtained the force of law. Customary rules of international law have developed in the following three Circumstances :- (a) Diplomatic relations between states (b) practice of organs of
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International Institutions and (c) State laws, decisions of the States Courts and States parliamentary or administrative practices. West Rand Central Gold Mining Co. Ltd. V.R. (1905) 2 K.B. 291 (Right of passage over Indian Territory Case), Porttugal V. India (I.C.J. Rop. 1960 at 6) are good examples of
application of custom in international law.
3.
General principles of law recognised by the civilized states :- The general principles of law recognised by the civilized nations is an important source of law through which International law adopts itself in accordance with the changing times and circumstances. In the words of Lord Mc Nair, it describes an inexhaustible reservoir of legal principles from which the tribunals can enrich and develop public International Law, Res Judicata, estoppel, etc. are examples of the general principles of law recognised by civilized states.
Following are some of the important cases relating to the general principles of law recognised by civilized states :a) b) c) d) R.Key (1876) 2 Ex. D.63 United States V. Schooner :Charzow factory (Indemnity Case), Pub. P.C.I. (1938), Serious A, NO.17 Bracelona Traction Case, Preliminary Objectives, (I.C.J Rep. (1964) P.6)
International Courts have recognised the following general principles : (1) good faith (2) responsibility (3) prescription (4) In the absence of any express provisions of the Contrary, every Court has a right To determine the limits of its own jurisdiction (5) a party to a dispute cannot himself be an arbitrator or judge (6) resjudicata (7) In any judicial proceeding, the Court shall give proper and equal opportunity of
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hearing to both parties.
4)
Decisions of Judicial and Arbitral Tribunals - According to Art. 38 of the International Court of Justice, the decision of Judicial and Arbitral Tribunals are Subsidiary means for the determination of the rules of law, Art. 59 of the Statute of international Court of Justice provides that they will have no binding force except between the parties and in respect of that particular case.
5)
Juristic Works :- The opinions of jurists are also regarded as subsidiary means for the determinations of the rules of International law.
6)
Decisions or Determations of the Organs of International Institutions :- In the modern age the decisions of the organs of international institutions are also treated as sources of International law. After the establishment of U.N. most of the development of International law and its codification has taken place through the instrumentality of International Organisation. The International Court of Justice has recognized it in a number of Cases such as certain expenses of the U.N.(1962), South West African Cases (1966), Effects of Awards of compensation made by the U.N. Administrative Tribunal (1954).
Some other Subsidiary sources of international law :- following are the other Subsidiary sources of International law :1)International Comity 2) State papers 3) State guidance for their officers 4) Reason 5) Equity and justice
Q.2
Write a critical envoy on Universal declaration of Human Rights 1948.
Ans. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS :- In 1948, the General Assembly passed the Universal Declaration of Human Rights. This has been hailed as a Victory of Individuals in respect of Human Rights. There are 30 Articles in Declaration which describe in
detail human rights and fundamental freedoms. For examples : Article I provides, All human beings are born free and equal in dignity and rights, they are endowed with reason and conscience and should act to one another in spirit of brotherhood. Some writers have expressed the view that the Universal Declaration has now assumed legal value. Dr. Nagendra Singh has remarked :- The Declaration, was not a mere resolution of the General Assembly but a continuation of the charter and had the dignity f the Charter This seems to be the correct view. Prof. Louis B.Sohn has also remarked that the Declaration Constitutes an authoritative interpretation of the Charter, which is binding upon Members to the extent that the charter is binding, PROVISIONS OF THE U.N. DECLARATION ON HUMAN RIGHTS :Provisions of the Universal Declaration of Human Rights may be classified into four categories :- General (Articles 1 and 2) Art.1 of the declaration provides that all human beings are born free and equal in dignity and rights, they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Art.2 provides that everyone is entitled to all the rights and freedoms set forth in the Declaration without distinction of any kind, such as race, Colour, Sex, language, religion, Political or other opinion, national or social origin, property, birth or other Status. Civil and Political - Civil rights include rights such as right to life and liberty (Article 3) Article 4 says that slavery and the slave trade shall be prohibited in all their forms. Article 5 embodies that no one shall be subjected to torture or to cruel, in human or degrading treatment or punishment. Article 6 to 11 provides Rights to Equality before law and Legal Remedies. Article 12 says that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Article 13 provides Right to Freedom of Movement to leave any Country and return to his country. Article 14 Right to seek asylum Article 15 Right to Nationality. Article 17 Right to own property
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Article 18 provides Right to freedom of Thought, Conscience and Religion, Article 19 :- Right to Freedom of opinion and Expression Article 20 and 21 provides Right to freedom of peace Assembly and Association.
ECONOMIC, SOCIAL AND CULTURAL RIGHTS :Article 22 :- Economic, Social and Cultural rights include the Right to Social Security. Art 23 :- Right to work, free choice of employment. Art 26 :- right to Education Art 27 :- Right to enjoy Arts and share in Scientific achievement Concluding Articles :- These articles recognize that everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized (Article 28) and they stress the duties and responsibilities which the individual owes to the Community (Article 29). Lastly, Article 30 provides that nothing in the Declaration may be interpreted as implying for any state, group, or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth in the Declaration. The Declaration was originally conceived of as a statement of objectives to be achieved by Governments and as such, not part of binding law. But now, 54 years later, it is accepted by so many states that it is considered to be an international standard against which their behaviour is measured.
Q.3
Define State and non state entities point out the difference between Vassal Status and protectorates.
Ans
State - State is the main Subject of International law. According to Salmond, State is a Community of people which has been established for some objectives such as, Internal order and external Security. Different kinds of States and Non-State entities
1. Confederation:-It is formed by states who are independent in the international field. Under International law Confederation has no international personality the states forming Confederation are not treated as International persons.
2. Federal State:- Generally a federal state is formed by the merger of two or more sovereign states. A federal state is an international person under international law. 3. Condominium:- Condominium is a territory where two or more states exercise Sovereignty. New Hebrides is a good example of Condominium. 4. Vassal State:- A Vassal state is a state which is under the Suzerainty of another state. Its Independence is so restricted that it has no Importance under international law. 5. Protectorate State:- A protectorate state is a state which entrusts some of its important functions to another Sovereign State. It retains a Sufficient measure of Sovereignty and remains a state under International law. For example, Bhutan is a protectorate state of India. 6. Trust Territories-Composition of the TRUSTEESHIP COUNCIL:- As provided under Article 86 of the U.N. charter, Trusteeship Council Comprises of the following members of the U.N. (a) Those members who are administering trust territories. (b) The permanent members of the Security Council as are not administering Trust territories and (c) As many other members elected for three years term by the general Assembly as may be necessary to ensure the total number of members of the Trusteeship Council is equally divided between those members of the United Nations which administer trust Territories and those which do not.
