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Law & Practice as To Treaties

A treaty is a formally concluded and ratified agreement between the subjects
of International law. It may also be treated as a binding formal
agreement, contract, or other written instrument that establishes obligations
between two or more international entities. The rules concerning treaties
between states are contained in the Vienna Convention on the Law of Treaties,
1969 and those between states and international organizations appear in the
Vienna Convention on the Law of Treaties between States and International
Organizations or Between International Organizations, 1986.
Article 2(1) (a) of Vienna Convention on the Law of Treaties, 1969 incorporates
that, “treaty means an agreement concluded between States in written form
and governed by International Law, whether embodied in a single instrument
or in two or more instruments and whatever its particular designation”.
According to Oppenheim, “treaty is an agreement of contractual character
between States or between States and international organizations creating
legal obligations between parties”.
According to Starke, “treaty is an agreement whereby two or more States
establish a relationship under the International Law between themselves”.
Treaties are the most important source of international law, as article 38 (1) (a)
of the ICJ statute provides that, “International conventions, whether general or
particular establishing rules expressly recognized by the contesting states”. In
other words, “Treaty is an agreement entered into by Nation states for their
relations with each other and to undertake certain duties, obligations and
rights is said to be a treaty.”
CLASSIFICATION OF TREATIES: Treaties may be classified into following:
1. On the basis of Participation: According to the participation of the
parties, treaties are of two types, as under:-
a. Bilateral treaty: Bilateral treaties are negotiated between only
two states or other international entities, establishing rights and
obligations between the parties to the treaty.
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b. Multilateral Treaty: A multilateral treaty is concluded between

more than two States or international entities, establishing rights
and obligations between parties to the treaty.
2. On the basis of Nature: According to the nature, treaties are of two
types as under:-
a. Law-Making Treaty: Law making treaties are agreements
whereby states elaborate their perception of international law
upon any given topic or establish new rules which are to guide
them for the future in their international conduct. These are
multilateral treaties which are universal or general in nature.
These are the direct source of international law. For example, The
Geneva Conventions, The Hague Convention 1888, the Convention
of the league of Nations 1919, etc.
b. Contract Treaty: Contractual treaty is signed between a small
numbers of states on a certain limited issue. It can also be defined
as a special agreement between the parties to the contract.
Generally, contractual treaties are not considered as the source of
international law because they are intended to create special
rights and duties between the parties to the treaty and not any
third party. For example, treaty of Paris between British and
America, General Agreement of Trade & Tariff (GATT), WARSA
PACT, SAARC etc. However, there are three cases when
contractual treaties may lay down rules for international law:
i. Repetition of the same rules in several contract-treaties
might produce a principle of custom and thus become a
source of law.
ii. Originally treaty-contracts may be entered into between a
limited numbers of states but subsequently if several states
accept or intimate them, then such treaty-contracts may
develop into customary rules of international law.
iii. A treaty-contract might operate as the evidence of the
existence of a rule of law which has developed by an
independent process.
3. On the basis of Form: Starke classified treaties according to the form in
which they are concluded:
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a. Treaties between Head of States: In this form the treaty is

concluded between sovereign or Head of States.
b. Treaties between Governments: In this form, it is concluded as an
agreement between Governments. This form is usually employed
for technical or non-political agreements.
c. Treaties between States: In this form, the treaty is drafted
expressly or impliedly as an agreement between the States. The
signatories are then most often referred to as ‘the parties’.
d. Treaties between Ministers: A treaty may be negotiated and
signed between the ministers of the respective countries
concerned.
e. Treaties between particular Governmental Departments: this
form of treaty may be negotiated and signed as between
representatives of particular government departments.
NOMENCLATURE OF TREATIES: Treaties are referred with different names.
However, these names are not in legal sense but they may have political
reasons behind them. These names are very loosely used; however, they may
have their own significance. Different names for treaties are as under:-
1. Convention: This is the term is used for a proper formal instrument or
agreement of a multi-lateral character whereby many States are parties.
When an international institution adopts an instrument, then also the
term convention is used.
2. Protocol: This signifies an agreement less formal than a treaty or
convention proper. The term also signifies instruments including: an
instrument subsidiary to a convention, an ancillary instrument to a
convention, an altogether independent treaty, Process-Verbal.
3. Agreement: An agreement is generally an instrument which is less
formal than a treaty or convention proper, and generally not in between
the heads of States. Generally, they are not subject to ratification.
4. Arrangement: It is also an instrument of a less formal nature serving a
limited purpose and not requiring ratification.
5. Process-Verbal: This term is used in two different senses. Firstly, it is the
record of the terms of an agreement reached between the parties and
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secondly it suggests an administrative agreement of a purely minor

character and is not subject to ratification.
6. Statute: A statute is a collection of constituent rules relating to the,
structure and constitution of an international institution such as the
statute of ICJ, functioning of a particular entity, or regulation of a
convention.
7. Declaration: An informal instrument appended to a treaty or convention
interpreting or explaining the provisions of the latter. It is also used to
suggest a treaty proper and may either require ratification or not.
8. Modus Vivendi: An instrument recording an international agreement of
a temporary or provisional nature intended to be replaced by an
arrangement of a more permanent and detailed character.
9. Exchange of Notes: An informal method whereby diplomatic
representatives enter into an agreement between them.
10.Final Act: It is the instrument embodying the proceedings of an
international conference summoned to conclude a convention. It also
contains the resolutions, recommendations and declarations of the
conference. It is signed but it does not require ratification.
11.General Act: It is really a treaty but may be of a formal or informal
character.
CONCLUSION OF TREATIES: According to Starke, treaties are concluded
through the following steps:
1. Accrediting or Assigning of Representatives: In the very first Step the
State assigns representatives for the purpose of negotiations. The
powers of these representatives may either subject to certain limitations
or full powers.
2. Negotiations: The plenipotentiaries (diplomats) exchange their full
powers or a copy thereof before entering upon their task and then
proceed with negotiation. In the case of bilateral treaties, negotiations
are conducted through pour-parlers but they take the shape of a
diplomatic conference when a multilateral treaty is to be adopted or
concluded. The accredited representative will keep himself in touch with
his government during the progress of negotiation. A reporter is
generally appointed to help the conference in its work. The negotiations
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continue till such time as an agreement is arrived at regarding the text of

the proposed treaty.
3. Signature: When the final draft of a treaty is drawn up, the instrument is
ready for signature. Signature of a treaty is an act by which a State
provides a preliminary endorsement of the instrument if ratification is
necessary. It is affixed at a formal closing session. A treaty generally
comes into force on signature by plenipotentiaries of the contracting
states, unless the states desire to subject it to ratification. If a treaty is
subjected to ratification, the signature would merely be regarded as a
commitment that the signatory State would consider the treaty. Treaties
and conventions are generally always sealed.
4. Ratification: When the treaty expressly provides that the signatures of
the representatives are not sufficient and the treaty or the convention
should be confirmed by concerned authority of the State, such treaty
will not have any legal effect or sanction unless it is conformed or
ratified by proper authority under constitution of the country.
5. Accession and Adhesion: A third state can become a party to an already
existing treaty by means of accession and adhesion. This may be brought
about by formal entrance of the third state with the consent of the
original contracting parties. The term ‘accession’ is generally used when
a State which was not an original party to the treaty becomes a party to
the whole of the treaty, while term ‘adhesion’ is used when a State
desires to adopt a certain part of the treaty. According to Oppenheim,
the distinction between accession and adhesion is made only in theory
but seldom in practice.
6. Coming into force of treaties: Where ratification is not necessary, the
treaty comes into force on the date of signature. Where ratification is
necessary, a bilateral treaty comes into force after recognition by the
signatory States, while multilateral treaties come into force on the
deposit of a prescribed minimum number of ratification and accession.
7. Registration and Publication: In traditional International law registration
was unknown. But States would enter into secret treaties, which were
often inconsistent with each other. Therefore, article 102 of the United
Nations Charter provided that treaties and international agreements
entered into by members of the United Nations Organization shall “as
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soon as possible” be registered with the secretariat of the organization

and be published by it. Incase of non-registration, no party to a treaty
shall be able to invoke any unregistered treaty or agreement before any
organ of the United States.
8. Incorporation into Municipal Law: The final stage of the treaty making
process is the actual incorporation in the municipal law of the
contracting States where such incorporation is necessary.
RATIFICATION OF TREATIES: When the treaty expressly provides that the
signatures of the representatives are not sufficient and the treaty or the
convention should be confirmed by concerned authority of the State, such
treaty will not have any legal effect or sanction unless it is conformed or
ratified by proper authority under constitution of the country. According to
Starke, the practice of ratification rests on the following rational grounds:
1. The time between signature and ratification may be used by the
signatory States to consider the terms of the treaty carefully;
2. Being a sovereign entity, a State is entitled to withdraw from
participating in any treaty if the State desires so;
3. The time between signature and ratification may be used by the States
to pass necessary legislation to obtain the necessary approval of the
Legislature;
4. It is also in the interest of a democracy that the concerned government
should consult public opinion in Parliament or elsewhere, as to whether
a particular treaty should be ratifies.
Withholding Ratification: According to Brierly, there is no legal compulsion
nor even a moral duty on a State to ratify a treaty signed by its
plenipotentiaries, though in his opinion such refusal is a serious subject
which ought not to be taken lightly. If the ratification is held it may either
invalidate the whole treaty when the ratification of a particular State is a
condition for ratification of other parties to the treaty or it may not be
application to the non-ratifying State only. According to Starke, the
ratification of a treaty may be validly withheld on the following grounds:
1. If the representative or plenipotentiary has exceeded his powers;
2. If any deceit, as a matter of fact, had been practices on him;
3. If the performance of treaty obligation becomes impossible;
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4. If there has not been consensus ad inem, i.e., there has not been
agreement as to the same thing in the same sense.
RESERVATION OF TREATY: Reservation is an act whereby a State stipulates
that certain provisions of a treaty might not bind them or that certain parts of
the treaty might be modified. It is based on the principle that if a State cannot
accept whole of the treaty, it is preferable that it might become party to the
treaty atleast in a limited manner. Reservation may be made at the time of
signature, however, it can also be made at the time of ratification by a State,
subject to the consent of other States which are parties to the treaty.
According to Starke reservation is “a formal declaration by a State made
without signing, ratifying or acceding to a treaty whereby as condition of its
willingness to become a party to the treaty it stipulates for exemption from
one or more provisions of the treaty or the modification of these provisions of
the treaty or of these of their effects of interpretation of the provisions in a
particular way”.
If a reservation is incompatible with a treaty or convention, a State may be
legitimately considered a non-party to a treaty. A State accepting or signing a
treaty or convention may in order to object on reservations; nor is an objection
by a signatory State, which has not ratified the instrument, effective until its
ratification.
REVISION OF TREATIES: A treaty creates a contractual obligation between the
parties to it. Therefore, generally there could be hardly any right to revise such
a treaty. But States often demand revision of treaty in order to outlive a treaty
and impose continuing burden on States. Usually, the treaties or conventions
themselves provide a clause for such revision giving a right to initiate revision
or amendment of a treaty or a convention. Further, that clause might provide
that the treaty may be revised; (a) anytime; or (b) after a particular period; or
(c) periodically; or (d) by combination of one or more of the above terms.
Article 14 of UN Charter provides that the General Assembly of the United
Nations might recommend measures for revision of treaties and such
measures adopted are purely recommendatory.
TERMINATION OF TREATIES: The methods by which treaties are terminated
can be classified into two broad categories as under:-
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1. Termination of Treaties by act of parties: According to article 54 of

