International Law

Q1. Define nationality. how is it acquired and lost. (1998)(1999)(2006/S)

1. Introduction:

Nationality is status of a person who is attached to a state by the tie of allegiance. it is a relationship between a state and individual. the fundamental basis of a nationality of a person is membership of an independent political community. the question of determination of nationality comes within the doctrine of municipal law.

2. Meaning:

The word nationality is derive from the word national which simply means subject of a particular state.

3. Definition:

According to Openheim:

"Nationality of an individual is his quality being a subject of a certain state."

4. Determination of nationality

U. S v/s Wong Kum Ark 1898:

It was held that state may determine as to what type or class of people shall be entitled to citizenship.

5. Right of nationality:

According to article 15 (i) of the universal declaration of human rights 1984 i. e every one has rights to a nationality. the hague convention on certain questions relating to the conflict of nationality laws 1930 provides that it is for each state to determine under its municipal law who are its nationals.

6. Importance of nationality:

Strak's views

(i) Protection of rights: Protection of rights of the diplomatic agents are in consequences of nationality.

(ii) Jurisdiction of state: State exercises jurisdiction over civil and criminal matters over the persons of its nationality.

(iii) Practice of state during war:

During war enemy is determined on the basis of nationality.

(iv) Refusal to extradite:

State can refuse to extradite its own nationals.

(v) Responsibility of state:

States shall be responsible for harmful acts committed by their nationals if they allow them to commit such a harmful acts.

7. Modes of acquisition: Following are the modes of acquisition of nationality.

I. By birth:

a person acquires nationality of the state where he is born.

(i) Kinds of nationality by birth:

(a) Jus Soli: It is nationality according to territory or locality of birth.

(b) Jus Sanguinis: It is nationality according to the nationality of the parents.

II. By naturalisation:

Nationalisation is a process by which a person living in a foreign state acquire a citizenship of that state or it takes place when a person becomes the subject of state to which he was before an alien. there are six way of nationalisation.

(a) Marriage: The wife assumes her husband's nationality, if latter is the national of another state.

(b) Legitimation: A legitimate child acquires the nationality of his father.

(c) Option: If a person fulfils the requisite conditions prescribed by the law of any state, he may be offered nationality by that state.

(d) Domicile: If a person keeps domicile of a state he also gets the nationality of that state.

(f) Government service: If a person gets govt, service in a state he acquires the nationality of that state.

(i) Permission by state to apply: If law of any state permits application from persons for conferring nationality. such person may get nationality if they prove their eligibility.

III. By resumption:

It happens when a person resumes his nationality after losing it.

IV. By subjugation:

It is a acquired when a state is defeated or conquered and when all citizen acquire nationality of conquering state.

V. By cessation:

When a state has been ceded in another state. the people of that territory get nationality of the state in which the territory has been merged.

VI. By legislative or administrative act:

Nationality can also be acquired by the legislative or administrative act of the state.

8. Modes of losing nationality:

According to oppenhiem nationality can be lost in the following ways.

(i) Release: It is effected by submitting an application by the nationality holder. if the application is allowed he may lose his nationality.

(ii) Deprivation: Some states provide deprivation of nationality in certain circumstances. if a national of a state gets his appointment in another state without seeking prior permission of his state, he will be deprived of the nationality in that state.

(iii) Residence Abroad for long period:

If a person resides for a long period in abroad his nationality is lost.

(iv) Substitution: Loss of nationality of substitution occurs when a person loses nationality of one state and acquires nationality of another state.

(v) Substitution: Loss of nationality of substitution occurs when a person loses nationality of one state and acquires nationality of another state.

9. Difference between nationality and citizenship:

I. As to relation: Nationality is relationship between national and  individual.

Citizenship is relationship between the persons and state law.

II. As to right: A person may get international rights by getting nationality of a state.

The rights of citizenship are concerned with the state law.

III. As to scope: Nationality has wider scope.

Citizenship has less scope.

IV. As to law: Nationality concern both with municipal laws and international law.

Citizenship concern with municipal law only.

10. Conclusion:

Nationality is a legal relationship between the states and its citizens. a person without nationality is statelessness. universal declaration of human rights 1984 provides that everyone has the right of nationality.

Q. Discuss and distinguish between public international law and private international law. (1997)

1. Introduction:

Public international law and private international law are two branches of international law. generally, there is no distinction between public international law and private international law but it is very necessary that one should not confuse public international law and private international law.

2. Definitions of international law:

Oppenhiem

International law is body of customary and convential rules, which are considered binding on civilized states in their relations with each other

3. Basis of international law:

There are two principal theories regarding basis of international law.

I. Natural law theory:

( Theory of fundamental rights)

this theory believe that the basis of all laws is natural law. this theory believe that the basis of all laws is natural law..

II. Consent theory:

According to consent theory international law consists of the rules which the states have consented to observe. the consent may be express or implied the exponent of consent theory is by kershoek.

4. Definition of public international law:

Oppenhiem

"Public international is body of customary and conventional rules, which are considered binding on civilized states in there relation with each other."

5. Definition of private international law:

M. P Tandon:

"Private international law is a body of principles determining questions as to jurisdictions and questions as to selection of appropriate law, in civil cases which present them selves for decision before a court of one state or country, but which involves a foreign element…”

6. Distinction between public international law and private international law:

I. As to consent: Public international law based on the consent of the state. Private international law is not based on the consent of the states.

II. As to object: Public international law regulates relation ship of states inter se and determine rights and duties of the subject states at international sphere.

Private international law determines as to which law will apply of two conflicting in a particular case having foreign element.

III. As to conflict of laws: Public international law does not involve in conflicts of laws.

Private international law involves in the conflicts of laws.

IV. As to nature: Public international is same for all the states. Private international may be different in various states.

V. As to sources: Public international law has its sources in treaties, custom etc. etc.

Private international law has its sources in the legislation of the individual state to which the litigant belongs.

VI. As to application: Public international law applicable to criminal as well as civil cases.

Private international law is applicable to civil cases only, which present themeselves for accession of courts of the state.

VII. As to subject: Public international law deals with the states Private international law deals with the individuals.

VIII. As to municipal law:

Public international law is not part of municipal law.

IX. As to jurisdiction: Public international law does not involves determination on the question of determination.

Private international law determines court which will have jurisdiction to decided issue in question.

X. As to scope: Public international law has wider scope. it is of universe character.

Private international law has lessor scope.

7. Conclusion:

public international law and private international law are branches of international law. public international law is known as conflict of laws. these are different from each an other but in some exceptional cases rules of private international law may become rules of public international law.

Prisoners Of War

Q. Discuss provisions of Geneva convention on prisoner of war. (1998)(2003)

1. Introduction:

The rules of treatment of the prisoner of war are governed by the Geneva convention 1949. this convention is regarded most important convention on the protection of the prisoners of war.

2. Prisoner of war:

Prisoner of war is a status which is given to a person captured by a belligerent during a war or in an armed conflict all the persons captured by the belligerents do not acquire this status.

3. Persons treated as prisoner of war:

Article 4 of the Geneva convention enumerate that certain categories of persons who have fallen into the hands of enemy shall be called as prisoner of war which are following.

(i) Member of armed forces of a party to the conflict.

(ii) Members of militias and member of volunteer corps, which also fulfil the following conditions.

(a) That of being commanded by a person responsible for his subordinates.

(b) That they have a distinctive sign which can be recognized from distance.

(c) That they have a distinctive sign which can be recognized from distance.

(d) That they carry arms.

(e) That they obscure the laws and custom of war.

(iii) Members of the armed forces who profess allegiance to a govt. or an authority not recognized by the detaining power.

(iv) Persons who accompany the armed forces without actually being member of armed forces.

(v) Inhabitants of a non- occupied territory who take up arm to resist the invading forces without having had time themselves into regular armed units.

4. Sir Robert Phillimore's views:

According to Sir Robert Phillimore following classes of person have no claim to the treatment of the prisoners of war.

(a) Bands of marauders, acting without the authority of the sovereign or the order of the military commander.

(b) Deserters, captured among the enemy troops.

(c) Spies, even if they belong to regular army.

5. Fundamental principles relating to prisoners of war:

The Geneva convention 1949 contain the following important provisions relating to treatment of prisoners of war.

(i) Human treatment of prisoners:

Prisoners of war at all time be humanly treated. international law protects the prisoners from the punishment for hostile acts committed prior to capture.

(ii) Prohibition as to any act harmful for health:

Any unlawful act or omission by the detaining power causing death or seriously endangering the health of the prisoners of war is prohibited.

(iii) No physical multilation:

No prisoner of war may be subjected to physical multilation or to medical or scientific experiments of any kinds which are not justified by the medical, dental or hospital treatment of the prisoners.

(iv) Protection against act of violation:

Prisoners of war at, all times be protected, particularly against acts of violation.

(v) Right to respect of their persons and their honour:

Prisoner of war are entitled in all circumstances to respect of their persons and their honour.

(vi) Maintenance of prisoners:

The detaining power shall be bound to provide free of charge for maintenance for medical attention required by their state of health.

(vii) Equality of treatment:

The detaining power should teat prisoners equally without any distinction based on nationality religious belief or politically.

(viii) No physical and mental torture:

No physical or mental torture no any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever.

(ix) Right to possession of articles of personal use:

All effects and articles of personal use except arms, horse, military equipment and military documents shall remain in their possession likewise their metal helmet's and gas masks, like article issued for their personal protection.

(x) Quarter facilities:

Prisoners shall be provided quarter facilities similar as to those of the detaining power. the premises should be protected from dampness.

(xi) Identity documents:

At no time prisoners of war be without identity documents. the detaining power shall supply such documents to the prisoners of war who possess none.

6. Present position regarding Geneva Convention of P. O. W:

Presently powerful states have ignored the Geneva Convention regarding P. O. W. or example U. S. A violated these refuges in Afgan and Iran war. P. O. W. were treated and are being treated in humanly and tortured in Gunatanamo.

7. Conclusion:

International law protects all prisoners of war from punishment for their hostile acts committed prior to capture. the detaining power is not free to enforce its own municipal law except permitted by international law.

Q. Discuss the composition and functions of the security council. (2004) 

1. Introduction:

Security council is the principal organ of the united nations. it is a continuously functioning body. it acts on behalf of the united nation. the primary responsibility of security council is to maintain peace at the international level.