FUNCTIONS AND POWERS
(1) It may consider reports submitted by the Administering Authority. (2) It may accept petitions and examine in Consultation with the Administering Authority. (3) It may provide for periodic Visits to the respective Trust Territories at times agreed upon with the Administering Authority. The Trusteeship Council has done Commendable work. The number of inhabitants living in trust Territories has been Constantly decreasing every year. The last territory was Palau which became a member of the U.N. in December1994.
Difference between protectorate and Vassal state Protectorate State generally Vassal State
1. A protectorate State generally entrusts 1. Vassal State is generally its defence, external affairs etc. to another State. , autonomous in its internal matters but is Completely dependent upon another state in external matters.
2. A protectorate State remains a State Under International law.
2. A Vassal State is not treated a State under international law.
3. Since a protectorate State retains a 3 A Vassal State is bound by treaty of sufficient measure of Sovereignty, war or peace entered into by the State under whose international guardianship in remains.
declaration of war or peace made by the protecting State with another State is not binding upon it.
Q.4(a) Explain the Maxim Pacta Sunt Servanda. (b) Write a short note on United National Commission of Human Rights. Ans.(a) Pacta Sunt Servanda According to Anzillotti, the binding force of International law is founded on the fundamental principles known Pacta Sunt Servanda, which means that the agreements entered into by the States must be followed by them in good faith. This principle, though a fundamental and very important principle of International law, fails to explain the binding force of customary rules of international law. as aply remarked by an author, The realization that international customary law does not rest on agreements and that the tenet of pacta Sunt Servand is itself a rule of decided on a formula which takes into account of usage as the fact which is the origin of the rules of International Law. States ought to behave a they have customarily behaved. (b) U.N. Commission on Human rights The Commission on Human Rights was established by the Economic and Social Council in February, 1946. It is the nearest approach to permanent
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machinery for the supervision of the problem of protection of human rights. It is one of the six functional commission established by the Economic and Social Council. Under its terms of reference the commission was directed to prepare recommendations and reports on (1) an International Bill of Human Rights (2) International Conventions or declarations on Civil liberties : the status of women, freedom of information and similar other matters.
3. 4. 5.
The protections of minorities The prevention of discrimination on the basis of race, sex, language or religion, and Other matters concerning human rights. The Commissions terms of reference are extensive : under them, it may deal with any matter concerning human rights. The Commission makes studies and recommendations either on its own initiative or at the request of the General Assembly or the Economic and Social Council. The Commission consists of 43 members elected for 3 years terms and meets annually or a period of five or six weeks. At present, these are 53 members of the Commission. All Commission decisions are made by a majority of the members present and voting. The Commission submits a report on each session to the Economic and Social Council. At its first session in 1947, the Commission established the Sub-Commission on prevention of Discriminations and protection of minorities. 842 the commission was held from 14th March to 22nd April, 2005 and discussed the report of the Commission in Iraq.
Q.5
How for the individual can be said the subject of International Law.
Ans. In recent times several treaties have been entered into wherein certain rights have been conferred and duties have been imposed upon the individuals. In this connection following may be noted : (i) Pirates Pirates are treated as enemies of mankind under international law. Every State can apprehend and punish them. (ii) Harmful acts of Individuals Under certain circumstance States are responsible for the harmful acts of their individuals. If a person causes harm to the personal property of the Ambassador of another State, then under international law the State is responsible for his act. Such persons are, therefore, given stringent punishment.
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(iii)
Foreigners To some extent international law regulate the conduct of foreigners. It is the duty of each State to give them those rights which it generally confers upon its own citizens. War Criminals War criminal can be punished under international law. According to Nuremberg and Tokyo Tribunals, since war crimes are committed by the individuals, it is by punishing them the provisions of international law can be enforced. Espionage Espionage is a crime under international law and, therefore, spies can be apprehended and punished.
(iv)
(v)
(vi)
The United Nations Charter gives a place of importance to the individuals. An individual of any member State of the U.N. who claims to be the victim of violation of Human Rights by his own State may send a petition to the Commission through the SecretaryGeneral of the U.N.
(vii)
The 1965 Convention on the Settlement of Investment Disputes between the State and the Nationals of other States is a glaring example of such benign trend.
Thus slowly and gradually individuals are occupying an important place under international law Write a short note on (i) (W.T.O.) World Trade Organisation (ii) UNESCO Ans. Establishment of WTO As a result of the culmination of Uruguary Round of GATT Negotiations for more than seven years at Marrakesh (Morocco) on April 15, 1994. The new World Trade Organisation (WTO) which came into effect on January 1, 1995, replaced the GATT. W.T.O. is in fact the main organ for implementation of Multilateral Trade Agreements. Membership There are two types of members (i) original; and (ii) other members. The original members comprise : (a) The members of the GATT as on the date of entry into force of the agreement : and
Q.6
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(b) the European Communities which accept this Agreement and the Multi Trade Agreements and of which schedules of Concessions and Commitments are annexed to the Gatt 1994 and four which also schedules of specific commitment are General Agreement on Trade in Services. Withdrawal from Membership - Any member may withdraw from this agreement by giving a written notice to the Director-General of the W.T.O. The withdrawal takes effect after the expiry of six months. Structure The W.T.O. consists of following bodies (i) The Ministerial Conference It is the highest body comprising of the representatives of all members. It is the executive of the W.T.O. and carries out functions of W.T.O. It meets atleast once every two years. (ii) The General Council It is also comprised of the representatives of all members. It meets between the meetings of Ministerial Conference and carries out the functions of the W.T.O. (iii) (iv) (v) The Dispute Settlement Body Trade Policy Review Body The Committee on Trade and Development, the Committee on Balance of Payment Restrictions and Committee in Budget and Administration (vi) (vii) Bodies provided under the plurilateral Trade agreements. The Secretariat The Secretariat is headed by a Director-General appointed by the Ministerial Conference. On May 13, 2005, Pascal Lamy was elected the Director