Vienna Convention on the Law of Treaties, 1969, the parties to a treaty
may terminate the treaty in the following ways:
a. By Denunciation: A party may terminate its treaty obligations by
act of denunciation in if this right was provided in the treaty or
with the consent of other parties if it is not provided in the treaty.
b. By Mutual Agreement: The parties to a treaty may at any time
terminate the treaty with the consent of all the contracting
parties.
2. Termination of treaties by operation of law: Treaties may be
terminated by operation of law in the following ways:
a. Extinction of Either Party: If either party is extinguished by
annexation or merger, it may cease to operate. For example,
treaty between USA and Tripoli ceased to exist
when Italy annexed the latter in 1912.
b. Expiration of the specified period: If a treaty is specifically
concluded for a fixed period of time, the expiration of such period
will automatically terminate the treaty.
c. Fulfillment of the object: In case of treaties imposing no
continuing obligation, they cease to operate on the fulfillment of
the object.
d. Non-performance of certain essential conditions: If a treaty is
conditioned on the happening of a certain event or on
performance of certain act, the treaty will not be operative until
such happening or performance and if such performance becomes
impossible the treaty will become void.
e. Obligations incompatible with the charter of UN: Article 103 of
the charter specifically provides that in the event of a conflict
between the obligations of the members of the UN and their
obligations under any other agreement, their obligations under
the charter shall prevail.
f. Impossibility of performance: Article 61 of the Vienna convention
stated that “the impossibility of performance is a valid ground for
the termination of the treaty”. Thus a treaty may terminate when
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the performance of obligations imposed by treaty becomes

impossible.
g. Outbreak of war: Treaties may come to an end on the outbreak of
war between the parties. The modern view, however, is that the
outbreak of War does not necessarily bring a treaty to an end.
h. Number less than required for convention: If successive
denunciation (charge, blame) of a treaty reduces the number of
State parties less than required by the convention, the treaty
ceases to be in force.
i. Doctrine of rebus sic stantibus: It means major change in the state
of fact. According to this doctrine a treaty may become null, void
and stands discharged in case there is a fundamental change in
the state of facts which existed at the time, when treaty was
concluded.
j. Doctrine of Jus Cogen: According to this doctrine, a treaty may be
declared void if it conflicts with peremptory (authoritative) norms
of general International Law. Article 53 of the Vienna Convention
on the Law of Treaties, 1969 lays down, that a treaty is void, if at
the time of its conclusion it conflicts with a peremptory norm of
general International Law.
INTERPRETATION OF TREATIES: The general principles of the interpretation of
the treaty may be summed up in the following way:
1. Grammatical Interpretation: Words and phrases are in the
first instance to be construed according to their plain and natural
meaning. However, if the grammatical interpretation would result in an
absurdity or inconsistency or would clearly go beyond the intention of
the parties, such interpretation is avoided. For example,
2. Object and context of the Treaty: When there is an ambiguity in a
treaty, the object and context of the treaty may be taken in to
consideration for proper interpretation of the treaty. Art 31of the
Vienna Convention provides that a treaty should be interpreted with
reference to its object and purpose. For the interpretation it include
preamble, annexes to the treaty and related agreements or instruments
made in connection with the conclusion of the treaty.
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3. Reasonableness and Consistency: Treaties should be interpreted in a

manner in which reasonable meaning of words and phrases is preferred.
By the term consistency, it means that it should be interpreted in the
light of the existing International law.
4. The principle of Effectiveness: This principle requires that the treaty
should be given an interpretation which “on the whole” will render the
treaty “most effective and useful”, in other words enabling the
provisions of the treaty to work and to have their appropriate effects
which were intended by the States.
5. Recourse to extrinsic material: Normally, the interpretation is limited to
the context of the treaty yet when the context of the treaty does not
prohibit, the following extrinsic material may be considered while
interpreting a treaty:
a. Past history and the previous treaties between the same parties or
treaties between one of the parties and the third party;
b. Preparatory work like record of the negotiations, preceding the
conclusion of a treaty, the minutes of the meeting and of
committees, or preliminary drafts and draft amendments.
c. Interpretative Protocols or process-verbal, if any; and
d. Subsequent conduct of the parties as evidencing the intention of
the parties and their conception of the treaty.
INTERNATIONAL DISPUTE
International dispute is may be defined as a specific disagreement concerning a
matter of fact, law or policy in which a claim or assertion of one party is met
with refusal, counter-claim or denial by other. The dispute may exist between
States as well as other subject of International law like individuals, corporates,
non-State entities etc. International law concerns to settle disputes as early as
possible.
DISPUTE SETTLEMENT: Dispute settlement under International law is classified
into two wide categories as under:-
1. Peaceful or amicable means of settlement: Article 2(3) of UN Charter
emphasizes to settle international disputes by peaceful means in such a
manner that international peace, security and justice are not
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endangered. The various methods of settlement of dispute by peaceful

or amicable means are as following:
a. Negotiations: The term negotiation is used to denote intercourse
between states for the purpose of arriving at the settlement of
the dispute, or for relaxation of the international tension.
According to Oppenheim “International negotiation is the term for
such intercourse between two or more States as is initiated and
directed for the purpose of effecting and understanding between
them or settling a dispute.” In negotiation dispute management,
there’s no third party involvement.
b. Good Offices: When the parties refuse to negotiate, a third state
may come forward and tender it good office for the purpose of
conciliations. In the case of good office, a third party assists to
bring about a solution of a dispute between two States by
counseling of advice or suggesting of a settlement without
participation in the negotiation.
c. Mediation: In mediation, a third party either at its own initiation
or at the request of the disputing parties plays an active role of
middleman and participates in the negotiation. But the mediator’s
suggestions have no binding force and the parties are free to
accepts, reject or modify them.
d. Conciliation: According to Hudson “conciliation is a process of
formulating proposal of settlement after an investigation of the
facts and an effort to reconcile opposing contentions, the parties
to the dispute being left free to accept or reject the proposal
formulated.”
The term conciliation is used in two senses. Firstly, it
involves the amicable settlement of dispute with the aid of other
States or of impartial bodies of enquiry or Advisory Committees.
Secondly, it involves the reference of dispute to a commission or a
committee to make a report with proposal to the parties.
However, such proposals contained in the report are not of
binding nature.
e. Enquiry: It is a form for amicable settlement of disputes whereby
facts are investigated and a way for a negotiated adjustment is
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prepared. An enquiry differs from conciliation in the fact that the

object of enquiry is not to make any specific proposals for settling
international disputes but it is just to investigate and establish the
facts. The Hugue Conference of 1899 suggested the establishment
of international commission of enquiry for international disputes
involves neither honor nor vital interest and relating to point of
facts. The conference also provides that such commission might
be constituted by special agreement between the parties.
f. Arbitration: It is the most important method of settling
international dispute by peaceful means. Its value rests in quasi-
judicial character. It signifies the reference of a dispute to an
individual or small group of individuals to whom the parties state
their respective cases and whose decisions they are bound to
obey, unless they can show that the arbitrator has exceeded his
authority. The settlement of dispute by arbitration in the Alabama
claims between the United States and Great Britain went a long
way in emphasizing the importance of arbitration as a means of
settlement of dispute.
g. Judicial Settlement: Judicial settlement signifies the reference of
disputes to permanent tribunals for a legally binding decision.
After World War I, the Permanent Court of International Justice
(PCIJ) was established, which later on succeeded by the
International Court of Justice (ICJ) in 1945 as the principal judicial
organ of the United Nations for the settlement of dispute through
binding decisions and advisory opinions.
h. Settlement under the Auspices of the United Nations
Organization: It is one of the main objects of the United Nations
Organization to peacefully settle the dispute between States.
Article 2 of UN Charter imposes an obligation upon the members
of organization to settle their disputes by peaceful means and to
refrain from threats of war or the use of force. The General
Assembly is empowered to recommend measures for the peaceful
adjustment of any situation which is likely to impair the friendly
relations amongst the nations. The Security Council acts swiftly
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and decisively wherever a dispute is likely to endanger

international peace and security.
2. Forcible or coercive means of settlement: When States fail to agree their
disputes by peaceful methods they may take recourse to forcible means.
The various methods of settlement of dispute by forcible or coercive
means are as following:
a. Retorsion: Retorsion is an act of one State towards another, in
retaliation for a similar act by another State. It is designed to
injure the wrong doing state. According to Starke, ‘relation by a
State against discourteous or inequitable acts of another State,
such retaliation taking the form of unfriendly legitimate acts
within the competence of the State whose dignity has been
affronted’. Retorsion may take form of severe diplomatic
relations, or revocation of diplomatic privileges, or withdrawal of
tariff concession.
b. Reprisals: Reprisal is also an act of retaliation adopted by States
for obtaining redress from another State. It might take the form of
boycott of the goods of a particular State, an embargo or the
seizure of property or person. The main distinction between
reprisal and retorsion is that retorsion is not illegal though it may
be treated as unfriendly, whereas reprisals are illegal under
international law which can only be justified if the State against
which it is directed has been guilty of an international
delinquency.
c. Blockade: It consists in the temporary suspension of the
commerce of an offending or recalcitrant state by the closing of
access to its coasts or some particular part of its coast, but
without recourse to other hostile measures. This method is
obsolete under UN Charter. Starke considers this method as
advantageous because this is less violent than war.
d. Intervention: Interference is a dictatorial interference in the
affairs of another State for the purpose of maintaining or altering
the actual condition of things.
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e. War: War is the ultimate sanction of International law. When

other measures fail, the aggrieved State may impose terms of
settlement on the delinquent State by waging a war.
WAR, ARMED CONFLICTS AND OTHER HOSTILITIES

