PUBLIC INTERNATIONAL LAW NOTES

Table of Contents
PUBLIC INTERNATIONAL LAW NOTES...........................................................................................1
ORIGIN, NATURE AND SCOPE...................................................................................... 2
RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW............ 3
Monistic theory.......................................................................................................................... 3
Kelsen: Grundnorm theory............................................................................................................................4
Dualist theory............................................................................................................................. 4
Hersch Lauterpacht on Dualism.................................................................................................................... 5
Triepel on dualism......................................................................................................................................... 5

Difference Monism theory and Dualist theory.................................................................... 6

Monism...................................................................................................................................... 6
Dualism...................................................................................................................................... 6
SUBJECTS UNDER PIL...................................................................................................7
STATE AND ITS ESSENTIALS...................................................................................... 10
SOVERINGNTY OF A STATE........................................................................................ 15
STATE JURISDICTION..................................................................................................15
NATIONALITY............................................................................................................... 19
EXTRADITION-..............................................................................................................22
ASYLUM......................................................................................................................... 22
SOVERIGN IMMUNITY-................................................................................................22
DIPLOMATIC IMMUNITY.............................................................................................22
STATE RESPONSIBILIY................................................................................................26
MOD IX- HUMAN RIGHTS AND IHL........................................................................... 28
LAW OF SEAS................................................................................................................ 36
PROBLEM QUESTIONS................................................................................................ 43

ORIGIN, NATURE AND SCOPE

definition
Oppenheim’s Definition:
- “Law of Nations or International Law is “the name for the body of customary and treaty rules
which are considered legally binding by civilized states in their inter Course with each other”
- Key components in this definition are (a) It is a body of rules governing the relations between
states; (b) States regard these rules as binding on them in their relation with one another. and
(c) those rules are derived from customs and treaties.
 - Criticism of Oppenheim’s definition:- Not only states but also international organization is
subjects of international law P.E.Corbett: “The future of International law is one with the
future of International Organizations. Individuals and other private persons have rights and
duties in International Law. Not only customary and conventional International Law but it
also includes general principles of Law.
Modern Definitions of International Law
- Definition of J.G.Starke - (a) The rules of law relating to the functioning of international
institutions or organizations, their relations with each other, and their relations with states
and individuals;
- Queen v. Keyn- lord Coleridge: international law is the collection of usages which civilised
nations agree to observe in their dealings with one another
- Reasons for emergence of new definition includes, establishment of a large number of
permanent international institutions or organisations, protection of human rights and
fundamental freedoms and creation of new rules for the punishment of persons committing
- Views of Aanzilotti - Binding force of international law can be traced back to one supreme,
fundamental principle or norm i.e. ‘The agreements between states are to be respected.’
this principle is known as ‘pacta sunt servanda.’ Every legal order consists of a complex of
norms. They derive their obligatory character from a fundamental norm to which they relate
to. Pacta sunt servanda is the supreme norm.
-
Nature of International Law (Theories of basis of International Law)
There are two views as to the nature of International Law. The first view is that ‘International Law is
not a true law.’ The chief exponents of this view are John Austin, Hobbes, Holland, Pufendorf, and
Bentham. The second view is that ‘International law is a true law.’ And the chief exponents of this
view are from Natural school of Law.
‘International Law is not a true law.’ Austin’s Views -
- According to Austin, Law is a Command of Sovereign given by political superior to political
inferiors. International law is not true law, but a code of rules of conduct of moral force only.
- Law in strict sense is the result of edicts issuing from a determinate sovereign legislative
authority this authority is politically superior if rules are not issued by a sovereign authority or
if there is no sovereign authority then rules are not legal rules.
- Such rules are moral or ethical rules only, therefore international law is not a true law but
positive international morality.
International law is true law
- The chief exponents of the second view that International law is a true law are Luis Henkin
and Sir, Henry Maine:
- generally all the nations observe the principles of International Law and their obligations.
According to him Objective of any law ands its implementation is most important and not the
means and methods.
- Sir Henry Maine considers that in primitive societies there was no sovereign political
authority yet there were laws.
- Austin’s concept of law denied customary rules of international law, the status of law. Treaty
and conventions are like legislation of international law.
Natural law theory
It has significant influence on international Law. Several characters and binding force of international
law is founded on the theories of law of nature Important contentions of this theory are that ideal law
founded on the nature of man as a reasonable being, the body of rules which nature dictates to human
reasons is law. States submitted to international law because their relations were regulated by the
higher law that is law of nature. International law is a part of the law of nature. Natural law contains
those principles which natural law dictates to states. It is no less binding upon them than it is upon
individuals because, states are composed of men, their policies are determined by men and these men
are subject to the natural law
Theory of Positivism on the basis of International Law
International laws have same characters as Municipal law. International laws are issued from the will
of the state. International law can be reduced to a system of rules depending for their validity only on
the fact that states have consented to them. For positivists state is a metaphysical reality. It has a value
and significance and this significance makes the state to have will of its own and this will is
considered as the sovereign authority. International law consists of those rules which. Various
state-wills have accepted by a voluntary self restriction. Without such manifestation of such consent,
the international law would not be binding on the society of states. Thus international law is a branch
of state law, an external public law. Only for this reason they are binding on the state. Consent for the
state may be express or implied(tacit).
Scope of international law-
Interstate relations and their regulation- The International Law has state subjects. When civilized
states came into existence then interrelation was natural. A mutual understanding and natural
interrelation became necessary. They have framed their own rules, regulations, and treaties for further
transactions. The rules and regulations are laid down categorically in these relations because it
facilitates the amicable working of the functions between the states. The rules and regulations broadly
provide opportunities for different programs to be carried out by different states. The customs
followed by the countries have culminated into laws. The same path of evolution is taken by the
International Criminal Law that has been codified. The wide variety of subject matter has been
covered under International Criminal Law such as extradition treaty, refugees, human rights, and
sustainable development.

International organizations- A major development in the 19th and 20th century in International Law is
the prominent position of the International Organisations. The operations of these organisations is on
the global, regional, and sub-regional level. These organizations seek to achieve the objective of the
welfare of people. These organizations are funded majorly by the developed countries and they are
actively supporting the developing countries for the betterment of the lives of the people. These
organizations have multi-dimensional areas of operations. These are the major International
Organisations:

- World Bank– The World Bank provides economic support to the countries for different kinds
of infrastructural development, and also the availability of basic facilities in the developing
countries.
- International Monetary Fund– The IMF helps the countries to manage their balance of
payments. The Sovereign Debt Restructuring Mechanism of IMF aims to preserve asset value
and preserve the creditor’s rights and also paves the way with the “help agreement” for
debtors to grow.
- World Trade Organisation– The WTO supervise and regulate International Trade. This is the
largest economic organization in the world. It deals with trade of goods, services and
intellectual property among the countries. It provides a framework for negotiation and dispute
resolution to countries for efficient trade.
- ASEAN– The Association of Southeast Asian Nations is a regional intergovernmental
organization comprising 10 countries, which facilitates the economic, social, political,
military, educational, and socio-cultural integration among its nation.
- SCO– The Shanghai Cooperation Organisation is the intergovernmental international
organization that aims to promote effective cooperation in politics, trade, economy,
technology, and culture. The joint efforts will be made to maintain peace and security in the
region.
Issues of non-state entities and individuals- The non-state actors have played a significant role in
maneuvering different important tasks that fall within the ambit of International Law. The non-state
actor is a newly emerged concept in the recent past. They are struggling to get legal recognition under
International Law. They are economically, financially, and strategically capable of doing things on the
ground level. The traditional International Law has not allowed the activities of the non-state actors
and also not predicted their existence, but with the sharp rise in the number of people who faced
discrimination and oppression in the hands of sovereign governments or the ethnic cleansing of a race
from a country, these factors led to the rise of these non-state actors.
The individual has been considered as an entity in international law after many decades. The
individual has the least participation in international law during the inception stage. The term
individual has a wide legal connotation, it is not something limited to a person, it may be an entity, an
enterprise or big business conglomerate. The term individual may be a legal person whose job is to
secure the ri

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

Monistic theory

International law operates only at the International level and the Municipal law operates only on its
local jurisdictional limits. However, the advocates of natural law believe that Municipal and
International law form a single legal system, this approach is commonly known as Monism.

To have a better understanding of this topic it is crucial to understand what natural law is; natural law
is something that exists in isolation with the positive law. As the name suggests, it is determined by
nature, the law of nature is objective and universal in nature. From the time of inception, natural law
is referred to analyze human nature to deduce moral behaviour from nature.

The argument from the side of a Monist is pretty simple, they believe Municipal law and International
law if looked together is nothing but a single system. Modern writers who favor the monistic approach
endeavors that a major portion of their views are based on a strictly scientific analysis of the
Municipal structure of legal systems.

In a true monist country, there is no need for the translation of International law into Municipal law.
Once the state gives assent to the treaty, it automatically gets incorporated in its municipal law. This
act of giving assent to an International treaty or obligation will immediately incorporate international
principles into states’s Municipal law, (this is inclusive of customary International law).

International law can be applied by a Municipal Court, and can be invoked by citizens, contingent on
the fact that the international law is translated into the state’s Municipal law. A municipal court can
declare a law as unconstitutional if it contradicts International principles.

In a Monist State, the International law gets automatically accepted and the contradicting part
automatically gets translated away the moment the State ratifies the treaty.

Kelsen: Grundnorm theory

For Kelsen, International and Municipal law is nothing but “manifestations of a single unit of law”.
Kelsen’s belief in the supremacy of International law is the result of his “basic norm”, which states
that: ‘states should behave as they customarily have behaved’.

International law is supreme in nature as it represents a legal order which is higher than Municipal
laws, it is because the International law is derived from the state’s practice on the other hand the
Municipal law gains its power from the state’s internal affairs.

Once it is accepted that International law is a system of rules of a legal character, it becomes
impossible according to kelson to deny that the two systems constitute as a single system.
The theory of International law and Monism doesn’t have any halfway house. Kelson observed natural
law and International law as a single and coherent system. According to him, International law is
placed at the top of the pyramid (as per his grundnorm hypothesis).

Dualist theory

Unlike Monists, dualists have stressed on the difference between International law and Municipal law
and have argued for the adoption of International treaties in the Municipal law of the State. According
to dualists, in absence of this adoption by the State the International law will not exist as a law.

The reason why dualists have this view is because they believe International law and Municipal law
are two different aspects of law and it would be unreasonable to take the two as a unity. As per their
belief, International law and Municipal law are two distinct and independent systems in itself.

In a dualist State, it is of utmost importance that International law has to be drafted in its Municipal
law in order to give it an effect. Apart from drafting it is the duty of the state to omit those laws which
contradicts the newly adopted International law.

If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating the
treaty, then their act of non incorporation violates the International law. If the State has not
incorporated the principles of a treaty as per its local laws which it has ratified earlier in the
International sphere then, neither the citizens of that country can invoke the International laws nor the
courts can give its decisions based on the principles of that treaty.

The United Kingdom is a country in which a dualist approach is dominant. International law becomes
the national law in the UK only if it is translated.

Hersch Lauterpacht on Dualism

Judge Lauterpatch was an advocate of natural law, he accepted that International law observes the
precepts of natural law.

For Lauterpacht, International law is more superior than municipal law, the rationale behind this view
is because it offers the guarantee rights for the individuals notwithstanding anything from which state
he belongs to. As per Lauterpacht the hierarchy of legal orders was:

1. Natural law
2. International law
3. Municipal law
For him whether it is International law or Municipal law, it is the individual who is the definitive unit
of all law. He answered a few fundamental questions of international law philosophy regarding the
concept and origin of international law.

He Criticized the doctrine of Heinrich Triepel’s doctrine of international legal obligation, meanwhile
agreeing with Kelsen that the binding force of law cannot be derived from the individual or common
will of the states.
For Lauterpacht, the international law is for the states and not for governments. For him, the
international community was a community of individuals, whose will is expressed by the states.

Triepel on dualism

Triepel treated the two systems of State law and International law as entirely distinct in nature. For
him the International and Municipal law exist as two separated, distinct sets.

Triepel made following contentions on the relationship between International law and state law:

● Firstly he contended that, International law and Municipal law differ in the particular
social relations that they govern; State law deals with the individuals and International law
regulates the relations between States.
● Secondly, he argues that their juridical origins are different; the source of Municipal law is
the will of the State itself, the source of International law is the common will of States.
● There exist differences in: subjects, sources and content, also, it requires ‘transformation’
of International law into Municipal law to make International law binding on Municipal
authorities.
Triepel accepted that the basic will of the States was the premise of the legitimacy of International
law; he also pointed out that it is heavily relied upon the agreements between States, which not only
includes treaties but custom too and the common will was the most important and inventive source of
International law.

Difference Monism theory and Dualist theory

Monism

1. As per the advocates of natural law, Municipal law and International Law forms a single
legal system.
2. Monism is supported by the advocates of natural law.
3. In Monism there exists no need for translation of International into Municipal law in order
to give it an effect.
4. In a true monisitc country if a national law contradicts International Law then it becomes
null and void.
5. If a monist state ratifies a treaty or a convention, and does not create a law explicitly
incorporating the treaty then their act of non incorporation will not violate the
International Law.
6. In a monistic State International Law automatically gets embedded in the Municipal law
and the contradicting part gets automatically translated away.
7. Supporters of Monism: kelson.
8. State which follows Monistic approach: germany.