2. Historical background:

The Dumbarton Oaks proposals had envisaged the need for an executive organ of limited membership, which would be entrusted with primary responsibility of maintenance of international peace and security the failure of league council surfaced the need of a small executive organ, functioning continuously and be able to take decisions promptly in order to bring into motion the enforcement mechanism provided in chapter VI of the charter of united nations. finally in San Francisco it was decided to establish such a body in form of security council.

3. Composition of security council:

Total members:

Total members of the security council are 15.

(a) Permanent members:

There are 5 permanent members which are following.

(i) China. (ii) Russia. (iii) France.

(iv) United States of America.

(v) United Kingdom.

(b) Non- Permanent members:

There are 10 non- permanent members of the council. They are elected by the general assembly of the united nation for two years.

Geographical allocation of seats:

According to 1991 resolution 28-A the geographical allocation of seats of non- permanent member are as under.

AFRO Asia = 5   Eastern Europe =1

Western Europe =2   Latin America     2

Total =10

 4. Voting procedure:

A negative vote caste by member is called vote. Each member of the Security Council shall have one vote. the decisions of the security council on procedural matter shall be made by an affirmative vote of nine members and decisions on all other matters shall be made by an affirmative vote of nine members including the concerning votes of the permanent members provided that in decisions under chapter VI and article 52 under paragraph 3, a party to dispute shall abstain from voting.

5. Veto power of Security Council:

Article 2793) lays down that the permanent members of the council shall have power to prevent by their sole votes, the making of decision by the council.

6. President of Security Council:

Security Council elects a president for presiding its meeting. security council is free to decide on the methods of selecting its president.

(i) Election of president:

He is elected by rotation on a monthly basis in the English Alphabetical order of the names of members of security council.

7. Functions and powers of security council:

Functions and powers of security council are as under.

I. Maintenance of international peace and security:

The purpose of creating UN as well as its security council was maintenance of world peace and security.

(i) Ways to maintain world peace:

There are two ways to maintain world peace.

(a) Pacific settlement of disputes.

(b) Enforcement by action.

(a) Pacific settlement of disputes:

The parties to any dispute, the continuance of which is likely to endanger the maintenance of the international peace and security, shall first of all, seek solution by negotiation, enquiry, mediation,  conciliation, arbitration ,etc. The security council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

(b) Enforcement of action:

Security Council may call for military assistance from other members states for maintenance of world peace.

(ii) Role of Security Council in world peace:

Security Council has played significant role in maintaining world peace and security in following, especially.

(i) Indonesia. (ii) Palestine. (iii) Congo.

(iv)Cyprus. (v) Arab- Israel conflict 1973.

(vi)Afghanistan. (vii) Indo- Pak conflict.

II. Elective functions:

The Security Council and the general assembly separately elect the judges of international court of justice and also recommends the appointment of the secretary general of the United Nations. The Security Council elects its own president for presiding the meetings.

III. Supervisory functions:

it exercises supervision upon the united nation as whole according to article 5 "A member of the united nations against which preventive or enforcement action has been taken by the security council may be suspended from the exercise of the rights and privileges of membership by the general assembly upon the recommendation of the security council. the exercise of these rights and privileges may be restored by the security council.

IV. Constituent functions:

The Security Council amends the charter of united nation. according to article 108. 'amendment to the present charter shall come into force for all members of general assembly and ratified in accordance with their respective constitutional processes by two third of the members of the united nations, including the permanent members of the security council.

8. Binding character of the resolutions of the Security Council:

The member of the United Nations agree to accept and carryout the decisions of the security council in accordance with the present charter.

9. Conclusion:

the security council is one of the principal organs of the united nations. the maintenance of peace is the primary responsibility of security council. it has almost the character of a governmental body and ten non- per- manent members elected by the general assembly for two years. the resolution of security council are binding on all member states.

State Responsibility

Q. Discuss the law of state responsibility. (2006/S)

1. Introduction:

A state has certain obligations under international law towards other nation of the world. The state responsibility concerning international duties is a legal responsibility, for wrongful act or omission or breach of international obligation.

2. Meaning of state responsibility:

Rules of international responsibility concern circumstances in which and the principle whereby the injured state becomes entitled to redress for the damage suffered.

3. Definition of state responsibility:

State responsibility is responsibility of states for internationally wrongful acts. state responsibility is governed by international standards and it depends upon international law where and to what extent the act or omission of particular state is deemed legitimate or wrongful.

4. Occurrence of state responsibility:

State responsibility may occur in the circumstances as under.

i. In the time of peace.

ii. At the time of war.

5. Basis of state responsibility:

State responsibility depends upon the rights a state to exercise jurisdiction within its own territory un- trammeled by any outside interference and its right to protect its citizen abroad.

6. What constitutes a breach of obligation?

When the act of the state is not conformity with the international obligation, it amounts to breach of the same and gives rise to international responsibility.

Effect of breach:

The effect of breach is prospective and does not operate retrospectively.

7. Essential elements of state responsibility:

Following are essential elements of state responsibility.

i) The existence of an international legal obligation in force as between two particular states.

ii) There has been occurred an act or omission which violates that obligation and which is imputable to the state responsible.

iii) The loss or damage has resulted from the unlawful act or omission.

8. Types of state responsibility:

State responsibility is. two types.

I. Original state responsibility:

Original responsibility emanates from its own action or actions of the lower agents or private individuals performance at the binding of governments or which its authorization.

II. Vicarious responsibility:

It is the responsibility for the state for the acts of their agents, of their subjects, and even of such a liens as are for the time being living in their territory.

9. Kinds of state responsibility:

Important kinds are as under.

I. State responsibility of acts of individuals:

If the citizens of a state cause some damage or harm to an alien in that state, that alien gets the right to file the suit for compensation according to law of that state.

II. State responsibility for acts of insurgents:

State is generally responsible to prevent the violent acts of the revolutionaries.

Exception:

According to Calvo doctrine the state is not responsible for the losses suffered by the alien person during civil war.

III. State responsibility in connection with expropriation of foreign property:

Generally state is responsible for the expropriation of foreign property on the basis of practice, principles and decided cases, expropriation of foreign property can be valid only where there is no irregularity or discrimination with foreigners expropriation includes discrimination with foreigners expropriation includes nationalization and confiscation of foreigner's property.

IV. State responsibility for acts of its government organ:

The state is directly responsible if the acts of government injury to the alien.

V. State responsibility for breach of treaty obligation:

State would not be responsible for damage to individual but would be responsible for damage from breach of treaty obligation.

VI. State responsibility for contract with foreigners:

The general rule is that if there is a breach contract entered into by a state with alien then it does not give rise to any international responsibility. the aline have remedy to avail the local means available to him the laws of that state.

10. Nature of doctrine of state responsibility:

According to oppenneim:

"It is often maintained that a state, as a sovereign person, can have no legal responsibility whatever. this is only correct with responsibility whatever. this is only correct with reference to certain acts of the state towards its subjects. since a state can abolish part of its municipal law and make new municipal law. it always avoid legal, although not moral, responsibility by a change of municipal law. the position is different with regard to the external responsibility of the state as an international person. state responsibility concerning international duties is therefore a legal responsibility."

11. Evolution of law of state responsibility:

The law of state responsibility is still in evolution. some rules of liability also exist in international law.

12. Consequences of state responsibility:

Consequences of state responsibility are as under.

i. Restitution. ii. Indemnity. iii. Satisfaction.

13. Conclusion:

state is an international person. it has obligations under international law. state responsibility is a fundamental principle of international law. whenever a state commits an internationally unlawful act against another state, international responsibility is established between two.

Neutral And Neutralised States

Q. Draw a distinction between neutral and neutralized state. (1998)

1. Introduction:

Neutarliy is the attitude of a state which is not at war with the belligerent and dose not participate in the hostilities, it implies the position of a  state which remain aloof form war between two or more belligerent and keeps an attitude of impartiality.

2. Definitions:

According to Lawrence:

"Neutrality is condition of those states which in the time of war take on part in the contest but continue pacific intercourse with the belligents.

3. Essentials elements of neutrality:

Essentials elements of neutrality are as under:

(a) Attribute of impartiality.

(b) Recognition of impartiality by belligerent state.

(c) Creation of rights and duties.

4. Commencement of neutrality:

Neutrality commence after the state of war. such state should declare their condition of neutrality.

5. End of Neutrality:

Neutrality comes to end in one of the following ways:

(i) At the end of way.

(ii) When the neutral state war with one of the belligerent state.

(iii) When any belligerent states war with the neutral state.

6. Kinds of neutrality:

Following are kinds of neutrality:

(i) Perpetual or permanent neutrality.

(ii) General and partial neutrality.

(iii) Voluntary neutrality.

(iv) Neutrality based on some treaty.

(v) Armed neutrality.

(vi) Perfect and qualified neutrality.

7. Rational basis of neutrality:

Rational basis of neutrality are given below:

(i) Neutrality helps to localize the area of war.

(ii) It discourages the sentiments for war.

(iii) It keeps the states away form war.

(iv) It regularies the international relations.

8. Neutral and neutralised sates:

(i) Neutral state:

Neutral state do not support either party during war. it is generally deemed a temporary statue and can be terminated by joining either of part at war.

(ii) Neutralised state"

Neutralised state is such state whose independence collectively accepted by big powers thought some agreement.

9. Distinguish between neutral and neutralised states:

(i) As to nature:

Neutral state is temporary in nature.

Neutralised state is permanent in nature.

(ii) As to commencement:

Neutral state commence and ends with war.

Neutralised state continues after the end of war.

(iii) As to status:

Neutral state has a status during war time.

Nutralised state has a statue after war.

(iv) As to guarantee:

Neutral state is not guaranteed by other states.

Neutralised state is guaranteed by other state.

10. Duties of neutral state:

Following are the during of neutral state.

I. Abstention: It is the duty of neutral state to abstain itself form rendering direct or indirect help to any of the belligerent. state.

II. Prevention: It is the duty of neutral state to prevent certain things within its territory.

III. Acquiescence: It is duty of neutral state to give acquiescence in respect of certain matters.

IV. Restoration: It is the duty of neutral state not to allow any act which is concerned with war within its territory.

V. Reparation: A neutral state should assert its right to claim reparation for any loss sustain by any act of the belligerent state.

Conclusion:

Neutrality is a status which is acquired by those states which do not participate in a war. Neutral and neutralized are kinds of states. the neutrality and neutralization are two different things.

Treaties

Q. In line with vienna convention on the law of treaties 1969, answer satisfactorily the following.

(a) What is treaty.

(b) Briefly distinct between bilateral and multilateral treaty.

