--- title: "Complete Book 0" book: "MA Pol.Sc 401" category: "MA" publisher: "Ratan Prakashan Mandir Pvt. Ltd." type: "Educational Material" ---  According to Latest Syllabus Read For Sure Success In University Examination RATAN TEXT BOOK PUBLIC INTERNATIONAL LAW M.A.Political Science (Sem-IV) Dr. Anita Jain Published by Ratan Prakashan Mandir Pvt. Ltd. 2nd Floor, Centre Plaza, Parinay Kunj, Lajpat Kunj Marg, Agra-282002 Copyright Authors & Publishers Published by Ratan Prakashan Mandir Pvt. Ltd. 2nd Floor, Centre Plaza, Parinay Kunj, Lajpat Kunj Marg, Agra-282002 ISBN :978-81-69604-14-7 Price 416.00 only Printed at : KIDS INTERNATIONAL PVT. LTD. C-60, 61, 62, 63, EPIP, Shastripuram, Agra - 282007 Ph. : +91 9719004921 Unit-I Chapter-1 MEANING, NATURE AND SCOPE OF INTERNATIONAL LAW Structure 1 .0 Introduction 1.1    Learning Objectives 1.2    Origin and Definitions of International Law 1.3    Nature of International Law 1.3.1    International Law is a Law or not 1.3.2    Is International Law is mere positive Morality ? 1.3.3    Whether International Law the Vanishing Point of Jurisprudence ? 1.3.4    Does International Law Comprise of the Rules of International Comity ? 1.4    Distinction between Public International Law and Private International Law 1.5    Weaknesses of International Law 1.6  Suggestions for Improving International Law 1.7   Senction of International Law 1.8  Let us Sum Up 1.9  Check Your Progress Exercise 1.10 Glossary 1.11    Answer to Check Your Progress Exercise 1.12    Suggested Readings 1.13    Terminal Questions 1 .0 Introduction International law plays a pivotal role in shaping the interactions between sovereign states and other international actors. As the global community becomes increasingly interconnected, the significance of international law in fostering cooperation, resolving disputes, and promoting a just and stable world order becomes more apparent. This lesson delves into the meaning, nature and scope of international law, examining its origins, key principles, and the challenges it faces in the contemporary geopolitical landscape. 1.1    Learning Objectives After going through this lesson, you will be able to ; ☻    Understand the concept of International law. ☻    Differentiate between public international Law and Private International Law. ☻    Discuss the weaknesses of Public International Law. 1.2    Origin and Definitions of International Law The words international Law" were used for the first time by Jermy Bentham in 1780. Prior to it, International Law was known by the name “Law of Nations’ 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 comprises of States, International organisations, individuals and certain non-State entities. Professor 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 civilised States in their intercourse with each other”. New Definition of International Law in Latest Edition of Oppenheim's Book. The editors of the ninth edition of Oppenheim's book (1992), Sir Robert Jennings and Sir Arthur Watts, have revised Oppenheim’s definition of International Law in the following words : "International Law is the body of rules which are legally binding on slates in their intercourse with each other. These rules are primarily those which govern the relation of States, but States are not the only subjects of International Law. International organisations, and to some extent, also individuals may be subjects of rights conferred and duties imposed by international law." Further, "not only individuals but also certain territorial or political units other than States to a limited extent, be directly the subject of rights and duties under International Law. Thus, the above concept and definition of International Law given in the Ninth Edition of Oppenheim's International Law is much better than the earlier definition and to a great extent similar to that given by Starke and Fenwick. But, it is still deficient in one respect. It is conspicuous for its silence in respect of general principles. This is a great flaw because general principle make International Law dynamic and help it to adopt itself to changing times. Some Other Definitions of International Law : (1)    According to J.L. 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." (2)    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." (3)    Queen : Keyn— In the Queen v. Keyn, Lord Coleridge, C.J., defined International Law in the following words : " The law of nations is that collection of usages which civilised States have agreed to observe in their dealings with one another." (4)    West Rand Central Gold Mining Co, Ltd. v. King (1905) — In this case the Court observed, International Law may be defined as “the form of the rules accepted by civilized States as determining their conduct towards each other and towards each other's subject." (5)    S.S. Lotus case [(1927) P.C. I.J. Series A. No, 10]. In 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 coexisting independent communities or with a view to the achievement of common aims. Restriction upon the independence of States cannot therefore be presumed." (6)    Philip C. Jessup— Jessup has defined International Law in the following words : "International Law or the Law of Nations must be defined as law applicable to States in their mutual relations with States." Judge Jessup further adds, "International Law may also... be applicable to certain interrelationships of individuals themselves, where such inter-relationships involves matters of international concern." (7)    Gray— According to Gray "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." (8)    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." (9)    Soviet definition and Approach to international Law— 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." Another eminent Russian writer defined International Law as "the totality of norms, which were developed on the basis of agreements between the States which govern their relations in the process of struggle and cooperation between them, expressing the will of the ruling classes, and are enforced in case of necessity, by the pressure applied either collectively or by individual States. After the death of Stalin the above definition was slightly modified by inclusion of a reference to "peaceful co-existence." In recent years' Soviet writers have laid a great emphasis on 'peaceful co-existence' in relation between the sovereign States. According to the Soviet view, "The principle of peaceful co-existence should be the basis of the whole structure of contemporary International Law. Only if it is based on the principle of co-existence can International Law best promote the cause of peace and mutual understanding between States”. Chinese definition and approach to International Law—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." In his view, only the definition of International Law given by Soviet scholars (for example, definition given by Vyshinsky given earlier), explains the question of the contents and substance of International Law. This definition is adaptable to the "International Law of various historical periods, including the modern one." He points out that International Law possesses the following characteristics of law in general : (i) It expresses the will of the ruling class; (ii) It is the aggregate of norms adjusting definite social relations, and (iii) it is guaranteed by enforcement measures. In this view therefore, "International Law is a kind of law possessing legal validity; it is not what are called self-executing norms of morality." In China, International Law is regarded as "a legal instrument in the service of our foreign policy". In the words of a Chinese author, "International Law, in addition to being a body of principles and norms which must be observed by every country, is also. Just as any law a political instrument, whether a country is a socialist or capitalist, it will be to a certain degree utilize International Law in implementing its foreign policy." According to Whiteman, “International Law is the standard of conduct, at a given time, for State and other entities subject thereto." Charles G. Fenwick— Fenwick has defined International Law in the following words :— "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." In the words of J.G. Starke "International Law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other, and includes also — (a)    The rules of law relating to the functioning of international institutions or organisations, their relations with each other, and their relations with States and individuals; and (b)    Certain rules of law relating to individuals and non-State entities so far as the rights or duties of such individuals are the concern of the international community." The definition of Starke is also appropriate because it takes into account the changing character of International Law. 1.3    Nature of International Law 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. 1.3.1    Whether International Law is true in the true sense of the term or not :- The controversy whether International Law is true law or not depends upon the definition of the word 'law'. As remarked by Prof. Glanville L. Williams, "The largest of jurisprudential controversy that as to the word 'law' is a verbal dispute and nothing else." If we subscribe to the view of Hobbes, Austin and Pufendorf, that law is command of sovereign enforced by superior political authority, then international law cannot be included in the category of law. On the other hand, if we subscribe to the view that the term 'law', Cannot be limited to the rules enacted by the superior political authority, then international law can be included in the category of law. According to Austin, law is given by a determinate superior political authority to political inferiors and is backed by a coercive enforcement agency. Thus, according to Austin, sanction occupies an important place in the enforcement of law. People follow law due to sanction or coercive element inherent in law. Hobbes also subscribes to this view. In the view of Hobbes, man is by nature nasty, brutish and violent and fear or sanction which is inherent in law is necessary to maintain order in society. Further, men need for their security "a common power to keep them in awe and to direct their action to common benefit." Holland, Bentham, Jethro Brown, etc. are other jurists who deny the legal character of international law. According to these jurists, international law lacks an effective legislative machinery, an executive machinery and potent judiciary and above all the sanction which is necessary for the enforcement of law. The definition of law given by Austin is not correct. In the words of Prof. Oppenheim, "This definition is not correct. It does not cover that part of municipal law which is termed as unwritten or customary law. There is, in fact, no community and no State in the world which exists with written law only." In his view, law is, "a body of rules of human conduct within a community which by consent of this community shall be enforced by external power." brierly and Prof. Hart have also criticised the Austinian definition of law. According to Brierly, "Unless we distort facts so as to fit them into the definition, it cannot account for the existence of the English Common Law." Further, "If as Sir Frederick Pollock writes, and as probably most competent jurists would today agree, the only essential conditions for the existence of law are a political community and the recognition by its members of settled rules binding upon them in that capacity, international law seems on the whole to satisfy these conditions." Criticizing the Austinian definition of the "law", Prof. H.L.A. Hart has also written that this concept "plainly approximates closer to penal statutes enacted by the Legislature of a modern State than to any other variety of law." According to Oppenheim, the existence of law presupposes the existence of three pre-requisites :—(i) a community; (ii) a body of rules; and (iii) common consent of the community that if necessary these rules shall be enforced by an external power. As pointed out in the Ninth Edition of Oppcnheim's International Law (1992), "The three requirements of this definition (i.e. Oppenheim's definition of law) are satisfied by international law, to a greater or lesser extent. The States of the world do together constitute a body bound together through common interests which create extensive intercourse between them, and differences in culture, economic structure or political system, do not affect as such the existence of an international community as one of the basic factors of international law. Rules for conduct of the members of that community exist and have existed for hundreds of years. Equally, there exists a common consent of the community of States that rules of international conduct shall be enforced by an external power, though in the absence of a Central authority for this purpose States have sometimes to take law into their own hands by such means as self-help and intervention..........." Further outlawing of resort to force by the U.N. and steps for international enforcement action have led to less reliance on self-help. 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. Even if it is regarded as an essential element, it would be wrong to say that international law has no sanction behind it. Brierly has rightly pointed out, "It is both practically inconvenient and also contrary to best juristic thought to deny its (i.e. international law) legal character." Views of jurists, who regard international law as really law may be summed up as follows :— (1)    The term law cannot be limited to rules of conduct enacted by a sovereign authority. It has been established by Historical Jurisprudence that in many communities a system of law existed although such communities lacked a formal legislative authority. As pointed out by Starke, such law did not differ from any State law with true legislative authority. (2)    As pointed out by Oppenheim, in practice, international law is recognised as law by the States and they consider it binding on them. (3)    Even when the States violate international law they never question its legal existence or legal character. On the contrary, they try to interpret the rules of international law so as to justify their conduct. (4)    The Austinian concept of law fails to account for the customary rules of international law. (5)    In the modern time customary rules of international law are diminishing and are being replaced by law making treaties and conventions. (6)    When international disputes arise, States, instead of relying on moral arguments base their arguments on the provisions of treaties, precedents and opinions of jurists. (7)    In some States (for example U.S.A. and U.K.), international law is treated as a part of their own law. (8)    The Statute of International Court of Justice provides that the Court shall decide such disputes as are submitted to it in accordance with international law. (9)    International Conferences and Conventions treat international law as law in the true sense of the term. (10)    The United Nations is based on the true legality of international law. The Preamble to the U.N. expresses the resolve of the member States to "establish conditions under which justice and respect for the obligations arising from treaties and other sources of International Law can be maintained. (11)    It is also pointed out that sanction is not an essential element of law. It is also a fact that people generally follow law as a matter of habit and practice. However, international law is not completely without sanction although the sanctions behind it are weaker as compared to State Law. International Law operates in a decentralized system. Each state is sovereign and equal in the eye of law. Article 59 of the statute of International Court of Justice provides that the decisions of the International Court of Justice shall not be binding except upon a party to a dispute and only in respect of the particular dispute. The decisions of the International Court of Justice are binding upon the parties to a dispute. In case any party fails to comply with the decision, the Security Council on the request of other party may make recommendations or decide upon measures to be taken to give effect to the judgment. Besides this, war, reprisals etc, have been regarded as sanctions behind international law. Chapter VII of U.N. Charter provides for international enforcement actions. Besides U.N. Charter each and every International organisation such as ILO, WHO,,FAO, ICAO etc. has certain sanctions in its constituent treaty. (12)    Public opinion is also considered as the ultimate sanction behind the binding force of international law and for that matter, behind any law. (13)    Those who deny the legal character of international law emphasize that it is frequently violated. It is true that International Law is frequently violated but it does not mean that it is not law. Even State or municipal law is frequently violated. Frequency of violations of law and the question of international law being law are two different things. Frequency of violations is connected with the weakness or strength of the enforcement machinery. Though State or municipal law is frequently violated, it is never said that it is not law. What is true of Municipal law should also hold good for International Law. 1.3.2    Is International Law a mere positive morality ? A rule of morality applies to conscience and is, therefore, not binding. On the other hand a rule of law is binding and can be enforced by an external power. Most of the jurists agree that international law has a binding nature whereas the rule of morality is simply a standard of right behaviour based on the personal judgments. As pointed out by Edward Collins, "Although attitudes about morality, when widely shared, influence the development of international law, there is no recognised legal obligation to obey the norms of morality until they are accepted by authoritative decision makers as international law." Frederick Pollock has rightly observed, "If International Law were only a kind of morality, the framers of State papers concerning foreign policy would throw all their weight on moral arguments. But as a matter of fact, this is not what they do. They appeal not to the general feeling of moral rightness, but to precedents, to treaties and to opinion of specialists." Prof. Hart also subscribes to this view. He adds, "The rules of international law, like those of municipal law, are often morally quite indifferent. A rule may exist because it is convenient or necessary to have some clear fixed rule about the subjects with which it is concerned but not because any moral importance is attached to the particular rule." 1.3.3    Whether International Law is the vanishing point of Jurisprudence According to Holland, International Law is the vanishing point of jurisprudence. In his view International Law is followed by courtesy and, therefore, it cannot be kept in the category of law. Austin also subscribes to this view. The view of Holland does not seem to be correct. In the first place, sanction is not most essential element of law. Even if it is regarded as an essential element, it will not be proper to say that international law has no sanctions at all. War reprisals, retorsion, Pacific Blockade, etc., were regarded as sanctions under the traditional international law, i.e., before the establishment of the United Nations. The Charter of the United Nations also contains a provision wherein the Security Council may recommend or decide upon the measures to be taken to implement the decision of the International Court of Justice. In the view of Holland, there is no judge or arbitrator to decide international disputes. This statement cannot be accepted because the International Court of Justice is the judicial organ of the United Nations and its decisions are binding upon the parties to a dispute. It is true that the International Court of Justice lacks compulsory jurisdiction in the real sense of the term; there is no effective executive authority to enforce its decisions; its decisions cannot be applied to future cases as precedents; and, above all, the binding force of its decisions is very limited. Indeed it is not equivalent to the highest Municipal Court. Nevertheless, the decisions of the International Court of Justice possesses binding force and can be enforced under certain circumstances. They are binding upon the parties to a dispute and only in respect of that dispute. The provision to this effect is contained in Article 59 of the Statute of the International Court of Justice (hereinafter referred as the I.C.J.). Besides this, Article 94 of the U.N. Charter provides that each member of the U.N. undertakes to comply with the decision of the I.C.J. in any case to which it is a party. It further provides that if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary make recommendations or decide upon measures to be taken to give effect to the judgment. Thus the international legal system is not only provided with a judicial organ to resolve international disputes but its decisions are binding and can be enforced under the circumstances stated above. Further, under Article 36(2) of the Statute of the I.C.J. a State party may confer compulsory jurisdiction upon the court. As many as 47 States have conferred compulsory jurisdiction upon the court. Under Chapter VII of the U.N. Charter, the Security Council possesses wide powers to declare sanctions against the States who are guilty of violation of the provisions of the U.N. Charter relating international peace and security. U. N. action in the Gulf War (1991) Afghanistan and Iraq's invasion of Kuwait are glaring example of this. Reference may also be made to the U.N. sanctions against Libya in Lockerbie case i.e. bombing of Pan American (flight) airliner in 1988 over Lockerbie (Scotland) killing 270 persons. Earlier, the U.N. had taken enforcement action under Chapter VII of the Charter in several cases such as in 1948 against North Korea and in 1961 in Congo. On the basis of above discussion, it may be concluded that International Law is, in fact, law and it is wrong to say, that it is the vanishing point of jurisprudence. 1.3.4    Does International Law comprise of the rules of International comity ? International comity means practices which the States observe as a matter of courtesy or convenience. They are not binding upon them. On the other hand, rules of international law are regarded as binding by the States. It is, therefore, wrong to say that international law comprises of the rules of international comity. 1.4    Distinction between Public International Law and Private International Law The definition of Public International Law has already been discussed in detail earlier. As compared to it, private international law is that branch of law which decides law applicable in the issue in disputes involving more than one nation and involving a foreign element and determines the Court which will have jurisdiction to decide the issue. It is more popularly termed as 'Conflict of Laws'. Pitt Cobbett has defined 'Private International Law' as the "body of rules for determining questions as to selection of appropriate law, in civil cases which present themselves for decision before the courts of one State or country, but which involve a foreign element i.e. which affect foreign persons or foreign things or transactions that had been entered into, wholly or partly in a foreign country, or with reference to some foreign system of law." The main points of difference between Public International Law and Private International Law are the following :— (i)    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. (ii)    Public International Law is a part of Municipal Law but so it is not always the case with private International Law. (iii)    Public International Law (at least the rules having general application) is same for all the States whereas Private International Law may be different in different States. (iv)    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. (v)    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. (vi)    According to Robert Philimore, rights arising out of Public International Law are absolute and their breach constitutes a casus belli (i.e. whatever involves or justifies war). This view does not seem to be correct in the presence of the provisions of Kellog-Briand Pact and the U,N. Charter which have outlawed war. But Private International Law does not at all confer absolute rights. (vii)    Public International Law comprises mainly of the rules recognised by States in their relation with each other and mostly arises out of International customs and treaties. On the other hand, rules of Private International Law are framed by the legislature of a State and recognised and developed by State Courts. 1.5    Weakness of the International Law Following are the weaknesses 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. It is also pointed that there is no executive in International Law and as such violations of International Law go unpunished. As pointed out above, these so-called weakness come to light when we compare International Law with State law which has usually a strong executive, legislature and judiciary. But a pertinent question is why should we compare international law with State law. There can be no comparison with two unequal, International law operates in a decentralized system whereas State law operates in a centralized system. International law ought to be considered what it is and what it ought to be. For example. United Nations is based on sovereign equality of all its members. Besides this, the decision of the International Court of Justice has no binding force except between the parties and in respect of that particular case. On the other hand, for example, Constitution of India provides that decision of the Supreme Court is binding on all High Courts, meaning thereby on all people of India, irrespective of whether they are parties to the case or not. 1.6    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 doctrine of judicial precedents should be applied in the field of international law. (7)    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. (8)    The legislative activities of the General Assembly should be further enlarged. (9)    Such activities of the U.N. should be encouraged as may develop the feelings of international brotherhood so as 'to ensure the encouragement of the development of International community in the true sense of the term. (10)    The U.N. Charter should be amended as to authorise the U.N. to intervene in such matters with the domestic jurisdiction of States as are of international concern. 1.7    Sanction in International Law There is great controversy among the jurists in regard to sanctions in international law. According to one viewpoint there are no sanctions at all behind international law. In accordance with the second view, even if it is admitted that there are no sanctions behind international law, it can be included in the category of law because sanction is not an essential element of law. In between these two extreme views, some authors hold the view, and rightly too, that it is wrong to say that International Law is without sanctions. As a matter of fact, it would be wrong to say that there are no sanctions at all behind international law although it is true that as compared to municipal law the sanctions of international law are far less effective. Starke has pointed out the following sanctions behind the international law :— (1)    Under Chapter VII of the United Nations Charter, if there is a threat to the international peace and security or an aggression has taken place, the Security Council can take necessary action to maintain or restore international peace and security. In this way, to some extent, the violation of international law can be checked and if there has been a violation, necessary action can be taken for its maintenance. Gulf War (1991) deserves a special mention in this connection. The Security Council took effective action against Iraq and compelled it to vacate its aggression from Kuwait. The Council then forced Iraq to pay compensation to Kuwait and other countries and individuals affected by the war. (2)    The decisions of the International Court of Justice are binding upon the parties to the dispute. Article 94 of the United Nations also provides that if a party to the dispute does not follow the decision of the Court, the other party may approach the Security Council which can take necessary decision to ensure the implementation of the decision. However, it cannot but be admitted that the U.N. Charter does not contain any provision to maintain international law generally. (3)    Under Article 2(4) of the Charter, the member of the U.N. have undertaken that they shall respect the territorial integrity and political independence of each other and shall not use force against each other. There is only one example in the Charter wherein the members may use force. That is contained under Article 51 of the Charter which confers on the members the right of individual and collective self-defence. But, even this right can be exercised only when an armed attack has taken place. Moreover this is subject to the conditions mentioned in Article 51. It is clear from the above discussion that international taw is not without sanctions although these sanctions are not generally for the enforcement of international law. These sanctions are to maintain or restore international peace and security which is indirectly within the sphere of international law. It cannot be denied that international community does not possess any well-organised force or machinery to enforce international law. Despite this, whatever sanctions there are behind international law make impact upon the States and in practice they generally follow international law. Apart from the above sanctions, other factors such as adverse public Opinion, expediency, possibility of imposition of economic sanctions, fear of suspension or breaking of diplomatic relations, possibility of referring the matter or dispute to the U.N. or specialized agencies of the U.N., fear of suspension or expulsion from Membership of the U.N. or other International Organisations, fear of punishment of war crimes, fear of payment of reparation, etc., also operate as sanctions behind International Law. The above mentioned examples are simply illustrative and by the means exhaustive. It may be noted that besides the U.N., there are dozens of other International Treaties constituting International organisation, referred and known as Specialized Agencies, such as ILO, WHO, FAO, ICAO etc. which contain effective sanctions. These specialized Agencies have their own provisions and means to enforce their decisions. 1.8    Let us Sum Up On the basis of the above discussion, 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. The contention that States alone are the subjects of international law is not only inconsistent with the changing character of international law but has become completely obsolete and inadequate. Individualistic character of international law is being replaced by the law of social inter-dependence. It can be said that international law is infact law. International Law operates entirely in a different setting. It operates in a decentralized system. 1.9    Check Your Progress Exercise 1.    Define International Law ? 2.    Explain any two differences between Public International Law and Private International Law ? 3.    Explain any three weaknesses of International Law. ? 1.10    Glossary ☻ Law : An official rule of a country or state that say what people may or may not do. ☻ Conflict of Law : A legal disagreement in which a law court must decide whether a judgement should be made according to the laws of one country, state, etc. or another. ☻ F.A.O. : Food and Agriculture Organisation. ☻  I.L..O. : International Labour Organisation. ☻ W.H.O. : World Health Organisation. ☻  I.C.J.: International Court of Justice. 1.11    Answer to Check Your Progress Exercise 1)    See section, 1.2 2)    See section, 1.4 3)    See section, 1.5 1.12    Suggested Readings ☻ M.P. Tandon, Public International Law, Allahabad Law Agency, 2002. ☻ R.S. Chavan, An Approach to International Law, Sterling Publishers. ☻ H.O. Agarwal, A Concise book on International Law and Hindu Rights, Allahabad: Central Law Publication, 2018. ☻ S.K. Agarwal, (ed.), Essays on the Law of Treaties, 1972. ☻ R.P. Anand, New States and International Law, 1972. ☻ C.G. Fanwick, International Law, 1950. ☻ D.W. Greig, International Law, 1996. ☻ Oppenhein, International Law, Vol. I & II, 1996. ☻ J.G. Stark, An Introduction to International Law, 1964. ☻ S.K. Kapoor, International Law and Human Rights : A Nutshell, Allahabad: Central Law Agency, 2003. ☻ H.S. Bhatia, (ed.), International Law and practice in ancient India. New Delhi : Deep & Deep Publications, 1977. ☻ L.C. Green, International Law through the cases, London: Stevens & Sons, 1970. ☻ Fawett, J. E.S., International Law in movements, London : Oxford University Press, 1914. ☻ S. Chandra, International protection of minorities, Delhi : Mittal Publication, 1986. ☻ M.P. Tondon, & R. Tandon,, International Law, Allahabad : Central Law Agency, 1984. ☻ H.O. Agarwal, Implementation of human rights Convenants : With special reference to India, Allahabad : Kitab Mahal, 1989. 1.13    Terminal Questions 1.    Define International Law ? 2.    Is International Law really a true law ? Discuss. 3.    Discuss the nature of International Law ? Compare it with State Law ? 4.    What are the weaknesses of International Law ? Give suggestions to cure them. 5.    International Law is not a true law but a code of rules of moral force only. Discuss ? Chapter-2 SOURCES OF INTERNATIONAL LAW Structure 2.0 Introduction 2.1    Learning Objectives 2.2    Meaning of the Term “Source’ 2.3    Sources of International Law 2.3.1    International Conventions or Treaties 2.3.2    International customs and usage 2.3.3    General Principles of law organized by the states 2.3.4    Decisions of Judicial and Arbital Tribunals 2.3.5    Text Writers, Juristic Work 2.3.6    Decisions or determinations of the organs of International Institutions 2.3.7    Some other subsidiary sources of International Law 2.4    Order of use of Sources of International Law 2.5    Let us Sum Up 2.6    Check Your Progress Exercise 2.7    Glossary 2.8    Answer to Check Your Progress Exercise 2.9    Suggested Readings 2.10    Terminal Questions 2.0 Introduction International law serves as the framework that governs the interactions between sovereign states and other international actors. It provides the basis for resolving disputes, promoting cooperation, and maintaining global order. The sources of international law are diverse and reflect the dynamic nature of the international system. This lesson delves into the main sources of international law, shedding light on the legal principles that guide the conduct of states and entities on the global stage. 2.1    Learning Objectives: After going through this lesson, you will be able to : •    Understand the term Source. •    Discuss the various sources of public international law. •    Know about the term equity and justice. 2.2    Meaning of Term ‘Source’ Different writers of Law of nations have interpreted the term ’sources’ in different ways. Some have taken it to mean ‘causes’ while others have understood it as ‘evidence’ of certain rules of international law. A third group of writers regarded ‘sources’ of international law as certain historical facts, long standing usages and treaties which involve the consent of nations to be bound by certain rules. According to Lawrence there is one source of law, and that is the consent of nations. The consent may be either tacit or express. The first is shown by custom or the habitual observance of certain rules of conduct by certain states in their mutual dealing without a written binding. The express consent is given by means of treaties. According to Oppenheim, custom and treaties are the twofold sources of international law based on implied or express consent. Briefly includes “reason” as a source of international law in addition to custom. Here by reason he means ‘judicial’ reason. 2.3 Sources of International Law The main Sources of international law can be classified into the following categories :— (I)    International Conventions; (2) International Customs; (3) General Principles of Law recognised by civilized nations; (4) Decisions of Judicial or Arbitral Tribunals; (5) Juristic Works; and (6) Decisions or Determinations of the Organs of International Institutions. The first five sources find mention in Article 38 of the Statute of International Court of Justice and the sixth source (i.e. decisions or determinations of the Organs of International Institutions) is conspicuous by its absence from the said Article for the obvious reason that when Article 38 was drafted and adopted for the first time, this source was not in a sufficiently developed State. 2.3.1    International Conventions or Treaties The term "conventions" applies to any treaty, protocol or agreement, regardless of its title or form. According to Article 38 of the Statute of International Court of Justice, it is the first source of international law. In the modem period, international treaties are the most important sources of international law. As defined by Article 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." Article 3 adds that the fact that the present convention does not apply to international agreements concluded between States and other subjects of international law, or to international agreements not in written form shall not affect: (a) the legal force of such agreements; (b) the application to them of any rules set forth in the present convention to which they would be subject under international law independently of the convention; (c) the application of the convention to the relations of States as between themselves under international agreements as to which other subjects of international law are also parties. It may be noted that Vienna Convention of Treaties, 1969 entered into force on 27 January, 1980. As of January 2013, as many as 113 countries, even those countries which are not parties to the Convention regard it as declaratory International Law. International Treaties may be of following two types— Law-Making Treaties; and Treaty Contracts. (1)    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 be 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. United Nations Charter is an example of such type of treaties. (ii)    Those enunciating general principles :- Treaties which are entered into by a large number of countries enunciated general principles of international law 1958 and 1960. Geneva Conventions on the Law of the Sea and Vienna Convention on Diplomatic Relations, 1961, are good examples of such types of treaties. (2)    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 help in the development of customary rules of international law. 2.3.2    International Customs and Usage International Customs used to be the most important source of international law in the past. In the modem 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. Usage is the earlier stage of the development of custom. By usage we mean those habits which are often repeated by the States. Custom begins where usage ends. Usages may be inconsistent and opposed to each other, but so is not the case with custom. In the words of Viner, "A custom, in the intendment of law, is such a usage as hath obtained the force of law." Customary rules of international law have developed in the following three circumstances—(a) Diplomatic relations between States; (b) Practice of Organs of International Institutions; and (c) State Laws, decisions of the State's Courts and State's Parliamentary or administrative practices. West Rand Central Gold Mining Co. Ltd. v. R., (1905) 2 K.B. 291 (Right of Passage over Indian Territory Case) ; Portugal v. India, (I.C.J. Rep. 1960 at 6) and Paquete Havana, (1900) 175 U.S. 677 are good examples of application of custom in international law. Ingredients or Elements of Custom : Following are the main elements of an international custom :— (i)    Evidence of a General Practice accepted as law :- Long duration is an essential element of a custom in Municipal Law. But this is not necessary for an international custom. Article 38 of the I.C.J. directs the world court to apply international custom as evidence of a general practice accepted as law. Thus what is more important is the practice of States accepting the practice concerned as law. In the field of international law, customs have emerged in short duration, for example, customs relating to sovereignty over air space and the sovereign rights over the resources of the continental shelf. (ii)    Uniformity and consistency :- The custom should be uniform and consistent. But complete uniformity is not necessary. Nevertheless, there must be substantial uniformity. (iii)    Generality of Practice :- Though universality of practice is not necessary, the practice should have been generally observed or repeated by numerous States. (iv)    Opinio Juris Necessitatis :- As pointed out by the International Court of Justice in North Sea Continental Shelf cases, (I.C.J. Rep. 1969, p. 3), ".................. customary practice, even when it is general and consistent, is not customary law unless an opinio juris is present, that is to say, unless the practice is recognized as being required by international law. It is this sense of law of legal obligation, as distinguished from motives of fairness, convenience or morality that underlies customary law." Importance of custom as a source of International Law :- There has been a marked decline in the importance of custom as a source of International law in the modem times. This is mainly due to the fact that the process of development of a new custom is very slow. However, in modern times also the development of new custom is possible and at times customs have developed with accelerated speed. Principle relating to sovereignty over air space and continental shelf are its glaring examples. But, in view of the accelerated speed of the changes in International Community, custom has become an inadequate means for bringing about the desired changes and development of international law. The development of custom is very slow and as compared to it rapid changes can be made through treaties so as to adopt International law in accordance with the changing times and circumstances. The four Geneva Conventions on the Law of Sea (1958), Vienna Convention on the Law of Treaties (1969) and U.N. Convention on Law of the Sea (1982), to quote only a few examples, bear testimony to this fact. In South West African case, Judge Tanaka observed, "Briefly the method of generation of customary international law is in the stage of transformation from being an individualistic process to bring a collective process. This phenomenon can be said to be the adoption of the collective process of international law to the reality of the growth of the organized international community. It can be characterised, considered from the sociological viewpoint, as a transition from a traditional custom making to international legislation by treaty. Thus, in the modern times the importance of custom as a source of law has greatly reduced, with the simultaneous rise in importance of treaties and conventions for the development of International law, But as pointed out by Edward Collins, "International organizations also contribute to the development of customary international law by providing a clear concentrated forum for stale practice. Particularly, in the General Assembly of the United Nations, where more than 106 (now 193) member states are represented, the statements and the notes of the representatives on legal matters provide evidence of existing customary law, as is illustrated by the discussion on, and the adoption of, the resolution affirming the principles of the Nuremberg charter and judgment. Still, other resolutions amount to an interpretation of the rules and principles which the charter already contains and which are in consequence binding upon member states, authoritative by reason of the standing of the United Nation. Thus, though the custom has been relegated to second place in importance, it still occupies an important position as a source of law. 2.3.3    General Principles of Law recognised by the civilized States According to Article 38 of the Statute of lnternational Court of Justice, the general principles of law recognised 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. In the words of Lord McNair, "It describes an inexhaustible reservoir of legal principles from which the tribunals can enrich and develop public international law,'' Res Judicata, estoppel, etc are the examples of the general principles of law recognised by civilized States. The general principles of law are those principles which are recognised by most 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. Following are some of the important cases relating to the general principles of law recognised by civilized States : (a)    R. Key, (1876) 2 Ex. D. 63.— In this case the court ruled that international law is based on justice, equity and good conscience which has been accepted by long practice of Slates. (b)    United States v. Schooner.— In this case Justice Storey of United States of America 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. (c)    In the case of diversion of water from Muese, (1937) P.C.I.J. Series A/B, Fasc.. No. 70) the Permanent Court of International Justice applied res judicata and estoppel. (d)    Chorzow Factory (Indemnity case), [Pub. P.C.I.J. (1938), Series A, No. 17). In this case, the Permanent Court of International Justice applied the principle of res judicata also held that one who violates a rule is liable to make reparation. (e)    Mavrommatis Palestine Concessions Case, [Pub. P.C.I.J. (1924), Series A, No.2.]— In this case, the Court applied the general principle of subrogation. (f)    Case concerning the Temple of Preah Vihear, [I.C.J. Rep. 1962), p. 6.— In this case, the International Court of Justice recognised and applied the principle of estoppel. As pointed out by B. Cheng, International Courts have recognised 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 dispite cannot himself be an arbitrator or judge; (vi) res judicata; (vii) in any judicial proceeding, the court shall give proper and equal opportunity of hearing to both parties. These principles should be codified. 2.3.4    Decisions of Judicial and Arbitral Tribunals The decisions of Judicial and Arbitral Tribunals are also the sources of lnternational Law. But, according to Article 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, Article 59 of the Statute of International Court of Justice provides that they will have no binding force except between the parties and in respect of that particular case. Since, the doctrine of precedent does not apply in field of international law the international judicial decisions are not generally binding. They are regarded as subsidiary mean's for the determination of the rules of international Law. The arbitral decisions have still less value because it is generally said that arbitrators work more as mediators rather than as judges. 2.3.5    Text Writers, 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. 2.3.6    Decisions or determinations of the organs of international institutions In the modem 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. After the establishment of U.N. most of the development of international law and its codification has taken place through the instrumentality of international organisations. The International Court of Justice has recognized it in a number of cases such as Certain Expenses of the U.N. (1962), South West African Cases (1966), Military and Para Military Activities in and against Nicaragua (1986), Effects of Awards of Compensation made by the U. N. Administrative Tribunal (1954), Application for Review of Judgment No. 158 of the U.N. Administrative Tribunal and Application for Review of Judgment No. 273 of the U.N. Administrative Tribunal. 2.3.7    Some other subsidiary sources of International Law Following are the other subsidiary sources of international law :— (i)    International Comity - Since mutual relations of nations are often based on the principle of comity, international comity has helped the development of international law. That is to say when a State behaves in a particular way with other States, the latter reciprocate and behaves in the same way. (ii)    International State Papers Other than Treaties - In the modern period, almost all the civilized States have diplomatic relations with each other. They send letters to each other in respect of matters of mutual interests. These letters are sometimes published, A study of these letters reveals that certain principles are repeatedly followed by States in their mutual intercourse. Sometimes these State papers help in the solution of a conflict or controversy. (iii)    State guidance for 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, (iv)    Place of Reason in the Modern System - '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. As pointed out by Pollock, "The law of nations is founded on justice, equity, convenience and the reasons of the thing and confirmed by long usage." (v)    Equity and Justice — In Barcelona Traction case, Sir G. Fitzmaurice emphasized the need for a body of rules and principles of equity in the field of international law. "Equity is used here in the sense of considerations of fairness, reasonableness and policy often necessary for the sensible application of the more settled rules of law. Strictly it cannot be a source of law, and yet it may be an important factor in the process of decision. Equity may play a dramatic role of supplementing the law or appear unobtrusively as a part of judicial reasoning. The principle of the 'exception' whereby existing rules are qualified to meet special cases, is a form of equity which takes on the form of judicial legislation." Further, "equity, in the present context, is encompassed by Article 38(1) (c) of the Statute, and not by Article 38(2), which provides : "the provision..........shall not prejudice the power of the Court to decide a case ex aequo et bono if the parties agree thereto." This power of decision ex aequo et bono involves compromise, conciliation, and legislation in a friendly settlement, whereas equity, in English sense is applied as a part of the normal judicial function." In the modem times more attention is being given to the principles of equity and justice. There is some evidence of the application of the principles of equity and justice. Three such areas were demonstrated in the North Sea Continental Shelf Cases, (1969). They are : (i) The Practice of States in their International Relations; (ii) International Customary Law ; and (iii) The Administration of Justice. The principles of equity and justice make their contribution in the international law making and in the codification and development of international law. Recently the principles of equity and Justice have been referred time and again the context of New International Economic Order, new Law of the Sea and in the field of Environment. 2.4 Order of use of Sources of International Law According to Article 38 of the Statute of International Court of Justice, following is the order of the use of sources of International Law : (a)    International Conventions, (b)    International Customs, (c)    General Principles of Law recognised by civilized nations, (d)    Judicial decisions and juristic opinion as subsidiary means for die determination o(' rules of International Law. As rightly pointed out by Manely 0. Hudson, "yet Article 38 did not establish a rigid hierarchy. In applying a provision in a convention, the Court may have to take into account the customary law prevailing when the convention was entered into, or general principles of law, as well as judicial precedents. A distinction may also have to be drawn between the categories listed, for they are not on equal footing. While it is possible to apply conventional or customary rule of law, it seems more proper to say that general principles of law, judicial precedent and juristic writings have only the nature of sources from which an applicable rule may be deduced." 2.5    Let us Sum Up We can conclude that the International Court of Justice by majority has taken the view that the sources of International Law are not hierarchical but are necessarily complimentary and inter-related. 2.6    Check Your Progress Exercise 1.    What do you understand by the term Source ? 2.    Explain Treaties as a Source of International Law ? 2.7    Glossary ☻  Conventions → A Traditional way of behaving or of doing something. ☻  Custom → A way of behaving which a particular group or society has had for a long time. ☻ I.C. → International Comity. 2.8    Answer to Check Your Progress Exercise 1.    See section, 2.2 2.    See sub-section, 2.3.1 2.9    Suggested Reading For Suggested Readings, see the list given at the end of the Lesson 1. 2.10    Terminal Questions 1.    Define International Law and Discuss its main sources ? 2.    Describe the treaties as a Source of International Law ? 3.    Define International Treaties and Explain various kinds of treaties. +++++ Chapter 3 INTERNATIONAL LAW AND MUNICIPAL LAW Structure 3.0 Introduction 3.1    Learning Objectives 3.2    Conflict between International Law and Municipal Law 3.3    Theories Regarding the Relationship between International Law and State Law 3.3.1    Monism Theory 3.3.2    Dualism Theory 3.3.3    Specific Adoption Theory 3.3.4    Transformation Theory 3.3.5    Deligation Theory 3.4    British Practice regarding Relationship between International Law and State Law 3.4.1    British Practice Regarding Customary Rules of International Law 3.4.2    British Practice Regarding Treaty Rules 3.5    American Practice regarding Relationship between International Law and State Law 3.5.1    Practice Regarding Customary Rules of International Law 3.5.2    American Practice Regarding Treaty Rules 3.6    Practice in Erropean and Latin American States 3.7    Indian Practice regarding Relationship between International Law and State Law 3.8    France Practice 3.9    Soviet Practice 3.10    Views of the People’s Republic of China 3.11    Let us Sum Up 3.12    Check Your Progress Exercise 3.13    Glossary 3.14    Answer to Check Your Progress Exercise 3.15    Suggested Readings 3.16    Terminal Questions 3.0 Introduction The relationship between international law and municipal law is a dynamic and intricate interplay that shapes the legal landscape of nations. International law governs the conduct of states in the global arena, while municipal law regulates the internal affairs of a sovereign state. This lesson explores the nexus between these two legal realms, examining the ways in which they interact, influence each other, and coexist within the complex framework of the modern legal system. 3.1    Learning Objectives: After going through this lesson, you will be able to : •    Discuss the conflict between international law and municipal law. •    Practice of international law in India, U.K. U.S.A. •    Explain the various theory regarding International Law and Municipal Law. 3.2    Conflict between International Law and Municipal Law International law is the law which governs the relations between states. The municipal or state or national law is the law which governs or regulates the behaviour of individuals in the state. In other words, whereas international law is concerned with the 'external' relations of a state, municipal or national law deals 'with the 'internal' or 'domestic' affairs of a state. But as the international community has no executive or judicial organ to enforce the international law, it has to be put into force through the governmental organs of states. There is, however, a difference of opinion as to whether the international law and the municipal law form one concept of law or they are a different systems of law independent of each other. The theory which holds that there is a unity in the two systems and they now from the same concept of law is called monistic, while the theory which supports that the two systems are different is known as dualistic. 3.3    Theories Regarding the Relationship between International Law and State Law There are five theories regarding the relationship between International Law and State Law—(1) Monism, (2) Dualism, (3) Specific Adoption Theory, (4) Transformation theory, and (5) Delegation Theory. The two main theories are Monism and Dualism and other theories have been derived from these two theories. 3.3.1    Monism Theory — According to this theory, law is a unified field of knowledge, no matter whether it applies on individuals, States or other entities. Thus international law and Stale law are intimately connected with each other. They are the two branches of unified knowledge of law. "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." In the ultimate analysis of law we find that individual is at the root of all laws. In the ultimate analysis, all laws are made for individuals. Wright Kelsen and Duguit, etc., are some of the prominent exponents of Monism. Theoretically and logically this appears to be the correct theory and it is very difficult to disprove it. However, it may be noted that this theory is not based on the actual practice of State. 