PUBLIC INTERNATIONAL LAW
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UNIT - II |
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UNIT - IV |
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The agents of international business Diplomatic, envoys, consults and other representatives. |
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Principal organs and their functions world trade organisation |
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UNIT - I
Definition, nature, origin and basis of
International Law; Sources of International Law;
Relationship between Municipal and International Law; Subjects of International Law.
The words "International Law" were used for the first time by Jermy Bentham in 1780. Since then these words have been used to denote the body of rules and principles which regulate the relations among the members of international community. The term 'members of International community' now denotes States, International organizations, individuals and certain non - State entities.
Oppenheim's Definition:
According to Prof. L. Oppenheim has defined International Law in the following words - "The Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other".
Kelsen:
According to Kelsen :: "International Law or the Law of Nations is the name of a body of rules which - according to the usual definition - regulate the conduct of the States in their intercourse with one another".
Hall:
According to Hall:: "International Law consists of certain rules of conduct which modern civilized States regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country and which they also regard as being enforceable by appropriate means in case of infringement".
Gray:
According Gray defines International Law in the following words: "International Law or the Law of Nations is the name of body of rules which according to the usual definitions regulate the conduct of the States in their intercourse with one another".
Hackworth:
In the words of Hackworth: "International Law consists of a body of rules governing the relations between States. It is a system of jurisprudence which for the most part, has evolved out of the experiences and the necessities of situations that have arisen from time to time".
J.L. Brierly:
According to Brierly: "The Law of Nations or International Law may be defined as the body of rules and principles of action which are binding upon civilized States in their relations with one another".
S.S.Lotus case:
International Law was defined in the following words: "International Law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co - existing independent communities or with a view to the achievement of common aims. Restriction upon the independence of States cannot therefore be presumed".
Soviet definition:
According to the Soviet Definition, International Law is "the sum total of the norms regulating relations between States in the process of their struggle and co-operation, expressing the will of the ruling classes of these States and secured by coercion exercised by States individually and collectively".
Chinese definition:
According to a Chinese Writer: "International Law like all other branches of law is created in a definite stage of mankind's social development. The origin of International Law is directly related to the creation of the State. International Law is created as the political, economic and the relations among States emerge".
Whiteman:
Whiteman defines International Law in the following words: "International Law is the standard of conduct, at a given time, for State and other entities subject thereto".
Charles G. Fenwick:
"International Law may be defined in broad terms as the body of general principles and specific rules which are binding upon the members of the International community in their mutual relations".
On the basis of the above definitions, we may conclude that International Law is a body of rules and principles which regulate the conduct and relations of the members of International community.
It will be desirable to discuss first the question whether International Law is true law or not. This question is now only of academic interest because it has been well established for once and for all times that International Law is true Law. However, a discussion on this question is still important for it helps to understand the nature of International Law.
Whether International Law is law in the true sense of the term or not: - The controversy whether International Law is true law or not depends upon the definition of the word law.
According to Austin, law is given by determinate superior political authority to political inferiors and is backed by a coercive enforcement agency. The definition of law given by Austin is not correct. In the words of Prof. Oppenheim, "this definition is not correct. It does not cover that part of municipal law which is termed as unwritten or customary law. There is, in fact, no community and no State in the word which exist withy written law only.
According to Oppenheim the existence of law presupposes the existence of three prerequisites:- A community, A body or rules and common consent of the community that if necessary these rules shall be enforced by the external power.
Most of the jurists now subscribe to the view that international law is law. It has been pointed out that sanction is not an essential element of law. Views of jurists, who regard international law as really law may be summed up as follows:-
Distinction between Public International Law and Private International Law:-
The main points of difference between Public International Law and Private International Law are the following:
1) Public International Law for its major part, deals with States and to a lesser extent with the individuals. Private International Law deals with the individuals.
2) Public International Law is a part of Municipal Law but so it is not always the case with Public International Law.
3) Public International Law is same for all the States whereas Private International Law may be different in different States.
4) Private International Law determines as to which Law will apply in a case having a foreign element. There is no such problem in the field of Public International Law.
5) Private International Law also determines the court which will have jurisdiction to decide the issue in question. In this respect also it differs from Public International Law.
Weakness of the International Law:
Following are the weakness of the International Law:-
1) It lacks effective authority to enforce its rules.
2) It lacks effective legislative machinery.
3) The International Court of Justice has no compulsory jurisdiction in the true sense of the terms.
4) The sanctions behind international law are very weak.
5) It cannot intervene in the matters which are within the domestic jurisdiction of States.
6) Many rules of international law are uncertain and vague.
7) International law has failed to maintain order and peace in the world.
Suggestions for improving International Law:
1) The International Court of Justice should be given compulsory jurisdiction in the true sense of the term.
2) An International Criminal Court should be established to decide cases of International crimes.
3) International Law should be properly codified and scientifically revised from time to time.
4) The machinery to enforce the decisions of the World Court should be strengthened.
5) The powers and scope of the activities of the International Law Commission should be expanded.
6) The legislative activities of the General Assembly should be further enlarged.
7) The U.N. Charter should be amended as to authorize the U.N. to intervene in such matters with the domestic jurisdiction of States as are of international concern.
8) The doctrine of judicial precedents should be applied in the field of international Law.
9) In order to strengthen the legislative machinery of international law more law-making treaties and conventions should be made and there should be a provision for their revision from time to time.
There are the two main theories which attempt to explain the basis of international law - Theories as to law of Nature; and Positivism.
Theories as to the Law of Nature:-
According to the exponents of this theory international law is a part of the law of nature. States follow international law because it is a part of the law of nature which is a higher law. In their view, it is the natural law which has conferred binding force on international law. In the beginning Natural Law was associated with religion. International Law was considered binding because it was in fact, natural law applied to special circumstances.
Criticism: Each follower of the natural law gives a different definition of the term of 'natural law'. They use it as a metaphor. Different jurists ascribe different meaning to it such as reason justice, utility general interest of international community etc. Thus the meaning of the term 'natural law' is very vague and uncertain. Besides this, the main defect of this theory is that it is not based on realities and actual practice of the States. It must however, be admitted that the law of nature has greatly influenced the growth of international law.
Theory of Positivism:-
Positivists base their theory on the actual practice of the States. According to them in the ultimate analysis, will of States is the main source of international law. International law they say, is binding because the States have given their consent for the rules of international law. According to Italian jurist, Anzillotti, the binding force of international law is based on a fundamental principle known as Pacta Sunt Servanda (Agreements entered into by States must be respected and followed in good faith).
Criticism: Positivists views have been severely criticized by many jurists. Following are the main points of criticism:
1) The concept of will of State is purely metaphorical. The will of State is noting but the will of the people who compose it.
2) In practice, it is never necessary to show in regard to any particular rule of customary international law that the States had given their consent.
3) The positivists have based their theory on consent which has been severely criticized by jurists.
4) It fails to explain the case of the admission of a new State into the family of nations. When a state is admitted to the family of nations, international law becomes applicable to it even without its consent.
Some other theories regarding the basis of International Law:
Following are some other theories regarding the basis of international law:
Theory of Consent:
This is based on the Positivists view and has been criticized earlier. This theory fails to explain the basis of international law. According to this theory States observe rules of international law because they have given their consent for them.
Auto - Limitation Theory:
This theory is also based on the theory of consent and fails to explain the basis of international law. It is based on the presumption that State has a will. Moreover, auto-limitation is no limitation at all.
Pacta Sunt Servanda:
According to Anzillotti, the binding force of international law is founded on the fundamental principles known Pacta Sunt Servanda, which means that the agreements entered into by the States must be followed by them in good faith. This principle, though a fundamental and very important principle of international law, fails to explain the binding force of customary rules of international law.
On the basis of the above arguments it may be concluded that international law is in fact law. International Law operated entirely in a different setting. It operates in a decentralized system.
Sources of international law can be classified into the following categories: -
1) International Conventions;
2) International Customs;
3) General Principles of Law recognized by civilized nations;
4) Decisions of Judicial or Arbitral Tribunals;
5) Juristic Works;
6) Decisions or Determinations of the Organs of International Institutions.
The first five sources find mention in Art. 38 of the Statute of International Court of Justice and the sixth source is conspicuous by its absence from the said Article for the obvious reason that when Art. 38 was drafted and adopted for the first time, this source was not in a sufficiently developed State.
I. International Conventions:
The term convention applies to any treaty protocol or agreement regardless of its title or form. According to Art. 38 of the Statute of International Court of Justice, it is the first sources of international law. In the modern period, international treaties are most important sources of international law. As defined by Art. 2 of Vienna Convention on the Law of Treaties, 1969, a treaty is an agreement whereby two or more States establish or seek to establish relationship between them governed by international law.
International Treaties may be following two types - Law - making Treaties; and Treaty Contracts.
(a) Law - Making Treaties:- Law Making Treaties are those treaties which are entered into by a large number of States. These are the direct sources of international law. Law making treaties may divided into following two types; (i) Treaties enunciating the rules of Universal International Law: Those treaties which are signed by a majority of the States are called the Treaties enunciating the rules of universal international law. (ii) Those enunciating general principles: Treaties which are entered into by a large number of countries enunciated general principles of international law 1958 and 1960. Geneva Conventions on the Law of the Sea and Vienna Convention on Diplomatic Relations, 1961, are good examples of such types of treaties.
(b) Treaty Contracts: - Treaty Contracts are those treaties which are entered into by two or more States. The provisions of such treaties are binding only on the parties to the treaty. Such type of treaties are also the source of international law because they held in the development of customary rules of international law.
II. International Customs:
International Customs used to be the most important source of international law in the past. In the modern period, their importance has lessened. Custom is a habit which has been repeated for a long time and has ultimately assumed the force of law. Customary rules of international law have developed in the following three circumstances - (a) Diplomatic relations between States;
(b) Practice of Organs of International Institutions;
(c) State Laws, decisions of the State's Courts and State's Parliamentary or administrative practices.
Ingredients or Elements of Custom:-
Following are main elements of an international custom:-
(i) Evidence of a General Practice accepted as law;
(ii) Uniformity and consistency;
(iii) Generality of Practice;
(iv) Opinio juris ncessitatis.
III. General Principles of Law recognized by civilized nations:
According to Art. 38 of the Statute of International Court of Justice, the general principles of law recognized by the civilized Nations are also one of the sources of international law. This is an important source of law through which international law adapts itself in accordance with the changing times and circumstances. The general principles of law are those principles which are recognized by mort of the civilized States. When the court finds that a principle has received general recognition, the court may apply it as a principle of international law.
As pointed out by B. Cheng, International Courts have recognized the following general principles: (i) good faith; (ii) responsibility; (iii) prescription; (iv) in the absence of any express provisions of the contrary, every court has a right to determine the limits of its own jurisdiction; (v) a party to a dispute cannot himself be an arbitrator or judge: (vi) re judicata; (vii) in any judicial proceeding, the court shall give proper and equal opportunity of hearing to both parties.
Following are some of the important cases relating to the general principles of law recognized by civilized States:
(a) R.Key: In this case the court rules that international law is based on justice, equity and good conscience which has been accepted by long practice of States.
(b) Bracelona Traction Case: In this case also the International Court of Justice applied the principle of estoppel.
(c) United States V/s Schooner: In this case Justice Storey of U.S.A ruled that International Law should be based on the general principles of law recognized by civilized States. He was giving decision relating to Abolition of System of Slavery.
IV. Decisions of Judicial or Arbitral Tribunals:
The decisions of Judicial and Arbitral Tribunals are also the sources of International Law. But according to Art.38 of the International Court of Justice, they are subsidiary means for the determination of the rules of law. This source includes international as well as State decisions. As regards the decisions of the International Court of Justice, Art. 59 of the Statute of International Court of Justice provide that they will have "no binding force except between the parties and in respect of that particular case". The arbitral decisions have still less value because it is generally said that arbitrators work more as mediators rather than as judges.
V. Juristic Works:
The opinions of jurists are also regarded as sources of International Law. But they are also subsidiary means for the determinations of the rules of International Law. While deciding the case, if the court does not find any treaty or judicial decision or legislative act or any established custom, the court may take the help of opinion of jurists as subsidiary means for the determination of rules of international law.
VI. Decisions or Determinations of the Organs of International Institutions:
In the modern age the decisions or determinations of organs of international institutions are also treated as sources of International Law. In view of the constant change in the form and content of international law, international organizations have also become a subject of international law. The decisions and determinations of the organs of such institutions are also, therefore, regarded as the source of international law because they held in the development of customary rules of international law.
Some other subsidiary sources of International Law:
Following are the other subsidiary sources of international law:-
(a) International Comity:
Since mutual relations of nations are often based on the principle of comity, international comity has helped the development of international law.
(b) State Papers:
In the modern period, almost all the civilized Stated have diplomatic relations with each other. They send letters to each other in respect of matters of mutual interests. These letters are sometimes published. Sometimes these State papers help in the solution of a conflict or controversy.
(c) State guidance of their officers:
It is mostly seen that a number of matters of the Governments of respective States are resolved on the advice of their legal advisers. These advices are also, therefore, sometimes treated as sources of international law.
(d) Reason:
"Reason" has occupied a special position in all ages. In modern period also it occupies an important place. It has performed a special role in the development of international law.