1. Introduction:

International treaties are first and foremost source of international law. a treaty is an agreement between two or more states whereby they undertake to carryout obligations imposed on each of them. International treaties occupy the same significant position in international law as the legislation occupies in municipal law.

2. Meaning of treaties:

The term treaty means a written agreement by which two or more states or intend to create intend to create a relation between themselves operating with in the sphere of international law.

3. Definition:

Oppenheim:

International treaties are agreement of contractual character between states or organization of states creating legal rights and duties.

Scharzen Berger:

"Treaties are agreement between subject of international law creating a binding obligation in international law."

Vienna convention article-2, 1969:

"Treaty is an agreement concluded between states in written form and governed by international law.

4. Object of treaties:

The main object of treaties is to impose binding obligation on the states who are parties to it.

5. Functions of treaties in international law:

The functions of treaties in international law are as under:

(a) A source of law.

(b) A source of international constitutional law.

(c) An instrument for imposing binding obligation.

6. Basis of the binding force of treaties:

There is great controversy amongst the jurists in this regarded with the binding force of international law.

7. Parties competent to make treaty:

Stark:s views:

According to stark only sovereign states are competent to make treaty.

8. Parts of treaties:

There are no fixed arrangement of the parts of treaties under international law however the following order is observed:

(a) After the title of the treaty its preamble is given which also consists of the name of the parties and the purpose for concluding the treaty.

(b) Secondary it contains the principal provision in numbered articles which are known as substantive clauses.

(c) The third part is called final clause. it deals with the miscellaneous provisions concerning duration of treaty ratification accession or adhesion by third states and the like.

(d) The last part contains signatures of the repetitive.

9. Different names of treaties:

Following are some alternative name used for the term treaty.

(i) Protocoal   (ii) Pact   (iii) Agreement

(iv) Memoire  (v) code   (vi) Contract

(vii) Additional articles   (viii) Charter

(ix) Convention           (x) Compact

(xi) Exchange of notes   (xii) Process verbal

(xiii) Statue   (xiv) Declaration

(xv) General act

10. Principle of treaties:

Treaties is based upon the following principle laid down in article 26 of viennan convention pacta sunt servanda: which means treaties are binding upon the parties to them and must be performed in good faith.

11. Formation of treaties:

Following are steps toward formation of treaties.

(i) Accrediting of persons on behalf contracting parties.

(ii) Negotiation    (iii) Signatures

(iv) Ratification    (v) Accession of adhesion

(vi) Entry into force   (vii) Registration

(viii) Publication

(ix) Application and enforcement

(x) Reservation

12. Classification of treaties:

According to oppenhein

(a) Law making treaties.

(b) Treaties for their purposes.

According to nair and vattel:

(a) Treaties having the charter of conveyances.

(b) Treaty contracts.

(c) Law making treaties.

Some other types:

(a) Treaties between head of the states.

(b) Treaties between the governments.

(c) Treaties between the states.

(d) Treaties between ministers.

(e) Treaties between particular government departments.

13. Kinds of treaties:

Following are kinds of treaties.

I. Bilateral treaties:

These are such treaties in which participation and rights and obligations arising from the treaty are limited only to two parties.

II. Pluriteral treaties:

In such treaties participation is open to a restricted number of states. the minimum number should be three.

III. Multilateral treaties:

Multilateral treaties are those treaties where participation open to all the states.

14. Distinction between bilateral and multilateral treaties:

I. As to number of parties:

In bilateral treaties there are two parties.

In multilateral there is no limit of number of parties.

II. As to nature:

Bilateral treaties are referred to as treaty contract.

Multilateral treaties are called law making treaties.

III. As to scope:

Bilateral treaties have less scope.

Multilateral treaties have wider scope.

15. Termination of treaties:

Following are the modes of termination of international treaties.

(i) Operation of law.

(ii) Expiration of fixed term of treaty.

(iii) Material of fixed term of treaty.

(iii) Material breach of one party.

(iv) Successive denunciation.

(v) Impossibility of performance.

(vi) Rebus sic stantibus.

(vii) Just cogens or emergence of preemptory norm of international law.

Amendment and modification of treaties:

General rule is contained in article 9 of the vienna convention on the law of treaties, which provides that a treaty may be amended by the agreement between the parties.

16. Interpretation treaties:

Following are general rules of interpretation of treaties.

(a) Objective or grammatical interpretations.

(b) Subjective interpretation.

(c) Teleological interpretation.

(d) Context of treaty.

(e) Reasonableness and consistency.

(f) Effectivenes.

(g) Intention of parties of treaties.

17. Conclusion:

To conclude it can be said that treaties are agreement between subjects of international law creating a binding obligation in international law. the states are bound to fulfil in good faith. a treaty perform three main functions in international law. treaties may be interpreted in different ways.

International Court Of Justice

Q. International court of justice does not have jurisdiction without the consent of the states. discuss fully. (2000)

Q. What is role and function of international court of justice. (2005)

1. Introduction:

International court of justice is the principal judicial organ of the united nations. the permanent court of international justices established by the League of nation 1920. after the establishment of united nation this court was named international court of international justice. only states may be parties before international court of justice.

2. Structure and composition of international court of justice:

Number of judges:

International court of judges consist of 15 judges.

Period of appointment:

The judges are appointed for the period of 9 years.

Official language of the court:

English and French.

Permanent headquarter of the court:

Hague is the permanent headquarater of the court.

Appointing authority of the judges:

Judges are appointed by the general assembly as well as security council.

Qurum of the Court:

Qurum for full bench of the court is nine judges.

Restriction:

No two judges can be national of the same state.

Re- election of judges:

Judges of the court can be re- elected.

Qualification for judges:

(i) Highly moral character.

(ii) Capable for appointment to the highest judicial official officers or.

(iii) Jurists consuls of recognized competence in the international law.

Retirement:

One third of total judges are retired after every three years.

3. States which are eligible to apply the court:

(i) Member states of the United Nations.

(ii) Non- members of united nations.

4. Procedure for filing case in the court:

The states which are parties to the statue and other states who accepts the jurisdiction of the court submit a declaration to the registrar of the court that they will comply the decision of the court.

5. Jurisdiction of the court of international justice:

Following are types of the jurisdiction of international court of justice.

I. Voluntary jurisdiction:

Voluntary jurisdiction is such jurisdiction in which parties refer to the court by agreement. for decision of an international dispute. the dispute may be referred by one party or both the parties.

II. Obligatory jurisdiction:

Article 32(2) confers that the states who are parties to the present statute, may at any time declare that they recognize as compulsory IPSO facto and without special agreement, in relation to any other state accepting the same obligation.

Modes of declaration:

(i) Conditional.

(ii) Unconditional.

Matters regarding which dispute can  be referred:

The parties to the statute may confer compulsory jurisdiction on the following matters:

(i) The international of a treaty.

(ii) Any question of international law.

(iii) The existence of any fact which if established would constitute a breach of an international obligation.

(iv) The nature  or extent of the reparation to be made for the breach of ab international obligation.

III.Advisory jurisdiction:

International court of justice may give an advisory opinion on any legal question any body which has been authorized in accordance with the charter of the united nations. the other organs of unity national and specialized agencies may also request to the court to give an advisory opinion on any legal question. the power to give advisory opinion conferred upon to the court is discretionary.

Eastern carelia case PCLJ series B:

The permanent court of the international justice declined to give an opinion on the ground that answering the question would be substanitally equivalent to deciding the dispute between the parties.

(i) Nature of advisory jurisdiction:

The advisory opinion given by the international court of justice is not binding upon the parties.

6. Law applied by the court:

According to article 38 of statute lays down that the international court of justice whose function is to decide in accordance with international law such disputes as are submitted to it shall apply.

(i) International conventions, whether general or particular, establishing rules expressly recognized by the civilized nations.

(ii) International custom as evidence of a general practice accepted as law.

(iii) General principles of law recognized by the civilized nations.

(iv) Subject to the provisions of article 59 of the statue, judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidery means for determination of rules of law.

7. Main object of the establishment of international court of justice:

The main object of the establishment of international court of justice is to settler international disputes which might lead to breach of peace.

8. Inherent powers of ICJ:

The international court of justice has inherent powers. the jurisdiction of ICJ is based upon the consent of the parties. all members of U. N are IPSO facto parties to the stateute of the court.

9. Role of international court of justice in the development of international law:

In the rapid development of international law of this era, the vital role of the international court of justice can not be denied. it has made pronouncements on territorial disputes and also on such diverse matters as on Asylum, nationality, trustship, law of sea, the status of foreign investment and sovereignty.

10. Conclusion:

International court of justice has important role  in the maintenance of international peace and also in the development of international law. this court is an important organ of the united nations, unfortunately the statute of the court makes no position for enforcement of its judicial decision.

Extradition

Q. Only one of the following statement is correct. please first identify, the correct answer, then explain, elaborate discuss the correct one 1/3 marks are allocated for identifying the correct one.

(iv) 'Extradition' means to provide political Asylum to nation of some specific state who demand it. (2002)

1. Introduction:

Extradition is handing over of accused or convict from one country to the jurisdiction of demanding country or state. It is the duty of each state either to punish the criminal or to return them to the states where they have committed crime. Under international law the extradition is a matter of bilateral treaty.

2. Meaning of extradition:

It is derived from Latin words ex and trdium which means delivery of criminals.

Osborn, s concise law dictionary:

Extradition s the delivery of a person who has committed a crime in one country and within the authority of another country in which he has taken refuge to.

3. Definition:

Oppenheim:

:Extradition is the delivery of an accused or a convicted individual to the state on whose territory he is alleged to have committed or to have been convicted of a crime by the state on whose territory the alleged criminal happens to be for the time being.

4. Basis:

The extradition is based on the maxim aut punire aut dedere which means that offender must be punished by the refuge state or surrendered be the state which alleges him of that charge.

5. Extraditable persons:

Following are extraditable person.

(i) Own nationals of state.

(ii) Nationals of a third state.

6. Objects of extradition:

No  criminal should be unpunished because of lack of jurisdiction so the sole object is to punish offender.

7. Conditions applicable to extradition:

Conditions applicable to extradition are as under:

(a) There should be extraditable person.

(b) There should be extraditable crime.

 (c) There must be treaty between extraditing .state and demanding state.

(d) Offence must be same in both states.

(e) There must be sufficient evidence against accused.

8. Extraditable crimes:

There is no legal proibition n extradition a person for any crime but generally extradition is made in respect of more serious crimes.

9. Limitations:

Following are limitations of extradition.

 I Religious offence:

The rules of extradition are not applicable to religious matters.

Sulman rushdi case:

British government refused to hand over accused because it was religious matter.