Dualism
 1. Municipal law and International Law are two different and distinct legal systems.
2. It is supported by the advocates of positive law.
3. In a dualist country there exists a need for translation of International into Municipal law
in order to give it an effect.
4. If a dualist State ratifies a treaty or a convention, but does not create a law explicitly
incorporating the treaty, then their act of non incorporation violates the International law.
5. International law does not get automatically embedded in the Municipal law.
6. Contradicting parts of the Municipal law has to be amended by the state, as it does not get
automatically translated away in a dualist country.
7. In the absence of translation of International law into Municipal law the International law
will not exist as a law.
8. Supporter: hersch lauterpatch, triepel.
9. Country which follows: United kingdom.

SUBJECTS UNDER PIL

Introduction
Some questions that are relevant to the study of international law include who can create international
law? Who has rights, duties, and powers under international law? (or international legal personality);
and who is regulated (governed), directly or indirectly, by international law?
Dixon – “A subject of international law is a body or entity recognized or accepted as being capable,
or as in fact being capable, of possessing and exercising international law rights and duties”
The terms “subjects of international law” refers to entities endowed with legal personality, capable of
exercising certain rights and duties on their own account under the international legal system.
Oppenheim says that an international person is one who possesses legal personality in international
law meaning one who is subject of international law so as to enjoy rights, duties or powers established
in international law. It also gives the capacity to act on the international plane either directly or
indirectly through the state.

1. Individuals
Individuals have always been a concern under international law. Although the realist theory
diminishes the position of individuals as a subject, there have been instances under international law
wherein responsibility has been conferred upon individuals rather than their state. The international
criminal law holds individuals accountable for certain crimes. In Respublica v. De Longchamps[2],
the defendant was guilty of assaulting the Consul General of France to the new United States. It was
held that the defendant was guilty of the same under the law of nations. As a result, he was ordered to
pay one hundred French crowns as a fine to the Commonwealth of Pennsylvania and to be imprisoned
for ‘a little more than two years’.

Lubanga Case (Democratic Republic of the Congo v. Thomas Lubanga Dyilo): 1st case before ICC
where Thomas was convicted for crimes so highlighted individual criminal responsibility

Before the twentieth century, the view was that individual was merely an object and not subject of IL.
However, since the world war I, the community of nations has become increasingly aware of the need
to safeguard individual’s right under the IL. Thus, many scholars provided the thesis that individual
should also be regarded as subject of IL. An analysis of the evolution of international law until present
shows a progressive trend to widen the list of its subjects. Originally, in the ideas of the so called
“founding fathers” of the international law, Francisco de Vitoria, Francisco Suarez, Hugo Grotius, the
existence of a universal community of individuals was sustained and the individual was identified as a
reference point of rights and duties.

Historically, states were the only subjects of international law. During the 20th century, however, a
growing body of international law was devoted to defining the rights and responsibilities of
individuals. The rights of individuals under international law are detailed in various human
rights instruments and agreements. Although references to the protection of human rights appear in
the UN Charter, the principal engine of the process was the Universal Declaration of Human
Rights (1948; UDHR). The UDHR has been supplemented by an impressive range of international
treaties, including the Convention on the Prevention and Punishment of the Crime of Genocide,
the International Convention on the Elimination of All Forms of Racial Discrimination (1965),
the International Covenant on Civil and Political Rights (1966), the International Covenant on
Economic, Social and Cultural Rights (1966), the Convention on the Elimination of All Forms of
Discrimination Against Women (1979), the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984), and the Convention on the Rights of the Child (1989).
With the exception of the convention on genocide, these agreements also have established monitoring
committees, which, depending on the terms of the particular agreement, may examine the regular
reports required of states, issue general and state-specific comments, and entertain petitions from
individuals. The committee against torture may commence an inquiry on its own motion. The broad
rights protected in these conventions include the right to life and due process, freedom
from discrimination and torture, and freedom of expression and assembly. The right
to self-determination and the rights of persons belonging to minority groups are protected by the
convention on civil and political rights. In addition, the UN has established a range of organs and
mechanisms to protect human rights, including the Commission on Human Rights (replaced in 2006
by the Human Rights Council).
Human rights protections also exist at the regional level. The best-developed system was established
by the European Convention on Human Rights, which has more than 40 state parties as well as a court
that can hear both interstate and individual applications. Other examples are the Inter-American
Convention on Human Rights, which has a commission and a court, and the African Charter on
Human and Peoples’ Rights (1982), which has a commission and is developing a court.
In addition to the rights granted to individuals, international law also has endowed them with
responsibilities. In particular, following the Nürnberg Charter (1945) and the subsequent
establishment of a tribunal to prosecute Nazi war criminals, individuals have been subject to
international criminal responsibility and have been directly liable for breaches of international law,
irrespective of domestic legal considerations. Individual responsibility was affirmed in the Geneva
Conventions and their additional protocols and was affirmed and put into effect by the statutes that
created war crimes tribunals for Yugoslavia (1993) and Rwanda (1994), both of which prosecuted,
convicted, and sentenced persons accused of war crimes. The Rome Statute of the International
Criminal Court, which entered into force in 2002, also provides for individual international criminal
responsibility.

2. States
States are the primary subjects of international law. A state is a term given to a country under
international law. Every state has certain rights and obligations to fulfil. These rights are conferred
upon them through treaties and agreements, to which the states are signatories. States have various
roles to perform at world level. It is incumbent upon the states to maintain peace and security in the
world and resolve disputes through peaceful means. State is the primary subject in International Law.
The requirements to be considered as a subject of international law are the capacity to have rights and
duties under international law. Some writers also argue that a State must be fully independent and be
recognized as a State by other States. The international legal system is a horizontal system dominated
by States which are, in principle, considered sovereign and equal. International law is predominately
made and implemented by States. Only States can have sovereignty over territory. Only States can
become members of the United Nations and other international organizations. Only States have access
to the International Court of Justice. According to Montevideo Convention article 1 the state as a
subject of international law should possess the following qualifications:
(i) Permanent population
(ii) Defined territory
(iii)Government
(iv)Capacity to enter into relations with other States
Being the most prominent among the different subjects of international law, a State is by definition
endowed with the capability of bearing rights and duties under international law.

3. International organisations

A major difference between 19th- and 21st-century international law is the prominent position now
occupied by international organizations. The size and scope of international organizations vary. They
may be bilateral, subregional, regional, or global, and they may address relatively narrow or very
broad concerns. The powers and duties allocated to international organizations also differ widely.
Some international organizations are legally recognized as international actors—and thus are liable
for breaches of international legal obligations—while others are not.
Categories of International Organization
● Universal Organizations: These organizations are also known as intergovernmental
organizations. Membership in such an organization is not limited to any particular region, but
is open to all states that meet its membership requirements. An example of such an
organization is the United Nations.
● Regional Organizations: These organizations are created by states that share a common
geographic or policy interest. Membership is limited to a specific group of states, such as
those in a particular region, like the African Union (AU), or those with a common policy
interest, like the North Atlantic Treaty Organization (NATO).

In Reparation for Injuries suffered in the Service of the United Nations[3], the advisory opinion of the
International Court of Justice is worth mentioning. According to the Court, “Accordingly, the Court
has come to the conclusion that the Organisation is an international person…What it does mean is that
it is a subject of international law and capable of possessing international rights and duties, and that it
has capacity to maintain its rights by bringing international claims.”
Apart from these, minorities and indigenous people are also considered subjects of international law.
The concern for minorities came up after the first world war when the League of Nations put forward
the protection of minorities in Europe. The UN Declaration on the rights of minorities is a significant
step in the process of their recognition. Indigenous people are the natives of a particular place who
have distinct cultures. Europeans were the first to use this term for the peoples of America when they
conquered it. At present, there exist several rights for these people, like the UN Declaration on the
Rights of Indigenous People, 2007, but not much development has taken place for their protection.

Apart from state, international organisation is a subject of IL since they are the organization of states
which are assigned with specific function. International Organizations are established by States
through international agreements and their powers are limited to those conferred on them in their
constituent document. International organizations have a limited degree of international personality,
especially vis- à-vis member States. They can enter into international agreements and their
representatives have certain privileges and immunities. The constituent document may also provide
that member States are legally bound to comply with decisions on particular matters.

Since the end of World War II, the leading international organization has been the UN. Although the
General Assembly may pass only nonbinding resolutions, the Security Council can authorize the use
of force if there is a threat to or a breach of international peace and security or an act of aggression.
Since the end of the Cold War, the council has extended the definition of a threat to or a breach of
international peace and security to encompass not only international conflicts but also internal
conflicts (e.g., in Yugoslavia, Somalia, Liberia, and Rwanda) and even the overthrow of a democratic
government and subsequent upheavals and refugee movements (e.g., in Haiti).
Other international organizations have developed significant roles in international relations. They
include the World Bank, which provides aid to promote economic development, the International
Monetary Fund, which helps countries manage their balance-of-payments problems, and the WTO,
which supervises and regulates international trade. Regional organizations and agreements, such as
the EU

4. Non state entities

When we talk about non-state entities, we take into account a large group of institutions which can
fall under different categories, like companies, international organisations, special entities etc.
According to the functional theory, these non-state actors are also subject under international law and
hence they can be regulated. Non-state entities have a special personality under international law,
because although they take part in the international business, they are not granted similar rights and
duties as the states. In fact, their acts are much limited as compared to states. Since these entities are
independent and exist to serve a particular purpose, they are kept separate from states and individuals.
Non-Governmental Organizations (NGOs): NGOs are not subjects of international law in the
traditional sense, but they often play important roles in shaping international norms and influencing
state behavior. They can engage in activities related to international law, human rights, and
humanitarian law. Aegean Sea Continental Shelf- The International Court of Justice (ICJ) addressed
the issue of maritime delimitation in the Aegean Sea. In this case between Greece and Turkey, the ICJ
recognized the legal personality of international organizations, specifically the European Commission
for the Control of Foot-and-Mouth Disease. The decision acknowledged the participation of non-state
entities in international legal disputes.

Conclusion
Today in modern times, states are not the only subjects on international law. They are still the main
subjects but in changing character of international law, international organizations, individuals and
certain non-state entities got the status of subjects in International Law. Now Individuals can enforce
their rights in certain capacity against the states. Though, there is a wide gap which exists between the
rights of the states and individuals at the other end.

