Public International Law

Nature, Scope, Basis of Public International Law.

International Law assumes a society of nations and it governs the relationship of the members of this society. A system composed solely of legal rules and principles binding upon civilized nations only in their mutual relations.
Professor Oppenheim has defined international law in the following words :
“Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other.”
In the ninth edition of Oppenheim's book the term 'international law' has been defined as:
“International law is the body of rules which are legally binding on States in their intercourse with each other. These rules are primarily those which govern the relation of Organisations and, to some extant, also individuals may be subjects of rights conferred and duties imposed by International law.”
But like all living laws, international law is also not static. It is constantly developing and restructured in the very process of its application to the new situations.
In the words of 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.”
In the words of J G Starke : “ International law may be defined as that body of law which 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 which 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 and non-state entities are the concern of the international community.
This definition goes beyond the traditional definition of international law as a system composed solely of rules governing the relations between states only. In view of developments during the last four decades, it cannot stand as a comprehensive description of all the rules now acknowledged to form part of the subject.
These developments are principally : (i) the establishment of a large number of permanent international institutions or organisations such as, for example the UN and the WHO, regarded as possessing international legal personality, and entering into relations with each other and with states; and (ii) the present movement to protect human rights and fundamental freedoms of individuals. Both categories of developments have given rise to new rules of international law, and may be expected to influence the growth of the new rules in the future.
Law is a process, and this is equally true for International Law. It is now well established that the principle components of International Law is no more confined to binding customary and conventional rules but also consists of “general principle of Law” which are constantly enriching the International Jurisprudence.
The main object of international law has been to product an ordered rather than a just system of international relations. Moreover, apart from seeing that states receive just treatment, the modern law of nations aims at securing justice for human beings. Justice is a primary purpose of the law of nations emphasises its kinship to state law.
Origins and development of international law
The modern system of international law grew to some extent out of the usages and practices of modern European states in their intercourse and communications, while it still bears witness to the influence of writers and jurists of the 16th, 17th, and 18th centuries, who first formulated some of its most fundamental tenets.
With the growth of a number of independent states there was initiated, the process of formation of customary rules of international law from the usages and practices followed by such states in their mutual relations. Jurists had begun to take into account the evolutions of a community of independent sovereign states and to think and write about different problems of the law of nations, realising the necessity for some body of rules to regulate certain aspects of the relations between such states. The writings of early jurists reveal significantly that one major preoccupation of 16th century international law was the law of warfare between states.
Dutch scholar, jurist, and diplomat, Grotius systematically treatise on the subject De Jure Beli ac Pacis (The Law of War and Peace). On account of this treatise, Grotius has sometimes been described as the 'father of the law of nations'. It cannot, be maintained that Grotius dealt fully with the law and practice of his day as to treatise, or that his coverage of the rules and usages of warfare was entirely comprehensive. Groutius dealt repeatedly with actual customs followed by the states of his day. At the same time Grotius was theorist who espoused certain doctrines. One central doctrine in his treatise was the acceptance of the 'law of nature' as an independent source of rules of the law of nations, apart from custom and treaties.
In the 18th century, there was a growing tendency among jurists to seek the rules of international law mainly in custom and treaties, and to relegate to a minor position the 'law of nature', or reason, as a source of principles. In the 19th century the works of jurists contributed significantly to the scientific treatment of the subject. In the 20th century the permanent Court of Arbitration was established. The set up of International Court of Justice. Then there has been the creation of permanent international organisations in the interests of peace and human welfare, such as the UN, ILO, etc.
International Law, as we know it today, is that indispensable body of rules regulating for the most part the relations between states, without which it would be virtually impossible for them to have steady and frequent intercourse. This was a natural result of the growing interdependence of states, and of the vastly increased intercourse between them. Modern exigencies called for a speedier method of law making. As a result, there came into being the great number of multilateral treaties, 'law making treaties' or 'international legislation'. Apart from these 'law making treaties' there was a remarkable development in the use of arbitration to settle international disputes, and at the same time the Permanent Court of International justice came by its decisions to make an important contribution to the growth of international law. The work of codifying and progressively developing international law at present being sponsored by the UN with the expert aid of a body known as the International Law Commission.
Theories as to Basis of International Law.
“Whether international Law is a law in the true sense of the term or not?”
One theory which has enjoyed wide acceptance is that international law is not true law, but a code of rules of conduct of moral force only. The English writer on jurisprudence, John Austin, must be regarded as foremost among the protagonists of this theory. Austin's attitude towards international law was coloured by his theory of law in general Applying his general theory to international law, as there was no visible sovereign authority with legislative power or indeed with any determinate power over the society of states, and as in his time the rules of international law were almost exclusively customary, Austin concluded that international law was not true law but 'positive international morality' only, analogous to the rules binding a club or society. He further described it as consisting of 'opinions or sentiments current among nations generally.
Starke, who has also criticised the Austinian concept of law, subscribes to the view that International Law is really law. In this connection, he has put forward four main arguments. In the First place, it has been established by modern historical jurisprudence that in many communities, a system of law existed and was being observed though such communities lacked a formal legislative authority. Secondly Austin's views might have been correct for his time but in view of present day international law, they are not true. Customary rules as a source of international law are diminishing and they are being replaced by law-making treaties and conventions. Thirdly “the authoritative agencies responsible for the maintenance of International intercourse do not consider International law as merely a moral code.” Lastly, the United Nations is based on the true legality of international law.
Certain countries indeed in practice expressly treat international law as possessing the same force as the ordinary law binding their citizens. The legally binding force of international law has been asserted again and again by the nations of the world in international conference. In connection with the Austinian theory, it is useful to bear in mind the difference between rules of international law proper, and the rules of 'international comity'. The former are legally binding, while latter right of each state to receive courtesy from others. The essence of these usages of 'comity' is thus precisely what Austin Attributed to international law proper, namely a purely moral quality.
Oppenheim regards international law as law because of the following two reasons : In the first place, international law is constantly recognised as law in practice. Secondly, while breaking international law, States never deny its legal existence. On the contrary they recognise its existence and try to interpret international law as justifying their conduct.
Cumulative evidence against the position taken by Austin and his followers should not blind us to the fact that necessarily international law is weak law. Existing International legislative machinery, operating mainly through law-making conventions, is not comparable in efficiency to state legislative machinery.
Theories as to 'Law of Nature'
The concept of the 'law of nature' exercised a signal influence on international law. Several theories of the character and binding force of international law were founded upon it. In the beginning, Law of Nature was connected with religion. It was regarded as the divine law. Grotius expounded the secularised concept of Law of Nature. According to him, natural law was the 'dictate of right reason'. His followers applied the law of nature as an ideal law which was founded on the nature of man as a reasonable being.
Some writers adopting the view that international law derived its binding force from the fact that it was a mere application to particular circumstances of the 'law of nature'. In other words, states submitted to international law because their relations were regulated by the higher law- the 'law of nature' of which international law was but a part. 'Natural Law' was invoked also in order to justify the punishment of offenders, guilty of the grosser and more brutal kind of war crimes
It contains those precepts which the natural law dictates to States, and it is no less binding upon them than it is upon individuals. For States are composed of men, their policies are determined by men, and these men are subject to the natural law under whatever capacity they act. This same law is called by Grotius and his followers the internal Law of Nations, inasmuch as it is binding upon the conscience of nations. Several writers call it the natural Law of Nations.
Because of its rational and idealistic character, the conception of the 'law of nature' has had a tremendous influence – a beneficent influence- on the development of international law.
Positivism
Positivism is based on law positivism i.e. Law which is in fact as contrasted with law which ought to be. According to the positivists, law enacted by appropriate legislative authority is binding. The positivists base their views on the actual practice of the States. IN their view, treaties and customs are the main sources of International Law. The 'positivists' hold that the rules of international law are in final analysis of the same character as 'positive' municipal law (ie State law) inasmuch as they also issue from the will of the state. They believe that international law can in logic be reduced to a system of rules depending for their validity only on the fact that states have consented to them.