3.2.2    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. It has been pointed out earlier that besides. States, individuals, international organisations and some non-State entities are also the subjects of international law. As regards origin of international law, the conception of State will is not correct. It is rather metaphorical. In fact, the State will is nothing but the will of the people who compose it. There are certain fundamental principles of international law which are binding upon the States even against their will. 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). This can also be criticised because this principle fails to explain the binding force of customary rules of international law. Whether Monism or Dualism is the correct theory — The above discussion shows that monism is a more correct theory but it is submitted that no theory can be complete in itself and it is not possible to include all the elements in it. The practice of States indicates that sometimes there is a primacy of international law, sometimes there is the primacy of the municipal law and sometimes there is mixture of different legal systems. For example, in the Greco, Bulgarian Communities case, the Permanent Court of International Justice held, "it is a generally acceptable principle of international law that in relations, between powers who are contracting parties to a treaty, the provisions of the municipal law cannot prevail over the treaty." On the other hand, when the municipal courts find that the conflict between the international law and municipal law is of such nature that cannot be avoided, they give primacy to the municipal law. 3.3.3    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. However, this view is generally followed by States in respect of international treaties. 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 the Supreme Court of India has held in Jolly George v. 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." As regards specific adoption of international treaties by Indian Parliament, the Anti Apartheid (United Nations Convention) Act, 1981, the Anti-Hijacking Act, 1982, the Suppression of Unlawful Act Against the Safety of Civil Aviation Act, 1982 and the International Monetary Fund and Bank (Amendment) Act, 1982 deserve a special mention. It may, however, be noted here that there are many principles of international law (especially customary rules) which are applied in the field of municipal law without specific adoption. 3.3.4    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 criticised 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. The Headquarter's Agreement between the United States of America and the United Nations is a glaring example of this. 3.3.5    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. Question of Primacy — According to the dualist theory, in case of conflict between international law and State law, State law will prevail. On the other hand Monistic writers are divided on this issue. Some jurists such as Kelson are of the view that in accordance with the fact and circumstances there may be the primacy of the State law or international law as the case may be. Criticism— The view that Stale law will prevail over international law in case of conflict, can be subjected to the following criticisms : (1)    The view that international law derives validity from State constitutions is absurd because it is generally agreed that disappearance of State constitution will not affect the validity of the international law. (2)    When a new State is admitted to the family of nations it becomes bound to obey the rules of international law even against its will. (3)    Most of the States have accepted the supremacy of international law in their constitutions. 3.4    British Practices Regarding Relationship Between International Law and State Law The British Practice relating to the customary rules of international law and treaty rules is different. 3.4.1    British Practice regarding customary rules of International Law In Britain customary rules of international law are treated as part of their own law. But these rules are subject to the following two conditions : (i)    Rules of international law should not be inconsistent with the British Statutes. (ii)    When the highest Court determines the scope of customary rule of international law all the courts in Britain are bound by it. The influence of the above practice is that British Courts generally interpret the statutes in such a way that they should not go against international law. Besides this, in British Courts the rules of international law need not be proved through evidence. There are following exceptions to the British practice in regard to customary rules of international law — (i)    Acts of State do not come within the purview of the British Courts, no matter whether they violate the rules of international law. (ii)    The British courts are bound by the prerogative power of Crown such as recognition of any State. 3.4.2    British Practice Regarding Treaty Rules In Britain the practice relating to treaties is based on the constitutional principles governing the relations between the executive and Parliament. The matters relating to negotiations, signatures etc. come under the prerogative powers of the Crown. In case of some type of treaties the parliamentary consent is necessary, while in other cases no consent is necessary for their application. Consent is necessary for the following types of treaties :— (a)    Treaties affecting the rights of British citizens; (b)    Treaties which amend or modify common or Statute laws of Britain; (c)    Treaties conferring additional powers on Crown', and (d)    Treaties which impose additional financial burden on the Government. In addition to these, treaties which expressly provide that for their implementation consent of the Parliament is required, consent of Parliament is essential for their application. The consent of Parliament is also necessary for those treaties which cede the British territory. Other types of treaties do not require Parliamentary consent. 3.5    American Practice Regarding Relationship between International Law and State Law In America also the practice regarding customary rules and treaties rules of international law is different. 3.5.1    Practice regarding customary rules of International Law In America the customary rules of international law are treated as a part of American law. In Paquete Hobana, Justice Gray remarked, "International Law is a part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of rights depending on it are duly presented for determination." The American Courts also interpret Statutes of Congress in such a way that they should not go against international law. 3.5.2    American practice regarding Treaty Rules In America the practice relating to treaty rules is based upon the provisions of the Constitution. Article VI of the American Constitution provides that Constitution of United States, all laws made in pursuance thereof and the international treaties entered into under the authority of the United Nations shall be the supreme law of the land. Thus in America, international treaties have been placed in the same category as the State law. However, it has been held by the Supreme Court of the United States of America that in case of conflict between the Constitution and International Treaty, the Constitution shall prevail. Besides this, in case of conflict between international treaty and Municipal law, whichever is later in date prevails. In America treaties are divided into two categories—(1) Self-executing treaties and (2) non-self executing treaties. Self-executing treaties become applicable in America without the consent of Congress, whereas non-self-executing treaties require the consent of the Congress to become applicable in the field of State law. 3.6    Practice in European and Latin American States A number of European States follow the principle of incorporation, or adoption, of customary International Law as that of Great Britain. The principle is applied either in judicial practice or on the basis of constitutional provisions as interpreted by the courts. An increasing number of States make appropriate provisions in their constitutions. As far as treaties are concerned, many countries adhere to the principle that treaties made in accordance with the Constitution bind the courts without any specific act of incorporation. A number of Constitutions in the Latin American States contain specific provisions proclaiming International Law to be part of the law of the land. Resolution No. XIII of the Conference of the Problems of War and Peace (1945) contained the first official pronouncement of the Inter-American Community on the subject. It stressed the need for all States to strive towards incorporation of the essential principles of International Law into their Constitutions and other municipal laws. It is thus clear that the Latin American practice, by and large, accepts the principle that International Law continues to be as equally effective as municipal law. 3.7    Indian Practice Regarding Relationship between International Law and State Law Article 51(c) of the Constitution of India provides that State shall endeavour "to ensure the respect to international law and obligations arising out of international treaties". It has been pointed out and rightly too, that the words "international law" mean customary rules of international law because "international treaties" have been separately mentioned in the said provision. The above article does not provide clear guidance regarding application of rules of international law in the field of State law. Moreover, Article 51(c) is conspicuous by its silence over other sources of international law. It may be noted here that Article 372 of the Constitution provides that the laws which prevailed before the adoption of the Indian Constitution shall continue to prevail if they have not been specifically repealed or they are not inconsistent with the provisions of the Constitution. As a matter of fact, Indian practice is more or less same to that of Britain. A brief reference may be made here to the case of Sri Krishna Sharma v. State of Bengal, wherein it was held that whenever the courts interpret State law they should try to interpret it in such a way that their interpretation should not be contrary to international law. Reference may be made here to Article 253 of the Constitution which provides that Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at an International Conference, association or other body. In Union of India v. Sukumar Sengupta or 'Teen Bigha' case, under 1974 agreement and 1982 agreement the Government of India had given to Bangladesh Government the facility of using the Indian area called "Teen Bigha". As per agreement "the lease in perpetuity" of the said area had been given for the purpose of connecting Dahagram and Angarpota with Pandbari Mouza (P.S. Patyram) to enable the Bangladesh Government to exercise sovereignty over Dahagram and Angarpota. Clause 2 of the agreement provided that Sovereignty over leased area shall continue to vest in India. The rent of the lease area shall be Re. I/- per annum but Bangladesh would not be required to pay the said rent for the Government of India waived its right to charge the said rent. The Supreme Court held that it was neither cession nor lease. "The concessions given to Bangladesh over the said area might amount to servitude suffered by it in its territory, as known in International Law". The Supreme Court further held that since there was no cession of any part or territory not abandonment of sovereignty constitutional amendment was not necessary and "there was no cause to direct the legislature to amend or pass suitable laws." In case of conflict between a provision of an international treaty such as Article of International Covenant on Civil and Political Rights to which India is a party and a provision of a Stale statute such as Section 51 (proviso) and Order 21, Rule 37, Civil Procedure Code it is the latter which shall prevail if the international treaty in question has neither been specifically adopted in the municipal field nor has gone under transformation. This was held by the Supreme Court of India in Jolly George v. Varghese and another. The rule laid down by the Supreme Court in this case has been implemented by the Karnataka High Court in Civil Rights Vigilance Committee, S.L.S.R.C. College of Law, Bangalore v. Union of India. In this case, the High Court observed, ".............that the provision in Article 51 is not enforceable by any court and if the Parliament does not enact any law for implementing the obligations under a treaty entered into by the Government of India with foreign countries, courts cannot compel Parliament to make such law. In the absence of such law, courts cannot also, in our view, enforce obedience of the Government of India to its treaty obligations with foreign countries............". But, the position-will be different when there is no conflict between International Conventions and the domestic law. As pointed out by the Supreme Court in Vishaka v. State of Rajasthan, in the absence of domestic law occupying the field to formulate effective measure to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality of right to work with human dignity in Articles 14, 15. 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the International Convention, and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. In this case the Apex Court was dealing with the problem of sexual harassment of working women. Delivering the judgment for the three Judge-Bench, J.S. Verma, C.J.I., observed that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment abuse. Independence of judiciary forms a part of our constitutional scheme. The International Conventions (especially Convention on the Elimination of All Forms of Discrimination against women) and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of Judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court referred with approval the decision in Vishaka v. State of Rajasthan for its innovative judicial law making process". In this case, a superior officer of the corporation was found guilty of molesting and of having attempted to physical assault to a subordinate female employee. As a punishment, he was dismissed from service. But, the High Court held that the occurrence as alleged had not taken place. Though the High Court did not find fault with the finding as the unbecoming act delinquent officer or with the conduct of inquiry yet the High Court interfered with punishment of dismissal on the ground that since the delinquent had not "actually molested" and had "not managed" to make physical contact with her, the punishment of removal was not justified. The Supreme Court held that what punishment was required to be imposed in the facts and circumstances of the case was a matter which fell exclusively within the jurisdiction of the competent authority and did not want any interference by the High Court. The entire approach of the High Court had been faulty. The impugned order of the High Court cannot be sustained on this ground alone. Reversing the order of the High Court the Supreme Court further observed that there is another aspect of the case which is fundamental and goes to the root of the case and concerns the approach of the-High Court while dealing with cases of sexual harassment at the place of work of female employee. Dr. Anand, C.J.I., further observed : "In cases involving violation of human rights the courts must for ever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the international conventions and norms while dealing with the case. The learned C.J.I, then referred ILO Seminar held at Manila in 1993, the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, the Beijing Declaration and the International Covenant on Economic, Social and Cultural Rights and observed : "These international instruments cast an obligation on the Indian State to gender sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. The Supreme Court has in numerous cases emphasized that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in international conventions and instruments and as far as possible give effect to the principles in those international instruments. The Courts are under an obligation to give due regard to international conventions and norms for construing domestic laws more so often when there is no inconsistency between them and there is a void in domestic law. In Chairman, Railway Board and others v. Mrs. Chandrima Das and others, the Supreme Court observed that "the International Covenant and Declarations as adopted by the United Nations have to be respected by all signatory states and the meaning given to the words in such declarations (for example Universal Declaration and Declaration on the Elimination of Violence Against Women) and covenants have to be such as would help in effective implementation of these rights. The applicability of the Universal Declaration of Human Rights and principles thereof may have to be read, if need be, into the domestic jurisdiction" 3.8    France Practice In France, the customary rules of International Law are treated as a part of municipal law unless they are in conflict with the statute or the constitutions of the country. With regard to treaties, there is no uniformity in the decisions of French Courts. Sometimes courts have allowed treaty to prevail over statute law; while often they have taken a contrary view. With regard to the enforcement of treaties the position in France it also fluid. Some treaties require proclamation as laws, while others are simply published. 3.9    Soviet Views Article 29 of the Constitution of the Union of Soviet Socialist Republics lays down that the U.S.S.R’s relations with other States are based, inter alia, on observance of the following principles, viz. fulfillment in good faith of obligations arising from the generally recognised principles and rules of International Law and from the international treaties signed by the U.S.S.R. The Soviet view strongly repudiate the subordination of internal law to International Law, although in actual practice it is true that it may not be possible to enact provisions of municipal law which would be contrary to international treaties signed by the U.S.S.R. "Like any other law, International Law reflects the will of the ruling classes. The reality of International Law, however, is not obviated by the fact that for the time being there are on the international stage bourgeois States as feudal and socialistic ones. Each of them, implementing its own approach and directed by its own motives, may be interested in supporting and preserving a certain portion of generally binding legal norms in international relations.” 3.10    Views of the People's Republic of China The 1982 constitution of the People Republic of China retains the totality of the previous constitution. The Revolutionary Committees remain the organs of political power from the provincial level down to the commune level. It sets out the fundamental rights and duties of citizens. Citizens enjoy freedom of speech, freedom of religious belief, the inviolability and freedom of person of citizens of the Peoples’ Republic of China, freedom and privacy of citizens, freedom of the press, assembly, association, procession, demonstration and the freedom to strike, and have the right to speak out freely, air their views fully, hold great debates and write big-character posters. The constitution is a self-centred constitution—it does not embody any specific provision with regard to the country's relations with other countries beyond what is contained in its preamble. Its avowed aim is to continue the revolution and make China a great, powerful socialist country with modern agriculture, modern industry, modern national defence and modern science and technology by the end of the century. To a great extent China adheres to the view of the USSR and treats International Law as a political instrument for the purpose of utilising it in the implementation of its foreign policy so long as it is not in conflict which its own national interests. 3.11    Let us Sum Up The practice of States regarding the relationship of International Law and municipal law is divergent. Application of International Law depends largely upon the legislature as well as judiciary of a State. They are expected to take cognizance and endeavour to honour the international obligations of the State. It has to be realised that neither municipal law nor International Law is supreme, but they are concordant with each other. Both have been made to solve the problems of human beings in different areas. 3.12    Check Your Progress Exercise 1)    Explain Monistic Theory ? 2)    Discuss Davlism Theory ? 3)    Discuss American Practice Regarding Relationship between International Law and State Law ? 3.13    Glossary ☻ I.M.F. → International Monetary Fund. ☻ Treaty → A written agreement between two or more countries. ☻    U.S.S.R. → Union of Soviet Socialist Republic. 3.14    Answer to Check Your Progress Exercise 1)     See Section,3.3.1 2)     See Section,3.3.2 3)     See Section,3.5 3.15    Suggested Readings ☻ For details see the list given at the end of lesson 1. 3.16    Terminal Questions 1.    Discuss the man theories of relations between International and Muncipal Law ? 2.    Discuss the relation between International Law and Municipal Law ? Refer to Leading Cases ? ^^^^^ Chapter – 4 DEVELOPMENT OF INTERNATIONAL LAW Structure 4.0 Introduction 4.1    Learning Objectives 4.2    Origin of International Law 4.3  Contribution of Jews, Greeks, Romans, Hindus and Muslims 4.4  Development of International Law during 16th and 17th century 4.5  Development of International Law during 18th century 4.6  Development of International Law during 19th & 20th century 4.7    Review of International Law in 2nd Millennium 4.8    Challenges before International Law in the 3rd Millennium 4.9    Let us Sum Up 4.10    Check Your Progress Exercise 4.11    Glossary 4.12    Answer to Check Your Progress Exercise 4.13    Suggested Readings 4.14    Terminal Questions 4 .0 Introduction International law, the bedrock of global cooperation and peaceful coexistence, has undergone a remarkable evolution over centuries. From its early roots in customary practices to the establishment of international institutions, the development of international law reflects the dynamic interplay of states, societies, and the ever-changing nature of the global landscape. 4.1    Learning Objectives: After going through this lesson, you will be able to : 9 Discuss the historical development of internatiuonal law. 9 Explain the brief review of international law in the second Millennium. 9 Discuss the development of international law during 19th and 20th century. 4.2    Origin of International Law International Law as, we find today is the product of the experience of the civilized countries of the world and the continuous growth of many centuries. According to Prof. Oppenheim, "International Law is in its origin essentially a product of Christian civilization and began gradually to grow from the second half of the Middle Ages." The claim of the European scholars that the credit of giving birth to International Law as we know today, is that of the European countries, is not correct. Sri S.S. Dhawan rightly observed : "The allegation of Western jurists, Oppenheim and others that International Law originated in Europe and is the creation of Western civilization is falsified by a study of the original texts of 'Ramayana' (and of the 'Mahabharata')". Fawcett has also written, "In India too there can be found in the work of Kautilya in the fourth century B.C. elaborate rules for the conduct of diplomacy, as a means of avoiding conflicts and the reception and treatment of diplomats". In the view of Sri S. S. Dhawan a study of the Ramayana reveals that in the Ramayana period relations of the sovereign rulers were based on the definite rules of International Law and these rules were recognised by all sovereign rulers. In this view : "These very principles are the foundation of modern International Law." Although it is true that International Law had attained a sufficient stage of development in ancient India, yet it must be conceded, as pointed out by Brierly that: ".................as a definite branch of jurisprudence the system which we know as International Law is modern, dating from the sixteenth and seventeenth centuries, for its special character has been determined by that of the modern European State System, which was itself shaped in the ferment of renaissance and the reformation." So far as the origin of the International Law is concerned, almost all the civilized States have made their contributions in its development. In this connection the contribution of Jews, Romans, Greeks, Hindus and Muslims deserves a special mention. A brief discussion of their contribution is being given in this chapter. 4.3    Contribution of Jews, Greeks, Romans, Hindus and Muslims :- Jews -- A study of the ancient history reveals that the Jews had relations with other countries. Their relations with other countries were regulated and governed by certain rules. The famous slogan of the Jews was "Love the stranger for yet were strangers in the land of Egypt." It is clear from this slogan that they believed in internationalism. But, since they believed in monism in respect of religion, they did not treat those nations on the basis of equality which believed in dualism or plurality of Gods. The Jews strictly followed the treaties entered into by them with other countries and conferred privileges and immunities upon the diplomatic envoys. Thus, the Jews made some contribution in the development of International Law in the ancient period. Greeks —It is clear from the study of ancient history that when most of other States of the world were backward and less civilized, the Greek civilization was quite advanced and the Greeks had achieved great advancements in different fields. Socrates, Plato, Aristotle and other Philosophers of Greece enlightened the world through their ideas and philosophies. Greeks lived in small city-States. The mutual relations of these States were regulated and governed by some definite rules and principles. They had formulated definite laws of war and peace. They used to resolve their dispute through arbitration. Prior declaration was made before the commencement of war. There was also provision for the exchange of prisoners of war but there was a custom of taking ransom for the release of some types of prisoners. The Greeks had formulated many laws relating to war. Oppenheim has rightly remarked that the Greeks had shown to the world how sovereign States could live in mutual co-operation with each other like a single community. It may, however, be noted that the Greek had more talents for development of art and philosophy, than for the development of law. Nevertheless, the Greek philosophy, ideas and their practices indirectly contributed to the development of International Law. Romans — As compared to the Greeks. Romans were endowed with far greater talents for the development of International Law. Although, modern International Law is ordinarily regarded as dating from the 16th and 17th centuries, it cannot be denied that the Romans contributed much to the development of modern International Law. In its early period, Rome was a small city-State and had relations with other States. These relations was based on the rules of International Law. Subsequently, the Roman Empire greatly expanded yet the Romans always considered themselves bound by laws and rules on the basis of laws. Romans deserved the credit for developing the laws of war. According to them, there were two types of war—just and unjust. Following were the grounds of waging just wars : (I) Attack on Roman territories, .(2) Disregard or the violation of the privileges of ambassadors, (3) Contravention of Treaties, and (4) Assistance to enemy States by friendly countries of Rome. According to Romans, following were the modes of termination of war:—(i) through Treaty of Peace; and (ii) through conquest and annexation of the conquered territories. Similarly, the Romans, had divided the treaties into following three categories :—(i) Treaty of Friendship; (ii) Treaty of Alliance; and (iii) Treaty of Hospitality. The Romans strictly adhered to the provisions of the treaty and in their view prior intimation was necessary for termination of Treaties. Thus, the Romans made significant contribution in the development of International Law. As pointed out by Brierly "The position of Roman Law in Europe in 16th century has important bearing on the beginning of International Law." Hindus—As pointed out earlier, some of the rules of International Law were quite in a developed stage in ancient India. A thorough study of the Ramayana, Mahabharata, Manusmriti. Kautilya's Arthashastra will justify the truthfulness of the Statement. As pointed out by Sri S.S. Dhawan, Member, Indian Law Commission, "The students of International Law will learn from a study of Balmiki Ramayana that the relations between sovereigns in the age of the Ramayana were governed by a Code of conduct based on principles which were recognized and observed by all the sovereigns; they were rarely violated and any attempt by an individual sovereign to violate them was condemned by the sovereign's own counsellors. These very principles are the foundation of modern International Law." Bhagvat Gita which is regarded a pious religious text-book by Hindus, has not only classified just and unjust wars but has also made a vivid discussion of them. A study of Bhagvat Gita also reveals that the declaration of war before its commencement was essential. The duties of the State in administrative and external matters have been vividly discussed in Kautilya's Arthashastra. According to Kautilya just as well as unjust means could be used in wars. The study of the Ramayana and Mahabharaia reveals that during that period diplomatic agents enjoyed many privileges and immunities. International Law relating to diplomatic agents was in its development stage. Manu had propounded many principles and rules in his Code, popularly known as Manu's Code. In his view, war could be either just or unjust. According to him, to fight and die in a just war was a good deed indeed. In view of Manu deceit or poisonous weapons were prohibited in war. To kill wounded or sick soldiers in war was contrary to the rules of war. There were also definite rules relating to the treatment of prisoners of war. Thus, International Law was in a developed stage in India. Thus it may be rightly concluded that Hindus contributed to the development of International Law. Muslims/Mohammedans — The Muslim rulers of India had relations with other nations. They received the ambassadors of other States and entered into treaties with them. They had formulated some rules which governed relations with Muslim States. The Muslim rulers recognised the distinction between combatants and non-combatants and had formulated rules for according protection to women and children during war. The prisoners of war were left at the mercy of Imam. They observed their treaties in good faith. 4.4    Development of International Law during 16th and 17th Centuries The middle ages witnessed many obstacles in the growth of strong centralised Governments. The two main such obstacles were Feudalism and the Church. Feudalism was formidable obstacle to the growth of the national State. The other strong influence which retarded the growth of States in Middle Ages was the Church. However, rapid changes were taking place. A great landmark in this connection was the Treaty of Westphalia of 1648 which ended the thirty year's war of religion and was the beginning of the acceptance of new political order in Europe. Political developments were leading to the separateness and irresponsibility of every State. Meanwhile, there were certain counter factors leading to intimate and constant relations of States with one another. According to Brierly, the following were such causes:— "(I) the impetus to commerce and the new route to Indies; (2) the common intellectual background fostered by the renaissance; (3) the sympathy felt by coreligionists in different States for one another, from which arose a loyalty transcending the boundaries of State; and (4) the common feeling of revulsion against war, caused by the savagery with which the wars of religion were Waged." To quote Brierly again "All these causes co-operated to make it certain that the separate State could never be accepted as the final and perfect form of human association, and that in the modern as in the medieval world it would be necessary to recognise the existence of a wider unity. The rise of International Law was the recognition of this truth. It accepted the abandonment of the medieval idea of a world State and took instead as its fundamental postulate the existence of a number of States, secular, national and territorial; but it denied their absolute separateness and irresponsibility, and proclaimed that they were bound to another by the supremacy of law. Thus it re-asserted the medieval concept of unity, but in a form which took account of the new political structure of Europe." 4.5    Development of International Law during 18th century : Contribution of Naturalists and Positivists— 17th and I8th centuries are conspicuous for giving birth to three different schools of International Law, namely, the Naturalists, the Positivists and the Grotians. Grotians— Grotius was an eminent jurist and contributed much to the development of modern International Law. He has the credit of secularizing the concept of natural law. He defined natural law as, "The dictate of right reason, indicating that an act, from its agreement or disagreement with the rational and social nature of man has in it moral turpitude or moral necessity, and consequently that such an act is either forbidden or commanded by God, the author of nature." Grotius contributed much for the development of International Law. He is, therefore, often called the 'father of modern International Law'. The followers of Grotius were called Grotians. The more famous among them were Vattel and Christan Wolf. According to Grotians, International Law has originated not only from natural law but customs and treaties are also its sources. Thus, according to Grotians, International Law is the product of natural law as well as customs and treaties. As pointed out by Oppenheirn, "The 'Grotians' stand midway between the Natural and the voluntary Law of Nations but in contradistinction to Grotius, they consider the positive or voluntary of equal importance to the natural, and they devote, therefore, interest to both alike." 4.6    Development of International Law during 19th and 20th Centuries There were many factors which led to the development of International Law in 19th and 20th centuries. The relations of the State and their mutual contracts had greatly increased during the said period and many rules and principles were formulated on the basis of the practice of States and the needs and requirements of the changing times and circumstances. We will discuss them under the following headings :— (1)    Congress of Vienna, 1815—The Congress of Vienna, 1815 was a landmark event for the development of International Law. It was the first important European conference where many rules of International Law were formulated, e.g., rules relating to international rivers, classification of diplomatic agents, etc. (2)    Declaration of Paris, 1856—The Declaration of Paris was a law making treaty in which many rules relating to naval warfare were laid down. Attack on undefended people during naval war was prohibited. It was also laid that enemy ships could be sunk or otherwise destroyed during war but before doing so, precautions should be taken to save the life of the crew of the ship. (3)    Geneva Convention, 1864— Many rules relating to the wounded and sick members of the armed forces during land warfare were laid down in Geneva Convention of 1864. Killing of wounded soldiers prohibited and rules were made for providing certain facilities to them. (4)    Hague Conference, 1899 and 1907— Hague Conferences of 1899 and 1907 are rightly reckoned as great landmarks relating to the development of International Law. They resulted in the adoption of several conventions of various subjects of International concern. These conferences emphasised the settlement of International disputes through peaceful means. Many rules of International Law relating to land warfare and naval warfare were formulated. Bombardment over undefended people was declared illegal. Endeavour was also made to determine the limits of armaments and to achieve ultimately disarmament. Duties and rights of neutral States during naval war were also clearly laid down. Yet another great contribution of the Hague Conference was the establishment of the Permanent Court of Arbitration. It was a landmark event in the history of the development of International Law. It contributed much in the attainment of the objective of International Law to settle international disputes through peaceful means. (5)    The League of Nations—After the First World War, the nations of the world felt the need of an International organisation which might he able not only to regulate amicably the mutual relations among the nations but may also prevent future wars. The League of Nations was established under the Treaty of Versailles, 1919. The League of Nations, for the first time, imposed certain restrictions upon the Nations' rights to resort to war at their will. The covenant of the League of Nations provided, that before, resorting to war, they would first settle their dispute through arbitration, Judicial settlement or enquiry by council. It was also provided that even if their disputes were not solved through these means, they would not go to war until the lapse of three months after such failure. It was further laid down that a member of the League going to war in violation or disregard of the provisions of the covenant, would be deemed to be the enemy of the whole League of Nations. Yet another great achievement of the League of Nations was the establishment of the permanent Court of International Justice which contributed much to the progressive development of International Law. The covenant of the League of Nations, was in fact, a law-making International Treaty. It was the auspicious beginning of a good trend. After it, the development of International Law owed mostly to lawmaking International Treaties. (6)    Treaty of Locarno—France, Britain, Germany and Italy, etc., concluded the Treaty of Locarno whereby Germany, France and Belgium undertook the obligation of not using force in the settlement of their boundary disputes. The parties to the treaty also expressed their resolve, to settle their disputes through peaceful means, Germany, however, refused in 1936 to follow the provisions of this treaty. (7)    Geneva Convention, 1929—This Convention was signed by 47 States of the world. Many rules relating to the treatment of prisoners of war were laid down in this convention. Reprisal against prisoners of war, cruelty towards them and collective penalties against them were prohibited. Rules were also formulated for providing medical and other facilities to the prisoners of war. (8)    Second World War—Almost all the above mentioned rules of International Law were flagrantly violated during the Second World War which turned into a 'total war'. It however sowed the seeds of a future world organisations because the devastating effects and hair-splitting experiences of the war once more compelled the nations of the world to make their attempts afresh to establish an International organisation which may ensure lasting peace to the world and establish rule of law in the International field. Consequently, the Second World War indirectly led to the eventual establishment of the United Nations. (9)    The United Nations—The United Nation's Charter came into force on October 24, 1945, and thus the United Nations was established. In the beginning the number of its members was only 51 which has now swelled to 193, i.e., nearly four times. 4.7    Brief Review of International Law in the Second Millennium The Second Millennium witnessed the birth, growth and development of Public International Law as a Universal force or a legal system to reckon with. The modern international law as a definite branch of jurisprudence which we know today is said to be dating from the sixteenth and seventeenth centuries. Born as it were in Europe it was determined by the modem European system. Started to serve the interests of a few European states and thus marked by Euro-Centrism in the course of time it became a branch of jurisprudence of general and then universal application. There has been vertical as well as horizontal expansion of International Law. From being traditional law governing the relation of sovereign states, International Law expounded to embrace international organizations, individual and non-state entities as its subjects. Indeed the establishment of the United Nations and development of human rights were probably the most remarkable things that were witnessed in the second millennium While traditionally comprising only customary and treaty rules, international law expanded to include general principles of law recognized by civilized states, decisions of Judicial and arbitral tribunals and juristic works as subsidiary means for the determination of rules of international law and last but not the least decisions and determination of the organs of the International organisations. Besides applying on lands, rules of international law started applying to outer space, lakhs of kilometres outside the orbit of earth, to the thousands of metres below the waters of the Ocean. While there has been phenomenal expansion of international law, it was also confronted with challenges at different fronts such as those of nuclear weapons, scientific and technological revolution, environmental degradation and pollution, population explosion etc. While some serious efforts such as those of entering into International Nuclear Forces Treaty (TNFT), Strategic Arms. Reduction Treaty (START), Non-proliferation Treaty (NPT) and Comprehensive Test-Ban Treaty (CTBT) have been made the challenge of nuclear weapons still remains formidable and grim. So is the case with the problem of environmental pollution and degradation including global warning. Though serious efforts such as Earth Summit (1992) and Kyoto Summit (1997) and Earth Summit on Sustainable Development (2002) have been made, the challenge still remains formidable and situation continues to be grim. Yet another anomaly witnessed during the Second Millennium has been the uneven development and progress or the countries of the world. While a few European and American countries have prospered, a large number of Asian and African countries are still struggling and facing with shortages of food and consumer goods. The population explosion has further complicated the problem and has made the situation quite serious and grim. Yet another serious problem confronting international law is the growing menace of terrorism with its different manifestations such as hijacking and taking of hostages and its links with illicit drug trafficking. Last but not the least, establishment of peace remains as elusive as ever. Though it is quite heartening to note that the United Nations, which was established after the Second World War, has been successful in preventing the Third World War for more than 57 years yet it cannot and must not be forgotten that the absence of war does not denote peace. It is ironical that the United Nations Charter simply speaks of maintenance of international peace and security and not the establishment of international peace. The prerequisites of the establishment of peace and security are economic, social, political and cultural justice which still remain the cherished goals to achieve. 4.8    Challenges before International Law in the Third Millennium It is desirable to keep in mind the challenges before International Law in the Third Millennium. One of the greatest challenges before International Law in the Third Millennium is the danger of a nuclear war. As noted above, despite serious efforts to meet this challenge in the Second Millennium, the situation continues to remain serious rather grim. If the nuclear war takes place, either the man may have to start again from the stone age or while mankind may be erased from the face of earth. One of the main reasons for the lack of success in this field is the narrow national interests and ambitions and lack of mutual trust and confidence among states. Even the realization of the consequences of even a limited nuclear war have failed the countries to come together for the general benefit of the whole mankind. International Law will have to cope with this great menace. At stake is the very survival of mankind. Yet another formidable challenge is that of environmental degradation and pollution which is no less serious than that of a nuclear war. Serious efforts have been made in the Second Millennium to solve this problem. Stockholm Conference of 1972 and Earth Summit of 1992 deserve special mention in this connection. These conferences have simply sown the seeds, shown the ways through which the problem can be solved. But the real problem is that of implementation. For example, in the Kyoto Environmental Summit on Global warming it has been decided that America, European Union and Japan will reduce the consumption of green house gases by 7%, 8% and 6% from the level of 1990 and these targets will have to be achieved in between 2008 and 2012. Only the Third Millennium will witness whether the countries named above are able to achieve these targets. There was, however, a setback when America abandoned the treaty in 2001. The Kyoto Treaty came into force on 16 February, 2005 and has now as many as 187 States Parties. But America, the main polluter did not become a member of the Treaty. This is indeed a great setback. Moreover many Asian and African countries including India because of their economic problems are not able to make their contributions in the reduction of consumption of green house gases. If the present and ensuing environmental problems are not solved in a near future, the Planet Earth will have to encounter a very bleak and grim future. If the present rate of warming up of the Earth continues, waters of oceans may rise by several metres, ice on the high mountains may melt, vegetation and human life may suffer because of direct ultra-violet rays of the sun, disease's like cancer may proliferate and so on. Glaring examples of constant increase in global warming of the planet earth are Nuclear disaster in Japan and bursting of clouds and flash flood in Kedamath and Badrinath in Uttarakhand. Mankind will be in peril if it does not take heed of these and several other events. Yet another challenge before International Law in the' Third Millennium is the menace of terrorism. It is unfortunate that no serious attempt had been made till recently to tackle this problem at the international level. International Law during the Third Millennium will have to tackle this problem. The United States of America had to pay dearly for the attack of terrorists on twin towers of World Trade Centers at Newyork on 11th September, 2001, i.e. the very first year of the New Millennium is without any shade of doubt are the most horrible and devastating events of the history. It shook not only America, the mightiest country of the world but also the whole world. It sent the chilling shock waves throughout the entire world. If America, the strongest nation of the world, can thus be the target of the terrorists no country in the entire world is safe. America regarded it as a war against it and vowed to avenge itself. But America did not respond immediately. America first enlisted the support of its allies and other countries and even asked Pakistan to support it in its war against terrorism. Then America waged a full-scale war against Taliban Government of Afghanistan. Due to heavy American bombings, for nearly two months the Taliban Government crumbled and collapsed. Due to the efforts of the United Nations, a new interim Government of Afghanistan has been formed. Yet another serious event that manifested the menace of terrorism was the terrorist attack on Indian Parliament on 13th December, 2001. Though the attempt was foiled by the security staff of the Parliament, it shocked the conscience of whole nation and underlined the need of more and strict vigilance over all the important buildings of the country. The menace of terrorism has not abated even after the decline and fall of Taliban Government of Afghanistan. This is evident from the terrorist attack on American Centre at Kolkata. Fortunately, the international community seems to have awakened to the grave challenges of terrorism. For example, the United Nations adopted the International Convention for the Suppression of the Financing of Terrorism, 1999. The United Nations adopted International Convention for the Suppression of Acts of Nuclear Terrorism (April, 2005). But acts of terrorism all over the world, especially in India, remain unabated. This is evident from London Blast in July, 2005, attack on Ram Janam Bhumi Premises at Ayodhya in July, 2005, attack on Sankatmochan Temple in Varanasi on 7 March, 2006 and Mumbai Blasts at Local Trains on 7 August, 2006. Though India is most hard-pressed due to terrorist attacks for a long time, yet it cannot but be denied that terrorism is not limited to India, it has spread all over world even in America and Britain. It can be curbed only with the help and cooperation of all nations. During the Third Millennium International Law will also have to cope with scientific and technological advances in the field of means of communication and tele-communication which are taking place with an accelerated speed. A formidable challenge before International Law in the Third Millennium is that of economic disparity. A considerable number of Asian and African countries are still facing the problems of poverty, shortages of food and consumer goods, debt burden etc. During the Second Millennium, the concept of new-International Economic Order was evolved but despite several solemn declarations it could not make much headway due to non-cooperation of developed countries. Ultimately the forces free and open markets and capitalism triumphed. This finds its manifestation in the establishment of the World Trade Organisation (WTO). Even countries like Russia, despite their inhibitions, have been compelled to vying with other countries to get the membership of this organization which is the brain child of countries like America. China has already become a member of W.T.O. International Law in the Third Millennium will have to cope with this formidable problem. So long as there is a wide gap and economic disparity between the rich and poor countries permanent and lasting peace cannot be secured or established. 4.9    Let us Sum Up We cn conclude that, one of the most remarkable things that took place after the establishment of the United Nations was the development of the concept of Human Rights which tended to make International Law a branch of jurisprudence of universal application. While human rights jurisprudence has recorded phenomenon growth during last fifty years, it is somewhat paradoxical that violations of human rights and fundamental freedoms all over the world have not abated. The problem of their observance and implementation still remains crucial. There is no dearth of law. Monitoring and international supervision of the observance of human rights will have to be improved in the Third Millennium. 4.10    Check Your Progress Exercise 1.    Discuss the internal background of International Law ? 2.    Explain the progressive modern development of International Law ? 4.11    Glossary ☻ I.N.F.T. → International Nuclear Forces Treaty. ☻ START → Strategic Arms Reduction Treaty. ☻   CTBT → Comprehensive Test Ban Treaty. ☻    N.P.T. → Non-Proliferation Treaty. 4.12    Answer to Check Your Progress Exercise 1.    See Section, 4.3 2.    See Section, 4.4, 4.5 and 4.6 4.13    Suggested Readings ☻ For details see the list given at the end of lesson 1. 4.14    Terminal Questions 1.    Discuss the Contributions of various Civilizations in the Development of International Law ? 2.    Discuss the History of Development of International Law since 16th century? 3.    Discuss the Contribution of Gretius to the International Law. Can he be considered the father of International Law ? Chapter-5 CODIFICATION OF INTERNATIONAL LAW Structure 5 .0 Introduction 5.1    Learning Objectives 5.2    Meaning and Definitions of the term Codification 5.3    Difficulties of Codification 5.4    History of Codification 5.5    Declaration of Paris, 1856 5.6    Codification by Individual Writers 5.7    The Two Hague Conferences 5.8    Codification under the League of Nations 5.9    Codification Under the United Nations 5.10    Work of the International Law Commission 5.11    International Law Commission 5.12    Convention and Treaties 5.13    Merits of Codification 5.14    Demerits of Codification 5.15    Let us Sum Up 5.16    Check Your Progress Exercise 5.17    Glossary 5.18    Answer to Check Your Progress Exercise 5.19    Suggested Readings 5.20    Terminal Questions 5 .0 Introduction Codification in international !aw refers to the process of systematically organizing and consolidating the rules and principles of international law into a unified and coherent framework. This process involves the creation of treaties, conventions, and other legal instruments that set out the rights and obligations of states and other international actors. The aim of codification is to clarify and standardize the rules governing relations between states and promote greater certainty and predictability in the conduct of international affairs. 5.1    Learning Objectives After going through this lesson, you will be able to :- ☻    understand the concept of Codification. ☻    explain the difficulties of codification. ☻    trace the history of codification. 5.2    Meaning and definition of the term codification By the term codification we ordinarily mean the process of reducing the whole body of law into Code in the form of enacted law. It generally connotes a systematic arrangement of the rules of law which are already in existence. According to Sir H. Lauterpacht, "The task of codifying International Law, if it is to mean anything, must be primarily one of bringing about an agreed body of rules already covered by customary or conventional agreement of Slates." But, this is the narrow meaning of the term 'Codification'. In its wider sense, it may also mean modification of the existing rules of law; so as to keep them pace with time and adapt them in accordance with the needs of time.' According to R. Y. Zennings, "..........'Codification' means any systematic statement of the whole or part of the law in written form, and that it does not necessarily imply a process which leaves the main substance of the law unchanged, even though this may be true of some cases. In other words, codification properly conceived is itself a method of the progressive development of Law. In the words of Manfred Lachs, President of the International Court of Justice, '’.........The two processes-progressive development and codification far from being mutually exclusive, are in fact merged." Reference may also be made here to Article 15 of the Statute of the International Law Commission which provides that the expression, "progressive development of International Law" is used for convenience as meaning the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law yet has not been sufficiently developed in the practice of States. Similarly, the expression "Codification of International Law" is used for convenience as meaning the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine. 5.3    Difficulties of Codification. The chief difficulty, however, in the way of codification, as Sir Cecil Hurst aptly remarks, "If it is left to governments to meet in conference for the purpose of deciding what are the rules of International Law, it is inevitable that their efforts will be directed to agreeing or trying to agree on the rules of International Law as they ought to be, i.e., the rules which would be appropriate to their present day requirements ; and delegates will find that the requirements of the government are an diversified, so contrary, that agreement is impossible." The difficulty of codification of International Law is further enhanced on account of the fact that the existing law is not well settled in the form of customary rules generally accepted of judicial precedent or of enactments to enable the draftsman to make an orderly arrangement of the law by devoting himself not to the substance or policy of the law but with the form of its presentation. The international codifier is however, not required to confine his attention to the form of the law but to its substance, to fill up gaps where the law is uncertain and to give precision to abstract general principles of which the practical application is unsettled. "In circumstances such as these, observes Brierly, "codification has ceased to be a technical task which can be entrusted to lawyers ; it has become a political matter, a task of law creation, and in the absence of any international organ of legislative powers the contents of the code can be settled only if the representatives of governments can agree upon them. 5.4    History of Codification The idea of codification of the Law of Nations was first mooted by Bentham at the end of the eighteenth century. He suggested a utopian International Law which could be the basis of an everlasting peace between the civilized Stales. The National Convention of France resolved in the year !972 to proclaim a Declaration of the Rights of Nations. Abbe Gregoire, who had been charged with the duty of drafting a declaration by the Convention, produced in the year 1975 a draft of 21 articles, which was evenlually rejected by the Convention. 