There are five theories regarding the relationship between International Law and Municipal Law.
a) Monism Theory;
b) Dualism Theory;
c) Specific Adoption Theory;
d) Transformation Theory;
e) Delegation Theory.
I. Monism Theory:
According to this theory law is a unified field of knowledge, no matter whether it applies on individuals, States or entities. Thus international law and State law are intimately connected with each other. According to Monist belief, international obligation and municipal rules are facts of same phenomenon, the two deriving, ultimately from one basic norm and belonging to the unitary order comprised by the conception of law. Theoretically and logically this appears to be the correct theory and it is very difficult to disprove it.
II. Dualism Theory:
According to this theory international law and municipal law are two separate laws. Triepel and Anzilloti are the chief exponents of this theory. According to Triepel international law and State law are different because their subject and origin are different. In his view individual is the subject of State law whereas State is the subject of international law. Besides this, origin of the State law is the will of State, but origin of the international law is common will of the States. In the view of Anzilloti, the fundamental principle of international law is pacta sunt servanda (i.e., agreements, between the states are to be respected in good faith).
III. Specific Adoption Theory:
This theory is based on the theory of positivists. According to this theory international law can be enforced in the field of State law only after it has been specifically adopted by State law. This theory can also be subjected to criticism because there are several principles of international law which are applied in the field of municipal or the state law without specific adoption. It is argued that unless there is specific adoption of the international treaties such as Tokyo Convention Act, 1975 and Vienna Convention of Diplomatic Relations Act, 1972 enacted by Indian parliament or there is some sort of transformation, international treaties as such cannot be enforced in the municipal field.
While considering the International Convention on Civil and Political Rights of Supreme Court of India has held in Jolly George v/s The Bank of Cochin, "the positive commitment of the State Parties ignites legislative action at home but does not automatically make the covenant enforceable part of the corpus juris of India".
IV. Transformation Theory:
According to the exponents of this theory the rules of international law to be applied in the field of municipal law must undergo transformation. This theory is also based on the theory of consent which has been already criticized earlier. There are several law-making treaties and principles of international law which become applicable in the field of Municipal law without undergoing the process of transformation.
V. Delegation Theory:
The critics of transformation theory have put forward a new theory called Delegation Theory. According to this theory the constitutional rules of international law permit each state to determine as to how international treaties will become applicable in the field of state law. The Constitution of each state contains provision in this connection. Thus no transformation takes place. This theory is based on presumption and has been severely criticized.
A subject of rules is a being upon which the rules confer rights and capacity and imposes duties and responsibility; whereas an object enjoys and is burdened by no such competence. The law commands its subjects but it merely regulates the use and disposition of objects. Ordinarily international law deals with the rights and duties of the States. Ordinarily its rules are for States. Generally it is the States who enter into treaties with each other and are thus bound by its provisions. This does not, however, mean that other entities or individuals are outside the scope of international law. International law applies upon individuals and certain non - State entities to States.
Various theories regarding Subjects of International Law:
Following are the three main theories prevalent in regard to the subjects of International Law;
(1) States alone are subjects of International Law.
(2) Individuals alone are the Subjects of International Law.
(3) States are main Subjects of International Law.
Some jurists have expressed the view that only States are the subjects of International Law. In their view international law regulates the conduct of States and only States alone are the subjects of international law. As pointed out by Percy E. Corbett: "The triupth of positivism in the late eighteenth century made the individual an object, not a subject of international law. This law more and more emphasized the separateness of States, making their sovereignty, indeed its basic principles".
Criticism: This view has been subjected to severe criticism by jurists. This theory fails to explain the case of slaves and pirates. Under international law slaves have been conferred upon some rights by the Community of States. Similarly pirates are treated as the enemies of mankind and they may be punished for piracy by the States. But the jurists who subscribe to the view that only States are subjects of international law to reconcile these exceptions by contending that they are not the subjects, but objects of international law.
Just contrary to above theory there are certain jurists who have expressed the view that in the ultimate analysis of international law it will be evident that only individuals are the subjects of international law. The chief exponent of this theory is Prof. Kelsen. Even before Kelsen, Westlake had remarked, "The duties and rights of the States are only the duties and rights of men who compose them". Kelsen has analyzed the concept of State and expressed the view that it is a technical legal concept and includes the rules of law applicable on the person living in a definite territory. Truly speaking there is no difference between international law and State law.
Criticism: Kelsen's views appear to be logically sound. But so far as the practice of the States is concerned it is seen that the primary concern of the international law is with the rights and duties of the States. From time to time certain treaties have been entered into which have conferred certain rights upon individuals. Although the statute of the international court of justice adheres to the traditional view that only States can be parties to international proceedings, a number of other international instruments have recognized the procedural capacity of the individual.
The third view not only combines the first and second views but goes a step ahead to include international organizations and certain other non-state entities as subjects of international law. This view undoubtedly appears to be far better than the first two views.
Following arguments may be put forward in support of this view:
1) In the present time several treaties have conferred upon individuals certain rights and duties. International Covenants on Human Rights and 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States deserve a special mention in this connection.
2) 1949 Geneva Convention on the Prisoners of War has conferred certain rights upon the Prisoners of War.
3) The Genocide Convention of 1948 has imposed certain duties directly upon the individuals. According to the convention, persons guilty of crime of genocide may be punished, no matter whether they are the head of the State, high officials or ordinary individuals.
4) In regard to the international criminal law, the law-making treaties have imposed certain obligations upon the individuals and the States have consented to it. In this connection, Narcotic Drugs Convention, 1961, Hague Convention for the Suppression of Unlawful Seizure of Aircrafts 1970, etc. deserve special mention.
5) The Nuremberg and Tokyo Tribunals propounded the principle that international law may impose obligations directly upon the individuals.
Subjects of International law, State are becoming increasingly realistic in acknowledging the position of the individual in the legal order. International law today cannot without qualification be described as the law between States. Thus slowly and gradually individuals are occupying place of importance under international law. They are no more mere objects of international law. They are in fact the subjects of international law. It cannot however, be denied that even today States are the main subjects of international law and the bulk of international law deals with their rights and duties.
UNIT - II
States as subjects of International Law: State in general;
Recognition; State Territorial Sovereignty.
State is the main subject of international law. It is very difficult to define the term 'State', but certain jurists have made their endeavors to this respect. According to Salmond, State is a community of people which has been established for some objectives such as internal order and external security. According to Prof. H.L.A. Hart, "the expression 'a State is a way of referring to two facts: First, that a population inhabiting in a territory live under that form of ordered government provided by a legal system which its characteristic structure of Legislature, Courts, and primary rules; and Secondly, that the government enjoys a vaguely defined degree or independence".
Essential Elements of a State:
According to Art. 1 of Montevideo Convention 1933, "The State as a person of international law should possess the following qualifications: (a) A permanent population; (b) A defined territory; (c) A Government; and (d) Capacity to enter into relations with other States".
According Oppnheim has pointed out the following essential elements of a State:
(a) Population;
(b) A definite territory;
(c) Government and
(d) Capacity to enter into relation with other States.
The famous jurist Holland has added one more essential element, namely, to some extent 'civilization' because of which the State becomes the member of international community.
Art. 4 of Montevideo Convention on the Rights and Duties of States provide that States are juridical equal, enjoy the same rights and have equal capacity in their exercise. The rights of each one do not depend upon power which it possesses to assure its exercise, but upon the simple fact of existence of a person under international law.
Art. 6 provide that the recognition of a State merely signifies that the State which recognizes it accepts the personality of the other with all the rights and duties determined by international law.
Functions of States:
Modern period has witnessed revolutionary changes in regard to functions of a State. Previously there was the conception of a police State according to which the essential functions of a State were to maintain internal peace and order and to defend it form external aggression. It cannot be denied the conception of state has undergone significant changes. Instead of the conception of police State, the present conception is that of a welfare State. That is to say, for benefit of the people, State has to perform many social, economic, educational and cultural functions. But these functions do not come under the category of essential functions. They are in fact subsidiary functions. Nevertheless, these are also the functions of a State in the modern time and the importance of these functions is constantly increasing.
Rights and Duties of States:
The doctrine of basic or fundamental rights and duties was enunciated by the naturalist writers. In their view, the doctrine of fundamental rights and duties owns its existence to the Law of Nature.
Rights and duties of the States are in fact the rights and duties which have been recognized by the community of States. Although there is much force in the above criticism, it cannot be accepted as a whole. Whether we call them basic or fundamental, there seems to be a general consensus in respect of certain rights and duties.
Some of the more important of such rights include:
(1) Sovereignty and independence of States:
(2) Equality of States;
(3) Territorial jurisdiction;
(4) Right to self-defence and self-preservation;
(5) Power exclusively to control its own domestic affairs;
(6) Power to admit or expel aliens;
(7) Privileges and immunities of diplomatic envoys in other States;
(8) Exclusive jurisdiction over crimes committed within its territory.
So is the case with certain duties which include:
(1) Duty not to resort to war;
(2) To fulfil treaty obligations in good faith;
(3) The duty of non-intervention.
Different kinds of States:
Following are different kinds of States;
Confederation is formed by independent States. Under international law confederation has no international personality. The aim and objective of confederation is to establish a sort or co-ordination among the States, leaving States independent in their internal and external matters. But under international law, these States are not international persons.
Generally a Federal State is formed by the merger of two sovereign States. Under international law, a Federal State is an international person. The Federal State exercises control and has rights not only over the member States but also over the citizens of the States. In a Federal State, generally there is a division of powers between the central authority and the States through a contribution.
When two or more States exercise rights over a territory, it is called Condominium. "A Condominium exists when over a particular territory joint dominion is exercised by two or more external powers".
A State which is under the suzerainty of another State is called a Vassal State. Its independence is so restricted that it has no importance under international law.
According to Starke, "Although not completely independent, a Protectorate State may enjoy a sufficient measure of sovereignty to claim jurisdictional immunity in the territory of another State.
Meaning and Definition of the term 'Recognition':
In the words of Prof. Oppenheim, "In recognizing a State as a member of international community the existing States declare that in their opinion the new State fulfils the conditions of statehood as required by International Law.
It is the free act by which one or more States acknowledge the existence of the definite territory of a human society, politically organized, independent of any other existing State and capable of observing obligations of international community.
According to Kelsen, a community to be recognized as a international person must fulfill the four conditions -
a) The community must be politically organized;
b) It should have control over a definite territory;
c) This control should tend towards permanence;
d) The community thus constituted must be independent.
Theories of Recognition:
There are two main theories of recognition;
1) Constitutive Theory.
2) Declaratory or Evidentiary Theory.
I. Constitutive Theory:
According to Oppenheim, "a State is and becomes an international person through recognition only and exclusively". According to this theory recognition clothes the recognized State with duties and rights under international law. Recognition is a process through which a poltical community acquires international personality by becoming a member of the family of nations. Hegel, Anzilloti, Holland and Oppenhiem etc are the chief exponents of this theory. As pointed out by P.E. Corbett, "according to the constitutive theory, Statehood and participation in the international legal order are attained by political groups only in so far as they are recognized by established States".
Criticism: This theory has been severely criticized by many jurists. In practice, States do not accept any obligation to recognize a community that has attained Statehood, although they may normally recognize it. According to this theory, unrecognized State can have neither rights nor duties under international law. This is a very absurd suggestion.
II. Declaratory or Evidentiary Theory:
According to this theory statehood or the authority of the new government exists as such prior to and independently of recognition. Recognition is merely formal acknowledgement through which established facts are accepted. The act of recognition is merely declaratory of an existing fact that a particular State or government possesses the essential attributes of statehood as acquired under international law. The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Corbett and Fisher.
Criticism: This theory has also been subjected to criticism. The view that recognition is only a declaratory of an existing fact is not completely correct. In fact when a Sate is recognized, it is a declaratory act. But the moment it is recognized, there ensue legal effects of recognition which may be said to be of constitutive nature.
Modes or Kinds of Recognition:
I. De facto Recognition:
As pointed by Prof. Schwarzenberger, "When a State wants to delay recognition de jure of any State, it may, in the first stage grant de facto recognition. De facto recognition is given because it is doubted that the State recognized may not be stable or it may not be able and willing to fulfil its obligation under international law.
De facto recognition means that the State or government takes place when in the view of the recognizing State the new authority although actually independent and wielding effective powers in the territory under its control, has not acquired sufficient stability or does not yet offer prospects of complying other requirements of recognition such as willgness or ability to fulfil international obligations. In the view of Judge Philip C. Jessup, De facto recognition is a term which has been used without precision when properly used to mean the recognition of the de facto character of a government; it is objectionable and indeed could be identical with the practice suggested of extended recognition without resuming diplomatic relations".
II. De jure Recognition:
De jure recognition is granted when in the opinion of the recognizing State the recognized State or its government possesses all the essential requirements of statehood and is capable of being a member of the international community. According to Phillip Marshall Brown, "Recognition de jure results from an expressed declaration or from a positive act indicating clearly the intention to grant this recognition, such as establishment of diplomatic relations".
III. Implied Recognition:
Ordinarily recognition is an unilateral act of a State and when a State recognizes another State is makes an express declaration, either orally or in writing; but sometimes recognition may be implied. Implied recognition may be inferred when circumstances show that the State concerned has been accepted as a member of international community.
The following circumstances such recognition may also indicate implied recognition;
(a) Participation of the State concerned in a multi-lateral treaty;
(b) Participation in an international conference;
(c) The start of negotiations between the recognizing and the recognized States.