STATE AND ITS ESSENTIALS

State: State is the primary subject in International Law. The requirements to be considered as a subject
of international law are the capacity to have rights and duties under international law. Some writers
also argue that a State must be fully independent and be recognized as a State by other States. The
international legal system is a horizontal system dominated by States which are, in principle,
considered sovereign and equal. International law is predominately made and implemented by States.
Only States can have sovereignty over territory. Only States can become members of the United
Nations and other international organizations. Only States have access to the International Court of
Justice. According to Montevideo Convention the state as a subject of international law should
possess the following qualifications:
(i) Permanent population
(ii) Defined territory
(iii)Government
(iv)Capacity to enter into relations with other States
PERMANENT POPULATION: A permanent population is another necessary requirement for
statehood. There are no criteria relating to the size of the population: Andorra with its 68,000
inhabitants is as much a State as India, which now has currently well over one billion inhabitants.
Neither does international law set any requirements about the nature of the population: the population
may largely consist of nomads (such as in Somalia), it may be ethnically (relatively) homogeneous
(such as in Iceland) or very diverse (such as in the former Soviet Union), it may be very poor (such as
in Sierra Leone, where in 2000 nearly 70 percent of the population lived below the poverty line) or it
may be very rich (as in many Western States). It should also be noted that the requirement of a
permanent population does not relate to the nationality of a population: it merely requires that States
have a permanent population. According to Brownlie it connotes a stable community with a physical
basis.
DEFINED TERRITORY: The development of the State is closely linked to the ability to exercise
effective control over a defined territory. However, the existence of border disputes is not an obstacle
to attaining statehood in international law. There is no rule stating that the boundaries of a State
should be undisputed or unambiguously established. Israel for example, was admitted to the United
Nations on 11 May 1949, despite its ongoing territorial disputes with the Arab States. According to
O'Keefe there is no limit to size. Undefined boundaries will not matter as long as the core territory is
defined. With regard to the size of the territory it can be stated that no specific requirements exist: the
international community of States. consists of both micro-States, such as Liechtenstein and San
Marino and very large States such as Canada or Russia.
Island of palmas case- Netherlands, USA- Effective Occupation: The PCA, in its decision,
articulated the principle of effective occupation as a significant factor in determining territorial
sovereignty. It concluded that sovereignty over Palmas Island belonged to the Netherlands because the
Dutch had effectively occupied and administered the island.
GOVERNMENT: The third requirement for statehood, is the existence of a government capable of
exercising independent and effective authority over the population and the territory. The importance
that is attached to the criteria of independence and effectiveness is understandable considering the
predominantly decentralized nature of international law. Since international law lacks a central
executive body, with the power to enforce compliance with international obligations, compliance with
international obligations must often be guaranteed by the States themselves. A State must therefore be
able to the effectively and independently exercise its authority within its borders. According to
Brownlie the existence of effective government, with centralised administrative and legislative organs,
is the best evidence of a stable political community.
CAPACITY TO ENTER INTO RELATIONS WITH THE OTHER STATES:
- Check pg 86 on starke
It can be said that the capacity to enter into full range of international relations can be a valuable
measure, but capacity or competence in this sense depends in part on the power of the government,
without which a State cannot carry out its international obligations. The ability of the government to
independently carry out its obligations and accept responsibility for them in turn greatly depends on
the previously discussed requirements of effective government and independence. Moreover, a State
cannot enter into relations with other States if it is not recognized. Consequently, it cannot be
recognized as a State. According to Shaw the concern is the lack of competence to enter into legal
relations, and the essence of such a capacity is independence.
An overview of Rights and Duties: starke pg 88
Being the most prominent among the different subjects of international law, a State is by definition
endowed with the capability of bearing rights and duties under international law. With regard to the
development of written legal instruments dealing with fundamental rights and duties of States, several
significant results were achieved during the 20th century. The Montevideo Convention of 1933
constituted one of the first examples of insertion of ‘rights and duties’ of States in a multilateral
legally binding instrument. The Charter of the Organization of American States (‘OAS Charter’),
adopted in 1948, contained a full Chapter devoted to ‘Fundamental Rights and Duties of States’. In
1949, as a part of the report covering the work of its first session, the International Law Commission,
submitted to the General Assembly the text of a ‘Draft Declaration on Rights and Duties of States’. It
comprised 14 articles detailing four rights (independence, jurisdiction, equality, and self-defence) and
ten duties, to peacefully settle disputes with other States, to refrain from resorting to war as an
instrument of national policy, to refrain from giving assistance to any State action in violation of the
duty not to resort to war, to carry out international obligations in good faith, and to conduct relations
with other States in accordance with international law and with the principle that sovereignty of each
State is subject to the supremacy of international law.
(i) Right of Independence: The notion of independence was scrutinized as early as 1931 in the context
of the advisory opinion dealing with the customs system established at that time between Germany
and Austria. The view was taken by the Permanent Court of International Justice that an entity that
cannot fulfil the test of legal independence shall not be considered as having an international legal
status altogether. Article 1 of the Draft Declaration lays down that every State has the right to
independence and hence to exercise freely, without dictation by any other State, all its legal powers,
including the choice of its own form of government. Several international judicial decisions have
tackled the issue of independence. These include, for example, the PCIJ’s judgment in the Lotus Case.

FUNDAMENTAL RIGHTS
(ii) Right of Sovereignty: Sovereignty is closely related to independence. As a matter of fact, the two
concepts have sometimes been interpreted as different sides of the same attribute. As an attribute of
the State, sovereignty is generally thought to require the presence of a community, consisting of a
territory and a population governed by an organized political authority. According to long-standing
international law practice, ‘sovereignty in the relations between States signifies independence’ and
‘independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of
any other State, the functions of a State’. Among the implications of the right to sovereignty, is
therefore the corresponding prohibition to intervene in matters within the domestic jurisdiction of
other States. Article 2 of the Draft Declaration lays down that every State has the right to exercise
jurisdiction over its territory and over all persons and things therein, subject to the immunities
recognized by international law.
Nicaragua v USA- reaffirmed the principle of territorial sovereignty and non intervention if a state
exercises effective control over an area
(iii) Right to Equality: According to the right to equality (or equal treatment), all States occupy the
same position within the international community, have the same legal capacity, and bear equal rights
and duties regardless of their size or power. The right has been enshrined, inter alia, in the Friendly
Relations Declaration, the 1963 OAU Charter and the 2000 Constitutive Act of the Organization of
African Unity. Article 5 of the Draft Declaration lays down that every State has the right to equality in
law with every other State.
(iv)Right to Self-Preservation: There is widespread consent that the right of every State to
self-preservation and the corresponding duty not to prejudice the preservation of other States is to be
included among the ‘basic’ or ‘fundamental’ rights. Such a right, according to early commentators,
developed as a right to preserve, maintain, and protect a State’s independence, sovereignty, and
equality. It is for this reason that some authors regard it as a mere corollary of the preceding rights.
Others, on the contrary, see it as the only truly fundamental right of States. The existence of a
‘fundamental right to survival’ has been confirmed by the ICJ in a recent advisory opinion relating to
the legality of the threat or use of nuclear weapons, which recognized the fundamental right of every
State to survival as a basis for admitting its right to resort to self-defence. Article 12 of the Draft
Declaration lays down that every State has the right of individual or collective self-defence against
armed attack.

PRINCIPAL DUTIES:
Affairs, civil, fundamental freedom, conditions, disputes, war, violation
Article 3 of the Draft Declaration lays down that every Stale has the duty to refrain from
intervention in the internal or external affairs of any other State.
Article 4 - Every State has the duty to refrain from fomenting civil strife in the territory of
another State, and to prevent the organization within its territory of activities calculated to foment
such civil strife.
Article 6 - Every State has the duty to treat all persons under its jurisdiction with respect for
human rights and fundamental freedoms, without distinction as to race, sex, language, or
religion.
Article 7 - Every State has the duty to ensure that conditions prevailing in its territory do not
menace international peace and order.
Article 8 - Every State has the duty to settle its disputes with other States by peaceful means in
such a manner that international peace and security, and justice, are not endangered.
Article 9 - Every State has the duty to refrain from resorting to war as an instrument of national
policy, and to refrain from the threat or use of force against the territorial integrity or political
independence of another State, or in any other manner inconsistent with international law and order.
Article 10 - Every State has the duty to refrain from giving assistance to any State which is acting in
violation of article 9, or against which the United Nations is taking preventive or enforcement action.
Article 11 - Every State has the duty to refrain from recognizing any territorial acquisition by another
State acting in violation of article 9.
Article 13 - Every State has the duty to carry out in good faith its obligations arising from treaties and
other sources of international law, and it may not invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty.
Article 14 - Every State has the duty to conduct its relations with other States in accordance with
international law and with the principle that the sovereignty of each State is subject to the supremacy
of international law.

ensation must prove that the damage satisfies the above criteria.

SOVERINGNTY OF A STATE

Territorial Integrity: Territorial integrity refers to the inviolability of a state's borders and the right of a
state to exercise its jurisdiction and control over its territory. This principle prohibits the use of force
to acquire another state's territory, and it upholds the sanctity of established borders. Violations of
territorial integrity, such as cross-border incursions or territorial annexations, are generally considered
illegal under international law.
Key elements of territorial integrity include:
o The right of states to have their territory respected by other states.
o The prohibition of the use of force to change borders.
o The duty of states to respect the borders of other states.

Kuwait Invasion by Iraq (1990): Iraq's invasion and annexation of Kuwait in 1990 violated the
principle of territorial integrity. This act of aggression led to a swift international response, with a
coalition of states, authorized by United Nations Security Council resolutions, liberating Kuwait and
restoring its territorial integrity.

STATE JURISDICTION

Meaning- State jurisdiction is the capacity of a State under International Law to prescribe the rules of
law, enforce the prescribed rules of law and to adjudicate. State Jurisdiction, also means that a state
court has the right to make a legally binding decision that affects the parties involved in the case. It is
derived from State sovereignty and constitutes its vital and central feature. It is the authority of a State
over persons, property and events which are primarily within its territories.
Scope and Extent of State Jurisdiction- State jurisdiction may extend beyond its territory over persons
and things which have a national link. There are grounds or principles upon which the State can assert
its jurisdiction within and beyond its boundaries. Types of State Jurisdiction It is of three types:
legislative jurisdiction, executive jurisdiction and judicial jurisdiction.
a. Legislative jurisdiction- Legislative jurisdiction is the capacity of a State to prescribe rules of
law. A State has the supremacy to make binding laws within its territory. It has legislative
exclusivity in many areas. Although legislation is primarily enforceable within a state
territory, it may extend beyond its territory in certain circumstances. International Law, for
example, accepts that a State may levy taxes against persons not within its territory as long as
 there is a real link between the State and the proposed taxpayer, whether it is nationality or
domicile. However, this supremacy may be challenged in cases where a State adopts laws that
are contrary to the rules of International Law. In such cases, a State will be liable for breach of
International Law.
b. Executive Jurisdiction- It is the capacity of a State to act and to enforce its laws within its
territory. No state has the authority to infringe the territorial sovereignty of another State. In
this sense, a State cannot enforce its laws upon foreign territory without the consent of the
host State; otherwise it will be liable for breach of International Law.
c. Judicial Jurisdiction- It is the capacity of the courts of a State to try legal cases. A State has
an exclusive authority to create courts and assign their jurisdiction, and to lay down the
procedures to be followed. However, in doing so, it cannot by any means alter the way in
which foreign courts operate. There are a number of principles upon which the courts of a
State can claim jurisdiction..
Principles of Jurisdiction
a. The Territorial Principle
This principle is derived from the concept of State sovereignty. It means that a State has the primary
jurisdiction over all events taking place in its territory regardless of the nationality of the person
responsible. All other State must respect the supremacy of the State over its territory, and
consequently must not interfere in its internal affairs or in its territorial jurisdiction.
The territorial jurisdiction of State extends over its land, its national airspace, its internal water, its
territorial sea, its national aircrafts, and its national vessels. It encompasses not only crimes committed
on its territory but also crimes that have effects within its territory.
Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A State is free to
confer upon other States the right to exercise certain jurisdiction within its national territory. The most
significant recent examples of such arrangements are:
The 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are applicable to Israeli
nationals and the activities involving only them in the specified areas under Jordan’s sovereignty, and
measures can be taken in the areas by Israel to enforce such laws.
Liechtenstein v. Guatemala- A german lived in Guatemala for 34 years. He has his German
citizenship and then he also applied for Liechtenstein citizenship after the outbreak of World War
ll. The application was approved by Liechtenstein. After this approval, he travelled to Liechtenstein
and during his return to Guatemala he was not allowed to enter because he was deemed to be a
German citizen. Liechtenstein filed a suit before the court on Guatemala to allow him as a citizen. The
Court held that granting citizenship is solely the concern of the granting nation. The German wasn’t
forced by the Guatemala country to recognise him as a citizen and in result, the suit was dismissed.
UK vs. Norway (North Atlantic Fisheries Case)- the UK requested the International Court of Justice
(ICJ) to determine how far Norway’s territorial claim extended to sea and to provide some
compensation because Norway interfered in the fishing vessel of the UK and also claimed that
Norway’s claim to such extent was against International Law. The Court held that Norway’s claim to
the waters was consistent with the International law regarding the part of the sea space.
b. Criminal jurisdiction on the basis of territoriality
Criminal jurisdiction is the place where the forces of the Court are depicted in managing a situation
where an individual is blamed for an offense. Criminal Jurisdiction is utilized in numerous laws like
Constitutional Law and Public International Law.
Subjective territorial principle- a state has jurisdiction over a crime when it is commenced within the
State but completed or consummated abroad.
Objective territorial principle- the states have jurisdiction when a crime is commenced in another state
but consummated or completed within its territory.
SS Lotus Case (France vs. Turkey)- In the present case France challenged the validity of arrest of
French representative of ship, by Turkey, as he was representing that ship when it got crashed with
ship of turkey. This arrest was in violation of International law according to France. The court held
that, according to treaty (Treaty of Lausanne) turkey is authorized to arrest that officer and stated that
if someone challenges the jurisdiction of a Sovereign State, then the burden of proof will lie on the
plaintiff.
Mubarak Ali Ahmad vs. State of Bombay- the appellant Mubarak Ali was a resident of Pakistan and
he made a misrepresentation against the defendant in Bombay. It was contended on the grounds that
the Pakistani national, during the period of the commission of the offence has not stepped in India and
he was in Karachi, so he cannot be tried in the Indian Courts nor he can be held punishable under the
Indian Penal Code. But court held him liable U/S 420 of IPC even if he was not there in India
personally at that time but the whole crime was committed in Bombay itself hence his conviction was
not invalid according to the territorial jurisdiction.