5.5    Declaration of Paris -1856 Real codification was aimed under the Declaration of Paris in the 1856, which' was signed by Great Britain, France, Austria, Russia, Prussia, Sardina and Turkey at the end of the Crimean War. It laid down four principles : (1)    Privateering is to be abolished ; (2)    Neutral flag covers enemy goods with the exception of contraband of war ; (3' ) Neutral goods under enemy flag are not liable to capture except the contraband of war ; and (4)    Blockade, in order to be real and binding, must be effective. 5.6    Codification by Individual Writers Some individual writers also contributed to the codification of International Law. The first important attempt in this connection was made in 1861 by an Austrian jurist, Alfons Von Domin-Petrushevecz who for the first time showed the possibility of the codification of International Law. In 1863, Prof. Trancis Lieber of Columbian University Law School, New York attempted to codify the laws of war. Besides this, the Swiss Jurist Bluntshi in 1868, David Dudley Field in 1872, Leon Levi in 1887, Italian Jurist Pasquale Fiore in 1890, E. Duplexis in 1906 and Jerome Internoscia in 1911 published their Codes of International Law. Moreover Oppenheim, Hall Phillimore and Hyde also deserve the credit of bringing out the rules of International Law in a systematic form of a Code. 5.7    The Two Hague Conferences The First Hague Conference, which was convened by Emperor NichoIas II of Russia in 1899 resulted in the adoption of following two conventions in the form of a Code :— (a) Convention on the Pacific Settlement of International Disputes; and (b) Convention on the Laws and Customs of War on Land. These conventions proved to be great milestones in the field of codification of International Law. Being encouraged with the results of the First Hague Conference, the Second Hague Conference was convened in 1907. This Conference produced as many as thirteen conventions relating to warfare and neutrality in war on land and sea, the status of enemy merchantmen at the outbreak of war, bombardment by naval forces, conversion of merchantships into men of war. This conference was attended by 44 States. Declaration of London — A naval conference was held in 1909 at London to draw up an agreed list of contraband goods. The agreement reached was incorporated in a Declaration known as Declaration of London, 1909. But it never came into force as it was not ratified. It lost all its importance on account of the development of First World War, 1914 into a total war. 5.8    Codification Under the League of Nations The work of codification of International Law received a great impetus under the League of Nations. As observed by Oppenheim, "It was left to the League of Nations to approach in a systematic manner the problem of codification properly, called." The league Council appointed a Committee of sixteen Jurists in 1924 to report to the Council subjects which were ripe for codification. The Committee recommended that the following seven subjects were ripe for codification—(1) Nationality, (2) Territorial waters, (3) State Responsibility for damage done in their territory to the persons or property of foreigners, (4) Diplomatic immunities and privileges, (5) Procedure of International Conferences and Procedure for the conclusion and drafting of treaties, (6) Exploitation of the Products of the sea, and (7) Piracy. On the recommendation of the said Committee, the Assembly decided that a conference should be held at Hague for the purpose of codifying the topic of (a) nationality; (b) territorial waters and (c) responsibility of States for the dagnage done to foreigners in their territories. The Committee of Experts did not cease its work, it continued its work and reported in 1928 to the Council that the following two topics were also ripe for codification : (1) Law relating to functions and competence of Consuls; and (2) the competence of courts regarding, foreign States. The Hague Codification Conference of 1930— Hague Conference of 1930 may be said to be the first conference on the progressive codification of International Law. Three Committees were set up for each of the topics, i.e., nationality, territorial waters and responsibility of States for the damage done to foreigners in their territories, no general agreement could be reached in regard to territorial waters and responsibility of States for the damage done in their territories to the property and person of foreigners. But, the Committee on nationality adopted several conventions on questions relating the conflict of Nationality Laws and Statelessness. 5.9    Codification under the United Nations. Article 13(1) (a) of the U.N. Charter lays down that the General Assembly shall initiate and make recommendations for the purpose of "promoting international cooperation in the political field and encouraging the progressive development of International Law and its codification." The U.N. General Assembly look the task of' "encouraging the progressive development of international law and its codification" in all seriousness. On December 11, 1946, the General Assembly appointed a committee for the progressive development of International Law and its codification. In 1947, the General Assembly decided to set up an International Law Commission. An International Law Commission was elected and it met on April 11, 1949. As provided under Article 1 of the Statute of the International Law Commission, the Commission shall have for its object the promotion of the progressive development of international law and its codification. The distinction between the two terms has been explained earlier. The Commission also considers proposal and draft multilateral conventions submitted by the Members of the U.N., the principal organs of the U.N. other than the specialized agencies, or official bodies established by intergovernmental agreement to encourage the progressive development of international law and its codification and transmitted to it for that purpose by the Secretary-General. It is provided that the Commission shall survey the whole field of international law with a view to selecting topics for codification having in mind existing drafts whether governmental or not. When the Commission considers that the codification of a particular topic is necessary or desirable, it shall submit its recommendations to the General Assembly. The Commission shall give top priority to requests to the General Assembly to deal with any question. Further, Article 24 provides that the Commission shall consider ways and means for making the evidence of customary international law more readily available such as, the collection and publication of documents, concerning State practice and of the decisions of national and international courts on questions of international law, and shall make a report to the General Assembly on this matter. 5.10    Work of the International Law Commission On November 21, 1947, the General Assembly directed the International Law Commission to undertake the following works—(a) to formulate the principles of International Law recognised in the Charter as well as in the judgment of the Nuremberg Tribunal; (b) to prepare a draft Code of offences against the peace and security of mankind; (c) to prepare a draft declaration on the rights and duties of States ; and (d) to suggest the desirability and possibility of establishing an international judicial body for the trial of genocide and certain other crimes. The Commission began its work in 1949 and since then it has done commendable work in respect of the codification of International Law. It decided to give priority to the following three topics—(i) law of Treaties; (ii) Arbitral Procedure; and (iii) Law Relating to the High Seas. By the year 1971, the Commission submitted final drafts or reports relating to : (1) Regime of the High Seas : (2) Regime of the Territorial waters; (3) Nationality (including Statelessness) ; (4) Law of Treaties : (5) Diplomatic Intercourse and Immunities; (6) Consular Intercourse and immunities: (1) Arbitral Procedure. In addition to this the Commission has also worked on the following topics : (I) Draft Declaration of Rights and duties of States; (2) Formulation of Nuremburg Principles; (3) Draft Code of Offences against the Peace and Security of Mankind; (4) Question of Definition of Aggression; (5) Question of International Criminal Jurisdiction; (6) Question of Reservation to Multilateral Treaties ; (7) Extended Participation in General Multilateral Treaties concluded under the auspices of League of Nations; (8) Nationality including Statelessness; (9) Special Missions; (10) Representatives of States to International Organisations; (11) Prevention and Punishment of crimes against Diplomatic agents and other internationally Protected Persons; (12) the most-favoured Nation clause; (13) State Responsibility; (14) Succession of States in respect of Treaties; (15) Succession of States in matters other than Treaties; and (!6) The Law of Non-Navigational Uses of International watercourses. It may be noted here that although the Commission has dealt with a large number of topic as noted above, since' 1949, its major contribution has so far been in the fields of the (i) law of treaties, (ii) Law of diplomatic and consular relations, and (iii) the Law of sea. In addition to this, in pursuance to Article 24 of the Statute as noted above, the Commission made useful recommendations on making the evidence of customary international law more readily available, pursuant to which the United Nations Juridical Year Book has been published since 1963 as well as U.N. Legislative Series, and Reports of International Arbitration Awards. As pointed out by S.P. Jagota publications along with the Year Book of the International Law Commission itself serve as rich source material. The more important of the subjects presently under the consideration of the Commission are (i) The Most favoured Nation Clause; (ii) State Responsibility; (iii) Succession of States in matters other than Treaties; and (iv) Law of Non-Navigational uses of International water-courses. On November 18, 1981, the General Assembly adopted a resolution (36/39) enlarging the membership of the Commission from 25 to 35. 5.11    The International Law Commission (ILC) has contributed to the adoption of nearly one and a half dozen conventions. These conventions were adopted on the basis of drafts prepared by the ILC. Such conventions include 4 Geneva Conventions on the law of the Sea, the Convention on Diplomatic Relations, 1961, Convention on Consular Relations, 1963, Vienna Convention in the Law of Treaties, 1969. 5.12    Recent Conventions and Treaties. Geneva Conventions on the Law of Sea, 1958, Vienna Convention on Diplomatic Relations (1961), 1965, Convention on Settlement of Investment Disputes between the States and nationals of other States, Vienna Convention on the Law of Treaties, 1969 are some of the landmarks in the field of codification and progressive development of International Law. Besides these, Vienna Convention on Consular Relations, 1963, Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, 1973, Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character, 1975, International Covenants on Human Rights, 1966, Convention on Registration of objects launched into Outer Space, 1974, International Convention on the Elimination of All Forms of Racial Discrimination, 1966, International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973, the Vienna Convention on the Representation of States in their Relations with International Organizations of Universal Character (1975); Vienna Convention on the Succession of States in Respect of Treaties (1978); U.N. Convention on the Law of the Sea (1982); Vienna Convention on State Property, Archives and Debts, 1983; Convention on the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and their Destruction, 1971; U.N. Convention on the Rights of the Child, 1989, U.N. Conventions on Bio-Diversity, 1992; U.N. Convention on Forestry, 1992; U.N. Convention on Climate Change. 1992, Worst Forms of Child Labour Convention, 1999, Safety and Health in Agriculture Convention. 2001, Seafarer's Identity Documents Convention, 2003, Optional Protocol to the Convention on the Rights of the Child on the involvement of children in Armed Conflicts, 2000, U.N. Convention Against Transnational Organised Crime, International Convention for Suppression of Acts of Nuclear Terrorism, 2005 etc., deserve a special mention. Moreover, for the progressive development and codification of International Trade Law, a United Nations Commission has been established. These Conventions and Treaties have provided the International System with a legislative machinery which though not equivalent to Municipal Legislative system, yet to some extent may be said to be the counterpart of the legislative machinery of State legal system. 5.13    Merits and of Codification (1)    One of the defects of International Law is obscurity and uncertainty. Codification not only makes rules clear and certain but also reconciles conflicting and divergent views. (2)    Codification will be helpful in filing numerous gaps existing in International Law and also by providing for rules where there is none. (3)    Yet another merit of codification is that it will bring uniformity in the International Legal System. (4)    Codification will also go a long way to end or at least greatly minimise the disagreement and confusion that prevails on many important matters. (5)    Codification will enhance the efficacy of International Law by increasing its binding force. (6)    The International Court of Justice and other Tribunals will find it easier to apply and enforce codified International Law. (7)    It will be easier and convenient to amend the codified International Law so as to keep it at pace with the tide of time. 5.14    Demerits of Codification (1)    Codification is detrimental for the natural growth and future development of International Law. This defect can be remedied by a regular and scientific revision of Codes in order to incorporate changes in international conditions. (2)    Yet another disadvantage of codification is that it makes the system of law too rigid and unadaptable to new situations. (3)    Codification also makes the law too formal and conservative. This defect can be removed by progressive interpretation of International Law. (4)    New controversies arise due to codification. (5)    It gives rise to controversies in interpretation because of the hair-splitting tendency of Judges to interpret the law. (6)    International Law still being in its infancy, only a partial codification is possible. (7)    Last but not the least disadvantage of codification is that customary rules still form the bulk of International Law and many of them are not yet fully settled covering the whole area of International rules. 5.15    Let us Sum Up A critical perusal of the advantages and disadvantages of codification will lead us to irresistible conclusion that the advantages outweigh the disadvantages. Codification will make the law certain, single, intelligible and, above all easily accessible to all. Many of the disadvantages of codification may be removed by carefully planning and regular and scientific revision of the Code to incorporate changes in international conditions. International Law can flourish only if the States are ready to yield their interests in the larger interests of international security. 5.16    Check Your Progress Exercise 1.    What do you meant by Codification ? 2.    Discuss the difficulties of Codification ? 3.    Explain the merits of Codification ? 5.17    Glossary ☻   ILC → International Law Commission ☻   UN → United Nations ☻ IOUC → International Organisation of a Universal Charter 5.18    Answer to Check Your Progress Exercise For details, 1.    See Section,5.2 2.    See Section,5.3 3.    See Section,5.11 5.19    Suggested Readings ☻ For details see the list given at the end of lesson 1. 5.20    Terminal Questions (1)    What is meant by Codification of International Law ? (2)    Discuss the merits and demerits of the Codification ? (3)    Explain the difficulties in the way of Codification ? (4)    Write an essay on Codification of International Law ? (5)    Describe history of Codification of International Law ? Explain Codification under the Auspices of League of Nations. (6)    Explain the Contribution of the United Nations in the field of Codification ? ******* Chapter-6 INDIVIDUAL IN INTERNATIONAL LAW Structure 6 .0 Introduction 6.1    Learning Objectives 6.2    Rights of Individuals 6.3    Duties of Individuals 6.4    Let us Sum Up 6.5    Check Your Progress Exercise 6.6    Glossary 6.7    Answer to Check Your Progress Exercise 6.8    Suggested Readings 6.9    Terminal Questions 6.0    Introduction Individuals have also been conferred to certain rights and duties in accordance with the rules of International Law. While many rules are directly concerned with regulating the position and activities of individuals, many rules indirectly affect them. That is, rules may also be applicable to certain inter-relationship of individuals themselves, where such inter-relationship involve matters of international concern. However, as long as the international community is composed of States, it is only through the exercise of their will alone rights, and duties are conferred to individuals. 6.1 Learning Objectives After going through lesson, you will be able to : •    Explain the place of Individuals in International Law •    Understand the Duties of Individuals in International Law. 6.2    Rights of Individuals A number of rights have been given to individuals in International Law through the adoption of international conventions which are as follows :— (1)    Human Rights :- One of the principles of the United Nations is to promote and encourage respect for human rights and fundamental freedoms for all. The Universal Declaration of Human Rights was adopted by the General Assembly in 1948 which provided-various rights to the individuals. (2)    Right to Make Petitions :- The rise of human rights consciousness has given rise to the individuals a right to make petitions before the international forums if their rights are violated. For instance, the Optional Protocol to the Covenant on Civil and Political Rights of 1966 provides for the petitions by the individuals before the Human Rights Committee against its own State. Similarly, the Convention on the Elimination of All Forms of Racial Discrimination of 1966 also provides under Article 14 that the Committee on the Elimination of Racial Discrimination shall receive communications from individuals or group of individuals for the violations of the rights mentioned in the Convention. Later, Article 22 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 and Article 75 of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families of 1990 also provided for the individual's petitions. It is to be noted that the rights of individuals to make petitions before the international forums are available only at the instance of the States. In other words, an individual cannot generally assert his own rights against a State unless a State has become a party to the convention wherein the rights have been provided to the individuals. (3)    Right to Conciliation and Arbitration Proceedings :- The Convention for the Settlement of Investment Disputes between States and Nationals of other States concluded on March 18, 1965 provided for the machinery of conciliation and arbitration on a consensual basis so that private foreign investors might have direct access thereto to settle legal disputes with investment- receiving States. 6.3    Duties of Individuals International Law has imposed direct responsibility upon individuals for the offences committed by them. In customary international law piracy and slavery were the only recognized offences where individuals could be given punishment, presently they are responsible for a number of crimes. (1)    Offence of Piracy :- The offence of piracy has been traditionally regarded as a crime against International Law. It is punishable by any State which seizes the offender. Every State has a right to arrest, trial and punish the pirates, and the vessels involved in the act of piracy may be seized. (2)    Violations of the Rules of Warfare :- Individual members of armed forces of belligerent States are criminally liable for violations of the rules of warfare, and may be given punishment by other belligerents. After the Second World War, certain cases occurred in which responsibility under International Law has been imputed directly to the individuals, who have been punished under an international procedure. Individual responsibility has also been confirmed with regard to grave bleaches of the Geneva Conventions of 1949 and the Additional Protocols I and II to Geneva Conventions of 1949 which dealt with armed conflicts. (3)    Offence of Espionage :- Espionage is an act of a soldier or other individual who clandestinely, or under false pretence, seeks to obtain information concerning a belligerent with the intention of communicating it to the other belligerent. Article 24 of the Hague Regulations enacted the old customary rule that the employment of methods necessary to obtain information about the enemy and the country is considered permissible. However, it has not protected those individuals from punishment who are engaged in procuring informations Individuals committing espionage and war treason are considered war criminals and may be punished. The usual punishment for praying is hanging or shooting, though less severe punishments are, of course, admissible and are sometimes inflicted. (4)    Crime of Genocide :- Genocide was regarded as a crime under International Law, for which the perpetrators, whether they were statesmen, public officials or private individuals were punishable. (5)    Aircraft Hijacking :- Individuals may be given punishment for the air-craft hijacking and for the unlawful acts committed against the safety of civil aviation. (6)    Kidnapping of Diplomatic Personnel and Other Persons :- Convention on Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents of 1973 and Convention on Taking of Hostages of 1979 have expressly laid down for the punishment to the individuals for the acts mentioned in the above Conventions. (7)    Apartheid :- By the term apartheid, an African term, is meant separateness or segregation. It is an official name given South Africa to its racial policy. The purpose of apartheid is to perpetuate the domination of the country by its White minority in the face of rising nationalism throughout Africa. The policy violates the law of human rights, genocide, slavery and it is a crime against humanity. In order to suppress it and to give punishment a Convention was adopted by the General Assembly on November 30, 1973 which provided under Article III that individuals, members of organisations and institutions and representatives of States whether residing in the territory of the State in which the acts are perpetrated or in -some other State, irrespective of motive shall be held responsible if they commit, participate in or directly abet, encourage or cooperate in the commission of the crime of apartheid. Besides the above rights and duties, individuals have also been given certain benefits in other States, by the conclusion of treaties, which they would have not acquired otherwise. For instance, a duty has been imposed upon all States to grant certain privileges to such foreign Heads of States and diplomatic envoys, and certain rights of such foreign citizens, as are on their territory. And, correspondingly every other State has a right to demand that its Head, its diplomatic envoys, and its citizens be granted certain rights by foreign States when on their territory. Foreign States granting these rights to foreign individuals do this by their municipal laws. These rights to some extent are not international- rights but rights derived from municipal laws. International Law is indeed the background of these rights, in so far as the duty to grant them is imposed upon the several States by International Law. These rights could not be enforceable before the municipal Courts had the several States not created them under their municipal law. 6.4    Let us Sum Up It is to be noted that individuals do possess rights and duties in International Law, and they therefore have a legal significance. They are likely to acquire more rights and duties in future in view of their enhanced importance given in various international documents. However, their role would remain limited and their position would remain imperfect as long as they do not have access before the International Court of Justice. Article 34(1) of the Statute of the Court stipulates that only States may be parties to the Court. Neither the Statute nor the Rules of the Court permit the individuals to file a petition before the Court. Presently, the cases of the individuals could be brought before the Court if they are sponsored by the States. 6.5    Check Your Progress Exercise 1.    Explain the rights of Individuals in International Law ? 2.    Discuss the duties of individuals in International Law ? 6.6    Glossary •    Offence → A crime or an illegal action. •    Crime → Something which is illegal and which people are punished for, for example : by being sent to prisom. •    Genocide → The murder of all the people a particular race, religion etc. 6.7    Answer to Check Your Progress Exercise 1.    See section, 6.2 2.    See section, 6.3 6.8    Suggested Readings ☻ For details see the list given at the end of lesson 1. 6.9    Terminal Questions (1)    What are the main concepts of Individuals and Human Rights ? Critically Evaluate them. (2)    Describe the Rights and Duties of Individuals in International Law ? ****** Chapter-7 HUMAN RIGHTS AND INTERNATIONAL LAW Structure 7.0 Introduction 7.1    Learning Objectives 7.2    Meaning of Human Rights 7.3    Kinds of Human Rights 7.4    Is Human Rights a Legal Rights 7.5    International Human Rights Law 7.6    Human Rights under the U.N. Charter 7.7    Promotion and Protection of Human Rights by the United Nations 7.8    Human Rights Bodies under the U.N. System 7.8.1    Human Rights Council 7.8.2    Office of the UN High Commissioner for Human Rights 7.8.3    Universal Declaration of Human Rights 7.8.4    The International Bill of Human Rights 7.9    International Covenant of Civil and Political Rights, 1966 7.10    International Covenant of Economic, Social and Cultural Rights, 1966 7.11    Implementation and Monitoring of Human Rights 7.12    U.N. Fund for Human Rights 7.13    World Conference on Human Rights in Vienna, 1993 7.13.1    Vienna Declaration 7.14    National Human Rights Commission 7.15    Human Rights are Universal 7.16    Let us Sum Up 7.17    Check Your Progress Exercise 7.18    Glossary 7.19    Answer to Check Your Progress Exercise 7.20    Suggested Readings 7.21    Terminal Questions 7.0 Introduction Human rights are the rights which are possessed by all human beings irrespective of their race, caste, nationality, sex, language etc. simply because they are human beings. "Human rights are some times called fundamental rights or basic rights or natural rights. 7.1    Learning Objectives After going through this lesson, you will be able to : •    Explain the Human Rights under the U.N. Charter. •    Understand the concept of Human Rights •    Discuss the kinds of Human Rights 7.2    Meaning of Human Rights Human beings are rational beings. They by virtue of their being human possess certain basic and inalienable rights which are commonly known as human rights. Since these rights belong to them because of their very existence, they become operative with their birth. Human rights, being the birth right, are, therefore, inherent in all the individuals irrespective of their caste, creed, religion, sex and nationality. These rights are essential for all the individuals as they are consonant with their freedom and dignity and are conducive to physical, moral, social and spiritual welfare. They are also necessary as they provide suitable conditions for the material and moral uplift of the people. Because of their immense significance to human beings; human rights are also sometimes referred to as fundamental rights, basic rights, inherent rights, natural rights and birth rights. Presently, the vast majority of legal scholars and philosophers agree that every human being is entitled to some basic rights. Thus, there is universal acceptance of human rights in principle in domestic and international plane. Human rights is a generic term and it embraces civil rights, civil liberties and social, economic and cultural rights. It is therefore difficult to give a precise definition of the term human rights. However, it can be said that the rights that all people have by virtue of being human are human rights. These are the rights which no one can be deprived without a grave affront to justice. There are certain deeds which should never be done, certain freedoms which should never be invaded, something which are supremely sacred. It is so because they may affect the human dignity. Thus, the idea of human rights is bound up with the idea of human dignity. Chief Justice of India J.S. Verma has rightly stated that 'human dignity is the quintessence of human rights. All those rights which are essential for the protection and maintenance of dignity of individuals and create conditions in which every human being can develop his personality to the fullest extent may be termed human rights." The World Conference on Human Rights held in 1993 in Vienna stated in the Declaration' that all human rights derive from the dignity and worth inherent in the human person, and that the human person is the central subject of human rights and fundamental freedoms. D.D. Basu defines human rights as those minimum rights which every individual must have against the State or other public authority by virtue of his being a member of human family, irrespective of any other consideration. Human rights being essential for all-round development of the personality of the individuals in the society, be necessarily protected and be made available to all the individuals. The need for the protection has arisen because of inevitable increase in the control over men's action by the governments which by no means can be regarded as desirable. The consciousness on the part of the human beings as to their rights has also necessitated the protection by the States. It has been realised that the functions of all the laws whether they are the rules of municipal law or that of international law should be to protect them in the interest of the humanity. 7.3    Kinds of Human Rights Human rights are indivisible and interdependent, and therefore precisely 'there cannot be different kinds of human rights. All human rights are equal in importance and are inherent in all human beings. The Universal Declaration of Human Rights therefore did not categorize the different kinds of human rights. It simply enumerated them in different articles. However, the subsequent developments made in the human rights field under the United Nations system make it clear that human rights are of two kinds, viz.; (1) Civil and Political Rights, and (2) Economic, Social and Cultural Rights. (1)    Civil and Political Rights (First Generation Rights) Civil rights or liberties are referred to those rights which are related to the protection of the right to life and personal liberty. They are essential for a person so that he may live a dignified life. Such rights include right to life, liberty and security of persons, right to privacy, home and correspondence, right to own property, freedom from torture, inhuman and degrading treatment, freedom of thought, conscience and religion and freedom of movement. Political rights may be referred to those rights which allow a person to participate in the Government of a State. Thus, right to vote, right to be elected at genuine periodic elections, right to take part in the conduct of public affairs, directly or through chosen representatives are instances of political rights. The nature of civil and political rights may be different but they are inter-related and interwoven, and therefore, it does not appear logical to differentiate them. This reason alone led to the formulation of one covenant covering both—civil and political rights into one Covenant, i.e.. International Covenant on Civil and Political Rights. Civil and political rights are the rights which may be termed as negative rights in the sense that a government is required to abstain from doing those activities that would violate them. Specifically, these rights protect citizens from acts of murder, torture, cruel and unusual punishment, ex pest facto legislation, the denial of habeas corpus, and imprisonment without due legal process. Notable point in these rights is that they are capable of immediate and full realization without significant costs being incurred. (2)    Economic, Social and Cultural Rights (Second Generation Rights) Economic, social and cultural rights are related to the guarantee of minimum necessities of the life to human beings. In the absence of these rights the existence of human beings is likely to be endangered. Right to adequate food, clothing, housing and adequate standard of living and freedom from hunger, right to work, right to social security, right to physical and mental health and right to education are included in this category of rights. These rights are included in the International Covenant on Economic, Social and Cultural Rights. These rights sometimes called positive rights require active intervention, not abstentions on the part of States. Economic, social and cultural rights are based fundamentally on the concept of social equality. Realization of these rights, which is generally called the rights of second generation has been somewhat slow in coming. They are clear only as general principles and not as specific rules. However they have begun to come of age. Although the United Nations has recognised the above two sets of rights in two separate Covenants, there is a close relationship between them. The relationship of the two categories of rights was recognised by the International Human Rights Conference held in 1968 which declared in the final proclamation that Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The Vienna Conference of" 1993 again emphasized that there is no difference between the two sets of rights by stating that All human rights are universal, indivisible and interdependent and inter-related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. In addition to the above rights there is another kind of rights which may be enjoyed by individuals collectively such as right to self-determination or the physical protection of the group as such through the prohibition of genocide. Such rights are referred to collective rights or the rights of third generation. Although it is difficult to maintain difference between individual's rights and collective rights, it may be stated that while individual's rights are available to individuals of a group, collective rights may be enjoyed by a group of individuals collectively. 7.4    Is Human Rights a Legal Right ? A question arises as to whether human rights are legal rights? It may be noted that legal right is a right which is recognised and protected by the legal system. Legal rights have two important essential elements i.e., firstly, the holder of the right, and secondly, the person bound by the duty. Only legal persons can be bound by duties or be the holder of the legal rights. Every right therefore involves a relationship between two or more legal persons. Rights and duties are correlative, that is, a person cannot have a right without a corresponding duty. Human rights belong to human beings and the State has the corresponding duty to protect the rights of human beings. Declaration of the Human Rights Defenders adopted by the General Assembly on December 9, 1998 laid down under Article 2 Para 1 that each State has the prime responsibility and duty to protect, promote and implement all human rights by adopting necessary measures. Para 2 of the above, Article states that each State shall adopt necessary legislative, administrative and other steps to ensure that the right to protect human rights is effectively guaranteed. Further, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights adopted in 1966 stipulated in the Preamble as to the obligation of States to promote universal respect for and observance of human rights and freedom. The above implies that human right is a legal right. While human beings have rights the State has a corresponding duty to protect the rights. 7.5    International Human Rights Law The efforts for the creation of an international organisation, in order to establish peace, were being made even when the World War II was in progress. A number of conferences and meetings were held before the United Nations, an international organisation, was established in 1945s Many declarations adopted by the conferences laid down the importance of human rights. The Declaration of the United Nations signed on January 1, 1942 at Washington was the first document which used the term human rights. In this document the signatories who were fighting against the Axis Powers recognized the need "to preserve human rights and justice in our (own) land as well as in other lands". The Declaration confirmed the principles of the Atlantic Charter -when it proclaimed that the protection of human rights in all countries was to be one of the results which was desired to be obtained from the victory over the Axis. Thus, human rights became a matter of international concern with the end of World War II and the founding of the United Nations. Since then international human rights law has been developing in an unprecedented way and has become a very substantive part of international law as a whole. 7.6    Human Rights Under the U.N. Charter At the San Francisco Conference it was expressed by several delegates that the United Nations should establish an International Bill of Rights. Although that could not be done, it was well realised by the members that it should be the obligation of the international community to cooperate in eradicating the scourge of war, and they were therefore determined that the promotion and respect for human rights which at present constitute so important and so conspicuous be an integrated part of the U.N. Charter. The result was that the Charter contained a number of provisions for the promotion of human rights and fundamental freedoms in the Preamble and in Articles 1, 13(l)(b), 55, 56, 62(2), 68 and 76(c) which are as follows : (1)    The Preamble of the Charter in its first substantive paragraph laid down that....'we the peoples of the United Nations determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human in the equal rights of men and women and of nations large and small...” (2)    Para 3 of Article 1 of the Charter provided that the achievement of international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion shall be one of the purposes of the United Nations. (3)    The General Assembly and the Economic and Social Council were given the task for the realisation of the promotion of human rights and fundamental freedoms. By the terms of Article 13, the General Assembly was empowered to initiate studies and make recommendations for the purpose of assisting in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. (4)    Article 55 provided that the United Nations shall promote : (a) higher standards of living, full employment and conditions of economic and social progress and development; (b) solutions of international economic, social, health and related problems, and international cultural and educational cooperation; and (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. (5)    Article 56 provided that the members of the United Nations pledged themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55. (6)    Article 62 of the Charter authorized the Economic and Social Council to 'make recommendations for the purpose of promoting respect for, and observance of, human rights "and fundamental freedoms for all.' (7)    Article 68 directed the Council to set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions. The Commission on Human Rights and the Commission on the Status of Women are the subsidiary bodies of the Economic and Social Council (8)    Para (c) of Article 76 stipulated that one of the basic objectives of the trusteeship system is to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion, and to encourage recognition of the interdependence of the peoples of the World. In addition to the above provisions, the Charter has referred repeatedly the concept of 'fundamental human rights', 'the dignity and worth of the human person', 'equal rights', 'justice', 'social progress' and fundamental freedoms. The Charter devoted three Chapters to the self-determination of peoples. The Charter by incorporating the provisions relating to promotion of human rights and fundamental freedoms opened a new dimension towards the progressive development of International Law. Individuals became a focus of international concern by acquiring their own rights. All member States were required to promote observance of fundamental human rights without distinction as to race, sex, language or religion. The Charter universalized and internationalized the concept of human rights which hitherto was adopted in some countries since last 200 years. It was universalized in the sense that there was a general acceptance of rights by national governments and was internationalized because the treatment of citizens in one country became the business of other countries as well. It was the first international document which recognised the respect for human rights and fundamental freedoms as a principle of International Law. 7.7    Promotion and Protection of Human Rights by the United Nations Promotion and encouragement of respect for and observance of human rights and fundamental freedoms is one of the purposes of the United Nations. The Charter of United Nations mentions the term promotion of human rights seven times, but makes no reference to "protection" of "human rights". The term promotion of human rights may mean setting of international standard of human rights, education and dissemination. The prime responsibility for the promotion of human rights under the U.N. Charter rests in the General Assembly, in the Economic and Social Council and its subsidiary body—Human Rights council. The term protection of human rights which may mean implementation and enforcement action does not find place in the U.N. Charter. Among the United Nations agencies only the Security Council and the International Court of Justice can engage in enforcement action; only they have a competence to pass a binding resolution or issue a binding judgment. The Security Council can threaten or vote sanctions in relation to its own previous actions or that of the Court. Enforcement is thus the authoritative application of human rights. The United Nations in the past has been able to promote and protect human rights by a number of ways which are as under :- (1)    Human Rights Consciousness The first and the most important role which the United Nations has played is that it has made the people and the States conscious about the human rights and fundamental freedoms. The proclamation of the Universal Declaration of Human Rights containing the universal code of human rights may be regarded as the first step towards the promotion and protection of human rights. (2)    Codification of the Law of Human Rights The United Nations has codified the different rights and freedoms by making treaties for all sections of the people such as women, child, migrant workers, refugees and stateless persons. In addition to the above, the prohibition on the commission of inhuman acts such as genocide, apartheid, racial discrimination and torture have been brought within the international rule of law. (3)    Monitoring of Human Rights Treaty bodies, Special Rapporteurs and Working Groups of the Commission on Human Rights have procedure and mechanism to monitor compliance with conventions and investigate allegations of human rights abuses. A number of expert committees have been established under particular treaties. They are not subsidiary organs of the United Nations, but are autonomous. The Committees are termed U.N. Treaty Organs. Their resolutions on specific cases carry a moral weight that few governments are willing to defy. Human rights monitors have also been deployed by the General Assembly as part of peace-keeping operations. (4)    Procedure for Individual's Complaints A number of human rights treaties permit individuals to make petition before the appropriate international bodies. For instance, the Optional Protocol to the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, Convention Against Torture, Convention on the Elimination of Discrimination Against Women and the International Convention on the Protection of the Rights of All Migrant Workers and their families have permitted individuals to make petitions against their States that have accepted relevant international legal procedures. (5)    Review of Human Rights Situations The Human Rights Council has evolved the Universal Periodic Review (UPR) system which involves a review of the human rights records of all the number States of the United Nations to improve the human rights situations. To achieve the UPR involves assessing State's human rights records and addressing human rights violations wherever they occurred. (6)    Coordination of Human Rights Activities The post of the High Commissioner for Human Rights was created in 1993 with the intention of strengthening the coordination and impact of UN Human Rights activities. He is charged with promoting ad protecting the effective enjoyment by all of all human rights and maintaining a permanent dialogue with the member States. (7)    By Providing Advisory Services The High Commissioner for Human Rights provides advisory services to Governments seeking to improve their human rights performance. Assistance may be given to draft a Constitution, to improve electoral laws, establish or upgrade human rights institutions, prepare new criminal codes, or overhaul the judiciary. (8)    Enforcement Action by the Security Council The Security Council of the United Nations may take enforcement action under Chapter VII of the Charter if it recommends that violations of human rights in a State is likely to endanger international peace and security. Enforcement is thus the authoritative application of human rights. to : the past the Council has taken enforcement action against many States, for instance South Africa (1977), Haiti (1993), Yugoslavia (1992-95), East Timor (1997/2000) and Libya (2011). The above point go to prove that the United Nations has been performing a variety of functions successfully to promote and protect human rights. 7.8    Human Rights Bodies Under the U.N. System A number of bodies have been established under the United Nations system to promote and protect human rights. The first and the foremost important human rights body "was the Commission on Human Rights" which was appointed by the -Economic and Social Council and approved by the General Assembly on February 16, 1946. The Commission on March 2006 was replaced by the Human Rights Council by the General Assembly (Resolution 60/251, March 15, 2006). The Resolution recommended to the Economic and Social Council to request the Commission to conclude its work at its sixty-second session. Accordingly, the Commission concluded the above session on March 26, 2006 after 60 years of work for the promotion and protection of human rights. Responsibilities of another human rights body—the Sub- Commission on Promotion and Protection of Human Rights established on June 21, 1946 under the authority of ECOSOC [Resolution 9(11) of July 21, 1946] were also assumed by the Human Rights Council in 2006. However, the Council on June 30, 2006 decided the extend exceptionally for one year, the mandates and mandate-holders of the Sub- Commission, subject to the review to be undertaken by the council in conformity with the General Assembly Resolution 60/251 of March 15, 2006. Presently, the important human rights bodies under the U.N. Charter system are as follows :— 7.8.1    Human Rights Council The World leaders—Heads of State and Government met at United Nations Headquarters in New York from September 14 to 16, 2005 and adopted a document at the end of the Summit known as 2005 World Summit Outcome. The Outcome document contained a number of global issues including the creation of a U.N. Human Rights Council which shall be responsible for the protection of all human rights and fundamental freedoms for all without distinction of any kind and in a fair and equal manner. In order to implement the above provision of the Outcome document, the General Assembly on March 15, 2006 adopted a Resolution (60/251) to establish the Human Rights Council based in Geneva, in replacement of the Commission on Human Rights. Composition of the Human Rights Council The Human Rights Council consists of 47 members who are elected directly and individually by secret ballot by the majority of the members of the General Assembly. Membership in the Council is open to all member States of the United Nations. While electing members of the Council, Member States take into account the contribution of candidates to the promotion and protection of human rights. The Assembly, by a two-thirds majority of members present and voting, could suspend the rights of membership of a Council member who commits gross and systematic violations of human rights. The members of the Council serve for a period of three years and are not eligible for immediate re-election. The first election of the Council members took place on May 9, 2006. Functions of the Human Rights Council The Council performs a number of functions including:— (1)    It shall promote human rights education and learning as well as advisory services, technical assistance and capacity building, to be provided in consultation with and with the consent of Member States concerned; (2)    It shall serve as a forum for dialogue on thematic issues on all human rights; (3)    It shall make recommendations to the General Assembly for the further development of International Law in the field of human rights; (4)    It shall promote the full implementation of human rights obligations undertaken by States and follow up to the goals and commitments related to the promotion and protection of human rights emanating from United Nations Conferences and Summits; (5)    It shall undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; (6)    It shall contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies; (7)    It shall work in close cooperation in the field of human rights with Governments, regional organisations, national human rights institutions and civil society; (8)    It shall make recommendations with regard to the promotion and protection of human rights; (9)    The Council shall submit an annual report to the General Assembly; Pursuant to the General Assembly Resolution all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights including the Sub-Commission on the Promotion and Protection of Human Rights were assumed by the Human Rights Council as on June 19, 2006. The Council held its first meeting on June 19, 2006. The Council established the following bodies which are called subsidiary bodies of the Human Rights Council and which reports to the Council directly :- (1)    Universal Periodic Review (UPR) The Council adopted a Resolution 5/1 on June 18, 2007 by consensus for a package reforms which included the establishment of UPR. The UPR is a unique process which involves a review of the human rights records of all 192 members of the United Nations once in every four years. Thus, 48 States will be reviewed each year. The review will provide an opportunity for all States to declare what actions they have taken to improve the human rights situations in their countries to overcome the challenges to the enjoyment of human rights. The ultimate goal of UPR is the improvement of the human rights situation in every country with significant consequences for people around the World. To achieve this, the UPR involves assessing State's human rights records and addressing human rights violations wherever they occurred. It also aims to provide technical assistance to States and enhance their capacity to deal effectively with human rights challenges. The reviews are conducted by the UPR Working Group consisting of 47 members of the Council and it is chaired by the President of the Council. However, any member of the United Nations can take part in the discussion with the reviewed States. The State has the primary responsibility to implement the recommendations contained in the final outcome. The UPR ensures that all countries are accountable for progress or failure in implementing these recommendations. When it comes time for the second review of a State it must provide information on what they have been doing to implement the recommendations made during the First review. If the State does not co-operate with the UPR the Human Rights Council will decide on the measures it would need to take in case of persistent non-cooperation by a State with the UPR. (2)    Complaint Procedure Human Rights Council on June 18, 2007 adopted Resolution 5/1 to establish complaint procedure whose purpose is to address consistent patterns of gross violation of all human rights and fundamental freedoms occurring in any part of the World and under any circumstances. The complaint procedure addresses communications, submitted by individuals, groups or non-governmental organisations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations. They examine written communications and bring them to the Human Rights Council. (3)    Special Procedures Special Procedures is the general name given to the mechanism established by the Human Rights Council to address either specific country situations or thematic issues in all parts of the World. Special Procedures, with the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR) undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States concerned; conduct thematic studies and convene expert consultations. Special Procedures report annually to the Human Rights Council. (4)    Advisory Committee In September 2007, the Council decided to create an Advisory Committee by adopting Resolution 5/1 to provide expert advice at its direction. The Advisory Committee replaced the former Sub- Commission on the Promotion and protection of Human Rights. The Committee held its first meeting in August 2008. The Committee is composed of eighteen independent experts representing the various regions of the World. Experts are elected by Governments and the Council. They are elected for a period of three years and may be re-elected once. The Advisory Committee provides (a) experties to the Council in the manner and form requested by it; (b) to propose to the Council for the consideration and approval, suggestions for further research proposals; (c) to implement the promotion and protection of human rights on the issues which come within the scope of its advice; Later, the mandate of the Committee was extended by adopting resolutions. For instance, the Council adopted Resolution 6/10 wherein it mandated to the Committee to elaborate a draft declaration on human rights education and training'. 7.8.2    Office of the United Nations High Commissioner for Human Rights (OHCHR) The Office of the United Nations High Commissioner for Human Rights was established by the General Assembly on December 20, 1993. The Office of the United Nations High Commissioner for Human Rights and the Center for Human Rights were consolidated on 15th September, 1997. The above reform was made in the wake of the Vienna Conference on Human Rights or 1993 wherein it was stressed that a strong "institutional machinery is required to be established in order to promote and protect human rights effectively. The Office is located at Geneva. Composition of the OHCHR The OHCHR is headed by a High Commissioner who is appointed by the Secretary General of the United Nations. However, his name is approved by the General Assembly. He shall be a person of high moral standing and personal integrity possessing expertise in the human rights field and an understanding of diverse cultures. The High Commissioner shall serve a four-year term at the rank of the under Secretary-General. Jose Ayala Lasso of Ecuador was nominated by the Secretary-General as the first High Commissioner when his name was confirmed by the General Assembly on February 14, 1994. He assumed office on February 14, 1994. The High Commissioner for Human Rights is responsible for all the activities of the OHCHR. He/she carriers out the functions specially assigned by the General Assembly in the Resolution 48/141 of December 20, 1993, i.e. the resolution which created the post of the High Commissioner. The Specific responsibilities given by the General Assembly under the above resolution are (1) to promote and protect the effective enjoyment by all of all the civil cultural, economic, political and social rights, including the right to development; (2) to provide advisory services, technical and financial assistance in the field of human rights to States that request them; (3) to coordinate United Nations education and public information programmes in the field of human rights; (4) to play an active role in removing the obstacles to the full realisation of human rights and in preventing the continuation of human rights violations throughout the World; (5) to engage in a dialogue with Governments in order to secure respect for human rights; (6) to enhance international cooperation for the promotion and protection of human rights; (7) to corroborate human lights promotion arid protection activities throughout the United Nations system and (8) to rationalise, adapt, strengthen and streamline the United Nations machinery in the field of human rights in order to improve its efficiency and effectiveness. In addition to the above the High Commissioner also performs functions which are assigned to him/her by the subsequent resolutions. Functions of the Office of the United Nations High Commissioner for Human Rights The OHCHR performs a number of functions including the following— 1.    