IV. Recognition subject to a condition:
Recognition denotes that the recognized State possesses the essentials of statehood and is fit to be a member of international community. As pointed out by Starke, "It is true, however, that if recognition should under international law become purely and simply the cognitive act of registering the statehood or of government activities, it should not be subject to any such extrinsic terms or conditions".
V. Collective Recognition:
Collective recognition means the recognition granted by a number of States collectively. For example, when a State is admitted to the United Nations it amounts to collective recognition by those States who vote in favour of the admission of such State.
Legal effect of Recognition:
Although recognition is a political diplomatic function and depends upon the discretion of recognizing State, once recognition is accorded, certain legal effects ensue:
Following are the main legal effects of recognition:
1) The recognized State becomes entitled to sue in the courts of recognizing State;
2) The courts of the recognizing State give effect the past as well as present legislation and executive acts of the recognized State;
3) In regard to the property and diplomatic relations, the recognized State can claim certain immunity;
4) The diplomatic envoys of the recognized State get a number of privileges and immunities in the recognizing State.
Consequences of non - recognition:
Following are the consequences of non - recognition:
1) A non - recognized State cannot sue in the courts of the State which has not recognized.
2) The unrecognized State can neither establish diplomatic relations nor enter into a treaty with the States which have not recognized it.
3) Diplomatic representatives of an unrecognized State do no possess privileges and immunities which have not recognized it.
4) An unrecognized State is also not entitled to claim its property situated in foreign country.
State territory may be defined as "portion of globe which is subjected to the Sovereignty of a State. A State without territory is not possible, although the necessary territory may be very small, as with Vatican City. A wandering tribe, although it has a government and is otherwise organized, is not a state until it has settled down in a territory of its own".
The importance of state territory is that it is the space within which the state exercises its supreme and normally exclusive authority. State territory is an object of international law, because that law recognizes the supreme authority of which must of course be exercised in accordance with international law.
Modes of acquiring territories:
Following are the modes of acquiring territories under international law:
1. Occupation:
According to Starke, "Occupation consists in establishing sovereignty over a territory not under the authority of any other state whether newly discovered an unlikely case - abandoned by the State formerly in control".
2. Prescription:
Yet another mode of acquiring territory is by prescription. In the words of Starke, "Title by prescription is the result of peaceable exercise of de facto sovereignty for a very long period over a territory subject to the sovereignty of another state".
As pointed out by an eminent writer, D.H.N. Johnson, a state may acquire some territory by prescription only when the following conditions are fulfilled:
(i) when it has not accepted the sovereignty of any other state over the said territory.
(ii) Possession should be peaceful and uninterrupted.
(iii) Possession should be in public.
(iv) Possession should be for a definite period.
3. Accretion:
As pointed out by Starke, "Title by accretion occurs when new territory is added mainly through natural causes, to territory already under the sovereignty of the acquired State.
4. Cession:
Territory may also be acquired through cession. It may either be a voluntary act or in consequence of war. Cession is generally considered valid only when the sovereignty of the territory concerned is transferred to another State. In Union of India V/s Sukumar Sengupta (Popularly known as Tin Bigha Case). Tin Bigha area was given to Bangladesh by India under the 1974 and 1983 agreements to co0nnect Dhagram with Panbari Mouza (S.Patram) of Bangladesh. As per agreement "lease in perpetuity" was given over the area at the rate of Rs.1/2 per annum but the government of India waived its right to charge such rent in respect of the leased area.
The Agreement provided that "Sovereignty over the leased area shall continue to vest in India". Delivering the judgment, C.J. Sabyachi Mukarjee as observed: "A fortiori the said transaction did not amount to cession of the said area of Teen Bigh in favour of Bangladesh. Cession as understood in international law would result in an actual and physical transfer of the said area to Bangladesh following which Bangladesh would have the exclusive right to treat the said transferred territory as part of its own territory and exercise full control, dominion and right over the same. This is not the position or the situation which is contemplated under the agreement. The rights intended to be conferred on Bangladesh under the said agreements would amount to what is known as 'servitude' in International Law.
5. Annexation:
A territory may also be acquired by annexation. It is however, necessary that after conquest, sovereignty must be established over the territory. This mode has become obsolete after the commencement of the Charter of the U.N.Art.2(4) of the Charter make it incumbent upon Member States to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.
A recent example of this is the annexation of Kuwait by Iraq. After annexation Iraq declared Kuwait to be its 19th province. But the Security Council of the U.N. declared the annexation of Kuwait as well as the said declaration of Iraq as null and void. Subsequently Kuwait was freed.
6. Lease:
Yet another mode of acquiring territory is by way of lease. A State may lease a part of its territory to another State. For example, State of Malta has leased an island to Britain for some time. Similarly, Panama leased Panama Canal area to the U.S.A.
7. Pledge:
Sometime a State may pledge a part of its territory to another State in return of some money.
8. Plebiscite:
There is controversy as to whether a territory may be acquired through plebiscite or not. A recent example of acquiring territory by this mode is that of West Iran which was claimed by Netherlands and Indonesia. A plebiscite was held under the auspices of U.N. The people of West Iran decided to merge with Indonesia.
Modes of loss of territory:
Following are the modes through which a territory may be lost:
As one State acquires the territory through cession, the other State looses it.
Sometimes a State may lose its territory through the operation of nature such as earthquake etc.
A State may acquire territory through the operation of nature.
When a State occupies a particular territory for a long period then it is entitled to acquire it through prescription. On the contrary, the state which had occupation over it earlier may lose it.
Sometimes a state may lose its territory and a new state may emerge. For example, as a result of revolt, Pakistan lost the territory of East Pakistan and a new State of Bangladesh emerged.
When a state renounces a part of its territory or fails to excise or slackness, to exercise sovereignty over it, then it may lose such territory. Such examples are however, very rare in history.
Britain, France and other imperialist states lost territories during last few decades by granting independence to colonies or otherwise acquiring of independence by the colonies.
UNIT - III
State Jurisdiction: Law of the Sea; State Responsibility;
Succession to rights and obligations.
"State Jurisdiction is the power of the State under International Law to govern persons and property by its Municipal law. It includes both the power to prescribe rules and the power to enforce them. The latter includes both executive and judicial powers of enforcement. Jurisdiction may be concurrent with the jurisdiction of other States or it may be exclusive. It may be civil or criminal. The rules of State jurisdiction identify the persons and the property within the permissible range of State's law and its procedures for enforcing that law. They are not concerned with the content of a State's law except in so far as it purports to subject a person to it or to prescribe procedures to enforce it".
State Jurisdiction means "essentially the extent of each State's right to regulate conduct on the consequences of events". A State may regulate its jurisdiction by legislation, through its courts or by taking executive or administrative action. State jurisdiction concerns both international law and internal law of the State. While the former determines the permissible limit of a State's jurisdiction in the various forms it may take, the latter prescribes the extent to which and manner in which the State in fact asserts its jurisdiction.
It may be noted here, that jurisdiction of a State is not always co-incident with its territory. There may be certain situations and circumstances wherein a State may not be able to exercise the jurisdiction within its territory and vice - versa. It may exercise jurisdiction in certain cases outside its geographical limits.
A State may not be able to exercise jurisdiction in respect of the:
(1) Diplomatic agents;
(2) Foreign Embassies;
(3) Foreign Sovereigns;
(4) International organizations;
(5) Immunity in respect of public property of a foreign sovereign State;
(6) Foreign Troops;
(7) Extradition Treaties.
Criminal Jurisdiction in International Law:
There is a great controversy among the States in regard to criminal jurisdiction under international law.
Following are some of the prevalent views in this connection:
1) According to the first view, each State can exercise criminal jurisdiction only with its territory, known as the theory of territoriality of criminal jurisdiction. Great Britain, America, and some other States subscribe to this theory.
2) The second view is the modification of the first view, France, Germany, etc. are of the view that each State is entitled to exercise jurisdiction within its territory, but there are some exceptions to this rule i.e., a State may exercise criminal jurisdiction even outside its territory on the economic grounds and on the ground of national security.
3) Those countries (such as Turkey, Italy) which do not subscribe to the theory of territoriality of criminal jurisdiction have put forward a new theory known as extra territoriality of criminal jurisdiction.
A leading case on the extra - territoriality of criminal jurisdiction is S.S.Lotus. The facts in this case are as follows:
In 1926, in open or High Seas, a French Mail ship named S.S.Lotus collided with a Turkish ship named BOZ Kourt. As a consequence of collision, the Turkish ship sank resulting in the death of 8 Turkish nationals. After the collision, when S.S.Lotus reached Constantinople, Mr.Demons French national and the officer on the Board were arrested and proceedings were started against them according to the criminal law of Turkey. Mr.Demons argued in the Turkish Court that it has no jurisdiction to try him. The Court rejected the said contention of Mr. Demons and convicted him. The French Government protested against the said act of Turkey and claimed that Mr.Demons should be immediately released. The French Government claimed that Turkey had no jurisdiction to try and punish Mr. Demons. In its support France cited Art. 15 of the Convention of Lausanne, 1923. Art. 15 provided the following: "Subject to the provisions of Art. 16 all questions of jurisdiction shall as between Turkey and other contracting parties are decided in accordance with the principles of International Law".
The Permanent Court of International Justice gave its decision in favour of Turkey. The court gave its verdict that by prosecuting and convicting Mr. Demons Turkey did not violate International Law. The court laid down the following principles:
On the basis of the aforesaid: principles and facts of the case the Permanent Court International Justice gave the verdict that by prosecuting and convicting Mr. Demons, Turkey did not violate International Law and in particular, Art. 15 of the Convention of Lausanne 1923.
Introduction:
The classical law of the sea no longer adequately reflects the present needs in international community. The first U.N.Conference on the Law of the Sea was held in 1958 at Geneva.
In this conference four conventions were adopted -
(1) Convention on the territorial sea and contiguous zone;
(2) Convention on the High Seas;
(3) Convention on Fishing and Conservation of Living Resources;
(4) Convention on the Continental Shelf. Since the first U.N. Conference failed to fix the breadth of the territorial sea, the second U.N. Conference was held at Geneva in 1960 but it could not achieve success.
After the two U.N. Conferences on the Law of the Sea, certain developments emerged which changed the situation. One of the most important of such developments was that rapid progress in science and technology made possible commercial exploitation of mineral resources at Greater depths of the Sea bed.
The U.N. Convention on the Law of the Sea, 1982 is a very comprehensive document covering almost every aspect of the law of the sea. On 16th November 1993 Guyana was the 60th State to have ratified the convention. The convention therefore came into force on 16th November 1994, i.e., one year after the deposition of 60th ratification. By May 7, 2002 as many as 138 States have ratified and acceded to the convention on the Law of the Sea, thus there is a worldwide acceptance of the U.N. Convention on the Law of the Sea, which is also considered as a Constitution of the Oceans.
International Sea -bed Authority:
As per agreement that has been reached so far Authority will comprise of the following organs:
The Assembly, Council and Secretariat shall be the principal organs of the Authority. The Enterprise will be established as an organ through which the Authority shall directly carry out activities in the Area. The Assembly, a policy making organ, shall consist of all the members of the Authority.
The Council shall consist of 36 members of the Authority elected by the Assembly. The council shall establish its two organs - An Economic Planning Commission; and A Technical Commission. The Secretariat shall comprise of a Secretary-General and such staff as the Authority may require. The Secretary-General shall be appointed by the Assembly upon the recommendation of the Council.
Establishment of International Tribunal for the Law of the Sea:
After coming into force of the U.N. Convention on the Law of the Sea on November 16, 1994 vigorous efforts were made for the establishment of the international Tribunal for the Law of the Sea. In August 1996, 21 judges of the Tribunal including Dr. P. Chandrasekhar Rao of India were elected on the basis of 'equitable geographical distribution'. The international Tribunal for the Law of the Sea was finally established on October 21, 1996. The jurisdiction of the Tribunal is not compulsory. It is optional and based on the consent of the states. The Tribunal comprises of a body of 21 members, elected from among the highest reputation of fairness and integrity and a recognized competence in the field of the Law of the Sea. In the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured.
Jurisdiction:
According to Art. 288 of the Convention on the Law of the Sea, 1982 the Tribunal shall have jurisdiction over any dispute concerning the interpretation or application of the Convention which is submitted to in accordance with Part XV of the Convention. The Tribunal shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of the Convention, which is submitted to it in accordance with the agreement.
Settlement of Disputes:
Part XV of the Convention which deals with the Settlement of Disputes may broadly be divided into two parts:
(a) General Provisions;
(b) Compulsory Provisions Entailing Binding Decisions.
As regards the General Provisions, Art. 279 imposes obligation upon States Parties to settle their disputes by peaceful means. The Convention also provides for procedures where no settlement has been reached by the Parties.
As regards compulsory procedures Entailing Binding Decisions, Art. 286 provides that any dispute concerning the interpretation or application of the convention shall, where no settlement has been reached by recourse to Sec. I, be submitted at the request of any part to the dispute to the Court or Tribunal having jurisdiction subject to certain limitations contained in Art. 297, 298 and 299.
Applicable Law:
The Tribunal shall decide all disputes and applications in accordance with Art. 293 of the U.N. Convention on the Law of the Sea. According to Art. 293 the Tribunal shall apply the convention and other rules of international law not incompatible with the Convention.