Director of Public Prosecution vs. DOOT- the defendant was charged for unlawful acts which are for
the import of dangerous drugs into the UK. Defendants counsel said that they shouldn’t be tried in
England because the offence was committed abroad. The House of Lords stated that English Courts
have jurisdiction over the offences committed in England. Hence, there is no question that if there is
any breach in the rule of the law then they will be prosecuted in the country where the crime has been
committed.
c. The Nationality Principle
The nationality principle implies that a State jurisdiction extends to its nationals and actions they take
beyond its territory. It is based upon the notion that the link between the State and its nationals is a
personal one independent of location.
Active nationality principle- A State may prosecute its nationals for crimes committed anywhere in
the world; the ground of this jurisdiction is known as active nationality principle.
Passive Nationality principle- On the ground of passive nationality principle any state can claim
jurisdiction for those crimes which are committed against the nationals of that state by the foreign
nationals (aliens) abroad. In recent years this principle has come to be much acceptable by the
international community in the sphere of terrorist and other internationally condemned crimes.
Cutting case- Mr. Cutting published something defamatory against a Mexican citizen. When Mr.
Cutting visited Mexico for a vacation, the Mexican police arrested him for defamatory statements.
The US argued that this arrest was not lawful as the article was published from Texas, USA and not in
Mexico. Cutting was convicted under passive personality principle as a State is entitled to protect its
national for injuries suffered by him abroad if the territorial state fails to punish the offender.
d. The Protective Principle
The protective principle implies that a State may exercise jurisdiction over an alien who commits an
act outside its territory, which is deemed prejudicial to its security and interests. It is justified on the
basis of protection of State’s vital interests, particularly when the alien commits an offence prejudicial
to the State, which is not punishable under the law of the country where he resides and extradition is
refused.
Although the protective principle is used as a secondary basis for jurisdiction and in a narrower sense
than the territorial or the nationality principle, it can easily be abused, particularly in order to
undermine the jurisdiction of other States.
principle is applied in those cases where the acts of the person which take place abroad constitute
crimes against the sovereignty of the State, such as plots to overthrow a government, treason,
espionage, forging a currency, economic crimes and breaking immigration laws and regulations.
Abdul Kader Mahomed Jhaveri vs. Union of India- the petitioner was a foreign national and the
respondent initiated the legal proceedings against him for the breach of the provisions of the Foreign
Exchange Regulations Act. He carries on his business activity in India. But had done without the
permission of the Reserve Bank. Jurisdiction was allowed on the basis of protective principle.
Joyce v. DPP- an alien can be tried by the British Court for treason committed abroad as States are
entitled to jurisdiction on the basis of a proper regard for their own security.
e. The Universality Principle
The universality principle implies that a State can claim jurisdiction over certain crimes committed by
any person anywhere in the world, without any required connection to territory, nationality or special
State interest.
universal jurisdiction has been universally recognized over certain acts considered as international
crimes. International crimes are those committed against the international community as a whole or in
violation of International Law and punishable under it, such as war crimes, crimes against peace and
crimes against Humanity. In recent years, crimes such as Hijacking of aircraft, violation of human
rights and terrorism, have been added to the list of international crimes currently, under the
universality principle, each State and every State has jurisdiction over any of the international crimes
committed by anyone anywhere.
United States of America v Noriega- General Manuel Noriega was indicted on twelve counts of
engaging in a criminal enterprise in violation of U.S and drug laws. The indictment alleged that
Noriega participated in an international conspiracy. Noriega asserted that the case against him should
be dismissed due to lack of jurisdiction. The crimes that Noriega was charged with were intended to
have extra-territorial effects and hence, the court’s Jurisdiction was Reasonable. Jurisdiction was
also justified under the protective principle which permits the exercise of jurisdiction over acts that
threaten the existence of a state and have potentially deleterious effects in the state.
Attorney General of the government of Israel v. Eichmann (Eichmann case)- principle of universal
jurisdiction was relied on by Israel SC to uphold Eichmann’s conviction for war crimes and crimes
against humanity.

NATIONALITY
Meaning- The concept of nationality is important since it determines the benefits to which person may
be entitled to. The problem is that there is no coherent accepted definition of nationality in
international law. By the virtue of nationality, a person becomes entitled to a series of rights ranging
from obtaining a valid passport enabling travel abroad to being able to vote, and nationals are also
entitled to the protection of their state and to various benefits prescribed under international law. The
UNs Universal Declaration of Human Rights (1948) stated that nationality is an inalienable right of
every human being and no one shall be deprived of his/her citizenship. It is nationality which brings
all the individuals under the purview of international laws.
Definitions- Charles G. Fenwick – Nationality may be defined as a bond which unites a person to a
given State, which constitutes his membership in the particular State, which gives them a claim to the
protection of that state and which subjects him to the obligations created by the laws of that State.
J.G Starke – Nationality may be defined as the legal status of membership of the collectivity of
individuals whose acts, decisions and policy are vouchsafed through the legal concept of the State
representing those individuals.
Modes of acquisition of nationality- According to Oppenheim there are five modes of acquiring of
Nationality are as follows
By Birth - The first and the most important mode of acquiring nationality is by birth. Nationality is
conferred to a person by many States on the basis of birth. All those persons take birth within
territorial limit of a State acquire the nationality of the State. Being born in a country qualifies you to
be a national of the respective country. This is usually referred to as Jus Soli. It is a Latin term, its
literal translation is “right of soil”. This is provided despite the citizenship or the immigration status of
the respective individual’s parents.
By Naturalization - The second mode of acquiring a Nationality is by naturalization. A person
requires nationality at birth. However, his nationality may later on change. When the nationality of a
person changes subsequently, and he acquires the nationality of some other State, the process of
acquisition is known as naturalization. It usually requires the individual seeking the same to fulfil
certain requirements and perform certain protocols to be eligible for the same. The rules and protocols
for naturalization vary from country to country. The most common element can be the requirement of
a promise to obey and uphold the country’s law and respect the constitution.
By Resumption – The third mode of acquiring Nationality is by resumption. Sometimes a person may
lose his nationality because of certain reasons. Subsequently, He may resume, recover his original
nationality after fulfilling certain conditions.
By Subjugation – when a state is defeated or conquered, all the citizens acquire the nationality of the
conquering state
By Cession –. When a part of the territory of a state is ceded to another State, All Nationals of the
former acquires the nationality of the latter State. The literal meaning of cessation is the process of
ending or bringing to an end.
By Option –. When a state is proportioned into two or more States, the nationals of the former state
have an option to become the nationals of any of the successor States. The same principle applies in
the case of exchange of territory.
By Registration –A person may acquire the nationality of a State through Registration. The process
of registration may be different from one State to another depending upon the laws of that State. It
takes place when a person becomes the subject of a state to which he was before an alien.
By descent from a State’s National- This is known as the principle of Jus Sanguinis. It is derived
from a Latin term. It literally translates to “Right of Blood”. It means that the citizenship of the parent
is the pre-determinant of the child’s citizenship. This ensures that the citizenship passes from the
parent to the child.
By Marriage and adoption- Foreign individuals have the opportunity to be a permanent citizen of
the state where your significant other might be. This is known as a citizenship marriage. The Hague
Convention on Conflict of Nationality Laws (1930) laid down certain provisions regarding nationality
by marriage. Article 8: On the occasion of marriage, if the wife’s national laws cause her to lose her
nationality, the consequence of the responsibility completely befalls upon the wife to acquire the
nationality of the husband.
This is also referred to as intercountry or transnational adoption. This is very similar to any normal
adoption procedure, just in an international context. By the virtue of this measure, an individual or a
couple can be deemed legal parents of a child belonging to a foreign nation.
Nottebohm and principle of effective nationality case-
A case which illustrates the point on one of the many incidences of nationality is that of Nottebohm.
Nottebohm case concerned the question of whether Liechtenstein could exercise diplomatic Protection
on behalf of one of its nationals, Mr. Nottebohm, in respect of certain acts committed by Guatemala
against him.
In brief Nottebohm had been born in Germany and German nationality, but spent much of his life in
Guatemala which he had made the headquarters of his business activities. He obtained Liechtenstein
nationality through naturalization. His connections with that country were slight, At the outset the
Court made it clear that it was not concerned with the law of nationality in general, but only with the
question of whether Liechtenstein could exercise diplomatic protection in respect of Nottebohm vis à
vis Guatemala.
The Court noted that while under international law it was up to each State to lay down rules governing
the grant of its nationality, a State could not claim that, The rules it has thus laid down are entitled to
recognition by another state unless it has acted in conformity with this general aim of making the legal
bond of nationality accord with the individual’s genuine
The Court said in this case that nationality is a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with the existence of
reciprocal rights and duties.The Court found on the facts that there was insufficient connection
between Nottebohm and Liechtenstein for the latter to be able to exercise diplomatic protection on
Nottebohm’s behalf vis a vis Guatemala.

Loss of nationality- According to Oppenheim, there are five Modes of losing Nationality are as
follows:
By Release: Law provides that the citizens may lose the nationality by release. In the loss of
nationality by release it is necessary to submit an application for the same. If the Application is
accepted, the person concerned is released from the nationality of the State concerned.
By Deprivation: Certain States have framed some municipal laws the breach of which by its
nationals results in the deprivation of their nationality. Under the American laws, service in the armed
forces of a foreign State also results in deprivation of citizenship.
By Expiration due to long residence abroad: In certain States, on account of legislation, citizenship
expires due to long stay abroad. A naturalist American citizen loses his nationality by having s
continuance residence in the territory of a foreign state
By Renunciation: A person may also renounce his nationality. The need for renunciation arises when
a person acquires the nationality of more than one State. In such a condition he has to make a choice
as to of which country he will remain national.
By Substitution: Some States provide for the substitution of nationality. According to this principle, a
person may get nationality of a state in place of the nationality of another State. In certain States, law
provides that if the national of that State without seeking permission of the government obtains
employment in another State, then he may be deprived of his nationality.
concept of Double Nationality or Dual Nationality- When more than one country regards an
individual as its citizen, it is called dual citizenship. Dual citizenship occurs because different
countries have set-up varied methods for granting citizenship. A person who holds dual citizenship
generally enjoys the rights of citizenship of both countries. These rights can be: Right to hold
passports, Right to vote, Right to residence, Right to work, Right to enter the country. The person is
not just entitled to enjoy the rights, he is obliged to conduct certain duties like: National civil service,
Subject to the taxation system of the country, etc.
pros of dual nationality
● The benefits: Dual citizenship can provide a citizen with certain benefits. It depends upon the
laws of the nation-states. They get to vote, they get to be a part of multiple social service
programmes, eligible to hold multiple offices in both states.
● Multiple Passports: The process of getting your passport can be a long and tedious task, full
of multiple runs to the passport office and lots of red-tapisms. Thus marking this benefit as
the most important one. This lets the traveller evade questions related to the purpose of the
trip, reasons for a long-stay. This can be very beneficial for frequent flyers, businessmen and
students.
● Property Ownership: You can hold estates thus opening multiple alternate earning sources
which can be financially beneficial.
● Political Security: In case of a violent break out in one of the countries, you still have a
back-up option to rely on. You can rush to this safe-house with your family for their
safekeeping.
● Healthcare Benefits: Some countries have excellent medical facilities in addition to insurance
facilities being amongst the other perks. Thus you and your family stand at an advantage.
The cons of dual nationality
● Taxation laws might be a problem: usually if you have multiple citizenships, you are entitled
to pay taxes to both the countries. This might increase your expenses by tonnes.
● Security issues: the governments of some nations are afraid of the maybe consequences of
dual nationality. They fear that it can possibly change the majority of a nation and thus having
the potential to shift the political environment of a nation.
● Might not be allowed: many countries support dual nationality, many are against it. The
countries you want to be a citizen of can be of contradicting views. There is even a bigger risk
that, if your nation is against dual nationality, it might even revoke your nationality in the due
process of your application of nationality for some other country.
● It is a time-taking process: usually processes like these involve a lot of paperwork and
undertake a lot of time. All of these processes can be very frustrating for the applicant and
he/she might even give up the idea unless it is very necessary or in worst cases indulge
themselves in illegal activities to attain their means.

EXTRADITION- https://blog.ipleaders.in/extradition-in-international-law/
United States v. Alvarez-Machain
- dealt with issues related to extradition and the extraterritorial apprehension
- Dr. Humberto Alvarez-Machain, a Mexican national and a medical doctor, was
accused of participating in the kidnapping and murder of a U.S. Drug Enforcement
Administration (DEA) agent in Mexico.
- The U.S. government sought Alvarez-Machain's extradition, but the Mexican
government refused to extradite him.
- Alvarez-Machain was abducted from his home without a formal extradition request
- U.S. Supreme Court held that Alvarez-Machain's arrest and abduction did not violate
the Fourth Amendment
 - international law did not prohibit the abduction in this case, as there was no
extradition treaty in place between the United States and Mexico
As Chief Justice Fuller observed in the case of Terlinden v. Ames (1902), “extradition is the surrender
by one nation to another of an individual accused or convicted of an offence outside of its own
territory and within the territorial jurisdiction of the other which, being competent to try and punish
him demands the surrender”.
United States v. Rauscher (1886), a fugitive offender was extradited from Great Britain to the United
States of America to be tried for a murder committed on board an American ship. Upon the
extradition, the offender was convicted for the offense of grievously hurting a man, and not for the
alleged murder for which he was extradited. This was because there was no substantial evidence to
prove him guilty of the alleged murder. The Supreme Court held that it was a violation of the
Extradition Treaty and set aside the conviction.
Ker v. Illinois
- revolved around the extradition of John Ker, who was accused of embezzlement and
other financial crimes in Illinois. Ker had fled to Canada, and the State of Illinois
sought his extradition back to the United States.
- held that the extradition was not valid. The Court determined that the extradition
process was flawed because the proper legal procedures had not been followed.
- The Court concluded that the extradition request was defective because it did not
provide sufficient evidence to establish a prima facie case against Ker, and it did not
specify the crimes for which he was to be extradited.
ASYLUM- https://blog.ipleaders.in/asylum-territorial-extra-territorial/
SOVERIGN IMMUNITY-
https://www.ashurst.com/en/insights/quickguide-state-immunity-an-overview/ study from chatgpt
https://blog.ipleaders.in/concept-sovereign-immunity-international-law/

DIPLOMATIC IMMUNITY

Meaning (diplomats)- Diplomats are the persons who reside in foreign countries as the representative
of the country by whom they are despatched. They act as a link between the country who despatch
them and by whom they are accredited. Therefore, they perform the act of diplomacy, which in
International Law means by which the States maintain or establish mutual relations and carry out their
legal or political transactions based on their foreign policies.