General. He took over from Supachai Panit Chipakdi on September 1, 2005. Functions of W.T.O. According to Article III of the Agreement following are the functions of the W.T.O. (i) To facilitate the implementation operation, administration and the promotion of the agreement (i.e. of 1994) and the Multilateral Trade Agreement and also of the Plurilateral Trade Agreements; (ii) (iii) To administer the rulers and procedures governing the settlement of disputes; To administer the Trade Policy Review Mechanism (TPRM);
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(iv)
To cooperate with International Monetary Fund (IMF), the International Bank for Reconstruction and Development [IBRD or the World Bank] and its affiliated agencies to bring about greater coherence in global economic policy making.
(ii)
United Nations Educational<scientific and Cultural Organization. (UNESCO).- For the establishment of the United Nation Educational, Scientific and Cultural Organization a conference was held in London in November, 1945. It was finally established on November, 14, 1946. Thereafter it was brought into relationship with the United Nations through a special agreement which was approved by the General Assembly on December, 14, 1946. Objectives and Functions.- Article 1 of the Constitution of the United Nations Educational, Scientific and Cultural Organization provides, Since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed. It aims to contribute for the maintenance of international peace and security by creating respect for the rule of law, human rights and fundamental freedoms through the medium of education, science and culture. Composition.- Each member of the United Nations can become its member. Other States may be made the member of the United Nations Educational, Scientific and Cultural Organization through two-thirds majority of General Conference.
Q.7(a) How the Chairperson and members of National Human Rights are appointed under the Human Rights Protection Act, 1993? Ans. National Human Rights Commission :- Protection of Human Rights Act provides for the establishment of the National Human Rights Commission consisting of the following : (a) A chairperson who has been the Chief Justice of the Supreme Court; (b) One member who is, or has been the Chief Justice of the Supreme Court. (c) One member, who is or has been the Chief Justice of a High Court. (d) Two members to be appointed amongst persons having knowledge of or practical experience in matters relating to human rights. Besides these, the chairpersons of National Commission for minorities the National Commission for the Scheduled Casts and Scheduled Tribes and the National Commission
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for women shall be deemed to be the members of the commission for the discharge of the functions specified in clauses (b) to (j) of Section 12 of the Act. The headquarters of the National Human Rights Commission (NHRC) is located at Delhi. The Chairperson and other members of the Commission are appointed by the President by Warrant under his hand and seal after obtaining the recommendations of Committee consisting of (1) Prime Minister (b) Speaker of the House of people (c) Minister in charge of Home Affairs in the Government of India (d) Leader of the Opposition in the house of people (e) Leader of opposition in the Council of States and (f) Deputy Chairmen of the Council of State. The Chairperson and Members hold office for a term of five years.
Q.B Ans
What are the functions of the Human Rights Commission? Functions of the National Human Rights Commission :- According to Section 12 of the Act the Commission shall perform the following functions :-
(a) Inquire, Sue Motu or on a petition presented by a Victim or any other person on his behalf into complaint of (i) (ii) Violation of Human rights or abetment thereof; or; Negligence in the prevention of such violation by a public servant;
(b) Intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such Court; (c) visit under intimation to the State Government any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment reformation or protection to study the living conditions of inmates and make recommendations thereon; (d) review the safeguards provided by or under the constitution or any other law for the time being in force for the protection of human rights and recommend measures for their effective implementation. (e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; (f) Study treaties and other international punishments on human rights and make
recommendations for their effective implementation; (g) Undertake and promote research in the field of human rights;
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(h) spread human rights literacy among various sections of the society and promote awareness of the safeguards available for the protection of these rights through publications, media, seminars and other available means; (i) encourage the efforts of non-governmental and institutions working in the field of human right: and (j) such other functions as it may consider necessary for the promotion of human rights. Under Section 20 of the protection of Human Rights Act, 1994, the National Human Right Commission is required to submit an annual report to Central Government and to the State Government, concerned and may at any time submit special reports on any matter which in its opinions, if of such urgency or importance that it should not be deferred till submission of the annual report. After the annual report is submitted by the commission the Central Government and the State Government, as the Case may be, shall cause the annual and special reports of the Commission to be laid before each house of parliament or the state Legislature respectively, as the Case may be, along with a memorandum of action taken or proposed to be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if any.
Q.8
International Law is Law in proper sense. Critically examine the statement. Give your suggestions for improving International Law.
Ans. Whether International Law is law in the true sense of the term or not The Controversy whether International Law is true Law or not depends upon the definition of the word law. As remarked by Prof. Glanville L.Williams, The largest of jurisprudential controversy that as to the word law is a verbal dispute and nothing else. If we subscribe to the view of Hobbes, Austin and pufendorf, that law is command of sovereign enforced by superior political authority, then International law cannot be included in the category of law. On the other hand, if we subscribe to the view that the term law, can not be limited to the rules enacted by the superior political authority, then international law can be included in the category of law. The definition of law given by Austin is not correct. In the words of Prof. Oppenheim, This definition is not correct. It does not cover that part of Municipal law which is termed as unwritten or customary law. There is, in fact, no community and no
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State in the word which exist with written law only, In his view, law is, a body of rules of human conduct within a community which by consent of this community shall be enforced by external power.
Views of jurists, who regard international law as really law may be summed up as follows (1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. It has been established by Historical Jurisprudence that in many communities a system of law existed although such communities lacked a formal legislative authority. As pointed out by Starke, such law did not differ from any State law with true legislative authority. (2) As pointed out by Oppenheim, in practice, international law is recognized as law by the States and they consider it binding on them. (3) The Austiniam concept of law fails to account for the customary rules of International law. (4) In some States (for example U.S.A. and U.K.), international law is treated as a part of their own law. (5) International conferences and conventions treat international law as law in the true sense of the term, (6) The statute of International Court of Justice provides that the court shall decide such disputes as are submitted to it in Accordance with International Law. (7) Those who deny the legal character of International law emphasize that it is frequently violated. It is true that International law is frequently violated but it does not mean that it is not law. Even State or municipal law is frequently violated. Frequency of violations of law and the question of international law being law are two different things. Frequency of violation is connected with the weakness or strength of the enforcement machinery. Though State or municipal law is frequently violated, it is never said that it is not law. What is true of municipal law should also hold good for International law. Weakness of the International Law Following are the weakness of the International Law 1. It lacks effective authority to enforce its rules. 2. It lacks effective legislative machinery. 3. The International Court of Justice has no compulsory jurisdiction in the true sense of the terms.