Maritime Belt or Territorial Waters:
The 1958 Geneva Convention on Territorial Waters and Contiguous Zone provided that the coastal state exercises sovereignty over that part of the sea which is called maritime or territorial waters. The coastal state exercises sovereignty not only over the territorial waters, but also over air - space above it. Art.2 of the U.N. Convention on the Law of the Sea, 1982 contains a similar provision.
India claimed territorial waters upto 3 miles upto the year 1956. In that year, India extended its territorial waters of 3 miles to 6 miles through a presidential Proclamation and later on to 12 miles in 1967. The controversy finally ended with the adoption of the U.N. Convention on the Law of the Sea, 1982. According to Art. 3 of the convention, breadth of territorial sea is 12 nautical miles measured from baselines.
Innocent Passages:
The right of foreign merchant vessels to have "innocent passage" through the territorial waters of a state is a well recognized principle of international law. The law is this connection was codified in the Geneva Convention on the territorial Sea and the Contiguous Zone, 1958. Section III of this convention comprising of Art. 14 to 23 deals with the right of innocent passage. Art.14 provides that ships of all states, whether coastal or not, shall enjoy the right of innocent passage through the territorial Sea - Passage means navigation through the territorial sea for the purpose either of traversing that without entering internal waters or for proceeding to internal waters, or of making for the High Seas from internal waters.
Passage includes stopping and anchoring but only in so far as the same are incidental to or are rendered necessary by force majored or by distress. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal state may make and publish in order to prevent these vessels from fishing in the territorial sea. Submarines are required to navigate on the surface and to show their flag.
Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal state in conformity with the convention and other rules of International Law and in particular, with such laws and regulations relating to transport and navigation.
Contiguous Zone:
Contiguous Zone is that part of the sea which beyond and adjacent to the territorial sea of the coastal state.
According to Art. 53 of the U.N. Convention on the Law of the Sea, 1982, in a Zone contiguous to its territorial sea, the coastal state may exercise the control necessary to -
(a) prevent infringement of its customs, fiscal, immigration or sanitary regulation within its territory or territorial sea;
(b) punish infringement of the above regulations committed within its territory or territorial Sea.
The contiguous may not extend beyond 24 miles from which the breadth of territorial Sea is measured. That is to say, it is 12 miles beyond the territorial Sea.
Continental Shelf:
The construction of the oceans and seas is such that as we proceed seaward they become more and more deep and a place from where sea becomes steepy. Around most continents there is a belt of fairly shallow sea; unusually less than 600 feet and this deepens only as one passes through se-ward from coast.
The sea-bed and sub-soil of this fringe of shallow sea which may be several hundred miles wide, is called the 'Continental Shelf'. The legal concept of continental shelf came into limelight since Truman Proclamation of 1945 wherein it was 'declared that the United States of America considered the resources of the shelf contiguous to the U.S.A as appurtenant to the United States and subject to its jurisdiction and control. It was, however, made clear that this was in no way to affect the character of the High Seas above the Shelf. Being encouraged by the Truman Proclamation certain other States such as Mexico, Argentina and Cuba made similar Proclamations.
Art. 1 of the Geneva Convention on the Continental Shelf, 1958, defined continental shelf in the following words: "The continental shelf is (a) the sea bed and sub-soil of the submarine areas adjacent to the coast but outside the area of territorial sea to depth of 200 meters or beyond that limit to where the depth of superjacent water admits all exploitation of natural resources of the said areas;
(b) To the sea-bed and sub-soil of similar submarine areas adjacent to the coast of island".
As a matter of fact, the definition of continental shelf noted above contains 3 main elements -
(a) Adjacency;
(b) Depth of sea;
(c) Exportability.
In the words of Prof. Friedmann, "The fatal flaw of Art. 1 of the Continental Shelf Convention is surely one of the most disastrous clauses ever inserted in a treaty of a vital importance to mankind".
Freedom of the High Seas
The concept of Freedom of open sea or high seas is very old. In the modern time it has assumed an added significance. According to Fenwick, open sea or high sea is the sea outside the territorial waters. In 1958 a Convention was adopted on the High Seas which is known as the Geneva Convention on the High Seas, 1958. Art. 1 of the said Convention provides, "The term 'High Seas' means the parts of the sea that are not included in the territorial sea or in the internal waters of a State".
Art. 2 of the 1958 Geneva Convention on the High Seas provide that the Freedom of the seas comprises inter alia, both for coastal and non-coastal States:
These freedoms and others which are recognized by the general principles of international law shall be exercised by all States with reasonable regard to the interests of other States.
The freedoms of high sea expressly enumerated in Art. 87(1) of the Convention is following:
(a) Freedom of navigation;
(b) Freedom of over flight;
(c) Freedom to lay submarine cables and pipelines;
(d) Freedom to construct artificial islands and other installations permitted under international law;
(e) Freedom of fishing;
(f) Freedom of scientific research.
Criticism of the Traditional Doctrine of the Freedom of the High Seas:
The traditional doctrine of the freedom of the high seas favoured the major maritime powers. With the emergence of large number of new states in last three decades, revolutionary changes have come in the international system. It has been aptly remarked, "The assumptions on which the freedom of the seas doctrine was based have proved to be incorrect; the interests which it protected and the force which supported it have all radically changed". Since the developing states of Asia, Africa and Latin America were very critical of the traditional doctrine of the freedom of the high seas, it became necessary to adapt the traditional doctrine to the present times and circumstances so as to accommodate the interests of developing and developed countries.
Right of Hot Pursuit:
An exception to the exclusive jurisdiction of the flag state over a vessel in the High Seas is the right of Hot Pursuit. Art. 111 of the U.N. Convention on the Law of the Sea, 1982 provides that hot pursuit of foreign ship may be undertaken when the competent authorities of the State have good reason to believe that the ship has violated the laws and regulations of that state. Such pursuit must be commenced when the foreign ship or one of its boats is within internal waters, the Archipelagic waters, the territorial sea or the contiguous zone of the pursuing state, and may only be continued outside the territorial sea or the contiguous zone of the pursuing state, if the pursuit has not been interrupted. The of the hot pursuit shall apply mutatis mutandis to violations in the exclusive zone or on the continental shelf, including safety zones around continental shelf installations; of the laws and regulations of the coastal states applicable in accordance with the convention to the exclusive economic zone or continental shelf, including such safety zones.
The right of pursuit ceases as soon as the ship pursued enters territorial sea of its own, or of a third state. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued as a mother ship is within the limits of the territorial sea or as the case may be, without the contiguous zone or the exclusive economic zone.
Finally, there is a provision for payment of compensation for any loss or damage caused where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit.
Meaning of the 'State Responsibility':
According to Starke, "The rules of international law as to State responsibility concern the circumstances in which and the principles whereby, the injured State becomes entitled to redress for the damage suffered".
The law relating to State responsibility is in developing State and probably it may be developed to a stage wherein States may be held responsible for the violations of international law and international crimes. The State responsibilities during the wars have been generally accepted in Art. 5 of Hague Convention, 1907. It provides that if a belligerent State violates rules of war, it shall be responsible for the payment of compensation. It shall also be responsible for all acts committed by persons forming part of its armed forces. The U.N. International Law Commission has started a few years ago the efforts to codify the rules governing State responsibility as a general and independent topic.
State Responsibility in different fields:
1) International delin1quency:
As pointed out by Prof. Oppenheim, 'every neglect of an international duty constitutes an international delinquency and the injured State can subject to its obligation of pacific settlement through reprisals or even war, compel the delinquent State to fulfil its international duties'.
Starke has explained the term "International Delinquency" in the following words: "In practice, most cases of responsibility, at least before international tribunals, arise out of wrongs alleged to have been committed by the State concerned. By wrong in this connection is meant the breach of some duty which rests on a State at International Law and which is not the breach of purely contractual obligation. To such wrongs, more frequently the term 'international delinquency' is applied. Most of cases that come under this head concern injuries suffered by citizens abroad.
Generally speaking, a person who goes to live in the territory of a foreign State must submit to its laws; but that is not to say that certain duties under international law in respect to the treatment of that person do no bind the State. Examples are the duty of the State to provide proper judicial remedies for damage suffered, and the duty to protect alien citizens form gratuitous personal injury by its officials or subjects".
2) State Responsibilities for the Acts of aliens:
It is generally agreed that aliens living in a State should be given same rights which are given to the citizens of that State. It is the responsibility of the State to protect the rights of aliens in the same way as they protect the rights of their own citizens.
State responsibilities towards aliens may be of following types:
(a) State responsibility for the acts of individuals:
If a citizen of a State caused damage or harm to an alien, that alien gets the right to file a suit for the compensation according to the law of that State.
(b) State responsibility for the acts of Mob Violence:
A State may be held responsible for the harm caused to the aliens by mob violence only when it has not made due diligence to prevent it. But this is a very uncertain and ambiguous principle because 'due diligence' to prevent mob violence depends upon the time fact and circumstances.
(c) The State responsibility for the acts of insurgents:
In this connection the general rule is that it is the responsibility of a State to try to prevent the violent acts of revolutionaries.
According to Fenwick, State responsibility for the acts of insurgents is different from State responsibility for the acts of mob violence. In his words, "The very existence of organized revolution raises a presumption of 'due diligence' on the part of the State for suppressing it since the Government had an immediate interest in such an open attack upon its authority". A brief reference may also be made here of Calvo Doctrine.
Clavo Doctrine:
It was propounded by Mr. K. Calvo of Argentina. In his view during civil war the State is not responsible for the losses suffered by alien persons because if the responsibility is accepted, big nations will get an excuse to intervene in the weaker States. Many States, such as, America and England do not accept this doctrine. They point out, since the revolt or insurrections are frequent is the States the presumption that the States made 'due diligence' becomes weak. As pointed out by Starke, "The object of such a clause is to ensure that legal disputes arising out of the contract shall be referred to the municipal courts of the State granting the concession or other right and to oust the jurisdiction of international arbitral tribunals or to prevent any appeal for diplomatic action to the national State of the company or individual enjoying the concession etc.
Further, his summaries his conclusions in respect of the Calvo clause in the following words:
(1) In so far such clause attempts to waive in general the sovereign right of a State to protect its citizens; it is to that extent void.
(2) It would be obviously improper for the individual to treat the State which he seeks redress as no inferior and untrustworthy country and to apply for his government's intervention without making any claim in the local court.
(3) Whenever such a stipulation purports to bind the claimant's government not to intervene in respect of a clear violation of international law, it is void.
Thus the Clavo clause is ineffective to bar the rights of States to protect their national abroad or to release States from their duty to protect foreigners on their territory.
3) State responsibility for the acts of governmental organs:
A State is responsible for the acts performed by its representatives or high officials towards alien persons. The State will be responsible only to the extent when the officials concerned act beyond their powers and jurisdiction.
4) State responsibility for contracts with foreigners:
As a matter of fact, the State is not responsible under international law if there is a breach of contract entered into by a State with aliens. However, the alien person may avail the local means available to him in the law of the State concerned.
5) Responsibility for the breach of treaty or contractual obligations:
State responsibility as a result of the breach of the treaty will depend upon the provisions of the treaty. If there is a breach of treaty obligations, the State concerned shall be responsible to pay the compensation.
6) State Responsibility in respect of Expropriation of Foreign Property:
There is a great controversy in regard to the expropriation of foreign property situated in a State. However, in the modern period, significant changes have taken place in this connection. Till the 19th century, if any State expropriated the foreign property it was considered to be the violation of international law making the said State liable for the same. But in the modern period, in view of the complete control of States over their Economic system and in consequence of the nationalization of different industries, it has become difficult to recognize such expropriation as the violation of international law. It may be noted here that the term 'Expropriation' includes nationalization and confiscation of property.
7) State Liability for Acts of Multinational Corporation:
There is lack of definite international law in respect of liability of transnational or multinational Corporations. The Charter of Economic Rights and Duties adopted by the General Assembly on 12th December 1974, recognizes the right of each State "to regulate and supervise the activities of transnational Corporations within its national jurisdiction and take measures to ensure that such activities comply with its laws, rules and regulations and conform to its economic and social policies.
According to Oppenheim has described 'State Succession' in the following words:- "A succession of international person occurs when one or more international persons take place of another international person, in consequence of certain changes in the latter's conditions".
The rule of State succession was incorporated from the Roman Law by Grotius. In Roman Law, when a person died his rights and duties were succeeded by his successors. This principle was applied by Grotius in international law also. Later on certain international treaties were entered into to develop the rules of State succession. The Law of State Succession is still developing. The United Nations Conference on Succession of States in respect of Treaties adopted on 23 August 1978 a convention known as Vienna Convention on Succession of States in Respect of Treaties.
Kinds of State Succession:
State Successions are two types -
(1) Universal Succession.
(2) Partial Succession.
(1) Universal Succession:
Universal succession takes place under the following circumstances:
(a) When a State is completely merged with another State; either through subjugation or voluntary merger;
(b) When a breaks into several parts and each part becomes a separate international person.
(2) Partial Succession:
Partial succession takes place: -
(a) When a part of the State revolts and after achieving freedom becomes a separate international person. The breaking away of Bangladesh and becoming a separate international person is a glaring example of partial succession;
(b) When a part of a State is ceded to another State;
(c) When a sovereign State loses part of its independence by joining the federal State or when a State accepts the suzerainty or becomes a protectorate of another State.