The word ‘diplomat’ has been derived from a French term ‘diplomate’ which means a person whose
duty is to represent his country in the receiving country and to further negotiate on behalf of his State.
Diplomats enjoy a very special status both abroad as well as in the home. The early historians trace
the origin of this concept of diplomacy from the Mediterranean region, China, the Middle East, and
India. Diplomatic immunity- Diplomatic immunity is one of the principles of international law which
limits the degree to which the officials and employees of foreign governments would be subject to the
other country’s authority of police officers and judges.
Vienna Convention Diplomatic Relation, 1961- The development of the aspect of diplomatic
immunity over the years led to the evolution of the Vienna Convention which with time became a
universal Convention and its provisions clearly marked the progression of customs into the settled
law. In 1815, Vienna was the first site of a meeting for the diplomatic Agents. The first international
attempt to codify the rules of diplomatic immunity.
Classification of Diplomatic agents- Diplomatic agents accredited to a State differ in class.
The Vienna Convention on diplomatic relations, 1961 under Article 14 divides diplomatic agents into
three classes. They are:
● Ambassadors accredited to head of State.
● Envoys, ministers accredited to the head of State.
● Charges d’ Affairs accredited to Ministers of Foreign Affairs.
Functions of Diplomatic Agents
Functions of diplomatic agents are determined by the rules and regulations of International Law and
municipal law (law of country) of the States. Article 3(1) of the Vienna Convention of Diplomatic
Relations, 1961 lays down various functions of diplomatic agents which are as follows:
● Representation: Diplomatic agents represent the policies and beliefs of State by which they
are dispatched to the state where they are accredited. The function of representation is
primarily entrusted to the head of the mission. Oppenheim, in his book, says that “diplomats
are the mouthpiece of the head of his own State and the Foreign Minister for communication
to be made to State where they are dispatched.
● Protection: Diplomatic agents protect the rights and interests of sending State and also of
nationals, within the limits allowed by the municipal law of respective State. The limit of
diplomats is not prescribed by the International Law but by the municipal law of the State.
● Negotiation: Negotiation is the most important function which is performed by the diplomatic
agents. Generally, the head of the diplomatic mission negotiates on various aspects of on
behalf of the sending State with the State to which they are accredited in order to maintain a
friendly relationship. Diplomatic agents are required to communicate the outcome of the
negotiation to sending State from time to time,
● Observation: Diplomatic agents are required to observe those events and happenings which
take place or which may take place in the State where they are accredited, especially those
which may affect the interests of the State by which they are sent. After making observations
of the events, they are required to make periodical reports to the government of sending State.
● Promotion of Friendly Relations: Diplomats are required to promote friendly relations
between the sending State and the receiving State. They also have the function to develop the
social, cultural and economic relations between the two States.
● Consular Functions: Vienna Convention lays down that diplomatic agents can also perform
consular functions which may be allotted to them from time to time such as death, birth and
marriage registrations of the subjects of home State, issue of passports etc.
Theories of diplomatic immunity
Extraterritoriality Theory- This theory in international law exempts certain diplomatic persons and
Agencies operating in a foreign country from the jurisdiction of the host country. Also it states that
these diplomatic persons/Agencies do remain accountable to the laws of their native countries. The
concept of extraterritoriality theory was propounded by French legal theorist and jurist Pierre Ayraut.
According to him “certain persons and things, while within the territory of a foreign sovereign;
remained outside the reach of the local judicial process”.
Representative Character Theory- According to this, the host state should deal with the
representative of the other states as if it deals with the Sovereign state itself. This means the receiving
state must treat the representatives or ambassadors similar to how it treats the Presidential
representatives so that the diplomatic agents do not get subjected to the jurisdiction of the receiving
state.
Functional Necessity Theory- based on the thesis that diplomatic agents could successfully or
perfectly perform their function in other countries, only if they are protected or shielded with the
immunity and privileges in the receiving Nation.
Reciprocity Theory- The theory of reciprocity states that the favors, penalties, and benefits which are
granted by one State to the citizens or diplomatic agencies of another state should be returned back
with dignity and kindness
Privileges and immunities of a Diplomat- VCDRlays down the different rights and privileges which
are granted to diplomatic agents. They are as follows:
1. Right to worship: Under Article 3(1) of Vienna Convention diplomatic agents have the right
to worship any religion they like within the mission premises or residence. But they cannot
invite any nationals of the receiving State to take part in the worship and have no right to
preach their religion in receiving State.
2. Inviolability of Diplomatic Agents:
- Diplomatic agents are inviolable is a principle which is recognized in International
Law. Article 29 of the Vienna Convention lays down that “the person of a diplomatic
agent shall be inviolable”. He shall not be liable to any form of arrest or detention,
 and the receiving State shall treat him with all due respect and should take all
appropriate to prevent an attack on his personal freedom and dignity.
- The Government of receiving State by virtue of Article 29 is under a duty to conduct
to abstain from any form of conduct which is injurious to the diplomatic agents and
also under a duty to prevent such injurious conduct if attempted by another.
- This does not mean that the immunity given to the diplomats is absolute. The
receiving State has the power to arrest or detain the diplomatic agent in exceptional
cases For instance, a drunken diplomat with a loaded gun in a public place can be
arrested or if a diplomatic agent commits an act of violence which disturb the order
and peace of receiving State in such a manner that it becomes necessary to put him
under restraint for the purpose of preventing similar acts.
3. Inviolability of Staff of Mission
- Para 2 of Article 37 of Vienna Convention lays down that members of the
administrative and technical staff shall enjoy the immunities and privileges as
mentioned from
- Thus, administrative and technical staff only enjoys personal inviolability (Article
29),inviolability of residence (Article 30(1)), immunity from criminal
jurisdiction (Article 31(1)), exemption from certain taxes and duties (Article 34) and
immunity from civil and administrative jurisdiction exists when they are performing
service duties [Article 31(1)].
4. Inviolability of family members
- Article 37 Para 1 states that “immunities and privileges to the family members of
diplomatic the diplomatic agents having diplomatic ranks may be given, if firstly they
are not nationals or permanent resident of receiving State and secondly, so long as
they form the part of household, i.e. they live under one roof”.

5. Inviolability of premise:
- Article 21 of the Vienna Convention lays down that, “a permanent diplomatic
mission needs premises to operate and receiving State must help the sending State to
obtain the premises form mission”.
- Article 22 of the Vienna Convention of Diplomatic Relations stipulates the customary
rule of International Law by stating that “the premises of the mission shall be
inviolable”.
- Further Article 30 also provides that “private residence of a diplomatic agent shall
also enjoy inviolability”. The agents, police or any officer of the receiving State are
not allowed to enter the premises without the consent of the head of mission.
- However, the inviolability of premises is also not absolute it can be compromised in
certain exceptions. Article 41 of the Convention itself lays down that “premises of the
mission should not be used in any manner as incompatible with functions of mission
or by rules of general International Law”. So, if the inviolability of premises is
abused then the receiving State should not bear it passively and can take all the
necessary steps to stop the actions of agents.
6. Inviolability from being a witness completely immune from being a witness in any civil or
criminal or administrative court of State to which they are accredited. He is also immune from
giving evidence before the Commissioner. However, they may appear before any court by
waiving of their immunity. Article 31(2) lays down that “diplomat agent is not obliged to give
evidence as a witness”.

7. Immunity from taxes and customs duties: Article 34 of Vienna Convention lays down that,
“diplomatic agents shall be exempted from all dues and taxes, personal or real, national,
municipal or regional”.

8. Immunity from inspection of Personal Baggage:

- The bag used by the diplomatic agents for sending articles, letters or documents to the
sending states or any other missions of its State to abroad be known as a diplomatic
 bag. Para 3 of Article 27 of the Vienna Convention lays down that “diplomatic bag
should not be opened or detained’.
- according to Article 36 Para 2, this right is not absolute. It lays down that, “general
practice of exempting the diplomats’ personal baggage from a custom inspection is
qualified by the provision that inspection can be conducted in presence of a
diplomatic agent or his agent if there are serious grounds for suspecting that the
article is not for official use”.

9. Freedom of movement and travel: Article 26 of Vienna Convention empowers diplomatic

agents to move and travel in the territory of receiving State but subject to laws and regulations
of International Law and rules made by receiving State concerning security zone

10. Freedom of Communication: Diplomatic agents are free to communicate any information
for official purposes to the State by which they are accredited. Article 27 of the Vienna
Convention lays down that “the freedom of communication also involves the use of code
messages and couriers”.
11. Immunity from the Local Jurisdiction:
- Diplomatic agents enjoy immunity from the jurisdiction of local courts. The
immunity extends both to criminal as well as civil jurisdiction.
- diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State.
US v. iran- pg 81

STATE RESPONSIBILIY
State Responsibility
Meaning and nature- The law of State responsibility is the chapter of international law that concerns
the breach by a State of one or more of its international obligations. every breach by a subject of
international law of its international obligations entails its international responsibility. The law of
State responsibility- when an international obligation is to be held to have been breached, as well as
the consequences of that breach, including which States are entitled to react, and the permissible
means of that reaction.
Unlike national laws, wherein different rules often apply according to the source of the obligation
breached (e.g., contract law, tort law, criminal law), international law does not concern itself with the
source of the obligation that is breached; in principle (and unless otherwise specifically provided) the
same rules apply to the breach of an obligation whether the source of the obligation is a treaty,
customary international law, a unilateral declaration, or the judgment of an international court.
In August 2001 the International Law Commission completed its Articles on the Responsibility of
States for Internationally Wrongful Acts (ARSIWA). The aim of the articles is to codify the generally
applicable rules of State responsibility.
It should be noted that the ARSIWA are envisaged as laying down general rules that apply in default.
In some cases, special rules may apply to an obligation (either as a result of the formulation of the rule
itself, or because the obligation in question forms part of a special regime); for instance, it is possible
that a particular obligation may be subject to a special rule requiring fault or damage before there is
held to be a breach. This is the principle of lex specialis, (the special rules will prevail and displace
the more general rules).
Art 1 of ARSIWA- every intentionally wrongful act of a state entails the international responsibility
of that state.
Rainbow warrior case-
- dispute between NZ and France after sinking of rainbow warrior ship
- French undercover operation sunk the ship berthed in Auckland harbour
- NZ sought caught & convicted the French members but they were extradited from NZ
- NZ demanded reparation from the incident as France breached its int obligations
 - Held: The general principle is that “where a state sends its agents abroad to commit
acts which are illegal under international or municipal law of the target country, it is
customary for the state to take responsibility for the act and issue compensation.”
Scope
Theories- There are two theories attributed to State responsibility. The ‘risk’ theory says that a State is
strictly liable if a State official or organ commits a wrongful act. Whereas the ‘fault’ theory takes the
element of ‘intention’ into account and says that a State shall be responsible only if the act is
committed intentionally or negligently. There have been a number of debates regarding the
applicability of each theory in international law. Most jurists have inclined themselves towards the
‘risk theory’ of State responsibility.
Elements of State Responsibility- Art 2 - The act or omission of a State will qualify as an
“internationally wrongful act” if two conditions are met. First, the act or omission must constitute a
breach of an international obligation, or, as the articles put it, must be “not in conformity with what is
required” by the international obligation. Second, the act or omission must be “attributable” to the
State.
pg 31 case laws
There are two kinds of state responsibility:-
I. Direct responsibility:- Responsibility of a organs of a state, Responsibility of a administrative
departments of the state, responsibility of a agencies of a state i.e. all those persons who
regularised functions of state.
● Executive/administrative departments:- Who are responsible to do day to day work of a state,
for example- Head of department, Head of government, Head of state, authorised person
● Acts of judiciary:- When courts are passing judgements, if any court pass such order which
violates any convention or treaty(agreement) international obligation,
● Acts of armed forces:-Armed forces of any country, who is at authorised position, In official
capacity, under the comm[3]and of the state violate any convention or treaty(agreement)
● Diplomatic representative:-If any diplomatic representative (ambassador) commit any act on
command of sending state, in this situation the diplomatic representative have immunity but
the sending state, on whose command diplomatic representative done any act is directly
responsible.
II. Indirect responsibility:- In other words it is called as vicarious liability, it means if any
individual of the state, who are not authorised person
● citizen of state, foreigner, alliance etc who are existing in the state, if they are violating any
obligation of the state the state may indirectly responsible.
● Acts of mob:- It means when a group of people merge and done any act which is violating
international laws, in this case also state may indirectly responsible, for violation of
international laws. For instance, if a foreign embassy is overrun by a mob, or harm is done to
diplomatic staff by private individuals
● Insurgents- Article 10(1) provides that “the conduct of an insurrectional movement which
becomes the new government of a State shall be considered an act of that State under
international
Circumstances precluding the wrongfulness of a breach/ defences - Certain circumstances may serve
to preclude the wrongfulness of a breach of international law by a State, in much the same way that
defenses and excuses work in national criminal law. pg 32 33
Legal consequences of breach- pg 34
State responsibility for genocide-