The OHCHR promotes universal enjoyment of all human rights by giving practical effect to the will and resolve of the World community as expressed by the United Nations. 2.    The Office plays the leading role on human rights issues and emphasises the importance of human rights at the international and national levels. 3.    The Office promotes international cooperation for human rights; 4.    The Office stimulates and coordinates action for human rights throughout the United Nations system; 5.    The Office promotes universal ratification and implementation of international standards; 6.    The Office assists in the development of new norms; 7.    The Office supports human rights organ and treaty monitoring bodies; 8.    The Office responds to serious violations of human rights; 9.    The Office undertakes preventive human rights action. 7.8.3    The Universal Declaration of Human Rights— In 1948, the General Assembly passed the Universal Declaration of Human Rights. This has been hailed as a victory of individuals in respect of human rights. There are 30 Articles in Declaration which describe in detail human rights and fundamental freedoms. For example. Article 1 provides, "All human beings are born free and equal in dignity and rights, they are endowed with reason and conscience and should act to one another in spirit of brotherhood". Provisions of the U.N. Declaration on Human Rights—Provisions of the Universal Declaration of Human Rights may be classified into four categories— General (Articles 1 and 2); Civil and Political Rights (Articles 3 to 21); Economic, Social and Cultural Rights (Articles 22 to 27); and Concluding Articles (Articles 28 to 30). General—The first article of General Articles i.e. Article 1 has already been referred above. Article 2 provides that everyone is entitled to all the rights and freedoms set forth in the Declaration without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. No distinction shall be made on the basis of political, jurisdiction, or international status of the country to which a person belongs. Civil and Political—Civil rights include rights such as right to life and liberty (Article 3); Prohibition of slavery and slave trade (Article 4); Prohibition of Torture and Inhuman Treatment (Article 5); Rights to Equality before Law and Legal Remedies (Articles 6 - 11); Right to Freedom of Movement to leave any country and to return to his country (Article 13); Right to seek asylum (Article 14); Right to Nationality (Article 15); Right to own Property (Article 17); Right to Freedom of Thought, Conscience and Religion (Article 18); Right to Freedom of Opinion and Expression (Article 19); and Right to Freedom of Peace Assembly and Association (Articles 20 and 21). Economic, Social and Cultural Rights—Economic, Social and Cultural rights include the Right to Social Security (Article 22), Right to Work, free choice of employment, etc. (Article 23); Right to Education (Article 26); Right to Enjoy Arts and share in Scientific achievement (Article 27) etc. Concluding Articles—These articles recognize that everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized (Article 28) and they stress the duties and responsibilities which the individual owes to the Community (Article 29). Lastly, Article 30 provides that nothing in the Declaration may be interpreted as implying for any Slate , group, or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth in the Declaration. The Declaration was originally conceived of as a statement of objectives to be achieved by Governments and as such, not part of binding law. But now, it is accepted by so many States that it is considered to be an international standard against which their behaviour is measured. 7.8.4    The International Bill of Human Rights—The International Bill of Human Rights comprises of the following : (1)    The Universal Declaration of Human Rights, 1948: (2) . The Covenant on Civil and Political Rights, 1966; (3)    The Covenant on Economic, Social and Cultural Rights, 1966; (4)    The Optional Protocol to the Covenant on Civil and Political Rights, 1966. The keystone of the covenants is the Universal Declaration of Human Rights. Generally they elaborate on the rights set forth in the Universal Declaration. 7.9    International Covenant on Civil and Political Rights, 1966 The International Covenant on Civil and Political Rights, 1966 comprises of 53 Articles divided in VI parts. Besides Preamble it includes General Articles (Articles 1 to 3 and 5), Rights in Emergency (Article 4), substantive rights (Arts. 6 to 27), implementation of enforcement machinery (Articles 28 to 45), interpretation or saving provision (Arts. 46 to 47) and final or concluding provisions, regarding ratification, of accession of the covenant, amendments etc. specific substantive civil and political rights contained in the Covenant are : (i)    Right to life (Article 6); (ii)    Prohibition of torture, inhuman or degrading treatment or punishment (Article 7); (in)    Prohibition of slavery, slavery trade, servitude, forced labour (Article 8); (iv)    Right to liberty and security of person and freedom from arbitrary arrest or detention (Article 9); (v)    Right of all persons deprived of their liberty to be treated with humanity and with respect for the inherit dignity of the human person (Article 10); (vi)    Prohibition of imprisonment merely on the ground of inability to fulfil contractual obligation (Article 11); (vii)    Right to liberty of movement and freedom to choose residence and right not to be arbitrarily deprived of entering his own country (Article 12): (viii)    Freedom of aliens lawfully in the territory of State Party to covenant from arbitrary expulsion (Article 13); (ix)    Right to equality before the courts and tribunals, right to a fair and public hearing and right of everyone charged with a criminal offence to be presumed innocent until proved guilty according to law (Article 14); (x)    Non-retroactive application of criminal law (Article 15); (xi)    Right to be recognized everywhere as a person before the law (Article 16); (xii)    Right of everyone not to be subjected to arbitrary or unlawful interference with his privacy, family, house or correspondence and freedom from unlawful attacks on his honour and reputation (Article 17); (xiii)    Freedom of thought, conscience and religion (Article 18); (xiv)    Right to freedom of opinion and expression (Article 19); (xv)    Prohibition of propaganda of war and advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence (Article 20): (xvi)    Right of peaceful assembly (Article 21); (xvii)    Right to Freedom of association including the right to form and join trade Unions for the protection of interests (Article 22); (xviii)    Right to marry and to found a family (Article 23); (xix)    Right of every child to be protected, according to his status as minor or, the part of his family, society and the State; and the right of every child to acquire a nationality (Article 24); (xx)    Right of every citizen to take part in the conduct of public affairs, to vote and to be selected, and to have access, on general terms of 'equality', to public service in his country (Article 25); (xxi)    Equality before law (Article 26); and (xxii)    Right of ethnic, religious or linguistic minorities to enjoy their own culture to profess and practice their own religion, or to use their own language (Article 27). The rights set forth in the Covenant on Civil and Political Rights are not absolute and are subject to limitations. 7.10    International Covenant on Economic, Social and Cultural Rights, 1966 Besides preamble the International Covenant on Economic, Social and Cultural Rights comprises of 31 Articles divided into five parts. The substantive economic, social and cultural rights recognized in this covenant are following :- (i)    Right to work freely chosen (Article 6), (ii)    Right to enjoyment of just and favourable conditions of work (Article 7); (iii)    Right to form trade unions and join the trade Union of choice (Article 8); (iv)    Right to social security, including social insurance (Article 9); (v)    Right relating to family, motherhood, childhood and young persons to protection and assistance and the right of free consent to marriage (Article 10); (vi)    Right to adequate standard of living for himself and his family including adequate food, clothing and housing, and to the continuous, improvement of living conditions (Article 11); (vii)    Right to the enjoyment of the highest attainable standard of physical and mental health (Article 12); (viii)    Right to education including compulsory and free primary education; (Article-13). (ix)    Undertaking to implement the principle of compulsory education free of all within a reasonable number of years (Article 14); and (x)    Right to: (a) take part in cultural life; (b) enjoy the benefits of scientific progress and its applications; and (c) benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (Article 15). The measures of implementation provided in this covenant are much weaker than those provided in the Covenant on Civil and Political Rights. They comprise of mainly the reporting procedure. States Parties of the Covenant on Economic, Social and Cultural Rights have an obligation to submit to the Secretary-General of the U.N. reports on the measures which they have adopted and the progress made. The Secretary-General then transmits copies of reports to the Economic and Social Council (ECOSOC) which in its turn may transmit the reports to the Human Rights Council for study and general recommendations. As of January, 2018, it had 166 parties. Protocol to this Covenant has 125 State Parties had 22 State Parties. It entered into force on 5th May, 2013. Optional Protocol to the International Covenant on Civil and Political Rights, 1966—The preamble of the Protocol provides that in order further to achieve the purposes of the Covenant on Civil and Political Rights and the implementation of its provisions it would be appropriate to enable the Human Rights Committee set up in Part IV of the Covenant to receive and consider as provided in the present Protocol, Communications from individual, claiming to be the victims of violations of any of the rights set forth in the Covenant have agreed to the provisions of the Optional Protocol. Article 1 of the Optional Protocol provides that a State Party to the covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communication from individuals subject to its jurisdiction who claim to be the victims of violation by that State Party of any rights set forth in the covenant. No communication shall be received by the Committee if it concerns a State Party to the covenant who is not a party to the Optional Protocol. Second Optional Protocol to the International Covenant on Civil and Political Rights, 1989—The Second Optional Protocol was adopted on 15th December, 1989 and entered into force on July 11, 1991. As of November, 2017, it had 85 parties. Article 1 of the Second Protocol provides that no one within the jurisdiction of a State Party to the present Protocol shall be executed. Each State Party shall take all necessary steps to abolish death penalty within its jurisdiction. Article 6 further provides that the provisions of the present Protocol shall apply as additional provisions to the covenant. 7.11    Implementation and Monitoring of Human Rights There cannot be an international protection of human rights unless there is a strong and effective machinery for its implementation. Implementation is key to making the system of international protection of human rights effective. Monitoring of Human Rights is done by a number of committees, working groups and special rapporteurs have been set up to monitor the violations of human rights. Monitoring mechanism may broadly be divided into two categories which are as follows :— (1)    Conventional Mechanism—There are at least nine core human rights treaties which have set up committees to perform the task of monitoring State's parties compliance with their obligations which are as follows :— (1)    Human Rights Committee (HRC) by the International Covenant on Civil and Political Rights (ICCPR). (2)    Committee on Economic, Social and Cultural Rights (CESCR) by the International Covenant on Economic/ Social and Cultural Rights (ICESCR). (3)    Committee on the Elimination of Discrimination Against Women (CEDAW) by the Convention on the Elimination of All Forms of Discrimination Against Women. (4)    Committee Against Torture (CAT) by the Convention- Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. (5)    Committee on the Rights of the child (CRC) by the Convention on the Rights of the Child. (6)    Committee on the Racial Discrimination (CRD) by the Convention on the Elimination of All Forms of Racial Discrimination. (7)    Committee on the Rights of Migrant Workers and Members of Their Families. (CMW) by the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. (8)    Committee on the Rights of Persons with Disabilities by the Convention on the Rights of Persons with Disabilities. (9)    Committee on the Protection of All Persons from Enforced Disappearance. (2)    Extra Conventional Mechanism—In addition to treaty mechanism the most important procedures designed to protect human rights have been established within the United Nations e.g., Human Rights Council. The above monitoring mechanisms show that some of them relate to general situations in a country and others to individual complaints. Some are concerned with the whole field of human rights, others with specific types of violations. Their procedure also varies depending upon their mandate. It is to be noted that the various monitoring procedures adopted by the Commission on Human Rights have not been very successful in curbing the human rights violations which have been taking place in different parts of the World. It may be due to its inherent weaknesses. It would therefore not be inappropriate to state that while U.N. regime is a strong promotional one but it has weak; monitoring procedures. 7.12    U.N. Fund for Human Rights On 18th December. 1991, the General Assembly of the United Nations resolved to establish a voluntary fund to provide financial assistance to individuals among others who are victims of contemporary forms of slavery and whose human rights have been violated by such practices. The Assembly also held a two-week world conference on human rights in Berlin in 1993 and preparatory committees met in Geneva in 1992. 7.13    World Conference on Human Rights in Vienna : 1993 The world conference, on Human Rights was held at Vienna from 14th to 25th June, 1993. This conference was held some 25 years after the International Conference on Human Rights had been held to assess the progress achieved under the 1948 Universal Declaration of Human Rights which had laid the foundation for the subsequent work in the field of human works. As pointed out by SecretaryGeneral Boutros Ghali in his message to the conference, in adopting the Vienna Declaration and Programme of Action for Human Rights, the Conference has renewed the international community's commitment to the promotion and protection of human rights. Further the conference has "taken into consideration as never before, the U.N.'s concerns to make human rights a priority in its action worldwide." The conference called for specific measures designed to strengthen international human rights instruments and their monitoring mechanism, and to improve coordination of U.N. activities for the furtherance of human rights. The conference also adopted two declarations on Bosnia and Herzegovina and the other on Angola. The conference expressed dismay at massive human rights violation especially on the form of genocide, "ethnic cleansing" and systematic rape of women in war situations, creating mass exodus of refugees and displaced persons. The conference strongly condemned such abhorrent practices and reiterated the call that perpetrators be punished and such practices immediately be stopped. The conference supported the creation of an international criminal court, to bring those responsible for serious violations of international humanitarian law to justice as individuals. 7.13.1    Vienna Declaration The world conference on Human Rights adopted a two-part Vienna Declaration and a six-part 150-paragraph Programme of Action. The main points of Vienna Declaration are following :— (i)    Universality and Indivisibility on Human Rights; (ii)    Reaffirmation of the right of self-Determination; (iii)    Effective International Measures to guarantee and monitor implementation of human rights of peoples under foreign occupation; (iv)    Democracy development and respect for Human Rights; (v)    Right to Development; (vi)    Alleviation of external debt burden of developing countries; (vii)    Call for restrain from unilateral measures creating obstacles to Trade Relations; (viii)    Gender-based violence and all forms of sexual harassment and exploitation to be eliminated; and (ix)    Right of minorities. The world conference on Human Rights (June 1993) is indeed a great landmark and will go a long way to achieve. According to Secretary-General Boutros Ghali, it has forged "a new vision of global action for human rights into the next century". Vienna Declaration adopted by the conference has been described as a kind of second Universal Declaration on Human Rights. 7.14    National Human Rights Commission Protection of Human Rights Act, 1993 provides for the establishment of the National Human Rights Commission consisting of the following : (a)    a chairperson who has been the Chief Justice of the Supreme Court; (b)    one member who is, or has been the Judge of the Supreme Court; (c)    one member, who is or has been the Chief Justice of a High Court; (d)    two members to be appointed amongst persons having knowledge of, or practical experience in matters relating to human rights. Besides these, the chairpersons of National Commission for Minorities; the National Commission for the Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be the members of the Commission for the discharge of the functions specified in clauses (b) to (j) of Section 12 of the Act. The headquarters of the National Human Rights Commission (NHRC) is located at Delhi. The chairperson and other members of the Commission are appointed by the President by warrant under his hand and seal after obtaining the recommendations of a committee consisting of (a) Prime Minister; (b) Speaker of the House of People; (c) Minister in charge of Home Affairs in the Government of India; (d) Leader of the Opposition in the House of People; (e) Leader of Opposition in the Council of States; and (f) Deputy Chairman of the Council of State. The Chairperson and Members hold office for a term of five years. According to Section 12 of the Act the Commission shall perform the following functions :- (a)    inquire, suo motu or on a petition presented by a victim or any other person on his behalf into complaint of — (i)    violation of human rights or abetment thereof; or (ii)    negligence in the prevention of such violation by a public servant; (b)    intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such Court; (c)    visit under intimation to the State Government any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of inmates and make recommendations thereon; (d)    review the safeguards provided by or under the Constitution or any other law for the time being in force for the protection of human rights and recommend measures for their effective implementation; (e)    review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; (f)    study treaties and other international instruments on human rights and make recommendations for their effective implementation; (g)    undertake and promote research in the field of human rights; (h)    spread human rights literacy among various sections of the society and promote awareness of the safeguards available for the protection of these rights through publications, media, seminars and other available means; (i)    encourage the efforts of non-governmental and institutions working in the field of human rights; and (j)    such other functions as it may consider necessary for the promotion of human rights. Under Section 20 of the Protection of Human Rights Act, 1993, the National -Human Rights Commission is required to submit an annual report to Central Government and to the State Government concerned and may at any time submit special reports on any matter which in its opinions, is of such urgency or importance that it should not be deferred till submission of the annual report. After the annual report is submitted by the Commission the Central Government and the State Government, as the case may be, shall cause the annual and special reports of the Commission to be laid before each House of Parliament or the State Legislature respectively, as the case may be, alongwith a memorandum of action taken or proposed to be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if any. The Commission has rendered a signal service for the cause of protection, promotion and observance of human rights, especially in the field of civil liberties. For example, its work in the field of prevention of custodial death, rape and torture has been praiseworthy. However, it cannot be denied that the Commission has no teeth and it can take no action directly. It can only recommend and the Government may or may not accept its recommendations. Its recommendations are not binding on the Government or the authority concerned. The position is far from satisfactory. The Commission has also in certain matters, especially in respect of action taken by the armed forces against terrorists seems to be taking one sided view and seems to be oblivious of ground realities. Even though, it is now been internationally recognized that terrorism constitutes denial of human rights, the reports of the Commission always highlight the excesses committed by armed forces and never emphasize the excesses committed by the terrorists. 7.15    Human Rights are Universal The Secretary-General Koli Annan at a press conference held on 11th December, 1997 in Tehran stressed that human rights are universal. He expressed the hope that the reform process would enable the United Nations Organisation to focus on its objectives, incite Governments to move towards development, encourage Government to work for a clean environment, work to alleviate poverty, and encourage good Government and respect for human rights and the rule of law. The United Nations should at the same time, "encourage Governments to come together to fight what I call uncivil society, that is, drug pushing, money laundering, terrorism and international crime." 7.16    Let us Sum Up The National Human Rights Commission has rendered a signal service for the cause of observance of human Rights especially in the field of Civil liberties, Despite, several shortcomings and drawbacks in the Act, the Commission, in practice has proved to be an effective body for the observance of Human Rights in the country. 7.17    Check Your Progress Exercise 1.    Explain the term Human Rights ? 2.    Explain any two kinds of Human Rights ? 3.    Is Human Right is Legal Right ? 7.18    Glossary •   NGO → Non-Governmental Organisation. •   UPR → Universal Periodic Review. •    OHCHR →Office of the United Nations High Commissioner for Human Rights. •    HRC → Human Rights Committees. •   CESCR → Committee on Economic, Social and Cultural Rights. 7.19    Answer to Check Your Progress Exercise 1.    See Section,7.2 2.    See Section,7.3 3.    See Section,7.4 7.20    Suggested Readings ☻ For details see the list given at the end of lesson 1. 7.21    Terminal Questions (1)    Define Human Rights in detail ? (2)    Discuss the efforts of U.N.O. in the sphere of International Law regarding Human Rights ? (3)    Explain Briefly :- •    Universal Declaration of Human Rights. •    International Covenant of Economic, Social and Cultural Rights. •    International Covenant on Civil and Political Rights (4)    Write a comprehensive note on International Bill of Human Rights ? (5)    Briefly describe the salient features of the universal declaration of Human Rights ? ^^^^^ Unit-II Chapter-8 RECOGNITION OF STATES Structure 8.0 Introduction 8.1    Learning Objectives 8.2    Meaning and Definitions of Recognision 8.3    Conditions for Recognition of a New States 8.4    Theories of Recognition 8.4.1    Constitutive Theory 8.4.2    Declaratory Theory 8.5    Modes or Kinds of Recognition 8.5.1    Distinction between De-Jure and De-facto Recognition 8.6    Methods of Recognition 8.7    Recognition of Governments 8.8    Premature Recognition 8.9    Withdrawal of Recognition 8.10    Consequences of Recognition 8.11    Let us Sum Up 8.12    Check Your Progress Exercise 8.13    Glossary 8.14    Answer to Check Your Progress Exercise 8.15    Suggested Readings 8.16    Terminal Questions 8.0 Introduction The recognition of statehood is a crucial aspect of international relations and law, playing a pivotal role in shaping the global landscape. This process involves acknowledging the existence and legitimacy of a political entity as an independent and sovereign state. The recognition of statehood carries profound legal, political, and diplomatic implications, impacting the ability of a nation to engage in international affairs. This lesson explores the concept of the recognition of state, its criteria, and the far-reaching consequences it has on the international stage. 8.1    Learning Objectives After going through this lesson, you will be able to : •    Understand the term recognition. •    Discuss the various theories of recognition. •     Explain the consequences of recognition. 8.2    Meaning and Definitions of the term 'Recognition' In the words of Prof. Oppenheim, "In recognising 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." The Institute of International Law has defined the term 'recognition' in the following words: "It is......the free act by which one or more States acknowledge the existence of the definite territory of a human society, politically organised, independent of any other existing State and capable of observing obligations of international community." 8.3    Conditions for Recognition of a New State According to Kelsen, a community to be recognised as an international person must fulfil the four conditions—(a) The community must be politically organised; (b) It' should have control over a definite territory; (c) This control should tend towards permanence; and (d) The community thus constituted must be independent. But, international law does not provide as to how those essential conditions are to be determined. International Law leaves the members of International community free to determine whether the States to be recognised contain essential conditions of Statehood. It is because of this reason that recognition is very often said to be a political diplomatic function. 8.4    Theories of Recognition There are two main theories of recognition: (1) Constitutive Theory, and (2) Declaratory or Evidentiary Theory. 8.4.1    Constitutive Theory According to Oppenheim, "a State is, and becomes, an international person through recognition only and exclusively." According to this theory, recognition clothes the recognised State with duties and rights under international law. Recognition is a process through which a political community acquires international personality by becoming a member of the family of nations. Hegel, Holland, Oppenheim, etc. are the chief exponents of this theory. Judge Lauterpacht has written that there is a legal duty on the part of the States to recognise any community that has in fact attained Statehood. 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 recognised by established States." This theory does not conform to the practice of States. In practice most of the States accept the declaratory theory. 8.4.2    Declaratory 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 acknowledgment through which established facts are accepted. The act of recognition is merely declaratory of an existing fact that a particular State or government possess the essential attributes of statehood as acquired under international law. The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Corbett and Fisher. Brierly has remarked that "the granting of recognition to a new State is not 'constitutive', but a 'declaratory' act. A State may exist without being recognised if it exists in fact, then whether or not it has been formerly recognised by other States, it has a right to be treated by them as a State." 8.5    Modes or Kinds of Recognition There are the two kinds of recognition :- (1)   De facto recognition, and (2)    De jure recognition. (1)    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 obligations under international law. De facto recognition means that the State recognised possesses the elements of statehood and is fit to be a subject of international law. According to Prof. Oppenheim, "The de facto recognition of a State or government takes place when in the view of the recognising 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 willingness or ability to fulfil international obligations. Further "de facto recognition is in a sense provisional and liable to be withdrawn if the absent requirement of recognition fails to materialise." Under de facto recognition, diplomatic relations are not established. In the view of Judge Lauterpacht. de facto recognition shows that the recognising State wants to establish its relations with the recognised State without establishing diplomatic relations. (2)    De jure Recognition—De jure recognition is granted when in the opinion of the recognising State the recognised 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." De jure recognition is final and irrevocable. As pointed out by Prof. H.A. Smith, the British practice shows that three conditions precedent are required for the grant of de jure recognition of a new State or a new government. The above three conditions are—(a) A reasonable, assurance of stability and permanence; (b) The government should command the general support of the population; and (c) It should be able and willing to fulfil its International obligation. 8.5.1    Difference Between De-facto and De-Jure Recognition The difference between De facto Recognition and De jure Recognition may be ascribed as follows : | | De facto Recognition | | De Jure Recognition | |---|---|---|---| | 1. | When the recognition is provisional and can be withdrawn on easy grounds, it is de facto recognition. | 1. | The recognition is of permanent type and cannot be easily withdrawn and if it is withdrawn it gives far reaching political effects. | | 2. | The fact of recognition is there but it is lacking legal support strictly and signifies political exigency. | 2. | The fact of recognition bears legal support and signifies full Statehood to the recognized State which stands capable of fulfilling its international responsibilities and obligations. | | 3. | Under de facto recognition full diplomatic relations are seldom established and practice of big nations also supports this that full diplomatic relations are not established when de facto recognition is granted. | 3. | When a de jure recognition is extended, full diplomatic relations are also established between the recognized and recognizing States. | | 4. | When a State is given de facto recognition, that Stale's representatives are not granted full diplomatic immunities. | 4. | The representatives of a de jure recognized State are extended full diplomatic immunities. | | 5. | The de facto recognized State cannot claim the return of properties situated in the territory | 5. | The properties situated in the territory of recognising State can be claimed for return by the de jure | | | of recognizing State. | | recognised State. | |---|---|---|---| | 6. | Where a claim for return of property lying in other States is made by a de facto recognized State, it is usually ignored because it is regarded as powerless. | 6. | A claim of return of property lying in the territories of other States by a de jure recognized State is given full attention for action as it is treated to have full power of a State. | | 7. | As per Oppenheim, official visits to official dealings with the State in relation to its additional territory which has been recognized de facto may be kept to a minimum or avoid altogether. | 7. | In case of de jure recognition extended to an additional territory, that additional territory shall wield all effects which a de jure recognition conveys. | | 8. | Some times, de facto recognition is extended as a first step to move lastly to de facto recognition. | 8. | The de jure recognition is granted after fall consideration and becomes a considered last step which accords full Statehood to the recognized State. | 8.6 Methods of Recognition Recognition de facto of de jure is accorded in any of the following ways :- 1.    By entering into treaty. 2.    By admitting to membership of the UN, 3.    By Exchanging, sending or receiving diplomatic representatives, 4.    By Declaration, unilateral or collective, 5.    By admitting to an International Congress, and 6.    By the formal appointment of its consul. 8.7    Recognition of Governments When a change in the head of a state which is already an international person, takes place in the normal and constitutional manner, such a change is notified to other States who accept the new head of the State by sending congratulatory messages. The difficulty, however, arises where a change in government—-"a term which is" not synonymous with the term State—is brought about by revolution, i.e., by overthrow of the existing government or by a coup d’etat. In such cases two tests are to be applied. The 'first test is whether the new government is the de facto government in effective control of the State, exercising its authority over a substantial portion of the territory without any effective opposition, and having the backing of a substantial segment of public opinion in the country. This is called the objective test. And the second test is whether the new Government is prepared to carry out the obligations imposed on it by International Law and the Charter of the United Nations. This is called the subjective test. The United States of America granted recognition to the new Government of France established as a result of the French Revolution. The same test was applied in' the case of Soviet Russia when she emerged as a result of the revolution of 1917. and it was presumed that the new government would be a peace-loving State, prepared to carry out its international obligations. Political and economic motives also play a dominant role in recognition of governments. "The new government is required to meet past obligations as the price of its recognition. The granting or refusal of recognition of a government has, however, nothing to do with the recognition of the State itself. If a foreign State refuses the recognition of a change in the form of government of an old State, the latter does not thereby lose its recognition as an international person. The State remains in existence however violent or drastic the form of the Government may have been. 8.8    Premature Recognition Premature recognition is regarded as an unfriendly act and treated as an act of intervention or as a casus belli. India recognized the Bangladesh rebels as the legal government of that State on December 6, 1971, even though Bangladesh (formally East Pakistan) declared its independence on March 25, 1972. According to Luther V. Sagor, even de facto recognition is sufficient to validate the acts of the State recognized. 8.9    Withdrawal of Recognition The de jure recognition of a State is irrevocable, but it was resolved by the Institute of International Law in 1936 that such recognition ceases to have its force in case one of the essential elements of statehood obtaining at the moment disappears. Such a possibility of withdrawal is therefore, not completely out of view, but it would be a disputable point whether the recognised State has or has not lost the necessary elements of statehood. A State may lose its independence, a government may cease to be effective or a belligerent party in a civil war may be defeated. In all these events withdrawal or recognition is permissible. The act of withdrawal on the part of the recognising State can, however, be inferred from its granting de jure recognition to the rival government. This is clear from the act of the British Government when in 1938 it gave de jure recognition to the annexation of Abyssinia by Italy, thereby withdrawing its recognition of Abyssinia as an independent State. Again in 1939 it recognized the revolutionary Government of Spain and withdrew its recognition from what had till then been the de jure Government of Spain. Withdrawal of recognition when practised for some ulterior political purpose is tantamount to breaking off of diplomatic relations. 8.10    Consequences of Recognition Oppenheim sums up the consequences flowing from the recognition of a new Government or State in these words : (!)    It thereby acquires the capacity to enter into diplomatic relations with other States and to make treaties with them ; (2)    Within limitations former treaties (if any) concluded between the two States, assuming it to be an old State and not a newly-born one are automatically revived and come into force ; (3)    It thereby acquires the right, which, at any rate according to English Law it did not previously possess, of suing in the courts of law of the recognizing State ; (4) ' It thereby acquires for itself and its property immunity from the jurisdiction of the courts of law of the State recognizing it ; (5)    It also becomes entitled to demand and receive possession of property situate 'within the jurisdiction of a recognizing State, which formerly belonged to the preceding Government at the time of its supersession ; and (6) . Where the revolutionary or de facto government of a country has been recognised by the government of a foreign State, a subject or such foreign State may safely contract with that dc facto government ; and if, by subsequent revolution, the previously existing government of the country-is restored, the restored government is bound by International Law to treat any such contract as valid : Republic of Peru v. Dreyus Brothers & Co. (7)    Recognition being retroactive and dating back to the moment at which the newly recognized Government established itself in power, its effect is to preclude the courts of the recognizing State from questioning the legality or validity of such legislative and executive acts, past and future, of that Government as are not contrary to International Law ; it therefore validates so far as concerns those courts of law, certain transfers of property and other transactions which before recognition they would have treated as invalid. It may be added that recognition is not intended to sanctify every act past and future, of a foreign government. The withholding of recognition may cast a mantle of disfavour over a government. But it does not necessarily stamp all of its acts with disapproval or brand them unworthy of judicial notice. 8.11    Let Us Sum Up On the basis of the above discussion it may be 'concluded that recognition is declaratory as well as constitutive. As pointed by Starke, "The truth lies somewhere between the two theories." Oppenheim has also admitted that, "recognition is declaratory of an existing fact but constitutive in nature." To conclude, in the words of Prof. Briggs, "Juridical theories of recognition deduced from jurisprudential concepts fail to explain the facts of State conduct and induction from State conduct have failed to provide a judicial, unambiguous theory of recognition." 8.12    Check Your Progress Exercise 1.    Define the term Recognition ? 2.    Explain the main theories of Recognition ? 3.    Discuss any two kinds of Recognition ? 8.13    Glossary •    Recognition → The fact that you can identify somebody/something that you see. •    Premature → Happening before the normal or expected time. 8.14    Answer to Check Your Progress Exercise 1.    See Section,8.2 2.    See Section,8.4 3.    See Section,8.5 8.15    Suggested Readings ☻ Kapoor, S.K. (2003) International Law and Human Rights. A Nutshell, Allahabad: Central Law Ag. ☻ Bhatia, H.C. (ed.) (1977). International Law and practice in ancient India. New Delhi : Deep & Deep Publications. ☻ Green, L.C. (1970). International Law through the cases. London: Stevens & Sons. ☻ Fawett, J. E.S. & Roalyn, H. (1914). International Law in movements. London : Oxford University Press. ☻ Chandra, S. (1986). International protection of minorities. Delhi : Mittal Publication. ☻ Livingston, M.H., LeeBruce, K. and Morie, G.W. (eds.) (1978). International terrorism in the Contemporary world, London: Greenword. ☻ Tondon, M.P. & Tandon, R. (1984). International Law. Allahabad : Central Law Agency. ☻ Agarwal, H.O. (1983) Implementation of human rights Covenants. With special reference to India. Allahabad : Kibb Mahal. ☻ Craven, M.C.R. (1998). The International Covenant on economic; social and cultural rights. Oxford: Chandan Press. ☻ Northadge, P.S. Donelan, M.D. (1971). International disputes : The Political aspects. London: Europe Publications. ☻ Oppenteim, L. (1952). International Law : A Treaties, London : LongmanVialetts, Filler & Simons. 8.16    Terminal Questions 1.    What is Recognition ? Discuss the modes of Recognition. 2.    Discuss the main theories of Recognition of State, which theory is more useful today ? 3.    Discuss the methods of Recognition ? Can Recognition once granted be withdrawn ? 4.    Discuss the consequences which flow from Recognition of a new State or Government ? 5.    Explain distinction between De jure and De facto Recognition ? ***** Chapter-9 ASYLUM Structure 9.0 Introduction 9.1    Learning Objectives 9.2    Meaning and Definitions of Asylum 9.3    Basis of Asylum 9.4    Reasons for Asylum 9.5    Rights of Asylum 9.6    Types of Asylum 9.6.1    Territorial Asylum 9.6.2    Extra Territorial Asylum 9.7    Distinction between Territorial and Extra – Territorial Asylum 9.8    Asylum stops where extradition begins 9.9    Let us Sum Up 9.10    Check Your Progress Exercise 9.11    Glossary 9.12    Answer to Check Your Progress Exercise 9.13    Suggested Readings 9.14    Terminal Questions 9 .0 Introduction The word asylum is Latin and derives from the Greek word 'Asylia' which means invoilable place. The term is referred to those cases where the territorial State declines to surrender a person to the requesting State, and provides shelter and protection in its own territory. Thus asylum, involves two elements. Firstly, shelter, which is more than a temporary refuge; and secondly, a degree of active protection on the part of the authorities in control of the territory of asylum. These two elements distinguish asylum from that of immigration. A person enjoying asylum may be referred to as an asylee. Historically, the concept of asylum is very old and traditional, and is opposite to the notion of extradition. However, the concept of asylum has still not acquired the necessary clarity. In the absence of any law, the topic at present is governed mainly on the basis of the State practice and judicial decisions. 9.1    Learning Objectives After going through this chapter, you will be able to : •    understand the meaning and definitions of Asylum •    Explain the types of Asylum 9.2    Meaning and Definitions of Asylum By the term "Asylum" we generally mean the shelter and "active protection which is extended to a political refugee from another State by a State which admits him on his request. As pointed out by Starke, Asylum involves two elements : (1) A shelter which is more than a temporary refuge; and (2) a degree of active protection on the part of the authorities which have control over the territory of asylum. 9.3    Basis of Asylum A State has a right to grant asylum to a person on the principle that it has a sovereign right to control over the individuals found on its territory. Thus, the right of territorial asylum has been conferred to a State on the basis of its sovereignty, over the territory. This right is exclusive in the sense that other States are excluded to exercise the jurisdiction over the same territory. The Draft Convention on Territorial Asylum adopted by the General Assembly in 1974 has recognized under Article 1 that the grant of asylum is a sovereign right of a State. Although States have a right to grant asylum to a person found on its territory, the right presently is not absolute. The present trend is that States are under a duty not to grant asylum to those -who have planned, facilitate or committed terrorist acts. The Security Council by adopting Resolution 1373 (2001) on September 28, 2001 decided that 'All States shall deny safe haven to those who finance, plan, support or commit terrorist acts. 9.4    Reasons for Asylum A State grants asylum to a person because of many reasons. Firstly, it is granted to save a person from the jurisdiction of the local authorities. It is feared that he would not get fair trial, if extradited, because of the differences in views as to his political or religious activities. Secondly, a person may be granted asylum on extralegal grounds or to say on humanitarian grounds. The International Court of Justice in Corfu Channel case, stated that 'asylum may be granted on humanitarian grounds in order to protect political offenders against the violent and disorderly action of irresponsible sections of the population. The Court stated that 'asylum protects the political offender against any measures of a manifestly extra-legal character which a government might take or attempt to take against its political opponents. Thus asylum is granted for preventing other human rights violations. Thirdly, national security also plays an important role in granting asylum. The offender -who may be a rebel today may become the ruler in future date. In that case, the relationship would be strained if he is extradited. 9.5    Right to Asylum According to Article 14 of the Universal Declaration of Human Rights, "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 States to grant asylum. 9.6    Types of Asylum Asylum may be classified into two categories—(i) Territorial asylum; and (ii) Extra-territorial asylum. 9.6.1    Territorial Asylum Territorial asylum is granted by a State in its own territory land is considered as an attribute of territorial sovereignty of the State which grants asylum. On March 28, 1945, a convention on territorial asylum was adopted at Caracas. Article (1) of the said Convention runs as follows : "Every State has the right in exercise of its sovereignty to admit into its territory, such persons it deems advisable ...." This right has also been recognised in the draft declaration on Asylum adopted by the United Nations Human Rights Commission. Article 3 of the said Declaration provides: "No one seeking or enjoying asylum in accordance with the Universal Declaration of Human Rights, should, except for overriding reasons of the population, be subjected, to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or to remain in a territory if there is a well-founded fear of prosecution endangering his life, physical integrity or liberty in that territory...." The above principle has also been incorporated in Articles 31, 32 and 33 of Refugee Convention of 1951. Convention Relating to Status of Refugees, 1951 has 145 parties. Protocol to the Convention Relating to Status of Refugees has so far 146 parties. Example of Dalai Lama and his Tibetitan 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. 9.6.2    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 recognise a general right of a head of mission to grant asylum in the premises of legation. In order to grant diplomatic asylum, it is necessary to establish its legal basis in each particular case. Because of the obvious reason that such a decision leads to the withdrawal of the offender from the jurisdiction ,of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. This was held by the International Court of Justice in the case of the Asylum (Columbia v. Peru.). In the view of Starke asylum may be granted in the legation premises in the following exceptional cases : (i)    Asylum may be granted, for a temporary period, to individuals who are physically in danger from mob-violence or in case of fugitive who is in danger because of political corruption in the local State. (ii)    Asylum may also be granted where there is a well-established and binding local custom. (iii)    Asylum may also be granted if there is a special treaty between territorial State and the state of the legation concerned. (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 recognise any rule regarding the grant of asylum in the. premises of International Institution. However, temporary asylum may be granted in case of danger of imminent violence. (d)    Asylum in War Ships—There is a controversy in regard to the grant of asylum in War Ships. Some writers are of the view that asylum can be granted in war ships in the territorial waters of a Coastal State. 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. 9.7    Distinction between Territorial and Extra-territorial Asylum The distinction between territorial and extra-territorial asylum has been aptly explained by the International Court of Justice in the Asylum case (Columbia v. Peru). "In the case of extradition (territorial) asylum the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of territorial sovereignty, the refugee outside the territory of the Stale where the offence was committed, a decision to grant asylum in no way derogates from the sovereignty of that State. In the case of diplomatic asylum in no way derogates from the sovereignty of that State. In the case of diplomatic asylum, the refugee is within the territory of the State where offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws offenders from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot, be recognised unless its legal basis is established in such particular case. To sum up, in case of territorial asylum international law allows a State to grant' asylum in exercise of its territorial sovereignty. It may or it may not be treated as a friendly act, but there can be no legal objection to the grant of Asylum by a State within its territory. In case of diplomatic asylum, the position is entirely different. Since, the offender is within the territory of the State where asylum is to be granted, it is obviously a derogation of the sovereignty of that State and, therefore, in such a case asylum may be granted only in exceptional cases and it is necessary to establish its legal basis in each particular case. 9.8    Asylum Stops Where Extradition Begins As noted earlier, asylum is the projection which grants in its territory or in some other place under control of certain of its organs person who comes to seek it. On the other hand, extradition is the surrender or delivery of the fugitive criminal to the State on whose territory the alleged criminal happens to be. The institution of asylum confers right upon the State to bring the person concerned within its jurisdiction. In case of territorial asylum, the person is in the territory of the territorial State and hence under its jurisdiction. By granting asylum, it grants protection to the person concerned in its territory. In case of diplomatic Asylum, the person is not under the jurisdiction of the State granting Asylum protection is granted to the person concerned and he is brought under the jurisdiction of the granting State. It therefore, involves derogation from the sovereignty of the territorial Stale for through the institution of the Asylum the person Concerned is withdrawn from the jurisdiction of the territorial State. In both types of asylum, however, the ultimate purpose is to accord protection to the refugee or person concerned and to bring him under the jurisdiction of the granting State. The institution of extradition does just the reverse. In case or extradition the fugitive criminal is in the territory and under the jurisdiction of the territorial State and either under an extradition treaty (or arrangement) or otherwise, it surrenders or returns the fugitive criminal to the State where he is alleged to have committed the crime. Thus, the fugitive criminal who is under the jurisdiction of the territorial State is transferred to the jurisdiction of the State where he is alleged to have committed the crime. Thus, Asylum and extradition are mutually exclusive. Once the territorial State decides to extradite the fugitive criminal, the question of asylum does not at all arise, that is to say, Asylum stops where extradition begins. On the other hand, once the State concerned decides to grant asylum to a person, the question of his extradition at least for the time being does not at all arise. But, after a State has granted asylum to refugee or fugitive criminal it may subsequently decide to extradite him at the request of the State where he is alleged to have committed the crime or to which State he belongs. 9.9    Let us Sum Up To conclude in the words of Starke, "The liberty of a State to accord asylum to a person overlaps to a certain extent within its liberty to refuse extradition or rendition of him at the request of some other State, an overlapping best seen in the grant, commonly of asylum of political offenders, who correspondingly are not as a rule extraditable. Asylum stops, as it were where extradition or rendition begins and this interdependence makes it convenient to consider the two subjects together." 9.10    Check Your Progress Exercise 1.    What is meant by Asylum ? 2.    Explain the types of Asylum ? 9.11    Glossary •    Asylum → Protection that a government gives to people who have left their own country, usually because they were in danger for political reasons. •    Vessels → A ship or large boat 9.12    Answer to Check Your Progress Exercise 1.     See Section, 9.2 2.     See Section, 9.6 9.13    Suggested Readings ☻ For details see the list given at the end of lesson 1. 9.14    Terminal Questions 1.   What do you mean by Asylum ? Discuss the various types of Asylum. 2.    Explain the types and Conditions of granting Asylum ? 3.    What do you understand by Asylum ? Discuss it in detail. 4.    ‘Asylum Stops where extradition begins’. Explain ? ***** Chapter-10 CHANGING NATURE OF LAW OF SEA Structure 10 .0 Introduction 10.1    Learning Objectives 10.2    Maritime Belt Territorial Waters 10.2.1    Problems of width of the Territorial Waters 10.3    Contiguous Zone 10.4    Straits used for International Navigation 10.5    Archipelagic Waters of an Archipelagic State 10.6    Continental Shelf 10.6.1    Outer Limits of Continental Shelf 10.6.2    Commission on the Continental Shelf 10.6.3    Payments 10.7    Exclusive Economic Zone 10.8    Freedom of the High Seas 10.9    International Sea Bed Area 10.9.1    Production Policies 10.9.2    International Seabed Authority 10.9.3    Financial Arrangements 10.9.4    Preparatory Commission 10.9.5    Provisional Understanding Regarding Seabed Matters 10.9.6    Agreement on the Implementation of Deep Seabed Mining Provisions 10.10    Protection and Preservation of Marine Environment 10.11    Marine Scientific Research 10.12    Settlement of Disputes 10.13    Establishment of International Tribunal for the Law of the Sea 10.14    Let us Sum Up 10.15    Check Your Progress Exercise 10.16    Glossary 10.17    Answer to Check Your Progress Exercise 10.18    Suggested Readings 10.19    Terminal Questions 10.0 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 (or Geneva Conference) 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; and (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. These reasons made it imperative that the classical or traditional law of the sea must be reformulated so as to adopt it to the present times and circumstances. The credit for making the initiative goes to Arvind Pardo of Malta who on August 18, 1967 submitted a request for inclusion in the agenda of the XXII Session of the General Assembly the item concerning the reservation exclusively for peaceful purposes of the sea bed and ocean floor beyond the limits of the present national jurisdiction (i.e. "the Area") and the use of their resources in the interests of mankind. It is significant to note that though Pardo's initiative was confined to the "Area", in the course of time it became instrumental for the review and reformulation of the entire law of the Sea. In response to Maltese initiative, the U.N. General Assembly established an ad hoc U.N. Sea-bed committee to study the ''scope of the various aspects of the item submitted by Ambassador Pardo of Malta. Late; on this ad hoc Committee was made permanent. During the deliberation, it became obvious that member States would be satisfied with nothing less than the review and reformulation of the entire law of the sea. This necessitated long, detailed and prolonged discussions among States. The next landmark was the adoption of the Declaration of Principles governing the sea bed and ocean floor, and the subsoil thereof beyond the limits of National jurisdiction on 17 December, 1970 by the General Assembly of the U.N. Nineteen countries that have signed but not ratified the convention are : Afghanistan Bhutan. Brunei, Cambodia, Central African Republic, Colombia, El Salvador, Ethopia, Iran. Democratic Republic of Korea, Libya, Liechtenstein, Malavi, Niger, Rwanda, Switzerland, Thailand, United Arab Emirates and the United States of America. The U.N. Convention on the Law of the Sea, 1982 is of major importance and its very existence modified political, economic and legal relationships in countless ways. It has turned the dream of a comprehensive law of the oceans into reality and is one of the greatest achievements. 