Rights and duties arising out of State Succession:
No succession takes place in respect of political rights and duties, hence succeeding State is not bound by the political treaties of the former State such as treaties of peace or neutrality.
A genuine succession takes place in respect of local rights and duties, such as land, rivers, roads, railways, etc.
Art. 25 of the Vienna Convention on State Property, Archives and Debts, 1983 lay emphasis on preserving the integral character of groups of State archives of the Predecessor State. Art. 28 of the convention provides that the passing or appropriate reproduction of State archives of the predecessor State to a newly independent successor State should be determined by agreement in such a manner that "each of those States can benefit as widely and equitably as possible" from those archives.
Art. 36 of the Vienna Convention on State Property Archives and Debts, 1983 provides that the succession of a State does not as such affect the rights and obligations of creditors.
Majority of jurists are of the view that the succeeding States should be bound by the contract entered into by the extinct State.
By concessionary contracts we mean the contracts through which certain concession such as digging of mines, laying of railways, etc. are granted through contracts.
So far as the laws of the former State are concerned, civil law continues until it is changed by the succeeding State.
No succession takes place in respect of unliquidated damages for torts. But the succeeding State will bound if the former State had accepted or had decided to pay compensation.
The nationals for the former State loose their nationality at the extinction of the State and become the nationals of the new international person. Generally such nationals are given a certain period within which they have to decide whether they will continue their loyalty towards the former state or will accept the citizenship of the succeeding State.
UNIT - IV
State and Individual - Extradition, Asylum and
Nationality; the agents of international business;
Diplomatic envoys, consuls and other representatives;
The law and practice as to treaties.
EXTRADITION
Each State exercises complete jurisdiction over all the persons within its territory. But a difficult problem arises when a person after committing crime runs away to another country. In such a situation, peace and order can be maintained only when there is international co-operation among the States. There is, therefore, a social need to punish such criminals. In order to fulfil this social necessity, the principle of extradition has been recognized.
As pointed out by Edward Collins: "The inability of a State to exercise its jurisdiction within the territory of another State would seriously undermine the maintenance of law and order if there were no co-operation in the administration of justice. The awareness among national decision- makers of the Social necessity of jurisdiction co - operation is illustrated by the wide spread practice of returning a person who is accused or who has been convicted of a crime to the State in which the crime was committed".
Meaning and definition of the term Extradition:
In the words of Oppenheim, "extradition is the delivery of an accused or a convicted individual to the State on whose territory the alleged to have committed, or to have convicted of a crime by a State on whose territory the alleged criminal happens to be for the time being".
As pointed out earlier, under International Law extradition is mostly a matter of bilateral treaties. There is no general duty of States in respect of extradition of criminals.
Non - extradition of Political Crimes:
It is a well established principle of international law that persons accused of political crime are not extradited although sometimes a problem arises as to what is a 'political crime'. The practice of non - extradition of political crime began with the French Revolution of 1789. Later on, other states followed the practice. In the modern period all the States recognize this principle.
A leading case of non-extradition of political crime is Re Castioni. In this case extradition of a man named Castioni was demanded by the Swiss Government. Castioni was accused of murdering a Member of the State Council of the Canton of Taconite. Political discontent was going on in the said Canton for some time. An armed mob attacked the Municipal Palace and killed a member of the State Council. There evidence that the shot had been fired by Casstioni. But the Queen's Bench of England held that Castioni had committed a political crime and therefore, he could not be extradited.
In another case Re Munier, the accused was an anarchist and was charged with causing two explosions in a Paris Caffe and some barracks. After committing the crime he fled away to England. The French Government requested for the extradition. The accused contended that he cannot be extradited because he was accused of a political crime. In this case the accused did not belong to any particular political party. He was anarchist and was opposed to all sorts of Governments. The Court ordered for his extradition and held that this was not a political crime. The Court also tried to explain the question as to what is a 'political crime'.
Some essential conditions for Extradition or Restriction on Surrender:
(1) As pointed out earlier it is well established principle that person accused of political crime are not extradited although there is controversy as to what is a political crime.
(2) Persons accused of military crimes are also not extradited.
(3) Persons accused of religious crimes are also not extradited.
(4) Rule of Specialty:
When an accused is extradited then the receiving State must try him for that specific offence for which his extradition was sought for.
(5) Double Criminality:
The specific offence for which his extradition is sought for, must be an offence in the State requesting for extradition and the State extradited accused. This is called the rule of double criminality.
(6) Prima facie case:
There should be sufficient evidence for the crimes for which extradition is requested. It should prima facie appear that the accused has committed the crime.
(7) The conditions mentioned in the extradition treaty and other formalities must also comply with.
(8) When a person is accused of having committed a crime and his extradition is sought for, it is not necessary that the accused must be present in the State where the alleged crime was committed.
(9) Bilateral Treaty:
Extradition is generally a matter of bilateral treaty. It has been held that there must be a 'formal treaty' not simply an agreement or notification.
Extradition Treaty between India and Germany:
India and Germany signed an extradition treaty in Berlin on 27th June, 2001. The treaty will enable the two countries to extradite a person wanted in 'extraditable offences". Under the treaty "extraditable offences" are the offences which are punishable under the laws of both the States and are punishable by a term of imprisonment of not less than one year.
Extradition Treaty between India and Hongkong:
An extradition treaty between India and Hongkong was signed in June 1997. The treaty was signed before a few days of transfer of sovereignty on Hongkong from Britain to China. Since China has declared that it will respect all treaties entered into before Hongkong became a part of China. It is hoped that Hongkong will abide by the treaty.
Meaning and Definition:
By the term 'Asylum' we generally mean the shelter and active protection which is extended to a political refugee from another State by a State which admits him or his request.
As pointed out by Starke, Asylum involves two elements:
(1) As shelter which is more than a temporary refuge;
(2) A degree of active protection on the part of the authorities which have control over the territory of Asylum.
Right to Asylum:
According to Art. 14 of the Universal Declaration of Human Rights(UDHR), "Everyone has a right to seek and enjoy in other countries asylum from prosecution". It may, however, be noted that the Declaration simply recognizes the right of asylum, it does not grant right to receive asylum. Thus although everyone has a right to seek asylum yet there is no corresponding duty of State to grant asylum.
As pointed out by Prof. Oppenheim: "The so-called right of asylum is nothing but the competence of every State to allow a prosecuted alien to enter and to remain on its territory under its protection and thereby to grant asylum to him. Such fugitive enjoys the hospitality of the State which grants him asylum; but it might be necessary to place him under surveillance or even to intern him at some place in the interest of the State which is seeking him to prosecute him. For it is the duty of every State to prevent individuals living in its territory form endangering the safety of another State by organizing-hostile or by preparing common crime against its head, members of its government or its property".
Types of Asylum:
Asylum may be classified into two categories:
(1) Territorial Asylum;
(2) Extra - Territorial Asylum.
I. Territorial Asylum:
Territorial asylum is granted by a State in its own territory and is considered as an attribute of territorial sovereignty of the State which grants asylum.
Example of Dalai Lama and his Tibettan followers: The grant of asylum to Dalai Lama and his followers was an indication of the exercise of territorial sovereignty by India. India as a sovereign State was within her girths to grant asylum to Dalai Lama and his followers in the territory of India.
Example of influx of refugees from Bangladesh: As pointed out earlier, each sovereign State can admit or grant asylum to any individual within its territory. India was within her right to grant asylum to millions of refugees from East Pakistan (now Bangladesh) who fled from their native land due to repressive policies followed by and ruthless prosecution caused by the military regime of General Yahya Khan.
II. Extra - territorial or Diplomatic asylum:
A state may also grant asylum in its Embassy in foreign countries or in its public vessels.
Extra - territorial or Diplomatic asylum may be classified into following categories:
(a) Asylum in foreign Legation or Diplomatic Embassies:
Since granting of diplomatic asylum involves a derogation from the sovereignty of the State international law ordinarily does not recognize a general right of a head of mission to grant asylum in the premises of legation.
A leading case on asylum in foreign legations is Haya Dela Torra case.
The facts of this case: Haya Dela Torra, a Peruvian citizen, was charged with rebellion. Columbia granted him Asylum, in her embassy in Peru. After granting asylum, Ambassdor of Columbia requested Peruvian Government to provide facility to enable Columbia to take Haya Dela Torra outside Peru. This request was made on the basis of Bolivian Agreement, 1911 and Pan American Havana Covention on Asylum, 1928. Columbia contended that asylum was granted because Haya Dela Torra was accused of a political crime. Peru did not agree with this contention and rejected this request. The matter was referred to the International Court of Justice.
The court held that "Columbia as the State granting asylum is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru". However, the court held that Peru had failed to prove that Haya Dela Torra was accused of an ordinary crime, and not a political crime. The court added that asylum to Haya Dela Torra had been irregularly granted because three months had passed after the suppression of the military rebellion which clearly showed that the urgency prescribed by Havana Convention as a condition for the granting of asylum had ceased to exist. But since Haya Dela Torra was a political offender the Court held that despite the fact that asylum had been irregularly granted, Columbia was not bound to surrender Haya Dela Torra.
The International Court of Justice held: "to infer an obligation to surresnder a person to whom asylum has been irregularly granted would be to disregard both the rule of the extra legal factors involved in the development of asylum in Latin America and the spirit of Havana Convention".
(b) Asylum in Consular premises:
The above principles also apply in case of the grant of asylum in consular premises.
(c) Asylum in the premises of International Institution:
Generally speaking international law does not recognize any rule regarding the grant of asylum in the premises of International Institution.
(d) Asylum in War Ships:
There is a controversy in regard to the grant of asylum in War Ships. Some writers are of the view that asylum can granted in war ships in the territorial waters of a Coastal State. On the other hand, some writers have expressed the view that such fugitive should be immediately handed over to the local police. But it is conceded that asylum may be granted to political offenders.
(e) Asylum in Merchant Vessels:
Since merchant vessels do not enjoy immunity from local jurisdiction, they are not competent to grant asylum to local offenders.
Nationality is the status of natural person who is attached to a State by the tie of allegiance. In the words of Hyde, "Nationality refers to the relationship between a State and an individual which is such that the former may with reason regard the latter as owing allegiance to itself.
According to Starke, nationality may be defined, "as the status of membership of the collectivity of individuals whose acts, decisions and policy are vouchasafed through the legal conception of the State representing those individuals".
According to Fenwick defines the term 'Nationality' in the following words: "Nationality may be defined as the bound which unites a person to a given state which constitutes his membership in the particular stage; which given him a claim to the protection of that State and which subjects him to the obligation created by the laws of that State".
It is clear from the above definitions that the basis of nationality is the membership of an independent community.
Development of the Law of Nationality:
The rules of nationality are determined by State laws. But due to lack of uniformity in State laws in regard to nationality, many difficulties were experienced. Consequently difficult problems of statelessness, double nationality, etc. arose. In Hague Conference of 1930, an endeavour was made to end the conflicts arising out of divergent State laws in respect of nationality.
International importance of nationality:
Nationality is often determined by State Laws. As pointed out by Oppenheim, nationality is the link through which an individual can enjoy the benefit of International Law.
As pointed out by Starke, the laws relating to nationality have following importance under International Law:
(a) The protection of rights of diplomatic agents is in consequence of nationality.
(b) If a State does not prevent offences of its nationals or allows them to commit such harmful acts as might affect other States, then that State shall be responsible for the acts committed by such a person.
(c) Ordinarily, states do not refuse to take back the persons of their nationality. By nationality we mean loyalty towards a particular State.
(d) Yet another effect of nationality is that the State can refuse to extradite its own nationals.
(e) According to the practice of large number of States during war, enemy character is determined on the basis of nationality.
(f) According to theory of extra - territoriality, states exercise jurisdiction over civil and criminal matters over the persons of their nationality.
Modes of Acquisition and Loss of Nationality:
Modes of Acquisition of Nationality:
Following are the modes of acquisition of nationality:
A person acquires nationality of the State where he is born. He also acquires the nationality of his parents at the time of his birth.
Nationality may also be acquired by naturalization. When a person living in foreign State acquires the citizenship of that State then it is said to be acquired nationality through naturalization.
In Nottebohm case, the International Court of Justice decided that in respect of grant of nationality there is no obligation of the states if that man has no relationship with the State of Naturalization.
Nottebohm Case: Born in 1881 in Germany, Nottebohm went to Gautemala in 1905. But he continued his business relations with Germany and went to Germany several times. After 1931, he visited his brother in Liechtenstein. In 1938, he left Gautemala. After reaching Leichtenstein, he through his attorney, submitted an application for naturalization as a citizen of Leichtenstein, and the same was granted in October, 1939.
He returned to Gautemala his change of nationality was enrolled on the Register of Aliens. As a result of war measures, his property was taken in 1943 and he was arrested and transferred to the U.S.A. After being refused re - admission to Gautemala in 1946, Nottebohm went to Leichtenstein. In 1951 Leichtenstein filed a case against Gautemala in the International Court of Justice. The World Court had to decide whether by the fact of grant of nationality by naturalization to Nottebohm by Leichtenstein would directly entail an obligation on the part of Gautemala to recognize Leichtenstein's right to exercise its protection over Nottebohm.