MOD IX- HUMAN RIGHTS AND IHL

Nature and scope of human rights

1. essential and fundamental– In the absence of human rights, the society would be in a
deplorable state. There would be chaos all around. Human rights are a necessity for the
upliftment of people.
 2. Human rights are universal– The rights do not discriminate against the people. These rights
are available to all the people equally without taking note the varied differences among the
people.
3. Not absolute– Human rights are never absolute. Each right has its limitations which is
imperative to public health, order and morality. These rights are not unbridled.
4. Inalienable– Human rights are inalienable in nature. Nobody can deprive a person of these
rights. Moreover, human rights are inalienable because they cannot be rightfully taken away
or cannot be given away or be forfeited
5. Interdependent– Human rights are interdependent on other rights.
6. Dynamic– These rights are not static. They can be modified according to the prevailing
situations and conditions.
7. Irrevocable– The human rights are irrevocable; they cannot be taken away by anybody. No
power or authority can take away these basic rights from a person.
8. Connected with dignity– These human rights are deeply connected with the dignity of the
individuals living in a society.
9. These are similar to moral rights. Conscience is regarded important.
10. Human rights are inherent– The rights cannot be brought or borrowed from somewhere
11. Limits state’s powers

Types of Human Rights- There are five types of human rights, Civil, Political, Economic, Social and
Cultural Human rights. Civil Rights– These individual civil rights include life, liberty, security of
people, privacy freedom of movement, speech, thought conscience, subjecting no one to arbitrary
arrest, detention or exile, practicing religion and beliefs etc. (make rest up on your own)
Theories of human rights
Interest theory- Advocates of the interests theory approach argue that the principal function of human
rights is to protect and promote certain essential human interests. Securing human beings’ essential
interests is the principal ground upon which human rights may be morally justified. The interests
approach is thus primarily concerned to identify the social and biological prerequisites for human
beings leading a minimally good life. The universality of human rights is grounded in what are
considered to be some basic, indispensable, attributes for human well-being, which all of us are
deemed necessarily to share.
Criticism:
o Limiting interests: Specifying the set of interests that are sufficient reasons for rights is nearly
impossible. The proliferation of interest based rights continues: welfare rights; healthcare
rights; women’s rights; animal rights; etc.

Will Theory Approach- will theory was given by H.L. Hart (1907-1992), where he cited the
importance of human freedom or liberty. He mainly focused on the freedom of every person, which
means that freedom and well-being are the two necessary conditions for a rationally purposive agent
in the first place. They are the essential prerequisites for a human being, were to be human is to
possess the capacity for rationally purposive action. However, each individual is entitled to have
access to them. will theory attempts to establish the philosophical validity of human rights upon a
single human attribute: the capacity for freedom.
Criticism:
o No inalienable rights: The freedom protected by rights includes the freedom to waive any
right, including freedom to accept payment for waiving rights. Rights-holders could bargain
away any of their rights.
Marxist theory- it was believed that property is the basis for coming into existence of law and state,
but the argument on this is that neither law nor state existed in primitive society as there was no
concept of private property. Therefore it can be rightfully said that the Marxist theory views human
rights from a perspective very different from others.
Theory of legal rights, social rights, natural rights, historical rights.

Universal Declaration of Human Rights (UDHR)

 - In 1946 UN Commission on Human Rights was constituted to form an International
Bill of Rights, this was done with aim to enforce Human Rights globally and give
Human Rights a global recognition.
- The International bill consisted of Universal Declaration of Human Rights (UDHR),
ICCPR and ICESCR.
- The Universal Declaration of Human Rights came into force on 10 December, 1948.
It consists of 30 Articles in which, it covers civil, political, social and economic
rights.
- Some of the rights mentioned under UDHR were also adopted as “Fundamental
rights” in the Indian Constitution
- UDHR is considered to be the most important document as it consist all the essential
rights and has been ratified by every country in the world.
- UDHR has helped to form other treaties like: The International Convention on the
Elimination of Racial Discrimination (1965). The Convention on the Elimination of
All Forms of Discrimination Against Women (1979). The Convention on the Rights
of the Child (1989).
Rights mentioned Universal Declaration of Human Rights (UDHR)
1. Right to Equality- Art 1– is considered the most important right as it helps to create a
balanced society, a society where every individual is treated equally and it also enlarges the
scope of unity among its members. Article 1 of the UDHR provides that all the human beings
are born free and are equal in dignity and rights,
2. Article 2: Freedom from discrimination- Everyone is entitled to claim their rights, regardless
of their sexual orientation, socioeconomic status, religion, ethnicity, or language.
3. Art 3- Right to life and liberty– UDHR states that every individual have the right to life and
liberty. These rights are provided since the very birth of an individual and these rights are
inalienable.
4. Art 4,5- freedom from slavery and torture- Article 4 clearly specifies “No one shall be held in
slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”[6]. Also
Article 5 of UDHR protects from ill treatment, torture or cruelty or kind of punishment.
5. Art 7- right to equality before law
6. Art 8- access to justice
7. Art 10- access to a fair trial
8. Art 12- right to privacy
9. Freedom of Conscience and Religion- Art 18 states that “Everyone has the right to freedom of
thought, conscience and religion; this right includes freedom to change his religion or belief,
and freedom, either alone or in community with others and in public or private, to manifest
his religion or belief in teaching, practice, worship and observance”
10. Right to Freedom– Article 13(1), Article 19, Article 20(1), and Article 23(4) of the UDHR
protects rights like freedom of movement, freedom of speech and expression, freedom of
peaceful assembly, freedom to form association and union, respectively. In Union Of India
vs. Association For Democratic Reforms And Another, the Supreme Court held that “article
19 of universal declaration of human rights, 1948 (UDHR) recognizes right to receive
information, “everyone has right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference
11. Article 25: Right to an adequate standard of living
12. Article 26: Right to education
International Covenant on Civil and Political Rights (ICCPR)
Article 1– provides that the states that the right to self-determination is universal and calls upon States
to promote the realization of that right and to respect it.
Article 2– each state party must respect and ensure that the rights provided under this covenant is
enforced and the rights are provided to each and every individual of the state irrespective of their race,
gender, caste, sex, language, religion, political or other opinions. The article further provides that
every individual whose rights are violated should be provided with a suitable remedy.
Article 6, 7 and 8 –protecting the individual against any death penalty, in India the death penalty still
prevails.
Article 9– protects the individual against arbitrary arrest or detention.
Article 10– states that no matter whether the person has committed the crime or not he should be
treated with respect and dignity.
Article 12- provides freedom of movement and freedom to reside anywhere in the state and the right
to travel to different countries. Maneka Gandhi v. Union of India, the court held that no person can
be deprived of his right to go abroad unless there is a law made by the State].
Article 14- ensure that every individual is equal before the law. And every individual has the right to a
fair trial, conducted by an independent and impartial tribunal. The article also provides that the press
or public may be excluded during the trial for maintaining morals, public order and security.
Article 20 of the Indian Constitution strongly supports the idea of fair trial, so that every individual
gets the opportunity to be heard.
Article 19 of ICCPR provides freedom of speech and expression.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
ICESCR aims secure the social, economical and cultural rights of an Individual. There are certain
rights under ICESCR which are similar to the Indian Constitution, and they are:
i) Right to work- Article 6(1),
ii) Equal pay for equal work- Article 7(a) (i),
iii) Safe & humane condition of work- Article 7(b),
iv) Maternity relief- Article 10(2),
v) Opportunities to children- Article 10(3),
vi) Compulsory education to children- Article 13(2) (a), and so on.