(ii) Political offence:

The rules of extradition are not applicable to political offences so on political calls for extradition.

Re. kolezyuski and others (1955) all. E.A 31

The term offence must offernce must always be considered according to the circumstances existing at the time even they have to be considered.

(iii) Trifling cases:

Trifling case are not covered by the  rule of extradition of political character was not intended to be exhaustive.

10. Position in Pakistan:

In Pakistan extradition act 1930 regulates extradition form Pakistan. it provides procedure for the surrender of fugitive criminals.

11. Conclusion:

To conclude it can be said that extradition is a process towards the suppression of crime. it is based on reciprocity. international law dose not recognizeany general duty of states in respect of states. it depends upon the provision of the extradition treaties. so it is matter of bilateral treaty.

Piracy

Q. Pirates are enemies of mankind. discuss law for priates in detail. (1999) (2005)

1. Introduction:

The act of piracy is deemed as the enemy of mankind and pirates are enemy of the whole mankind. privacy is a sea term for robbery. An act of piracy may be committed only by private vessels or aircrafts. under international law piracy consists in sailing the seas for private ends without authorisation from the government of any state.

2. Definition:

General:

"It is every unathorised act of violence committed by a private vessel on open sea against another vessel for the sake of plundering."

Article 15 of the Geneva Convention:

Article 15 of the Geneva Convention defines the word piracy in the following words.

(a) Any illegal acts of violence or detention or any act of deprivation committed for private ends by the crew or the passengers of a private ship or a private aricreafts and directed.

(i) On the high seas, against another ship or aricraft or against persons or property on board such sship or aircraft.

(ii) Against a ship, aircratf, persons or property in a place outside by jurisdiction of a state.

(b) Any act of voluntary participation in the operation of a ship or of an aircraft which knowledge of facts making it a private ship or aircraft.

(c) Any act of inciting or of intentionally facilitating an act described in sub-paragraph (a) or (b).

3. Essential ingerdient of piracy:

Following are essential ingredient of an act of piracy.

(i) It is done by persons sailing the high seas.

(ii) Without the authorisation of Govt.

(iii) A frustrated attempt to commit robbery is piracy.

(iv) It is committed by a private vessel against another private vessel or by the mutionous crew against their own vessel.

4. Jure gentium case 1934:

It was held that an unsuccessful, attempt to commit robbery on high seas amounts to piracy.

 5. Object of piracy:

The object of piracy is any public or private vessel or the persons or the goods there on, whilst on the open sea is to make booty.

6. Jurisdiction according to the universal principle:

Piracy is an offence which comes under the jurisdiction of all states wherever it is committed. All states are entitled to apprehend and punish the offenders.All states can arrest pirates on the high seas and to punish them irrespective of the place of the commission of crime.

7. Nature of offence:

Piracy is an offence against the entire world or humanity (hostis human generis) and all states have jurisdiction to try and punish Piratical act according to their municipal laws.

8. Municipal law and piracy:

The concept of crime regarding piracy in municipal law in various states are different from the concept of international law on piracy. Some states in their national law declare crimes of those act which come under violence, detention or deprivation which are not crime under international law.

9. Conclusion:

Piracy is an international crime. The law on piracy has been codified in the Geneva Convention of high seas 1958. Every state has a right to arrest trial and punish the pirates. The vessel involved in the act of piracy may be seized. This offence is against the whole body of civilized states.

Is International Law A Proper Law

Q. Some writers doubt whether international law qualifies as law. what is your opinion. (1998)(1999)

Q. (a) Is international law a proper law.

(b) Discuss the strengths and weakness of international legal system. (2003)(2004)

Q. Is international law a proper law. (2006/A)

1. Introduction:

International law is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe in their relation with each other. there are two schools which have been striving for supremacy of each another one school advocates that international law is not a law in the true sense and other says that it is really a law.

2. Definition of law:

Austin:

A rule of conduct imposed and enforced by sovereign in the form a command which obliges the subject to a course of conduct.

Essential conditions for law:

Following are the essential conditions for law.

(i) A body of rules.

(ii) A community of people.

(iii) A consent to enforce it.

(iv) An enforcing agency.

3. Whether international law is a law in the true sense of term:

There are two schools on this question one maintaining that international law is no law, other school saying that international law is a complete law. The schools are as under.

(i) Positive school. (ii) Historical school.

I. Positive school:

Positive school is led by John Austin according to him international law is no law but rules of morality governing international relation between states. He says also that it is a code of rules of conduct of moral force.

(A) Arguments by positive school:

Positive school presents the following arguments.

(i) No law giving authority:

International law did not emanate from a law giving authority.

(ii) No sanction:

There is lack of sanction for enforcement of international law.

(iii) No executive authority:

There is no executive body which may enforce the decisions of the international court of justice which is so called court of this system.

(iv) Absence of legislative machinery:

There is absence of an effective legislative machinery in international law.

(v) No determinate political authority:

There is no determinate political authority which may compel the states to observe the rule of international law.

(vi) Vague and uncertain rules:

The rules of international law are vague and uncertain.

(vii) Limited scope:

It has limited scope. Many of the rules are in the form of treaties.

(viii) Limited jurisdiction:

It has limited jurisdiction. International court of justice has no compelling jurisdiction.

II. Historical school:

Historical school is led by Oppenheim and Sarke who say that international law is really law in true sense because observance and not enforcement is essential element of law.

(A) Arguments by historical school:

Historical school presents following argument:

(i) International conferences and conventions:

International law is treated a law in true spirit by international conferences and conventions.

(ii) Acceptance by states:

States do not deny the existence of international law.

(iii) Recognition by international court of justice:

International court of justice recognize international law. It has to decide the disputes submitted to it accordance with international law.

(iv) Recognition by united nation:

International law is recognized by the united nation. it is based on the legality of international law.

(v) Partial sanction force:

So for as sanction in law is concerned international law does not completely lack it.

(vi)Practice of states in treating international law as their own law:

In some countries international law is treated as a part of their own law. it is ascertained and administered by the courts of justice of the appropriate jurisdiction of the states.

(vii) Violation does mean presence of law:

Every law is violated even state or municipal law is also violated. The violation does not mean that there is no law. Although international law is frequently violated but it does not means that international law is not law.

(viii) Binding nature of decision of international court of justice:

The decisions of international court of justice are binding upon the parties to a dispute. The decisions of international court of justice can also be onforced.

4. Suggestion for improvement of international law:

(i) Grant of compulsory powers to international court of justice:

The international court should be given compulsory powers and jurisdiction over all international disputes between states.

(ii) Establishment of an effective international criminal court:

International crimes should be adjudicated by international criminal court so for this purpose there must be an effective criminal court at international level.

(iii) Proper codification of international law:

The codification is always an advantage of law international law should be property codified.

(iv) Establishment of international police:

International police system should be established in order to enforce a system to eradicate international crimes.

(v) Proper international investigation system should be promoted:

An international investigation system should be promoted.

(vi) Independent prosecution system:

Independent prosecution system should be developed in modern techniques relating to international crimes.

(vii) Expansion of powers of international law commission:

The powers and role of international law commission should be expanded.

(viii) Enhancement of legislative power of general assembly:'

The legislative powers of general assembly must be enhanced.

(ix) Encouragement of law making treaties:

The law making treaties should be encouraged for better scope of the international law.

(x) Application of doctrine of judicial precedents:

The doctrine of judicial precedents should be applied in international law for strong international system.

(xi) Development and encouragement of international brotherhood:

International brotherhood should be developed and encouraged.

5. Conclusion:

International law is body of rules and principles of action which are binding up civilized states in their relation with one other. Although there are some drawback in international system but it is a proper law. The scope of international law has widened. It deals with immense variety of matters.

Settlement Of Disputes

Q. The amicable/ peaceful methods of settlement are ideal.

(a) Briefly highlight such means.

(b) Give a detailed view of the other (coercive) means for settlement of international disputes.

(c) Which mode suit the present day post modern era of this planet. (2001)

Q. Discuss various diplomatic methods for peaceful settlement of peace. (2005)

1. Introduction:

International dispute is disagreement between two or more more states on a point of law or fact international law lays down the procedure for the settlement of international disputes because it has lays been the objective of international law to develop means and ways through which the disputes among the nations may be resolved.

2. Meaning of international dispute:

Mavommatis Palestine concession case PCLJ serives A o. 2 P. 11

"A disagreement on a point of law or fact, a conflict of legal views or interest between two persons."

3. Causes of international disputes:

Main causes of international disputes are as under.

i) Ideological difference. (ii) National integrity.

iii) Territorial claim. (iv) National prestige.

v) Unlimited colonialism.

vi) Liberation moveement.

4. Conditions:

According to Prof. Lawrence:

In order to acquire the states of international dispute the following requisites must be fulfilled.

(a) The dispute must be between states.

(b) The dispute must relate to reasonable, well defined subject matter.

(c) The dispute must lead to some action by the aggrieved state.

5. Origin of rules and procedure:

The rules and procedure are derived from.

(a) Matters of custom or common practices.

(b) Large number of law making treaties.

6. Kinds of settlement:

I. Peaceful or amicable means of settlement:

The charter of the united nations has recognized the peaceful settlement of disputes as on the principles of united nations. following are the modes of peaceful settlement.

(i) Arbitration:

Arbitration is a method to settle a dispute by a certain persons called arbitrators. the decision of arbitrator. Article 15 of the Hague convention lays down that "international arbitration has for its object the settlement of differences between states by judges of their own choice and on the basis of respect of law."

(ii) Judicial settlement:

Judicial settlement is peaceful mode to settle the international dispute. at present there is a court which is called international court of justice, which decide the international disputes. the decisions of the international court of justice are binding upon the parties concerned.

(iii) Negotiation:

It is inter course between states for the purpose of arriving at a settlement of the dispute. it may be carried out the head of the states or diplomatic agents. negotiation is the simplest form of settling the international dispute by the state.

(iv)Good offices and mediation:

When the parties refuse to negotiate usually a friendly third state assists in solution of international dispute. the third state plays its role without participating in the negotiation between the parties. in mediation third state not only offers its services but actively participates in talks to resolve disputes.

(v) Conciliation:

Conciliation is process of formal proposals of settlement after an investigation of a facts by a commission or committee.

(vi) Enquiry:

Enquiry is used with other methods. in enquiry facts are investigated. the main purpose of enquiry is to make investigation of the relevant matters so as to establish facts which may help the ultimate solution of the problem.