Propounding the principle of 'effective nationality' the World Court observed:
"It must ascertain whether the factual connection between Nottebohm and Leichtenstein in the period preceding contemporaneous with and following his naturalization appears to be sufficiently close, so preponderant in relation to any connection which may have existed between him and any other States that it is possible connection which may have existed between him and any other States that it is possible to regard the nationality conferred upon him real and effective, as the exact judicial expression of social fact, of a connection which existed previously or came into existence thereafter".
The Court noted that Gautemala was the main centre of Nottebohm's business and he remained there for a many as 34 years. Even after his removal in 1943. As a result of war measures, Gautemala remained main seat of his business. As the time of his application for naturalization, he had neither any settled abode nor resided in that country for along time. Nor did he intend to transfer his business activities to Leichtenstein. Applying the above principle, the International Court of Justice held, by a majority of eleven votes to three, that Nottebohm did not enjoy the nationality of Leichtenstein.
Sometimes a person may lose his nationality because of certain reasons. Subsequently, he may resume his nationality after fulfilling certain conditions.
When a State is defeated or conquered then all the citizens acquire the nationality of the conquering State.
When a State has been ceded in another State, then the people of the territory which has been ceded acquire the nationality of the State in which territory has been merged.
Loss of Nationality:
Following are the modes of loss of nationality:
(1) By Release:
In some States law provides that the citizens may lose the nationality by release. In the loss of nationality by release it is necessary to submit an application for the same. If the application is accepted, the person concerned is released from the nationality of the State concerned.
(2) By Deprivation:
In certain States law provides that if the nationals of that State without seeking prior permission of the government obtains employment in another State, then he may be deprived of his nationality.
(3) Long Residence Abroad:
Yet another mode of loss of nationality is the long residence abroad. The State laws of many States contain provisions in this connection. Thus, if a person resides for a long period abroad then his nationality ends.
(4) By Renunciation:
A person may also renounce his nationality. The need for renunciation arises when a person acquires nationality of more than one State. In such a condition he has to make a choice as to of which country he will remain the national.
(5) Substitution:
Some States provide for the substitution of nationality. According to this principle, a person may get nationality of a State in place of the nationality of another State. This is called nationality by substitution whereby he loses the nationality of one State and acquires the nationality of another State.
International Law relating to diplomatic agents may be cited in this connection. Consequent on a development over some hundred of years the Institution of Diplomatic Representatives has come to be the principal machinery by which the intercourse between States in conducted. The permanent appointment of diplomatic envoys began from the 17th century. The rights, duties, immunities and privileges etc., of the diplomatic agents in 18th and 19th centuries were mostly in the form of customary rules of International Law.
Classification of Diplomatic Agents:
The diplomatic agents have been classified according to their status and functions. The first classification of diplomatic agent was made in the congress of Vienna, 1815. The Congress of Vienna, 1815, classified the diplomatic agents under following categories:
(1) Ambassadors and Legates:
Ambassadors and Legates are the diplomatic agents of first category. They are the representatiatives of the completely Sovereign States. They are either appointed as Ambassadors or permanent Representatives of their respective countries in the United Nations. The representatiatives appointed by Pope are called Legates.
(2) Ministers Pleni-potentiary and Envoys Extraordinary:
Minister Pleni-potentiary and Envoys Extraordinary are the diplomatic agents of second category and as compared to the diplomatic agents of the first category; they enjoy less privilege and immunities.
(3) Charge-d Affaires:
Charge-d Affaires are the diplomatic agents of the last category. The main reason for this is that they are not appointed by the head of the State. They are appointed by the Foreign Ministers of States. In rights and status they are considered below the Minister Resident.
Functions of Diplomatic Agents:
According to Art. 3 of Vienna Convention, the functions of a Diplomatic mission consist inter alia in:
(a) Representing the sending State in the receiving State.
(b) Protecting in the receiving State the interests of the sending State and of its nationals, within limits permitted by international law.
(c) Negotiating with the government of the receiving State.
(d) Ascertainment by all lawful means conditions and developments in the receiving State; and reporting thereon to the government of the sending State.
(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic cultural and scientific relations.
Immunities and Privileges of Diplomatic Agents:
One of the pillars of modern International law is the diplomatic immunities of the Ambassadors.
It is a well - recognized principle of international law that the person to Envoys is regarded inviolable. It may be noted here that international law relating to inviolability of the persons of envoys was recognized in India from a very early time. The right of inviolability extends to the person of diplomatic officials as well as diplomatic agents, their premises, archives, papers, documents and correspondence, and the receiving State must take appropriate steps to prevent any attack on their person freedom of dignity as violation of any fraction of this right constitutes a serious breach.
The diplomatic agents also enjoy immunities from criminal jurisdiction of Courts. However, it is generally believed that they will not violate the provisions of the law of the State where they are appointed. Beside this it may also be noted that there are conditions under which the diplomatic agents may lost their immunities.
The diplomatic agents enjoy immunities from the jurisdiction civil courts. Suits for recovery of debt or breach of contract cannot be filed against diplomatic agents. However, there are certain exceptions to this rule. Art. 31 of Vienna Convention which recognizes this immunity also provides three exceptions.
That is to say the rules of immunity from civil and administrative jurisdiction will not apply in the following three cases:
(a) Real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
Yet another immunity enjoyed by the diplomatic agents is regarding their residence. Ordinarily, their residences are regarded inviolable. This immunity has been reaffirmed by the International Court of Justice in case concerning the United States Diplomatic and Consular Staff in Tehran which has been discussed earlier. If a person is wanted by police and he is not enjoying any immunity of arrest then the proper course is that the diplomatic agents should hand over such person to the police.
Diplomatic agents enjoy the immunity from being presented as a witness in the court. They cannot be compelled to come to the court and give evidence in a case howsoever grave the case may be. But if any diplomatic agent himself waives this immunity then he may personally present himself and give evidence. In that case he will be deemed to be within the jurisdiction of the court for it will be considered that he had waived his immunity in this connection.
Under International Law the diplomatic agents are immune from the payment of taxes, etc. These immunities are incorporated in Art. 34 and 36 of the Vienna Convention on Diplomatic Relations, 1961.
Art. 34 provides that a diplomatic agent shall be exempt from all dues and taxes, personal or real national, regional or municipal, except,
(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(c) estate, succession or inheritance duties, levied by the receiving State, subject to the provisions of para 4 of Art. 39;
(d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;
(e) charges levied for specific services rendred; registration, Court or record fees, mortgages dues and stamp duty, with respect to immovable property, subject of the provisions of Art. 23.
The diplomatic agents are immune from the police rules of the States which they are appointed. However, by courtesy and for the sake of good relations with the receiving State, they generally follow such rules.
The diplomatic agents enjoy right to worship and no interference can be made in this respect. They are free to follow any religion or perform the religious rituals, ceremonies, etc. in their own way.
The diplomatic agents have right to exercise control and jurisdiction over their officers and families.
This new right has for the first time been introduced in Art. 26 of the Vienna Convention on Diplomatic Relations 1961. Art. 26 provides that diplomatic agents can travel in the territory of the receiving State subject, of course, to the condition that they cannot go to the prohibited places or the places which are important form the point of view of the security of the receiving State.
This freedom has been conferred upon by Art. 27 of the Vienna Convention on the Diplomatic Relations, 1961. This article provides that they have freedom to communicate with their home state in connection with their functions and duties.
Diplomatic agents are also exempt form local and military obligations.
According to Art. 33 a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
Duties of Diplomatic Agents etc.
1. Duty to respect laws and regulations of the receiving state:
According to the Vienna Convention on Diplomatic Relations, 1961, without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state.
2. Duty not to interfere in the internal Affairs of the State:
They have a duty not to interference in the internal affairs of the State.
3. Official business to be conducted with or through the Ministry of Foreign Affairs of Receiving State or such other Ministry as may be agreed:
All official business with the receiving state entrusted to the mission by the sending state shall be conducted with or through the ministry for Foreign Affairs of the receiving state or such ministry as may be agreed.
4. Premises of Mission not to be used in any matter incompatible with the function of the Mission:
Art. 41 paragraph 3 provides, the premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the Vienna Convention, 1961 or by other rules of general international law or by special agreements in force between the sending and the receiving state.
5. Diplomatic Agent not to practice for personal profit any professional or commercial activity:
According to Art. 42 of the Vienna Convention, a diplomatic agent shall not in the receiving state practice for personal profit any professional or commercial activity.
Termination of Diplomatic Mission:
A Diplomatic Mission may be terminated through any of the following ways:
(a) Recall of Envoy:
If the appointing State recalls the envoy, the diplomatic mission comes to an end. Such a step is taken only when relations between the States deteriorate and there are very remote chances of their improving
.
(b) Notification in regard to the end of Envoys functions.
(c) On the request of the receiving State.
(d) By delivery of passport.
(e) Persona non-gratia:
The receiving State is entitled to declare at any time that a diplomatic agent has become persona non-gratia i,e, undesirable person.
(f) End of the object of mission:
The diplomatic mission comes to an end when the object of the mission has been achieved.
(g) Expiration of Letter of Credence:
When a diplomatic agent has been appointed for a fixed period then his mission comes to an end after the expiration of that fixed period.
In addition to the above conditions and circumstances diplomatic mission may also end on account of the following reasons:
(1) By death.
(2) Removal from post.
(3) Breaking of diplomatic relations.
(4) Constitutional changes.
(5) Revolutionary changes in Government.
(6) End of the work of mission by some Conference.
(7) War.
(8) Changes in the post of diplomatic agent.
Can a State refuse to accept a Diplomatic Agent?
The receiving State may refuse to accept a diplomatic agent on the following grounds:
(a) If the appointment of a particular person as diplomatic agent in a particular State is harmful for the receiving State.
(b) If the diplomatic agent has by his declaration or conduct done some enemical thing.
(c) Yet another reason for the refusal of the acceptance of a particular person as a diplomatic agent is his being a citizen of the receiving State.
(d) If he is not acceptable to the receiving State as provided under Art. 9 as stated above.
CONSULS
Consuls are the representatives of their States but they are not deemed to be diplomatic agent. The function of these Consuls is generally to look after the commercial and trade interests of their countries. Since their main function is to look after the commercial interests of their countries, they are certainly treated to be far below in status than the diplomatic agents. But these consuls perform very important functions so far as trade and commerce between States are concerned.
In the modern period, the importance of trade and commerce is constantly increasing because of the interdependence of the States and because of the specialization of certain States in certain goods and things. The activities of the Consuls have increased manifold during the last 50 years. It was, therefore, thought desirable to modify the law relating to Consuls.
A convention was, therefore, adopted at Vienna on 24th April, 1963. In this convention it has been made clear that the matters, in which there is no express provision in the convention, will continue to be determined by the customary rules of International Law. Thus at present the bulk of international law relating to Consuls has been incorporated in Vienna Convention, 1963 and the remaining is still in the form of customs.
Classification of Consuls:
Consul-General is of the first category of Consuls and is generally appointed in main commercial cities and generally heads the Consul office.
Consuls occupy the second place, that is, below Consul - General and are either appointed at small cities or they assist the work of Consul-General.
Vice Consuls are below the Consuls and in some States they are appointed by Consul-General.
They are of the last category and are appointed either by Consul-General or in some States even by Consul.
The Consuls are often appointed by the head of the
States and the receiving
State accepts them by issuing a "Letter of Permission", namely 'Exequator'.
Functions of Consuls:
Following are the four functions of Consuls:
Rights and immunities of Consuls:
As pointed out earlier, Consuls are not regarded as diplomatic agents hence they do not enjoy those immunities and privileges which are enjoyed by the diplomatic agents. But ordinarily they are conferred upon special immunities and privileges by bilateral treaty which generally grants them immunity from the jurisdiction of the local courts. It is also generally agreed that they perform the functions on behalf of their States and therefore the local courts cannot proceed against them unless and until they seek prior permission from the Government. Hence, it is clear that although the Consuls are as a matter of right not entitled to enjoy those immunities and privileges which the diplomatic agents enjoy, yet by bilateral treaties and on the reciprocal basis, they are conferred upon almost the similar privileges and immunities.
Definition and meaning of the term "International Treaties":
In the modern period International treaties have been the first and foremost source of International Law. International treaties occupy the same significant position in the field of International Law as the legislation occupies in the Municipal Law.
In the view of Prof. Oppensheim, "International Treaties are agreements of a contractual character between States or Organizations of States creating legal rights and treaties".
According to Prof. Schwarzenberger, "Treaties are agreements between subjects of international law creating a binding obligation in International Law".
According to Starke, "in nearly all the cases the object of the treaty is to impose binding obligations on the States who are parties to it".
The term "treaty" has also been defined in the Vienna Convention on the Law of Treaties, 1969. Art. 2(1) (a) of the Convention defines treaty as "an International agreements concluded between States in written form and governed by International Law".
Vienna Convention on the Law of Treaties, 1969:
In view of the significance of the Law of Treaties, the International Law Commission decided in 1945 to attempt its codification in Draft Convention on the Law of Treaties. The Commission completed its work in 1966. On 23rd May, 1969, the United Nations Conference on the Law of Treaties adopted the Vienna Convention on the Law of Treaties. As on 18th April, 2006, 105 States have ratified the Convention. As remarked by I.M. Sinclair, "The Convention without question, a major works of codification of progressive development comparable in most to the Geneva Convention on the Law of Sea and augurs well for the movements towards the progressive development of International Law and codification".