What is War? War under international law may be defined as the use of
violence and force between two or more States in order to resolve a dispute.
Starke defines war as “a contest between two or more States primarily through
their armed forces, the ultimate propose of each contestant or each
contestant group being to vanquish the other and impose its own condition of
peace.”
According to Hall “when differences between States reach a point at which
both parties resort to force, or one of them does acts of violence, which the
other chooses to look upon as a breach of the peace, the relation of war is set
up, in which combatants may use regulated violence against each other, until
one of the two has been brought to accept such terms as his enemy is willing
to grant.”
WAR v/s ARMED CONFLICTS: Although the term war is generally used to
denote armed conflicts but it does not necessarily suggest one idea. In general
sense the term war may include armed conflict, but in strict sense it may also
include non-armed conflicts. The term war is inter-present in two senses due
to following reasons:
1. The States attempt to escape the allegation of having violated the
obligation under any treaty by treating their armed conflicts as non-war
armed conflicts ;
2. Another reason for calling this hostility as non-war armed conflict is to
prevent non-contesting States from declaring their neutrality and
hampering the conduct of the hostilities by neutrality regulations;
3. The third reason is to localize the conflict and prevent it attaining the
dispension of a general war.
In short, we can say that there could be a status of war without armed conflict
or there could be an armed conflict not amounting to war proper or there
could be both war status and armed conflict.
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RIGHT TO RESORT TO WAR: It is one of the features of international law during

twentieth century that several attempts were made to regulate the use of war
as a method of settling disputes between States:
1. The Covenant of the League of Nations: This covenant imposed
restriction on member States regarding their right to resort to war.
According to this Covenant, the member-States could only resort to war
if there was a breach of obligation connected with an arbitration or
judicial settlement of certain dispute or where there was violation of the
recommendation of the League of Nations Council. The Covenant also
imposed restrictions on the right of States to take recourse to non-war
hostilities.
2. Briand Kellogg Pact, 1928: This pact is also known as Paris treaty was
signed for renunciation of war. The signatories of this treaty agreed to
not to resort to war as a method of solving international disputes and as
an instrument of national policy. They further agreed that they would
not seek the solution of disputes or conflicts between them except by
pacific means.
3. The Charter of the United Nations: The United Nations Charter was a
great step in abolishment of war as method of solving international
disputes. The Charter not only prohibits war but also prohibits such acts
which are threats to peace. The signatories of this charter agreed to
settle their disputes by peaceful means and they also agreed to submit
themselves to the overriding peace enforcement function of the Security
Council.
In conclusion it can be said that wars are out-lawed in international
law except for self-defense. The waging of a war in violation of treaty is
illegal and it is an act in the nature of a war crime.
RIGHT OF SELF-DEFENSE UNDER UNITED NATIONS CHARTER: The concept of
war as a method of settling international dispute does not exist in International
law. However, the State has the right to use force in the case of its self-
defense. Specifically, article 51 of United Nations Charter recognizes the right
of self-defense of a State. This article holds that, it is lawful for a State to use
force, either collectively or individually, when there is an armed attack against
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it but this right is subject to the enforcement action that may be taken by the
Security Council.
EFFECT OF WAR AND ARMED CONFLICTS: The outbreak of war has serious
consequences on the following:
1. Enemy Character of Persons or Things: After the outbreak of war, it
becomes essential to ascertain the enemy character of persons.
Although this varies from States to State, but certain common rules can
be formulated as under:
a. Hostile combatants and subjects of enemy’s states residing in
enemy territory are enemy persons;
b. Territory under the effective military occupation of the enemy will
be treated as an enemy territory;
c. Neutrals residing or carrying on business in enemy territory are
considered as enemy persons. But subjects of enemy’s states
residing in a neutral territory are not considered to be of enemy
character.
Ships and enemy character: A ship bearing enemy flag can be
considered to be of enemy character but sometimes an enemy owned vessel
even though bearing a neutral flag may be considered of enemy character
under the following circumstances:
a. If such ship participates in hostilities under the orders of enemy or
if they are in enemy employ for the purpose of conducting war, or
b. If they resist legitimate exercise of the right to visit and capture.
2. Diplomatic Relations: The diplomatic relations come to an end after the
breakout of war. The diplomatic representatives must proceed home
from the belligerent countries.
3. Treaties: The effect of war on treaties is an unsettled question of
International law. There are two views of Mr. Justice Cardozo regarding
the effect of war on treaties. According to older view, the war would
ipso facto result in the annulment of all treaties between belligerent
States. According to modern view, the war does not preserve treaties or
annul them regardless of the effects produced. According to second
view, two tests must be applied in this connection. The first test is to
ascertain whether the signatories of the treaty intended that the treaty
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should remain binding on the outbreak of the war. The second test is to
ascertain whether the performance of the treaty obligation would be
compatible with the conduct of the war. Applying these tests, Starke
sums up the effect of war on the treaties in the following way:
a. Treaties between belligerent States which presuppose the
maintenance of common political action or good relation between
them are abrogated. For example, treaty of alliance, etc.
b. Treaties representing completed situation or intended to set up a
permanent state of things are unaffected by war and continue in
force. For example, treaty of cession or fixing boundaries, etc.
c. Treaties relating to conduct of hostilities to which States are
parties remain binding. For example, the Hague Conventions of
1899 and 1907, and the other treaties prescribing rules of warfare.
d. Multilateral Conventions of the ‘law-making’ type relating to
health, drugs, protection of industrial property etc are not
annulled on the breakout of war, but are either suspended and
revived on the termination of hostilities, or receive even in
wartime a partial application.
e. Sometimes express provisions are inserted in treaties to cover the
position on the outbreak of war. For example, article 38 of Aerial
Navigation Convention, 1919, provided that in case of war the
Convention was not to affect the freedom of the sea of the
contracting States either as belligerent or as neutrals, which
means that during war the obligations of the parties became
suspended.
4. Enemy Property: Enemy property signifies a property either owner by
enemy State itself or by private citizens of the enemy State. Hence,
enemy property can be classified as under:
a. Enemy Public Property: Such property, if moveable, happens to be
in the territory of belligerent State, the belligerent State may
confiscate it. Such property, if immoveable, situated in the
territory of a belligerent State may be used by the belligerent
State but it cannot be acquired.
b. Enemy Private Property: The modern practive is to seize such
property temporarily but not to confiscate it. The disposal of such
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property will be determined by the Peace Treaty. Such private

property must not be plundered or confiscated or otherwise
interfered with unless it is of immediate use in war even though
such property is situated in occupied enemy territory. However,
enemy ships and cargoes can be seized and confiscated.
5. Prohibition of Trading: The outbreak of war may cease trading and
intercourse between belligerent States, however, special legislation is
introduced to cover the matter. International law gives the widest
freedom to the belligerent States to annul, suspend or permit such
contacts on the outbreak of war. This matter primarily concerns with
municipal law. Most of the States which may give aid or add to the
resources of the enemy to be void.
COMBATANTS OR NON-COMBATANTS: The term combatant refers to the
members of the regularly organized armed forces of a party to the conflict,
while the term noncombatant refers to those individuals who do not form a
part of the armed forces and who otherwise refrain from commission or direct
support of hostile acts. Traditionally, International law maintains the
distinction between combatants and noncombatants. Noncombatants are not
in principle to be attacked or injured; however, certain classes of
noncombatants, like merchants seamen, may be captured and made prisoners
of war.
Combatants may be lawful and unlawful. Lawful combatants are
those persons who commit belligerent act and may be killed or wounded in
battle and, if captured, they are treated as Prisoners of War. Unlawful
combatants are those persons who commit belligerent acts but do not qualify
for Prisoner of War Status under article 4 & 5 of Geneva Convention III of 1949
relating to treatment of prisoners of war. They are the persons who are
directly engaged in armed conflict in violation of the laws of war or are fighting
outside internationally recognized military forces. They may be captured and
detained, and prosecuted under municipal law of State for their offences.
MODES OF TERMINATION OF WAR & OTHER HOSTILITIES: Modes of
termination of war and hostilities can be classified into two as under:-
1. The Modes of Termination of Status of War: The modes of termination
of status of war are as under:-
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a. By Abstaining: The status of war may come to an end by the

belligerents abstaining from further acts of war and creating
peaceful relations without formally entering into a Peace Treaty.
This is an uncertain method therefore it has become almost
obsolete.
b. By Peace Treaty: The status of war may come to an end by the
belligerents signing a Peace Treaty. This is the most common
method of terminating war. The Peace Treaty might provide for all
the consequences of the termination of the war, like the
evacuation of territory, reparation, etc. If the treaty is silent
regarding certain consequences, the doctrine of postliminium may
be applicable, which means the invalidity of all illegitimate acts
that an occupant may have performed on a given territory after its
recapture by the legitimate sovereign. Furthermore, in such a case
the doctrine of uti posiditis would also be applicant, which means
that each State is entitled to retain such property as was actually
in its possession or control on the date of cessation of hostilities of
war.
c. By Armistice Agreement: The term armistice signifies a state of
peace agreed to between opponents so they can discuss peace.
Lawrence defines armistice agreement as an agreement to abstain
from active operation within a limited area for a short time. Such
agreements are generally a preclude to the signing of a peace
treaty.
d. By Unilateral Declaration: One or more of the victorious powers
may declare unilaterally the termination of the status of war.
e. By Conquest followed by Annexation: If one of the belligerent
State is completely conquered and annexed, there will end of the
war as the conquered State ceases to exist in the eyes of
International law.
2. Termination of other Hostilities: Other hostilities like the non-war
armed conflicts may be terminated by the following methods:
a. By Armistice Agreement: An Armistice agreement is an
agreement to temporarily suspend hostilities with intention to
establish a peace treaty or other negotiation. Such agreement
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might also be an agreement for the de facto termination of war,

which is generally a preclude to a Peace Treaty.
b. By Truce: Termination of hostilities by truce is very much similar
to termination by armistice agreement. The only difference
between these two modes of termination of hostilities is that
truce is much temporary while armistice included intention to
establish peace treaty or other negotiation.
c. By Ceasefire: When the United Nations Security Council or other
International Organ orders or requests the cessation of hostilities,
such cessation is known as ceasefire.
d. Agreement or Cessation of Hostilities: There might be an
agreement between the participating forces to terminate the
hostilities.
NEUTRALITY
The term neutrality is derived from Latin word ‘neuter’. Neutrality is a legal
status arising from abstention of a State from participation in war between
other States, the maintenance of an attitude of impartiality toward the
belligerent and the recognition by the belligerents of this abstention and
impartiality. Neutrality is a condition which exists only when there is a war.
This legal status gives rise to certain rights and duties between the neutral and
belligerents under International law.
Oppenheim: “An attitude of impartiality adopted by third States towards
belligerents and recognized by belligerents.”
Lawrence: “Conditions of those States which in times of war take no part in the
contest but continue pacific intercourse with the belligerents.”
Black’s Law Dictionary: The state of a nation which takes no part between two
or more other nations at war.
ESSENTIAL ELEMENTS OF NEUTRALITY: The essential elements of neutrality as
under:-
1. Impartial Attitude: Impartiality is an important element of neutrality,
which means that the States should not take part in war between other
belligerents.
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2. Recognition by Belligerents: The impartiality of neutral state should be