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4. The sanctions behind international are very weak. 5. It cannot intervene in the matters which are within the domestic jurisdiction of States. 6. Many rules of International law are uncertain and vague. 7. International has failed to maintain order and peace in the world. Suggestions for improving International Law (1) The international Court of Justice should be given compulsory jurisdiction in the true sense of the term. (2) An International criminal court should be established to decide cases of International crimes. (3) International Law should be properly Codified and Scientifically revised from time to time. (4) The machinery to enforce the decisions of the World Court should be strengthened. (5) The power and scope of the activities of the International law Commission should be expanded. (6) The doctrine of judicial precedents should be applied in the field of International law. (7) The legislative activities of the General Assembly should be further enlarged. (8) The U.N charter should be amended as to authorize the U.N to intervene in such matters with the domestic jurisdiction of States as are of international concern. Q.9 What do you understand by Intervention? What were the different grounds of intervention. Ans. Meaning and definition of Intervention:- The term Intervention has been defined by Oppenheim in the following words: Intervention is dictatorial interference by a state in the affairs of another state for the purpose of maintaining or altering the actual Condition of things. In principle, international law prohibik intervention. But as pointed out by Prof. Hans Kelsen, international law does not prohibit intervention in all circumstances. Article 2 (4) of the United Nations charter propounds the principle of non-intervention by states in the following words, All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political Independence of any state or in other manner in Consistent with the purpose of the United Nations Charter. The principle of non-intervention by the United Nations finds incorporated in Article 2 (7) of the United Nations charter.Article2 (7) provides:- Nothing contained in the present charter Shall
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authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall requires the members to submit such matters to settlement under the present charter, but this principle shall not prejudice the enforcement measures under chapter VII. Grounds of intervention (1) Self-defence:- It has been a Valid ground of intervention by one state in the affairs of another state for a long-time. But as pointed out by Oppenheim, the use of force is selfdefence can by justified only when it is necessary for self preservation. In this Connection Mr. Webster, the Secretary of United States of America propounded a very important principle in the famous case, The Caroline. In this case Mr. Webster declared that the necessity of self defence should be instant, overwhelming leaving no choice of means and no moment for deliberation. The Unites Nations charter Confers upon every state the right if individual or collective self defence under Article 51. But the right of self-defence under Article 51 is subject to following Conditions. (1) There should be an armed attack. (2) The right exists until the Security Council has taken any action: (3) It should be reported to the Security Council: (4) It is subjected to the review by the Security Council: (5) The right shall not affect the responsibility of the Security Council for the maintenance of peace and security: (6) This right is not available against a non-member of the United Nations. Intervention on Humanitarian Grounds The history is full of cases wherein intervention was permitted on humanitarian grounds. England, France,and Russia jointly intervence in the conflict of Greece and Turkey in 1827 to check violation of human rights. In 1860 intervention was made in favour of Christians of Mount Lebanon. In 1878 intervention was made to protect the independence of a Balkan State. It is clear that the intervention on the ground of the Violation of Human Rights can be permitted, only when the violation of human rights in a member state poses a threat to international peace and security, that is to say, U.N. can take action under chapter VII only on the ground of international peace
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(2)
and security. Unless and Until Security Council first determines that the Violation of human rights poses a threat to international peace and security, action under Chapter VII cannot be taken Thus, on the ground of human rights alone even the U.N. cannot intervene in the affairs of a member state. (3) To enforce Treaty Rights This used to be a valid ground in the past, but in the presence of the United Nations Charter this has ceased to be a valid ground for intervention. (4) Intervention to prevent illegal intervention In past this used to be valid ground but the United Nations charter has greatly affected intervention on this account also. (5) Balance of Power Intervention on the ground of balance of power used to be a valid ground in the past but is no more a permissible ground of intervention in the presence of the United Nations Charter. (6) For protection of persons and property The charter does not recognize this ground and permits intervention only on the ground of self-defence. Collective Intervention Under the United Nations Charter Collective intervention means the intervention by the United Nations as permitted by the provision of the charter.
(7)
(8)
Intervention to maintain International Law - The Charter nowhere provides that an intervention can be mad to maintain international law. The charter simply provides for intervention on the ground of maintaining or restoring international action peace and security which may come under the broad international law. But no intervention is permissible for maintaining international law as much. Intervention in civil wars Generally speaking Article 2 (7) of the charter prohibits united nations from intervening in the domestic affairs of any State, and as such ordinary, United Nations cannot intervene in the civil war of any State. But if the civil war, assumes such magnitude that it poses threat to international peace and security. The United Nations may intervene because Article 2(7) which prohibits United Nations from intervering in the domestic affairs of any State also provides that the Principal of non-intervention by the United Nations in the international affairs of any State shall not prejudice the enforcement
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(9)
measures under chapter 7 of the charter. It may be noted that enforcement measures under chapter 7 are taken by the Security Council to maintain or restore international peace and security. Thus, broadly speaking, there are only two grounds (one for member States of the U.N. and one for the United Nations) ON which intervention is permissible under the charter of the United Nations.
Q.10 Define Recognition. What are conditions for recognition of a new State. Critically examine both Constitutive and Declaratory theory in relation to the nature of recognition under International law. Ans. Meaning and Definition of the term Recognition :According to Prof. Oppenheim :- In recognizing a State as a member of international community the existing states declare that in their opinion the new State fulfills the conditions of statehood as required by International Law. The Institute of International Law has defined the term recognition in the following words : It is the free act by which one or more States acknowledge the existence of the definite territory of a human society, politically, independent of any other existing State and capable of observing obligations of International Community.