(vii) United nation:

Settlement of disputes by peaceful means is one of the principles of the united nation as provided under article 2 para 3 of the charter. the general asserably and security council has been given wide powers in respect of pacific settlement of international disputes.

7. Compulsive or coercive means of settlement:

If international disputes are not resolved through peaceful manners it can be resolved through forcible methods.

(i) Restoration:

Restoration is a reaction by a state against discourteous or inequitable acts of another state such retaliation taking the form unfriendly legitimate act within the competence the state whose dignity has been affronted.

(ii) Reprisals:

A reprisals consists of act which would generally otherwise be quite illegal whereas restoration consists of retaliatory conduct to which would otherwise be a quite illegal whereas restoration consists of retaliatory conduct to which no legal objection can be taken.

(iii) Pacific blocked:

Blockade is coercive means for the settlement of disputes. It consists in temporary suspension of commerce of the offending state by the closing of access to its coasts. When blocked is applied during war it is called as pacific blockade..

(iv)Embargo:

Embargo is detention of ships in port. According to Hyde embargo is detention within the national domain of ship or other property otherwise likely to find their way to the foreign territory. This method may be applied by a state in respect of its own vessels or to the vessels of other states.

(v) International:

International is dictatorial interference by a state in the affair of another state for the purpose maintaining the actual condition of things.

8. Conclusion:

International dispute is a disagreement on the point of law or fact between two states. The international law provides different means to settle the dispute which may pacific and coercive `or compulsive. Today the pacific means are best modes to settle the international disputed.

Acquisition And Loss Or State Territory

Q. What are modes of acquisition and loss of territory under international law. (1997)

Q. Explain the various methods of acquisition of territory in international law. (2005)

Q. Explain the various methods of acquisition of territory in international law. (2006/S)

1. Introduction:

The state has four essentials namely prpulation territory, government and sovereignty. Territory is one of the four elements which a state in order to be an international person must possess. Lakes, rivers and the mariginal sea. the air space above the land is also part of the territory. the state jurisdiction is exercised by the state over persons and property within a particular territory.

2. Definition:

Oppenheim:

"State territory is that definite portion of the surface of the globe which is subjected to the sovereignty of the state."

3. Modes of acquiring territory:

Following are modes of acquiring territory.

(i) Occupation:

Occupation in international law means an act of appropriation by a state over a territory which does not belong to any other state.

(a) Essentials elements for effective occupation:

There are two essential elements that constitute an effective occupation of that state over another territory.

(i) Direct evidence of possession.

(ii) An exhibition of actual authority.

(ii) Prescription:

If a state exercises control over a territory continuously for a long time without any interruption and possess it defacto, the concerned territory becomes part of that state.

(i) Conditions:

A state may acquire some territory by prescription only when the following conditions are fulfilled.

(i) Where occupying state has not accepted the sovereignty of any other state over the said territory.

(ii) Possession should be peaceful.

(iii) There should be no interruption.

(iv) Possession should be for a definite period not less than 20 years.

(iii) Accretion:

When a new territory is added, mainly through natural causes to existing territory, that is already under sovereign of acquiring state.

(i) Forms of Accretion:

(i) Artificial.   (ii) Natural.

(iv) Cession:

Cession is the transfer of sovereign over a definite territory by one state to another state.

Forms of Cession:

(i) Voluntary. (ii) Under compulsion.

(v) Annexation:

It is the acquisition of the territory of an enemy through the military force in time of war.

(vi) Lease:

A state may give territory to another state under lease for a certain period.

(vii) Pledge:

Pledge in also a mode of acquiring state territory. under some circumstances a state is compelled to pledged of part of it territory in return of certain amount of money.

(viii) Adjudication:

Adjudication occurs where a conference of the victorious powers at the end of a war assigns territory to a particular state for the sake of settlement of peace.

4. Modes of losing territory:

(i) Cession:

The acquisition of territory by one state is loss to the other. The act of cession may be in the nature of gift, sale, exchange or lease.

(ii) Operation of nature:

A state may lose territory by operation of nature for e. g. by earthquake, a coast of the sea a Island may altogether disappear.

(iii) Subjugation:

As a state may acquire territory through annexation, the other state may lose it through subjugation.

(v) Revolt:

When a new state takes birth in consequences of revolution or revolt it would be lost of territory by revolt.

(vi) Renunciation:

Renunciation is a mode of losing territory by renunciation. It is the very opposite of the occupation which requires both possession and intention.

(vii) Independence to a Colony:

Granting of independence to a colony is also a mode of losing imperialist state grants independence to the areas under its control.

Kinds of cession:

(i) Valid:

Any act which indicates an intention to transfer sovereignty is sufficient.

(ii) Voluntary:

The act of cession may be voluntary or under compulsion as a result of war.

5. Conclusion:

Territory is an important element for state. The occupation, accretion, cession, prescription are modes of acquiring territory by the state. The concept of territorial sovereignty signifies the fact that within a particular territory jurisdiction is exercises by the state. The state territory may also be lost in different ways.

Sources Of International Law

Q. What are principal sources of international law, your answer should be with reference to article 38 of the statute of international court of justice. (1998)(2000)(2007/A)

Q. Explain in detail the main sources of international law. (2003-5) (2005)

1. Introduction:

International law comprises mainly of the rules recognized by states in their relation with each other and mostly arises out of international customs and treaties. At present article 38 of the statute of international court of justice is an authoritative text of the source and evidence of international law.

2. Definitions of international law:

Oppenheim

International law is body of customary and convention rules, which are considered binding on civilized states in their relations with each other."

3. Sources of international law:

Although there is no international legislature and court to which international community must compulsorily submit still under article 38 of statue of international court of justice, rules of international law can be pragmatically found in international conventions, international customs etc, etc.

4. Meaning of sources:

Starke:

"By sources of international law we mean the actual materials from which an international lawyer ascertains the rule applicable to a given situation."

5. Classification of sources:

Sources of international law may be classified into two categories.

(i) Formal sources. (ii) Material sources.

I. Formal sources of international law:

A formal source is that source which a rule of law derives its force and validity. There are no formal sources of international law and one of the main criticism on international law is that it does not have a legislature of its own, thus its laws cannot have any sanction.

II. Material sources of international law:

International court of justice enlists such material sources of international law. There are all kinds of sources in this statute including primary and secondary.

6. Article 38 of statute of international court of justice:

The court whose function is to decide in accordance with international law such disputes as are submitted to it shall apply.

(a) International conventions whether general or particular establishing rules expressly recognized by the contesting states.

(b) International custom as evidence of a general practice accepted as law.

(c) The general principles of law recognized by civilized nations.

(d) Judicial decisions and teaching of the most highly qualified publicists of the various nation as subsidiary means for the determination of rules of law.

Condition:

The provision shall not prejudice the power of the court to decide a case exaequo et bono, if the parties agree thereto.

7. Main sources of international law:

I. Primary sources:

(i) International customs:

International customs are one of the most important sources of international law. Article 38 of the statute of international court of justice recognizes international customs as a source of international law.

(a) Essentials of valid international custom:

The essentials of valid international custom are as under:

(i) Long duration.(ii) Uniformity and consistency:

(iii) Generality practice or observed.

(iv) Opinio juris et necessitates.

(ii) Treaties:

Treaties are most important source of the international law.

(i) Definition of treaty:

Article 2 of the Vienna convention on the law of treaties 1960 defines treaty:

"An agreement whereby two or more states establish or seek to establish a relationship between them governed by international law."

(ii) Kinds of treaties:

(a) Law making treaties

 Law provisions of law making treaties are directly a source of international law. Law making treaties perform the same functions in the international field as legislation dose in the state field.

(b) Treaty contracts:

Treaty contracts are entered into by two or more states. The provisions of such treaties are binding on the parties to the treaty. The treaty contracts are indirect source of the international law.

(iii) General principles of law:

General principles of law recognized by the civilized states is also an important source of the international law. General principles of law are those rules which have been recognized by almost all the states.

General principles recognized by the international court:

General principles recognized by the international court has recognized following principles in different decision.

(i) Good faith. (ii)Responsibility.

(iii) Prescription.

(iv) In the absence of any provision to the contrary every court has right to determine of it own jurisdiction.

(v) A party to a suit cannot himself be an arbitrator or a judge in his own case.

(vi) Res-judicate (vii) Estoppels

(viii) Audi alterm paterm.

(iv) Judicial decisions:

Juristic works forms the evidence of international law, yet it assumes importance when there are no established customs or treaties.

(v) Decisions of determinations of the organs of international institutions:

Decisions on questions of jurisdiction of an organ of international institution may have a law making effect. Sometimes organs of the international institutions are authorized to give binding determinations concerning the interpretation of their constituent instruments.

(vi) State papers:

State papers other than treaties are also source of international law. The archives of the foreign affairs department of every country contain a mass of valuable experts’ opinion which are useful for international law.

II. Secondary sources:

Following are the secondary sources of the international law.

(a) State judicial decisions.

(b) International community.

(c) Equity and natural justice.

(d) Jus congens. (f) State practices.

(g) Private contracts. (h) Roman law.

(i) Principles of Islamic law.

8. Subjects of international law:

Following are the subjects of international law.

(i) States.

(ii) Political entities legally proximate to state.

(iii) Condomonia. (iv) International Territories.

(v) International organizations.

(vi) International institutions.

(vii) International criminal law.

(viii) Treaties concerning international minorities and individuals.

(ix) Non- state entities. (x) Insurgents.

9. Conclusion:

The sources are the name of historic fall put of which rules of conduct comes into existence. Although there is no international legislature and court to which international community must compulsorily submit, still under article 38 of the statue of international court of justice provide sources for international law.

Intervention

Q. What is intervention and when it is permitted under international law. (1998)(1999)

1. Introduction:

Intervention is right of every state. when one state intervenes in the affairs of another state through force then as a reaction against this violation, international law, permits intervention. it is forcible and without the consent of the state where in the intervention is done. general assembly of the unite 1 nation has made non- intervention a duty of all the states. intervention may effect internal or external affairs of another state.

2. Meaning of intervention:

The term "intervention" is used by some writers in the expression "subversive intervention" to denote propaganda or other activity by one state into the affairs of another state.

3. Definition:

According to Oppenheim:

"Intervention is dictorial interference by a state in the affairs of another state for the purpose of maintaining or altering the actual conditions of things."

4. Form of intervention:

Intervention may be diplomatic or military.

5. Kinds of intervention:

Intervention has kinds following.

(a) Internal. (b) External. (c) Punitive.

6. Principle of non- intervention:

Principle of non- invention has been stated under article 2(4) of the United Nations.