Positivism begins from certain premises, that the state is metaphysical reality with a value and significance of its own, and that endowed with such reality the state may also be regarded as having a will. Pursuant to their initial assumptions, the positivists regard international law as consisting of those rules which the various state-wills have accepted by a process of voluntary self-restriction. International law as a branch of state law, as external public law and only for that reason binding on the state.
The outstanding positivist has been the Italian jurist Anzilotti. In his views the binding force of international law can be traced back to one supreme, fundamental principle or norm, the principle that agreements between states are to be respected, or as the principle is better known, Pacta sunt servanda. This norm pacta sunt servanda is an absolute postulate of the international legal system, and manifests itself in one way or another in all the rules belonging to international law. Consistently with this theory, Anzilotti holds that just as in the case of treaties, customary rules are based on the consent of states, and there is here an implied agreement.
The main defect in this analysis is that the norm pacta sunt servanda is only partially an explanation of the binding force of international law. Anzilotti's view that customary rules are binding on states by virtue of an implied pactum is no more convincing than the 'tacit' consent arguments of other positivists.
The principal objections to positivism as a whole may be formulated as follows :
The notion of the state-will is purely metaphorical, and is used to express the
fact that international law is binding on the state. It does not explain the fact.
It is difficult to reconcile the facts with a consensual theory of international law. In the case of customary rules, there are many instances where it is quite impossible to find any consent by states to the binding effect of these rules.
It is never necessary in practice when invoking a particular rule of international law against a particular state to show that state has assented to it diplomatically. The test applied is whether the rule is one generally recognised by the society of states.
There are concrete examples today of treaty rules, particularly those laid down by 'law making' treaties, having an incidence upon states without any form of consent expressed by or attributable to them.
These objections to positivism are by no means exhaustive, but they sufficiently illustrate the main defect of the theory – the fallacy of the premise that some consensual manifestation is necessary before international law can operate. In spite of its many weaknesses, positivist theory has had one valuable influence on the science of international law. It has concentrated attention on the actual practice of states. This has led to a more realistic outlook in works on international law, and to the elimination of much that was academic, sterile, and doctrinal.
Sanctions of observance of international law
At one extreme there is the view that international law is a system without sanctions. However, it is not quite true that there are no forcible means of compelling a state to comply with international law. If any state, party to a case before the I C J, fails to perform the obligations incumbent upon it under judgment rendered by the Court, the Security Council may upon application by the other state. Party to the same case, make recommendations or decide upon measures to be taken to give effect to the judgment. These may include, not only the actual use of force, but also economic sanctions.
If the word 'sanctions' be taken in the larger sense of measures, procedures, and expedients for exerting pressure upon a state to comply with its international legal obligations, then the above-mentioned provisions of the UN Charter are not exhaustive of the sanctions which may become operative in different areas of international law.
Weaknesses of International Law.
International Law is said to be “a weak law.” The weaknesses of international law become evident when we compare it with Municipal law. Following are some of the weaknesses of International law.
(1) The greatest shortcoming of international law is that it lacks an effective executive authority to enforce its rules.
(2) It lacks an effective legislative machinery.
(3) The International Court of Justice lacks compulsory jurisdiction in the true sense of the term.
(4) Due to lack of effective sanctions, rules of international law are frequently violated.
(5) The enforcement machinery of international law is very weak.
(6) A great limitation of International law is that it cannot intervene in the matters which are within the domestic jurisdiction of States.
(7) As compared to rules of State Law, the rules of International Law suffer from greater uncertainty.
(8) International Law has, in many cases, failed to maintain order and peace in the world.
Despite the above mentioned weaknesses, it has to be noted, that International law is constantly developing and its scope is expanding. It is a dynamic concept for it always endeavours to adopt itself to the needs of the day. Its survival and efficiency are due to its changing and adaptable character.










CUSTOMARY LAW

Custom is a habitual course of conduct. Until recent time, international law consisted for the most part of customary rules. It is the oldest and the original source, of International as well as of law in general. These rules had generally evolved after a long historical process culminating in their recognition by the international community. The preponderance of traditional customary rules was diminished as a result of the large number of 'law-making' treaties concluded since the middle of the last century, and must progressively decline in measure as the work of the International Law Commission in codifying and restarting customary rules produces results in treaties. Yet according to views recently expressed by some writers, international custom may still have a significant role to play as a dynamic source of fresh rules of international law where the international community undergoes change in new areas untouched by treaties, judicial decisions or the writings of jurists. Article 38 (b) of the Statute of International Court of Justice recognises 'International Custom, as evidence of general practice accepted as law', as one of the sources of International Law.
The terms 'custom' and 'usage' are often used interchangeably but they are distinguished.. A Custom, in the intendment of law, is such usage as that obtained the force of law. Usage represents the twilight stage of custom. Custom begins where usage ends. Usage is an international habit of action that has not yet received full legal attestation. It is not necessary that the usage should always precede a custom. It is also not necessary that a usage must always become a custom. The following are the certain conclusions:-
(i) In certain cases usage gives rise to international customary law, in other cases it does not. But there is no rule of international law, or indeed any rule at all, which determines when usage shall give rise to custom.
(ii) Together with usage there are a number of other purely factual phenomenon which in various combinations contribute to the creation of international custom, and custom can arise even without any usage.
(iii) When a usage is combined with opinio juris sine necessitatis, a rule of customary law exists, and it is probably justifiable to say that a usage reflects a customary rule if it is connected with a practically universal opinio juris.
A customary element has been a feature of the rules of international law from antiquity to modern times. In ancient Greece, the rules of war and peace sprang from the common usages observed by the Greek City States. These customary rules crystallised by a process of generalisation and unification of the various usages separately observed by each city republic.
Customary rules crystallised from usages or practices which have evolved in approximately three sets of circumstances:
(a) Diplomatic relations between states. :- Thus acts or declarations by statesmen, opinions of legal advisers to state governments, bilateral treaties, and now press releases or official statements by government spokesmen may all constitute evidence of usages followed by states.
(b) Practice of International organs. :- The practice of international organs, again whether by conduct or declarations, may lead to the status, or their powers and responsibilities.
(c) State laws, decisions of state courts, and state miltary or administrative practices. :- A concurrence of state laws or of judicial decisions of state courts or of state practices may indicate so wide an a adoption of similar rules as to suggest the general recognition of a broad principle of law.
A general, although not inflexible, working guide is that before a usage may be considered as amounting to a customary rule of international law, two tests must be satisfied. These tests relate to:
(i) the material, i.e. in a similar circumstances States acts similarly, in other words, usage has been constantly and uniformally practiced by States, and
(ii) the psychological aspects involved in the formation of the customary rule.
As regards the material aspect, there must be general be a recurrence or repetition of the acts which give birth to the customary rule. A state practice can be categorized into three groups as-
1. Mutual relations Among States: Practice of states with other nations in the form of diplomatic correspondence, press releases, bilateral treaties, memorandum of understanding, acts and declarations by statesman etc. Constitute evidence of practices of States followed in the sphere of international relations.
In the Asylum case, a person who had been declared a fugitive after an unsuccessful rebellion led by him in Peru, was granted asylum by the Columbian Embassy in Peru. Columbia sought from Peru a safe custody to allow him to leave the country, but Peru refused to grant this. Under the 1928 Havana Convention on Political Asylum, to which both the countries were parties, a political fugitive if granted diplomatic asylum, was entitled to safe custody. However, Peru refused to accept the Columbian contention that it is for the State granting the asylum to determine the nature of the crime, which would be binding on the territorial state, and this rule is accepted as a customary rule among the Latin American countries. Peru considered him merely a common criminal under its laws. The ICJ to whom the dispute was referred for adjudication, refused to accept the Columbina contention that such a custom exists among the Latin American States, since it failed to establish any clear evidence in support of its contention.