Conditions for recognition of a new State : According to Kelson , a Community to be recognized as an international person must fulfil the four conditions (a) The Community must be politically organized. (b) It should have control over a definite territory. (c) This control should tend towards permanence; and (d) The Community thus constituted must be independent.
But International law does not provide as to how those essential conditions are to be determined. International Law leaves the members of International Community free to
determine whether the States to be recognized contain essential conditions of Statehood. It is because of this reason that recognition is very often said to be a political diplomatic function.
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THEORIES OF RECOGNITION :- There are two main theories of recognition :(1) Constitutive Theory (2) Declaratory or Evidentiary Theory (1) Constitutive Theory :- According to Oppenheim a State is, and becomes, an international person through recognition only and exclusively. According to this theory, recognition clothes the recognized State with duties and rights under international law, Recognition is a process through which a political community acquires international personality of becoming a member of the family of nations. Hegel, Anzilloti Holland,
Oppenheim, etc are the chief exponents of this theory. Judge Lauterpacht has written that there is a legal duty on the part of the States to recognize any community that has in fact attained Statehood.
Criticism :- This theory has been severely criticized by many jurists. In practice, States do not accept any obligation to recognize a community that has attained statehood, although they may normally recognize it. According to this theory, unrecognized State can have neither rights nor duties under International law. This is a very absurd suggestion. (2) Declaratory Theory :- According to this theory, statehood or the authority of the new government exists as such prior to and independently or recognition. Recognition is merely formal acknowledgement through which established facts are accepted. The act of
recognition is merely declaratory of an existing fact that a particular State or government possess the essential attributes of statehood as acquired under International law. The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Carbett and Fisher. Brierly has remarked that :- the granting of recognition to a new state is not constitutive, but a declaratory act.
Criticism :-The view that recognition is only a declaratory of an existing fact is not completely correct, In fact when a state is recognized, it is declaratory act. But the moment
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it is recognized, there ensue legal effects of recognition which may be said to be of constitutive nature.
Conclusion :- On the basis of the above discussion it may be concluded that recognition is declaratory as well as constitutive. Oppenheim has admitted that :- recognition is declaratory of an existing fact but Constitutive in nature.
Q.11(a) Write a short note on International Criminal Court. (b) Write a short note on Hijacking. Ans.(a) International Criminal Court Establishment of the Court :- Article 1 of the Statute which establishes the International Criminal Court provides that it shall be a permanent institution and shall have power to exercise jurisdiction over persons for the most serious crimes of international concern, as referred to in this statute and shall be complimentary to national criminal jurisdiction. It is further provided that the court shall be brought into relationship with the U.N. through an agreement to be approved by the Assembly of State parties to this and thereafter concluded by the President of the court on its behalf. The seat of the Court shall be established at the Hague in the Netherlands.
Jurisdiction :-The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with the statute with respect to the following crimes; (1) The Crime of genocide (2) Crimes against humanity; (3) War Crimes; (4) The crime of aggression.
(B) Hijacking :_
21
Meaning and definition of the term Hijacking :- As pointed out by Allona E.Evans, Aircraft Hijacking is a contemporary addition to the roster of In ternational and national crimes and the necessity for its control at international and national level is only beginning to be recognized by the States. In wider sense, hijacking is an act against the safety of traffic in the air, is comparable to piracy, an act against the safety or traffic on the open sea. Article 11 of the Tokyo Convention, 1963, which came into force on December 4, 1969, provides; 1. When a person on board has unlawfully committed by force or threat thereof an act of interference, Seizure or other wrongful exercise of control of an aircraft in fligh or when an act is about to be committed, contracting states shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft. 2. In the cases contemplated in the preceding para, the contracting state in which the aircraft lands shall permit its passengers and crew to continue their journey as soon as practicable and shall return the aircraft and the cargo to the person lawful ly entitled to possession.
The essentials elements of hijacking are as follows : 1. use of force or threat thereof, or any other form of intimidation committing the offence of any attempt to do so; 2. the use of the means mentioned in (1) or attempts to use them should be for the purpose of seizing or exercising control of an aircraft; 3. The use of force or threat there of is unlawful, & 4. The act mentioned above must be committed while the aircraft is in flight.
Q.12 What are the different categories of diplomatic agents ? Describe in short different immunities and privileges of these agents in International law. Ans. Classification :- In accordance with their status the following classification of diplomatic agents was first made in the congress of Vienna, 1815: 1. Ambassador and Legates; 2. Minister pleni potentiary and Envoys Extra- Ordinary; and 3. Charged affairs.
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Some change was brought about in the above classification by the Congress of Aix-la Chappele, 1818. In this congress a fourth Category of diplomatic vagent namely. Minister Resident was added and kept on the third place in order of priority. Thu the diplomatic agents were the classified as follows : (i) Ambassadors and Legates: - They are diplomatic agents of first category and are the representatives of completely Sovereign States. The representatives appointed by Pope are called legates. (ii) Ministers pleni Potentiary and Envoys Extra Ordinary Being the second category of diplomatic agents, these representatives enjoy lesser privileges and immunities as compared with those of the first category. (iii) Minister-resident:-This Category was added in 1818 the Congress of Aix La Chappele. They are below the second Category and enjoy lesser privileges and immunities. (iv) Charged affairs Charge d affairs are the diplomatic agents of the last Category. They are not appointed by the head of the State. They are appointed by the Foreign Minister of State and in rights and duties they are Considered below the Ministers-Resident. Article 14 of the Vienna Convention on Diplomatic Relations,1961, now once again recognizes the following three Categories of diplomatic agents:1. Ambassadors or Nuncios accredited to Heads of States, and other Heads of Missions of equivalent rank: 2. Envoys, Minister and Internuncios accredited to Heads of States, &. 3. Charged affairs accredited to Minister of Foreign Affairs. Immunities and Privileges of Diplomatic Agents;- Following are the immunities and privileges of diplomatic agents. (1) Inviolability of the person of Envoys :- This principle has been incorporated in Article 29 of the Vienna Convention on the Diplomatic Relations,1961. Article 29 provides, The person of diplomatic agent shall be inviolable. He shall not be liable of any form of arrest or detention, the receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. (2) Immunity from criminal Jurisdiction of courts- The diplomatic agents are immune from criminal jurisdiction of the Court of the States in which they are