Optional Protocols to ICCPR - The aim of forming this protocol was to act as a complaint mechanism
which would record and address the complaint of individual whose rights under the Covenant has
been violated. Committees were set up to address the issues and provide suitable solution within 6
months to the relevant parties. The second protocol to the ICCPR focuses on abolition of the death
penalty.
Optional protocol to ICESCR– provides a medium to the aggrieved individual who’s social, economic
and cultural rights have been violated to present his complaint in the international level and seek
remedy. The optional protocol includes 2 procedures, (complaints procedure + inquiries procedure)
Human rights council
- Human Rights Council is an inter-governmental body responsible for improving the
pursuit and defense of human rights across the globe and for discussing and issuing
recommendations on human rights abuses.
- It has the capacity to resolve all thematic problems of human rights and
circumstances that need its attention during the year.
- They meet at the Geneva Headquarters of the United Nations.
- The central principle of the complaint processes under the human rights treaties is
that anybody can file a complaint against a State Party
- A case may be filed against a State only when it meets two conditions. First, it must
be a party to the convention (through ratification or accession) that provides for the
supposedly violated rights. Second, the State Party must have understood and
recognized the committee’s integrity.
- The complaint should include the complainant’s identity, nationality, date of birth,
postal address, and e-mail address, and other such basic personal information.
- lay out all the evidence on which the complaint is based, in chronological order. The
account must be as accurate and provide all the material related to the case as
possible.
- Following the initial screening a request for information will be sent to the state
concerned, which shall reply within three months of the request being made.
- The UNHRC will decide on the measures to take in a confidential manner as needed,
but this will occur at least once a year. As a general rule, the period of time between
the transmission of the complaint to the state concerned and consideration by the
UNHRC shall not exceed 24 months.
To be accepted complaints must:
 ● be in writing and submitted in one of the six UN official languages (Arabic,
Chinese, English, French, Russian and Spanish);
● contain a description of the relevant facts (including names of alleged
victims, dates, location, and other evidence), with as much detail as possible,
and shall not exceed 15 pages;
● not be manifestly politically motivated;
● not be exclusively based on reports disseminated by mass media;
● not use a language that is abusive or insulting.
- Its mechanisms include the universal periodic review, which serves to assess the
situations of human rights in all States Members of the United Nations.
- The Advisory Committee serves as the Council’s “think tank”, providing it with
expertise and advice on thematic human rights issues. The complaint
procedure allows individuals and organizations to bring human rights violations to
the attention of the Council.
- The Human Rights Council also works with its special procedures. The special
procedures are independent experts appointed by the Council – to mandates as special
rapporteurs, independent experts, special representatives or members of working
groups – to monitor, examine, advise and publicly report on thematic issues or
situations of human rights in specific countries.
Human rights committee-
https://guide-humanitarian-law.org/content/article/3/human-rights-committee/
International Humanitarian Law
Meaning-International Humanitarian Law (IHL), also known as the laws of war or the law of armed
conflict, is a set of rules and principles that regulate the conduct of armed conflict and seeks to protect
those who are not taking part in the hostilities (civilians and combatants who are no longer
participating in the fighting), as well as to limit the means and methods of warfare.
International Humanitarian Law (IHL) is a compilation of rules that aim to mitigate the humanitarian
consequences of armed conflict. Today, international humanitarian law is regarded as a universal law.
It only extends to armed warfare.
International law is embodied in treaties or conventions between states, in customary laws, which
consist of State practices deemed legally binding by them, and in general principles. A major part of
International humanitarian law is contained in the Geneva conventions of 1949. Article 4 and Article
27 of the Geneva Convention occupy a key position among the Articles of the convention. It
proclaims the principle of respect for the human person and the secured character of the basic rights of
individual men and women.
Scope
Protection of Persons and principle of humanity: IHL seeks to protect individuals who are not or are
no longer participating in hostilities, including civilians, wounded or sick combatants, prisoners of
war, and the civilian population in general.
Limitation on Means and Methods of Warfare: IHL restricts the types of weapons and tactics that can
be used during armed conflicts, aiming to minimize suffering and damage to civilians and the
environment.
Application to Armed Conflicts: IHL applies to both international armed conflicts (between states)
and non-international armed conflicts (within the territory of a state).
Makes a distinction between Civilian and Combatant- The belligerent should recognize difference
between civilian and combatant. They should refrain from attacking civilian areas, if did, then it will
be grave violation of IHL. According to the UN General Assembly Resolution 2444 it is prohibited to
launch attacks against the civilian population and that distinction must be made at all times
Principle of Proportionality- This principle is mainly applied in the field of war. The term
'proportionality' has been used in the Article 22 of Regulation to the Hague Convention, which means
the right of belligerents to adopt means of injuring enemy is not unlimited.
Prohibition of Attack against Wounded, Sick and Prisoners of War- As per this principle, they no
longer possess any threat of for other side. There are different provisions regarding treatment of sick
and wounded soldiers, how to deal with prisoners of war etc. in IHL.
Humane treatment- art 3 GC- Civilians must be treated humanely at all times, according to the
concept of humane treatment. Article 3 of the GCs restricts all forms of violence against life and
person, including harsh treatment and torture
Significance
Protection of Human Dignity: IHL is based on the fundamental principles of humanity, impartiality,
and the protection of human dignity. It helps to preserve the lives and well-being of individuals during
armed conflicts.
Reducing Human Suffering: IHL seeks to minimize the suffering of combatants and civilians by
regulating the conduct of hostilities and ensuring that medical care and humanitarian assistance are
provided to the wounded and sick.
Preventing Excessive Use of Force: It helps to prevent excessive and unnecessary use of force and
encourages proportionality in military operations.
Legal Accountability: IHL establishes legal norms that can be used to hold individuals and states
accountable for violations, including war crimes, during armed conflicts.
Fostering Humanitarian Values: It promotes humanitarian values and encourages respect for the rights
of individuals, regardless of their nationality or affiliation, during armed conflicts.
Promoting Peace and Stability: By regulating the conduct of parties in armed conflicts, IHL
contributes to reducing the duration and intensity of conflicts, ultimately helping in the transition to
peace and stability.
Key sources of International Humanitarian Law
● Treaties such as:
o Hague Convention, 1907
o Four Geneva Conventions, 1949 (GCs)
o Additional Protocols I and II, 1977 (AP I and AP II)
● In a 2005 ICRC report on customary IHL, international customary law was explained or
hinted at.
● Jus cogens rules, such as prohibitions against genocide and torture, are examples of general
principles of law.
● Judicial decisions and teachings, mostly from the International Court of Justice, which include
a variety of International Court rulings and advisory opinions.
● The International Covenant on Civil and Political Rights (ICCPR) and International Covenant
on Economic, Social, and Cultural Rights (ICESCR) conventions on the prevention and
punishment of genocide.
Geneva conventions- The Geneva Conventions and their Additional Protocols are international
treaties that contain the most important rules limiting the barbarity of war. They protect people who
do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight
(wounded, sick and shipwrecked troops, prisoners of war).
The Conventions and their Protocols call for measures to be taken to prevent or put an end to all
breaches. They contain stringent rules to deal with what are known as "grave breaches". Those
responsible for grave breaches must be sought, tried or extradited, whatever nationality they may
hold.
The 1949 Geneva Conventions- The First Geneva Convention protects wounded and sick soldiers on
land during war.- It contains 64 articles. These provide protection for the wounded and sick, but also
for medical and religious personnel, medical units and medical transports. The Convention also
recognizes the distinctive emblems.
The Second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea
during war.- This Convention replaced Hague Convention. It closely follows the provisions of the
first Geneva Convention in structure and content. It has 63 articles specifically applicable to war at
sea. For example, it protects hospital ships.
The Third Geneva Convention applies to prisoners of war.- This Convention replaced the Prisoners
of War Convention of 1929. It contains 143 articles. The categories of persons entitled to prisoner of
war status were broadened in accordance with Conventions I and II. The conditions and places of
captivity were more precisely defined, particularly with regard to the labour of prisoners of war, their
financial resources, the relief they receive, and the judicial proceedings instituted against them. The
Convention establishes the principle that prisoners of war shall be released and repatriated without
delay after the cessation of active hostilities.
o Article 13- Prisoners of war must be treated humanely at all times. Any unlawful conduct or
omission by the detaining power that results in the death or serious endangerment of a
prisoner of war in its custody is prohibited and will be considered a major breach of the
present Convention.
o No prisoner of war may be subjected to bodily mutilation or medical or scientific
experimentation of any type that is not authorized by the prisoner’s medical, dental, or
hospital treatment and carried out in his best interests.
o Similarly, prisoners of war must be protected at all times, especially from acts of violence or
intimidation, as well as insults and public curiosity.
o Article 118- RELEASE AND REPATRIATION OF PRISONERS OF WAR AT THE CLOSE
OF HOSTILITIES. After active hostilities have ended, prisoners of war must be liberated and
repatriated as soon as possible. In the absence of stipulations to the above effect in any
agreement reached between the parties to the conflict with a view to ending hostilities, or in
the absence of such an agreement, each of the detaining powers shall establish and implement
a plan of repatriation following the principles.
o In either situation, the prisoners of war must be informed of the actions that have been taken.
In all situations, the costs of repatriation of prisoners of war must be shared equitably between
the detaining Power and the power on which the detainees rely.
Factor v. Laubenheimer/ In Re Factor-
o involved a legal dispute over the status of an individual during World War II under the
Geneva Conventions. an American soldier, was captured by German forces during World War
II and held as a prisoner of war and sought the protection of the Geneva Conventions as a
POW.
o The German government argued that he should not be recognized as a POW because he was
of Jewish descent and not entitled to protection under the conventions. The Court held that
Factor, as an American soldier, was entitled to the protections of the Geneva Conventions and
should be considered a prisoner of war. This decision affirmed the principle that the
protections under the Geneva Conventions should be applied without discrimination based on
religion or ethnicity.
The Fourth Geneva Convention protects civilians, including those in occupied territory.- The
Geneva Conventions, which were adopted before 1949. were concerned with combatants only, not
with civilians. It contains a short section concerning the general protection of populations against
certain consequences of war, without addressing the conduct of hostilities, as such, which was later
examined in the Additional Protocols of 1977. The bulk of the Convention deals with the status and
treatment of protected persons, distinguishing between the situation of foreigners on the territory of
one of the parties to the conflict and that of civilians in occupied territory. It spells out the obligations
of the Occupying Power vis-à-vis the civilian population and contains detailed provisions on
humanitarian relief for populations in occupied territory. 4th Geneva Convention also provides 6
rights to POWs
o Must not be tortured and mistreated.
o They are only required to give Name/Rank/DOB/Serial no./Place where they got captured.
o They must receive suitable housing and an adequate amount of food.
o They should not be treated; differently, no discrimination should be made.
o They have the right to correspond with their family and receive care packages.
o The Red Cross has the right to visit POWs and examine their living conditions.
Common Article 3- NIAC- Article 3, common to the four Geneva Conventions deals with situations
of non-international armed conflicts.. They include traditional civil wars, internal armed conflicts that
spill over into other States or internal conflicts in which third States or a multinational force
intervenes alongside the government. Common Article 3 establishes fundamental rules from which no
derogation is permitted. makes them applicable to conflicts not of an international character:
 o It requires humane treatment for all persons in enemy hands, without any adverse distinction.
It specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading
treatment, the taking of hostages and unfair trial.
o It requires that the wounded, sick and shipwrecked be collected and cared for.
o grants the ICRC the right to offer its services to the parties to the conflict.
The Additional Protocols to the Geneva Conventions- two Protocols Additional to the four 1949
Geneva Conventions were adopted in 1977. They strengthen the protection of victims of international
(Protocol I) and non-international (Protocol II) armed conflicts and place limits on the way wars are
fought. Protocol II was the first-ever international treaty devoted exclusively to situations of
non-international armed conflicts. In 2005, a third Additional Protocol was adopted creating an
additional emblem, the Red Crystal, which has the same international status as the Red Cross and Red
Crescent emblems.
The Nuremberg Trials (1945-1946): the Nuremberg Trials were a series of military tribunals that
tried major Nazi war criminals for their actions during World War II. These trials set an important
precedent by establishing that individuals could be held criminally responsible for war crimes, crimes
against humanity, and other violations of humanitarian law. The Nuremberg Trials introduced the
concept of "crimes against humanity." This concept recognized that certain acts committed as part of a
widespread or systematic attack on a civilian population could be considered crimes under
international law, even if they were not directly related to the conduct of traditional warfare. The
Nuremberg Charter defined crimes against humanity, and the trials provided a platform to prosecute
individuals for these offenses.
The Eichmann Trial This trial focused on the prosecution of Adolf Eichmann, one of the architects of
the Holocaust. It was significant in highlighting the importance of individual accountability for crimes
against humanity, including genocide. Demonstrated that individuals can be held accountable for their
actions in perpetrating crimes against humanity and genocide. It helped establish key legal principles
and contributed to the evolution of the international legal framework for prosecuting those responsible
for the most serious international crimes.
Relationship between humanitarian law and human rights law
Complementary nature: Humanitarian law and human rights law are complementary bodies of law.
Humanitarian law primarily applies in situations of armed conflict, whether international or
non-international, while human rights law applies in peacetime as well as during armed conflicts. In
situations of armed conflict, both bodies of law may apply simultaneously, with humanitarian law
providing specific rules for the conduct of hostilities and protection of civilians, and human rights law
offering a broader framework for the protection of fundamental rights.
Humanitarian law during armed conflict: Humanitarian law, also known as the laws of armed conflict
or the law of war, consists of two main branches: the Geneva Conventions and their Additional
Protocols, which govern the protection of persons in times of armed conflict, and the Hague
Conventions, which regulate the conduct of hostilities. Humanitarian law is designed to limit the
suffering caused by armed conflict by protecting individuals who are not or are no longer taking part
in hostilities, such as civilians and wounded or sick combatants.
Human rights law during all circumstances: Human rights law, on the other hand, is applicable at all
times, including during peacetime and armed conflict. It encompasses a wide range of rights and
freedoms that individuals are entitled to, such as the right to life, freedom from torture, and the right
to a fair trial. These rights are enshrined in various international and regional human rights treaties,
such as the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights. Human rights law places a strong emphasis on the inherent dignity of all individuals
and the responsibility of states to protect and uphold these rights.
Overlapping protection: In many cases, humanitarian law and human rights law overlap, and they both
aim to protect the same fundamental values, such as the right to life and the prohibition of torture. In
these situations, both bodies of law reinforce each other and provide a stronger legal framework for
the protection of individuals in times of conflict.
LAW OF SEAS

Historical development of the law of seas

Territorial seas

It is that part of the sea which is directly next to the coastline and bounded by the high seas.
UNCLOS Article 3 both express that states exercise sovereignty over this zone subject to the
provisions of the respective conventions and other rules of international law. The territorial sea forms
an undeniable part of the land territory to which it is bound so that a cession of land will automatically
include any band of territorial waters.

According to UNCLOS, it is believed that every coastal state has Territorial sea. The sovereignty of
the coastal state extends to the seabed and subsoil of the territorial sea and the airspace above it. The
coastal States exercise a wide variety of exclusive power over the territorial sea which depends largely
on the municipal law rather the international system. Coastal states can control the entry of foreign
vessels from trading or fishing activities to preserve it for their own citizens.

Width of the Territorial sea

- Width of the territorial sea up to which the states can exercise sovereignty has been
subjected to a long line of historical development. Initially, it started with the
“cannon-shot”, however during the 19th century it changed to 3-mile .
- Article 3 of the 1982 Convention, however, notes that all states have the right to
establish the breadth of the territorial sea up to a limit not exceeding 12 nautical miles
from the baselines.
- Article 15 of the 1982 Convention lays down that if the coasts of two states are
opposite or adjacent to each other, neither State has the, failing agreement between
them to the contrary, to extend its territorial sea beyond the median line
- For determining the measurement of this range one methods have been laid down
which are as follows:
- Low water line- Anglo Norwegian Fisheries case which propounded the principle
regarding the determination of the baseline w.r.t geographical realities. In this case,
the method applied by the Norwegians affected the fishing interest of UK because the
straight baseline method was applied by Norway. The court upheld the straight
baseline method applied due to the peculiar nature of its coastline. The method that
determines the rule regarding the 12 Nautical miles limit depends mainly on the
nature of the state’s geographic position