Exception:

Individual and collective self defence as contained in article 51.

7. Elements of intervention:

Elements of the intervention are as under.

(a) Forcibility or use of force. (b) By a state.

(c) By a state. (d) Against a state.

8. Object of intervention:

Object of intervention is to make the conditions according to the wishes of intervention state.

9. Grounds for intervention under international law:

Following are grounds for intervention which are permitted under international law.

I. Self defence:

According to oppenhiem use of force in self defence is justified where it is necessary for self preservation.

(a) Conditions:

The right of self defence is available subject to the conditions as under.

(i) There should be an arm attack.

(ii) Report should be made to Security Council.

(iii) There shall be no effect on Security Council responsibility for keeping peace.

(iv)Right is subject to the review of Security Council.

(v) Right of self defence exits until Security Council has taken any action.

(vi) This right is not available against non- member of united nation.

II. Collective intervention:

Under the charter of united nation collective intervention can be made to check an aggression on the breach of international peace and security. in chapter (vii) security council has been empowered to take collective action if there exist a threat or breach of the international peace and security or an aggression has taken place.

(iii) Intervention on humanitarian ground:

Humanity is also justification for intervention by a state. when human rights are openly violated, other states can interfere to check violation of human rights. it is controversial question as to whether after the enforcement of charter of united nation, intervention is lawful or not. now this type of intervention is not permissible under international law.

(iv) Intervention to protect persons and property:

State can interfere on the ground to protect the persons and property.

(v) Intervention for balance of power:

It was permitted in the past but after the establishment of united nation no state can intervene in the internal and external affairs of other state.

(vi) Intervention to maintain international law:

It was permitted before the establishment of united nation. now intervention of international law is not permissible.

(vii) Intervention for enforcement of treaty rights:

A state is justified to interfered the external or internal affairs of other state for the enforcement of rights of treaty. united nation does not recognise this intervention.

10. Present position under U. N Charter:

Now under U. N charter intervention can not be justified on any ground. the charter has prohibited the use of force by a state in the affairs of another state by virtue of article 2 para 4 i. e. all members states shall refrain in their international relations from the threat or use of force, against the territorial integrity or political independence of any state or in any other manner in consistent with the purposes of the united nation.

11. Conclusion:

Intervention is a dictatorial interference by a state in the affairs of other state. When principle of noninterference is violated, it is referred to intervention. It may be diplomatic or military. Intervention is a rule forbidden by international law but there are exceptional cases where a state can intervene in the affairs of other state.

International Law And Municipal Law

Q. What is meant by the relationship between international law and municipal law. explain various theories in this regard. (1997)

Q. To what extent can municipal court apply international law? answer with reference to British and US practices (1998)

1. Introduction:

International law regulates relation among states municipal law governs the domestic aspects of the government and deals with the issues between individuals and between individuals and administrative apparatus. municipal law is also known as national law or state law. the international law and municipal law are different from each another.

2. Theories about relationship between international law and municipal law:

Following are theories about relationship between international law and municipal law.

(a) Monistic theory. (b) Dualistic theory.

(c) Specific adoption theory.

(d) Transformation theory. (f) Delegation theory.

(a) Monistic theory:

According ti this theory all laws as a single unit composed of binding legal rules. Keslson, wright and Duguit are chief exponents of this theory. According to them international law and municipal law are essentially one, in as much as the former regulates the conduct of states, which the latter of individuals.

Kelson's views:

"Science of law is a unified field of knowledge and the decisive point is therefore whether or not international law is true law.

Criticism:

Monistic theory has seen severely criticized. This theory has failed to explain the status of slaves and pirates and other individuals who are regarded as the subject of international law by the jurists of international law by the jurists of other school of thoughts.

(b) Dualistic theory:

This theory is also known as Plurastic theory. According to this theory international law and municipal law are two different laws. tripel and anzilotti are chief exponent of this theory.. The subjects of international law are states only while the subjects of municipal law are individuals. The source of municipal law is the will of the state itself whereas the source of international law is the will of states.

Criticism:

In practice we find that primary concern of the international law is the right and duties of the states. one can not say that pirates, slaves and highjacker are the only subject of international law.

(c) Specific adoption theory:

The chief exponents of this theory are Holland, Gray and Lawrence. according to them international law cannot be directly enforced in the field of municipal law. international law is applicable in a state only when municipal law permits its specific adoption.

(d) Transformation theory:

According to this theory, it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules. set out in international agreements international law cannot find place in the national or municipal law.

(f) Delegation theory:

According to delegation theory there is delegation of a right to every state to decide for itself where provisions of international law or convention are came into force. this theory has been presented by the critics of transformation theory.

3. Practice of states regarding application of international law in municipal sphere:

I. Position in britain:

There is distinction between the customary rules of international law and the law laid down by the treaties with regard to their operation in Great Britain the customary rules of international law treated an part of British laws.

(A) In regard customary rules of international law:

The British courts treat customary rules of international law as a part of their own law.

(B) In regard to treaties:

In regard to treaties British practice is based on conventional principles governing the relationship between executive and crown and parliament.

II. Position in U. S:

(A) In regard to customary rules:

The customary rules are treated as part of U. S laws.

(B) In regard to treaties:

It is different from British practice. treaties and state law are equal in force. in case of conflict latter in date prevails.

III. Position in france:

Rules of international law are considered part of state law and treaties are administered and applied by French courts.

IV. Position in Russia:

According to the principles of the civil legislation and civil procedure of the Soviet, Union, in case of conflict between international law and Soviet Federal Statue the former shall prevail but if there is a conflict between an international treaty and the provisions of the Soviet Constitution the latter shall prevail over the former.

V. Position in Pakistan:

In Pakistan courts are empowered to interpret the rules of international law in municipal sphere.

4. Distinction between international law and municipal law:

I. As to relation:

International law deals with relations of sovereign states with each other.

Municipal law deals with rights and duties of individual subjects.

II. As to application:

International law is applicable to all states.

Municipal law applies to one state.

III. As to enforcement:

International law has not power and machinery for enforcement.

Municipal law has power and machinery for enforcement.

IV. As to jurisdiction:

International law involves foreign element as to jurisdiction.

Municipal law does not involve foreign elements as to jurisdiction.

V. As to conflict of laws:

International law does not involve conflict of system of laws.

Municipal law may involves conflict of laws.

VI. As to source:

International law is not outcome of legislation of sovereign authority.

Municipal law is outcome of legislation by national parliament.

5. Conclusion:

International law and municipal law are important laws. Both international law and municipal law have almost law. However international law is distinguishable in many respect from municipal law.

Statelessness

Q. What is statelessness. how can it be remedied. (1999)

1. Introduction:

Statelessness is a position of a person who does not possess the nationality of any state. A person may be without nationality knowingly or unknowingly intentionally or through no fault of his own. Stateless persons are without the diplomatic protection of any state such person have no political and privileges in a state such persons have not enjoy those rights which are conferred to a person in international law.

2. Definition:

Article, 1, 1954 convention relating to the status of stateless person:

" A stateless person is one who is not considered is a national by any state under the operation of its law."

Starke

"Statelessness is a condition which not only means great hardship and lack of security for individual but involves the existence of a serious gap in the application of international law."

3. Causes of statelessness:

Following are the main causes of statelessness.

(i) An individual may lose his or her nationality and fail to acquire a new one as a result of an extended stay abroad.

(ii) Through marriage to a person of a different nationality.

(iii) The children who are born to a stateless parents or refugees who are born out of wedlock may be denied citizenship.

(iv) Individual may also find themselves stateless because of faulty administrative practice.

(v) The failure or refusal of a state to ensure the registration of births.

(vi) Conflicts in the laws of nationality.

(vii) A person may voluntarily renounce their nationality and fail to acquire a new citizenship before that renunciation takes effect.

(viii) Persons who seeks Asylum.

(ix) Denationalization by the government.

4. Remedies of statelessness:

The remedies of statelessness are as under.

I. Nationality:

The stateless person may be given nationality by liberal and independent state.

II. Elimination of denationalization:

Elimination of denationalization types of obligations and duties on state, the position of statelessness can be avoided.

III. Imposing the obligations:

By imposing different types of obligations and duties on state, the position of statelessness can be avoided.

IV. International treaties:

Statelessness can be remedies through international treaties.

V. Removal of restriction:

By removal of restrictions on travelling and admission of stateless person can be remedied the position of statelessness.

5. Conventions:

Following conventions of have been held in regards with statelessness.

(a) Convention on the reduction of the statelessness 1960.

(b) Convention on the reduction of statelessness 1975.

(c) Declaration of the human rights of individual who are not nationals of country in which they live 1985.

6. Conclusion:

Statelessness is condition of all those people who lack what has become known as an effective nationality and are consequently unable to enjoy the rights that are consequently citizenship. a person may be stateless either by birth of after birth. The position of a person of statelessness can be eliminated by different ways under the international law.

Recognition

Q. What is the difference between De facto and De Jure recognition?

Q. What do you understand by.

(a) Recognition of state/ government.

(b) Are existing states bound to grant recognition to new state.

(c) Is there a legal compulsion or a political convenience for granting recognition.

Q. Discuss in detail the theories of recognition of states. (2006/A)

1. Introduction:

Recognition is a process of accepting the legal status of a state. It is an act by which another state acknowledges that political entity recognized possesses attributes of statehood. Recognition is important for state to acquire international status. The recognition confers right and duties upon the states.

2. Meaning:

It means ab free act by which one or more states acknowledges the existence of a definite territory of human being, politically organized independent of any other states and capable of observing obligations of international law.

3. Definition:

According to Schwarngen Berger:

'The growth of international law is best understood as an expanding process from a nucleus of entities which have accepted each other's negative sovereignty and on the basis of consent are prepared to maintain and possibility expand the scope of their legal relation.

Fenwick:

"Recognition is international personality of a state."

4. Aspects of recognition:

The topic of recognition may be broadly divided into the following.

(i) Recognition of states.

(ii)Recognition of government.

(iii) Recognition of billigency.

(iv) Recognition of insurgency.

5. Law on "recognition of states" :

I. Essentials of statehood:

According to Kelson a community to be recognized as an international person must possess the following essentials.

(i) Population. (ii) Government.

(iii) Sovereignty. (iv) Territory.

II. Nature of recognition:

Acknowledgment of the possession of the attributes of statehood in a state depends upon the discretion of the existing state. The discretionary power is exercised in accordance with the policy of the state.

6. Theories of recognition:

There are two theories about recognition which are as under.