The International Court of Justice has held, however, in the Right of Passage over Indian Territory Case (Portugal-India), that a particular practice between two states only, which is accepted by them as law, may give rise to a binding customary rule inter parties. The facts of this case are as follows:--
This case deals with the question relating to the right of Protugal to send its national and military through the Indian territory. Until 1954 Portugal possessed the right of passage through Indian territory which was in between Dadra and Nagar Haveli and Daman. The right was however subject to control and regulation by India. The relation between India and Portugal worsened, the people of Dadra revolted against the Portuguese Government. Consequently the Government of India suspended the right of passage of Protugal over this area. India contended that it had become necessary due to the special circumstances that had arisen. Portugal took this matter to the ICJ. The It may be noted that the claim of Portugal was based on the treaty of 1779. The ICJ decided that Portugal was not entitled to send its armed forces through the way which fell within the Indian territory. The Court ruled that India did not act contrary to its obligations. The Court, however, ruled that the Treaty of 1779 was a valid treaty and Portugal was entitled to get passage through Indian territory in consequence of the provisions of the said treaty. The decision is important in so far as that the ICJ ruled that if under a treaty a Sate gets right of passage through the territory of another State and if it continues for a long time, then it gains the force of law and thereby imposes the obligation upon the State affected to continue to give right to such passage.
A single act of a state agency or authority could not create any rights of custom in favour of another state which had benefited by the act; conduct to be creative of customary law must be regular and reputed. Material departures from a practice may negative the existence of a customary rule, but minor deviations may not necessarily have this negative consequence. Apart from recurrence, the antiquity of the acts may be also a pertinent consideration. Yet even a short time may be enough where the state practice has been extensive and for all practical purposes uniform.
2. Practice of International Organisations: International organizations also contribute to the development of customary International Law by providing a clear and concentrated form of state practice. The statements made and the votes cast at these forums by state representatives on legal matters provide strong evidence of existing or emerging rules of customary International Law. The proceedings of the International Organisations have their solitary effect in the creation of the new rules of customary International Law.
3. Unilateral acts of States: The legislative acts, decisions of states courts, opinion of law officers, military and administrative practices of various states are of great evidentory value in the development of International Custom. A comparison of these indicates the existence of a practice uniformally followed by all states, which may be some evidence that a custom does or does not exist.
Opinio juris sive necessitates:- The psychological aspect is better known as the opinio juris sive necessitatis, i.e., the practice is recognized as obligatory and there is the conviction that its repetition is the result of a compulsory rule. Recurrence of the usage or practice tends to develop an expectation that, in similar future situations, the same conduct or the abstention therefrom will be repeated. This opinio juris, is a convenient test that a usage or practice has crystallised into custom; the opinio juris is not an essential element of custom, but if it is present, it is helpful as distinguishing custom from a course of action followed as a matter of arbitrary choice or for other reasons.
In the S S Lotus case, a stricter requirement was laid down by the court for a customary rule to evolve. IN that case, the French Ship S S Lotus had collided on the high sea with Turkish Vessel, killing thereby eight Turkish nationals. When the Lotus arrived in Turkish waters, criminal proceedings were initiated in Turkish Court against the captain of Lotus alongwith the captain of Turkish Vessel for manslaughter, and sentenced. The French Government protested against Turkish action, and by an agreement between the parties the dispute was submitted to Permanent Court of International Justice. The French Government argued that under the Customary International Law, criminal jurisdiction pertains to the flag state of the vessel in which the crime is committed. Evidence for this alleged rule existed in the state practice where the court had generally abstained from exercising criminal jurisdiction in deference to the flag state, thereby giving rise to the assumption that there had been a tacit acceptance by States of the rule that in criminal matters, the flag state was entitled to exclusive jurisdiction. The court rejected the French contention and observed that the circumstances alleged by the French Government merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being alleged to do so. The alleged fact does not allow one to infer that states have conscious of having such a duty.
This line of reasoning of the Lotus case was adopted by the ICJ in North Sea Continental Shelf case, where Denmark and the Netherlands in their case against the Germany for delimitation of continental shelf between them, attempted to show that the 1958 Geneva Convention on continental shelf in general, and Article 6 of the convention, dealing with the “equi-distance-special-circumstances” rule of delimitation of continental shelf among the adjoining states, in particular, had become a part of customary International Law. The court found the absence of the psychological element required for creation of such a new rule, and observed that in certain cases where the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance, “there is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so-especially considering that they might have been motivated by other obvious factors.
Generation by Treaty of Customary Rules of International Law.-- A provision of a treaty may also generate a rule of customary International Law. In North Sea Continental Self case the International Court of Justice observed that provisions in treaties can generate customary law and may be in the words of the Court; of a “norm-creating character”. But a treaty provision can generate customary international law only when the provision concerned is “of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law.”
In West Rand Central Gold Mining Co. v. R. There the Court laid down that it must be proved by satisfactory evidence that the alleged rule 'is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilised State would repudiate it'. This amounts to a test of 'general recognition' by the international society of states.
Test of 'general recognition' underlies the provision in the Statute of the International Court of Justice, under which the Court is directed to apply international custom 'as evidence of a general practice accepted as law', and is to be found also in Art. 53 of the Vienna Convention.
Ingredients or elements of Custom
Following are the main ingredients of an international custom :-
1. Long Duration.-- Article 38 of the Statute of the International Court of Justice directs the World Court to apply 'international custom, as evidence of a general pracatice accepted as law'. Emphasis is not given on a practice being repeated for a long duration. In the field of international law, customs have emerged in a short duration.
2. Uniformity and consistency.-- In the Asylum case, the International Court of Justice observed that the rule invoked should be 'in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the Sate granting asylum and duty incumbent on the territorial State.' This follows from Article 38 of the Statute of the Court which refers to international custom 'as evidence of a general practice accepted as law'.
3. Generality of Practice.-- Although universality of practice is not necessary, the practice should have been generally observed or repeated by numerous State.
4. Opinio juris et necessitatis.-- According to Article 38 of the Statute of the International Court of Justice, international custom should be the evidence of general practice “accepted as law”.
There has been a marked decline in the importance of custom in present times. It is because of certain drawbacks in the evolution of the rules of customary International law.
1. The growth of a new custom is always a slow process and the character of International society presently makes it particularly slow, where states from different political, economical and legal system participate in law creating process. It is unable to keep pace with the changes in international relations.
2. The question of whether usage has or has not crystallized into a custom and has become obligatiory has many difficulties, particularly when there is no agreement about its existence. It is for the court to ex tract the rule from the mass of documents, State practices and judicial decisions etc. and accord it legal authenticity.
3. It is an unsuitable vehicle for international ‘welfare’ or ‘cooperative’ law as also to meet the new scientific challenges.
For these reasons the law creating process sis not more often done through treaties.











INDIVIDUAL & INTERNATIONAL LAW

As to the subject of international law, jurist of the world are divided into two groups. One group contends that only states are the subject of international law while another group argued in favour of Individuals as a subject. However, some moderates, tried to bring about a compromise between them as to the proper focal point of international law.
International law is primarily concerned with the rights, duties, and interests of states. Normally the rules of conduct that it prescribes are rules which states are to observe, and in the same way treaties may impose obligations which the signatory states alone agree to perform. But this does not necessarily imply that no other entities or persons, whether natural or legal, can come within the dominion or bounty of international law.
The leading jurist Kelson and his followers maintain that in the ultimate analysis, individuals alone are the subject of international law. Prof. Westalke in his papers on subject of international law describes that “The duties and rights of states are only the duties and rights of the men who compose them.”