The Right of Innocent Passage- section 3

- The right of foreign merchant ships (as distinct from warships) to pass unhindered
through the territorial sea of coast has long been an accepted principle in customary
international law
- Meaning of passage Article 18 of the UNCLOS.
o Passage means navigation through the territorial sea for the purpose of:
o traversing that sea without entering internal waters or calling at a roadstead or
port facility outside internal waters;
o proceeding to or from internal waters or a call at such roadstead or port
facility.
o Passage shall be continuous and expeditious. However, passage includes
stopping and anchoring, but only in so far as the same are incidental to
ordinary navigation or are rendered necessary by force majeure or distress or
for the purpose of rendering assistance to persons, ships or aircraft in danger
or distress.
- Meaning of innocent passage- art 19
 o Article 19 defines Innocent Passage “Passage is innocent so long as it is not
prejudicial to the peace, good order or security of the coastal State.” Such
passage shall take place in conformity with this Convention and with other
rules of international law.
o passage of a foreign ship shall be considered to be prejudicial to the peace,
good order, or security of the coastal State if in the territorial sea it engages in
any of the following activities:
o Any threat or use of force against the sovereignty, territorial integrity of the
coastal State, or in any other manner in violation of the principles of
international law embodied in the Charter of the United Nations;
o Any exercise or practice with weapons of any kind;
o Any act of propaganda aimed at affecting the defence or security of the
coastal State;
- Laws adopted by costal state for innocent passage - art 21
o The coastal State may adopt laws and regulations, in conformity with the
provisions of this Convention and other rules of international law, relating to
innocent passage through the territorial sea, in respect of
o the safety of navigation and the regulation of maritime traffic; the protection
of cables and pipelines; conservation of living resources in the sea and
prevention of infringement of customs of local state, prevention of
infringement of fishery laws and for prevention of pollution
o the costal state shall publicise all laws and regulations
o coastal state may not impose charges for such passage unless they are in
payment for specific services
o ships engaged in passage are required to comply with the coastal state’s
regulations covering, for example, navigation in so far as they are consistent
with international law.
- interpretation of innocent passage
o Corfu Channel case. This case arose from incidents that occurred in the
Corfu Strait. two British destroyers struck mines in Albanian waters and
suffered damage, including serious loss of life.
o The United Kingdom Government had protested, stating that innocent
passage through straits is a right recognized by international law; the
Albanian Government had replied that foreign warships and merchant vessels
had no right to pass through Albanian territorial waters without prior
authorization.
o the Court held that it was not the character of the ship which was the
determining factor, but rather the character of the passage itself.
o The Court was satisfied that the passage was innocent. The evidence showed
“that the ships were not proceeding in combat formation, but in line, one after
the other.
o The 1958 Convention expressed the principle underlying the Corfu Channel
decision, namely that “passage is innocent so long as it is not prejudicial to
the peace, good order or security of the coastal
o Right of Passage over Indian Territory (Portugal v. India)
o the question arose of a right of passage in favour of Portugal through Indian
Territory and of a correlative obligation binding upon India.
o The Application stated the Government of India prevented Portugal from
exercising that right of passage and that Portugal was thus placed in a
position in which it became impossible for it to exercise its rights of
sovereignty over the enclaves.
o Court declared that a right of passage was possessed by Portugal and must be
respected by India; this right was invoked by Portugal only to the extent
 necessary for the exercise of its sovereignty over the enclaves made clear that
such passage remained subject to the regulation and control of India
- Duties and rights of the costal state- 24, 25
o 24 The coastal State shall not hamper the innocent passage of foreign ships
through the territorial sea except in accordance with this Convention
o coastal State shall not impose requirements on foreign ships which have the
effect of denying or impairing the right of innocent passage/ discriminate
o shall give appropriate publicity to any danger to navigation, of which it has
knowledge, within its territorial sea.
o 25 The coastal State may take the necessary steps in its territorial sea to
prevent passage which is not innocent.
o The coastal State may, without discrimination suspend temporarily in
specified areas of its territorial sea the innocent passage of foreign ships if
such suspension is essential for the protection of its security, including
weapons exercises. Such suspension shall take effect only after having been
duly published.

Internal waters-
As per Article 8 of UNCLOS, internal waters include that part of the sea which does not belong to
either the high seas or the territorial rather covers all the waterways on the landward side of the
baseline. It includes waterways such as rivers and canals, and sometimes the water within small bays.

In internal waters, sovereignty of the state is equal to that which it exercises on the mainland. The
coastal state is free to make laws relating to its internal waters, regulate any use, and use any resource.
In the absence of agreements to the contrary, foreign vessels have no right of passage within internal
waters, and this lack of right to innocent passage is the key difference between internal waters and
territorial waters

When a foreign vessel is authorized to enter inland waters, it is subject to the laws of the coastal state,
with one exception: the crew of the ship is subject to the law of the flag state. This extends to labor
conditions as well as to crimes committed on board the ship, even if docked at a port. The coastal state
can intervene in ship affairs when the master of the vessel requires intervention of the local
authorities, when there is danger to the peace and security of the coastal state, or to enforce customs
rules.

Continental shelf

Article 77- Rights of the coastal State over the continental shelf
● The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.
● The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does
not explore the continental shelf or exploit its natural resources, no one may undertake these
activities without the express consent of the coastal State.
● The rights of the coastal State over the continental shelf do not depend on occupation,
effective or notional, or on any express proclamation.
● The natural resources referred to in this Part consist of the mineral and other non-living
resources of the seabed and subsoil together with living organisms belonging to sedentary
species, that is to say, organisms which, at the harvestable stage.

Article 78- Legal status of the superjacent waters and air space and the rights and freedoms of other
States
● The rights of the coastal State over the continental shelf do not affect the legal status of the
superjacent waters or of the air space above those waters.
 ● The exercise of the rights of the coastal State over the continental shelf must not infringe or
result in any unjustifiable interference with navigation and other rights and freedoms of other
States as provided for in this Convention.

Article 79- Submarine cables and pipelines on the continental shelf

● All States are entitled to lay submarine cables and pipelines on the continental shelf, in
accordance with the provisions of this article.
● Nothing in this Part affects the right of the coastal State to establish conditions for cables or
pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines
● When laying submarine cables or pipelines, States shall have due regard to cables or pipelines
already in position.

Article 81- Drilling on the continental shelf- The coastal State shall have the exclusive right to
authorize and regulate drilling on the continental shelf for all purposes.

Article 82- Payments and contributions with respect to the exploitation of the continental shelf beyond
200 nautical miles
● The coastal State shall make payments or contributions in kind in respect of the exploitation
of the non-living resources of the continental shelf beyond 200 nautical miles from the
baselines
● The payments and contributions shall be made annually with respect to all production at a site
after the first five years of production at that site.
● For the sixth year, the rate of payment or contribution shall be 1 per cent of the value or
volume of production at the site. The rate shall increase by 1 per cent for each subsequent
year until the twelfth year and shall remain at 7 per cent thereafter.
● The payments or contributions shall be made through the Authority, which shall distribute
them to States Parties to this Convention, on the basis of equitable sharing criteria, taking into
account the interests and needs of developing States, particularly the least developed and the
land-locked among them.

Rights of land locked states

Vienna Convention on the Law of Treaties (1969). Article 66 of the Vienna Convention recognizes the
principle of freedom of transit, which is crucial for landlocked states. It ensures that they have the
right of access to and from the sea through the territory of transit states.
Albania v. Greece (1947): This case involved a dispute over the use of port facilities and access to the
sea for the landlocked state of Albania through Greek territory. The Permanent Court of International
Justice ruled that Greece should allow Albania access to the sea, emphasizing the principle of freedom
of transit.

Equidistance and special and relevant circumstances

https://www.legalservicesindia.com/article/1686/Equidistance-and-Equitable-Principle-under-the-law-
of-the-Sea.html#

High seas

In the sixteenth and seventeenth centuries, the Dutch and British didn’t acknowledge the authority of
the Portuguese and Spanish over huge parts of the sea. In the seventeenth century a genuine clash
emerged between the Dutch and the British concerning the understanding of the freedom of seas.
During the 1800s there were two significant patterns. The first being the developing significance of
freedom of high seas in view of the industrial revolution

- Article 87(1)[5] talks about the various freedom of the high seas. The high seas are
open to all States, whether coastal or land-locked. Freedom of the high seas is
 exercised under the conditions laid down by this Convention and by other rules of
international law. It comprises, inter alia, both for coastal and land-locked States:
- High sea shall be reserved for peaceful purposes- 88
- No state can subject HS to its sovereignty- 89

Freedom of Navigation- 90
o article 90, which declares that each state (coastal or land-locked) has the right to sail ships
flying its flag on the high seas. This freedom applies to a wide range of vessels, be it merchant
ships, ships in public service, warships or some other kind of ship.
o Ships shall sail under the flag of one State only and, save in exceptional cases expressly
provided for in international treaties or in this Convention. A ship may not change its flag
during a voyage or while in a port of call.
o Warships on the high seas have complete immunity from the jurisdiction of any State other
than the flag State.
o In the event of a collision or any other incident of navigation concerning a ship on the high
seas, no penal or disciplinary proceedings may be instituted against such person except before
the judicial or administrative authorities either of the flag State or of the State of which such
person is a national.
o No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any
authorities other than those of the flag State.
o Every State shall require the master of a ship flying its flag, in so far as he can do so without
serious danger to the ship, the crew or the passengers: (a) to render assistance to any person
found at sea in danger of being lost; (c) after a collision, to render assistance to the other ship,
its crew and its passengers and, where possible, to inform the other ship of the name of his
own ship, its port of registry and the nearest port at which it will call.

Freedom of Fishing- 116

o The freedom of fishing is there under Article 116 which says that all states have the right for
their nationals to take part in fishing on the high seas. The article promptly proceeds to
specify that this right isn’t absolute, yet is indeed confined
o All States have the duty to take, or to cooperate with other States in taking, such measures for
their respective nationals as may be necessary for the conservation of the living resources of
the high sea.
3. Freedom to lay submarine cables and pipelines- 112
o All States are entitled to lay submarine cables and pipelines on the bed of the high seas
beyond the continental shelf.
o When laying submarine cables or pipelines, States shall have due regard to cables or pipelines
already in position. In particular, possibilities of repairing existing cables or pipelines shall
not be prejudiced.

4) Freedom of overflight
The freedom of overflight is generally associated with air law and less to sea law. The convention
essentially expresses that the airspace over the high seas is available to airplanes of all states

5. Freedom of Scientific Research

o expresses that each state has the option to lead marine scientific research, additionally in the
waters past the restrictions of the Exclusive Economic Zone. C

6. Freedom to construct artificial islands and other installations

an artificial island is a development encircled by the ocean, that isn’t an island or a boat. States are
allowed to build such articles, yet this opportunity isn’t without its impediments. For a certain
something, the International Seabed Authority’s consent is required if the establishment is made with
the end goal of investigating or misusing assets that are important for humankind’s regular heritage.

"Case Concerning Military and Paramilitary Activities in and against Nicaragua" (Nicaragua v.
United States of America, 1986) was a landmark case heard before the International Court of Justice
(ICJ) and was primarily focused on issues, including activities in the territorial sea and the exclusive
economic zone (EEZ).
of the use of force without legal justification, are consistent with UNCLOS provisions.

A significant aspect of the case involved the activities of the United States in the territorial sea of
Nicaragua. The United States argued that its military and paramilitary activities near Nicaragua were
not a violation of Nicaragua's sovereignty, as they were conducted in international waters. Nicaragua,
on the other hand, claimed that these activities constituted a violation of its sovereignty. The case
raised questions about the boundaries of the territorial sea and the principle of freedom of navigation.

Freedom of Navigation: The case indirectly highlighted principles of freedom of navigation and
innocent passage, which are essential components of UNCLOS. UNCLOS codifies the rights and
obligations of states regarding navigation and overflight in territorial seas and international straits,
which were among the issues raised in the case. US held liable.

Flag state- article 94

o Every State shall effectively exercise its jurisdiction and control in administrative, technical
and social matters over ships flying its flag.
o every State shall:
o (a) maintain a register of ships containing the names and particulars of ships flying its flag,
except those which are excluded from generally accepted international regulations on account
of their small size; and
o (b) assume jurisdiction under its internal law over each ship flying its flag and its master,
officers and crew in respect of administrative, technical and social matters concerning the
ship.
o Every State shall take such measures for ships flying its flag as are necessary to ensure safety
at sea with regard, inter alia, to:
o (a) the construction, equipment and seaworthiness of ships;
o (b) the manning of ships, labour conditions and the training of crews, taking into account the
applicable international instruments;
o (c) the use of signals, the maintenance of communications and the prevention of collisions.
o Such measures shall include those necessary to ensure:
o (a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a
qualified surveyor of ships, and has on board such charts, nautical publications and
navigational equipment and instruments as are appropriate for the safe navigation of the ship;
o (b) that each ship is in the charge of a master and officers who possess appropriate
qualifications, in particular in seamanship, navigation, communications and marine
engineering
o (c) that the master, officers and, to the extent appropriate, the crew are fully conversant with
and required to observe the applicable international regulations concerning the safety of life at
sea, the prevention of collisions.
o Saint Vincent and the Grenadines v. Guinea - This case, decided by the International
Tribunal for the Law of the Sea (ITLOS) in 1999, emphasized the importance of flag state
jurisdiction. It revolved around the arrest of a vessel flying the flag of Saint Vincent and the
Grenadines for illegal fishing in the exclusive economic zone of Guinea. ITLOS held that the
flag state had primary jurisdiction over the vessel and should conduct any proceedings related
to the arrest.
 o SS Lotus case The PCIJ ruled in favor of Turkey, establishing the principle that, in the
absence of a specific treaty provision to the contrary, states have a right to exercise
jurisdiction over foreign-flagged vessels if the collision occurs in their territorial waters, even
if the collision did not result from a breach of navigational rules.
o "Enrica Lexie" Case (Italy v. India): The "Enrica Lexie" case involved the killing of two
Indian fishermen by Italian marines on board the Italian-flagged Enrica Lexie off the coast of
India. Ultimately, a tribunal constituted under UNCLOS upheld India's jurisdiction. The
"Enrica Lexie" case highlighted the delicate balance between flag state jurisdiction and
coastal state jurisdiction under UNCLOS, particularly in cases involving criminal acts at sea.
It underscored the principle that while the flag state has primary jurisdiction over a vessel and
its crew, coastal states also have legitimate rights and responsibilities within their EEZs,

PROBLEM QUESTIONS

Reparation for Injuries suffered in the Service of the United Nations case facts
Article 104 of the UN Charter: The ICJ first examined Article 104 of the United Nations Charter,
which states that member states have an obligation to make provisions to assist the United Nations in
maintaining international peace and security. Nature of Reparation: The ICJ clarified that the nature
and extent of reparation would depend on the circumstances of each case and would be determined
through negotiation between the UN and the member state in question. The Court did not specify a
fixed or automatic form of reparation.