I. Constitutive theory:

According to constitutive theory recognition creates statehood or clothes on new state with any authority or status in international sphere. it implies that other state constitute the personality of the state recognizing it.

Criticism:

This theory is criticized for the reason that it cannot explained retrospective effects of recognition.

II. Declaratory theory:

According to declaratory theory state comes into existence as soon as it acquires the attributes of statehood. So recognition is merely a formal acknowledgement through which established facts about existence of a state are accepted.

Criticism:

Recognized creates new rights in newly recognized state.

7. Forms of recognition:

Following are two forms of recognition.

I. Express recognition: Where an existing state recognizes the new state by a notification or declaration, announcing the intention of recognition is called to be express.

II. Implied recognition: It is done by accrediting diplomatic representative or visit by head of state.

8. Kinds of recognition:

I. De facto recognition:

Where an existing state considers that the new state has not acquired sufficient stability, it may grant recognition to that state provisionally which is termed as Defacto recognition. The recognition state must possess essential elements of statehood and should be it to the subject of international law.

Schwargen Berger's views:

"When a state wants to delay the de-jure recognition of any state, it may, in the first stage grant  de- facto recognition."

(i) De- facto recognition when can be withdrawn:

Defacto recognition once granted can be withdrawn if recognizing state considers that new state has not possess the capability of administrating its territory.

II. De jure recognition:

De jure is actual recognition it is granted when in the view of recognizing state the recognized state possesses all the essential requirements of the statehood and it is capable of being a member of the international community.

9. Difference between de-facto and de jure recognition:

I. As to nature: De facto recognition is temporary. De-jure recognition is permanent.

II. As to revocation: De facto recognition can be revoked. De jure recognition cannot be revoked.

III. As to effect: De- facto has not retrospective effect. De- jure recognition has retrospective effect.

IV As to right: de facto recognition dose not confer title to refrain property in other state.

De jure recognition confers title to retain property in other state.

V. As to diplomatic relation:

In de facto recognition diplomats not appointed.

In de jure recognition diplomatic relation are established.

VI. As to scope:

De facto recognition is of less scope because recognition is not possible through united nation is made when it is admitted to the membership of under nation.

10. Consequences of non-recognition:

(i) Cannot sue. (ii) No diplomatic relation.

(iii) No right to get property situated in territory of the recognizing state.

11. Legal effects of recognition:

(i) Right to sue:

The recognized state becomes entitled to sue in the court of recognized state.

(ii) Establishment of diplomatic relation:

In case of de jure recognition diplomatic relation are established.

(iii) Application of the rules of international law:

The rule of international law apply to the recognizes state.

(iv) Right of succession:

The recognized states become entitled to get property situated in the foreign state.

(v) Sovereign immunity:

The recognized state become entitled to sovereign immunity for itself its property in the court of recognizing states.

12. Collective recognition:

International law dose not prohibit collective recognition similarly there is no prohibition on collective de-recognition. there are many instances of collection recognition.

13.Conclusion:

To conclude it can be said that recognition is a process through which a political community acquires international personality by becoming member of the nations. De facto and dejure are two important modes of acquiring recognition. defacto recognition is step toward dejure recognition.

State Succession

Q. Write a detailed note on succession of states. (2000)

Q. Define the term 'state' and what do you known about the term "state succession".

1. Introduction:

The central theme of the international law is the state. according to same jurists the state is the only subject of the international law.

D. J Lathem Brown in his book "Public international law" says that ordinarily international law deals with the rights and obligations of the states. moreover international law is defined as a system of law composed solely of rules governing the relation between the states. the state occupies the most place among all social institutions. state works for the common interest of the people.

2. Definition of state:

According to Phillimore:

"The state is a people, permanently occupying a fixed territory bound together by common laws, habits and customs into one body politic, excercing through the medium of organized government independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into all international relations with the communities of the globe."

According to Prof. Laski:

"State is a territorial society divided into government and subjects and claiming with in the allotted physical area, supremacy over all other institutions."

According to Lawrence:

"State is a political community, the members of which are bound together by the tie of the common subjection to some central authority, whose commands the bulk of them habitually obey."

According to Holland:

"State is assemblage of human beings organized for law, generally occupying a certain territory."

3. Features or characteristics of elements or requisite conditions of the state:

I. Population:

It is a human association. there must be certain number of people. an unihnabited tract of land cannot be called a state.

II. Government:

Government is the machinery or agency through which the will of the state is formulated and expressed. government rule according to the law of the law.

III. Sovereignty:

Sovereignty is the supreme, original and unlimited power exercised over all person within the boundaries of the state, independent of every outside power.

IV. Territory:

There must be territory in which the people have settled down. the state is territorial association. its membership is confined to the people living in its territory.

4. Kinds of state:

The main and important kinds of states are as under.

(a) Confederation. (b) Federation.

(c) Condomonium. (d) Vassal state.

(e) Protectorate state. (f) Trust states.

(g) Neutralised states.

(i) Micro states or Lilliputian states.

5. Concept of state succession:

The term state succession is used when there is transmission of rights and obligations of one state to another in consequence of change of territorial sovereignty.

(i) Time of occurrence:

State succession is occurred when a state ceases to exist or a new state is formed within territory of an existing state is formed within territory of an existing state or territory is transferred from one state to another state.

6. Definition of state succession:

Under article 2 Vienna convention:

"Succession of state is the replacement of one state by another in the responsibility of international relation of territory."

According to Brownlie:

"State succession arises when there is definite replacement of one state by another in respect of sovereignty over a giver territory, in confirming with international law."

7. Origin of state succession:

Rule of state succession was incorporated from the roman law by Grotious. in roman law when a person dies his rights and duties are succeed by his successor.

8. Kinds of state succession:

I. Universal succession:

If the legal identity of a community is completely destroyed it will be called universal succession. it takes place when one state is completely absorbed in another state either through subjugation or voluntary merger.

II. Partial succession:

If the territory is lost while personality and legal responsibility remain unimpaired, the process is described as partial succession. it takes place when a part of state revolts and after achieving freedom becomes a separate international person.

9. Theories of state succession:

I. Universal succession theory:

According to universal succession theory all the rights and duties of the predecessor pass I P S O jure to the successor as element of the estate. the successor state enjoys all rights and discharges all obligations of its predecessor.

II. Continuity theory:

According to continuity theory succession is substitution plus continuation. the successor steps into the place of the predecessor and continues his rights and obligations so for the succession of private the political obligations of predecessor state.

III. Negative theory:

According to negative theory the succeeding state is in no way bound to respect the rights and obligation of the state which has ceased to exist. so the successor state does not succeed to the persoanlity of the predecessor.

IV. Communist theory:

According to the communist theory the state is unencumbered by the economic and political commitment of the predecessors.

10. Rights and duties arising out of the succession:

Following rights and duties arise in case of the state succession.

(i) Political rights and duties:

In case of state succession no succession take place in respect of political rights and duties. so the succeeding state is not bound by the treaties of the former state.

(ii) Local rights and duties:

A genuine succession takes place in respect of local rights and duties. in respect of land, river, roads, etc the succeeding state succeeds the rights and duties of the former state.

(iii) Public debts:

It depends on the discretion of the succeeding state whether to pay the public debts of the former state.

(iv) Contracts:

Law relating to the contracts on succession of a state is not well established state practice suggests that succession of contracts depends upon the discretion of the succeeding state.

(v) Concessionary contracts:

Concessionary contracts mean the contracts through which certain concession are granted through contracts. the succeeding states may or may not be bound by such contracts.

(vi) Damages for the torts:

No succession takes place in respect of unliquidated damage for tort.

(vii) Nationality:

The nationals of the former state lose their nationality and become nationals of the new state. generally certain period is granted to the people to decide about their  nationality.

(viii) Laws:

As far as laws of the former state are concerned, they continued to operate until amended or changed.

(ix) Succession to property in foreign states:

As regard the succession of property in foreign state jurists are of the view that succeeding state becomes the successor of such property.

(x) Loss of international personality:

If a state emerges into or is subjugated by another state, it losses its international personality.

(xi) Public property, funds and succession to funds:

When one state succeeds defacto to another it succeeds to all public and proprietary rights of the extinct state.

(xii) Private rights property under Muslim law:

The private of individuals and their relation to each other, unless specially altered remains the same and the private property is not generally confiscated in breach of inter law.

11. Parts of state:

Following are the parts of state.

(i) Boundaries:

(a) National boundaries. (b) Artificial boundaries.

(ii) Rivers:

(a) Nation rivers. (b) International law.

(c) Boundary rivers. (d) Non national rivers.

(iii) Cannals:

(iv) Territorial or maritime belt:

(v) Internal waters:

(a) National water (b) Territorial water.

(vi) Contagious zone (vii) Bays s gulfs.

(viii) Straits  (ix) Continental shelf

(x) Air space

12. Conclusion:

State is a community of people occupying a definite territory organized under a government which in its territory. When there it transmission of rights and obligation of one state to another in consequences of change of territoral sovereignty it is called state succession.

Foreign Diplomates

Q. Write a detailed note on the privileges and immunities of dipolmatic agents. (2000)

Q. Describe and explain the various privileges and immunities enjoyed by a diplomatic envoy. who is personanon persona non- grata? (2003)

Q. Discuss the privileges and immunities enjoyed by the diplomatic envoys. (2005)

Q. Who is diplomatic envoy? what immunities and privileges are available to him. (2005/A)

1. Introduction:

Diplomatic agents are those persons why represents their respective state in another state by establishing office of embassy having an establishment the rules of international law governing diplomatic relation are mostly contained in the legislative provisions and judicial decisions of national law. the law has now been codified in Vienna convention on diplomatic relation 1964.

2. Meaning of immunity:

Immunity means exemption, as serving in an office or performing duties which the law generally requires other citizens to perform.

3. Classification of diplomatic agent:

According to Vienna convention 1961 following are classification of diplomatic agent.

(i) Ambassador and legates.

Ambassador are the diplomatic agent of first degree. they are consider to be the personal representatives of the heads of their states and therefore they have special status.

(ii) Minister plenipotentiary internuncios and envoys extra- ordinary.

They are diplomatic agent of second degree. they are not the personal representatives of the sovereigns or heads of their states. they have no audience as of right with a head of state personally and are addressed as "excellency" by courtesy only. they enjoy privileges and immunities.

(iii) Charged affairs:

They are diplomatic agent of the last degree. their appointment is made by the foreign minister and not by the head of the state.

4. Basis of immunities and privileges:

There are two theories which are relevant in this regard.