accepted or recognized by the belligerents. Such recognition gives rise to
certain rights and duties between neutrals and belligerents.
3. 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, the Law of Neutrality more
developed and credit for this goes to America.
RATIONAL BASIS OF NEUTRALITY: Starke mentioned the following
considerations as possible justification of neutrality:
1. It helps in limiting the area of war;
2. It discourages war;
3. It enables States to keep themselves aloof from the war;
4. It regulates the international relations.
RIGHT AND DUTIES OF NEUTRALS: The legal neutrality creates rights and
duties between neutrals and belligerents. The rights of neutrals are correlated
to the duties of belligerents and similarly the rights of belligerents are
correlated to the duties of neutrals. These rights and duties are classified as
under:
1. Duties of Neutral States: Duties of neutral States which are
correlated to the rights of belligerents are as under:-
a. Abstention: Abstention means restraint. The neutral State is
under a duty not to assist, directly or indirectly, a
belligerent State. For example, it must not supply troops, or
provide financial assistance, or provide shelter for a
belligerent.
b. Prevention: The neutral State is under a duty to prevent its
territory from being used for preparation of hostilities by
belligerent States or for carrying out any warlike measures
by such belligerents.
c. Acquiescence (compliance): The neutral State must
acquiesce in the acts of belligerent States with respect to
the commerce of its nationals if the laws of war duly
warrant them. If a belligerent suspects that the nationals of
the neutral State are supplying war materials to the other
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belligerent State, the suspecting belligerent State has the

right of inspection and seizure. For example, the seizure of
vessels under its flag for the carriage of contraband,
adjudication by Prize Courts, and so on.
d. Restoration: According to Lawrence, a neutral State is
under a duty to restore when a belligerent breaks the law
and flouts neutral sovereignty to the detriment of its
enemy. For example, if one of the belligerent State captures
a prize within neutral powers, the neutral State has a right
to ask for the restoration of the prize captured by the
enemy.
e. Reparation: According to Lawrence, when a belligerent
State suffers by the failure of the neutral State in its duties,
the belligerent State can demand reparation.
2. Duties of Belligerent States: Similarly, the duties of the belligerent
States having correlative rights of neutral States may be
summarized as under:-
a. Abstention: A belligerent State must abstain from
committing warlike acts on neutral territory or enter into
hostilities in neutral water or in the airspace above neutral
territory, nor may it interfere with the legitimate
intercourse of neutrals with the enemy, nor may it use
neutral territory or waters as a base for belligerent
operation, or as a starting point for an expedition.
b. Prevention: A belligerent State is under a duty to prevent ill-
treatment or injury to the persons or the property of the
neutral State.
c. Acquiescence (compliance): A belligerent State is under a
duty to acquiesce in any of the neutral State which such
neutral State might do to safeguard its neutrality. For
example, if the neutral State interns the members of the
armed forces of one of the belligerent States who take
refuge in a neutral territory, a belligerent State is under a
duty to acquiesce in such activities, or in the granting of
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temporary asylum by neutral ports to hostile warships so

that necessary repairs may be effected.
UNNEUTRAL SERVICE: The terms ‘unneutral service’ signifies ‘the acts
performed by neutrals which involve an entry for the time being into the
service of a belligerent, and the doing direct advantage to him in his war.’ Such
unnuetral service is rendered by neutral vessel by giving material assistance to
a belligerent. For example, if a private vessel of a neutral State carries troops of
one belligerent State or transmits military intelligence for his use by radio. In
such a case, the other belligerent State has a right to inflict penalty on them
according to immensity of the unneutral act. The belligerent State is also
empowered to take action against such unneutral service by confiscation and if
necessary by destruction of the vessel or the aircraft.
Ingredients of Doctrine: According to Starke, the following are the ingredients
of the doctrine:
1. It is a duty imposed on individuals;
2. Such individuals are either the owners or persons in-charge of neutral
vessel or aircraft;
3. It is a duty to employ the vessel or aircraft for any object or purpose
which may advance the interest of one of the belligerent State or injure
the interest of the other belligerent State.
CONTRABAND: The term contraband refers to the trade of goods which are
prohibited. In war, the term contraband denotes to the carrying unlawful
commodities to the belligerents or their armed forces.
Oppenheim: “contraband is the designation of such goods as are forbidden by
either belligerent to be carried to the enemy on the ground that they enable
him to carry on the war with greater vigour.”
The doctrine of contraband can be traced back to Declaration of Paris, 1956. It
is based on the right of a belligerent to condemn neutral property which is
destined for the use of its enemy. The belligerents may seize enemy
contraband goods which are being carried to an enemy destination on neutral
ships, or neutral contraband goods which are being carried to enemy’s
destination or enemy’s ships.
When war breaks out, the carrying on of trade by the citizens of either
belligerent becomes unlawful, but the same general interruption does not
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extend to the commercial intercourse between the belligerents and neutrals.

The intercourse between belligerents and neutrals continues. This
continuation is not regarded as a favour to the belligerents but as a right
belonging to neutrals.
Classification of Contraband: The article for the purpose of contraband can be
classified into three categories, as under:-
1. Absolute Contraband: Article clearly of warlike military character like
arms, ammunition, or machinery for the manufacture of such arms are
considered to be absolute contraband. They can be seized or confiscated
if intended for enemy destination.
2. Relative Contraband: Articles which may be used both for the purpose
of peace and of war considered to be relative contraband. For example,
foodstuff, clothing, fuel, etc. these articles can be seized if destined for
the armed forces of a belligerent.
3. Free Articles: Articles which may be useful for war and bound for the
belligerents but exempted from the law on contraband for humanitarian
reasons. For example, medicines, soap, paint, fancy goods, etc., are
considered as free articles. These articles can never be seized and they
can never be treated as contraband.
Distinction between Unneutral and Contraband: Unnertral service
essentially differs from contraband.
 Firstly, contraband is done purely as a matter of trade and its subjects
are commodities. Whereas unneutral service includes acts which are
not the acts of ordinary commerce but attributes to warlike, such as
carrying non-military individuals in the service of the enemy,
transmission of political dispatches, etc.
 Secondly, for legal confiscation of the contraband merchandise
enemy destination is essential. Whereas nature of mission, not
destination, is essential in unneutral service.
 Thirdly, in case of contraband, the noxious cargo is primarily
confiscated and the vessel is condemned in aggravated cases.
Whereas in case of unnetral service, the cargo is confiscated,
alongwith any unlawful things she may be carrying, in rare instances.
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 Lastly, the carriage of contraband does not necessarily take place in

the direct service of the enemy. Whereas, in unneutral service the
carriage of persons and dispatches for the enemy usually takes place
in the direct service of the enemy and consequently represents much
more intensive assistance to him and much more intimate
connection with him.
Effect of Carriage of Contraband: The following consequences can occur on
the carriage of contraband:
1. Contraband material can be seized but only in belligerent sea or
territorial waters and not in neutral territorial waters. Sometimes even
the ship carrying the contraband cargo is liable to seizure.
2. Cargo or the vessel so captured must be confirmed as contraband by the
adjudication of a Prize Court established by that State. If the Prize Court
holds that the seizure was legitimate, the cargo or vessel is declared to
be a good prize.
3. The cargo or the vessel declared as a good prize can be confiscated by
the State which has captured them.
PRIZE COURTS: The origin of a Prize Court or Prize laws goes back to the
Middle Ages in England. The enemy property seized in the sea in violation of
the rules of contraband or blockade are called ‘prize’, whose legitimacy is
determined by ‘Prize Courts” established under Municipal law of belligerents in
times of war. These courts apply international law to a great extent. It is
because the right of belligerents to seize contraband or blockade goods or
vessels is not absolute but subject to adjudication of a Prize Courts. If the Court
confirms the legitimacy, such seizure is considered ‘good prize’ and can be
confiscated by the Captor State. One the decree of condemnation passed, the
question of disposal of goods becomes the matter of Municipal law to
determine.
BLOCKADE: Blockade signifies an act of sealing off a place to prevent goods or
people from entering or leaving. It is an act whereby belligerent blocks entry to
or departure from a defined part of an enemy’s territory, most often its coasts.
J.G. Starke: “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.”
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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.”
Essential elements of Blockade: The following are the essential elements of
blockade:
1. It should be done by men of war;
2. It may prevent ingress or egress or both;
3. The part or whole of the enemy coast can be blockade;
4. Blockade should be such that no discrimination is made between the
ships or aircrafts of different countries;
5. Blockade is an act of war;
Essentials of Binding Blockade: In addition to other ingredients of blockade,
following are the essentials of a real and binding blockade:
1. Proper Establishment: A blockade must be established under the
authority of a belligerent Government, or a naval commander specially
authorized to declare a particular blockade.
2. Effectiveness: The blockade must be duly effective. It should not be a
fictitious or paper blockade, but should be maintained by a force
sufficient to prevent access to the coasts of the enemy.
3. Continuously Maintained: The blockade must be continuously
maintained. When the blockading squadron is driven off by superior
force of the enemy, it is held that the blockade is null and defective from
beginning. However, the blockade will not be impaired if the blockading
squadron is temporarily withdrawn due to bad weather.
4. Notification: A blockade must be notified. Such notification may be
made either by a belligerent Government or by a commander of a naval
force acting on behalf of his State and must specify the date when
blockade begins, the geographical limits of the coastline under blockade
an the period within which neutral vessels may come out.
5. Impartiality: The blockade must be universal without discrimination
with the vessels of any nation. If a belligerent favours vessel of any
nation, such blockade becomes inoperative.
6. Access to Neutral Coasts: The blockading force must no bar acess to
neutral ports or coasts.
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Breach Of Blockade: Ships which break blockade by entering to or leaving the

blockade area are liable to seizure by belligerent operating the blockade.
However, such seizure will be subject to adjudication of the Prize Court and if
the Prize Court declares the ship as good prize, it is liable to be confiscated.
Cessation Of Blockade: A blockade ceases to exist on the happening of either
of the following contingencies:-
1. By termination of war;
2. When the Government which has imposed blockade withdraws it;
3. When it ceases to be effective by reason of interruption
(discontinuation) or other means;
4. When the blockading squadron is defeated and driven off by a hostile
force;
5. When it is withdrawn for a chase or an action; and
6. When the place or port under blockade is occupied by a victorious
belligerent.
INTERNATIONAL INSTITUTIONS
INTERNATIONAL ORGANIZATIONS: International organization is an association
of states, established by a treaty or other instrument between two or more
states and governed under international law. It is a subject of International law
and possesses its own international personality.
International organizations include universal purposes organizations
and regional organizations. Generally, the treaty creating international
organization indicates its nature, purposes and powers. The international legal
personality of an international organization is, therefore, limited to the rights,
duties, purposes and powers laid down in the treaty creating it. In reality,
international organizations have exercised their legal capacity in a great variety
of ways. They have concluded treaties, created military forces, convened
international conferences, and brought claims against States.
Structure of International Organizations: In order to work efficiently,
International organizations have generally three organs:
1. Executive Organ: The executive functions of an International
organization, as opposed to that of States, are administered through
agencies or States. The activities of the International organizations can
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be either promotional or operational. In its promotional activity, the