Various theories regarding subjects of International Law :- Following are the three theories prevalent in regard to the subjects of international law:
1. Only States are subjects of International Law.-- Some jurists have expressed the view that only states are the subjects of international law. In their view, international law regulates the conduct of States and only States alone are the subject of international law.
This view has been subjected to severe criticism by jurists. According to the view expressed by Oppenheim, States are primarily, but not exclusively, the subject of international law. To the extent that bodies other than states directly possess some rights, power and duties in international law they can be regarded as subjects of international law, possessing international personality. Further, “International law is no longer if ever was concerned solely with states. Many of its rules are directly concerned with regulating the position and activities of individuals, and many more indirectly affect them.” Thus, it is wrong to say that individual are not the subjects of international law.
It is now generally recognised that besides States, public international organisations, individuals and certain other non-State entities are also the subjects of international law.
2. Only Individuals are the subjects of International Law.-- There are certain jurists who have expressed the view that in the ultimate analysis of international law it will be evident that only individuals are the subjects of international law. The duties and rights of the States are only the duties and rights of men who compose them. Theory that individual are only incumbents of rights and duties at the international law insofar as they are objects and not subjects, there is theory which goes to the limit in the opposite direction. By Kelson, Individual alone are the subjects of international law. The duties and rights of States are only the duties and rights of the men who compose them.
Kelson analyses the notion of a state, and affirms that it is purely a technical legal concept. The concept of the state is used to express in technical language legal situations in which individuals alone are bound to do certain acts or receive certain benefits in the name of the collectivity of human beings to which they belong. The duties resting on a state at international law are thus ultimately duties binding on individuals. In this respect, according to Kelsen, there is no real distinction between state law and international law. Both systems bind individuals, although international law as a matter of technique does so only mediately and through the concept of the state.
There are cases where international law binds individuals immediately and not merely mediately in Kelsen's sense. The rule of international law by which states are authorised to attack, seize and punish pirates jure genetium, is a rule 'imposing a legal duty directly upon individuals and establishing individual responsibility'.
Many modern treaties do bestow rights or impose duties upon individuals. It was authoritatively decided by the Permanent Court of International Justice that if by a particular treaty the parties intended to confer rights on individuals, then these rights should receive recognition and effect at international law, that is to say from an international court.
Kelson's view appear to be logically sound. But so far as the practice of the States is concerned it is seen that the primary concern of the international law is with the rights and duties of the States. From time to time certain treaties have been entered into which have conferred certain rights upon individuals. Although the statute of the ICJ adheres to the traditional view that only states can be parties to international proceedings, a number of other international instruments have recognised the procedural capacity of the individual. It would be contend that States are not the subjects of international law. The correct position therefore is that besides States, individuals, public international organisations and some non-state entities are also the subjects of the International law.
These developments lay in the direction of imposing duties on individuals under international law. But parallel thereto, there has been also a movement for conferring rights on individuals, even as against states of which such individuals are national or citizens.
In regard to individuals in general, it should be noted that there is a widely recognised rule of international practice that before an international tribunal, the rights of, or the obligations binding individuals at international law, are respectively enforceable at the instance of or against those states only whose nationality such individuals posses. In other words an individual cannot generally assert his own rights against a state before an international tribunal or be answerable to a state in the same jurisdiction for failing in his obligations, but only through the state of which he is a national.
3. States, Individual and Certain non-State Entities are Subjects.-- Following arguments may be put forward in support of this view:
(i) In the present time, several treaties have conferred upon individuals certain rights and duties.
(ii) In Danzing Railway Official Case, The Permanent Court of Justice ruled that if in any treaty the intention of the parties is to confer certain rights upon some individuals, then international law will recognize such rights and will enforce them.
(iii) 1949 Geneva Convention on the Prisoners of War has conferred certain rights upon the Prisoners of War.
(iv) The Nuremberg and Tokyo Tribunals propounded the principle that international law may impose obligations directly upon the individuals. According to the Nuremberg Tribunal :- 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.'
(v) The above trend of international law towards attaching direct responsibility to individuals was reaffirmed in the Genocide Convention adoption by the United Nations General Assembly. It imposed certain duties directly upon the individuals. According to the convention, persons guilty of crime of genocide may be punished, no matter whether they are the head of the State, high officials or ordinary individuals.
(vi) In addition to the above example, a new trend or movement has started in the international field under which some rights are conferred upon individuals even against the States. A glaring example of this is the European Convention of Human Rights in 1950. Under the provisions of the said convention, European Commission and the European Courts were established. The European Commission is entitled to investigate the violation of human rights. An individual who is the victim of the violation of human rights and whose State is the member of the U.N. may send a petition regarding violation of human rights by his own State to the U.N. Commission on Human Rights.
(vii) It is now generally agreed that international organisations are also the subjects of international law.
(viii) In regard to the International criminal law, the law-making treaties have imposed certain obligations upon the individuals and the State have consented to it.
(ix) There are certain international treaties in regard to the minorities. These treaties have conferred upon minorities certain rights.
Place of Individuals in International Law.
As pointed out earlier, individuals are also treated to be the subjects of international law although they enjoy lesser rights than States under international law. Thus, “It is no longer possible, as a matter of positive law, to regard states as the only subjects of international law, and there is an increasing disposition to treat individuals, within a limited sphere, as subjects of international law.” In the recent times, several treaties have been concluded wherein rights have been conferred and duties have been imposed upon the individuals. Some of the provisions of the international law under which rights have been conferred upon individuals and obligations that have been imposed upon them are as follows:-
1. Pirates. :- Under International law pirates are treated as enemies of mankind. Hence every State is entitled to apprehend them and punish them. Thus under international law it is the obligation of the parties not to commit piracy.
2. Harmful acts of individuals.-- For the amicable and cordial relation of the States it is necessary that the individuals should not be involved in such acts as may prove detrimental for the good relations among States. Therefore, under international law there are several such provisions which provide that the persons who commit such crimes may be punished. For example, if a person causes harm to the ambassador of another State, then under international law he deserves to be given stringent punishment.
3. Foreigners.-- To some extent international law also regulates the conduct of the foreigners. According to international law, it is the duty of each State to give to them those rights which it confers upon its own citizens.
4. War Criminals.-- War criminals can be punished under international law. This conception is based on the principle that rules relating to war crime are not only for the States, but individuals are also bound by them.
5. Espionage.-- Espionage is a crime under international law. Hence, when the spies are apprehended, they may be punished.
6. Under some treaties individuals have been conferred upon some rights whereby they can claim compensation or damages against the States.
7. The United Nations Charter has also given a place of importance to the rights of individuals. The preamble of United Nations Charter begins with the words, “Peoples of the United Nations”. This not incidental but deliberate and meaningful. There are a number of provisions of U.N. Charter.
8. Besides the above mentioned examples, some very important steps are being taken in respect of the rights of individuals under international law. International law now confers upon the individuals certain rights not only 'mediately' but 'immediately'.
9. The international Convenant on Civil and Political Rights, 1966 and the Optional Protocal confer rights directly upon the individuals. These along with the U.N. Commission of Human Rights have enabled the individuals to send petitions even against their own States.
International law is not solely concerned with advancing the political interests of states, but to a large extent also with the interests and needs of individuals and non-state entities. A number of international organisations are specifically devoted to advancing and ensuring respect for the right and interests of individuals. It would not therefore be a very revolutionary step if one further step were to be taken, and international law were to confer rights on individuals directly and ex proprio vigore without necessarily operating for this purpose through the medium and under the cover of the state.
To sum up, it may be said:
(a). That under modern practice, the number of exceptional instances of individuals or non-state entities enjoying rights or becoming subject to duties directly under international law, has grown.
(b) That the doctrinaire rigidity of the procedural convention precluding an individual from prosecuting a claim under international law except through the state of which he is a national, has been to some extent tempered.