23
appointed, if a Case is filed in a court of law against diplomatic agent, it is sufficient for such an agent to Inform the court that he is immune from the jurisdiction of the Court. (3) Immunity from civil Jurisdiction- The diplomatic agents are also immune from the jurisdiction of the Civil Court, Suits for recovery of debts, breach of Contract, etc. cannot be filed against diplomatic agents. (4) Immunity regarding residence The residences of diplomatic agents are generally regarded inviolable. (5) Immunity from being present as witness- Diplomatic agents cannot be presented as witness in the Court. But a Diplomatic agent may himself waive this immunity and personally present himself in the Court as a witness. (6) Immunity from taxes- Under International Law the diplomatic agents are also immune from payment of taxes, etc. These immunities are incorporated in Art 34 to36 of Vienna Convention on the Diplomatic Relation. Relations : (7) Immunity from police rules The diplomatic agents are also immune from the police rules of the State in which they are appointed. (8) Right to worship The diplomatic agents enjoy the right to worship. They are free to follow any religion or perform own way. (9) Right to exercise control and jurisdiction over their officers and families (10) Right to travel freely in the territory of the receiving State under 26 of the the religious rituals and ceremonies, etc. in their
Vienna Convention on Diplomatic Relations, 1961, the diplomatic agents can travel freely in the territory of the receiving States. (11) Freedom of Communication for official purposes :- According to Article 27 of
the Vienna Convention on Diplomatic Relations, 1969, the diplomatic agents have freedom to communicate with the home State in connection with their functions and duties. (12) Immunity from the local and military obligations This provision finds
mention in Article 35 of the Vienna Convention on Diplomatic Relations, 1961.
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(13)
Immunity from Inspection of Personal Baggage Article 36 (2) of the Vienna
Convention provides that personal baggage of diplomatic agent be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by exemptions mentioned in paragraph of this article or articles the import of which is prohibited by the flaw or controlled by the quarantine regulations of the receiving State. (14) Immunity from Social Security provisions : - According to Article 33 of the
Vienna Convention, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State. Duties of Diplomatic Agents : Following are the duties of diplomatic agents (1) Duty to respect laws and regulations of the receiving State ; (2) Duty not to interfere in the internal affairs of the State; (3) Official Business to be conducted with or through the Minister of Foreign Affairs of receiving State or such other Ministry as may be agreed; (4) Premises of Mission not to be used in any matter incompatible with the function of the Mission; and (5) Diplomatic agents not to practice for personal profit any professional or commercial activity. Q.13 How far various human rights have been included within the Constitution of India. Explain (Reference International law and Human Rights (Nutshell)13 th edition, central law agency. Ans. The Indian Constitution bears the impact of Universal Declaration of Human Rights, 1948. When the Constitution of India was being drafted and adopted. The universal declaration had already been passed by the General Assembly of the U.N. The Supreme Court of India has recognized the influence of the universal Declaration of Human Rights on the Indian Constitution. he Indian Constitution incorporates human rights in following three ways : (1) Specifically inumerated Rights. (2) Other Rights or Rights not specifically Enumerated.
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(3) Unenumerated Rights (and also not yet recognized rights). (1) Specifically Enumerated Rights By specifically enumerated rights we mean human rights which find mention in international instruments such as Universal Declaration of Human Rights and International Covenants on Human Rights and are also enumerated in Indian Constitution either as fundamental rights or Directive Principles of State Policy. For example a number of human rights which have been proclaimed in the Universal Declaration on International Covenants on Human Rights have also been enumerated in Indian Constitution. The following Charts will make the position clear. (A) Civil and Political Rights : _____________________________________________________________________ Universal Declaration of Human Rights Indian Constitution
_____________________________________________________________________ 1. Right to Life and Security of Person (Article 3) . Article 21 2. Prohibition of slavery, slavery trade etc. (Article 4) Article 23 3. Equality before law and non-discrimination (Article 7) ..Arts. 14 and 15(1) 4. Right to effective remedy (Article 8) ..Article 32 5. Right against arbitrary arrest, detention etc. (Article 9) ..Article 22 6. Right against ex post facto laws [(Article 11 (2)]..Article 20(1) 7. Right to freedom of movement [(Article 13(1)] ..Article 10(1) (d) 8. Right to own property and not to be deprived of Property (Article 17)..Article 19(1)(f) [ But it was omitted by the Constitution of India, (42nd Amendment) Act, 1978] 9. Right to freedom of thought, conscience and Religion (Article 18).Article 25(1) 10. Right to freedom of opinion and expression [(Article 19 ......................... . Article 19(1)(a) 11. Right to freedom of peaceful assembly and Association [(Article 20(1)] ...Article 19(1)(b) 12. Right to equal access to public service [Article 21(2)] .Article 16(1)
26
13. Right to social security (Article 22)...Article 29(1) 14. Right to form and to join trade Unions [Article 23(4)] Article 19(1)(c)
(B) Economic, Social and Cultural Rights : ____________________________________________________________________ Universal Declaration of Human Rights 1. Right to work, to free choice of an employment, To just and favourable conditions of work etc. [ Article 23(1) .. Article 41 2. Right to equal pay for equal work [Article 23(2)] ...Article 39(d) 3. Right to just and favourable remuneration [Article 23(3)] Article 43 4. Right to rest and leisure (Article 24).Article 43 5. Right to everyone to a standard of living adequate For his and his family [Article 25(1)]. Article 39(a) & Article 47 6. Right to education and free education in the Elementary and fundamental stages [Article 26(1) Articles 41 & 45 7. Right to a proper social order (Article 28) ....Article 38 Indian Constitution
(C) Civil and Political Rights : _____________________________________________________________________ International Covenant on Civil and Political Rights) 1. Right to life, liberty security of person [Articles 6(1) & 9(1)] .Article 21 2. Freedom from forced and compulsory labour [Article 8(3)] .Article 23 3. Freedom from unlawful arrest and detention [Article 9(2), (3) & (4)] Article 22 4. Liberty of movement and choice of residence [Article 12(1)] ..Article 19(1)(d) 5. Equality before courts & tribunals [Article 14(1)] .Article 14 6. Right not to be compelled to testify himself or to Confess guilt [Article 14(3) (g)]...Article 20(3) 7. Right against Double Jeopardy [Article 14(7)] ...Article 20(2) 8. Right against ex post facto laws [Article 15(1)] ..Article 20(1)
27
Indian Constitution
9. Freedom of thought, conscience and religion [Article 18 (1)] ....Article 25 10. Right to hold opinion without interference and right to Freedom of expression [Article 19(1) & (2)] Article 19(1)(a) 11. Right to peaceful assembly (Article 21)Article 19(1)(b) 12. Right to freedom of association with others (Article 22(1)] Article 19(1)(c) 13. Right to have access, on general terms of equality To public service in his country [Article 25(c)] ...Article 16(1) 14. Equality before law & equal protection of law Without any discrimination (Article 26) ....Arts. 14 & 15(1) 15. Right of minorities to enjoy their own culture, to Profess and practice own religion or-to use their Own language (Article 27)..Arts. 29 & 30