International institution inspires cooperation between States. For
example, Food and Agricultural Organizations and the World Health
Organization are primarily promotional in their activity. The operational
activities of these organizations would consist of direct performance of
certain duties. Modern International institutions mostly perform
promotional activities, rather than operational activities.
2. Legislative Organ: The International legislative functions are performed
by some international institutions like General Assembly of the United
Nations, the International Labour Council and the World Health
Assembly. These international institutions perform legislative functions
in the form of conventions and sometimes by adopting certain
regulations. There also exist delegated legislation and subordinate law
making.
3. Judicial Organ: International Judicial functions are vested in the
International Court of Justice and they may also be vested in other
International tribunals.
Characteristics of International Organizations: Although the constitutions of
International organization vary incase of each institution, however, they may
have some common features as under:-
1. Constitutional Seat of Headquarters: An International organization has a
headquarters whose location is fixed by its constitution.
2. Membership: The constitution generally provides who the original
members are, who can be subsequently admitted and how they can be
admitted.
3. Multilateral Agreement: The formation of international organization
shall base on international multilateral agreements usually known as
Charter.
4. Condition of Withdrawal, Expulsion or Suspension of Members: The
constitution generally provides that a member State might withdraw
after some notice and the circumstances under which a State can be
expelled or suspended are also provided in the constitution.
5. The Principal and Subsidiary Organs: Generally every International
organization has some principal organs which include: 1) A policy-making
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body, 2) An executive body and 3) a secretariat. They might have

subsidiary or auxiliary organs for their respective functions.
6. Voting Rights: Generally every member has the right to vote and
decisions or resolutions are adopted by majority of votes. However,
special system of voting might be provided by the constitution.
7. Procedural Rules: Generally the constitution of International
organization might provide some detailed rules regarding the budget of
the institution and also its detailed working. Such power to make rules
regarding working of the institution may also be given to the policy-
making body.
8. Common Aims or Objectives: An international organization is generally
set up for achieving some specific object or purpose. This is intrinsic
nature of all the international organization. For example maintenance of
peace and security, health, etc.
Classification of International Organizations: International organizations may
be classified into bread fields as under:-
1. Classification by Scope and Membership: On the basis of scope and
membership, the international organizations may be classified as under:
a. Inter-Governmental Organizations: These organizations are made
up of sovereign States only and no non-actor can be its member.
Such as United Nations (UN), Council of Europe (CoE), World Trade
Organization (WTO), etc.
b. International Non-Governmental Organization: The membership
of these organizations is not only limited to States but non-State
actors can also be its members. These are essentially nonprofit,
private organizations that engage in a variety of international
activities, such as Amnesty International, Greenpeace,
International Committee for Red Cross, etc.
2. Classification by Geographic Coverage: On the basis of geographic
coverage, the international organizations may be classified as under:
a. Global Organizations: This type of organizations draws its
members from all over the world and membership is open to all as
long as certain criteria are met. For example, United Nations,
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World Trade Organization, International Monetary Fund and

World Bank, etc.
b. Regional Organizations: The membership of these organizations
is characterized by boundaries and demarcations, such as
continents, geopolitics and economic blocks. These have been
established to foster cooperation and political and economic
integration or dialogue amongst states or entities within a
restrictive geographical or geopolitical boundary. Most regional
organizations tend to work alongside well-established multilateral
organizations such as the United Nations. For example,
Association of Southeast Asian Nations (ASEAN), South Asian
Association for Regional Cooperation (SAARC), etc.
c. Sub-Regional Organizations: The membership of these
organizations is limited to certain sub-regions and members from
other regions are not allowed to join. For example, East Africa
Community (EAC), Economic Community of West Africa States
(ECOWAS), etc.
3. Classification by Functions: On the basis of functions, the international
organizations may be classified as under:
a. General Purpose: These are the organizations that have
competence in a wide range of topics, i.e., political, economic,
cultural, social, security and many others. A good example is the
United Nations umbrella that has many organs within it covering
wide range of issues such as the General Assembly (the main
deliberative assembly); the Security Council (decides certain
resolutions for peace and security); the Economic and Social
Council (assists in promoting international economic and social
cooperation and development); the Secretariat (provides studies,
information, and facilities needed by the UN) and the
International Court of Justice (the primary judicial organ). Other
examples include African include, Economic Community of West
Africa States, and Association of South East Asian States.
b. Specialized Organs: These organs share the characteristics of
specializing only in one function. For example, United Nations
family of specialized agencies such as Food and Agriculture
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Organ(FAO), World Health Organization (WHO), World

Metrological Organization (WMO), and many others.
LEAGUE OF NATIONS: The League of Nations was an international organization
founded at the end of World War I in order to prevent warfare and for the
resolution of disputes through negotiations and diplomacy.
Establishment: The League of Nations was established at Paris Peace
Convention, 1919 under the Treaty of Versailles concluded between the
victorious Allied and Associated Powers and defeated Germany on 28th June,
1919. The Covenant of League was a short and concise document of 26
articles. Accordingly it started its functions on 10th January, 1920. Its
headquarters were in Geneva, Switzerland.
Membership: The Congress of US did not ratify the treaty. Thus the original
member of the league included the victorious powers of Word War I i.e., the
British Empire, Italy, Japan, China, etc.; and most of the neutral States acceded
to the Covenant of League, i.e., Switzerland, Norway, Spain, etc and other
States which later admitted to the membership of league.
Functions and Objects: The main functions of the League were as under:-
1. The maintenance of international peace and security; and
2. The promotion of International cooperation.
Constitution: Article 2 to 5 of the Covenant established the Working machinery
of the League consisted of the Assembly, the Council and the Secretariat:
1. Assembly: The Assembly of the League of Nations was composed of
representatives of all members. Article 3 of the Covenant provided that
each member of the league could send 3 representatives to the
Assembly but the members had only one vote each. The matters
requiring decision by a majority of members of the League was
presented in the Assembly. The Assembly met annually at Geneva.
2. Council: It was the executive of the League. It consisted of 4 permanent
members including British, France, Italy and Japan and nine other
members to be elected by General Assembly every three years. The
council met 4 to 5 times a year or periodically to settle international
disputes. Its main function was to settle international disputes.
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3. Secretariat: The Secretariat was a permanent body established at

Geneva. It was headed by a General Secretary who appointed the
secretaries and other staff. The main function of Secretariat was to carry
out administration work of the League. It prepared agenda for the
Council and the Assembly and kept minutes of the meeting.
Causes of Failure: The following were the reasons of the failure of League of
Nations:
1. Absence of Great Powers: The absence of the great powers from the
International organization weakened her and was partly responsible for
its ultimate failure. Moreover, Japan, Germany and Italy left the League
which also affected the league.
2. Domination of France and England: It was felt that the League of
Nations was dominated by England and France, and consequently other
States began to lose their confidence in the League.
3. Rise of Dictatorship: The rise of dictatorship in Italy, Japan and Germany
also weakened the League. Japan invaded China in Manchuria in order to
acquire fresh territories and on condemnation by League, Japan left
League of Nations. Italy also invaded Abyssinia, when League decided to
take action against Italy for its aggression against Abyssinia, Italy also left
the League. In the wakeup spreading dictatorship States continued to be
the members of the League so long as their national interests were not
in any way endangered and sacrificed.
4. Limitation of the Legal Methods: The League demonstrated the
limitations of the legal methods. It would have worked efficiently if there
existed a realization of a community of interest. According to Lincoln,
“Public sentiment is everything. With public sentiment nothing can fail;
without it nothing can be succeed.
5. Loss of Faith in the League: The small States lost their faith in the
effectiveness of the league to save them from any aggression as the
principle of security was weakened by practice of States to follow their
own policies.
6. Narrow Nationalism: Narrow nationalism was dominant among the
peoples of the world. France was increasingly concerned with her
national security, the Great Britain promoted commerce by fostering
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International trade, Japan intoxicated by her emergence as a world