(c) That the interest of individuals, their fundamental rights and freedoms, etc, have become a primary concern of international law.
These and other developments of recent years appear to show that the theory that states are the exclusive subjects of international law cannot be accepted today as a accurate in all respects. The use of the state as a medium and screen for the application of international law cannot now do justice to all the far-reaching aims of the modern system.












INTERNATIONAL LAW & MUNICIPAL LAW

Very often, municipal courts are confronted with the situations calling for applications of rules of international law, sometimes at variance with municipal law, to the cases before them. It is in this context that the issue of relationship between two systems of law assumes importance.
There is a divergence of opinion among the jurists on the issue of giving effect to the international law within the municipal sphere. Apart from the aspect of theory, there is the important practical problem of more immediate concern to municipal courts, namely, to what extent may such courts give effect within the municipal sphere to rules of international law, both where such rules are and where they are not in conflict with municipal law. Besides, in the international sphere, international tribunals may be called upon to determine the precise status and effect of a rule of municipal law, which is relied upon by one party to a case.
Theories as to the Relation between International Law and State Law.--
Certain theories have been propounded to explain the relationship between International Law and Municipal Law. Two principal theories are known as monism and dualism. According to monism, international law and state law are concomitant aspect of the one system-- law is general; according to dualism, they represent two entirely distinct legal systems, international law having an intrinsically different character from that of state law. Because a large number of domestic legal systems are involved, the dualist theory is sometimes known as the 'pluralistic' theory, but it is believed that the term 'dualism' is more exact and less confusing.
Dualism
In the 19th and 20th centuries, partly as a result of philosophic doctrines emphasising the sovereignty of the st6ate-will, and partly as a result of the rise in modern states of legislatures with complete internal legal sovereignty, there developed a strong trend towards the dualist view.
The chief exponents of dualism have been the positivist writers Triepel and Anzilotti. According to Triepel, there were two fundamental differences between the two systems :
a. The subjects of state law are individuals, while the subjects of international law are states solely and exclusively.
b. Their juridical origins are different; the source of state law is the will of the state itself, the source of international law is the common will (Gemeinwille) of states.
As to (b), the statement is somehow misleading it begs the question to say that the Gemeinwille is a source of international law. The natural inference is that over and above the Gemeinwille there are fundamental principles of international law, superior to it and indeed regulating its exercise or expression.
Anzilotti adopted a different approach; he distinguished international law and state law according to the fundamental principles by which each system is conditioned. In his view, state law is conditioned by the fundamental principle or norm that state legislation is to be obeyed, while international law is conditioned by the principle pacta sunt servanda, ie. Agreement between states are to be respected. Thus the two systems are entirely separate, and Anzilotti maintained further that they are so distinct that no conflicts between them are possible; there may be references from one to the other, but nothing more. As to Anzilotti's theory, it is enough to say that for reasons already given, it is incorrect to regard pacta sunt servanda as the underlying norm of international law; it is a partial illustration of a much wider principle lying at the root of international law.
Apart from the positivist writers, the theory of dualism has received support from certain non-positivist writers and jurists, and from a number of judges of municipal courts. The reasoning of this class of dualists differ from that of the positivist writers, since they look primarily to the empirical differences in the formal sources of the two systems, namely, that on the one hand, international law consists for the most part of customary and treaty rules, whereas municipal law, on the other hand, consists mainly of judge-made law and of statutes passed by municipal legislatures. That since international law has expanded to so great an extent into many different areas, while domestic national laws have continued to be concerned with a more limited range of subject matters.
Monism
Followers of monism regard all law as a single unity composed of binding legal rules, whether those rules are obligatory on states, on individuals, or on entities other than states. In their view, the science of law is a unified field of knowledge, and the decisive point is therefore whether or not international law is true law. Once it be accepted as a hypothesis that international law is a system of rules of a truly legal character, it was impossible according to Kelsen and other monist writers to deny that the two systems constitute part of that unity corresponding to the unity of legal science. Thus any construction other than monism, and in particular dualism, is bound to amount to a denial of the true legal character of international law. There cannot in view of the monist writers be any escape from the position that the two systems, because they are both systems of legal rules, are interrelated parts of the one legal structure.
There are, however other writers who have favoured monism for less abstract reasons, that international law and state law are both part of a universal body of legal rules binding all human beings collectively or singly. In other words, it is the individual who really lies at the root of the unity of all law.
Question of Primacy
In fact, International Law and municipal law are not comparable since both have their own sphere of operations and neither can be termed as subordinate to the other. The supremacy of international law in the international sphere is unchallenged in the same way as of municipal law in the State matters. They are mutually independent and normally do not come into conflict with each other. But, at time, a conflict of obligation may occur, or the State is not able to act on the domestic plane in the manner required b international law. In such a situation, whether the municipal court would apply the international law by overriding the municipal law depends on the provisions of the municipal law itself. The supremacy of international law in municipal sphere simply requires that if a state is in breach of its international obligations for which it is internationally responsible, it cannot shelter itself behind domestic law by way of absolution.
On this point, the protagonists of monism are somewhat divided. Kelsen's answer was to make a structural analysis of international law and state law. Here he applied his well-known 'hierarchical or Grundnorm doctrine' according to which each rule is conditioned by a superior rule for its validity and thus, in turn, it derives validity from the fundamental postulate, i.e. the Grundnorm which might belong either to international law or state law. He has ascribed primacy to State law because, in his opinion, the choice between either system could not be made in a strictly scientific way.
The thesis of the ultimate primacy of state law was claimed to break down in two crucial cases:
a. If international law drew its validity only from a state constitution, it would necessarily cease to be in force once the constitution on which its authority rested, disappeared. But nothing is more certain than that the valid operation of international law is independent of change or abolition of constitutions, or of revolutions.
b. The entry of new states into the international society. It is well established that international law binds the new state without its consent, and such consent if expressed is merely declaratory of the true legal position. Besides, there is a duty on every state to bring not only its laws, but also its constitution, into harmony with international law.
It may be argued in favour of state primacy that states have the very widest liberties and exercise almost complete sovereignty.
'Transformation' and 'specific adoption' theories
Certain theories concerning the application of international law within the municipal sphere.
On the one hand, the positivists have put forward the view that the rules of international law cannot directly be applied within the municipal sphere by state courts or otherwise; in order to be so applied such rules must undergo a process of specific adoption by, or specific incorporation into, municipal law. Since, according to positivist theory, international law and state law constitute two strictly separate and structurally different systems, the former cannot impinge upon state law unless the latter allows its constitutional machinery to be used for that purpose. In the case of treaty rules, it is claimed that there must be transformation of the treaty, and this transformation of the treaty into state law, which is not merely a formal but a substantive requirement, alone validates the extension to individuals of the rules laid down in treaties.
The transformation theory is based on an alleged difference between treaties on the one hand, and state law or regulations on the other according to the theory, there is a difference between treaties which are of the nature of promises, and municipal statutes which are of the nature of commands. Critics of the transformation theory have objected that this point is somewhat artificial. The real object of treaties and of statutes-indeed their common ground- is to stipulate that certain situations of fact will involve certain determinate legal consequences. The distinction between promise and command is relevant to form and procedure but not to the true legal character of these instruments.
Critics have put forward a theory of their own-the delegation theory. According to this theory there is delegated to each state constitution by constitutional rules of international law, the right to determine when the provisions of a treaty or convention are to come into force and the manner in which they are to be embodies in state law. There is no transformation, there is no fresh creation of rules or municipal law, but merely a prolongation of one single act of creation.
State Practice as to Operation of International Law within Municipal Sphere
The object of the present discussion is to ascertain in what manner and to what extent municipal courts do apply a rule of international law. The answers to these questions will be found to require distinctions to be made between customary and treaty rules of international law; and on the other between statutory and judge-made municipal law.