(D) Economic, Social and Cultural Rights : ________________________________________________________________________ The International Covenant on Economic Social and Cultural Rights, 1966 _______________________________________________________________________ 1. Equal pay for equal work [Article 7(a)(i)] ..Article 39(d) 2. Protection of Children and young persons [Article 10(3)Article 39(f) 3. Right to work [Article 6(1)] .. Article 41 4. Right to safe and healthy working conditions and Right to protection of mothers before child birth [Arts.7(b) & 10(2)] .Article 42 5. Right of workers of decent living for themselves And their families and their right of rest, leisure And reasonable limitation of working hours [Arts. 7(a)(ii) : 7(d)] ..Article 43 6. Obligation of States to make secondary education Generally available [Article 13(2)(A)] .article 45
28
Indian Constitution
7. Right of to an adequate standard of living for Himself and his family (Article 11)..Article 47
The human rights which are incorporated or specifically Indian enumerated in Part III of the Constitution are of special importance. They are called fundamental rights. They are fundamental in the sense that they are enforceable by courts. Moreover, they cannot be taken away or abridged by the Executive or Legislature.
(Reference International Law and Human Rights (Nutshell) the Edition, Central Law Agency)
Q.14 Write a short note on (a) Five freedoms of Air (b) Maritime Belt or Territorial water Ans. Five freedoms of Air Convention of 1944 declared the following 5 freedoms of the air. (i) (ii) (iii) Freedom to fly across the foreign territory without landing; Freedom to land for non-traffic purposes; Freedom to disembark in foreign territory, traffic originating in the state of the origin of the craft; (iv) Freedom to pick-up in foreign country, traffic destined for the state of the origin of the air craft; (v) Freedom to carry traffic between two foreign countries. In order to give a concrete shape of the above five freedoms the following two agreements were entered into1. The International Air Service Agreement, 1944 This agreement incorporated the first two freedoms. 2. The International Air Transport Agreement, 1944 This agreement incorporated the last three freedoms. The first agreement was signed by the majority of the states whereas the second was signed only by a few states. Maritime Belt or Territorial waters The 1958 Geneva convention on Territorial waters and contiguous Zone provided that the coastal state exercises sovereignty over that part
29
(B)
of the sea which is called Maritime or Territorial waters. The coastal state exercises sovereignty not only over to territorial waters, but also over air space above it. Art 2 of the U.N. convention on the law of the sea, 1982 contains a similar provision. Problems of Width of the Territorial Waters Up to 18th century the canon-shot rule was prevalent. According toe Bynker-Shoek, the breadth of the maritime belt extends to that distance where a conon can fire. Up to 19th century the range of canon-shot was generally 3 miles. In the 19th Century, the 3 mile canon-shot rule became very much prevalent. Scientific inventions and discoveries made this rule inadequate because the range of canon-shot increased considerably. According to Grotius the Sovereignty of a coastal state over maritime belt should extend to that area up to which it can exercise effective control..
Q.15 Write a short note on (i) Contiguous Zone (ii) Prize Courts Ans.(i)Contiguous Zone Contiguous Zone is that part of the sea which is beyond and adjacent to the territorial sea of the coastal state. According to Article 53 of the U.N. Convention on the law of the Sea, 1982, in a zone contiguous to its territorial sea, the coastal state may exercise the control necessary to (a) prevent infringement of its customs, fiscal immigration or sanitary regulation within its territory or territorial sea; (b) punish infringement of the above regulations committed within its territory or territorial sea. The contiguous may not extend beyond 24 miles from which the breadth of territorial sea is measured. That is to say, it is twelve miles beyond the territorial sea. (ii) Prize Courts The enemy properties seized in the sea in violation of rules of blockade or contraband are called prizes. But it should be noted here that simply by seizing such properties or ship as prize, the belligerent State does not acquire the ownership over them. In order to acquire ownership over such goods or ships the general practice is that such goods or ship are produced before the courts which are called Prize-Courts. Nature of Prize Courts Prize Courts are national courts. They acquire validity from State Law. They are not international courts. It was laid down in the famous case of The Zamora
30
that the British Prize Courts are, in fact, national tribunals. They acquire validity from national orders and notifications. Jurisdiction of Prize Courts The Prize Courts derive jurisdiction from the belligerent States which establish them. The belligerent State establishes there courts because it is necessary for them to get the validity of the goods or ships seized by them certified or verified by such courts. Since Prize Courts are national courts, the State law and notifications are binding upon them.
Q.16 What do you mean by Neutrality? What are the essential elements of Neutrality. Ans. Meaning and definition of the term Neutrality - As pointed out by Oppenheim, neutrality is the attitude of impartiality adopted by third States towards the belligerent and recognized by belligerent, such attitude creating rights and duties between the impartial States and belligerents. According to Lawrence, neutrality is the condition of those States which in time of war take no part in the contest but continue pacific intercourse with the belligerents. According to Starke, In the popular sense, neutrality denotes the attitude of a State which i s not at war with belligerents and does not participate in the hostilities. In its technical sense, however, it is more than an attitude, and denotes a legal status of a special nature, involving a complex of rights, duties and privileges at international law, which must be respected by belligerents and neutrals alike. On the basis of the above definitions we may conclude that there are following three essential elements of neutrality : (1) Attitude of Impartiality Neutral State is a State which does not take part in war and remains impartial. This impartiality is one of the essential elements of neutrality. (2) Recognition and Impartiality by Belligerent States It is also necessary that this impartiality should be recognized by the belligerent States. (3) Creation of rights and duties The recognition of attitude of impartiality of the neutral State gives rise or creates certain rights and duties. It gives certain rights to neutral States and also imposes certain duties upon it. Similarly, the neutral State also acquires certain rights because of the attitude of impartiality and neutrality adopted during the war between the two belligerent States. These rights and duties are recognized under international law and should be observed by the belligerent State as well as the neutral States.
31
Q.17 What are the different modes through which new state territories can be acquired under international legal system. Ans. Modes of acquiring territories Following are the modes of acquiring territories under International Law : (1) Occupation According to Starke, Occupation consists in establishing sovereignty over a territory not under the authority of any other State whether newly discovered or an unlikely case abandoned by the State formerly in control.
A leading case regarding occupation is Island of Palamas Arbitration (1929). In Eastern Greenland case, the Permanent Court of International Justice laid down the following two tests : (1) For occupation it is necessary that there must be an intention and will to act as Sovereign over the territory concerned. (2) There should be some actual exercise or display of such authority. The facts in this case are as follows : (II) Prescription Yet another mode of acquiring territory is by prescription. As pointed out by an eminent writer, D.H.N. Johnson, a state may acquire some territory by prescription only when the following conditions are fulfilled : (i) When it has not accepted the sovereignty of any other state over the said territory. (ii) (iii) (iv) Possession should be peaceful and uninterrupted. Possession should be in public. Possession should be for a definite period.