(i) Theory of extra territoriality:

According to this theory, diplomatic agent enjoy immunities and privileges because they are deemed to be outside the jurisdiction of the state in which they are appointed.

(ii) Functional theory:

According to functional theory diplomatic agents enjoy immunities and privileges because they perform special kinds of function which are performed by them in the states where they are appointed.

5. Immunities and privileges of diplomatic agent:

According to Vienna convention 1961, following are immunities and privileges of the diplomatic agents.

(i) Inviolability of persons:

Diplomatic agents are inviolable. they a shall not be liable to any form of arrest or detention.

(ii) Immunity regarding residence:

Another immunity regarding diplomatic agent is regarding their residence. a permanent diplomatic mission needs premises from which to operate and the receiving state must help the sending state obtaining premises for the mission.

(iii) Immunity from criminal jurisdiction of courts:

Diplomatic agents enjoy immunities from criminal jurisdiction of court. however it is presumed that they will not violate the general principles of law of the state.

(iv) Immunity from civil jurisdiction:

Diplomatic agents enjoy immunities from the jurisdiction of civil courts.

(v) Immunity from being presented as witnesses:

Diplomatic agent can't be compelled to come to the court of law and give evidence in a case.

(vi) Immunity from taxes and dues:

Under international law the diplomatic agent are immune from the payment of taxes, or real , national regional and municipal except.

(a) Indirect taxes.

(b) Dues and taxes.

(c) Estate, succession or inheritance dues.

(vii) Immunity from inspection of personal Baggage:

The diplomatic agents have immunity from inspection of their personal baggage.

(viii) Control over subordinate and family:

Diplomatic agents have right to exercise control and jurisdiction over their officers and family.

(ix) Right to worship:

Diplomatic agents are free to follow any religion.

(x) Right to travel:

Diplomatic agents can travel in the territory of the receiving state.

(xi) Freedom of communication:

The diplomatic agents have freedom to communicate with their homeland in connection with their functions and duties.

(xii) Immunity from police rules:

The diplomatic agents have immunity from police rule of the state in which they are performing their functions and duties.

(xiii) Immunity from social security provisions:

The diplomatic agent are also immune from social security provisions in the state where they are appointed.

(xiv) Immunity from custom duty:

The diplomatic agents are immune from custom duty in the receiving state.

(xv) Immunity from local and military obligation;

The diplomatic agents are immune from the local and military obligations of the receiving state.

6. Main functions and duties of the dipolmatic agents:

Following are the main functions and duties of diplomatic agents.

(i) Representation:

They represent the state which they are sent where they are accredited.

(ii) Protection:

Diplomatic agent protect the status of sending state as well as its national and property in the receiving state.

(iii) Observation:

The diplomatic agents observe the happening and all those matters which are important for sending state.

(iv) Negotiation:

The diplomatic agents perform negotiation functions on behalf of the sending state.

(v) Communication:

The diplomatic agents communicate the outcome of the negotiation to the sending state. according to oppenhiem diplomatic agent is the mouth piece of the head of his home state.

(vi) Promotion:

The diplomatic agent promote friendly relationship between the sending state and receiving state.

7. Cases when state can refuse to receive a diplomat:

A state can refuse to receive a diplomat on the following cases.

(i) Where there is no particular mission.

(ii) If the personality is non  acceptable. i. e persona-non-grata.

8. Persona-Non-Grata:

Persona Non-Grata is position of diplomatic agent when he loses status of diplomatic agent.

(i) State which is entitled to declare persona non grata:

The receiving state is entitled to declare a diplomatic agent as Persona Non Grata (undersirable person).

(ii) When state can declare:

The receiving state can declare.

(i) Before arrival of the diplomatic agent in its territory.

(ii) After arrival of the diplomatic agent in its territory.

(iii) Grounds for declaring persona non grata:

(i) If he is obnoxious to his character.

(ii) Extremely hostile to the people and govt, of the receiving state.

(iii) Involves in activities against the receiving state.

9. Conclusion:

To conclude it can be said that diplomatic agents are those persons who are residing in foreign countries as representatives of the states by whom they are dispatched. they play important role between sending and receiving state. the Vienna convention provides privileges an immunities to the diplomatic agents.

War Crimes

Q. Write a note on war crimes. (2004)(2005)

1. Introduction:

There are certain rules of international law if they are violated, it will constitute war crimes. if they are committed by the soldiers or by other individual, punishment is given not by an independent forum but by the victorious states.

2. Definition of war crimes:

According to Schwarzenberger:

"War crimes are acts which strike at the very roots of international society, like genocide, piracy, violation off recognized rules of warfare.

According to Oppenheim:

"War crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders.

According to Higgins:

"War crime include the vidation of the recognized rules of warfare by illegitimate hostilites in arms committed by individuals who are not members of the armed forces espionage and war treason and marauding."

3. Classification of war crimes:

Oppenhiem classifies war crimes under the following four heads:

(i) Violation of recognized rules regarding warfare committed by member of armed forces.

(ii) All hostilities in arms committed by individual who are not members of the enemy armed forces.

(iii) Espionage and war treason.

(iv) Marauding acts.

4. Responsibility for war crimes:

Those person or soldiers who commit war crimes are individually responsible for war crimes such person are called war criminals.

Disability of war criminal:

A person committing war crimes cannot raise the plea that the crime was committed in pursuance of an order of the government or of two superior officer.

5. Who commit war crimes:

War crimes may be committed by.

i. Arm forces

ii. Political leaders having the power to control or authority to give directions.

War crimes trials:

6.Important war crimes trials are following:

(a) Nuremberg trial (1946)

(b) Tokyo trial(1946)

(c) Peleus trial

(d) Eichman trial (1962) (e) Mai lai trial

(f) Milosevic trial.

7. War crimes and united nation:

United nation recognized those principle which have been laid down in different war crimes trials. the general assembly also formulated certain principles relating to person guilty of war crimes. according to a resolution of general assembly where in it was laid down that state shall not grant asylum to any person with respect to whom there are serious charges for considering that he has committed war crimes. the united nation that he has authorised every state to try own nationals for war crimes or crime against humanity.

8. Conclusion:

To conclude i can say that war crimes are those acts which are violative of customs of war. the criminals or may not be member of armed forces. those person who commits war crime are personally responisble for their acts. the war crimes are against humanity and international peace e.g murder deportation imprisonment rape and other inhuman acts.

Asylum

Q. Write note on Asylum. (1997)(2001)

1. Introduction:

Asylum is the protection which a state gives on its territory on in some other place under the control of certain of its organs to a person who comes to seek it. it is the right to every state to refuse to extradite any refugee in certain circumstances.

2. Meaning:

The word Asylum is Latin and derived from the Greek word "Asylia" which means invoidable place.

3. Definition:

Asylum is shelter and active protection extended to a political refugee from another state by a state which admits him on his request.

4. Basis of Asylum:

A state has a right to grant asylum to a person on the principle that it has a sovereign right to control over the individual found on its territory. the right of territorial asylum has been conferred to a state on the basis of its sovereignty over territory.

5. Elements of Asylum:

There are two main element of Asylum which are following.

(a) Shelter.

(b) Active protection on the part of the authorities in control of the territory of asylum.

6. Reasons for Asylum:

Following can be the main reasons for granting asylum.

(a) To save a person from the jurisdiction of the local authority.

(b) May be granted on extra legal ground so on humanitarian ground.

(c) For the sake of national security.

Corfu Channel Case 1949:

It was held by ICJ that Asylum may be granted on humanitarain ground in order to protect political offenders against the violent action.

7. Right of a person to claim asylum:

In accordance with the "universal declaration of human rights under article 15 "every one has a right to seek and enjoy in other countries asylum from prosecution.

8. Types of Asylum:

Asylum has two types.

(i) Territorial asylum.

(ii) Extra territorial or diplomatic asylum.

I. Territorial asylum:

When asylum is granted by a state in its own territory it is called territorial asylum. a state has right to admit or expel any person found on its territory. the grant of territorial asylum is discretionary in its nature.

(i) Reason for grating territorial asylum:

The right to grant asylum by a state to a person on it territory flows from the fact that every state exercise territorial sovereign over all person, on its territory.

(ii) Resolution of the general assembly on asylum 1969:

According to the resolution of the general assembly on asylum 1967, the states shall do the following in granting asylum.

(i) Where a person requests for asylum his request should not be rejected.

(ii) If state feels difficulty in granting asylum, then it must take appropriate measures.

(iii) If asylum is granted, it should be respected by other states.

II. Extra territorial or diplomatice asylum:

When asylum is granted by a state at places outside its own territory it is called extra territorial or diplomatic asylum.

M' cnair views:

The term extra territorial or diplomatic asylum is usually, described to those cases in which a state decline to surrender a person demanded who is not upon its own physical territory but its upon one of its public ships lying foreign territorial waters or upon its diplomatic premises within foreign territory.

(a) Classification of extra territorial or diplomatic asylum:

Extra territorial or diplomatic asylum can be classified in to the following.

(i) Asylum in legation or foreign embassies:

Where asylum is granted by a state within its embassy premises situated in foreign country it is called asylum in legation. there is no general right to grant asylum in the premises of the legation. the international court of justice held that there is no general right of diplomatic asylum.

Exceptional cases:

Diplomatic asylum can be granted in the following cases.

(i) It can be granted for temporary period.

(ii) It can be granted where there is well established custom.

(iii) It can be granted where there is treaty.

(ii) Asylum in consulates:

The rules regarding asylum in consulates are similar to that of asylum in diplomatic or legation.

(iii) Asylum in warships:

Men of war and public vessels of foreign states, while in post or internal waters of another state are exempted from the jurisdiction of latter for the certain objects. asylum in warships may be granted on ground of humanity and fugitive once or board is perhaps immune from seizure by the territorial state.

Challies vs Fenwick case:

Court hold that asylum in warships can only be granted to political refugees not to criminal(iv) Asylum in Merchant Vessels:

Merchant vessels are not exempted from the local jurisdiction and therefore asylum can be granted to an offender however asylum can be granted if they conclude a treaty to this effect.

(v) Asylum in the premises of international institutions:

International law does not recognize rule regarding the grant of asylum in the premises of the international institutions. however temporary asylum may be granted in an extreme case of danger.

9. Conclusion:

Asylum is shelter and active protection extended to a political refugee from another state by a state which admits him of his request. it has two main from territorial and extra territorial asylum. the main difference between two is in territorial asylum the refugee is within the territory of the state or refuge and in case of extra territorial the refugee is within the territory of the state where the offence was committed.