British Practice
British practice draws a distinction between (i) customary rules of international law; (ii) rules laid down by treaties.
(i) The rule as to customary international law according to the current modern judicial authority is that customary rules of international law are deemed to be part of the law of the land, and will be applied as such by British municipal courts, subject to two important qualifications:
a. That such rules are not inconsistent with British Statutes.
b. That once the scope of such customary rules has been determined by British courts of final authority, all British courts are thereafter bound by that determination.
The rules as stated above is somewhat narrower than which was formerly applicable. In the eighteenth century, by a doctrine known sometimes as the 'Blackstonian” doctrine, but more generally as the 'incorporation' doctrine, customary international law and the two above-mentioned qualifications were not expressly formulated. Thus Blackstone's statement of the doctrine was in these terms:
'The law of nations is here adopted in its full extent by the common law, and it is held to be a part of the law of the land.
In terms the courts of law and equity stated that they would give effect to settled rules of international law as part of English law. This did not mean, however that they would enforce international law if it conflicted with an English statute or judicial decision.
A customary rule must not be inconsistent with statutes or prior judicial decisions of final authority, it is also a condition precedent that the rule is one generally accepted by the international community.
Customary rules of international law could never be applied by British municipal courts unless they had been embodied in a British statute. A more moderate view is that international law is not a part of British domestic law, but may be a 'source' of rules applied by a British court; if, however, this meant that a British judge were free to reject a generally recognised customary rule of international law, it would be contrary to authority.
There are two important exceptions to the automatic applicability of customary international law by British municipal courts :
1. Acts of state by the executive, for example a declaration of war, or an annexation of territory, may not be questioned by British municipal courts, notwithstanding that a breach of international law may have been involved.
2. British municipal courts regard themselves as bound by a certificate or authoritative statement on behalf of the executive in regard to certain matters falling peculiarly within the Crown's prerogative powers. Such certificate or statement may be difficult to reconcile with existing rules of international law.
Notwithstanding judicial doubts as to its scope, the incorporation doctrine has left its definite mark in two established rules recognised by British Courts.
a. A Rule of Harmonious construction. Acts of Parliament and statutory instruments are to be interpreted so as not to conflict with international law. There is indeed a presumption that Parliament did not intend to commit a breach of international law.
b. A Rule of evidence. International law need not, like foreign law, be proved as a fact by expert evidence or otherwise. The British courts will take judicial notice of its rules, and may of their own volition refer to textbooks and other sources for evidence thereof.
In the matter of giving effect to international law, the position of British Prize Courts is different from that of the courts of common law and equity. Prize Courts are specifically appointed to apply international law.
(ii) The British practice as to treaties, as distinct from customary international law is conditioned primarily by the constitutional principles governing the relations between the executive and Parliament. The negotiation, signature, and ratification of treaties are matter belonging to the prerogative powers of the Crown. It has become established that:
a. Treaties which : (1) affect the private rights of British Subjects, or (2) involve any modification of the common or statute law by virtue of their provisions or otherwise, or (3) require the vesting of additional powers in the Crown, or (4) impose additional financial obligations, direct or contingent, upon the government of Great Britain, must receive parliamentary assent through an enabling Act of Parliament, and, if necessary, any legislation to effect the requisite changes in the law must be passes.
b. Treaties made expressly subject to the approval of Parliament require its approval, which is usually given in the form of a statute, though sometimes by resolution.
c. Treaties involving the cession of British territory require the approval of Parliament given by a statute.
d. No legislation is required for certain specific classes of treaties, namely, treaties modifying the belligerent rights of the Crown when engaged in maritime warfare, and administrative agreements of an informal character needing only signature, but not ratification, provided they do not involve any alternation of municipal law.
Where under the above-mentioned rules, a British treaty is required to be implemented by legislation, a mere general or vague allusion to the treaty in a statute is not sufficient to constitute the necessary legislative implementation.
American Practice
In the matter of customary rules of international law, the American Practice is very similar to the British Practice. Such rules are administered as part of the law of the land, and Acts of the United States Congress are construed so as not to conflict therewith, although a later clear statute will prevail over earlier customary international law. Also, an American court is entitled to ascertain the rules of international law on a particular point by referring to textbooks, state practice, and other sources. Defense is, however, paid to the views of the executive, as in the case of British courts, to the extent that American courts normally regard themselves as bound by the certificates or 'suggestions' of the executive regarding such matters as the recognition of foreign states, the territorial limits of a foreign country, and the immunity of governments, persons, corporations, or vessels from jurisdiction.
But so far as treaties are concerned, there is a radical difference from the British practice. The American practice does not depend like the British practice upon any reconciliation between the prerogative powers of the executive and the legislative domain of Parliament, but upon the provisions of United States Constitution stipulating that 'all Treaties made, or which shall be made under the Authority of the United States', shall be 'the Supreme Law of Land', and upon a distinction drawn by American courts between 'self-executing' and 'non-self-executing' treaties. A self-executing treaty is one which does not in the view of American courts expressly or by its nature require legislation to make it operative within the municipal field.
If a treaty is within the terms of the Constitution, and it is self-executing within the meaning just referred to, then under the Constitution it is deemed to be operative as part of the law of the United States, and will prevail, also, over a customary rule of international law. On the other hand, treaties which are not self-executing, but require legislation, are not binding upon American courts until the necessary legislation is enacted. Moreover, if the relevant treaty purports to deal with a particular subject matter in respect of which the United States Congress has exclusive legislative powers, the treaty will be considered as prima facie non-self-executing irrespective of what the intention of the parties is claimed to be.
Self-executing treaties or conventions ratified by the United States, are binding on American courts, even if in conflict with previous American statutes, provided that there is no conflict with the United States Constitution. But a statute passed by Congress overrules previous treaties that have become the law of the land, although there is a presumption that Congress did not intend to overrule such treaties, and unless the purpose of Congress to overrule international law has been clearly expressed, such abrogation or modification will not be deemed to have been carried out.
Indian Practice
Before the adoption of Indian Constitution the Indian practice in respect of relation of international law was similar to the British practice. After the adoption of the constitution of India everything depended upon the provisions of Constitution. In order to know the position of International Law in the post constitution period, it is necessary to examine the relevant provisions of the Constitution of India. The most relevant provision is contained in Article 51.
But Article 51 does not give any clear guidance regarding the position of international law in India as well as the relationship of municipal law and International law because this article is contained in Part IV of the Constitution of India which are non-justiciable. Both international customary law and treaty law have been treated on the same footing in Article 51. An analysis of judicial decision shows that in India dualism is followed.
Article 51 of the Constitution of India, in so far as it requires the various organs of State, to foster respect for international law and treaties would seem to strengthen rather weaken the legacy of the common law principle that international law is a part of the law of the land.
Thus, so far as customary rules of international law are concerned, the position prevailing immediately preceding the commencement of the Constitution continues even after the coming into force of the Constitution.
In Re-Berubari Union and Exchange of Enclaves, the Supreme Court had to decide whether any legislation was necessary for the agreement relating to Berubari Union. Since it involved the cession of Indian territory, the highest tribunal answered in alternative. The Supreme Court observed that the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by the constitutional amendments will naturally depend on the provisions of the constitution itself.
This was held by the Supreme Court of India in Jolly George Garghese v. Bank of Cochin, in the judgment of the Court quoted that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law.
In Gramophone Company of India Ltd. v. Birendera Bahadur Pandey, the Supreme Court observed that if in respect of any principle of international law the Parliament says 'no', the national court cannot say 'Yes'. National court shall approve international law only when it does not conflict with national law. In case however the conflict is inevitable, the national law shall prevail.