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. As of June, 2016, 168 countries have become parties to the Convention on the Law of the Sea, 1982. 10.1    Learning Objectives After going through this chapter, you will be able to : •    Understand the law of Juridiction over sea. •    Explain the concept of Teriborial Sea and International Sea bed Area. 10.2    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. Article 2 of the U.N. Convention on the Law of the Sea 1982, contains a similar provision. 10.2.1    Problems of Width of the Territorial Waters Upto 18th Century the canon-shot rule was prevalent. According to Bynker-Shoek, the breadth of the maritime belt extends to that distance where a canon can fire. Upto 19th century the range of canon-shot was generally 3 miles. In the 19th century, the 3 mile canon-shot rule became very much prevalent. Scientific inventions and discoveries made this rule inadequate because the range of canonshot increased considerably. According to Grotius the Sovereignty of a coastal state over maritime belt should extend to that area upto which it can exercise effective control. Famous jurist Vattel also subscribed to this view. Few countries of the world still voluntarily subscribed to 3 mile rule, but international !aw did not fix any width of the territorial waters. In order to fix the width of maritime belt the first important attempt was made in the Hague Conference of 1930, but with no success. The next important attempt was made in the Geneva Conference on the Law of the Sea, 1958, but no agreement could be reached. Different states claimed different width of territorial waters. The extreme case was that of Chile, Peru, Equator, claiming territorial waters extending to 200 miles. The general consensus was however, between a territorial waters extending from 3 miles to 12 miles. In order to solve this unresolved problem, another Geneva Conference was held in I960 wherein the United States of America submitted compromise formula. This formula envisaged 6 miles of territorial waters and outside this there should be another 6 miles given to the coastal state for fishing, etc. Unfortunately this proposal could not be accepted as it was defeated by a majority of a single vote. India claimed territorial waters upto 3 miles upto the year 1956. In that year, India extended its territorial waters of 3 miles to six 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 Article 3 of the convention breadth of territorial sea is 12 nautical miles measured from baselines. 10.3    Contiguous Zone Contiguous Zone is that part of the sea which is beyond and adjacent to the territorial sea of the coastal state. According to Article 53 of the U.N. Convention on the Law of the Sea, 1982, in a zone contiguous to its territorial sea, the coastal state may exercise the control necessary to — (a) prevent infringement of its customs, fiscal, immigration or sanitary regulation within its territory or territorial sea; (b) punish infringement of the above regulations committed within its territory or territorial sea. The contiguous may not extend beyond 24 miles from which the breadth of territorial sea is measured. That is to say, it is twelve miles beyond the territorial sea. 10.4    Straits used for International Navigation As noted earlier, in Corfu Channel case (1949) the International Court of Justice has held that states in time of peace have a right to send their ships through straits used for International navigation between two parts of the sea without the previous authorization of a coastal State, provided that the passage is innocent. The same rule has been adopted in the U.N. Convention on the Law of the Sea, 1982. As regards straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic Zone, Article 38 of the Convention provides that all ships and aircraft shall enjoy the right of transit passage, which shall not be impeded, except that, if the strait is formed by an island of a state bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect navigational and hydrographical characteristics. Further, transit means the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economics zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that state. As regards duties of ships and aircraft during transit passage. Article 39 provides the following : (1)    Ships and aircraft, while exercising the right of transit passage, shall : (a) proceed without delay through or over the strait, (b) refrain from any threat or use offeree against the sovereignty, territorial integrity or political independence of states bordering the strait or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress; (d) comply with relevant part of Part III of the Convention. (2)    Ships in the transit passage shall : (,a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the international regulations for preventing collisions at sea; (b) comply with generally accepted international regulations procedures and practices for the prevention, reduction and control of population from ships. (3)    Aircraft in transit passage shall : (a) observe the Rules of the Airestablished by the International Civil Aviation Organization as they apply to Civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation : (b) at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency. 10.5    Archipelagic Waters of an Archipelagic State An "Archipelagic State" means a state constituted wholly by one or more archipelagos and may include other islands. "Archipelago" means a group of islands, including parts of islands, inter-connecting waters and other natural features which are so closely inter-related that such island, waters and other natural features form an intrinsic geographical, economic and political entity or which historically have been regarded as such. An archipelagic slate may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reef's of the archipelago provided that within such baselines are included the main island and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 percent. of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. Article 48 of the U.N. Convention on the Law of the Sea, 1982, provides that the breadth of the territorial sea, the contiguous zone, the Exclusive Economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with Article 47. As regards baselines, Article 47 provides the drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevations situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. Further, the system of such baselines shall not be applied by an archipelagic state in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another state. As regards the legal status of archipelagic waters, Article 49 of 1982 convention provides, the sovereignty of an archipelagic state extends to the water enclosed by the archipelagic baselines drawn in accordance with Article 47, described as archipelagic waters, regardless of their depth or distance from the coast. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and sub-soil, and the resources contained therein Article 50 provides that within its archipelagic waters, the archipelagic state may draw close in lines for the delimitation of internal waters, in accordance with Articles 9, 10 and 11. Article 52 provides that ships of all states enjoy the right of innocent passage through archipelagic waters. However, the archipelagic state may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Article 53 further provides that an archipelagic state may designate sea lanes and air routes thereahove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. 10.6    Continental Shelf The construction of the oceans and seas is such that as we proceed seaward they become more and more deeper and a place from where sea becomes sleepy. Around most continents there is a belt of fairly shallow sea, unusually less than 600 feet and this deepens only as one passes through sea-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 United States 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. Article 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 metres 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." It was, felt that the definition of the Continental Shelf, contained in the Geneva Convention on the Continental Shelf, 1958, should be revised at an early date. This became all the more necessary because of need to establish an international legal regime over the sea-bed and ocean-floor beyond the limits of national jurisdiction. It was one of the important items in the Agenda of the III United Nations Conference on the Law of the Sea. which has already held eleven sessions. In third U.N. Conference on the Law of the Sea, consensus of States has emerged in favour of the 'natural prolongation' theory. Continental Shelf has been defined by the conference as comprising 'the sea-bed and sub-soil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the Territorial sea is measured where the outer edge of the continental margin does not extend upto that distance." This definition of the continental shelf owes greatly to the judgment rendered by the International Court of Justice in the North Sea Continental Shelf cases.' In this case the Court observed, "The rights of the coastal State in respect of the area of the continental shelf that constitutes of natural prolongation of its land territory into and under the sea exist ipso facto and ab initio by virtue of its sovereignty over the land, and as an extension of it in exercise of sovereign rights for the purpose of exploring the sea- bed and exploiting its natural resources. In short there is here an inherent right." 10.6.1    Outer Limits of Continental Shelf Though the problem of the definition of the continental shelf was satisfactorily solved, the problem of the outer limits of continental shelf still remained. This was due to the problem of precisely defining the outer limit of the continental margin. With a view to avoid any ambiguity in the legal regime of the continental shelf to be established and to fix precise outer limits of the continental shelf of a coastal state, paragraph 4 (a) of Article 76 of the U.N. Convention on the Law of the Sea, 1982 provides the following : "For the purposes of this convention, the coastal state shall establish the outer edge of continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial Sea is measured by either: (i)    A line delienated in accordance with paragraph 7 by references to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 percent of the shortest distance from such point to the foot of the continental slope, or (ii)    A line delineated in accordance with paragraph 7 to fixed points not more than 60 nautical miles from the foot of the continental slope." After having provided the above method of establishing the outer edge of the continental margin, the draft convention on the Law of the Sea lays down the formula for fixing the precise limits of the continental shelf of a coastal state in paragraph 5 of the Article 76 in following words : "The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed drawn in accordance with paragraph 4 (a) (i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metres isobath, which is a line connecting the depth of 2,500 metres." 10.6.2    Commission on the Continental Shelf The U.N. Convention on the Law of Sea, 1982 also establishes a commission on the continental shelf. It provides that information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial seas is measured shall be submitted by the coastal state to the Commission on the Continental Shelf set up under Annexure II on the basis of equitable geographical representations. The Commission shall make recommendations to the coastal state on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal state on the basis of these recommendations shall be final and binding. 10.6.3    Payments or contributions with respect to the Exploitation of the Continental Shelf beyond 200 nautical miles According to Article 82 of the Convention on the Law of the Sea, 1982, the coastal state shall make payments or contributions in kind in respect of the exploitations of the non-living resources of the continental shelf beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. The payments or contributions shall be made through the International Sea Bed Authority, which shall distribute them to state parties, on the basis of equitable sharing criteria, taking into account the interests and needs of developing states particularly the least developed and land-locked amongst them. A developing state which is a net importer of a mineral resource produced from its continental shelf is exempt from making such payments or contributions in respect of that mineral resource. 10.7    Exclusive Economic Zone or Patrimonial Sea The concept of economic 'zone or patrimonial sea was for the first time advocated by Kenya in the Asian-African Legal Consultative Committee at its Colombo Session held in January, 1971. Subsequently, Kenya submitted a working paper in the Lagos Session of the Committee held in January, 1972. Finally Kenya submitted the draft of exclusive economic zone concept in the 1972 Geneva Sessions of the United Nations Sea-Bed Committee. After the concept was first advocated by Kenya, it has attracted many adherents. The Third U.N. Conference on the law of the Sea deserves credit for having settled the provisions relating to the concept of Exclusive Economic Zone. These provisions now find mention in U.N. Convention on the Law of the Sea, 1982. Article 55 of the convention provides that the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part (i.e. Part V). under which the rights and jurisdictions of the coastal state and freedom of other states are governed by the relevant provisions of this convention. Article 56 which deals with rights, jurisdictions and duties of a coastal state in the exclusive economic zone, provides the following : 1.    In the Exclusive Economic Zone the coastal state has : (a)    Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the sea-bed and sub-soil and the superjacent waters, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water currents and winds; (b)    Jurisdiction as provided for in the relevant provisions of this convention with regard to: (i)    the establishment and use of artificial Islands, installation and structures; (ii)    the protection and preservation of the marine environment; (c)    Other rights and duties provided for in this convention. 2.    In exercising its rights and performing its duties under this convention in the Exclusive Economic Zone, the Coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this convention. 3.    The rights set out in this article with respect to the sea-bed and sub-soil shall be exercised in accordance with Part VI. As regards the breadth of the Exclusive Economic Zone, Article 57 provides that it shall not exceed beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. As regards the rights and duties of other states in the Exclusive Economic Zone, Article 58 provides the following :       ' 1.    In the Exclusive Economic Zone, all States whether coastal or land locked, enjoy, subject to the relevant provisions of this convention, the freedoms referred to Article 87 of navigation and overflight and of the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to these freedoms such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of 'his convention. 2.    Articles 88 to 115, and other pertinent rules of international law apply to the Exclusive Economic Zone in so far as they are not incompatible with this Part. 3.    In exercising their rights and performing their duties under this convention in the Exclusive Economic Zone. States shall have due regard to rights and duties of the Coastal State and shall comply with the laws and regulations adopted by the Coastal State in accordance with the provisions of this convention and other rules of international law in so far as they are not incompatible with this Part. The above provision emerged after prolonged negotiations among the different groups of States and seek to maintain a just and equitable, balance between the rights and duties of coastal States and those of other states in the Exclusive Economic Zone. Besides the above provisions, land-locked states and states with special geographical characteristics have been given certain rights in the Exclusive Economic Zone in Articles 69 and 70 respectively. As regards delimitation of the Exclusive Economic Zone between states with opposite or adjacent coasts. Article 74 provides that it shall be effected by agreement in conformity with international law. Such an agreement shall be in accordance with equitable principles, employing the median or equidistance line, where appropriate, and taking account of all circumstances prevailing in the area concerned. If, no agreement can be reached within a reasonable period of time, the states concerned shall resort to the procedures provided for in Part XV. It may be noted here that the concept of Exclusive Economic Zone as highlighted by the 1982 Convention on the Law of the Sea has already become "part of modern law." 10.8    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. Article 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. In view of the recent developments, particularly the emergence of the concept of Exclusive Economic Zone, this definition has become absolute and inadequate. Article 86 of the U.N. Convention on the law of the Sea, 1982, therefore, provides that the provisions of this Part (i.e. Part VII) apply to all parts of the sea that are not included in the Exclusive Economic Zone, in the territorial sea or in the internal waters of a State, or in the Archipelagic waters of an Archipelagic State. This Article does not entail any abridgement of the freedoms enjoyed by all States in the Exclusive Economic Zone in accordance with Article 58. Article 2 of the 1958 Geneva Convention on the High" Seas provides that the Freedom of the high seas comprises inter alia, both for coastal and non-coastal States; (1) Freedom of Navigation, (2) Freedom of fishing, (3) Freedom to lay submarine cables and pipelines, and (4) Freedom to fly over the High Seas. These freedoms, and others which are recognised by the genera! principles of international law. shall be exercised by ail States with reasonable regard to the interests of Other States. This is to say, the freedoms enumerated are not exhaustive. They arc in addition to those recognised by the general principles of international law. There is, however no express provision of the freedom of scientific research and the freedom to construct islands and other installations permitted under international law. The U.N Convention on the Law of the Sea, 1982 has included these two freedoms. The freedoms of high seas expressly enumerated in Article 87 (1) of the Convention arc following : (a) freedom of navigation; (b) freedom of overflight; (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; and (/) freedom of scientific research. It is also provided that these freedoms shall be exercised by all States, with due consideration for the interests of other States in their exercise of the freedom of the high seas, and also with due consideration for the rights under the convention with respect to activities in the International Area. It is further provided that the high seas shall be reserved for peaceful purpose (Article 88). Moreover, no state may validly purport to subject any part of the high seas to its sovereignty (Article 89). 10.9    International Sea-Bed Area Definition and Development of the "Area :—The first essential requirement of a legal regime of the International Seabed Area (hereinafter called the "Area") is that the precise limits of the Area should be clearly defined and they should be delimited from other maritime zones. The Area has been defined as the sea-bed and ocean floor and sub-soil thereof beyond the limits of national jurisdiction. A pertinent question therefore arises as to what is the outer limit of coastal State's jurisdiction in seabed. The first and second U.N. Conferences on the Law of the Sea failed to solve this question satisfactorily. The first U.N. Conference on the law of the sea which was held in Geneva in 1958 and which adopted four conventions including the convention on the continental shelf failed, and failed miserably to fix the outer limits of continental shelf. It need not be overemphasized here that the outer limit of continental shelf is the limit where the coastal Slate' national jurisdiction in seabed ends. Development of the Law Relating to "Area :— The credit of taking the initiative to move the machinery of the U.N. for revision and progressive development of the law of the sea goes to Ambassador Pardo of Malta who in 1967 proposed the following in the Genera] Assembly : "Declaration and Treaty concerning the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor underlying the seas beyond the limits of the present national jurisdiction and the use of their resources in the interest of mankind: When the General Assembly met to consider the proposal, the representative of Malta moved for the deletion of the words "Declaration and Treaty" in view of the concern of certain delegations, who through the emphasis on "legal objectives" was premature'" In pursuance of the proposal of Maltese Government the General Assembly established a 35 member ad hoc Committee on December 18, 1967, to study the peaceful uses of the sea-bed and ocean floor beyond the limits of national jurisdiction. Subsequently it was replaced by permanent 42 members U.N. Sea-bed Committee to study the peaceful uses of the sea-bed and ocean floor. Its membership was increased to 86 and 91 in 1970 and 1971 respectively. Later on, for substantive work, the committee was organised, into three sub-committees. These sub-committees, were enurusted with the task of making substantive, work for the preparations for the Third Conference on the Law of the Sea. A great landmark in the development of law relating to the "Area" was the adoption of the Declaration of Principles of International Law. Governing the Deep Sea Floor (i.e.. the International Sea-bed Area) by the General Assembly on December 17, 1970 on the basis of the report of the U.N. Sea-bed Committee. It was adopted by a vote of 108 in favour to none against with 14 abstentions. The declaration contained following principles : 1. Declaration of the "area" as common heritage of mankind; 2. Non-appropriation of the "Area" by States or persons; 3. No claim, exercise or acquiring of rights by Slates or persons over the "area" Incompatiable with future International Regime and the Declaration of Principles; 4. Availability of Area to all States exclusively for peaceful purposes; 5. Regulation or activities of States on the Area in accordance with Principles of International Law including the Charter of the U.N.; 6. Exploitation of Resources for the benefit of Mankind as a whole; 7. Reservation of the Area exclusively for peaceful purposes; 8. Establishment of an International Regime to be established by an International Treaty of a Universal character generally agreed upon; 9. International co-operation in scientific research for peaceful purposes; 10. Prevention of Pollution and contamination and protection and conservation of Natural Resources; 11. Due regard to the Rights and Legitimate Interests of Coastal States; 12. The proposed International Regime not to affect superjacent waters. Air Space above waters and Rights of Coastal States; !3. Responsibility of States to carry on the activities in the Area in conformity with the International Organisation to be established: 14. Adjudication of Disputes in the Area; 15. Moratorium on the exploitation in the Area until the establishment of an International Regime. 10.9.1    Production policies Yet another issue that generated a lot of controversy was "production policies. A compromise or package that has been evolved in respect of production policies comprises of three main points; (i) Commodity Agreements, (ii) Production control Formula, and (iii) A system of compensation or other measures of economic adjustment assistance. As indicated above, exploitation of the resources of the Area will adversely affect the export earnings of land-based producer developing countries. With a view to meet this situation, has emerged that the Authority, acting through existing forums or such new agreements as maybe appropriate, in which all interested parties, including both producers and consumers, participate, shall lake measures necessary to promote the growth, efficiency and stability of markets for those commodities produced from the resources of the Area, at prices remunerative to producers, and fair to consumers. As regards production, control or ceiling formula, consensus has emerged that during an interim period (which shall begin five years prior to 1st January of the year in which the earliest commercial production is planned to commence under an approved plan of work and shall last 25 years or until the end of the Review conference) commercial production shall not be undertaken pursuant to an approved plan of work until an operator has applied for and has been issued a production authorization from the Authority during a period beginning not more than five years prior to the planned commencement of commercial production under that plan of work unless the Authority prescribes another period in its rules and regulations having regard to the nature and timing of project development. There is also consensus in respect of the production ceiling which shall be fixed for any year of the interim period beginning with the year of the earlier commercial production. As regards a system of compensation or other measures of economic adjustment assistance, there is general consensus that following the recommendations from the Council on the basis of advice from Economic Planning Commission, the Assembly shall establish a system of compensation or other measures of economic adjustment assistance including co-operation with specialized agencies and other international organizations to assist developing countries which suffer adverse effects on their export earnings or economics resulting from a reduction in the price of an affected mineral or the volume of the mineral exported, to the extent that such reduction is caused by activities in the Area. The Authority on request shall initiate studies on the problems of those states which are likely to be most seriously affected with a view to minimizing their difficulties and assisting them in their economic adjustment. 10.9.2    International Seabed Authority As per agreement that has been reached so far Authority will comprise of the following organs : 1. Assembly; 2. Council; 3. Secretariat, and 4. Enterprise, 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 (ii) A Technical Commission. The Secretarial 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. He shall be the Chief Administrative Officer of the Authority. In addition to the above mentioned organs, it is also proposed to establish. The Sea-bed Disputes Chamber of the Law of the Sea Tribunal for settlement of disputes. The Convention on the Law of the Sea, 1982 having come into force on 16lh November, 1994, the first meeting of the Assembly was held on the same date, i.e.. 16th November, 1995. On 27th March, 1996, India has been elected as a member of the Council of International Sea-bed Authority for six years under investor category and will remain a member for two years till March 1998 and then for four years from 2000 to 2004. Under investor category, China, France and Germany were also elected as members. 10.9.3    Financial Arrangements As regards the funds of the Authority, there is general consensus that they shall include : (a) assessed contributions made by States Parties; (b) funds transferred from the Enterprise; (c) receipts of the Authority arising from activities in the Area; (d) loans received; and voluntary contributions made by States Parties or other entities. Further, the funds of the Enterprise shall include; (a) amounts received from the Authority; (b) voluntary contributions made by State Parties for the purpose of financing activities of the Enterprise; (c) amounts borrowed by Enterprise; (d) income of the Enterprise through its operations; and (e). other funds made available to the Enterprise to enable it to carry out its functions and to commence operations as soon as possible. Moreover, the Enterprise shall be provided with the funds necessary to explore and exploit on mine site, and to transport, process and market the metals recovered therefrom, namely, nickel, copper, cobalt and manganese and to meet its initial administrative expenses. The amount of the said funds, and the criteria and factors for its adjustment, shall be included by the Preparatory Commission in the draft rules, regulations and procedures of the Authority. It may be noted here that according to the latest report of the SecretaryGeneral, the annual administrative costs of all the organs to be established taken together might range from $ 41 million to $ 53 million. The total for building and equipping their headquarters was given as a range from $ 104 million to $ 229 million. As to the cost of an initial seabed mining venture, the report assumed three alternative amounts $ 700 million, $ 1,000 million and $ 1,400 million of those amounts, states would be called on to invest half. 10.9.4    Preparatory' Commission Resolution I adopted by the U.N. Conference on the "Law of the Sea in its 1982 session deals with the establishment of the Preparatory Commission. The Commission has been entrusted with the task of preparing draft rules, regulations and procedures necessary to enable the Authority to commence its functions as well as to perform the traditional preparatory functions of drafting agendas and a budget. The Commission has held several sessions. Its first session was held in Jamaica from 15th March to 8th April, 1983. The first part of the second session was held in Kingston (Jamaica) from 9th March to 13th April, 1984. The third session was held in Jamaica in March-April, 1985. The Fourth session was held in Jamaica from !7th March to 11th April, 1986. The sixth session was held in two parts the first part in Kingston from 14th March to 8th April, 1988 and the second part from 15th August to 2nd September, 1988. The Preparatory Commission for the International Sea-bed Authority and the International Tribunal for the Law of the Sea held its tenth session from 24th February to 13th March, 1992. The resumed tenth session was scheduled to be held from 10th to 21st August, 1992 for an early conclusion of its work and the resolution of outstanding issues before the entry into force of the U.N. Convention on the Law of the Sea. The Preparatory Commission concluded its last session on 12 August, 1994 thus ending 12 years of work. In its final report, the Commission recommended approval of $ 2.5 million expenditure to establish and operate the International Seabed Authority starting on 16th November, 1994. The Authority would be headed by a Secretary-General who would start work on 1st June, 1995. A three day ceremonial meeting of the Assembly was held from 16th to 18 November, 1994. The Assembly decided to hold its first session from 27th February to 17th March, 1995 to deal with substantive matters such as elections of the members of the council of the authority its Secretary-General and members of other major organs. 10.9.5    Provisional Understanding Regarding Sea-bed Matters On 3rd August 1984, eight developed countries, namely, Belgium, France. Federal Republic of Germany, Italy, Japan, Netherlands, the U.K. and the U.S.A. entered into a Provisional Understanding Regarding Sea-bed Matters. Through this understanding eight developed countries established some form of a 'Mini Treaty' (as against the "Mini Treaty' i.e. 1982 Convention on the Law of the Sea) to facilitate exploitation of deep sea-bed resources in terms of unilateral legislation. But, such a 'Mini Treaty' will be void in view of Article 137 (3) of the 1982 Convention and the Declaration adopted by the Preparatory Commission on 30th August, 1985. The world consensus will ultimately triumph and the 1982 Convention on the Law of the Sea will provide an effective legal regime over nearly 70 per cent of the surface of our globe. 10.9.6    Agreement on the Implementation of Deep Seabed Mining Provisions On 28th July, 1994 the General Assembly of the United Nations adopted an Agreement on the Deep Seabed Mining Provisions of the 1982 convention on the Law of the Sea. This Agreement is intended to pave the way for universal participations in the treaty by removing some of the obstacles dealing mainly with convention's seabed mining provisions which had stood in the way of ratification or accession by industrialized countries. The said agreement was adopted by the General Assembly by a vote of 121 to none, with 7 abstentions. Although the U.S.A. helped to shape the convention and the subsequent revisions, and though it signed the 1994 Agreement on implementation, it has not yet ratified the convention. 10.10    Protection and Preservation of Marine Environment The provisions relating to protection and preservation of marine environment are contained in Part XII of the U.N. Convention on the Law of Sea, 1982. The convention provides that states have the obligation to protect and preserve the marine environment. The convention imposed duty on States, individually or jointly as appropriates, 10 take measures to prevent, reduce and control pollution of the marine environment. States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment.-They shall be liable in accordance with International Law. 10.11    Marine Scientific Research Part XIII of the convention on the Law of the Sea, 1982 contains provisions idlating to marine scientific research.'' All states and competent International organisations have the right to conduct marine scientific research subject to rights and duties of other states as provided under the convention. 10.12    Settlement of Disputes Part XV of the Convention which deals with the Settlement of Disputes may broadly be divided into two parts : (i)    General Provisions; and (ii)    Compulsory Provisions Entailing Binding Decisions. As regards the General Provisions, Article 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, Article 286 provides that any dispute concerning the interpretation or application of the convention shall, where no settlement has been reached by recourse to Section I (i.e. provisions referred above), be submitted at the request of any party to the dispute to the Court or tribunal having jurisdiction subject to certain limitations contained in Articles 297, 298 and 299. Article 296 provides that any decision rendered by a court or tribunal having jurisdiction under Section II shall be final and shall be complied with by all parties to the dispute. Lastly, Article 297 provides that the convention will come into force 12 months after the date of the deposit of 60th instrument of ratification or accession. The convention has already had 56 States. 10.13    Establishment of International Tribunal for the Law of the Sea After coming into force of the U.N. Convention on the Law of 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. Chandrasukhar 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. Access to the Tribunal—The Tribunal is open to all the States Parties to the U.N. Convention on the Law of the Sea. It shall also be open to entities other than the said States Parties in any case expressly provided in Part XI of the Convention or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case. Applicable law—The Tribunal shall decide all disputes and applications in accordance with Article 293 of the U.N. Convention on the Law of the Sea. According to Article 293, the Tribunal shall apply the convention and other rules of international law not incompatible with the Convention. However, this will not prejudice the power of the Tribunal to decide a case ex acque et bono, if the parties so agree. Binding force of the Tribunal's decision—Any decision rendered by the Tribunal shall be final and binding and shall be complied by all parties to the dispute. But, any such decision shall have no binding force except between the parties and in respect of that particular dispute. Jurisdiction—According to Article 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. 10.14    Let us Sum Up In the event of a dispute as to whether the Tribunal has jurisdiction the matter shall be settled by decision of the Tribunal. There is also provision for establishment of Sea-Bed Disputes Chambers each comprising of 11 members selected by a majority of the elected members of the Tribunal from among them. 10.15    Check Your Progress Exercise 1.    Write the short note on Maritine Belt ? 2.    Write in brief International Sea Bed Area ? 3.    Write a note on Continental Shelf ? 10.16    Glossary •    Economic Zone → A special economic zone is an area in a country that is subject to different economic regulations than other regions within the same country. •    Land Locked → Completely surrounded by land. 10.17    Answer to Check Your Progress Exercise 1.    See Section,10.2 2.    See Section,10.9 3.    See Section,10.6 10.18    Suggested Readings ☻ For details see the list given at the end of lesson 1. 8.19 Terminal Questions 1.    Discuss the Law of Jurisdiction over Sea ? 2.    What do you understand by freedom of High Sea ? Discuss the theory related to it. 3.    Discuss the concept of the Term Territorial Sea ? 4.    Write a short note on the following : | (1) (3) | Maritime Belt,          (2) International Sea Bed Area Continental Shilf | |---|---| 5.    What do you understand by Meritime Belt ? Explain in detail. **** Chapter-11 SPACE AND OUTER SPACE Structure 11.0 Introduction 11.1    Learning Objectives 11.2    Outer Space 11.3    Lower Boundary of Outer Space 11.4    Law on Outer Space 11.5    Outer Space Treaty, 1967 11.6    Space Law Agreement on the Rescuse of Astronauts 11.7    Convention on International Liberty for Damaged caused by Space Objects, 1971. 11.8    Convention on Registration, 1974 11.9    Agreement Governing the Activities of States on the Moon, 1979 11.10    UNI SPACE, 1982 11.11    International Space Year, 1992 11.12    Prevention of an Arms Race in Outer Space 11.13    UNISPACE-I, 1968, and UNISPACE-II, 1982 11.14    UNISPACE-III, 1999 11.15    Let us Sum Up 11.16    Check Your Progress Exercise 11.17    Glossary 11.18    Answer to Check Your Progress Exercise 11.19    Suggested Readings 11.20    Terminal Questions 11.0 Introduction International law plays a significant role in regulating activities related to space and outer space. The legal framework for space activities is primarily based on a series of international treaties and agreements. The key principles governing space activities are outlined in the Outer Space Treaty of 1967, which serves as the foundational document for space law. 11.1    Learning Objectives After going through this chapter, you will be able to : •    Explain the rules of International Law regarding Jurisdiction of Outer Space. •    discuss the lower boundary of outer space. 11.2    Outer Space Outer space may be defined as that area of the universe where the atmosphere of the earth ends. In other words, where aerial sovereignty of the States ends, outer space begins. It includes all space above the lowest perigee achieved by any satellite put into orbit. Celestial bodies and the moon also form parts of the space. 11.3    Lower Boundary of Outer Space The question as to at what height the air space ends and the outer space begins is a matter of controversy in view of the fact that the atmosphere does not end abruptly. A number of States including Argentina, Belgium, France, Italy and Mexico have advocated the lower boundary of outer space at a height of 100 kms. But this limit is not acceptable to many other States, and therefore a frontier between the earth's air space and outer space still remains to be determined for legal purposes. The question was purposely not dealt with the seminal General Assembly resolutions and in the 1967 Outer Space Treaty. The Committee on the Peaceful Uses of Outer Space (COPUOS) has the question under consideration for almost forty years but it has not been able to reach agreement on any particular rule. The principle of free and equal use of outer space must mean that there is a limit to national sovereignty at some point. The perigee approach, by which the limit of air space would be the lowest perigee of an orbiting satellite, would appear to be the most likely one to be accepted. It would probably set the limits at a lower height—between 100 to 200 kilometers. In order to avoid violations of State sovereignty outer space regime is required to be demarcated urgently. It is desirable if a multilateral agreement, open to all States is concluded to establish a specific altitude as the upper limit of air space so that outer space regime may be established. 11.4    Law on Outer Space The topic of outer space acquired importance in International Law when the first Sputnik was launched in the orbit by the U.S.S.R. on October 4, 1957. Since then a number of manned and unmanned satellites and probes into outer space and celestial bodies have been launched by some other States as well. The acts of different States in the outer space led to the United Nations to make rules and regulations in this part of the universe. The law which has been made to regulate the relations amongst the States and their relations with international organizations in the sphere of outer space, celestial bodies and Moon is called Space Law'. As early as in 1958, the 'Question of Peaceful Uses of Outer Space' was considered by the United Nations; and it recognized "the common interest of mankind in outer space". It was also resolved therein that the outer space shall be used for peaceful purposes only. In 1959, the General Assembly adopted another resolution wherein it recognized the need for a special organ to further international cooperation in the peaceful uses of outer space. A Committee on the Peaceful Uses of Outer Space was set up with two sub-Committees—Legal Sub-Committee and Scientific Sub-Committee. The Legal Sub-Committee was required to study and report on the legal problems which might arise from the exploration and use of outer space. Question on the adoption of a Declaration of legal principles governing the activities of States in outer space was first raised in 1962 before the Legal SubCommittee. Discussion of the question continued in 1963. In December, 1963 the General Assembly unanimously adopted a Declaration of Legal Principles Governing the Activities of States in the Exploration And Use of Outer Space. Later, the Legal Sub-Committee began consideration on the question of formulating a treaty governing the exploration and use of outer space, the moon and other celestial bodies.'' 11.5    The Outer Space Treaty-1967 Outer Space Treaty or Treaty on Principles Governing Activities of States in the Exploration and Use of Outer Space including the moon and other Celestial Bodies was opened for signature in January !967 and entered into force on October 10, 1967. Some of the important provisions of the Outer Space Treaty of 1967 are as follows : (1)    Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, there shall be free access to all areas of celestial bodies. There shall be freedom of Scientific investigation in outer spaced (2)    Outer space, including the moon and other celestial bodies is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. (3)    State Parties to the treaty undertake not to place on orbit around the earth any objects carrying nuclear weapons or any other kind of weapons of mass destruction, instal such weapons on celestial bodies, or station such weapons in outer space in any other manner. (4)    The moon and other celestial bodies shall be used by all States Parties in the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvers on celestial, bodies shall be forbidden (Article IV). (5)    State parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress or emergency landing on the territory of another State party or on the high seas. When astronauts make such a landing they shall be safely and promptly returned to the State of registry of their space vehicle. (Article V). (6)    State Parties to the Treaty shall bear international responsibility for national activities in outer space. (Article VI). (7)    And each State party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or judicial persons by such object or its component parts on the earth, in air space or in outer space, including the moon and other celestial bodies. (Article VII). (8)    A Stale Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object and over any personnel thereof, while in outer space or on a celestial body. (Article VIII). As remarked by an eminent author, "The Space Treaty is a landmark in the process of development of space law. It represents the common interests of mankind. It has ended the mere speculative phase. It represents in more specific and more binding terms the rules of customary law such as contained in various U.N. resolutions. A major failure of Space Treaty is that it does not provide any international control machinery to look after the larger interest of the international community .................. The treaty does not provide for compulsory jurisdiction of the International Court of Justice (I.C.J.) for the settlement of disputes.' Moreover, "the treaty has not resolved the boundary problem between air space and outer space." As of 26th June, 2013, 102 Countries had become parties to the outer space Convention. So far 107 countries have become parties to this Treaty. 11.6    The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1967 Yet another landmark in the development of space law is the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space which was commended upon by the General Assembly on December 10, 1967. The Agreement provides that each contracting party which receives information or discovers that the personnel of a space craft have suffered accident or are experiencing condition of distress or have landed an emergency, or unintended landing in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State shall immediately, (a) notify the launching authority or, if it cannot identify and immediately communicate with the launching authority, immediately make a public announcement by all appropriate means of communication at its disposal; (b) notify the Secretary General of the United Nations, who should disseminate the information without delay by all appropriate means of communication at his disposal. (Article 1 of the Agreement). If owing to accident, distress, emergency or unintended landing, the personnel of a space craft land in territory under the jurisdiction of a contracting party, it shall immediately take all possible step to rescue them and render them all necessary assistance. It shall inform the launching authority and also the Secretary-General of the U.N. of the steps it is taking and of their progress. (Article 2). If, owing to accident, distress, emergency or unintended landing, the personnel of a space craft land in territory under the jurisdiction of a contracting party or have been found on the high seas or in any other place not under the jurisdiction of any State, they shall be safely and promptly returned to representatives of the launching authority. (Article 4). Expenses incurred in fulfilling obligations to recover and return a space object or its component parts shall be borne by the launching authority. The agreement entered into force in December, 1968. As of May 2013, 92 Countries have become parties to this Agreement. 11.7    The Convention on International Liability for Damage caused by Space Objects, 1971 The third great landmark in the development of international space law is the Convention on International Liability for Damage caused by Space Objects which was agreed on and commended by the General Assembly on November 29, 1971. The convention provides that a launching state shall be absolutely liable to pay compensation for damage caused by the space object on the surface of the earth or to aircraft or to aircraft in flight. In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible. (Article III). Whenever, two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused. (Article V). The convention provides for the establishment of a Claims Commission in case there is no settlement between the State which suffers damage and the launching State. The convention entered into force in September, 1972. Besides Three intergovernmental organizations (European Space Agency, the European Organisation for the Exploitation of Meteorological Satellites and the European Tele-communication Satellite Organisation) have declared their acceptance of the rights and obligations provided in the agreement. As of April, 2014, 133 countries have become parties to this Convention. 11.8    The Convention on Registration of objects Launched into Outer Space, 1974 The fourth landmark is Convention on Registration of Objects Launched into Outer Space which was adopted by the U.N. General Assembly on 12 November, 1974 as an annex to Resolution 3235 (XXIX)." Article 11 of the Convention provides that when a space object is launched into "arm orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the U.N. of the establishment of such a registry. Under Article IV each State of registry is under an obligation to furnish certain information concerning each space object carried on its registry to the Secretary Genera) of the U.N. The Convention on Registration of Objects Launched into Outer Space entered into force on 15th September, 1976, after its ratification by the U.S., Bulgaria, Canada, France and Sweden were the four countries who had ratified it earlier. As of 2014, 61 countries had become parties to this Convention another twenty-four states have signed and the two inter-governmental organisations (European Space Agency and European Organisation for the Exploitation of Meteorological Satellites) have declared their acceptance of the rights and obligations provided in the Registration convention. As of December, 2017, 64 countries have become parties to this Convention. 11.9    The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979 The fifth landmark is the Agreement Governing the Activities of States on the Moon and other Celestial Bodies which was adopted by the General Assembly on 5 December, 1979 as an annex of Resolution 34/68. The provisions of this Agreement are : (1)    All activities on the moon, including exploration and use, shall be carried out in accordance with international law, in particular the Charter of the U.N. and taking into account the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations adopted by the General Assembly on 24 October, 1970, in the interest of maintaining international peace and security and promoting international co-operation, and mutual understanding and with due regard to the corresponding interests of all other State Parties, (Article 2). (2)    The moon shall be used by all State Parties exclusively for peaceful purposes. (Article 3, Para 1). (3)    The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. (Article 4, Para 1). (4)    There shall be freedom of scientific investigation on the moon by all Slate Parties without discrimination of any kind on the basis of equality in accordance with international law. (Article 6, para 1). (5)    The moon and its resources are the common heritage of mankind. (6)    The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means. (7)    State Parties to this Agreement hereby undertake to establish an international, regime, including appropriate procedures, to govern the exploration of the natural resources of the moon as such exploration is about to become feasible. (8)    The main purposes of the International regime to be established shall include : (a)    The orderly and safe development of the natural resources of moon; (b)    The rational management of those resources; (c)    The expansion of opportunities in the use of those resources; (d)    An equitable sharing by all State Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration. (9)    State Parties shall retain jurisdiction and control over their personnel, space vehicles, equipment facilities, stations and installations oh the moon. The ownership of space vehicles, equipment facilities stations and installations shall not be affected by their presence on the moon. (Article 12 Para 1). (10)    State Parties to this Agreement shall bear international responsibility for national activities on the moon, whether such activities are carried out by governmental agencies or by non-governmental entities, and for assuring the national activities are carried out in conformity with the provisions of this Agreement. State Parties ensure that non-governmental entities under their jurisdiction -shall engage in activities on the moon only under the authority and continuing supervision of the appropriate State Party. (Article 14, Para 1). The Agreement Governing Activities of State on the Moon and other Celestial Bodies, 1979 entered into force on 11 July 1984. As of December 19, 2008, 13 states namely Australia, Austin, Belgium, Chile, Kazakistan, Lebanon, Mexico, Morocco, Netherlands, Pakistan, Peru, Philippines and Uruguay had ratified. On the other hand, France, Guatemala, India and Romania have signed but have not ratified it. As of May, 2014, 16 countries had ratified the Agreement Governing the activities of States on the Moon and other Celestial Bodies, 1979. It may be noted that it has not been a successful treaty since it has not been ratified by any nation which engages in manned space exploitation or has plans to do so. For example, the U.S.A., European Union, Russian Federation, Peoples Republic of China, Japan and India have not ratified it. Thus this treaty has only negligible effect an actual space flight. 11.10    Vienna Conference on the Exploration and Peaceful Uses of Outer Space for UNISPACE-82) The UNISPACE” was held at Vienna from August 9 to August 22, 1982. The conference reviewed the development in the field of outer space taking place since 1968. The conference appealed the states especially the states having nuclear capability not to increase arm race beyond earth. A report adopted by consensus asked the states to follow Outer Space Treaty, 1957 which has prohibited the use of weapons of mass destruction in outer space. It is unfortunate that the two great powers— U.S.A. and the U.S.S.R.—are binding with each other in production of most advanced weapons of mass destruction instead of establishing peace in outer space. The UNISPACE—82 also considered the question of monopoly of some industrialized countries in the field of science and technology recommended increased co-operation between the developed and developing countries in this respect. 