power, while Italy was desperate to redress her damage. Germany was
indulged to retain her national prestige at the cost of an aggressive
military adventure.
7. Lack of Mutual Cooperation: There was lack of mutual cooperation
among the members of the League which is essential for the success of
an organization.
UNITED NATIONS ORGANIZATION: United Nations Organization is an
Intergovernmental Organization which was established at the end of World
War II on 24th October, 1945. It is the second multipurpose organization
established in 20th century that was worldwide in scope and membership. It is
the predecessor of League of Nations which was established under the Treaty
of Versailles, 1919. It occupies headquarters in New York City and regional
offices in Geneva, Vienna and Nairobi. At present 193 countries are the
members of United Nations.
Development of UNO: The following declarations were responsible for shaping
the form of the United Nations:
1. Atlantic Charter: It was a joint declaration issued by the US President
Franklin D. Roosevelt and Britain PM Churchil 14th August, 1941. The
Charter provided a broad statement of US and British war aims. The
Charter condemned the use of force, territorial aggrandizement,
envisaged security from aggression, and freedom to choose the form of
government to the people. the dismantling of the British Empire, the
formation of NATO, and the General Agreement on Tariffs and
Trade (GATT) all derive from the Atlantic Charter.
2. United Nations Declaration: On 1st January, 1942 the representatives of
26 nations signed United Nations Declaration at Washington to pledge
their support for Atlantic Charter. This document contained the first
official use of the term “United Nations” which was suggested by US
President Franklin Delano Roosevelt.
3. Moscow Declaration: This declaration was issued on 1st November, 1943
by the Governments of Great Britain, the United States, Russia and
China. This declaration recognized the necessity of establishing a general
International organization based on the principle of sovereign equality of
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all peace-loving States and open to membership of all such States, large
and small, for the maintenance of international peace and security.
4. Dumbarton Oaks Conference: This conference was convened in
Washington in September 1944 for the purpose of translating into action
the principles of the Moscow Declaration, 1943. The representatives of
Great Britain, the United States, Russia and China attended the
conference. It was in this conference that the first blue print of the
United Nations Organization was prepared, which came to be known as
Dumbarton Oaks Proposals.
5. Yalta Conference: This conference was attended by Roosevelt, Churchill
and Stalin in February, 1945 whereby they agreed to call a general
conference of about 50 nations to consider the constitutions of the
United Nations based on the Dumbarton Oaks Proposals.
6. Sanfrancisco Conference: In between 25th April and 26th June, 1945, the
delegates of 50 nations met at Sanfrancisco, whereby they fully
discussed Dumbarton Proposals and the Yalta Agreement and ultimately
the Charter of the United Nations and the Statute of International Court
of Justice were unanimously adopted. The Charter came into force on
24th October, 1945.
Objects of United Nations: The objects of the United Nations are set forth in
the Preamble. The Preamble States that “We the people of United Nations” are
determined to do the following:-
1. To save the succeeding generation from the scourge of war;
2. To reaffirm faith in fundamental human rights and in the dignity and
worth of human person;
3. To reaffirm faith in the equal rights if men and women and all nations
large and small;
4. To establish conditions under which justice and respect for International
law and International obligation can be maintained;
5. To promote social progress and better standards of life and larger
freedom;
6. To unite our strength to maintain International peace and security;
7. To ensure that armed forces shall not be used save in the common
interest;
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8. To employ international machinery for the promotion of economic and

social advancement of all the people.
The object of United Nations can be concluded into ways. Firstly, by prohibiting
the use of armed forces and secondly by promoting conditions conductive to
the preservation and maintenance of peace.
Principles of United Nations Charter: The principles of the United Nations
Charter can be briefly summarized as under:-
1. The sovereign equality of all the Members of the Organization;
2. The Members are under duties of peaceful settlement and of
participation in the system of collective security and of the enforcement
of the peace;
3. The Members have mutual benefits and obligations under the Charter;
4. The Organization can intervene in the actions of the non-member States
to the extent it is necessary for maintenance of International peace and
security;
5. Matters of domestic jurisdiction are excluded from the sphere of
intervention by the United Nations.
Membership of United Nations: The Members of the United Nations are of
two kinds:
1. Original Members: Original Member of the UN are those who either
participated in Sanfrancisco Conference, 1945 or; who previously signed
United Nations Declaration, 1942 and by signing the present Charter and
ratifying it according to Article 10.
2. Members Subsequently Admitted: According to article 4 of UN Charter,
the States may be admitted as members of UN by a decision reached by
2/3rd majority of the assembly on the recommendation of the Security
Council. The Security Council shall recommend by a majority of seven
Members of the Council including the concurring votes of the Permanent
Members in accordance with article 27.
Qualification of Members to be Admitted: Article 4 para 1, lays down the
following three qualifications of the States which can be admitted as Members
of the United Nations. These are the following:
1. A State must be peace-loving;
2. It must accept the obligations contained in the Charter;
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3. In the judgment of the Organization, it must be able and willing to carry

out these obligations.
Suspension and Expulsion: Article 5 provides that a Member State, against
which preventive or enforcement action has been taken by the Security
Council, may be suspended by the General Assembly upon the
recommendation of the Security Council.
Article 6 provides that the General Assembly may expel upon the
recommendation of the Security Council any Member State which is
persistently violating the principles contained in the Charter.
Organs of the United Nations: The following are the major organs of the
United Nations:
1. General Assembly;
2. Security Council;
3. Economic and Social Council;
4. Trusteeship Council;
5. International Court of Justice;
6. Secretariat.
GENERAL ASSEMBLY: The General Assembly is the largest organ of United
Nations. It is the only principal Organ which consists of all the Members of the
United Nations. Each State can send up to five members but is entitled to one
vote only. It meets regularly once a year for three months, but special sessions
may also be summoned by Secretary General at the request of the Security
Council or of a majority of the Members or at the request of one Member
concurred in by a Majority of the Members.
Functions and Powers: The powers and functions of the General
Assembly are summed as under:-
1. It can discuss any matter and recommend in relation to the maintenance
of international peace and security;
2. It makes recommendations for peaceful settlements of disputes;
3. It supervises the International Trusteeship Council;
4. It passes the budget of the UN and holds other financial powers;
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5. It elects the non-permanent members of Security Council and also elects

the members of the Economic and Social Council and the Trusteeship
Council;
6. It is empowered to admit, suspend and expel Member States;
7. It can amend the UN Charter and adopts International Conventions;
8. It receives and considers the reports on the work of the United Nations.
SECURITY COUNCIL: The Security Council is the most important, effective and
continuously functioning body consisting of 15 Member-States. Among its
members, five are permanent members including China, France, Russia, Britain
and United States, while the ten non-permanent members are elected for two
years by the General Assembly. Each member is entitled to one vote. Every
decision is taken by a majority vote of at least 9 members including five
permanent members and each permanent member has the power to reject or
veto a decision. The Security Council meets atleast once a year, but in the
event of an emergency meeting may be held whenever required.
Functions: The main functions of the Security Council are as under:-
1. To maintain international peace and security in the world;
2. To investigate international disputes and recommend appropriate
methods of settling them;
3. To call on member states to apply economic sanctions against the
aggressor and thus to put pressure on the guilty state to stop aggression;
4. The Security Council may take military action against the aggressor, if
required.
ECONOMIC AND SOCIAL COUNCIL (ECOSOC): This organ of United Nations is
responsible for the direction and coordination of the economic, social,
humanitarian, and cultural activities carried out by the UN. It consists of 54
members elected by the General Assembly for a term of three year.
Functions and Powers: The main functions and powers of the
Economic and Social Council of the United States are as under:-
1. It may make or initiate studies and reports with respect to international
economic, social, cultural, educational, health and related matters;
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2. It may make recommendations to the General Assembly, to the

members of the United Nations and to the specialized agencies
concerned in respect of any such matters;
3. It may make recommendations for the purpose of promoting respect
for, and observance of human rights and fundamental freedoms for all;
4. It may prepare draft Conventions for submission to the General
Assembly, with respect to matters falling within its competence;
5. It may call International Conference on matters falling within its
competence;
6. It may coordinate activities of the specialized agencies and obtain
regular reports from them;
7. It may communicate its observance on these reports to the General
Assembly and also to the Security Council.
TRUSTEESHIP COUNCIL: The Trusteeship Council was setup immediately after
the Second World War in order to ensure the proper administration and
development of those areas of the world that are under foreign rule. It is made
up of the five permanent members of the Security Council including China,
France, Russian, Britain and United States. The council fulfilled its mission and
suspended its operation on 1st November, 1984 as all the trust territories
attained self-government or independence, either as separate nations or by
joining neighbouring independent countries. However, it continues to exist on
papers of UN Charter and meets occasionally whenever required.
Functions: Under the Charter, the Trusteeship Council is authorized
to examine and discuss reports from the Administering Authority on the
political, economic, social and educational advancement of the peoples of
Trust Territories and, in consultation with the Administering Authority, to
examine petitions from and undertake periodic and other special missions to
Trust Territories.
INTERNATIONAL COURT OF JUSTICE: The ICJ, also known as World Court, is a
very important and principal judicial organ of United Nations. It was
established under UN Charter 1945 and is a successor of Permanent Court of
International Justice established under the covenant of the League of Nations.
The Court is seated in the Peace Palace in Hague, Netherlands, making it the
only principal UN organ not located in New York City. All the members of
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United Nations are parties to the Statute. Even non-member States may
become parties to it on conditions to be laid down in each case by the General
Assembly upon the recommendations made by Security Council.
Structure: The Court comprises of a panel of 15 Judges to be elected for a term
of 9 years by the General Assembly and Security Council. There is no more than
one judge from a single State. The Court elects President and Vice-President
for three years. The Court remains permanently in session except during
judicial vacation.
Jurisdiction of the Court: The Court’s jurisdiction is twofold as under:-
1. Contentious Jurisdiction: It decides, in accordance with international
law, disputes of a legal nature that are submitted to it by States.
2. Advisory Jurisdiction: It gives advisory opinions on legal questions at the
request of the organs of the United Nations, specialized agencies or one
related organization authorized to make such a request. Advisory
opinion can be sought on legal question only and shall not be binding.
SECRETARIAT: The Secretariat is the principal administrative department of
United Nations. It is headed by Secretary General appointed by the General
Assembly on the recommendation of the Security Council for a term of five
years. He is the Chief Administrative Officer of the Organization. He appoints
the staff of Secretariat among member-States. He organizes conferences,
oversees peacekeeping operations, drafts reports on economic and social
trends, prepares studies on human rights, mediates in international disputes
and prepares budget estimates.
INTERNATIONAL CRIMINAL COURT: International Criminal Court is an
intergovernmental and international tribunal, which sits in Hague,
Netherlands. It began to function on 1st July, 2002 under Rome Statute, which
is a multilateral treaty and serves as the ICC’s functional and governing
instrument. It has jurisdiction to prosecute individuals for crimes of genocide,
crimes against humanity, war crimes and crimes of aggression. The jurisdiction
of ICC is complementary, which is only exercised if the national Courts are
unable or unwilling to prosecute, or when United Nations Security Council or
individual States refer situations to the Court.
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EUROPEAN COURT OF HUMAN RIGHTS: European Court of Human Rights was