Present Legal Position.--
The Supreme Court in Vishaka v. State of Rajasthan, in the absence of domestic law occupying the filed to formulate effective measures 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 and right to work with human dignity in article 14, 15, 19) and 21 of the Constitution and the safeguards of 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 implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing international Conventions and norms.
In this case, the Apex Court was dealing with the problem of harassment of working women observed that the meaning and content of the fundamental rights guaranteed in the Constitution 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 n 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.















RECOGNITION

The identity and number of states belonging to the international community are by no means fixed and invariable. The march of history produces many changes. Old states disappear or unite with other states to form a new state, or disintegrate and split into several new states, or former colonial or vassal territories may be process of emancipation themselves attain statehood. Then, also, even in the case of existing states, revolutions occur or military conquests are effected, and the status of the new governments becomes a matter of concern to other states, which formerly had relations with the displaced governments, raising the question of whether or not to engage in formal or informal relations with the new regimes, either by recognition of new government is not followed, solely by some kind of intercourse.
These transformations raise problems for the international community, of which one is the matter of recognition of the new state or new government or other change of status involved. At some time or other, this issue of recognition has to be faced by certain states, particularly if diplomatic intercourse must necessarily be maintained with the states or governments to be recognised.
However, the subject of one of some difficulty, and at this stage of the development of international law, can be presented less as a collection of clearly defined rules or principles than as a body of fluid, inconsistent, any unsystematic state practice, involving as well the adoption by states of different policies.
The reason for this are two fold :
a. Recognition is, as the practice of most states shows, much more a question of policy than of law. The policy of the recognising state is conditioned principally by the necessity of protecting its own interests, which lie in maintaining proper relations with any new state or new government that is likely to be stable and permanent.
b. There are several distinct categories of recognition. The recognition of new states, and the recognition of new heads or governments of existing states. Although very much the same principles are applicable to both, it is heads of recognition, there are the recognition of entities as entitled to the rights of belligerency, the recognition of entries entitled to be considered as insurgent governments, the recently proposed new category of recognition of national liberation or resistance movements, and the recognition of territorial and other changes, new treaties, etc. Finally, there is the distinction to bear in mind between recognition de jure and de facto of states and governments.
According to Kelsen, a community to be recognised as an international person must fulfil the following condition : (1) The community must be politically organised; (2) It should have control over a definite territory; (3) This definite control should tend towards permanence; (4) The community thus constituted must be independent. Thus the conditions of Statehood are (a) People; (b) A territory; (c) a government; and (d) sovereignty.
This act of recognition in both cases may be express, that is by formal declaration, or implied when it is a matter of inference from certain relations between the recognising state and the new state or new government. The manner of recognition is not material, provided that it unequivocally indicates the intention of the recognising state.
Recognition under modern state practice involves more than cognition, that is to say more than an avowal of knowledge that a state or government possesses the requisite bare qualifications to be recognised. The practical purpose of recognition, namely, the initiation of formal relations with the recognising state, must also always be borne in mind. Once granted, recognition in sense estops or precludes the recognising state from contesting the qualifications for recognition of the state or government recognised.
There are two principal theories as to the nature, function, and effect of recognition :
a. Constitutive Theory:- According to this theory, it is the act of recognition alone which creates statehood or which clothes a new government with any authority or status in the international sphere. Anzilloti, Oppenheim, etc. are the chief exponents of constitutive theory. Openheim, says A state is, and becomes, an international person, through, recognition only and exclusively.
b. Declaratory or Evidentiary theory:- According to this theory, statehood or the authority of a new government exists as such prior to and independently of recognition. The act of recognition is merely a formal acknowledgment of an established situation of fact. The chief exponents of this theory are Brierly, fisher etc. Brierly has remarked, the granting or recognition to a new State is not a 'Constitutive' but a 'Declaratory' act. A state may exist without being recognized and if it exists in fact, then whether or not, it has been formally recognized by other States it has a right to be treated by them as a State.
The bulk of international practice supports the evidentiary theory, inasmuch as whi8le recognition has often been given for political reasons and has tended therefore to be constitutive in character, countries generally seek to give or to refuse it in accordance with legal principles and precedents. Moreover, a mere refusal by a single state to recognise could not affect the situation could not affect the situation if a great number of other states had already given their recognition.
The evidentiary theory is further supported by the following rules.
A. The rule that if a question arises in the courts of a new state as to the date at which the state came into existence, it will be irrelevant to consider the date when treaties with other states recognising it came into operation. The date when the r4equirements of statehood were in fact first fulfilled is the only material date.
B. The rule that recongition of a new state has retroactive effect, dating back to its actual inception as an independent state.
These two rules which apply also to newly recognised governments are based principally on the necessary consideration that there should be no gap of time during which a state or government is out of existence. In other words, continuity is the essence of state sovereignty or of governmental authority.
Further authority against the constitutive theory is the Tinoco Arbitration, where the Arbitrator held that the revolutionary Tinoco Government of Costa Rica which came into power in 1917 was a properly constituted government, although not recognised by Great Britain, and the Great Britain was not estopped (ie, precluded in law) by such prior non-recognition from later alleging that the government was in fact a duty and property constituted one.
Is there a duty to grant recognition?
It has been urged that states are subject to a duty under international law to recognise a new state or a new government fulfilling the legal requirements of statehood or of governmental capacity. There is no general acceptance of the existence of the duty or the right mentioned. If there were such a duty under general customary international law, it would be one observed by all major states, yet no such duty is acknowledged by states following the Estrada doctrine of non-recognition, nor so far as concerns the recognition of new governments is the existence of the duty recognised by states such as the United States, the United Kingdom and Australia, which have abandoned the policy of such recognition of new regimes.
Implied recognition
Implied recognition is very much a matter of the intention of the state said to have given recognition. The implication is made solely when the circumstances unequivocally indicate the intention to establish formal relations with the new state or new government. For example, by entering into some form of relations with it. Such conduct can usually amount to no more than recognition de facto, or recognition of an entity as an insurgent authority or indicate an intention to maintain through agents, informal relations without recognitions.
In practice, the only legitimate occasion for conclusively implying recognition de jure are :
1. The formal signature of a bilateral treaty by the recognised and recognizing States as distinct from mere temporary arrangements or agreements. It is not necessary that the treaty be ratified.
2. The formal initiation of diplomatic relations between the recognised and recognising state.
3. The usage of a consular exequatur by the admitting state for a consul of an unrecognised state.
In certain circumstances exceptional circumstances, but no otherwise, recognition has been inferred from the following circumstances :
a. Common participation in a multilateral treaty.
b. Participation in an international conference.
c. Initiation of negotiations between a recognising and a recognised state.
Recognition of the validity of the laws decreed or enacted by a particular entity, does not necessarily import recognition of the law-making entity.
Recognition subject to a condition
Sometimes states are recognised subject to a condition, generally an obligation which they undertake to fulfil. The effect of such conditional recognition is that failure to fulfil the obligation does not annul the recognition, as once given this is incapable of withdrawal. By breaking the condition, the recognised state may be guilty of a breach of international law, and it is open to the recognising states to sever diplomatic relations as a form of sanction, or otherwise to proceed. But the status which the recognised state has obtained from the act of recognition cannot then be retracted.
In practice states have repeatedly, as consideration for the grant of recognition, exacted from states or governments to be recognised some guarantee or undertaking or stipulation.
Collective recognition
The advantage of recognition taking place by some collective international act, or through the medium of an international institution cannot be denied. It would obviate the present embarrassments due to unilateral acts of recognition.
Recognition of a head of state or of a new government
This has nothing to do with the recognition of a state itself. In case of existing states, no difficulty in recognising a government arises except when changes in the headship of the state or of its government take place in an abnormal or revolutionary manner.
Where the change proceeds in a formal and constitutional way, recognition by other states is purely a matter of formality. The recognising government should at least be satisfied as to the prospects of stability of the new government.