11.11    International Space Year (ISY), 1992 The UNISPACE—82 and the above-mentioned five major treaties constitute the highlight of the development of space law. To safeguard the common interests of mankind and to ensure the establishment and the maintenance of a viable, cooperative public order of the outer space, the moon and other celestial bodies, it is most important that full recognition be given to inclusive interests of states in outer space'. The policy of inclusive access to and use of outer resources means that each State must take full advantage of opportunities in space subject to the limitation that activities must be peaceful and unharmful to common interest. This highlights the significance of freedom and equality of access to the outer space resources. The protection of exclusive interest is called for only in single case, when it is reasonably necessary for the protection of the security of the State ..... However, the inclusive exploitation of space resources take place in a sort of unorganized arena. Proposals concerning the establishment of a special enterprisory organization of space has not found much favour among States. Therefore, the future of public order of space is heavily dependent upon co-operation among States, both at the multilateral and bilateral levels. The United Nations plays very important role in co-ordinating the activities of different States in outer space ensuring a uniform and progressive, economic and technological development of the entire world." The General Assembly of the U.N. is the organ which is most concerned with the Development of international space law. On 12th December, 1977, the Assembly decided to enlarge the membership of the Committee on the Peaceful Uses of Outer Space from 37 to 47. The legal sub-committee of the Committee on the Peaceful Uses of Outer Space held its seventeenth session from 13th March to 7th April, 1978. It discussed the legal aspects of the possible hazards of nuclear powered satellites and priority attention was given to drafting a moon treaty, principles concerning direct television broadcasting from satellites and the legal implications of remote sensing of the earth from space. The agreement on moon stipulates that "for the purposes of this agreement, the moon and its natural resources shall be considered the common heritage of mankind" and that State parties "undertake to establish an international regime, including appropriate procedures to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible." 11.12    Prevention of an Arms Race in Outer-Space Although the Outer Space Treaty has settled the principles as to the exploration and use of outer space, the Moon and celestial bodies, military activities are being carried on by the States due to the deficiencies of the Treaty. Article IV of the Treaty does not prohibit altogether military activities in the outer space. The General Assembly in 1988 has recognized the above deficiency by stating that the legal regime applicable to outer space by itself does not guarantee the prevention of an arms race in outer space. The result is that a wide range of military uses of outer space such as remote sensing, reconnaissance, communication, navigation and weather observations are not covered by the Treaty. Such activities are not caught under the existing prohibition. The use of outer space for the military purposes has given rise to the problem of arms race in the outer space. It has been estimated that by the end of 1980, more than 1800 military oriented satellites have been launched in the outer space, most of them by the U.S.A. and the U.S.S.R. In the Second United Nations Conference on Exploration and Peaceful Uses of Outer Space (UNI SPACE II) held at Vienna in 1982, it was stated by the SecretaryGeneral of the Conference Prof. Yash Pal that about seventy five per cent of. space activities are military oriented, limited mainly to satellites surveillance. Many of them are engaged in serving reconnaissance, remote sensing and communications and weather observation activities designed to both military and non-military purposes. Presently, regime of outer space has become an arena for an arms race. The arms race has posed the danger of a nuclear war which is likely to affect the security of not only the Super Powers but to all other countries of the World as well. Arms race in outer space has therefore become a matter of grave concern to the entire international community. The desire of the international community to prevent an arms race was expressed precisely for the first time in the Final Document adopted by the First Special Conference of the Disarmament which under Para 80 stated that in order to achieve that objective, further measures should be taken and appropriate international negotiations held in accordance with the spirit of the Outer Space Treaty of 1966. Since then prevention of the arms race has been the topic of discussion in a number of international forums but, 110 substantial progress has b.een made as yet in this regard. 11.13    "UNISPACE-I (1968) AND UNISPACE-II (1982) The first United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE-I) was held in 1968 in Vienna to examine the practical benefits of space activities and the opportunities available to non-space powers to participate in those activities. Since then rapid development of space science and technology took place which needed for greater international cooperation and coordination. It was also realised that only a few technologically advanced countries are deriving the benefits from space. These are the main considerations for convening another conference on outer space. Accordingly, Second United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE- II) was held In August in Vienna (Austria) in 1982 to discuss international cooperation in space research, technology and applications. The Conferences recommended the increased cooperation between the developed and developing countries in outer space. 11.14    UNISPACE-III (1999) The Third United Nations Conference on the Exploration and Peaceful Uses of Outer space was held in July 1999 in Vienna. The Conference on 'Space and Development' adopted a Vienna Declaration and Action Plan which set the UN's vision for peaceful uses of outer space in the 21st century. The Conference' focused on developing a practical framework to maximise the benefits of space technology through international cooperation. 11.15    Let Us Sum Up To conclude in the words of an author, "There is need for a global policy for the Space Age. This need has arisen, especially in recent years, on account of the common destiny and common survival of mankind. For carrying out of the programme of a unified policy there is need of an international organisation. Such a policy, in the context of the contemporary period, shall guide states in the discharge of their responsibilities, provide a workable means for future progress and establish a stable system of law and order. 11.16    Check Your Progress Exercise 1.    Explain the Rules of International Law regarding Outer Space 2.    Discuss Space law agreement on the Rescuse of Astronauts ? 11.17 Glossary | • | COPUOS | → | Committee on the Peaceful uses of Outer Space | |---|---|---|---| | • | USSR | → | Union of Soviet Socialist Republics | | • | ISY | → | International Space Year | | • | UNISPACE | → | United Nations Conference on the Exploration and Peaceful uses of Outer Space. | 11.18 Answer to Check Your Progress Exercise 1.    See Section, 11.3 2.    See Section, 11.5 11.19 Suggested Readings ☻ For details see the list given at the end of lesson 8. 11.20 Terminal Questions 1.    Explain the Rules of International Law ? Regarding Jurisdiction of Outer Space ? 2.    Write a short note on Outer Space ? 3.    Discuss the Laws regarding outer space ? ****** Chapter-12 PIRACY AND HIJACKING (AIR-PIRACY) Structure 12.0 Introduction 12.1    Learning Objectives 12.2    Definitions of Piracy 12.3    Essential Elements of Piracy 12.4    Piracy Committed by Unrecognised Insurgents 12.5    Concept of Universal Jurisdiction in respect of the Crime of Piracy 12.6    Piracy Under Municipal Law 12.7    Meaning and Definitions of the Term Hijacking 12.8    Hague Convention, 1971 12.9    Development of Law Relating to Hijacking 12.10    Montreal Convention, 1991 12.11    Universal Jurisdiction in Respect of the Crime of Hijacking 12.12    Let us Sum Up 12.13    Check Your Progress Exercise 12.14    Glossary 12.15    Answer to Check Your Progress Exercise 12.16    Suggested Readings 12.17    Terminal Questions 12.0 Introduction Piracy and hijacking on the high seas have been age-old maritime threats that continue to pose challenges to international security and commerce. In the realm of international law, addressing these criminal activities requires a delicate balance between the rights of states to safeguard their maritime interests and the need for a cooperative and comprehensive legal framework. This lesson explores the key aspects of piracy and hijacking in international law, examining the definitions, legal frameworks, and challenges associated with combatting these offenses on the global stage. 12.1    Learning Objectives: After going through this lesson, you will be able to: •    Understand the concept of piracy. •    Explain the crime of piracy. •    Know about Air piracy and Hijacking. 12.2    Definitions of Piracy There has been a great controversy in respect of the definition of the term 'piracy'. According to traditional international law, navigation in the high seas with the object of committing violent acts against other persons and property for private (or their own) interests and without being authorised or permitted by any State, is called 'piracy'. Different jurists have given different definitions of the term 'piracy'. But, as remarked by Story, J. J., in United States v. Smith,'' Whatever may be diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea animo furandi, is piracy." In an American case, the Federal Court expressed the view that the armed ship in the sea should be under the authority of some Stale and if such a ship is not under the authority of any State, it would be treated in the category of pirate ships, irrespective of the fact whether it has committed piracy or not. The law relating to piracy was codified in the Geneva Convention on High Seas, 1958. Article of the Convention defines 'piracy' in the following words : Piracy consists of any of the following acts : (1)    Any illegal act of violence, detention or any act of depredation committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed : (a)    on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b)    against a ship, aircraft, persons or property in a place outside the jurisdiction of any State. (2)    Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft. (3)    Any act of inciting or of intentionally facilitating an act described in subparagraph (1) or sub-paragraph (2) of this article. As pointed out by Ian Brownile. "The only clear innovation in the provision..,.. is the reference to aircraft, a sensible application of analogy. The essential feature of the definition is that the acts must be committed for private ends. It follows that piracy cannot be committed by warships or other government ships, or government aircraft, except where the crew has mutinied and taken control of the ship or aircraft (Article 16). Acts committed on board a ship by the crew and directed against the ship itself or against persons or property on the ship, are not within the definition." A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 15. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act. 12.3    Essential elements of Piracy Following are the essential elements of piracy : (1)    Violence of robbery at high seas must be for private ends. Such acts committed by warships. Government ships or aircraft cannot be called 'piracy'. For example, in the Second World War German U-Boats sank enemy ships in the area of long distance blockade in the high seas without any prior intimation, This act cannot be called 'piracy', because it was committed under the authority of the State of Germany. In fact, this act is violation of the laws and custom of war and a war crime. (2)    Illegal acts of violence, detention or any act of depredation committed for private ends must be the crew or passengers of a private ship or a private aircraft. The only exception to this is recognised in Article 16 which provides that the acts of piracy committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship. (3)    Illegal acts of violence, detention or any act of depredation may be either on the high seas or in a place outside the jurisdiction of any State. (4)    Such acts must be directed against a ship, aircraft, persons or property. (5)    Violence, detention or any act of depredation may constitute piracy : provided that above elements are satisfied. (6)    Committing of actual robbery is not essential for piracy. Even an unsuccessful attempt to commit robbery at high seas will constitute piracy. This was held in Re Piracy Jure Gentium. The facts of this case are as follows : In 1931, some Chinese citizens were arrested on the charge of piracy. They were tried in Hong Kong and held guilty. In this case, accused had made an unsuccessful or abortive attempt to commit robbery at high seas. The Court was confronted with the question as to whether actual robbery was essential for piracy. The Hong Kong Court referred this question to the Privy Council for its opinion. The Privy Council held that an act to constitute piracy, actual robbery is not essential. Even, if an accused is guilty of making an unsuccessful attempt to commit robbery, he will be guilty of having committed piracy and will be punished. (7)    Any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a private ship or aircraft will also constitute piracy.                , (8)    Any act of inciting or of intentionally facilitating any illegal act described above will also constitute piracy. 12.4    Piracy Committed by Unrecognised Insurgents One of the important legal effects of the recognition of insurgency is that insurgents are not treated as pirates. But, so-long as they remain unrecognised, they can be apprehended and punished as they commit piracy. This can be understood with the help of the following illustration : P and A are vessels owned by unrecognised insurgents against the established Government of Chile. Their purpose is to blockade and besiege the port. They carry arms and soldiers. A, in the course of her voyage, stops X, a French merchantman. By force A takes from X, an official in the employment of the Government of Chile, as also a large quantity of coal without payment. Y, a British man-of-war appears on the scene. Y captures P and A both the vessels and their crew. Y condemns them as pirates. Here Y is justified in capturing P' and A and condemning them as pirates because acts of P and A constitute piracy in view of the definition and essentials of piracy discussed above. According to Article 2 1, a seizure on account of piracy may only he carried out by warships or military aircraft, or other ships or aircraft on government service authorized to that effect. Thus, Y, a British warship is justified in capturing P and A. As regards the jurisdiction to capture such vessels. Article 19, of the Convention on the High Seas propounds the theory of Universal jurisdiction whereby every State may seize a pirate ship or aircraft. The principle of Universal jurisdiction in respect of piracy is being discussed below in a little greater detail. Y was therefore justified in capturing P and A and condemning them as pirates. 12.5    Concept of Universal Jurisdiction in Respect of the Crime of Piracy By Universal Jurisdiction in respect of crime, it is generally meant that all States exercise jurisdiction in respect of that crime. When a crime is against the interests of international community (i.e., Delict Jure Gentium) then all the States are entitled to apprehend and punish persons accused of such crimes. The principle of Universal Jurisdiction applies in respect of the crime of piracy, war crimes, and to some extent the crime of aircraft hijacking. Persons accused of committing the crime of piracy may be apprehended and punished because they are regarded as enemies of the whole mankind. In the words of Judge Moore : "A pirate is treated as an outlaw, as the enemy of mankind-hostes humane generis—whom any nation may in the interest of all capture and punish." The concept of Universal Jurisdiction has been accepted and adopted in the 1958 Geneva Convention on the High Seas. Article 19 of the Convention provides that on the High Seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The Courts of the State which carried out the seizure may decide upon the penalties to be imposed and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. There is a great controversy in respect of the property of the ship thus seized, According to the practice of States in the seventeenth century, the property of such a ship became the property of the State which seized the ship. But, in the eighteenth century, it was generally accepted that the seized ship and its property should be returned to the real owners. This rule is called pirata non mutat dominium. It is still a prevalent rule. But, if it is not clear as to who is the owner of the ship and its property, they become the property of the State which seized them." Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft, for any loss or damage caused by the seizure. As noted above, a seizure may be carried out by warships or military aircraft or other ships or aircraft on government service authorised to that effect. A warship which encounters a foreign merchant ship on the High Seas may board her on the ground suspecting that the ship is engaged in piracy. This may be done on other grounds also if permitted by treaty; In case, however, the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 12.6    Piracy under Municipal law There is a difference in the concept of piracy under International Law and Municipal law. Some States may declare crimes those acts of violence, detention or depredations, which are crimes under International Law. On the other hand, States may also declare crimes lesser acts of violence than those declared by International Law. For example, in England every British Citizen who assists the enemy of the King or Queen or transports slaves in the High Seas, is treated as a pirate. But, foreigners can be treated as pirate only in accordance with the rules of International law. Thus, the concept of piracy in municipal law is different from that of International law. 12.7    Meaning and Definition of the Term 'Hijacking' As pointed out by "Alona E. Evans, "Aircraft hijacking is a contemporary addition to the roster of international and national crimes and the necessity for its control at international and national level is only beginning to be recognised by the States" In wider sense, hijacking is an act against the safety of traffic in the air, is comparable to piracy, an act against the safety or traffic on the open sea. Article 11 of the Tokyo Convention, 1963, which came into force on December 4, 1969, provides : 1.    When a person on board has unlawfully committed by force or threat thereof an act of interference, seizure or other wrongful exercise of control of an aircraft in flight or when an act is about to be committed, contracting States shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft. 2.    In the cases contemplated in the preceding para the contracting State in which the aircraft lands shall permit its passengers and crew to continue their journey as soon as practicable and shall return the aircraft and the cargo to the person lawfully entitled to possession." Article 13 further provides that the State where an aircraft lands, the contracting State shall immediately start the investigations of facts, etc. in respect of such aircraft. It is clear from the above provisions that instead of seeking to define the term 'hijacking' these provisions fix the responsibilities of State in this connection. In these provisions, emphasis has been laid on allowing the passengers and crew of the aircraft to continue their journey as soon as practicable and for the return of the aircraft and the cargo to the persons lawfully entitled to possession. The Tokyo Convention was adopted on 14 September, 1963. It came into force on 14th December, 1969. It had membership of 186 State parties as of 2015. Article 1 of the Hague Convention, 1970, contains the concept of hijacking in the following words : "Any person who on board an aircraft in flight; (a)    unlawfully, by force or threat thereof, or by any other form of intimidation, seizes or exercises control of, that aircraft, or attempts to perform any such act, or (b)    is an accomplice of a person who performs or attempts to perform any such offence." This provision again, instead of defining the term "hijacking", simply enumerates the constituent elements of hijacking which are as follows : (1)    use of force or threat thereof, or any other form of intimidation committing the offence of any attempt to do so; (2)    the use of the means mentioned in (1) or attempts to use them should be for the purpose of seizing or exercising control of an aircraft; (3)    the use of force or threat thereof is unlawful, and (4)    the act mentioned above must be committed while the aircraft is in flight. Besides this, any person who is an accomplice in the commission of the offence or attempts to commit it will also be deemed to be a hijacker. These elements are more or less similar to those mentioned in Article 11 of the Tokyo Convention, 1963. The only new thing seems to be the inclusion of accomplice in the concept of hijacking. 12.8    Hague Convention, 1971 It was adopted by the International Conference on Air Law at the Hague en 16th December, 1970. It came into force on 14th October, 1971. It had 185 parties. In 2010, in Beijing, the Protocol supplementary to the Convention was adopted. The Protocol makes amendments and additions to the original Convention. As of the end of October, 2016 only 17 States ratified it whereas it would come into force when 22 States ratified it. Montreal Convention, 1971 : It was signed on 23rd September, 1971. So far it has 188 parties. The concept of 'hijacking' has been further widened in the Montreal Convention, 1971. Article 1 of the Montreal Convention provides : 1.    Any person commits an offence if he unlawfully and intentionally— (a)    performs an act of violence against a person on board or on aircraft in flight if that act is likely to endanger the safety of that aircraft; or (b)    destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or (c)    places or causes to be placed on an aircraft, in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or (d)    destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight; or (e)    communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight. 2.    Any person also commits an offence if he— (a)    attempts to commit any of the offences mentioned in paragraph I of this Article; or (b)    is an accomplice of a person who commits or attempts to commit any such offence". , Article 2 further provides that for the purposes of the Convention, an aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation; in the case of forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board. Montreal convention was adopted on 23 September, 1971 the Convention came into force on 26 January, 1973. Protocol to Montreal Convention, 1971, i.e. Protocol for the Suppression of unlawful acts of violence at Air Ports servicing International Civil Aviation. It was signed on 24th February, 1988. It came into force on 6th August, 1989. It has 174 parties (including 172 U.N. Member States plus Cook Islands and Nive). 12.9    Development of Law Relating to Hijacking The constant increase in the incidents of hijacking and acts against the safety of civil aircraft presented a very serious problem before the members of international community and particularly the members of International Civil Aviation Organisation (I.C.A.O.). In order to solve this problem and ensure punishment to the hijackers, Tokyo Convention was adopted in 1963. It came into force on December 4, 1969. But, the Tokyo Convention failed to solve the problem and the number of incidents of hijacking continued to increase. One of the shortcomings of the Tokyo Convention was that it failed to declare the act of hijacking to be a crime under international lav.. This was mainly because it was agreed during the drafting of the Convention that no attempt would be made to define penal offences. The Convention simply laid emphasis upon the restoration of the hijacked aircraft and property and allowing the passengers and the crew to continue their journey. The shortcomings of the Tokyo Convention and the constant increase in the number of incidents of hijacking compelled the States to take effective steps to check the crime of hijacking and to ensure punishment to the hijackers. This process started in September, 1968 when in the 16th Session of I.C.A. the Council of International Civil Aviation Organisation was asked to study the problem. In December, 1968, the Council entrusted this matter to a legal sub-committee. This legal sub-committee prepared the draft of a Convention. In December, 1970, a Conference was held in Hague and a Convention, known as the Hague Convention, 1970 was signed. After having been ratified by the prescribed number of States, the Hague Convention came into force on October, 14, 1971. As pointed out by Sami Shubber, "The Hague Convention, 1970 may be considered as a big step forward in the endeavour of the international community to suppress hijacking of aircraft and remove the threat caused to it to international civil aviation. The concept of hijacking was further widened by the Hague Convention. Yet another special feature of this Convention is that in respect of the crime of hijacking, this Convention has enhanced the jurisdiction of the State Parties. According to the scheme of the Convention in some or other way the State parties wi!l get jurisdiction over the hijacker and it will become very difficult for the hijacker to escape the process of law. It has been aptly said, "These features of jurisdiction have brought the offence of hijacking very near to piracy under international customary law. Thus, it is not without jurisdiction that the aerial piracy has been applied to this new regime in the field of international civil aviation." Moreover, the Hague Convention also contains a special feature in respect of extradition of the hijackers. It provides that in respect of the existing treaties among States, hijacking shall be deemed to be an extraditable offence and in respect of treaties to be made in future also, the crime of hijacking shall be deemed to be an extraditable offence. Although Hague Convention is an important step for the suppression of the crime of hijacking yet some of its provisions relating to jurisdiction and extradition have been criticized. Moreover, it is also worthy to note that despite this Convention, there was no appreciable decrease in the number of incident of hijacking. With a view to evolve more effective means to suppress the crime of hijacking, a Conference was held in Montreal from 8th September to 23rd September, 1971. A Convention known as Montreal Convention for the. Suppression of Unlawful Acts, Against the Safety of Civil Aviation, 1971, was signed on 23rd September, 1971. This concept has further widened the concept of hijacking. Under this Convention the State parties have undertaken to provide for deterrent punishment for the crime of hijacking. Other provisions are similar to those of the Hague Convention. It would, therefore, not be wrong to say that it is simply an improvement over the Hague Convention. It would have been better if this Convention had been adopted as Protocol to the Hague Convention. 12.10    Montreal Convention, 1991 or the Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991 Despite the above conventions the incidents of unlawful acts against the safety of International Civil Aviation could not be reduced. In such incidents it has been found that plastic bombs or explosives have been promptly used. For example, on 21 December 1988 Pan Am Flight 103 while flying over Lockerbie (Scotland) was blown by a plastic bomb resulting in the death of 270 passengers. From 12 February to March, 1991, a Conference was held at Montreal. In this Conference the representatives of 79 countries adopted a convention known as Montreal Convention, 1991 or the convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991. The parties to the convention undertook to prevent the manufacture and going outside their territories plastic explosives without commercial markings. It was also agreed that plastic explosives or bombs which are not necessary for army or police be destroyed within a period of three years. As regards plastic bombs and explosives, the convention provides that they are to be destroyed within a period of 15 years. The convention provides for the establishment of International Explosives Technical Commission. Both the Security Council and the General Assembly have supported and approved the convention. As aptly remarked by the then SecretaryGeneral of the U.N. Perez de Cuelar "nothing perhaps activates corporation like a University shared sense of danger of the threat of terrorism that spares few countries or individuals is indeed practically a Universal one." This remark was perfectly right when it was made. But, after a decade, especially after the attack of American World Trade Centre on 11 September, 2001 the threat of terrorism spares no country or individual not even America, the mightiest country of the world. By March, 1991, 41 countries have signed the convention. For the convention to come into force, ratification by atleast 35 states is necessary. It came into force on 21st June, 1998. So far 153 countries have ratified this Convention. Hijacking of Indian Aircraft and I.C.A.O.—Jurisdiction case (India v. Pakistan). An Indian Aircraft was hijacked and taken to Lahore (Pakistan). Instead of apprehending the hijackers and to ensure that they get proper punishment, the Government of Pakistan did not do so. As a result of which the hijackers burnt the aircraft. This act on the part of Pakistan was a clear violation of Tokyo Convention. It was also against the resolution of Security Council (Resolution 286, 1970) in which the States were asked to take all possible steps to prevent the interference of hijackers in the international civil aviation. As a reprisal the very next day India suspended with immediate effect the overflight of all Pakistan aircrafts—civil and military over Indian territory till the issue was satisfactorily resolved. India demanded extradition of hijackers, but Pakistan rejected this demand. Pakistan on the other hand, complained to the International Civil Aviation Organisation that the suspension of overflights by India was a violation of international and bilateral commitments and requested the I.C.A.O. Council on March 3, 1973, to declare that India's decision to suspend the overflights was illegal. India raised certain preliminary objections and contended that the Council has no jurisdiction to hear and decide Pakistan's complaint. The contention of India was, however, overruled by the President of the Council. India's preliminary objections were rejected by the Council on July 29, 1971. India appealed to the International Court of Justice on August 30, 1971, against the said decision. Pakistan objected to the jurisdiction of the International Court of Justice to hear and decide India's appeal. The International Court of Justice by a majority of 13 votes to 3 rejected the Government of Pakistan's objection on the question of its competence and held that it had jurisdiction to entertain India's appeal. The Court, however, held by a majority of 14 to 2, that the Council of International Civil Aviation Organisation was competent to entertain the application and complaint laid before it by the Government of Pakistan on March 3, 1971, and in consequence rejected the appeal made to the Court by the Government of India against the decision of the Council assuming jurisdiction in those respects. Thus the case again went to the International Civil Aviation Organisation, who could decide it on merits. It may be noted here, that India and Pakistan entered into Simla Agreement and agreed to settle all their disputes through bilateral negotiations and through peaceful means. Subsequently, Delhi Agreement, 1973 and Delhi Tripartite Agreement. 1974 were entered into to resolve matters relating to the repatriation of Pakistani Prisoners of War. The representatives of India and Pakistan also held several round of talks relating to the resumption of flights of aircraft by both countries over the territory of each other but with no success, so far. The main stumbling block in the solution of this problem was Pakistan's persistent refusal to withdraw her case pending in the Council of the I.C.A.O. India, on her part made it clear that she would not entertain any proposal for resumption of Pakistani overflight through her territory unless and until Pakistan first withdrew her case from the Council of the I.C.A.O. This stand was in conformity with the letter and spirit of the Simla Agreement between the two countries. In view of India's insistence, Pakistan withdrew its case from the Council of the I.C.A.O. and subsequently Pakistani overflights over Indian territory were resumed. 12.11    Principle of Universal Jurisdiction in respect of the crime of Hijacking The Principle of Universal Jurisdiction is already recognized in respect of the crime of piracy and war crimes. Since hijacking is generally described as 'aerial piracy' the principle of Universal Jurisdiction should also apply in respect of the crime of hijacking. By Universal Jurisdiction in respect of a crime, it is meant that the crime is against the interests of entire international community and in order to suppress such a crime, all states can exercise jurisdiction in respect of the crime. The Hague Convention, 1970 and Montreal Convention, 1971 have given a long way to confer universal jurisdiction, to a great extent, on all states. As pointed out by an author, if an offender or alleged offender is within the territory of a state, both conventions contain provision for him to be taken into custody and if he is not extradited, for his case to be placed before the prosecution authorities. Although neither convention creates a duty to extradite or an inescapable duty to prosecute, authorities are nevertheless under a duty to take their decision in the same manner as in the case of an ordinary offence of a serious nature under the law of that state. If, the decision is in the affirmation the above mentioned Universal Jurisdiction clause endure that the Courts will be competent to hear the case. 12.12    Let us Sum Up In view of three Conventions (Tokyo Convention, 1963. Hague Convention, 1970 and Montreal Convention, 1971), it is quite clear that there is now no dearth of law for the suppression of the crime of hijacking. The need is to properly implement the provisions of these conventions. However, it cannot be denied that there has been no appreciable decrease in the number of the incidents of hijacking. One of the main reasons for this is that these conventions have not excluded any criminal jurisdiction exercised in accordance with national law. For example, see Article 5 (3) of the Montreal Convention, 1971. Moreover, these conventions do not fix the punishment to be awarded to hijackers. 12.13    Check Your Progress Exercise 1.    What do you understand by Piracy ? 2.    Explain the elements of Piracy ? 3.    Define Hijacking ? 12.14    Glossary •    I.C.A.O. → International Civil Aviation Organisation. •    Hijacking → The crime of using force or threats to take control of an Aircraft, Ship, Car. Etc. or an occasion when this happening. 12.15    Answer to Check Your Progress Exercise 1.    See Section,12.2 2.    See Section,12.3 3.    See Section,12.7 12.16    Suggested Readings ☻ For details see the list given at the end of lesson 8. 12.17    Terminal Questions 1.    What is meant by Piracy ? Discuss the International Law regarding Piracy ? 2.    Define and Explain the Crime of Piracy ? 3.    Write a brief note on Hijacking ? 4.    Define Hijacking ? Discuss the Universal Jurisdiction in respect of the crime of Hijacking ? 5.    What do you understand by Air Craft Hijacking ? Explain the efforts of various conventions to check it. ******* Chapter-13 WAR AND ITS EFFECT Structure 13.0 Introduction 13.1    Learning Objectives 13.2    Meaning of Definitions of War 13.3    Kinds of War 13.4    Concept of Total War 13.5    Is Prior Declaration of War Necessary ? 13.6    Effects of the Outbreak of War 13.7    Modes of Termination of War 13.8    Legal Regulation of War 13.9    War and the League of Nations 13.10    War and the Pact of Paris 13.11    War and the United Nations 13.12    Let us Sum Up 13.13    Check Your Progress Exercise 13.14    Glossary 13.15    Answer to Check Your Progress Exercise 13.16    Suggested Readings 13.17    Terminal Questions 13.0 Introduction War, throughout history, has been a tragic and destructive force that leaves lasting scars on nations and individuals alike. Beyond the battlefields and political agendas, the effects of war permeate every aspect of society. This chapter explores the multifaceted impacts of war, shedding light on the human, social, and economic toll it exacts. 13.1    Learning Objectives After going through this lesson, you will be able to;- •    Understand the concept of war. •    Explain the kinds of war. •    Discuss the effects of the outbreak of war. 13.3    Meaning, Definitions of War War according to Lawrence, may be defined as a contest carried on by public force between States, or between States and communities having with regard to the contest the rights of States, the parties to it having the intention of ending peaceful relations and substituting for them those of hostility with all the legal incidents thereof. According to the above definition the two important characteristics of war are the contest and the intention, which must co-exist in order to make a war. The former without the latter results in reprisals and not war. Oppenheim defines war as contention between two or more States through their armed forces for the purpose of overpowering each other and imposing conditions of peace as the victor pleases. According to Hall, "When differences between States reach a point at which both parties resort to force, or one of them does acts of violence which the other chooses to look upon as a breach of peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant." This definition has judicial approval in Drieifontein Consolidated Gold Mines v. Janson. War therefore is a "contest between two or more States through their armed forces with the ultimate object of each contestant group vanquishing the other or others and imposing his own conditions of peace." War may thus be defined as a contest carried on by armed between two or more States, the ultimate purpose of each contestant being to conquer the other and impose its own terms of peace. Unilateral acts of force performed by one State only not followed by similar hostile acts or declaration of war by the other States do not therefore, amount to a war. 13.3    Kinds of War Old writers on International Law divided war as public or privatc war, mixed war, perfect or imperfect war, just or unjust war and formal or informal war. The medieval law of arms (jus militare), based on the canon and civil laws, formed part of the jus gentium. This was a special law binding on the knightly and military classes engaged in military activities for the common good. A contest by force between independent sovereign States is termed a public war. According to Hyde it is a condition of armed hostility between States. Private war has long ago disappeared with the advent of civilization and individuals trying to break peace are branded as disturbers of peace. All war is now public war and with the recognition of belligerency even a revolt by a section of the population of a State is stamped with the incidents of war. A private war, i.e., unavowed by a prince, was not treated as just. A civil war between different members of the same society was termed by Grotius as mixed war. It was, according to him, public on the side of the established government and private on the part of the people resisting its authority, i.e., rebels. This classification is no longer true for, as said above, with the recognition of belligerency the whole phase of war has changed. According to Oppenheim a civil war exists when two opposing parties within a State have recourse to arms for the purpose of obtaining power in the State or when a large portion of the population of a State rises in arms against the legitimate government. A perfect war is one where the whole nation is at war with another nation, while an imperfect war is limited to places, persons and things. When there is a just cause of war it is regarded as just war. A war carried on to ward off an attack on the political independence and territorial integrity of a nation is a just war. A 'just' war had to be avowed by a sovereign prince, and not a matter of private free-booting. An unjust war, on the other hand, is fought out for unjust cause. A war carried on to acquire further territories in pursuit of the policy of lebensraum a; the expense of the neighbouring and other countries is primarily an unjust war. A formal war is one which is declared with due formality and is carried on by public authority. An informal war, on the other hand, springs a surprise attack upon another State. Lastly, guerilla warfare, according to Oppenheim, consists in hostilities conducted in territory occupied by the enemy by armed bodies of men who do not form part of an organized army. 13.4    Concept of Total War The present-day war has, however, assumed she character of total war, where moral ideas underlying the conventions which seek to make war more humane or prescribe rules of warfare are no longer regarded as having force or validity. Everything is made subordinate to the overmastering dictates of war. Rules, regulations, assurances, treaties and pacts all alike are of no moment ; and thus freed from the restraining influence of International Law, she aggressive war is conducted with an avowed aim to overpower the adversary regardless of the means or methods employed to achieve the end. Total war with its incidence of massacre of innocent men, women and children and large-scale destruction of property by perverting the knowledge of science for devising ways and means of destruction in brutual manner is the product of modem civilisation, if civilisation it can be called. 13.5    Is Prior Declaration of War necessary ? A formal declaration of war by notification on the part of a State to the enemy State that it considered itself at war with the latter was once deemed necessary to legalize hostilities between nations. The practice was uniformly followed by the Roman and the European Slates till about the middle of the seventeenth century. Letters of defiance or heralds were sent to the other party, giving three days interval between the communication and the strating of hostilities. The last example of this convention was the declaration of war by France against Spain, at Brussels in 1635, by heralds at arms which were despatched with much ceremony to give the enemy the necessary warning. With the discontinuance of the practice of sending heralds formal diplomatic statements to the other side of a determination to start hostilities came into vogue in the 17th century. By the 18th century, .however, even such diplomatic statements were almost abandoned and we notice that in many cases such statements were made only after the commencement of hostilities. It has been ascertained thai between 1700 and 1870 in ten cases there was a declaration of war, while in 107 cases there was no such declaration. The practice of making declarations of war before the commencement of hostilities again became common during the later years of the 19th century and it was almost taken for granted at that time that some form of declaration or ultimatum was necessary. On a review of the practice of nations mentioned above, it is clear that no uniform rule .can be deduced as to whether a prior or formal declaration of war is necessary or not as a preliminary to the commencement of hostilities. It is, however, manifest, as Lawrence points out, that international morality does undoubtedly demand that no hostile operations shall be commenced without warning. To attack another State in a period of profound peace, without having previously formulated claims and endeavoured to obtain satisfaction by diplomatic means, would amount to an act of international brigandage, and would probably be treated accordingly. But, continues Lawrence, the state of things set up by such abominable means would nevertheless be war, and both sides would be expected to carry on their operations according to the laws of war. The practice, however, has largely varied in the 20th century depending upon the advantage attendant upon a surprise attack. In 1904 Admiral Togo of Japan made a sudden and unexpected attack on the units of the Russian fleet in the outer harbor of Port Arthur. Japan was immediately accused of having commenced a war by a treacherous attack. This charge, however, could not be substantiated for some time past feelings were running high between the two countries. A few days prior to the commencement of war the Japanese Minister had handed to the Russian Foreign Secretary a note breaking off diplomatic negotiations and stating that the Government of Japan reserved to themselves the right to take such independent action as they might deem best to consolidate and defend their menaced position. This was regarded as an unmistakable warning that hostilities might start any moment. Moreover, there was no obligation to issue a formal declaration according to customary law. The learned editor of Pitt Cobbett's Leading Cases on International Law, however, points out that despite these facts the balance of opinion was in favour of declaration, or at least of some form of notification and even though the Japanese action might have been strictly legal it was not commendable. The matter, however, engaged the attention of the Third Hague Conference of 1907 which laid down in unambiguous words that hostilities between the contracting powers must not commence without previous and explicit warning, in the form either of a declaration of war with the reasons assigned for it or of an ultimatum with conditional declaration of war. With regard to the position of neutrals it was laid down that the existence of a state of war must be notified to the neutral powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. There was, however, a lamentable breach of this celebrated convention when Japan seized Manchuria in 1931 and attacked Shanghai as also when Italy invaded Abyssinia in 1935 without an iota of warning. History was repeated by Japan in July 1937 when she again started war against China without any prior declaration. Then came the Second World War which started in September 1939 with Germany's unannounced invasion and air-bombardment of Poland. The Russian invasion of Poland on September 17, 1939, and of Finland on November 30 of the same year was also made without any warning. The same was the case of the German invasion of Denmark and Norway on April 9, 1940. In June 1941 Germany also invaded the Soviet Union without any warning. At the climax of all this came the Pearl Harbour incident of the 7th of December, 1941, when Japan sprang a surprise attack on the United States fleet in Pearl Harbour. This act of Japan could never be justified by any principle of International Law governing warfare. In June 1950 Southern Korea was attacked by Northern Korea without any formal declaration of war. In the Indo-Pak. war of 1965 the Pakistan forces launched a massive attack both across the ceasefire line and the international frontier between the Indian State of Jammu and Kashmir and West Pakistan in the vicinity of Chhamb without the formality of declaration of war. In the Indo-Pak. War of 1971 Pakistani bombers, in a massive operation, attacked Indian airports on March 3, 1971, and the Pakistani President declared a state of war only the next day. Besides the formal declaration of war, war may also be commenced by an open act of aggression with a view to commencement of war or by some illegal act deemed by the aggrieved party as an act of war. It will appear from the above that the ancient practice of formal declaration of war has practically been abandoned, and the legality of public war is unaffected by non-declaration of hostilities. 13.6    Effects of the Outbreak of War (1)    General Effects—Besides affecting neutral States, war mainly affects the belligerent Stales. According to Oppenheim. it is wrong to say that due to outbreak of war, all the relations of the belligerent States and of their citizens came to an end. Although peaceful relations of the belligerent States end. International Law prescribes certain limitations and prohibitions and the relations of the belligerent States during war governed by the laws of war. (2)    Diplomatic and Consular Relations—At the outbreak of the war the Diplomatic and Consular relations between the belligerent States arc broken immediately. Consequently, the belligerent States recall their diplomatic agents from each other Stales. Often at the outbreak of war the receiving belligerent State hands over the passport to the diplomatic agents of the enemy country which means that they should immediately return to their home State. In this connection Article 44 of the Vienna Convention on Diplomatic Relations 1961, provides that it is the duty of the receiving State to provide necessary facilities to such agents so that they may return safely to their home State. (3)    Treaties— According to the old view all treaties are terminated between the belligerent States after the outbreak of war. In the present times many significant changes have come in this respect. The present practice of States shows that all the treaties between the belligerent States do not come to an end. Some treaties are completely terminated, some remain in force, while some others are simply suspended during war times. (4)    Trading and Intercourse in Commerce—All trading and intercourse between the belligerent States are prohibited during the war. It is a well recognised rule of International Law that the treaties relating to trading and intercourse between the belligerent States stand terminated at the outbreak of war. (5)    Contracts—The effect of the contracts at the outbreak of war between the belligerent Stales is a matter of municipal law rather than that of International Law. Consequently belligerent Slates are free to make rules and to enforce them in accordance with the contracts. International law leaves them free to make necessary laws regulating the validity or invalidity of contracts at the outbreak of war. The practice of the States however, shows that the executory contracts become completely invalid whereas executed contracts remain unaffected at the outbreak of war. (6)    Enemy Property—Enemy property may be of two kinds —public enemy property and private enemy property : (i)  Public Enemy Property—At the outbreak of war all movable public enemy property situated in the enemy State may be seized. The position in regard to the immovable public enemy property is, however, different. Immovable public enemy property may be temporarily taken but cannot be permanently seized. After the outbreak of war, it is determined as to what should be done in regard to this property. Consequently, the sale or disposal of the immovable public enemy property is not possible during war. It can only be used by the belligerent Slate during war. (ii)    Private Enemy Properly—The practice of the Slates shows that the private enemy property situated in the territory of the belligerent Stale may be taken over for a temporary period. After the end of the war its fate is decided in accordance with the provisions of the peace treaty concluded, if any, between the belligerent States, the belligerent State is not entitled to seize the private enemy property, but can only take it if it is necessary for local needs. In short, we may say that private property can be temporarily taken only when it is essential for military purposes of the belligerent States. Its plunder or seizure is contrary to International Law. For example, when India occupied certain Pakistani territories in the Indo-Pak War, 1971, it did not require the right to take private property of the inhabitants of those areas and to dispose them of. India, however, acquired the right to lake over or use that property if it was necessary for the administrative purposes or for maintaining law and order in that area. There are, however, certain exceptions in this connection. The rules of International Law mentioned above are not applicable in case of enemy ship in the sea. The ship of enemy, whether, they are public or private, can be seized during war. (7)    Combatants and Non-combatants—Under International Law the soldiers of the belligerent States are divided into two categories—lawful and unlawful. At the outbreak of war, lawful soldiers can be killed, grievously hurt, arrested or made prisoners of war. Lawful soldiers are ordinarily those soldiers who are in the regular army. Unlawful combatants,, however, enjoy certain facilities or concessions. They may also he arrested and made prisoners, but they cannot be killed or grievously hurt during war. As pointed out by Starke, Traditionally International Law maintains a distinction between combatants and non-combatants inasmuch as noncombatants are not in principle to be willfully attacked or injured. Certain classes of non-combatants- for example, merchants seamen may, however, be captured and made prisoners of war. 13.7    Modes of Termination of War (1)    Cessation of Hostitities -- Often the hostelities in a war are stopped and belligerent states without any agreement sisbenal their activities of war. The examples of this are wars of between France and Spain in 1720, war between Russia and Prussia War of 1801, war between Spain and Chile 1878 etc. This method of termination of war is not apt in context present situations. Because in this type of termination of war no agreements are entered into, hence what will happen to prisoners of war, how the boundaries will be demarcated, how the properties will be dealt with, etc. remain uncertain. As such, in this type of termination of war, a lot of difficulties emerge. (2)    Victory and thereafter annexation of the territory of the defeated State— This is also described as subjugation which as a mode of termination of war has been defined by Oppenheim to mean "extermination in war of one belligerent by another through annexation former's territory after conquest, the enemy force having been annihilated". According to International Law there remains no independent status of the territory so annexed after the conquest. The difficulty arises when the concerned territory is annexed after aggression or violation of International Law as there is no clear principle on this subject, but it is certain that after annexation of the defeated territory, the war comes to an end. (3)    Treaty of Peace—After the war, by the treaty of peace, the war .comes to end completely. The advantage of this mode of termination of war is that the agreements on prisoners of war and other issues are dealt with amicable through the terms of the treaty. By this method if the was is terminated the principle of postiluminium may also be applied by which in absence of any agreement the persons and things when released from the enemy control return back to their original position. (4)    By Armistice Agreement—The Hague Convention defines armistice agreements as agreement for temporary suspension of military operations. Under this the war is stopped temporarily but the existence of war remains between the belligerents and it may again breakout at any time, if negotiations for settlement fail. (5)    "Ceasefire"—This term implies cessation of hostilities on the mediation of United Nations Security Council or other International Organizations. The examples are ceasefire order by Security Council on Kashmir and in renewal of hostilities between Netherland and Indonesia. (6)    By a Truce— The term 'truce" has been used in the United Nations practice e.g. the truce established in Palestine in May, June 1948 as an action initiated by the Security Council. It is somewhat less certain cessation of hostilities as compared to armistice. (7)    By Unilateral Declaration—Sometimes the conqueror State by its declaration terminates the war and war comes to an end. The example of this, is the declaration by India, to end the India-Pak War in 1971. As a result of unilateral declaration India-Pakistan also stopped its war efforts. It is not necessary, that the date of end of the war be the date of entering into the peace treaty or it is that date on which the war comes to an end. It is decided by the municipal law of the states. 13.8    Legal Regulation of War Legal regulation of war was probably the most important development of twentieth century. The Covenant of League of Nations under Articles 12 to 15 imposed certain restrictions upon the States in regard to their right to resort to war. These Articles provide that before resorting to war the Stales should settle their disputes through arbitration, judicial settlement or by inquiry. Even if their disputes were not satisfactorily resolved through these means, they could not. under the said provisions go to war before the lapse of three months. It was also provided that if any State went to war violating the provisions of the Covenant then that State shall be deemed to be the enemy of the whole League of Nations. Thus the Covenant of the League of Nations for the first time imposed certain restrictions upon the right of the Slates to resort to war. The next important event in this connection was the Paris Pact of 1928 which is also popularly known as Kellogg-Briand Pact, In this Pact the States agreed to renounce war as an instrument of national policy for the settlement of International disputes. With the establishment of the United Nations Charter in 1945 the legal regulation of war reached its zenith. The United Nations Charier contains the following provisions restricting and even prohibiting war by States : (1)    Preamble of the Charier says that "armed force shall not be used save in the common interest." (2)    It is an important principle of the United Nations that the State shall settle their disputes peacefully (Article 2). (3)    Chapter VI provides certain methods for the peaceful settlement of International dispute. They include negotiation, good officers, conciliation, judicial settlement, inquiry or any other peaceful means of choice (Articles 33 to 38). (4)    Under Chapter VII, Security Council is empowered to take collective action against the State which has committed aggression or has otherwise committed a breach of International peace. The most important achievement of the United Nations is probably that it has completely prohibited war and there are only a very few exceptions wherein a State can resort to war. Even in those exceptions, a State can resort to war only in accordance with the provisions of the United Nations Charter. 