(III) Accretion As pointed out by Starke, Title by accretion occurs when new territory is added mainly through natural causes, to territory already under the sovereignty of the acquired State, No formal act or assertion of title is necessary. (IV) Cession Territory may also be acquired through cession. It may either be a voluntary act or in consequence of a war. Cession is generally considered valid only when the sovereignty of the territory concerned is transferred to another State Case refer In re Berubari Union and Exchange of Enclave
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Refer case Union of India v. Sukumar Sengupta (popularly known as Tin Bigha case). (V) Annexation A territory may also be acquired by annexation. It is, however, necessary that after conquest, sovereignty must be established over the territory. That is to say, effective occupation after conquest is necessary. This mode has become obsolete after the commencement of the Charter of the U.N. Article 2 (4) of the Charter make it incumbent upon Member States to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. In view of this provisions acquisition of territory by annexation is no more legal. A recent example of this is the annexation of Kuwait by Iraq. (VI) Lease Yet another mode of acquiring territory is by way of lease. A State may lease a part of its territory to another State. For example, State of Malta has leased an island to Britain for some time. Similarly, Panama leased Panama canal area to the U.S.A. (VII) Pledge Sometimes a State may pledge a part of its territory to another State in return of some money. (VIII) Plebiscite There is controversy as to whether a territory may be acquired through plebiscite or not. A recent example of acquiring territory by this mode is that of West Iran which was claimed both by Netherlands and Indonesia. A plebiscite was held under the auspices of United Nations. (IX) Acquisition of territorial sovereignty by newly emerged State Yet another method of acquiring territorial sovereignty is through the emergence of a newly independent State. This is particularly true in case of those states who were previously the colonies of some states. In this connection the difficulty is how the territory which was previously part of another State ca acquire sovereignty after becoming independent.
Q.18 Define Asylum. Write its classification. Ans. Meaning and Definition By the term Asylum we generally mean the shelter and active protection which is extended to a political refugee from another State by a State which admits him on his request. As pointed out by Starke. Asylum involves two elements : (1) A shelter
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which is more than a temporary refuge; and (2) a degree of active protection on the part of the authorities which have control over the territory of asylum. Types of Asylum (i) Territorial asylum; and (ii) Extra-territorial asylum Territorial Asylum Territorial asylum is granted by a State in its own territory and is considered as an attribute of territorial sovereignty of the State which grants Asylum. This right has also been recognized in the draft declaration on Asylum adopted by the United Nations Human Rights Commission. Example of Dalai Lama and his Tibettan followers The grant of asylum to Dalai Lama and his followers was an indication of the exercise of territorial sovereignty by India. India as a sovereign State was within her girths to grant asylum to Dalai Lama and his followers in the territory of India. Example of influx of refugees from Bangladesh As pointed out earlier, each sovereign State can admit or grant asylum to any individual within its territory. India was within her right to grant asylum to millions of refugees from East Pakistan (Now Bangladesh) who fled from their native land due to repressive policies followed by and ruthless prosecution caused by the military regime of General Yahya Khan. Extra-territorial or diplomatic asylum A State may also grant asylumin its Embassy in foreign countries or in its public vessels. Extra-territorial or diplomatic asylum may be classified into following categories : (a) Asylum in foreign Legation or Diplomatic Embassies Since granting of diplomatic asylum involves a derogation from the sovereignty of the State international law ordinarily does not recognize a general right of a head of mission to grant asylum in the premises of legation. In the view of Starke asylum may be granted in the legation premises in the following exceptional cases : (i) Asylum may be granted, for a temporary period, to individuals who are physically in danger from mob-violence or in case of fugitive who is in danger because of political corruption in the local State. (ii) Asylum may also be granted where there is a well-established and binding local custom.
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(iii)
Asylum may also be granted if there is a special a treaty between territorial State and the state of the legation concerned.
(b) Asylum in Consular premises The above principles also apply in case of grant of asylum in consular premises. (c) Asylum in the premises of International Institution Generally speaking international law does not recognize any rule regarding the grant of asylum in the premises of International Institution. However, temporary asylum may be granted in case of danger of imminent violence. (d) Asylum in War Ships There is a controversy in regard to the grant of asylum in War Ships. Some writers are of the view that asylum can be granted in war ships in the territorial waters of a Coastal State. (e) Asylum in Merchant Vessels Since merchant vessels do not enjoy immunity from local jurisdiction, they are not competent to grant asylum to local offenders.
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Important Questions
Q.1
Explain in brief the object short title extent and commencement of the Protection of Human Rights Act 1993.
Q.2
Write a critical envoy on universal declaration of Human rights 1948.
Q.3(a) How the Chairperson and members of National Human rights. (b) Describe relevant provisions of the Protection of Human Rights Act 1993 regarding the tenure, conditions of service and the removal of above mentioned members of the commission.
Q.4
What do you understand and by the term all facts and all fure recognition is there any distinction between these two types of recognition.
Q.5
Write a short note on Indian (A) Territorial Waters (B) Write a short note on Amnesty International.
Q.6
International Law is Law in Proper Sense. Critically Examine the statement is it true to call it a weak law.
Q.7
Define State and non state entities Point out the difference between vassal status and protectorates.
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Q.8(a) Explain the Maxim Pacta Sunt Servanda. (b) Write a short note on United National Commission of Human rights. Q.9 Attempt a critical energy on Universal Declaration of Human Rights 1948.
Q.10(A)What are the functions of the National Commission for minority Act 1992. (B) Duties of Prize Courts. Q.11 What are the different sources of International Law? Q.12 Discuss the composition of National Human rights commission. How far in your opinion this commission has been able to protect the human rights of Poor Indians uptil now.
Q.13 Where could you find the human rights in the Indian constitution. Write down four such rights. Q.14 How Human Rights have been defined in the Protection of Human rights Act 1993?
37

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

(An e-initiative by KCL)

107 Public International Law & Human Rights

VII LL.B. 1st Yr

Note : Only KCL students are authorized to download the notes

LL.B. Ist Year International Law & Human Rights

application of custom in international law.

hearing to both parties.

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

FUNCTIONS AND POWERS

2. A protectorate State remains a State Under International law.

2. A Vassal State is not treated a State under international law.

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

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

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

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