Classification of Treaties:
McNair has classified the treaties under the following categories:
(1) Treaties having the character of conveyances;
(2) Treaty Contracts;
(3) Law - making Treaties;
(4) Other treaties.
The famous jurist Vattel has also classified treaties into four categories. But Prof. Oppenheim, has classified treaties into the two categories:
(1) Law - Making treaties;
(2) The Treaties for their purposes.
Various modes by which a State may express its consent to be bound by a treaty:
The consent of a State to be bound by a treaty may be expressed by following means:-
The consent of a State to be bound by a treaty is expressed by the signature of its representative when;
(a) The treaty provides that the signature shall have that effect;
(b) It is otherwise established that the negotiating states were agreed that signatures should have that effect;
(c) The intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.
The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:
(a) The instruments provide that their exchange shall have that effect;
(b) It is otherwise established that those States were agreed that the exchange of instruments should have that
effect.
The consent of a state to be bound is expressed by ratification when:
(a) The treaty so provides for such consent to be expressed by means of ratification;
(b) It is otherwise established that the negotiating State were agreed that ratification should be required;
(c) The representative of the State has signed the treaty subject to ratification;
(d) The intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative or was expressed during the negotiation.
The consent of a State to be bound by a treaty is expressed by accession when:
(a) The treaty provides that such consent may be expressed by that State by means of accession;
(b) It is otherwise established that negotiating States were agreed that such consent may be expressed by means of
accession;
(c) All the parties have subsequently agreed that such consent may be expressed by that State by means of
accession.
In addition to the above means, the consent of a State to be bound by a treaty may also be expressed by any other means if so agreed. But such consent will be effective only if it is made clear to which of the provisions the consent relates.
Formation of Treaties:
Following are the main steps in the formation of treaty:
(1) Accrediting of persons on behalf of contracting parties:
The first step in the formation of treaty is the accrediting of persons on behalf of the contracting parties. States authorize some representatives to represent them for the negotiation, adoption and signature, etc. of a treaty.
(2) Negotiation and adoption:
The accredited persons of contracting parties enter into negotiations for the adoption of the treaty. After the matters are settled, the treaty is adopted.
(3) Signatures:
After negotiation, next important step is the signature of the accredited representatives of the contracting parties. The authorized representatives of the State parties sign the treaty on behalf of their States.
(4) Ratification:
Ratification is a very important step in the formation of a treaty. Ordinarily, unless and until a treaty is ratified it does not bind the States concerned.
(5) Accession or Adhesion:
The practice of the States shows that those States which have not signed the treaties may also accept it later on. This is called ccession. A treaty becomes a law only after it has been ratified by the prescribed number of State parties.
(6) Entry into force:
The entry into force depends upon the provisions of the treaty. Some treaties enter into force immediately after the signature. But the treaty in which ratification is necessary enters into force only after they have been ratified by the prescribed number of State parties.
(7) Registration and Publication:
After a treaty comes into force its registration and publication are also ordinarily considered essential. Art. 102 of the U. N. Charter provide that the registration and publication of every international treaty entered into by the members is essential.
(8) Application and Enforcement:
The last step of the formation of treaty is its application and enforcement. After a treaty is ratified, published and registered, it is applied and enforced.
Interpretation of Treaties:
Following are the general principles of interpretation of treaties:
In the first instance, the words and phrases are considered according to their plain and natural meaning. This is called grammatical interpretation of treaty.
In case the words and phrases are ambiguous, they are considered keeping in view the general object of the treaty and its context.
It is a general principle of law of the treaties that treaties should be interpreted so as to give reasonable and consistent meaning of the phrases and words.
Yet another general principle of the law of treaties is that the treaties are interpreted in such a way as may prove to be most effective and useful.
There is a controversy in regard to the recourse of extrinsic material. International Law Commission proposed that resort may be had to extrinsic material for interpretation of the treaty.
Termination of Treaties:
Treaties may be terminated by
(a) Operation of law;
(b) By act of the State parties.
By operation of Law:
Termination of treaties by operation of law may be made in the following cases:
(a) Extinction of either party to a bilateral treaty:
Extinction of either party to bilateral treaty may amount to the termination of the treaty.
(b) A material breach of bilateral treaty:
A material breach of a bilateral treaty by one party entitles the other party to terminate treaty.
(c) Impossibility of performance:
The impossibility of the performance of a treaty also is a valid ground for the termination of treaty. This provision is contained in Article 61 of the Vienna Convention on Law of Treaties, 1969.
(d) Rebus sic stantibus:
Rebus sic stantibus is also a ground for the termination of treaty. The maxim rebus sic stantibus means that when the fundamental circumstances under which the treaty.
(e) Expiration of fixed term:
If the treaty has been concluded for a fixed period, the expiration of the fixed term will automatically terminate the treaty.
(f) Successive Denunciation:
Successive denunciation may also lead to the termination of a treaty. The provision relating to this is contained in Art. 55 of the Vienna Convention on the Law of Treaties, 1969.
(g) Jus Cogens of Emergence of new Peremptory Norm of General International Law:
According to Art. 64 of the Vienna Convention, if a new peremptory norm of general International Law emerges any existing treaty which is in conflict with that norm become void and terminates.
UNIT - V
The United Nations Organization - Principal organs
And their functions; World Trade Organization -
Main features; International Labour Organization.
After the First World War the League of Nations was established but is failed to prevent the Second World War. The Second World War once again compelled the nations of the word to endeavour to establish an international organization which could prevent future war and maintain peace and security in the world. During the Second World War itself the great powers had started making efforts in this direction. Their efforts led to the holding of the San Francisco Conference in which the United Nations Charter was adopted and signed by 51 nations of the world. After the Charter was ratified by the prescribed number of states, it came into force on October 24, 1945. Thus the United Nations was finally established. It may, however, be noted that it was the untiring efforts for a number of years which led to the establishment of the United Nations.
The more important factors and efforts which led to the establishment of the United Nations may be briefly mentioned below:-
(1) The Declaration of St. James Palace (June 12, 1941)
(2) The Atlantic Charter (Aug. 14, 1941)
(3) The United Nations Declaration (January 1, 1942)
(4) Moscow Declaration (October 30, 1943)
(5) The Tehran Conference (December 1, 1943)
(6) Dumbarton Oaks Conference(1944)
(7) The Yalta Conference (Feb. 11, 1945)
(8) San Francisco Conference (June 25, 1945)
Preamble of the United Nations Charter:
The Preamble indicates that the Charter of the U.N. is born as a result of the experiences of a devastating war and that it holds out hope for a lasting peace based on recognition of fundamental human rights which have been the causalities of war, on a recognition of sovereign equality of all States and no better economic and social conditions for the millions who have been victims of the oppression and exploitation. It is significant to note that as compared to the world, "The High contracting parties" used in the covenant of the League of Nations, the Charter uses the words, "We the people of the United Nations".
In the view of Schuman the use of these words in the Charter is misleading because "those who drafter it spoke for governments, not people and established not a federation of peoples, but a league of States. Fulfillment of hopes of its founders required continuing co-operation among great powers. With the advent of 'cold war' these hopes faded".
Purposes of United Nations:
The purposes of the United Nations are mentioned in Art. 1 of the Charter. They are -
(a) To maintain International Peace and Security:
The most important purpose of the United Nations is to maintain international peace and security. Art. 1 provides that one of the purposes of the United Nations is to "maintain international peace and security' and to that end, 'to take effective and collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of peace and to bring about by peaceful means and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situation which may lead to a breach of peace.
(b) To Develop Friendly Relations among Nations:
Yet another purpose of the United Nations is to develop friendly relations among nations on respect of the principles of equal rights and self-determination if peoples and to take other appropriate measures to strengthen universal peace.
(c) International Co - operation in Solving International Problems of Social, Cultural and Humanitarian character:
The third purpose of the United Nations is to achieve international co-operation in solving international problems of economic, social, cultural and humanitarian character and promoting and encouraging respect of human rights and fundamental freedom for all without distinction as to race, sex, language or religion.
(d) To make the United Nations a centre for the attainment of above common ends:
The last purpose of the United Nations is to make it a centre for harmonizing the actions of the nations in the attainment of the above mentioned ends.
Principles of the United Nations:
Art. 2 of the United Nations describe the principles of the United Nations and provide that the organization and its members, in pursuit of the purposes described in Art. 1, shall act in accordance with the following principles:
The first principle of the United Nations is that the organization is based on the principle of sovereign equality of all members. Thus in the eye of law all members are equal.
The second principle of the United Nations is that all members, in order to ensure to all of them the rights and benefits resulting from the membership shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
According to the third principle of the United Nations all members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.
The fourth principle of the United Nations is that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the purposes of the United Nations.
The fifth principle of the United Nations is that all members shall give the United Nations every assistance in common action it takes in accordance with the present Charter and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
Seventh and last principle of the United Nations prohibits the United Nations to intervene in the domestic affairs of a member State. It provides that nothing contained in the present Charter shall authorize the United Nations to intervene in the matter which are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters of settlement under the present Charter.
Membership:
Charter of the United Nations provides for two types of members,
a) Original Members;
b) States admitted as members according to Art. 4 of the Charter.
Original members of the United Nations are those members which participated in the United Nations Conference on International Organisation at San Francisco or previously signed the United Nations Declaration of January 1, 1942, and subsequently signed the present Charter and ratified it in accordance with Art.110 of the Charter.
As regards the admission of members, Art. 4 of the Charter provides that a State may be admitted to the United Nations on the affirmative recommendation of the Security Council and by election of the General Assembly by 2/3rd majority. Admission of states being an important matter, it is necessary that the Security Council must recommend it by a majority of 9 members including the five permanent members.
Further, Art. 4 provides that for a State to become a member of the United Nations:
(a) It must be a State;
(b) It must be peace-loving;
(c) It must accept the obligations of the Charter;
(d) It must be willing to carry out those obligations;
(e) It must be able to carry out those obligations.
Suspension of members:
Art. 5 of the United Nations Charter provides that member of the U.N. against which preventive or enforcement action has been taken by the Security Council, may be suspended form the exercise of the rights and privileges of membership by the General Assembly upon the recommendations of the Security Council. But the exercise of these rights and privileges may be restored by the Security Council.
Present Number of Members:
At present, there are 190 members of the U.N. Recently East Timor has been admitted as the new member.
There are the 6 principal organs of the United Nations:
THE GENERAL ASSEMBLY
The General Assembly of the United Nations is the most democratic and representative organ. In a sense it is the true representative of 'the people of the United Nations'. Each member of the United Nations is represented in it. Each member is entitled to give one vote, but may send 5 representatives in the General Assembly. At present there are 191 members in the General Assembly.
Functions of General Assembly:
According to Art. 7 of the United Nations Charter the General Assembly is one of the Principal organs of the United Nations. Prof. Leonard has classified the powers and functions of the General Assembly under the five headings:
(1) Deliberative functions:
The General Assembly performs the following deliberative functions:-
(i) The General Assembly may discuss any question or any matter within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter.
(ii) The General Assembly may consider general principles of co-operation in the maintenance of international peace and security including the principles governing disarmament and regulations of armaments, and may make recommendations with regard to such principles to the members or to the Security Council or to both.
(iii) The General Assembly may call the attention of the Security Council to situation which is likely to endanger international peace and security.
(2) Supervisory functions:
By Supervisory functions we mean those functions through which the General Assembly supervises the functions of other principal organs and specialized agencies of the United Nations. The General Assembly particularly exercise sufficient control over the two principal organs of the United Nations, namely the Economic and Social Council and Trusteeship Council.
(3) Financial functions:
The General Assembly also performs important fincancial functions. It considers and approves the budget of the United Nations. Art.17 provides that the General Assembly shall consider and approve the budget of the organization.
(4) Elective functions:
The General Assembly performs two types of elective functions:
(i) Regarding admission of new States to the United Nations;
(ii) Election of members for other organs.
(5) Constituent functions:
The General Assembly performs important constituent functions also. It takes part in the amendment of the Charter. Art. 108 clearly provides that amendments to the present Charter shall come into force for all members of the United Nations when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional process by 2/3rd of the members of the United Nations including all the permanent members of the Security Council.
THE SECURITY COUNCIL
The Security Council is one of the principal organs of the United Nations which comprises of 15 members out of which 5 permanent and 10 are non-permanent members. China, Russia, America, France and Britain are the permanent members of the Council. The 10 non - permanent members are elected by the General Assembly for a term of 2 years.
Functions and Powers:
Functions and powers can be conveniently discussed under the four heads:
In order to ensure prompt and effective action by the United Nations, States members have conferred upon the Security Council the primary responsibility for the maintenance of international peace and security. The members have also agreed that in carrying out its duties the Security Council acts on their behalf. The members of the U.N. have also agreed to accept and carry out the decisions of the Security Council with the least diversion for the armaments and the world's human and economic resources.
The Security Council also performs some elective functions. For example, Security Council and the General Assembly separately elect the judges of the International Court of Justice. In this way the Security Council participates in the election of the judges of the world court.
The Security Council also performs some supervisory functions. That is to say, it supervises the functions of the organization as a whole although its supervisory functions are not as wide as that the General Assembly.
The Constituent powers of the Security Council are very important. Art. 108 of the Charter provides amendments to the present charter shall come into force for all members of the U.N. when they have been adopted by a vote of 2/3rd of the members of the General Assembly, and ratified in accordance with their respective constitutional processes by members of the Security Council.