established in 1959 by the European Convention of Human Rights. The Court
supervises the enforcement of ECHR. Its headquarters is in Strasbourg, France.
The Court not only hears cases from States but also from those individuals
believing in violation of their human rights and could not remedy their claim
through their national legal system. The court may award compensation and
its decisions often require changes in national law. Aside from decisions, the
Court may also give advisory opinions.
Constitution: The Court consists of 40 judges elected for nonrenewable term of
9 years; however, it normally works in seven judge chambers.
In order to handle the growing number of cases more efficiently, the
European Court of Human Rights and the European Commission of Human
Rights, which was established in 1954, were merged in 1998 into a
reconstituted Court and enabled to hear individual cases without the prior
assent of the individual’s national government.
EXTRADITION
Extradition is a Latin term for extradition meaning 'to give up'.
Oppenheim: “Extradition is the delivery of an accused or a convicted individual
to the State on whose territory he is alleged to have committed, or to have
been convicted of a crime.”
Extradition is the process by which one State, upon the request of
another, effects the return of a person (fugitive) for trial of a crime punishable
by the laws of the requesting State and committed outside the State of refuge.
Extraditable persons include those charged with a crime but not yet tried,
those tried and convicted but escaped custody, and those convicted in
absentia.
Explanation: Generally each State has full jurisdiction over all its subjects with
its territory, but sometimes a State becomes helpless to punish a guilty person.
It may be so because such person after committing crime fled to another
country. So if there is no cooperation between States in handing over the
fugitives to the affected States, the end of justice real spirit cannot be attained.
Therefore, the States adopt the doctrine of extradition. In other words, the
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States hand over the criminals to the affected States in the administration of
justice.
Moreover, according to the principle of territoriality of criminal law,
States do not apply their penal laws to acts committed outside their
boundaries except in the protection of special national interests. However, in
order to suppress crimes, States generally have been willing to cooperate in
bringing fugitives to justice.
The general principle of International law is that a state does not
have any obligation to surrender an alleged criminal to a foreign state, because
one principle of sovereignty is that every state has legal authority over the
people within its borders. Such absence of international obligation and the
desire for the right to demand such criminals from other countries have caused
a web of extradition treaties or agreements to evolve.
Conditions of Extradition: Starke classifies the conditions of extradition into
two as under:-
1. Extraditable Person: The object of extradition can be any individual
whether he is a national of the prosecuting State or extraditing State or
any third State. However, many States such as France and Germany have
adopted the principle of never extraditing their nationals to a foreign
State, while States like Britain make no distinction between their
nationals and others.
2. Extradition Crime: The crime for which extradition is requested must be
a serious crime. Some countries prescribe certain crimes for extradition.
As a rule, extradition is not granted when the person is accused of
following crimes:
a. Political Crimes: There is an important principle in International
law that political crimes shall not be extradited. Political crimes
are those crimes committed with political motive or political
purpose. The practice of non-extradition of political crimes began
with French Revolution of 1789.
b. Military Offences: Military criminals who have not been charged
of war crimes also shall not be extradited.
c. Religious Offences: Religious offences shall also not be extradited.
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3. Double Criminality: Double criminality is another bar on extradition.

According to this principle, the crime which is alleged to have been
committed by the person whose extradition is demanded, must be a
crime both according to the State of asylum and of the requesting State.
4. The Rule of Specialty: According to this rule, a State demanding
extradition of a person on the ground that he has committed a particular
crime can only try him for that particular crime and for no other.
STATE RESPONSIBILITY
Strake: “The rules of International law as to State responsibility concern the
circumstances in which and the principles whereby, the injured State becomes
entitled to redress for the damage suffered.”
State responsibility refers to ‘liability’ of a State under International law.
Every State owes some rights and duties. Generally, the rights and obligations
are correlative and the rights of one State are duties of other State. In case a
State violates its duties as provided under International law, it becomes
responsible to other State having corresponding rights under International law
and such aggrieved States has right to claim compensation from the
responsible State. State responsibility may incur during the time of peace or
even during the time of war.
Essentials of State Responsibility: Merely an allegation of violation of
International obligation does not amount a state to be responsible, there
should be attribution of the violation with the commission or omission of any
act of the state. There are two elements in order to hold a state responsibility
for wrongful act:-
1. The act or omission must be attributed to the State;
2. It must constitute a breach of an international obligation of the state.
Kinds of State Responsibility: There are two kinds of State responsibility, direct
responsibility and indirect responsibility. These kinds are as under:-
1. Direct Responsibility: Direct responsibility means the responsibility of
the State for its own acts. A state being a legal person performs its
function through different organs and agencies and if any wrong act is
done by any one of them, the State becomes responsible directly on
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their behalf. The organs and agencies of the state includes the
following:-
a. Executive and Administrative Organs: This act is also known as
‘International delinquency’. When an act causing injury to another
State is committed by the head of the Government or an official,
or other individuals, commanded or authorized by the head of
government, a state becomes responsible for their acts.
b. Acts of Judiciary: Judiciary is independent under International
Law; however, if the Court gives any such judgment which is
contrary to International law or obligations of the State then a
State is responsible.
c. Acts of Members of Armed Forces: A State becomes responsible
for all injurious acts of members of its armed forces if such acts
has been commanded or authorized by the State and not
otherwise
d. Diplomatic Representatives: Diplomatic representatives enjoy
immunities in receiving State and their acts are excluded from the
jurisdiction of receiving State. However, a State becomes
responsible for those injurious acts which are performed by them
under the command or the authorization of sending state.
e. Constituent Units of Federal States: A federal State is responsible
for the wrongful acts of its constituent units and it cannot throw
away their responsibility by alleging that its constitutional power
or control over them is insufficient.
2. Indirect Responsibility: Indirect responsibility, also known as vicarious
responsibility, is the responsibility of State for the acts other than its
own. Indirect state responsibility is an obligation of the State to prevent
its own subject as well as foreign subject living within its territory from
committing such acts which may cause injury to another State. If any
wrongful act is done by an individual or group of individuals, a State to
which they belong is held responsible for their acts. However, State
responsibility arises only when the organ of the state have not exercised
sufficient care in preventing the offense.
Oppenheim: "If State has not exercised due diligence, it can be made
responsible and held liable to pay damages".
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For Example: Crime against foreign sovereign or Ambassadors, Offences

to the flag of foreign State, injurious propaganda directed against a
foreign State.
a. State Responsibility for the Acts of Mob Violence: A state is
responsible for the harm caused to the aliens by mob violence
only when it has not made due diligence to prevent it. Such
due diligence to prevent mob violence depends upon the time,
to act and circumstances. If incase the alien person is some
officer of the foreign country then the state responsibility is
more. The responsibility of state also extends to officers or
servant or the International Organization.
b. State Responsibility for the Acts of Insurgents: It is the
responsibility of the State to prevent the violent acts of
revolutionaries. According to Fenwick, State Responsibility for
the act of insurgent is different from state responsibility for the
acts of mob violence.
RESPONSIBILITY AS TO DEBTS: Responsibility of a State as to its debts refers to
a situation when a State under debt fails to pay its debt within prescribed time
period. There are various theories regarding the right of a creditor State
against a defaulting debtor State, as under:-
1. Lord Polmerston’s Thoery: This theory was enunciated in 1848.
According to this point of view, if a debtor State commits a fault in
payment of the debt, owed either to the former State or its subjects, the
creditor is entitled to diplomatically intervene and even take military
action against the defaulting State.
2. Drago Doctrine: According to this doctrine, States can never take armed
military action against defaulting debtor. Drago, the Minister of Foreign
Affairs of Argentina, was not opposed to diplomatic intervention or
claiming through international tribunals. He was opposed to military
action under any circumstances. The Hague Convention of 1907,
regarding the employment of force for the recovery of contract debts,
provided that States which were party of the convention should not
resort to armed force for recovering debts due to their subjects by
another State unless the debtor State refused to accept arbitration or
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submit to an arbitral award. However, this doctrine has lost its force due
to principle of United Nations to settle their disputes peacefully and to
refrain from the threat of use of force against other State.
CONSEQUENCES: According to Draft Articles on State Responsibility for
International Wrongful Acts, 2001, the breach of international obligation
entails two types of legal consequences as under:-
1. Cessation and Non-Repetition: Cessation of the wrongful act means that
the state is obliged to cease the wrongful act and to offer appropriate
assurance and guarantee on its non-repetition.
2. Reparation: Reparation means the wrongdoing state is under duty to
remedy its wrongful acts by compensating injured state. Reparation
includes restitution, compensation or satisfaction.
INTERNATIONAL HUMAN RIGHTS LAW & ENFORCEMENT MECHANISM

International Human Rights law is the body of International law intended to
promote and protect human rights at the International and domestic levels.
International human rights law are primarily made up of treaties, agreements
between sovereign states intended to have binding legal effect between the
parties that have agreed to them and adopted under customary international
law. Whereas other international human rights instruments, while not legally
binding, contribute to the implementation, understanding and development of
international human rights law and have been recognized as a source
of political obligation. It applies all the times including during situation of
emergency and conflict and States are under duty to ensure and fulfill these
rights.
DEVELOPMENT OF MODERN INTERNATIONAL HUMAN RIGHTS LAW: Modern
international human rights law has developed since the drafting of the United
Nations Universal Declaration of Human Rights (UDHR), in December 1948, as
‘a common standard of achievement for all peoples and nations'. The
Declaration spells out civil, political, economic, social and cultural rights that all
human beings are entitled to. It has been widely accepted as providing the
fundamental norms of human rights that everyone should respect and protect.
The UDHR, together with the International Covenant on Civil and Political
Rights (ICCPR) and its two Optional Protocols, and the International Covenant
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on Economic, Social and Cultural Rights (ICESCR), form the International Bill of
Human Rights. Moreover, since 1945, a series of international human rights
treaties and other instruments have been adopted, conferring legal form on
inherent human rights and further developing the body of international human
rights. These include as under:
1. The Convention on the Prevention and Punishment of the Crime of
Genocide (CPCG);
2. The Convention Relating to the Status of Refugees (CSR);
3. The Convention on the Elimination of All Forms of Racial Discrimination
(CERD);
4. The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW);
5. The United Nations Convention Against Torture (CAT);
6. The Convention on the Rights of the Child (CRC);
7. The International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (ICRMW);
8. The Convention on the Rights of Persons with Disabilities (CRPD);
9. The International Convention for the Protection of All Persons from
Enforced Disappearance (ICCPED).
ENFORCEMENT MECHANISMS: Enforcement of international human rights law
can occur at either a domestic or an international level. States that ratify
human rights treaties commit to respect, protect and fulfill those rights, and
ensure that their domestic law is compatible with international standards.
When domestic law fails to provide a remedy for human rights abuses, injured
parties may be able to resort to international mechanisms for remedy. Such
enforcement at International level can be concluded as under:-
1. The Human Rights Council: The Human Rights Council is composed of 47
elected United Nations Member States and is empowered to prevent
abuses, inequity and discrimination, protect the most vulnerable, and
expose the perpetrators of human rights violations. The Council
established Special Procedures to address either specific country
situations or thematic issues across the globe. Special Procedures are
either an individual (a special reporter or representative), or
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independent expert or a working group. They are prominent,