13.9    War and the League of Nations The fight for the outlawry or war began in real sense when the great majority of the States became parties to the Covenant of the League of Nations which made notable regulations for resorting war. Members of the League agreed that if a dispute arises between them, they will submit the matter either to arbitration or judicial settlement or to the inquiry by the Council, and they also agreed that in no case war shall be resorted until three months after the award by the arbitrators, or by the judicial decision or the report by the Council. The three months time, i.e., 'cooling period' was provided as it was believed that it will be able to prevent the accidental outbreak of hostilities. If any State resorted to war without following the above procedure it would be deemed as to have committed 'an act of war against all other members of the League', which is tantamount to aggression against the community of States. Such an aggression in violation of International Law, customary as well as positive, and against the supreme interest of humanity, can only be conceived as a crime against humanity. Thus limitations were imposed by the Covenant for waging war. However, the limitations were confined only to members of the League. 13.10    War and the Pact of Paris The desire of the States in condemning war as expressed in the above treaties was laid down further in the General Treaty for the Renunciation, of War which is also called the Pact of Paris, or the Kellogg-Briand Pact. The Treaty was signed on August 27, 1928 at Paris, and presently it is binding on all the States. Article I of the Treaty provided that 'the High Contracting Parties solemnly declare, in the names of their respective peoples, that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another'. Further, Article II of the Treaty laid down that 'the High Contracting Parties agree that the settlement or solution of all disputes or conflicts, whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means. 13.11    War and the United Nations The Second World War created so much terror in the minds of the Allied Powers that when they established the United Nations it was mentioned in the first paragraph of the Preamble of the Charter that "we the peoples of the United Nations determined to save succeeding generations from the scourage of war, which twice in our lifetime has brought untold sorrow to mankind." Although the term war was not used in the Charter, it prohibited the use of force by a member of the United Nations. The right to make war in the old traditional sense has been definitely ruled out. Article 1, Para 4 of the Charter provided 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 in any other manner inconsistent with the purposes of the United Nations." It follows that the Charter did not recognize the legitimacy of war waged for the purpose or redressing a real or alleged wrong. There cannot be any just, legal or justifiable war in the new international order. If any dispute arises amongst the members, the Charter laid down under Para 3 of Article 2 that they shall settle them by peaceful means in such a manner that international peace and security ; and justice are not endangered. Further Article 39 laid down that the Security Council shall determine the existence of threat to the peace, breach of the peace, or an act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. While Article 41 lays down the measures which are short of war, Article 42 provides that it may take such action by air, sea and land forces as may be necessary to maintain or restore international peace and security. Action under Articles 41 and 42 may be taken by all or some members of the United Nations as the Security Council may determine. The decisions of the Security Council are binding on the members, and the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." 13.12    Let us Sum Up Now we can say that there is no such law in the International Law which can compel the state laws to accept the date of end of war as the date on which Peace Treaty was entered into, or the date on which the war came to an end. 13.13    Check Your Progress Exercise 1.    Explain any two kinds of war ? 2.    Is prior Declaration of War necessary ? Explain it ? 3.    Discuss the modes of terminations of War ? | 13.14 | Glossary | |---|---| | • | Civil War | → | A war between groups of people who live in the same country. | | • | Regulation | → | An official rule that controls how something is done. | | • | Ceasefire | → | It is an agreement in which countries or groups of people that are fighting each other agree to stop fighting. | | 13.15 | Answer to Check Your Progress Exercise | | 1. | See Section, | 13.3 | | | 2. | See Section, | 13.5 | | | 3. | See Section, | 13.7 | | 10.16 Suggested Readings ☻ Kapoor, S.K. (2003) International Law and Human Rights. A Nutshell, Allahabad: Central Law Agency. ☻ Bhatia, H.C. (ed.) (1977). International Law and practice in ancient India. New Delhi : Deep & Deep Publications. ☻ Connoll, D.P.O (1971), International Law for Students. Londan : Stevens & Sons. ☻ Green, L.C. (1970). International Law through the cases. London: Stevens & Sons. ☻ Fawett, J. E.S. & Roalyn, H. (1914). International Law in movements. London : Oxford University Press. ☻ Chandra, S. (1986). International protection of minorities. Delhi : Mittal Publication. ☻ Livingston, M.H., LeeBruce, K. and Morie, G.W. (eds.) (1978). International terroriam in the Contemporary world, London: Greenword. ☻ Tondon, M.P. & Tandon, R. (1984). International Law. Allahabad : Central Law Agency. ☻ Agarwal, H.O. (1989) Implementation of human rights constituents. With special reference to India. Allahabad : Kibb Mahal. ☻ Craven, M.C.R. (1998). The International convenient on economic; social and cultural rights. Oxford: Chandan Press. ☻ Northadge, P.S. Donelan, M.D. (1971). International disputes : The Political aspects. London: Europe Publications. ☻ Peasler, A.J. (1974). International Government Organizations Constitutional Documents. Hague: Martius. ☻ Feowick, C.G. (1983). International Law Bombay :Vialetts, Filler & Simons. ☻ Oreig, D.W. (1976). International Law London : Butter Worths. ☻ Oppenteim, L. (1952). International Law Atreative, London : Longman Vialetts, Filler & Simons. 13.17 Terminal Questions 1.    What is War ? Describe the nature, reasons and effects of War ? 2.    Discuss the Legal Position of War under the Charter of the United Nations. 3.    Discuss the various modes of termination of War ? 4.    Is prior declaration of war necessary ? Explain. ***** Chapter-14 METHODS OF SETTLEMENT OF INTERNATIONAL DISPUTES Structure 14.0 Introduction 14.1    Learning Objectives 14.2    Pacific Means of Settlement of International Disputes 14.2.1    Negotiation 14.2.2    Good Offices and Mediation 14.2.3    Conciliation 14.2.4    International Commissions of Enquiry 14.2.5    Arbitration 14.3    Compulsive Means of Settlement of International Disputes 14.3.1    Complaints 14.3.2    Retorsion 14.3.3    Reprisals 14.3.4    Other Sub-divisions of Reprisals 14.3.5    Intervention 14.3.6    Sanction of Compulsive Means 14.4    Check Your Progress Exercise 14.5    Glossary 14.6    Answer to Check Your Progress Exercise 14.7   Suggested Readings 14.8   Terminal Questions 14.0 Introduction War brings in its trail indiscriminate assassination and destruction, and an attempt is invariably made to settle disputes by means other than war before finally resorting to it. The dispute may be political (non-justiciable) or legal (justiciable). There are, however, various modes of making up the political and legal differences ' between nations. Such differences may be resolved either by amicable means or by compulsive means short of war. 14.1    Learning Objectives After going through this chapter, you will be able to : •    understand the Pacific means of settlement of International Disputes. •    Explain the compulsive means of settlement of International Disputes. 14.2    Pacific Means of Settlement of International Disputes The various anncable means of settling disputes may be enumerated as follows : (1)    Negotiation ; (2) Good Offices and Mediation ; (3) Conciliation ; (4) International Commission of Enquiry ; (5) Arbitration ; (6) Judicial Settlement through International Court of Justice and (7) Machinery of the U.N.O. Article 33, Paragraph 1, of the U.N. Charter also provides various means of settling disputes by amicable means. It reads : The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice." The various methods of the settlement of disputes by amicable means as enumerated above are discussed below in seriatim. 14.2.1    Negotiation The term is used to denote intercourse between States for the purpose of arriving at a settlement of the dispute, or for relaxation of international tension. It was observed by Moore, J., in the case of the Mavrommatis Palestine Concessions that "in the international sphere and in the sense of International Law, negotiation is the legal and orderly administrative process by which Government, in the exercise of their unquestionable powers, conduct their relations with one another and discuss, adjust and settle their differences." Such negotiations are carried on either by the heads of the States or by their accredited agents. Often there is an exchange of correspondence for clearing up the controversy. Negotiation is carried on by means of consultation and communication. The Australia-Newzealand Free Trade Agreement of August 31. 1965, provides for the formal process of consultation, while the United States-Soviet Memorandum of Understanding, Geneva (June 20, 1963), provides for a direct communication link, called the hot line between Washington and Moscow in case of crisis. Both the Permanent Court of International Justice (vide Railway Traffic between Lithuania and Poland) and the International Court of Justice (North Sea Continental Shelf Case) have laid emphasis on the obligation of the parties to negotiate and to pursue them as fast as possible with a view to concluding agreements. 14.2.2    Good Offices and Mediation When the parties refuse to negotiate a third State may come forward and tender its good offices for the purpose of conciliation. In making its good offices available, a third State or an international organization acts as transmitting agency. The term "good offices" connotes the bringing about the conflicting parties together and the counselling of advice or the suggesting of a settlement without participating in the negotiations. Such suggestions or advices may be disregarded by a party to a dispute without any compunction or breach of the law. Mediation is the conducting of negotiations between the disputing States through the agency of the third party. The mediator either at his own initiative or at the request of the disputing parties is entrusted with the duty of looking into the dispute and finding some method of peaceful settlement. He assumes the role of a middleman and acts in a conciliatory way to reconcile the opposing claims and appease the feelings of resentment finding place between the States at variance. He deals with the substance of the dispute. The mediation presupposes the active participation of the third State in negotiations ; but the mediator's suggestions have no binding force and the parties are free to accept, reject or modify them. The Hague Convention for the Pacific Settlement of International Disputes laid emphasis on the need for frequent recourse to good offices and mediation by powers and laid down that a State not party to a dispute had a right to offer mediation and good offices in a dispute which was advisory in character without any binding force and was not an unfriendly act. Articles 34 and 35 of the Charter also provide for collective mediation on the part of the United Nations whenever there is a situation which might lead to international friction. The distinction between good offices and mediation is fine, being matter of degree only. In the former case the third State may make an inquiry into the dispute or offer suggestions, but it does not participate in the negotiations. The third State only brings the conflicting parties together in negotiation. In the latter case the State mediating takes active part in the deliberations conducted for a peaceful settlement of the dispute ; in other words, here the third State conducts the negotiations between the parties. "Strictly a State is said to offer 'good offices' when it tries to induce the parties to negotiate between themselves, and to 'mediate' when it takes part in the negotiations itself but clearly the one process merges into the other." Mediation is a consequence of the tender of good offices and, in addition, a manifestation of their exercise." 14.2.3    Conciliation According to Hudson, "Conciliation is a process of formulating proposals of settlement after an investigation of the facts and an effort to reconcile opposing contentions, the parties to the dispute being left free to accept or reject the proposals formulated." The term implies various methods adopted by a third party to amicably settle the dispute between two or more States. It involves the formulation of proposals of settlement after an investigation of the facts. The dispute may be referred to a commission for favour of proposals to the parties for settlement. Such proposals have no binding force on the parties to the dispute. The Hague Conventions of 1899 and 1907 provided for the pacific settlement of dispute by means of Conciliation Commissions. These Commissions were set up by agreement of the parties, which, after investigation of the dispute, made their report indicating the way to settle the dispute amicably. Conciliation differs from mediation inasmuch as the former denotes reference to a dispute to a body of persons for ascertaining the facts and suggesting terms for settlement, while the latter denotes negotiations between the parties through the agency of a third party. Concliliation also differs from arbitration as in the former the parties to a dispute are free to disregard the result of the negotiations, but in the latter there is a legal decision of the arbitrator in the form of an award binding on the parties. 14.2.4    International Commissions of Enquiry Although they are different from Conciliation Commissions indicated above, the Commissions of Enquiry serve the purpose of investigating disputes and suspending hostilities till they have-made their report". The first Convention of the Hague Conference of 1899 suggested the establishment of International Commission of Enquiry for international disputes involving neither honour nor vital interests and relating to points of fact with a view to elucidating the facts and dispelling ignorance that ultimately lead to hostilities. The Conference provided that such Commissions might be constituted by special agreement between the parties, the members of such Commissions being appointed in accordance with the scheme laid down in Article 32 of the Convention for the appointment of members of arbitral tribunals. The report of the Commissioners was limited to a statement of facts, and expressly divested of the character of an arbitral award. Considerable improvement was effected in the 1907-Convention by adding provisions for assessors, agents, counsels and advocates and for summoning of witnesses. The North Sea Incident Inquiry, the Tavignano, Camouna Gaulois Inquiry and the Tubantia Inquiry are instances of such commissions of enquiry. 14.2.5    Arbitration Arbitration is the most important method of settling international differences by amicable means. As Lawrence points out ; "Its value resides in its judicial or quasi-judicial character. It signifies the reference of the dispute to an individual, or small group of individuals, to whom the parties state their respective cases, and whose decision they are in honour bound to obey, and in fact have always obeyed, the only instance to the contrary being due to the fact that the arbitrator had exceeded his powers......When a dispute is submitted to arbitration the matter takes on the semblance of a trial before a court." States are, however, under no obligation to submit their dispute to arbitration, unless they have bound themselves beforehand by a treaty. But once they have referred the matter to arbitration, the disregard to the award means a breach of promise and the award is final, unless it is vitiated by fraud, collusion and the like, or the arbitrator, as pointed out above, has exceeded his powers. The settlement of dispute by arbitration in the Alabama Claims between the United States and Great Britain went a long way in emphasizing the importance of arbitration as a means of settlement of dispute. The First Hague Conference of 1899 established the Permanent Court of Arbitration, with an International Bureau at The Hague to serve as its secretariat and a Permanent Administrative Council. Each signatory power was to select not more than four persons of known competency on questions of International Law and in the highest moral reputation to act as Judges on the Permanent Court of Arbitration. Out of the list of possible Judges the parties were free to select the members of a tribunal. The Hague Conference of 1907 made some improvements in the scheme and provided for summary procedure in disputes about matters of secondary importance. Article 37 of the Hague Convention I of 1907, provided : "International arbitration has for its object the settlement of disputes between States by Judges of their own choice and on the basis of respect of law. Recourse to arbitration implies an engagement to submit in good faith to the award". Strictly speaking, the Permanent Court of Arbitration was not a Court, but merely a panel of arbitrators from which Courts could be formed. As such it was not a Court in the real sense and had no permanency. "Arbitration," according to Briefly, "is only a species of judicial settlement, for an arbitrator is a judge, although he differs from the judge of a standing court of justice in being chosen by the parties, and in the fact that his judicial functions end when he has decided the particular case for which he was appointed." Twenty awards were given by the Permanent Court of Arbitration at The Hague between 1902 and 1932, including those of the North Atlantic Fisheries Dispute between U.S.A. and Great Britain (1910), Savarkar's Case (1911) and the dispute between Norway and U.S.A. regarding requisition of Norwegian ships in the First World War. The Argentine-Chile Frontier and Ram of Kutch arbitrations are recent examples of international adjudication arrayed at by a process of adjustment. In the Rann of Kutch Arbitration, the Tribunal was to determine a sector of a boundary between India (Province of Gujarat) and Pakistan (Sind) in southwestern region of the Indian subcontinent. On a consideration of the facts and evidence led in the case the Tribunal awarded to Pakistan two deep inlets on either side of a narrow base, called Nagar Parkar. about 320 sq. miles, on the grounds that it would be inequitable to recognise these inlets as foreign territory and that it would otherwise be conducive to friction and conflict. The paramount consideration of promoting peace and stability in the region compelled the recognition and confirmation that territory which was wholly surrounded by Pakistan territory, also be regarded as such. 14.3    Compulsive or Coercive Means of Settlement of International Disputes The coercive method of settling International disputes or extorting redress from another State short of war may now be studied. 14.3.1    Complaints Before proceeding to discuss compulsive means it will be desirable to advert to another amicable means of settling disputes employed in the course of hostilities by commanders of forces, who often lodge complaints with each other in respect of acts of illegitimate warfare committed by members of their forces. Such acts may either be abuses of the flag of truce, violations of the Geneva Convention or the like. Such complaints are sent to the enemy under the protection of a flag of truce, and it becomes the duty of the enemy to investigate such complaints and punish the offenders if the complaints be justified. 14.3.2    Retorsion It is a retaliatory measure adopted by a State for unfriendly or discourteous acts of another State. It is designed to injure the wrongdoing State. The measures directed against the offending State do not amount to war and are strictly within the legal rights of the State adopting them. Such measures may assume various forms. They may consist in imposing similar restrictions upon the subjects of the offending State in retaliation for restrictions placed by that State on the nationals of the aggrieved State, cutting off economic aid, recall of ambassadors or withdrawal of fiscal and tariff concessions. 14.3.3    Reprisals The term is a wide one and covers all coercive measures adopted by a State for the purpose of obtaining redress. It is different from retorsion in this respect that it may consist of acts which are otherwise illegal but are validated under particular circumstances (i.e., in view of a prior illegal act by the other State ; whereas in the case of retorsion there can be no legal objection to the retaliatory measures as they are only unfriendly acts within the competence of the aggreived State. The term 'reprisal' is also distinguishable from self-defence, inasmuch as while the former is punitive in character, the latter is resorted to as a means of protection. The former seeks to impose reparation for the harm suffered, but the latter is meant for the purpose of security of the State and territorial integrity. "Literally and historically it (reprisal) denotes the seizing of property or persons by way of retaliation, and formerly it was not uncommon for a State to issue "letters of marque' to one of its own subjects, who had met with a denial of justice in another State, authorising him to redress the wrong for himself by forcible action such as the seizure of the property of subjects of the delinquent State. The practice was called 'special' reprisals, but it has long been obsolete." Lawrence defines reprisals as the modes of putting stress upon an offending State which are of a violent nature, though they fall short of actual war. He divides reprisals into positive, negative, special and general. Positive reprisal means nothing more than a resort to the primitive law embodied in the phrase "an eye for eye, a tooth for tooth", or as it is technically called the tex talionis. Negative reprisals are carried on by adopting towards a State that is acting in an unfriendly, though peaceful, manner in a similar line of conduct to that complained of in it. They have no connection with force or war. They may consist in refusing to pay a nation's debt or to fulfil a treaty obligation. They are not acts of violence at all, but are mere retorsions. Special reprisals, frequently resorted to in the Middle Ages. are for the indemnification of private individuals for injuries and losses inflicted on them by subjects of other nations. Letters of marque were issued by the sovereign to those who had been wronged and they were thereby authorized to recoup themselves by capturing vessels and cargoes of the offending nationality. General reprisals take place when a State that deems itself aggrieved performs warlike operations without the intention of making war, i.e., putting pressure on the offending State by seizing or destroying property, holding territory, or capturing places or vessels. 14.3.4    Other Sub-divisions of Reprisals Besides the sub-divisions of reprisals mentioned above, the two important subdivisions that remain to be discussed are Hostile Embargo and Pacific Blockade. (a)    Hostile Embargo— It means the provisional seizure or detention of the merchant ships or property of the offending State in the ports of the State that seeks redress. It is distinct from a pacific or civil embargo, which is applied by a State to its own ships in is own ports. In the latter half of the eighteenth century and the early years of the nineteenth century hostile embargo was often resorted to in anticipation of hostilities, but the practice was later on discontinued due to the growth of commercial interest, with the result that at the present time belligent States allow enemy merchant vessels found in their ports to depart within the days of grace. (b)    Pacific Blockade—It consists in the temporary suspension of the commerce of an offending or reclacitrant State, by the closing of access to its coasts, or some particular part of its coasts, but without recourse to other hostile measures, save in so far as may be necessary to enforce the restriction. It is commonly resorted to in practice either (1) by way of reprisals and as a method of redress short of war ; or (2) as a measure of international policy. This measure is resorted to by States which have great naval forces or are strong naval powers against weaker States, for otherwise if the two contending States are equally powerful, war is inevitable. Before the 19th century blockade was entirely a war measure. Pacific blockade, i.e., as coercive measure to be applied in peace time for settlement of international dispute, came to be recognised in the second quarter of the nineteenth century. In the year 1887 it was resolved by the Institute of International Law at Heidelberg that pacific blockade was legal, if it was effective, duly notified, and maintained by a sufficient force, and did not interfere with ships under a foreign flag. It was further provided that in order to be legal it must apply to the vessels that were seized with no further severity than detention during its continuance and that they must be released, though without compensation, at its termination. 14.3.5    Intervention— It is another compulsive means of settling disputes between States short of war. According to Oppenheim it is the dictorial interference by a Slate in the affairs of another State for the purpose of maintaining or altering the actual condition of things. The matter has been discussed thoroughly in Chapter X and need not detain us here at this stage. 14.3.6    Sanction of Compulsive Means by the Charter—Article 2(3) of the Charter authorizes members to settle their international disputes by peaceful means in such a manner that international peace and justice are not endangered. The effect of this provision is that retorsion and reprisals, e.g., hostile embargo and pacific blockade, are only permitted till they do not endanger international peace and security. Article 2(4) further directs the members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purpose of the United Nations. A reprisal or intervention which results in the use of threat or force against the territorial integrity or political independence of any State will, on the face of it, be illegal and against the express provisions of the Charter of the United Nations. The enforcement provisions mentioned in Chapter VII of the Charter, however, authorize the Security Council to apply collective measures against the defaulting member-States and, by virtue of Article 2(6) of the Charter, against non-member States, such as the interruption of economic relations and of rail, sea, air posal, telegraphic, radio and other means of communications and severance of diplomatic relations including blockade for the purpose of preventing breach of the peace. 14.4    Check Your Progress Exercise 1.    Discuss the peaceful means of settlement of International Disputes ? 2.    Explain the compulsive means of settlement of International Disputes ? 14.5 Glossary •     Negotiation •     Pacific → Discussion at which people try to decide or agree something. → The word pacific refers to people, actions and ideas that are peaceful. 14.6    Answer to Check Your Progress Exercise 1.    See Section, 14.2 2.    See Section, 14.3 14.7    Suggested Readings ☻ For details see the list given at the end of lesson 13. 14.8    Terminal Questions 1.    Discuss the various peaceful means (Pacific means) of the settlement of International disputes ? 2.    Explain the compulsive methods for the settlement of International disputes ? 3.    Describe the Provision of the U.N. Charter regarding the Pacific and Coercive Methods of Settlement of International disputes ? ****** Chapter-15 WAR CRIMES AND TREATMENT OF PRISONERS OF WAR (POW) Structure 15.0 Introduction 15.1    Learning Objectives 15.2    Meaning and Definitions of “War Crime” 15.3    Classified the Crimes punishable under International Law 15.4    Important War Crimes Trials 15.4.1   Scuttled U-Boats Case, 1940 15.4.2   Neuremberg Trail 15.4.3   Tokyo Trials 15.4.4   Peleus Trials 15.4.5    Eichmann Case, 1962 15.4.6   Mai-Lai-Trials 15.5    Trail of Pakistani War Criminals 15.6    U.N. War Crimes Commission 15.7    International Tribunal for Rwanda 15.8    Milosevic War Crimes Trial, 2001-2002 15.9    Treatment of Prisoners of War 15.10    Let us Sum Up 15.11    Check Your Progress Exercise 15.12    Glossary 15.13    Answer to Check Your Progress Exercise 15.14    Suggested Readings 15.15    Terminal Questions 15.0 Introduction War crimes are serious violations of international humanitarian law that occur during armed conflicts. These crimes are considered among the most heinous acts, as they inflict suffering on civilians, prisoners of war, and non-combatants. The international community has established legal frameworks to address and prosecute individuals responsible for war crimes, aiming to promote accountability and deter future atrocities. 15.1    Learning Objectives After going through this chapter, you will be able to : •    Understand the meaning of War Crimes •    Explain various trials of War Crimes 15.2    Definition of 'War Crimes" Probably the widest definition of the International crimes as given by Prof. Schwarzenberger is that they are act which 'strike at the very roots of international society". Genocide, war crimes, piracy, etc., are thus clearly and without a shade of doubt international crimes. Professor Kelsen and other older writers defined war crimes as the violation of the laws and customs of war. According to Prof. Higgins, war crimes include the violations of the recognised rules of warfare by members of the armed forces, illegitimate hostilities in arms committed by individuals who are not members of the armed forces, espionage, and war treason and marauding. Professor Oppenheim has given a wider definition of war crimes in the following words—"War crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders. 15.3    Neuremberg Tribunal Classified the Crimes The principles of international law enunciated in the Neuremberg Trial have brought about a revolutionary change in the laws of war in general and war crimes in particular. The principles of international law enunciated in the Neuremherg judgment have been summarised in the Report of the International Law Commission in its second session in 1950. The Neuremberg Tribunal classified the crimes punishable under international law into the following three categories :— (I)    Crimes against peace;            (2) War Crimes; and (3)    Crimes against humanity. (1)    Crimes Against Peace—Article 6 of the Charter of Neuremberg enumerated following crimes against peace : Planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. (2)    War crimes—An exhaustive definition of war crimes has been given in Principle IV of the said report. According to it war crimes are the violation of the laws and customs of war which include but are not limited to murder, ill-treatment or depradation to forced labour or for my other purpose of civilian population or in the occupied territory, murder or ill-treatment of the prisoners of war or persons on the seas, killing of hostages, plunder of public property, wanton depradation of cities, towns or villages or devastation not justified by military necessity. (3)    Crimes Against Humanity—The Neuremberg Charter described crimes against Humanity as the crimes such as : Murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war of persecutions on political, racial or religious grounds in execution Jf or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated. While speaking before the committee of the General Assembly considering the report of the International Law Commission, Indian ambassador Mr. G.R. Gharekhan said that India extended her support to the formulation of a comprehensive code of crimes against peace and security of the mankind and that it should be made an effective instrument of international legal significance. Crimes such as genocide, apartheid and slavery slavery should be included in the list of crimes against humanity. As regards war crimes he said that India favoured replacement of the term with 'violations of rules of armed conflict'. Recently i.e. in October, 1992, the U.N. Security Council authorised to investigate the war crimes committed in Bosnia. Though its scope is not very wide, it represents a landmark in the history of the United Nations. It is no doubt not a permanent machinery but it will certainly establish an important precedent. 15.4 Important War Crimes Trials 15.4.1    The Scuttled U-Boas case (1940) This case relates to war crimes and the punishment of war criminals. The North-Western Command of the German Armed Forces surrendered on May 4, 1945 before the allied nations. The surrender included all the sea vessels in tlie said area. The surrender was made in consequence of an armistice agreement. After the signing of the instrument of surrender but before it came into effect, the German officers ordered their subordinate officers to scuttle the U-Boats. Later on this order was countermanded. But the accused who was an instructor of the U-Boats ordered the scuttling of U-Boats and consequently the U-Boats were scuttled. The accused was arrested and was prosecuted for violating the laws of war. in his defence, the accused put forward the following two argument;, (i)    The terms of the instrument of surrender were not known to him as they were not intimated to him. (ii)    He did not know or receive the information of countermanding of the original order regarding cutting of U-Boats. The accused was held guilty and was sentenced to five years imprisonment. The Court held that by 5 May, it had become clear that the U-Boats had become the property of the allied nations and could not therefore be destroyed. Even if it was admitted that the first order relating to scuttling of U-Boals was binding then in between 5th and 6th May, the incidents that had taken place could have led any reasonable man to realize that under these circumstances the scuttling of U-Boats would be violation of the laws of war. The accused knew this yet he committed the crime. The Court propounded the following principles.:— (i)    It the armed forces of a state surrender after an armistice agreement then the agreement shall be binding on both the states i.e., the surrendering state and the stale to whom the surrender is made. If after the surrender, the. Soldiers do not observe and follow this agreement, they will he guilty of the violation of the law of war, (ii)    If a person scuttles the Boats or otherwise causes harm to them after the armistice agreement and surrender in pursuance thereof, he will be guilty of war crimes because after the surrender war-boats become the property of the conquering state. 15.4.2    Neuremberg Trial : Jurisdiction of Neuremberg Tribunal The Neuremberg Tribunal was established after the Second World War to try (he war criminals of Germany. In order to confer jurisdiction upon the tribunal, the victorious nations entered into an agreement in 1945 and conferred jurisdiction upon the court or tribunal through a Charter. The Neuremberg Tribunal was authorised to try and punish the persons who were guilty of war crimes during the Second World War. Besides this, the Charier also conferred jurisdiction upon the court in respect of crimes against peace and crimes against the humanity. The trial of main accused started on November 20, 1945. The tribunal delivered its judgment on September 30, 1946, whereby it acquitted three accused; sentenced to death 10 accused : awarded punishment of transportation for life to 3 accused ; and awarded imprisonment for a long period to 4 accused. Facts—As pointed out earlier, the Neuremberg Tribunal was established to try and punish the war criminals of Germany'. The main charge against these accused was that they had committed war crimes; crimes against peace and crime against humanity during the Second World War. Under the leadership of Hitler these accused had committed inhuman atrocities upon the Jews. These accused were also charged for having violated the treaty of Varsilles, 1919 and the Pact of Paris, 1928. Great emphasis was laid on the Pact of Paris, 1928, because through it the panics had renounced war as an instrument of national policy for the settlement of international disputes. Judgment and Principles Laid Down—While delivering the judgment, the Neuremberg Tribunal laid down ihc following principles :— (1)    The crimes against international law are committed by men not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced. (2)    The Court also laid down, "The fact that a person who committed an act which constitutes a crime under international law acted as the head of the State or responsible government official does not relieve him from responsibility under international law." (3)    The Court also laid down the fact that a person acted pursuant to orders of his, Government or his superiors does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. (4)    The accused had raised the objection that unless there was pre-existing law, an act cannot be declared as crime nor can it be punished. The Neuremherg "Tribunal rejected this argument. (5)    In the view of the Court the conduct of aggressive war was highest international crime. According to the Court Germany was responsible for starting aggressive war against other countries which was against the Pact of Paris, 1928. Hence persons responsible for organising and conducting this war were declared guilty. (6)    The Court also held the accused guilty for making bad treatment towards the prisoners of war. The accused argued that since Russia had not signed the Geneva Convention relating to the treatment of the prisoners of war, they could not be punished for the bad treatment towards the Russian prisoners of war, but the Court rejected even this argument and held them guilty. 15.4.3    Tokyo Trial As Neuremberg Tribunal was established to try war criminals of Germany the Tokyo Tribunal was established to try the war criminals of Japan. The Tokyo Tribunal was established by the victorious Stales by making an agreement and subsequently by issuing a Charter conferring jurisdiction upon the court. The Tokyo trial started hearing on June 4, 1946, and was prescribed by Sir William. A special feature of ' this trial was that its judges were not only from (he victorious States, but some of the Judges belonged to other States also. For example, the eminent Indian jurist Dr. Radha Vinod Pal was one of the judges of the Tokyo Tribunal. Besides this, there were some judges from Philippines and other countries of the Commonwealth of the Nations. During the trial the accused objected that they could not get justice from this trial because most of the judges belonged to the nations which defeated, Japan, but this objection was rejected by the Court. The Tokyo Tribunal awarded death sentences to those persons who were guilty of conducting and organising war and awarded imprisonment for different terms to other persons accused of war crimes. Dissenting Judgment—Dr. Radha Vinod Pal, who was one of the judges of the Tokyo Tribunal, delivered his dissenting judgment. According to him, war is beyond the scope of international law, although its conduct is within the scope of the rules of international law. Besides, lie expressed the view (hat conspiracy was not an independent crime under international law. Consequently he held that (he accused should be declared not guilty as there was no evidence on the record to prove their guilt. 15.4.4    Peleus Trial Peleus was a Greek ship which was .sunk by the German-U-Boat. After sinking the ship the commanders of the U-Boat ordered firing upon the members of the crew of the ship who were trying to save their lives through life boats. Thus out of -35 people. 22 members of the crew lost their lives in consequence of firing. After some weeks when on account of air attacks, the U-Boats were compelled to come to the coast, officers on board of the boats were arrested and were prosecuted for war crimes. The Court ruled that it is the fundamental usage of war that firing on unarmed enemies is prohibited. The Court referred to an old case, namely, Llandovery Castle (1921), wherein it was laid down, "In war of land the killing of an unarmed enemies is not allowed.............Similarly in war at sea the killing of shipwrecked people who have taken refuge in life-boats is forbidden. During the trial the accused contended that they were not guilty because they fired on the orders of the superior officers, but the Court rejected the plea of superior orders and held that they were bound to obey only lawful orders of their officers. There is no duty to observe orders which are not lawful. Consequently, the accused were held guilty and were duly punished. 15.4.5    Eichmann Case (1962) Under Hitler, Eichmann had committed many Nazi atrocities upon the Jews. The charge against him was thai he was responsible for the murders of lakhs of Jews and for inhuman treatment towards them. The spies of Israel were after him for a long time, but he was fleding from one country to another and escaping arrest and trial. Ultimately the Israeli spies caught him in Argentina. But on account of the fear that the Government of Argentina might not extradit him for prosecuting him for having committed war crimes, the Israeli spies abducted him from Argentina to Israel in an irregular way. In Israel Eichmann was prosecuted for war crimes and was sentenced to death. An appeal was filed in the Supreme Court of Israel. It was contended on behalf of Eichmann that the courts of Israel did not possess the jurisdiction to try him because when the crimes were committed by him, Israel as a State did not exist. That is to say war crimes were committed during the Second World War and Israel came into existence after that. But the Supreme Court of Israel rejected this argument and propounded the principle of universal jurisdiction in respect of war crimes and genocide. 15.4.6    Mai Lai Trial Mai Lai is a village in Vietnam, the whole population of which was killed by American military personnel. It was clearly a war crime and consequently there was a great reaction in the international community and America was charged of having encouraged perpetration of war crimes of military officers in Vietnam. American Nationals also expressed their resentment against such atrocities and war crimes. Due to the reaction of the international community as a whole and the pressure of the American nationals at home, the Government of America was compelled to hold a trial of the officer responsible—Lt. Caley. The Court held the accused guilty and awarded punishment to him. Mai Lai trial is a landmark event, in respect of the punishment awarded to war criminals for the violation of the war crimes. Hitherto war trials were such wherein the victorious State had conducted the war crimes trials against the criminals of the vanquished nations, but Mai Lai trial marked the beginning of a new trend which shows that there will be circumstances wherein because of the reaction or public opinion of the International community, and the pressure of its own nationals, a Slate may be compelled to hold war criminals trials against its own officers. It is undoubtedly an auspicious beginning and augurs well for the observance of laws of war in future.          ' 15.5    TRIAL OF PAKISTANI WAR CRIMINALS The atrocities and genocide that were committed by the Pakistani army against the people of Bangladesh in 1970 led latter to take a decision for holding a trial of those persons. It was decided that 195 prisoners of war who were' charged with different crimes including that of war crimes shall face the trial. Pakistan made an objection before the International Court of Justice for the proposed trial of Pakistani prisoners of war and requested the Court for the indication of "interim measures of protection." Later, after the recognition of Bangladesh by Pakistan in February 1974, a meeting of the representatives of Bangladesh and Pakistan along with India was held wherein an agreement on April 9, 1974 was signed and it was decided that Bangladesh would not hold war crimes trial. 15.6    U.N. War Crimes Commission to investigate War Crimes committed in Former Yugoslavia On 6th October 1992, the Security Council passed a resolution unanimously authorizing security General Ghali to establish U.N. War Crimes Commission to investigate war crimes committed in former Yugoslavia. Though the scope of this Commission is very limited, it is very significant landmark in the history of the United Nations. It is not a permanent Commission yet is significant because it will definitely establish an important precedent. The Security Council, on 6th October. 1992, asked States, relevant U.N. bodies and Other organizations to provide within 30 days any substantial information concerning violations of humanitarian law. It may be noted here that two months before, on 13th August, 1992, in resolution No. 771, the Council had asked States and international organizations for such information on the former Yugoslavia. On 6th October, 1992, the Council took the decision for the establishment of War Crimes Commission as it had been alarmed by reports of mass killings and "ethnic cleansing" In former Yugoslavia. The Commission reported that it had several thousand pages of documentation, as well as video information on allegations of grave breaches of the 1949 Geneva Conventions and violations of international humanitarian law and wars preparing a database on all reported crimes. 15.7    Establishment of the International Tribunal for Rwanda Expressing its grave concern at the reports indicating that genocide and other systematic widespread and flagrant violations of international humanitarian law have been committed in Rwanda and determined to put an end to such crimes and take effective measures to bring to Justice who are responsible for them, the Security Council on November 8, 1994. decided to establish an International Tribunal for Rwanda for the sole purpose of prosecuting persons responsible for genocide and other such violations of International humanitarian law committed in the territory of Rwanda and neighbouring states between 1st January 1994 and 31st December 1994 and to adopt the Statute of the International Criminal Tribunal for Rwanda. The Security Council established the Statute under Chapter VII of the U.N. Charter. After the establishment of the International Tribunal for Prosecution of Violations of International Humanitarian Law in former Yugoslavia , it is the second tribunal of its kind and will not only contribute to the process of national recorciiliation and to the restoration and maintenance of peace but will also prove to be a deterrent and an eye-opener-for others. The Tribunal gave its first decision in September, 1998 According to the decision of the Tribunal Jean-Paul Akayesu, former Mayor of Tabs was found guilty against humanity. Former Prime Minister of Rwanda. Jean Kambananda, was also found guilty of genocide and crimes against humanity. Both the accused were sentenced to imprisonment for life. 15.8    Milosevic War Crimes Trial (2001-2002) Slobodan Milosevic former Yugoslavian President, was required to appear before the International Criminal Tribural on 3rd July 2001 to hear charges of crimes against humanity committed during his as the so-called "Butcher of the Balkans". After the charges were read he would have days to enter a plea. Aged 59, Milosevic is accused by International Criminal Tribunal for former Tribunal (ICTY) of responsibility for murders, deportations, pcrseculions and violations of the 1949 Geneva Conventions during his rule in the 1988-89 serve crackdown on ethnic Albanians in Kosov. It took hardly 12 minutes for Milosevic to deny the charges. Thus contemporarily he alleged : "The trial's aim is to produce false justification for war crimes committed by NATO in Yugoslavia." Terming the Tribunal as illegal he even refused to appoint his counsel. The actual trial started on Tuesday I2lh February, 2002. On that day U.N. War Crimes Prosecution Carla Del Pente alleged that Milosevic was "responsible for the worst crimes known to mankind" by orchestrating crimes against humanity and in the 1990 wars of Bosnia. Crotia and Kosovo. It seems almost certain that Mil will be found guilty and will be punished by the Tribunal. 15.9    Treatment of Prisoners of War With regard to prisoners of war they must be cared for and treated with humanity. The captor may employ private soldiers—not officers—in useful work not in any way connected with the operation of the war. The work should also not be excessive. In all cases they must be paid for their work. Non-commissioned officers under the Geneva Convention of 1949 are only required to do supervisory work, but they may ask for other work. According to the Hague Regulations of 1907, which provided in detail in Articles 4-20 for the humane treatment of prisoners, prisoners are to enjoy complete liberty of worship. They may be released on parole if the laws of the country permit that procedure. Prisoners caught in an attempt to run away may be shot in the last resort. If they are captured they may be punished. The Hague Conferences of 1899 and 1907 charged each belligerent with the task of establishing an information bureau in its territory and sending the necessary information to the government of the belligerent after the termination of hostilities. The Geneva Convention .of 1929 also made provisions for the treatment of prisoners of war. As between the ratifying States this Convention replaced the Conventions of 1864 and 1906. One of the Conventions concluded at Geneva in 1949 related to the treatment of prisoners of war which applies to any armed conflict— recognised or unrecognised—arising between the contracting parties. The Convention came into force on October 21, 1950, and replaced for its ratifiers the earlier instruments dealing with the treatment of prisoners of war. Under Article 4 of the Convention the following categories of persons are to be treated as prisoners of war : 1.    Members of the armed forces of a party, to the conflict as well as members of militias or volunteer corps forming part of such armed forces. 2.    Members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a party to the conflict and operating it or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions : (a)    that of being commanded by a person responsible for his subordinates ; (b)    that of having fixed a distinctive sign recognisable at a distance ; (c)    that of carrying arms openly. (d)    that of conducting their operations in accordance with the laws and customs of war. 3.    Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Powers. 4.    Persons who accompany the armed forces, without actually being members thereof, such as civil members of military crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorisation from the armed forces, which they accompany, who shall provide them for that purpose with an identity card. 5.    Members of crews, including masters, pilots and apprentices of the merchant marine and the crew of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of International Law. 6.    Inhabitains of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist invading forces without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. According to the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, prisoners of war are in the hands of the enemy power but not of the individuals or military units who have captured them. They must at all time be humanely treated. They are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex. The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health. All effects and articles of personal use, except arms, military equipment and military documents, shall remain in the possession of prisoners of war, likewise 'their metal helmets and gas masks and like articles issued for personal protection. The detaining Power may subject prisoners of war to internment but only in premises located on land and affording every guarantee of hygiene and healthfulness. No prisoner of war may at any time be sent to, or detained in, areas where he may be exposed to the fire of the combat zone. The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or The development of nutritional deficiencies. Clothing, underwear and footwear-shall be supplied to prisoners of war in sufficient quantities by the detaining power, which shall make allowance for the climate of the region where the prisoners are detained. Canteens shall be installed in ail camps, where prisoners of war may procure foodstuffs, soap and tobacco and ordinary articles in daily use. The detaining power shall be bound to take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps, and prevent epidemics. Every camp shall have an adequate infirmary where prisoners of wary may have the attention they require as well as appropriate, diet. Medical inspections of prisoners of war shall be made at least once a month. The Convention prohibits violence to life and person of prisoners, taking of hostage and humiliating or degrading treatment. No physical or mental torture is allowed to be inflicted on prisoners to compel them to give information. After capture they have to be removed from the danger area. Captivity may be terminated by repatriation, accommodation in neutral countries, release, escape or death of the prisoners. 15.10    Let us Sum Up We can say, According to Geneva Convention relating to the treatment of Prisoners of War 1949, the prisoners of war must be treated humanely in all circumstances. They are to be protreted against any of violence as well as against intimidation, insults and Public Curiosity. 15.11    Check Your Progress Exercise 1.    Define War Crimes ? 2.    Discuss the major kinds of War Crimes ? 3.    Write a short note on Prisoners of War ? 15.12 Glossary •    I.C.T.Y. → International Criminal Tribunal for Former Tribunal. •    Prisoner → A prisoner is a person who is deprived of liberty against their will. 15.13    Answer to Check Your Progress Exercise 1.    See Section,15.2 2.    See Section,15.3 3.    See Section,15.9 15.14    Suggested Readings ☻ For details see the list given at the end of lesson 13. 15.15    Terminal Questions 1.    Define War Crimes ? What are its major kinds ? 2.    Define War Crimes ? Explain the nature of War Crimes ? 3.    Discuss the fact and formulated principles of the following cases : (1)    Nuremberg Trial, 1946,       (2) Tokyo Trail (3)    Mai Lai Trail. 4.    Write a brief note on Prisoners of War ? 5.    What is the position of Prisoners of war in International Law ? ****** Chapter-16 THE LAW OF NEUTRALITY Structure 16.0 Introduction 16.1    Learning Objectives 16.2    Meaning and Definitions of the Term Neutrality 16.3    Development of the Law of Neutrality 16.4    Kinds of Neutrality 16.5    Commencement of Neutrality 16.6    Rational Basis of Neutrality 16.7    End of Neutrality 16.8    Neutrality under League of Nations 16.9    Neutrality under the United Nations Charter 16.10    Rights and Duties of Neutral States and Belligerent States 16.10.1    Duties of the Belligerent States 16.10.2    Rights of the Neutral States 16.11    Let us Sum Up 16.12    Check Your Progress Exercise 16.13    Glossary 16.14    Answer to Check Your Progress Exercise 16.15    Suggested Readings 16.16    Terminal Questions 16.0 Introduction The law of neutrality is a fundamental principle in international relations that governs the conduct of states during times of armed conflict. Neutrality aims to maintain peace and stability by preventing non-participating states from taking sides or becoming involved in hostilities between warring parties. This legal framework, rooted in customary international law and codified in various treaties, outlines the rights and responsibilities of neutral states. In this lesson, we will explore the key principles and challenges associated with the law of neutrality. 16.1    Learning Objectives: After going through this lesson, you will be able to: •    Understand the term of Neutrality. •    Explain the various kinds of Neutrality. •    Discuss the development of the law of Neutrality. 