THE ECONOMIC AND SOCIAL COUNCIL
Originally the Economic and Social Council comprised of 18 members elected by the General Assembly. In the year 1963, the Charter was amended and the membership of the Economic and Social Council was increased to 27. It came into force on 31 August, 1965. In the year 1971, the Charter was once again amended and the membership of the Council was increased to 54. It came into force 24th September 1973. At present the Economic and Social Council comprises of 54 members. Since the membership of the U.N. has now swelled to 190, a plea can be made for further increase in the membership of the Economic and Social Council.
Powers and Functions:
The Economic and Social performs the following functions:
(a) The Economic and Social Council may make or initiate studies and reports with respect to economic, social, cultural, educational, health and related matters and may make recommendations with respect to any such matters to the General Assembly, to the members of the U.N. and to specialized agencies concerned.
(b) It may make recommendation for the purpose of promoting respect for and observance o human rights and fundamental freedoms for all.
(c) It may prepare draft conventions for submission to the General Assembly with respect to matters falling within its competence.
(d) It may call, in accordance with the rules prescribed by the U.N. International Conference on matters falling within its competence.
(e) The Economic and Social Council may furnish information to the Security Council and shall assist the Security Council upon its request.
(f) The Economic and Social Council shall perform such functions as fall within its competence in connection with the carrying out of the recommendations of the General Assembly.
(g) It may, with the approval of the General Assembly, perform services at the request of the members of the U.N. and at the request of the specialized agencies.
THE TRUSTEESHIP COUNCIL
As provided under Art. 86 of the U.N. Charter, Trusteeship Council comprises of the following members of the U.N:
(i) Those members who are administering Trust territories;
(ii) The permanent members of the Security Council as are not administering Trust territories;
(iii) As many other members elected for 3 years 'term by the General Assembly as may be necessary to ensure the total number of members of the Trusteeship Council is equally divided between those members of the U.N. which administer trust Territories and those which do not.
Functions and Powers:
Trusteeship Council performs the following functions under authority of the General Assembly:
(a) It may consider reports submitted by the Administering Authority.
(b) It may accept petitions and examine in consultation with the Administering Authority.
(c) It may provide for periodic visits to the respective Trust Territories at times agreed upon with the Administering Authority.
(d) The Trusteeship Council shall formulate a questionnaire for each Trust Territory within the competence of the General Assembly and shall make annual report to the General Assembly upon the basis of such questionnaire.
(e) The Trusteeship Council may avail itself of the assistance of the Economic and Social Council and of the specialized agencies in regard to matters with which they are respectively concerned.
THE SECRETARIAT
According to Art. 7 of the U.N. Charter, the Secretariat is one of the principal organs of the United Nations.
The Secretariat comprises of a Secretary-General and such staff as the organization may require. The Secretary - General is appointed by the General Assembly upon the recommendation of the Security Council. He is designated as "the Chief Administrative Officer of the Organisation".
Functions of the Secretary - General:
The Secretary - General performs the following functions:
(a) The Secretary-General is the Chief Administrative Officer of the Organisation.
(b) The Secretary - General acts in the capacity of the Chief Administrative Officer of the Organisation in all meetings of the General Assembly, of the Security Council, of the Economic and Social Council and of the Trusteeship Council and performs such other functions as are entrusted to him by these organs.
(c) The Secretary-General makes annual report to the General Assembly on the work of the organisaton. In fact the Annual Session of the General Assembly beings with the discussion of the report of the Secretary-General on the work of the organization as a whole.
(d) The Secretary - General may bring to the notice of the Security Council any matter which in his opinion threatens the maintenance of international peace and security.
(e) The Secretary - General get collected all the statistics in regard to the economic conditions of the whole world and submits those datas to the Economic and Social Council.
THE INTERNATIONAL COURT OF JUSTICE
According to Art. 7, International Court of Justice is one of the principal organs of the U.N. It is the chief judicial organ of the United Nations and is based upon a Statute which is integral part of the U.N. Charter, Art. 92. All members of the U.N. are ipso-facto the members of the Statute of the International Court of Justice. Any State which is not a member of the U.N. may also become a party of the Statute of the International Court of Justice on the recommendation of the Security Council and on the conditions laid down by the General Assembly. The International Court of Justice consists of 15 judges which are elected by the General Assembly and the Security Council separately. These Judges are elected for a term of 9 years and can also be re-elected after the expiry of their term. All the decisions of the Court are made on the basis of the majority of the judges. The President of the Court is empowered to give vote in case of a tie.
Law applied by the International Court of Justice:
According to Art. 38 (1) of the Statute of the International Court of Justice, the Court shall decide the disputes submitted to it in accordance with International Law and shall use the sources of international law in the following order:
(i) International conventions;
(ii) International customs;
(iii) General principles of law recognized by civilized nations;
(iv) Judicial decisions or the works of jurists, etc.
WORLD TRADE ORGANISATION (W.T.O.)
Britton Woods's conference held in 1944 was the starting point for a new world order. It was envisaged that the new world economic order would be organized around three international institutions -
(1) The International Bank for Reconstruction and Development (IBRD also called World Bank)
(2) International Monetary Fund (IMF)
(3) International Trade Organizations(I.T.O).
While the first two institutions were established and exist even today, the third institution i.e. I.T.O never came into existence. After the approval of the Governments of the U.S. and the U.K. proposals for the establishment of I.T.O were discussed at an international conference on Trade and Development first in London in 1946, the at Geneva and finally in Havana in 1947-1948. A charter for an I.T.O was signed by 53 nations. In order to come into force it was required to be ratified by the member nations. The I.T.O never came into existence as the U.S. Senate not prepared to ratify it.
Uruguay Round:
The Uruguay Round of discussions started in Uruguay in September, 1986 and culminated on December 15, 1993. Delegations from 117 countries accepted by consensus a GATT World Trade Treaty to open international markets and to ensure global economic growth into the 10th century. The Dunkel Draft Text or Dunkel Package or the Dunkel Draft Act embodying the results of Uruguay Round of Multi- Lateral Trade Negotiation was released on 20th December 1991. The Uruguay Round of Multi Lateral Trade Negotiations was concluded on 15th December, 1993. As many as 125 countries including India signed the Final Act on April 15, 1994 at Marrakesh (Morocco). Thus the General Agreement on Tariff and Trade (GATT) 1994 more popularly known as the Dunkel Agreement, finally emerged as World Trade Organization (WTO) in 1995.
Establishment of WTO:
As a result of the culmination of Uruguay Round of GATT Negotiations for more than 7 years at Marrakesh (Morocco) on April 15, 1994. The new World Trade Organisation which came into effect on January 1, 1995, replaced the GATT. The world treaty signed by 125 countries including India was estimated to add an annual $ 235 billion to the world economic income within a decade. The treaty was expected to boost World Trade by $ 755 billion each year by 2005 i.e. a decade after it taken effect on 15th April 1994.
WTO is in fact the main organ for implementation of Multilateral Trade Agreements. It is the negotiating forum for the members. It can be regarded as the third economic pillar of World Wide Trade and Commerce dimensions along with the International Monetary Fund (IMF) and International Bank for Reconstruction and Development (World Bank).
World Trade Organisation headquarters are located at Geneva (Switzerland).
Membership:
There are two types of members -
(1) Original members
(2) Other members.
The Original Members comprise:
(a) The members of the GATT as on the date of entry into force of the agreement;
(b) The European Communities which accept this Agreement and the Multi Trade Agreements and of which schedules of Concessions and Commitments are annexed to the GATT 1994 and for which also Schedules of specific Commitments are annexed to the General Agreement on Trade in Service.
WTO had 76 members at its creation. A further 72 members joined over the following ten years. As of August 19, 2005 there are 148 members of the organization.
Withdrawal from Membership:
Any member may withdraw from this agreement by giving a written notice to the Director-General of the WTO. The withdrawal takes effect after the expiry of six months.
Structure:
The WTO consists of following bodies:
(1) The Ministerial Conference: It is the highest body comprising of the representatives of all members. It is the executive of the WTO and carries out functions of WTO. It meets at least once every two years.
(2) The General Council: It is also comprised of the representatives of all members. It meets between the meetings of Ministerial Conference and carries out the functions of the WTO.
(3) The Dispute Settlement Body.
(4) Trade Policy Review Body.
(5) The Committee on Trade and Development, the Committee on Balance of Payment Restrictions and Committee in Budget and Administration.
(6) Bodies provided under the Plurilateral Trade Agreements.
(7) The Secretariat: The Secretariat is headed by a Director - General appointed by the Ministerial Conference. On May 13, 2005, Pascal Lamy was elected the Director General. He took over from Supachai Panit Chipakdi on September 1, 2005.
Functions of World Trade Organisation:
According to Art. III of the Agreement following are the functions of the World Trade Organisation:
(a) To facilitate the implementation operation, administration and the promotion of the agreement and the Multilateral Trade Agreements and also of the Pulurilateral Trade Agreements;
(b) To provide the forum for negotiations among its members in respect of multi trade regarding their matters under the agreements of GATT and also to provide a forum for further negotiations among its members regarding their multilateral trade relations and a framework for implementation of the result of such negotiations.
(c) To administer the rules and procedures governing the settlement of disputes;
(d) To administer the Trade Policy Review Mechanism;
(e) To co-operate with International Monetary Fund (IMF), the International Bank for Reconstruction and Development(IBRD) or the World Bank and its affiliated agencies to bring about great coherence in economic policy making.
Dispute Settlement Mechanism:
Following are the main stages in settling disputes under WTO;
(a) Consultation;
(b) Establishment of a Panel;
(c) Report of the Panel;
(d) Adoption of Panel Report;
(e) Appellate Review before Standing Appellate Body;
(f) Implementation.
Meetings of the Ministerial Conference:
As noted above, the Ministerial Conference meets at least once in every two years. So far it has held following meetings:
(1) The First Ministerial Conference, 1996 at Singapore.
(2) The Second Ministerial Conference, 1998 at Geneva.
(3) The Third Ministerial Conference, 1999 at Seattle, U.S.
(4) Fourth Ministerial Conference, November 2001 at Doha (Qatar).
(5) Fifth Ministerial Conference, September, 2003 at Cancum (Mexico).
International Labour Organisation was established in 1919 as an autonomous partner of the League of Nations. Its Head Office is situated in Geneva. It was brought into relationship with the United Nations in 1946 through a specials agreement. This special agreement was approved by the General Assembly on December 14, 1946. International Labour Organisation functions in close collaboration with the United Nations. International Labour Organisation was awarded the Nobel Prize for Peace in 1969.
Composition and Functions:
Its membership is open for all the States. In 1970 it had 121 States as its members. At present it has more than 150 members. Following are main organs of the International Labour Organisation:
(a) General Conference:
Each Member State gets representation in the General Conference. Each State has 4 representatives in the General Conference - two representatives of the State Government and one each representative of the workers and employers. Each representative has one vote. Most of the decisions of the Conference are in the form of Conventions and recommendations and they require the majority of two - third members present and voting. It is the obligation of the Member - State to implement through their State Legislatures the conventions adopted by the General Conference. All the conventions and recommendations combined together are called International Labour Code which indicates the international standards of policy. It comprises of 130 conventions and 134 recommendations.
As it is made clear in the Code itself. "The International Labour Code is primarily a Code of internationally approved standards, certain of which are capable of becoming, and have in many cases become, binding upon the States by reason of the ratification by those States of the relevant International Labour Conventions and in respect of all of which members of the organization have an obligation to report on the position of their national law and practice at appropriate intervals as requested by the governing body".
(b) Governing Body:
The Governing body comprises of 54 members and is a tripartite body and includes the representatives of State Governments employers and workers. The Governing Body appoints the Director General and supervises the functions of the organization.
(c) International Labour Offices or Secretariat:
The head of the International Labour Office is a Director - General. Its head office is situated in Geneva and its branches are in New York and in several countries of Europe and Asia. Its main function is to collect information related to industrial life and labour and to assist the members to make laws in accordance with the decisions of the General Conference.
The General Conference of the International Labour Organisation held in 1940, in Philadelphia clarified its objectives through a declaration.
According to Art. 3 of the Declaration following are its main objectives:
(a) Full employment and rise in living standards;
(b) Minimum living wage;
(c) Recognition to the rights of collective bargaining;
(d) Social Security;
(e) Proper security of the health of the workers;
(f) Child welfare;
(g) Proper arrangements of housing, entertainment etc.
(h) Assurance of equal opportunity in education and employment.
Evaluation:
International Labour Organisation (I.L.O) is a very successful inter - governmental institution and specialized agency. It has done a commendable work to achieve social justice for the workers. In the field of international legislation, International Labour Code is a significant achievement.
In the words of C.W.Jenks, "The International Labour Code has become for labour lawyers throughout the world what corpus juris civiles is for the civilians or works of authority of the common law for the common lawyers".
The most significant thing in the constitution of he International Labour Organisation has the representation of not only the States, but also of the workers and employers. This tripartite partnership has made this organization the most representative and democratic in the real sense of the term.
Besides this, as pointed out by Jenks, "No less radical and unprecedented an innovation was the obligation to submit conventions adopted by International Labour Conference by a 2/3rd majority for parliamentary consideration, irrespective of the attitude towards the convention of the representatives of the Government concerned".
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