independent experts working on a voluntary basis and are appointed by
the Human Rights Council. There are currently 30 thematic mandates
and eight country mandates. All report to the Human Rights Council on
their findings and recommendations.
2. Human Rights Treaty Bodies: Moreover, there are currently ten human
rights treaty bodies of independent experts, which are created in
accordance with the provisions of the treaty that they monitor. Nine of
these treaty bodies monitor implementation of the core international
human rights treaties while the tenth treaty body, the Subcommittee on
Prevention of Torture, established under the Optional Protocol to the
Convention against Torture, monitors places of detention in state parties
to the Optional Protocol. Additionally, there are several other United
Nations bodies which are concerned with the promotion and protection
of human rights.
3. Regional Monitoring and Enforcement Mechanisms: Beyond the UN
system, there are regional systems of international human rights law
that complement national and international human rights law by
protecting and promoting human rights in specific areas of the world.
There are three key regional human rights instruments: the African
Charter on Human and Peoples' Rights; The American Convention on
Human Rights; and the European Convention on Human Rights.
INTERNATIONAL HUMANITARIAN LAW
International Humanitarian Law, also known as the law of war or the law of
armed conflict, is a set of rules that seeks to limit the effects of armed conflict.
It is that branch of International law which protects people who are not or are
no longer participating in hostilities such as prisoners of war and civilians, and
provide for the special protections of certain persons and objects, such as
medical personnel, hospitals, cultural objects (e.g., mosques, churches) and
objects essential to the survival of the civilian population (e.g., crops, water
sources) and restricts the means and methods of warfare.
SOURCES OF IHL: Similar to that of Public International law, International
Humanitarian Law has the following sources:
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1. International Humanitarian Law Treaties: IHL is based on number of

treaties, in particular the Geneva Conventions of 1949 and their
Additional Protocols and a series of other instruments.
2. Customary International Human Rights Law: Customary IHL consists of
rules that come from ‘a general practice accepted as law’ and that exist
independent of treaty law.
WHEN DOES IHL APPLY? IHL applies to all parties to a conflict, regardless of
who started it. The application of IHL can be concluded into following three
situations:
1. international armed conflicts, which involve at least two countries;
2. situations where the whole or part of a country’s territory is occupied by
a foreign power;
3. armed conflicts that arise within a country between a government and
one or more organized armed groups, or between various organized
armed groups.
WHOM DOES IHL PROTECT? IHL protects combatants and those who are not,
or are no longer, participating in hostilities, such as:
1. civilians;
2. medical and religious personnel;
3. wounded, shipwrecked and sick combatants;
4. prisoners of war;
5. civilian internees.
Recognizing their specific needs, IHL grants women and children additional
protection.
WHY IS IHL IMPORTANT? IHL is one of the most powerful tools the
international community has at its disposal to ensure the safety and dignity of
people in times of war. It seeks to preserve a measure of humanity amidst
conflict, with the guiding principle that even in war there are limits.
HOW DOES IHL PROTECT? IHL governs the conduct of hostilities by the parties
to a conflict and protects persons in enemy hands. It also:
1. requires the parties to a conflict to distinguish between combatants and
civilians, and to refrain from attacking civilians;
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2. prohibits or limits the use of weapons that are particularly cruel or that
do not distinguish between combatants and civilians;
3. requires the parties to a conflict to care for the wounded and sick and to
protect medical personnel;
4. requires the parties to a conflict to ensure that the dignity of prisoners
of war and civilian internees is preserved, in particular by allowing visits
by ICRC delegates.
WHAT IS THE ICRC’S ROLE? The ICRC serves as the guardian of IHL, the
foundations of which are the four Geneva Conventions of 1949 and their three
Additional Protocols. These treaties give the ICRC the right to carry out
activities such as:
1. bringing relief to wounded, sick or shipwrecked military personnel;
2. visiting prisoners of war;
3. restoring contact between members of families separated by conflict;
4. assisting civilians;
5. ensuring that those protected by humanitarian law are treated in
accordance with its provisions.
IHRL & IHL: International human rights law is closely related to, but distinct
from international humanitarian law. They are complimentary since the
substantive norms they contain are often similar or related. However,
international human rights law applies at all times, including during situations
of emergency and conflict. International humanitarian law is a legal regime
that only applies to armed conflicts, including occupation, when both legal
regimes apply in tandem.
THE LAW OF THE SEAS
Law of the Sea is the branch of Public International Law which is a composite of
customs, treaties, and international agreements by which governments
maintain order, productivity, and peaceful relations on the sea. Much of this
law is codified in the United Nations Convention on the Law of Seas which was
adopted and signed in 1982. It came into force in 1994 after it had been
ratified by the requisite 60 countries. The convention divided territorial limits
of a State into three as under:-
1. Territorial Sea: Territorial sea limits extends up to 12 Nautical Miles
from the coastal line of a State. The State having jurisdiction has
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GSLC, HYD.
absolute ownership over territorial sea as well as the airspace above

territorial sea. Thus foreign State cannot intervene in its territorial
limits. However, foreign States enjoy the right to innocent passage
through territorial Sea subject to the prior permission of coastal
State. If any foreign State enters territorial limits, the coastal State is
entitled to take all necessary measures against that State.
2. Contiguous Zone: Contiguous Zone extends beyond territorial Sea
and extends up to 24 Nautical Miles from the coast. The Coastal State
has the right to enforce its law and prevent criminals from fleeing the
territorial sea. It also has the right to both prevent and punish
infringement of fiscal, immigration, sanitary, and customs laws within
this zone. The only difference between territorial sea and contiguous
zone is that this zone only gives jurisdiction to a State on the ocean’s
surface and floor. It does not provide air and space rights.
3. Exclusive Economic Zone: Beyond territorial Sea, there exists
exclusive economic zone extending up to 200 Nautical Miles from the
coast. The Coastal State has no absolute ownership rights over this
zone, however, it can exclude foreign State for its right of economic
activities such as exploiting and regulating fisheries, drilling oil and
discovering other minerals in the seabed, constructing artificial
islands and installations, etc. The foreign States enjoy the right to visit
and pass through this zone unless they cause any loss to the
economic sources or integrity and security of Coastal State in any
manner, in such a case the Coastal State would have the right to take
all necessary measures against intervening State.
4. Continental Shelf: The Continental Shelf extends as the seabed slope
away from the coast, typically consisting of a gradual slope (the
continental proper), followed by a steep slope (the continental slope)
and then a more gradual slope leading to the deep seabed floor.
These three areas, collectively known as continental margin, are rich
in natural resources, including oil, natural gas and certain minerals.
There are two methods to determine the extent of a
continental margin under Law of the Sea Convention. The first
method is by measuring geographical features using Gardiner
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GSLC, HYD.
formula, which measures the thickness of sedimentary rocks, the

edge of the shelf is drawn where sedimentary rocks become less than
1 percent of the thickness of the soil. The second method is by using
Hedberg formula. This method allows States to draw its boundary 60
miles from the foot of the shelf’s slope. This expanded continental
shelf cannot, however, exceed (i) 350 miles from the baseline or (ii)
100 miles from the 2,500-meter isobath.
To prevent abuse of the continental shelf provisions, the LOSC
established the Commission on the Limits of the Continental Shelf
(CLCS) in order to evaluate States’ claims about the extent of their
continental shelves.
The economic rights within the continental shelf extend only to
non-living resources and sedentary living resources, such as shellfish.
It also allows the coastal State to build artificial islands, installations,
and structures. Other States can harvest non-sedentary living
resources, such as finfish; lay submarine cables and pipelines; and
conduct marine research as if it were international waters. As with
the EEZ, continental shelf rights do not grant a State the right to
restrict navigation.
5. High Seas and Deep Ocean Floor: The ocean surface and the water
column beyond the Exclusive Economic Zone are referred to as the
high seas and considered as “the common heritage of all
mankind” and is beyond any national jurisdiction. States can conduct
activities in the Area so long as they are for peaceful purposes, such
as transit, marine science, and undersea exploration.
Resources are a more complicated matter. Living resources,
such as fish, are available for exploitation by any vessel from any
State, however, regional cooperation is encouraged in this regard so
as to conserve those resources and ensure their sustainability for
future generations. Non-living resources from the area, such as
minerals, are handled differently from fish, since mineral extraction
projects are capital intensive to build and administer. To maintain
such projects without national control, Law of the Sea Convention
established the International Seabed Authority, which headquartered
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GSLC, HYD.
in Jamaica and is responsible for administering these resource

projects through a business unit called the Enterprise. The Enterprise
was organized to be governed much like a public-traded corporation
with a Council (functioning as an Executive Committee) and a
Secretariat (which handles day-to-day administration). As an
international body, the Authority also includes an Assembly of
representatives from each nation which functions like a large Board
of Directors. Unlike a publicly traded corporation, the Assembly is the
supreme body for setting policy in the Authority. Since the
ratification of the LOSC, there has been limited activity in relation to
these provisions.
AHSAN ALI (44/2k18)

GSLC, HYD.

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Public International Law-II Page 1 of 52

Subject Public International Law-II

Law & Practice as To Treaties

b. Multilateral Treaty: A multilateral treaty is concluded between

a. Treaties between Head of States: In this form the treaty is

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secondly it suggests an administrative agreement of a purely minor

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continue till such time as an agreement is arrived at regarding the text of

soon as possible” be registered with the secretariat of the organization

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1. Termination of Treaties by act of parties: According to article 54 of

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the performance of obligations imposed by treaty becomes

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3. Reasonableness and Consistency: Treaties should be interpreted in a

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endangered. The various methods of settlement of dispute by peaceful

prepared. An enquiry differs from conciliation in the fact that the

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and decisively wherever a dispute is likely to endanger

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e. War: War is the ultimate sanction of International law. When

WAR, ARMED CONFLICTS AND OTHER HOSTILITIES

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RIGHT TO RESORT TO WAR: It is one of the features of international law during

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property will be determined by the Peace Treaty. Such private

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a. By Abstaining: The status of war may come to an end by the

might also be an agreement for the de facto termination of war,

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2. Recognition by Belligerents: The impartiality of neutral state should be

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belligerent State, the suspecting belligerent State has the

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temporary asylum by neutral ports to hostile warships so

extend to the commercial intercourse between the belligerents and neutrals.

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 Lastly, the carriage of contraband does not necessarily take place in

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Breach Of Blockade: Ships which break blockade by entering to or leaving the

be either promotional or operational. In its promotional activity, the

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body, 2) An executive body and 3) a secretariat. They might have

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World Trade Organization, International Monetary Fund and

Organ(FAO), World Health Organization (WHO), World

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3. Secretariat: The Secretariat was a permanent body established at

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International trade, Japan intoxicated by her emergence as a world

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8. To employ international machinery for the promotion of economic and

3. In the judgment of the Organization, it must be able and willing to carry

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5. It elects the non-permanent members of Security Council and also elects