16.2    Meaning and definition of the term 'Neutrality The term ‘Neutrality’ is drived from the Latin word neutor. As pointed out by Oppenheim, neutrality is "the attitude of impartiality adopted by third States towards the belligerent and recognised by belligerent, such attitude creating rights and duties betweenthe impartial States and belligerents". According to Lawrence, neutrality is the condition of those States which in time of war take no part in the contest but continue pacific intercourse with the belligerents." According to Starke, "In the popular sense neutrality denotes the attitude of a State which is not at war with belligerents end does not participate in the hostilities. In its technical sense, however, it is more than an attitude, and denotes a legal status of a special nature, involving a complex of rights duties and privileges at international law, which must be respected by belligerents and neutrals alike". On the basis of the above definitions we may conclude that there are following three essential elements of neutrality : (1)    Attitude of Impartiality—Neutral State is a State which does not take part in war and remains impartial. This impartiality is one of the essential elements of neutrality. (2)    Recognition of Impartiality by Belligerent States—It is also necessary that this impartiality should be recognised by the belligerent States. (3)    Creation of Rights and Duties—The recognition of altitude of impartiality of the neutral State gives rise to creates certain rights and duties. It gives certain rights to neutral States and also imposes certain duties upon it. Similarly, the neutral State also acquires certain rights because of the attitude of impartiality and neutrality adopted during the war between the two belligerent States. These rights and duties are recognized under international law and should be observed by the belligerent States as well as the Neutral States. 16.3    Development of the Law of Neutrality The term 'Neutrality' has been derived from the Latin word ‘Neuter’ which means impartiality. In wide sense, by neutrality we mean an attitude of impartiality adopted by the States who do not take part in the war. So far as the modern international law is concerned, the law of neutrality started in the middle ages. in fact. the word 'neutrality' began to be used since seventeenth century. But, its systematic development could not he achieved until eighteenth century. In eighteenth century, the two famous jurists Bynker Shoek and Vattel contributed much to the development of the law of neutrality. In eighteenth century it was agreed that the States which do not take part in war are entitled to remain impartial and this impartiality may confer upon them certain rights. The development of the law of neutrality received a great impetus in the nineteenth century. Much of the credit for this goes to the United States of America because in the Napoleonic wars of Europe, America remained a neutral country. During the wars of Napoleon, Lord Stawell who presided the British Prize Court contributed much to the systematic development of the law of neutrality and clarified the rights and obligations of the neutral States arising out of neutrality. The systematic development of the law of neutrality also owes much to the civil war of America. A leading case of this period relating to neutrality in Albania Claims Arbitration 1872. In the civil war of America, Britain was neutral. But Britain provided the facilities to the Southern States for the fitting and construction, etc., of Alabama and other destroyers in its territory. America claimed that it was a clear violation of the neutrality adopted by Britain. America contended that it was the duty of Britain to prevent such types of acts in its territory. America, therefore, claimed compensation for the violation of law of neutrality by Britain. Britain and America agreed to entrust this mailer to the Court of Arbitration. The Court of Arbitration gave its award in favour of America and ruled that Britain should pay 1,55,00,000 dollars in gold to America. The permanent neutralisation of Belgium and Switzerland in nineteenth century was also a landmark event so far as the development of the law of neutrality was concerned. This encouraged the development of the law of neutrality. Some rules relating to the law of neutrality were also framed in the Declaration of Paris, 1856, and Hague Convention of 1907. But the First World War turned into a 'total war' and laws of neutrality were openly and flagrantly violated during the war. So was also the case with the Second World War. America remained neutral in the First World War upto the year 1917, but later on it was compelled to take part in war. It was claimed by America that it had to participate in war because its neutrality was violated. The establishment of the League of Nations and then the United Nations greatly affected the law of neutrality in the twentyninth century. 16.4    Kinds of Neutrality Neutrality may be of following kinds : (1)    Perpetual or Permanent Neutrality—When a State is neutralised through a special international treaty, then such a neutrality is called perpetual or permanent neutrality. (2)    General and Partial Neutrality—When only a part of the sum in neutralised, it is called partial neutrality. On the other hand, when the whole State adopts the attitude and policy of neutrality, it is called general neutrality. (3)    Voluntary Neutrality and Neutrality based on Some Treaty — A voluntary neutrality is a neutrality which is declared by a State voluntary without being bound by a treaty. On the other hand, a State may become neutral being bound by any general or special treaty. (4)    Armed Neutrality—When a State used armed force for the defence or neutrality, it is called armed neutrality. (5)    Benevolent Neutrality—When a State while remaining neutral, favours belligerent Stale or otherwise helps it, is called benevolent neutrality. (6)    Perfect and Qualified Neutrality—When a State remain completely impartial and does not, directly or indirectly, assist either of belligerents, then it is called perfect neutrality. But if a State remains neutral generally but a result of same provisions of treaties entered into before start of war, directly, or indirectly assets any belligerent State, then, it is called qualified neutrality. Distinction Between 'Neutrality' and 'Neutralisation'—Neutralisation is the permanent status of neutrality of a State. Often it is guaranteed by the International agreement or treaty. Such a State cannot participate in war without violating its neutrality. Prof. Schwarzenberger has clarified (he distinction between neutrality and neutralisation in the following words : "Whereas under international customary law a neutral power remains free to exchange its status of neutrality for that of war, neutralized State which is a party to a treaty prescribing its permanent neutrality may not do so. It cannot resort to war without a breach of its treaty, obligation or release from these by the other parties to the treaty. Switzerland represents this type of State." Switzerland is an ideal neutralised State to the extent that in order to adhere to neutrality it has not even joined the membership of the United Nations. Austria is also neutralised State and its neutrality has also been guaranteed under an International treat. But, Austria has become the member of the United Nations. In the words of Stark following is the distinction between Neutralisation and Neutrality : “Neutralisation differs fundamentally from neutrality, which is a voluntary policy assumed temporarily to a state of war affecting other powers and terminable at any time by the State declare its neutrality. Neutralisation on the other hand, is a permanent stains conferred by agreement with the interested powers, without whose consent it cannot be relinquished.” 16.5    Commencement of Neutrality Immediately after the start of war neutral States should declare their neutrality. For example, during the Second World War, neutral States declared their neutrality immediately after the start of war. It is only after the start of war, States can determine as to whether they will remain neutral or not. Hence, knowledge of the start of war is necessary for the declaration of neutrality. No neutral State can be held responsible for its own acts as the acts of its citizens done before the start of war. That is why, Article 2 of Hague Convention III provides that the belligerent States should intimate the neutral States about the start of war. The rights and duties of neutral States begin only after such intimation. 16.6    Rational Basis of Neutrality Neutrality is often justified because of the following reasons : (1)    It helps to localise the area of war; (2)    It discourages the war. (3)    In consequence of neutrality, some States are able to keep themselves away from war. (4)    It regularises international relations. Ordinarily abovementioned reasons are said to be the national basis of the law of neutrality. But, the Second World War has clearly established that the first and second reasons are not .the true basis of neutrality. During the Second World War, Norway, Denmark, Ireland and Belgium were neutral countries. But, the belligerent States in genera] and Germany in particular did not respect their neutrality and conquered them. So far as the above-mentioned third basis is concerned the experience of the First World War has shown that it is 'lot a concrete basis because America wanted to keep itself away from the First World War, but had entered the First World War in 1917, As regards the last basis, it may be noted that the establishment of the League of Nations greatly affected the old law of neutrality. It is because of die above reasons that it is contended that the observance of the law of neutrality is not possible ii the presence of the provisions of the Charter. We will take up this discussion later in this Chapter. 16.7    End of Neutrality Neutrality comes to an end in one of the following ways':— (a)    at the end of war; (b)    when the neutral State starts war with one of the balligerent States, or (c)    when any belligerent State starts war with the neutral State. The rights and duties of neutrality continue till a State remains neutral, they and in as soon as the neutral State ends its neutrality. However, neutrality does not end simply by a violation of the neutrality. 16.8    Law of Neutrality under the Covenant of the League of Nations Many jurists have expressed the view that the Covenant of the League of Nations put an end to the old law of neutrality. Before saying anything for or against this view, it will be desirable to discuss the relevant provisions of the covenant of the League of Nations. There could be two types of war under the League of Nations—(1) War not in disregard of the provisions of the Covenant and (2) War in disregard of the provisions of the Covenant of League of Nations. As regards the first type of war, Covenant of League of Nations provided that the members of the League of Nations were under the obligation to settle their international disputes first through arbitration, juridical decision or inquiry by Council. Even after the States failed to settle disputes by these means, they could not go to war until a period of three months lapsed after the award of the arbitration or judicial decision or inquiry by Council. That is to say, the Covenant of the League of Nations has not completely prohibited war. It has simply imposed certain restrictions upon the member Slates in respect of their right to resort to war. If the member-states resorted to war after exhausting the means provided under the Covenant for the settlement of their disputes, other member-Slates of the League of Nations could remain neutral and the Covenant did not impose any obligation upon them. Thus, in this type of war the States were free to maintain their neutrality. The position is entirely different in regard to second type of war. The second type of war greatly affected the law of neutrality under the Covenant. That is to say, if a State went to war in total disregard of the provisions of the Covenant of the League of Nations, then such a State was to be deemed to be the enemy of the whole of the League. The covenant provided that if any State resorted to war in violation of the Articles 12, 13 and 15, then it would be considered to be war against the whole League. In such type of war, other members of the League of Nations were under obligation to assist the League of Nations. In short, we may say that in this type of war, other member-States of the League of Nations could not remain neutral. According to Fenwick, "Covenant of the League of Nations put an end to the old law of neutrality." Professor Kelsen has also expressed the view that the provisions of the Covenant of the League of Nations were inconsistent with the old law of neutrality. But as pointed out by Prof. Oppenheum although the Covenant of the League of Nations greatly affected the old law of neutrality it did not completely abolish it. The view of Prof. Oppenheim seems to be better one because under certain circumstances the state could remain neutral under the Covenant. For example, if a State resorted to war not in disregard of the provisions of the Covenant, then in that stage the member-States were under no obligation to assist the League of Nations and could remain neutral. 16.9    Neutrality under the United Nations Charter Some jurists are of the view that the United Nations Charter has put an end to the old law of neutrality. Prof. Kelsen has remarked that the rule of impartiality by neutral States is superseded by the Charter. Prof. Quincy Wright, Fenwick, Prof. Smith Jackson and Miss. V.M. Chricton also subscribe to this view. In the view of these jurists, when a State resorts to war there could be only two conditions. It could either be an aggressor or a defender. If it is an aggressor then preventive or enforcement action can be taken against it under the Charter. If il is a defender then it should he assisted by the United Nations. Thus the member States of the United Nations cannot remain neutral. Before we criticize the view of these jurists. it will be desirable and necessary to refer to the relevant provisions in the United Nations Charter which have affected the old law of Neutrality. Such provisions are as follows : (1)    Article 2(5)—Article 2(5) provides that al! members shall give the United Nations every assistance in any 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. (2)    Article 25—Article 25 provides that the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. That is to say, if the Security Council decides to take any action, the member States have iio option but to carry out this decision. Under such circumstances they cannot remain neutral. (3)    Articles 41, 42 and 43—Articles 41, 42 and 43 are relating to the right of enforcement action conferred upon the Security Council in respect of maintenance of case and security. Under these Articles the Security Council has been empowered to ask other States to assist it. These provisions are in fact detrimental for the observance of the rules of the old law of neutrality. (4)    Article 49—Article 49 provides that the members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council. It has also affected the old law of neutrality. (5)    Article 51—Article 51 of the Charter confers upon all the member-States of the United Nations the right of individual or collective self-defence if an armed attack occurs against a member of the United Nations. It is clear from the above provisions that the United Nations Charter has greatly affected the old law of neutrality. It is on the basis of these provisions that many jurists have expressed the view that the Charter of the United Nations has put an end to the old law of neutrality. But, as against of the view, some jurists have expressed the view that although the provisions of the Charter have greatly affected the old law of neutrality they have not completely abolished it. That is to say neutrality can still be practised under certain circumstances. Professor Oppenheim has expressed the view that the Charter has greatly affected the old law of neutrality, but has not completely abolished it. He adds, in principle no member-States of the United Nations can remain neutral in case the Security Council has declared a member-State aggressor or has decided that the breach of peace has taken place. However, there are still certain situations wherein the member-Slates of the United Nations can remain neutral. For example, if the Security Council decides that a State has made a breach of peace or has made an aggression but because of the exercise of veto by permanent member, it is not able to lake any decision the other member-States of the United Nations do not have any legal obligation and may remain neutral. Starke has also expressed the same view. He has pointed out, "Neutrality, is not, however, completely abolished. Even where preventive or enforcement action is being taken by the United Nations Security Council, certain member-States may not be called upon to apply the measures decided upon by the Council or may receive exemption (Articles 48 and 50). In this event their status is one 'qualified neutrality' inasmuch as they are bound not to assist the belligerent States against which the enforcement measures are directed and must also assist the member-States directly taking the measures (Article 49)." Thus the old law of neutrality has not been completely abolished and can be practised by the member-States of the United Nations in certain special circumstances although in principle the member States of the United Nations cannot claim to remain neutral. 16.10    Rights and Duties of Neutral States and Belligerent States Ordinarily following are the duties of the neutral States : (1)    Abstention—It is duty of the neutral State to abstain from rendering direct or indirect help to the belligerent States. For example, the neutral States cannot assist either belligerent through forces or cannot guarantee the loans to be given to them. (2)    Prevention—It is also the duty of the neutral States to prevent certain things within their territory. For example it is their duty to ensure that persons are not recruited for the war forces of belligerent States within their territory. They should also prevent the preparation of war in favour of either of the belligerent States. (3)    Acquiescence—It is also the duty of neutral States to give their acquiescence in respect of certain matters. For example, they should give their acquiescence when a ship using the flag of their States is seized for carrying contraband. If they oppose such seizure it will be deemed to be the violation of the law of neutrality on their part. In addition to the above-mentioned duties, the neutral States have certain other duties although the following duties are in consequence or connected with the above mentioned three duties. Such duties are as follows :— (1)    Restoration—It is the duty of the neutral States not to allow any act connected with the war within their territory and in case any such act takes, it is their duty to restore it. That is to say, if either of the belligerent seizes enemy ship within the territory of the neutral State then it becomes the duty of the neutral State to get such ship restored to the other belligerent State. (2)    Reparation—If a neutral State contravenes the above-mentioned duties, it may be held liable to pay compensation for the same. A leading case on the point is Alabama Claims Arbitration, 1872. In this case Britain had to pay America 1,55,00,000 dollars in gold in the form of compensation for the violation of the laws of neutrality. Rights arid duties of the neutral States have been mentioned in Hague Convention of 1907. 16.10.1    Duties of the Belligerent States Following are the duties of the belligerent States : (1)    Abstension—It is the duty of the belligerents to abstain from committing any act of war within the territory of tlie neutral States. (2)    Prevention—It is their duty to prevent bad treatment towards the ambassadors, citizens, etc. of the neutral States. (3)    Acquiescence-—Like the neutral States, belligerent States are under duly to give their acquiescence in respect of certain matters. For example, if the neutral States gives asylum or refuge to some members of its forces or allows temporary asylum or refuse to the enemy within its port, or allows the enemy State to get its ships repaired in its part then it is the duty of the other belligerent State not to oppose it and to give its acquiescence in this respect. 16.10.2    Rights of the Neutral States According to Lawrence, following are the rights of neutral States :— (1)    The first right of neutral States is that no war like act should be committed in their territory. (2)    Secondly, their cable lines in seas, etc. should not be damaged as far as possible. (3)    The belligerent States should not use their territory for making preparation of war. (4)    They are also entitled to get certain rules formulated for the protection of their territory and to make the belligerent States observe them. (5)    Neutral States also possess right that if their neutrality is violated then they may get compensation for the same. it may, however be noted that there is a lack of definite principles in this respect. But, at least this is definite that they should get adequate compensation for the violation of the law of neutrality and the compensation should be proportionate to the loss or damage suffered by them. 16.11    Let us Sum Up Neutralism is a political and ideal concept, the meaning of which may change in different contexts and circumstances. There is a great difference between 'neutrality' and 'neutralism'. Neutrality is an attitude of impartiality as well as legal status. As compared to it, neutralism is only used to denote the political attitude of a State. As pointed out by Dr. Peter Lyon "neutrality is meant non-involvement in war while by neutralism is meant non-involvement in cold war." Prof. Schwarzenherger has also remarked, "In contrast to neutrality which presupposes state of war between at least other States, neutralism understood as policy of non-alliance or noninvolvement is available as a pattern of policy in times of both peace and war." 16.12 Check Your Progress Exercise 1. What is the concept of Neutrality ? 2. Write a short note on the development of Neutrality ? 3. Mention briefly the neutral rights and Duties of Belligerent States 16.13 Glossary | • Arbitration    → | Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrations who make a binding decisions on the dispute. | |---|---| | • Neutrality     → | The state not supporting either side in an argument, war etc. | | • Compensation → | Money that you pay to somebody because you have injured him /her or lost or damaged his/her property. | 16.14    Answer to Check Your Progress Exercise 1.    See Section,16.2 2.    See Section,16.3 3.    See Section,16.10 16.15    Suggested Readings ☻ Starke’s International Law, Eleventh Edition, 1994. ☻ M.P. Tandon, Public International Law, Allahabad Law Agency, 2002. ☻ Hyde, International Law, Chiefly as Interpreted and applied by the United States’, Vol. III, Second Revised Edition. ☻ R.S. Chavan, An Approach to International Law. ☻ H.O. Agarwal, Does Neutrality Still Survive ? Allahabad Law Review, Vol. I, 1969. ☻ S.K. Kapoor, International Law and Human Rights, 2018. ☻ S.K. Agarwal, Essays on the Law of Treaties, 1972. ☻ R.P. Anand, New States and International Law, 1972. ☻ Oppenhein, International Law. 16.16    Terminal Questions 1.    What is the concept of Neutrality ? Explain the kinds and Characteristics of Neutrality ? 2.    Define Neutrality and write a short note on the development of Neutrality ? What are justified ground of Neutrality ? 3.    Explain the Changing nature of Neutrality ? ***** Chapter-17 BLOCKADE AND CONTRABAND Structure 17.0 Introduction 17.1    Learning Objectives 17.2    Meaning and Definitions of Blockade 17.3    Characteristics of Blockade 17.4    Forms of Blockade 17.5    Essential Elements of Blockade 17.6    Breach of Blockade 17.7    End of Blockade 17.8    Consequences of Violation of Blockade 17.8.1    Case Law 17.8.2    Proof Required 17.9    Long Distance Blockade 17.10    Contraband 17.11    Kinds of Commodities 17.12    Penalty for carrying Contraband 17.13    Compensation for Lawful Seizure 17.14    Relationship between Blockade and Contraband 17.15    Let us Sum Up 17.16    Check Your Progress Exercise 17.17    Glossary 17.18    Answer to Check Your Progress Exercise 17.19    Suggested Readings 17.20    Terminal Questions 17.0 Introduction Blockades and contraband have played pivotal roles throughout history, acting as instruments of economic warfare during times of conflict. These concepts, rooted in maritime law, have evolved over the centuries, shaping the dynamics of warfare and international relations. This chapter explores the historical development, legal frameworks, and contemporary relevance of blockades and contraband, shedding light on their impact on nations and the global order. 17.1    Learning Objectives After going through this chapter, you will be able to : •    Understand the meaning of Blockade and Contraband. •    Explain the Essential Elements of the Blockade. •    Understand the consequences of the violations of Blockade. •    Discuss the consequences or penality for carrying contraband. 17.2    Meaning and Definition Blockade is the blocking by men-of-war of the approach to the enemy coast, or a part of it, for the purpose of preventing ingress and egress of vessels or aircraft of all nations." According to Hall, blockade, in times of war, consists in the interception by a belligerent of access to a territory or to a place which is in the possession of his enemy. It is an act of war carried out by the warships of a belligerent, the act being directed to prevent access to or departure from a defined port of the enemy's coast. 17.3    Essential Elements of Blockade The above definitions bring out the following characteristics of blockade. In the first place, blockade must be by men-of-war though it may be reinforced by other means. In the second place, only enemy coast or part of it or enemy ports are to be objects of a blockade. In the third place, blockade may prevent ingress or egress or both. In the fourth place, blockade to be admissible must be impartially applied to vessels or aircraft of all nations. And, lastly, blockade is a warlike operation. Blockade is not to be confused with siege, which aims at the capture of the besieged place ; blockade intercepts all intercourse by sea. Declaration of Paris (1856)—The fourth article of the Declaration of Paris, 1856, laid down that blockade in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. This formula reduced into writing a principle of the law of nations, but left open the disputed question as to what was "sufficient force". Lord Chief Justice Cockburn observed in the case of Geipal v. Smith that "in the eye of the law a blockade is effective if the enemy's ships are in such numbers and positions as to render running the blockade a matter of danger, although some vessels may succeeded in getting through." The size of the blockading force and the distance at which it operates from the blockaded coast are not regarded material. The Declaration of Paris only emphasized that there must be real and pressing danger in any attempt to pass through before the blockade could be complete. ' In the Crimean war (1854) a single British crusier was deemed to constitute a blockade of a Russian port of Riga by covering a distance of 120 miles. On the other hand, the blockade of Formosa, notified by France in 1884, was regarded as incomplete when Britain protested that the force at the disposal of the French admiral was insufficient. The blockade was in consequence abandoned till the arrival of the reinforcement. Wheaton observes that a blockade being thus an infringement of neutral rights, its operation is not to be extended further than the circumstances of the case. Declaration of London (1909)—The unratified Declaration of London confirmed the rule of the Declaration of Paris (1856) that a blockade to be binding must be effective. It further added that the blockade must be declared and notified. The declaration of blockade, according to the Declaration of London, must be made either by a belligerent government or by a commander of a naval force acting on behalf of his State specifying the date when the blockade begins, the geographical limits of the coastline under blockade and the period within which neutral vessels may come out. The rule was bassed in the interests of neutrals that they must know the exact extent of their liabilities. Article 11 of the Declaration of London provided that a notification of blockade must be made by the government of the State which establishes it to neutral powers, by means of a communication addressed to their governments. The Declaration of London further provided that a blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy and that the blockading forces must not bar access to neutral ports or coasts. 17.4    Forms of Blockade There are various forms of blockade. There is the effective blockade, which is maintained by a force sufficient to render hazardous the ingress to or egrees from a port. When the blockade is maintained by effective force, there is blockade de facto. Blockade by notification takes place when the same has been declared and notified by diplomatic notice that certain ports or coastline are under blockade. When blockade is simply notified but there is no force behind to maintain it, it is termed paper blockade, which, as Lawrence points out, is no blockade but a lawless attempt to injure neutral trade without right. There is then strategic blockade if it forms part of other military operations directed against the blockaded port. A commercial blockade or pacific blockade is carried on with the object of diminishing the resources of the enemy by cutting off his external commerce. It brings about temporary suspension of the commerce of an offending or recalcitrant State by the closing of access to its coasts or of some particular part of the coasts, but without recourse to other hostile measures. It represents an effective method for the settlement of a dispute by coercive measures short of war, applied by a strong State against a weaker State. A pacific blockade, unlike a hostile blockade, does not create formal state of war and is applied to the ships of the blockade State. A military blockade takes, place as incident to some military operation proceeding on land. Lastly, there are simple and public blockades. In the case of the former, the captors are bound to prove the existence of a blockade at the time of the capture ; while in the case of the latter the claimants are held liable to proof of discontinuance in order to protect themselves from the penalities of alleged violation. In the case of a public blockade, a ship hovering near a blockaded port cannot plead that she was going to the blocading squadron to ask authority to continue her voyage. 17.5    Essentials Elements of Blockade The essentials of a real and binding blockade are as under :- (1)    Proper Establishment.—In order that a blockade may be valid it must be established under the authority of a belligerent government, or a naval commander specially authorized to declare a particular blockade. (2)    Effectiveness.—The blockade must be duly effective. It should not be a fictitious or paper blockade, but should be maintained by a force sufficient to prevent access to the coasts of the enemy. This aspect of blockade was emphasized both by the Declaration of Paris (1856) and the Declaration of London (1909). There must be a real and pressing danger to vessels in any attempt to pass through. There is no unanmity as to the essential requirements for an effective blockade. It was observed by the Lords of Appeal in The Nancy (1809) that "it was the duty of the blockaders to maintain such a force as would be of itself sufficient to enforce the blockade. This could only be affected by keeping a number of vessels of the different stations, so communicating with each other as to be able to intercept all vessels attempting to enter the ports of the blockaded island." Lord Chief Justice Cockbum observed in Geipal v. Smith (1872) that "in the eye of the law a blockade is effective if the enemy's ships are in such numbers and position as to render running the blockade a matter of danger, although some vessels may succeed in getting through." A somewhat stringent view was expressed by the First Armed Neutrality of 1780 by declaring that "a blockade is effective only when the approach to the coast is barred by a chain of men-of-war, anchored on the spot, and so near to one another that the line cannot be passed without obvious danger to the passing vessels." Phillimore takes a similar view when he observes : "blockade de facto should be effective by stationing a number of ships and forming as it were an arch of circumvallation round the mouth of the prohibited port, where if the arch fails in any one part, the blockade itself fails altogether." The question whether a blockade is effective or not, is a question of fact ; See Art. 3. (3)    Continuously Maintained—The blockade must be continuously maintained. When the blockading squadron is driven off by superior force of the enemy, it has been held that the blockade is null and defective from the beginning. The blockade will, however, not be impaired if the blockading squadron is temporarily withdrawn due to bad weather. (4)    Declaration and Notification—The Declaration of London laid down that in order to establish a blockade it is essential that it should be notified. The notification must be made either by a belligerent government or by a commander of a naval force acting on behalf of his State and must specify the date when the blockade begins, the geographical limits of the coastline under blockade and the period within which neutral vessels may come out. The notice of blockade must correspond to actual facts, otherwise the blockade would become ineffective. (5)    Impartiality—The blockading force must enforce the blockade impartially against all vessels. Any relaxation of restriction in favour of a belligerent to the exclusion of neutrals renders the blockade inoperative. Blockade is admissible only when there is a universal blockade. In the case of The Franciska the British blockade of Riga during the Crimean War against Russia was declared by the Privy Council to be invalid because relaxation were granted to belligerent merchant vessels to the exclusion of neutrals. (6)    Exemption to Neutral Ports — The blockading force must not bar access to neutral ports or coasts. (7)    Geographical Units of Blockade Area — A blockade cannot extend beyond the area covered by the operation of the force which maintains it. 17.6    Violation/Breach of Blockade "To constitute a violation of blockade", says Sir William Scott, "three things must be proved : Firstly, The existence of an actual blockade ; 2ndly. The knowledge of the party supposed to have offended ; and 3rdly, Some act of violation either by going in or coming out with a cargo laden after the commencement of blockade." Not only must an actual blockade exist but a knowledge of it must be brought home to the party in order to show that it has been violated. The practice of States as to what constitutes a breach of blockade has varied. England and America share the view that it is enough to establish presumptively that those in charge of the neutral vessel knew that a blockade had been established. Great Britain has always held the view that notoriety of blockades was equivalent to conveying information of the existence of blockades. According to the French view the neutral vessel is not affected by presumptions as to continuance or cesser of blockade and the commander of the neutral vessel on approaching the blockaded area is entitled to get a warning of the existence of the blockade by the blockading squadron. It is, however, settled that in case of blockade by notification, notice is presumed if the notification has been duly issued and sufficient time has elapsed since then to enable the neutral Government to receive the same. 17.7    End of Blockade A blockade ceases to exist on the happening of either of the following contingencies : (1)    on the termination of the war ; (2)    when the government which instituted the blockade withdarws it.; (3)    when it ceases to be effective ; (4)    when the blockading squadron is defeated and driven off by a hostile force ; (5)    when it is withdrawn for a chase or an action ; and (6)    when the place or port under blockade is occupied by a victorious belligerent. 17.8    Consequences of Violation of Blackade/Penalty for Breach of Blockade The mere intention to violate a blockade is not a sufficient ground for the condemnation. There must be the intention coupled with some act showing an attempt to enter the port. The general rule is that a ship is condemned for breach of blockade and along with it the cargo shares the same fate. The owners of the cargo are deemed to have known of the existence of the blockade when the shipment was made and then are regarded as privy to violating the blockade. Article 21 of the Declaration of London clarified the rule by stating that a vessel found guilty of breach of blockade is liable to condemnation. The cargo is also condemned, unless it is proved that at the time of the shipment of the goods the shipper neither knew nor could have known of the intention to break the blockade. After the capture the blockade-runner is sent to a port for determination by a Prize Court. It is not necessary to imprison the crew who, in any case, must be released after the Prize Court's decision. There is confiscation of both vessel and cargo if the owners of the vessel and cargo are the same. When they are different, cargo is confiscated only in case of contraband of war or if the owners knew of the blockade at the time of the shipment. 17.8.1    Case Law A few leading cases on the subject may now by noticed. In the case of the Franciska, already referred to, the Franciska was a Danish vessel which was captured by a British cruiser when on her way to Riga, a port blockaded by Britain during the Crimean War against Russia. It was argued on behalf of the owners of the ship that there was no intention to break the blockade and she was ordered to proceed to Riga only if there was no blockade. It was held that the blockaded place must be watched by a force sufficient to render agress or ingress dangerous and that the plea of ignorance of the existence of the blockade in the particular case was invalid because the captain of the ship was aware of the blockade when the ship sailed from the last port. Their Lordships of the Privy Council, however, came to the conclusion that the blockade even though otherwise legal had been rendered invalid by certain relaxations granted to belligerent merchant vessels to the exclusion of neutrals. In the case of the Fredereic Moike a Danish vessel was captured by a British vessel, while she was coming out of the port of Havre, a part blockaded by Britain during the war with France. The Danish ship was a neutral ship and its real destination, was the port of Havre, though ostensibly she was booked for Copenhagen. Lord Stoweil condemned the ship and the cargo, as the ship had been informed of the existence of the blockade. It was held that a vessel coming out of a blockaded port with a cargo was prima facie liable to seizure. 17.8.2    Proof Required In the Betsey, already referred to, Sir William Scott observed that on the question of blockade three things must be proved : first the existence of an actual blockade ; secondly, the knowledge of the party ; and thirdly some act of violation, either by going in, or by coming out with a cargo laden after the commencement of blockade. In the case of the Prize Case in re Hiwatha it was observed by the United States Supreme Court that the vessel being in a blockaded port is presumed to have notice of the blockade as soon as it commences. This is a settled rule in the law of nations. The cargo must share the fate of the vessel. In the case of Zanwra Lord Parker observed that an Order declaring a blockade will prima facie justify the capture and condemnation of vessels attempting to enter the blockaded ports, but will not preclude evidence to show that the blockade is ineffective and therefore unlawful. In the case of the Leonora it was a Dutch vessel chartered by a Swedish company. She was captured by a British cruiser. It was held that the Order-in-Council which authorized the ship to be captured did not amount to the declaration of blockade to neutral ports and that it did not ban carriage of the goods completely by the neutrals, who could carry goods with impunity by calling at the appointed port or ports. 17.9    Long Distance Blockade 'First World War—During the First World War (1914-1918) the British Navy confronted by mines and submarines enforced a long distance blockade of Germany through ships covering a distance of more than one thousand miles from German ports. The civilian population suffered severely and Germany announced the blockade as unlawful. The long distance blockade enforced by England was in the nature of a reprisal for the German decision to attack British and Allied merchantmen in the waters surrounding the British Isles without any regard for the protection of the passengers or crew. In the case of the Stigstad it was held by Lord Sumner that a belligerent has a right to resort to retaliatory measures against the breaches of International Law on the part of another belligerent and that an absolute right in neutral trade to proceed without interference or restriction did not exist in view of the application of the rules of contraband traffic, unneutral service and blockade. Second World War—In the Second World (1939-1945) the long distance blockade was again resorted to by Britain and France on the plea of total economic warfare, but this was not very effective on account of open front on the east. Germany also commenced minelaying and submarine warfare. Great Britain as a measure of reprisal issued on November 27, 1939, an Order-in-Council which authorised seizure of goods laden in German ports or of German origin or ownership. The Order-in-Council of July 31, 1940, directed that goods might become liable to seizure in the absence of a navicert (certificate given by a diplomatic representative in a neutral country testifying that the cargo on board a neutral vessel was not liable to seizure) to cover them and provided that there was a presumption that unnavicerted goods had an enemy destination. The system of navicerts, mailcerts, etc. simplified the blockade and had the effect of virtually controlling neutral trade through certificates and passes issued by a diplomatic or consular representative in a neutral country. These measures could not strictly be brought within the requirements of the generally accepted rules of blockade, but they were necessitated owing to the changed conditions of naval war. Lauterpacht is of the view that "these measures could not be squared with the technical requirement of the law of blockade as generally accepted. But it is equally clear that in so far as modem warfare has assumed a predominantly economic character, some of the rules of the accepted law of blockade have become inapplicable in the changed conditions of naval war and of communications, and that unless altered by agreement they are likely to be honoured more in the breach than in the observance." He regards these measures repeated in successive wars in the form of reprisals and aiming at the economic isolation of the opposing belligerent as a development of the latent principle of the law of blockade, namely, that the belligerent who possesses the effective command of the sea is entitled to deprive his opponent of the use thereof for the purpose either of navigation by his own vessel or of conveying on neutral vessels such goods as are destined to or originate from him. 17.10    Meaning and Definitions of Contraband In modem International Law "contraband of war is the designation of such goods as are forbidden by either belligerent to be carried to the enemy on the ground that they enable him to entry on the war with greater vigour." According to Kelsen : "Contraband of war are goods the transport of which to the enemy is forbidden by either belligerent in conformity with general International Law." Contraband of war denotes such articles as are considered objectionable to be carried by a neutral to a belligerent because they are calculated to be of direct service in carrying on war or otherwise assist one of the belligerents in the conduct of war. Jackson observes that contraband is property which has a hostile destination and is a character capable of assisting the enemy in war. The object of contraband, like that of a blockade, is to cripple the enemy's commerce. But in contraband it is the cargo which is the main object of capture, while in blockade it is the ship. Basis of Contraband—The basis of the law of contraband, according to Pitt Cobbett, is the right of a belligerent to condemn neutral property which is destined for the military use of his enemy. 17.11    Kind of Commodities Grotius divided commodities into three classes : (I) things useful for war only, e.g., arms, projectiles, powder, etc. (2) things useless for warlike purpose, e.g., fashion and fancy goods, clocks and watches, soap, etc., and (3) things useful in war and peace indifferently, i.e., money, provisions, ships, naval stores, etc. According to him, the first was liable to capture while on their way to an enemy destination ; the second was always immune from capture and the third depended upon circumstances in each case. Vattel makes somewhat of a similar distinction, but he includes timber and naval stores among those articles which are useful for the purpose of war and as such prohibits neutrals from carrying them to the enemy. There is a divergence of opinion as to what articles are to be termed as contraband. The British view favoured a long list of contraband goods and divided articles into absolute contraband and conditional, occasional or relative contraband. Absolute contraband included articles such as arms, machinery for manufacturing them, ammunition, powder, clothing of a military character, etc., while conditional, occasional or relative contraband consisted of articles such as provisions, coal, gold, etc., which were contraband or not according to circumstances. The French view, which was followed by other continental powers, deemed comparatively few articles to be contraband and held that there could not be conditional contraband articles. The same thing was either contraband or not and could not be both, i.e., contraband in one set of circumstances and innocent in another. The unratified Declaration of London (1909) made an attempt to settle the longdrawn out controversy between the hvo conflicting views. It divided articles into three categories, viz. (i) absolute contraband, (ii) conditional contraband, and (iii) non-contraband. (i)    Absolute contraband—Goods absolutely contraband are those articles which are particularly meant for being used for the purposes of war, e.g., arms of all kinds, machinery for manufacturing them, projectiles, powder, gun-mountings, cloth and equipment of a distinctively military character, harness and saddle of a distinctively military character, armour plates, warships, etc. Such goods carry the guilt on their face. They are articles which are of such military advantage to the enemy as would warrant of belligerent to capture them. Grotius, therefore, rightly took the view that a neutral furnishing such absolute contraband articles to a belligerent became "of the party to the enemy." Such goods can be condemned and confiscated whether the carriage of the goods is direct or entails transshipment or subsequent transport by land. (ii)    Conditional Contraband—Goods conditionally contraband are those articles which may be used for purpose of war as well as of peace. They are articles such as foodstuffs, forage and grains, clothing, fabrics, gold and silver in coin or bullion, vehicles, boats, railway material, fuel, harness and saddlery, etc. Such articles were liable to capture if destined for the armed forces of a belligerent or found on board a vessel bound for a territory belonging to or occupied by the enemy, and when they were not be discharged in an intervening neutral port. (iii)    Non-contraband—Non-contraband or free articles included raw cotton, wool, silk, jute, oil seeds, rubber, raw hides, manures, Chinaware, clocks and watches, fashion and fancy goods, office furniture, etc. Such articles could not be declared contraband in any circumstances. Doctrine of Infection—The Declaration of London (1909) embodied the long established practice of assimilating innocent goods with contraband, if they belonged to the same owner and were found on the same neutral vessel. Both the innocent goods and the contraband were thus equally liable to seizure and condemnation. This principle is based on the theory known as the doctrine of infection. The Peterhoff Case—The subject of contraband engaged the attention of the Supreme Court of America in the case of the Peterhoff where there was a shipment of contraband goods, from England to Matamoras, a neutral port situated on the Mexican side of the Rio Grande. during the civil war. It was alleged that the ship intended to violate the blockade of the coasts of the Southern Confederacy, though apparently destined for a neutral port. The Court observed ; "The classification of goods as contraband or not contraband has much perplexed text-writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable ; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes : (1) Articles manufactured and primarily or ordinarily used for military purposes in time of war ; (2) Articles which may be and are used for purposes of war or peace according to the circumstances ; and (3) Articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband ; merchandise of the second class is contraband only when actually destined to the military or naval use of belligerent ; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege. Article 30 of the unratified Declaration of London lays down that absolute contraband is liable to capture if destined to territory belonging to, or occupied by, the enemy, or the armed forces of the enemy. Any kind of enemy destination is all that is required for the capture of absolute contraband articles. There is a presumption of enemy destination when the ship's papers reveal that the goods are to be discharged in an enemy's port, or delivered to his armies or warships. Article 33 provided that conditional contraband is only liable to capture if destined either for the armed forces or a government department of the enemy State. It is essential for capture in case of conditional contraband that the articles must be destined for the armed forces of the enemy State, or one or its government departments. There is a presumption of enemy destination if the conditional contraband is consigned to enemy authorities, or to a contractor in the enemy country who supplies the enemy Government with articles of the kind in question. Lawrence aptly points out that "the use to which the goods are to be put fixes their guilt or innocence ; the destination is proof of the use, and the papers are proof of the destination." 17.12    Consciousness/Penalty for Carrying Contraband Articles 39 and 40 of the Declaration of London provide that not only contraband goods but also the vessel which carries them may be confiscated if the contraband reckoned by value, weight, volume or freight forms more than half the cargo. In case the goods are condemned and the vessel released she may be made liable to pay the costs and expenses incurred by the captor in respect of the proceedings in the national Prize Court and the custody of the ship and cargo during the proceedings. It also renders the owners of contraband goods liable to the loss of his innocent goods found on board the same vessel, but releases innocent cargo which is the property of other owners. If less than half of a vessel's cargo is contraband, she is not liable to condemnation and her master may hand over the contraband to the belligerent warship. In practice the British and Continental countries send the captured contraband cargoes or the vessels carrying them for adjudication to a Prize Court, established by the belligerent State. If the Prize Court confirms the seizure, the cargo or the vessel is deemed to be a good prize and is confiscated to the captor's State. It was observed by Sir William Scott in The Neutralitet that the modern rule of the law of nations is, certainly, that the ship shall not be subject to comdemnation for carrying contraband articles. But this rule is liable to certain exceptions. Where a ship belongs to the owners of the cargo, or where the ship is going on such service, under the false destination or false papers ; these circumstances of aggravation have been held to constitute excepted cases out of the modem rule. 17.13    Compensation for Lawful Seizure In three cases compensation is to be given when goods are lawfully seized. They are :—                     . 1.    When a vessel is encountered at sea, her master being unaware of the ' outbreak of war or the articles declared contraband ; 2.    When the master having become aware of the outbreak of war had no opportunity of discharging the contraband ; and 3.    When medical stores are seized under stress of urgent necessity. The Declaration of London, 1909, did not come into force for want of ratification. During the First World War Great Britain added innumerable articles to the absolute contraband list of the Declaration of London. The impact of "total war" in the Second World War almost discarded the Declaration of London with regard to contraband articles. The old rules with regard to contraband were disregarded with impunity. A new contraband list was proclaimed by Great Britain in September 1939, which almost covered every conceivable kind of article. 17.14    Relationship between Contraband and Blockade The two essential elements of the conception of contraband are the character of the goods and an enemy destination. Only such goods as are on the contraband lists and intended to be imported into the enemy territory are liable to seizure and condemnation. Blockade involves "the interception by sea of the approaches to the coasts or ports of an enemy with the purpose of cutting of all his oversea communication. Its object is not only to stop the importation of supplies but to prevent export as well." The essential difference between contraband and blockade is that unlike the case of contraband, in the case of blockade of any portion of the enemy's coast or any of his ports, ail merchant ships of whatever description and of whatever nationality, are subject to confiscation, no matter whether they have contraband, conditional contraband or non-contraband articles. The fact that the ship is attempting to enter or leave a blockaded port or coast is enough for its condemnation. The result is that the main difference between the law of blockade and the law of contraband, has been that the former is limited in area and the latter in scope. The old distinction between the law of blockade and the law of contraband seems to have disappeared with the two great wars. Owing to present day character of the total war where everything is made subordinate to the overmastering dictates of war, "the law of contraband has been adapted to perform the function of blockade, and without the narrow geographical limitations to which the old blockades were restricted. What has been done on both sides during the two great wars amounts to nothing less than an assertion of the right to destroy the whole of the sea-borne trade which serves the needs of the enemy, under whatever flag it may be carried and through whatever countries it may pass. The method used by the opposing belligerents differed widely and the policy adopted by the Allies was technically justified as a reprisal for the illegalities committed by the enemy, but the purpose on each side was the same....." 17.15 Let us Sum Up It will appear from the above that the old system under which the blockading naval forces remained constantly close to or just outside a blockaded port proves no longer feasible in the modem conditions, especially due to the extended range, of shore batteries and torpedo-boats and the action of submarines and mines, which necessitates the blockading forces to remain out of sight of the blockaded coasts. The blockading naval squadron is also exposed to serious attacks by enemy action from the air. In the circumstances, as observed by Higgins and Colombos, the institution of an actual blockade by a 'cordon' of stationary ships is impracticable. A blockade restricted to vessels sailing directly to enemy coasts and ports could now be effective only as against insular powers, such as Great Britain and Japan. The establishment of 'close' blockades having become impossible, the legality of long range blockades cannot, therefore, be challenged if the right of the belligerent to cut off the sea-borne commerce of his enemy is recognised. In the Second World War economic measures of far-reaching consequences were adopted by Great Britain and U.S.A. with a view to crippling the enemy's financial and economic resources'. 17.16 Check Your Progress Exercise 1.    Define Blockade 2.    Explain the Contraband ? 3.    Explain the essential elements of Blockade ? 4.    Discuss the Consequences or Penality for carrying Contraband 17.17 Glossary • | Blockade | →     A situation in which a place is surrounded by soldiers or ships in order to prevent goods or people from reaching it. | |---|---| Aircraft → Any vehicle that can fly in the air, for example : A Plane. • Contraband → Goods that are taken into or out of a country illegally. 17.18    Answer to Check Your Progress Exercise 1.    See Section,17.2 2.    See Section,17.10 3.    See Section,17.5 4.    See Section,17.12 17.19    Suggested Readings ☻ For details see the list given at the end of lesson 1. 17.20    Terminal Questions 1.    Define Blockade ? Describe the valid grounds of Blockade ? Enumerate the conditions when Blockade is lifted. 2.    What is Blockade ? How can Blockade be terminated ? 3.    Give meaning and Definitions of Contraband ? Explain its kinds and describe its relation and difference with Blockade ? 4.    What is Contraband of war ? *****