In the case of nascent states, recognition raises many problems for the recognising states; first, because of the merging of the new state with its new government and the difficulty of recognising the one without recognising the other; secondly, most states prefer, in the matter of recognition of nascent states, to be as non-committal as possible and to preface the date of recognition de jure by a stage of recongition de facto.
There is no difficulty, of course, where the new state is a former dependency or trust territory, and the parent or tutelary state, itself already de jure recognised, has consented to emancipation. Recognition can be accorded automatically, and is essentially then a legal act of a cognitive nature.












United Nations Convention of Law of Sea.

Earlier the powerful States laid extensive claims of sovereignty over specific portions of the open sea. Grotius Championed the doctrine of the ‘freedom of seas’ because it is impossible for any nation to effectively possess them. The law developed out of well-settled usages culminating into customary law. The hallmark of this law, which was followed upto the half of the twentieth century, was essentially that of non-regulation and laissez faire and except that of territorial waters, the law essentially endorsed the doctrine of ‘open sea’. But the United States declared proclamation jurisdiction over the continental shelf gave a new direction to the law of sea. Many nations made sweaping claims to protect their economic and military interests. These developments stressed the urgency for codification of law in order to strive uniformity and resolve maritime conflicts among nations. The matter was put on the agenda of the International Law Commission in 1949.
On the basis of the drafts prepared by the ILC, in 1958, the First United Nations Conference on the Law of the Sea took place at Geneva, which adopted four conventions, viz., the Geneva Convention on the Territorial Sea and the contiguous Zone, on the High Sea, on the ;Continental Shelf, and the Fishing and Conservation of the Living Resources of the High Seas. But the important issues related to the breadth of the territorial sea and the fishing rights of the coastal States beyond their territorial sea were left undecided. A Second Conference on the Law of Sea was held in 1960, at Geneva, but again no agreement could be found these issues.
Together, both these conference on the Law of the Sea left many matters unsettled. Further, the interests of the landlocked States were also not adequately protected, except the High Seas Convention, which in Art. 3 explicitly and specially dealt with their problem of access to the sea. It was soon being realized that these conventions were inadequate to meet the new challenges put up by science and technology, which made it possible for States with sufficient resources and know-how to explore and exploit the underwater mineral resources at greater depth of the sea, and the consequential need to prevent the increasing pollution, and the conservation of the fishing resources of the seas.
This made it imperative to reformulate the law of the sea in composite form to make it conducive to the new interests and demands of all concerned and paved the way to hold the Third Law of the Sea Conference.
The initiative to hold a new conference came from Malta’s representative to the United Nations at whose behest the General Assembly considered the item concerning the exploitation and uses of the seabed and ocean floor beyond the limits of the present national jurisdiction. He also pressed for the United Nations endorsement that deep seabed resources are the ‘common heritage of mankind’ and the same should be developed in the interests of all nations, with special regard to the needs of developing countries. The move was to secure the mineral wealth of the oceans as well as to avoid the militarization of the deep seabed. This led to the formation of a 42 member Ad hoc Seabed Committee in 190, the General Assembly adopted a declaration of Principles Governing the Seabed and Oceans floor, and the Sub-soil thereof, beyond the limits of National Jurisdiction, which proclaimed that the exploitation of these areas should be carried out for the benefit of the mankind as a whole.
At the end of nine years in 12 sessions, the Conference adopted the Law of the Sea Convention in 1982. Though it was agreed in its second session that all the provisions as well as the complete text of the Convention would be accepted by consensus with a view to increase their acceptability and ‘there shall be no voting until all efforts at consensus have been exhausted’, the draft Convention was adopted through voting in the eleventh session of the Conference.
The Convention consists of 320 Articles spread over 17 parts and nine annexes. Apart from these, there are four resolutions. The Convention comprises the ground covered by the four Geneva Convention of 1958, and creates some new regimes. In fact, many of the provisions repeat verbatim or in essence the provisions of the Geneva Conventions, or give more detailed rules on matters covered by them. It contains provisions on those matters on the new legal regimes of Exclusive Economic Zone and the deep seabed. It has laid down a 12 nautical miles limit for the territorial sea. The Convention contains a detailed machinery for the settlement of disputes, including an International Tribunal for the Law of the Sea. It also provides for the compulsory judicial settlement of most of the disputes that may arise under the Convention, at the request of one of the parties to the dispute.
In the case Concerning the Continental Shelf between Libya and Malta, the Court observed that ‘the 1982 Convention is of major importance, having been adopted by an overwhelming majority of States; hence it is clearly the duty of the court to consider in what degree any of its relevant provisions are binding upon the parties as a rule of customary international law’, and noted that the provisions on the continental shelf reflect the customary law of the continental shelf.
Thus, the Convention is a major achievement and its ambit is very wide.
Maritime Belt or Territorial Sea: Maritime belt or territorial sea is that part of the sea which is adjacent to the coastal State and which is bounded by the high seas on its outer edge. The coastal State exercises its sovereignty over this area as it exercises over its internal waters. The sovereignty extends to the airspace over the territorial sea as well as its bed and sub-soil. This sovereignty accrues to a State under customary international law which no State can refuse. However, the sovereignty over this area has to be exercised subject to the provisions of the conventions and ‘to other rules of international law’, which provides certain rights to other States, particularly right of ‘innocent passage’ in the territorial waters of the State.
It is generally held view that at the turn of the century, there existed a three-mile limit as a ruleof general application. The three-mile rule, popularly known as ‘cannon-shot’ rule, had a rationale that a State’s sovereignty extended to the sea as far as a canon could reach or fire. Before the 1982 Sea Convention was concluded, States proclaimed varying breadth of the territorial sea, generally ranging from 3 to 12 miles, though in certain cases they had proclaimed wider areas than that, in few cases upto 200 nautical miles. But at the UNCLOS-III, claims wider than 12 miles did not find favour and the 12 miles rule was accepted by the Conference, which may be considered the present customary international law position.
Article 3 of the 1982 Sea Convention limits the breadth of the territorial sea to 12 nautical miles ‘measured from baselines determined in accordance with the Convention’. Two methods have been laid down for measuring the breadth of the territorial sea: the low-water line and the straight baseline. The normal method used is the low-water line as marked on large scale charts officially recognized by coastal State. Where the coastline is deeply intended and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the straight baseline method joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
The method of straight baseline was enunciated by the Anglo Norwegian Fisheries case, which had a decisive effect on the baseline issue. In this case, Norway which has a fringe coastline, by its 1935 Decree proclaimed exclusive fishery zone (meant territorial sea) along almost 1000 miles of its coastline. The zone which was four miles wide, measured not from the low-water mark but from straight baselines linking some 48 outer most points of island and lands, at a considerable distance from the coast By using the straight baselines, some of which were 30 miles long and the longest was 44 miles, Norway could enclose waters within its territorial sea that would have been the high seas, and hence open to foreign fishing. The UK, whose fishing interests were affected by this Decree, challenged the legality of the straight baseline system adopted by Norway and the choice of certain baselines used in applying it. The Court upheld the method applied by Norway in drawing the baselines and it also did not reject the criterion of low water mark. But the manner of application of straight baselines is ‘dictated by geographical realities’.
It was propounded by the judgment that where a State has a rugged coastline, deeply indented, or if there is a fringe of islands in the immediate vicinity, the straight baseline, joining the low water at appropriate points, is admissible, provided: (i) the drawing of baseline must not depart to any appreciate extent from the ‘general direction’ of the coast; (ii) the areas lying within the baselines are sufficiently closely linked to the adjacent land domain; and (iii) the economic interests as evidenced by long established usage, peculiar to a particular region concerned, must be taken into account, before the straight baseline method is allowed to be followed by coastal State.
The principles laid down in the Fisheries case relating to straight baselines are to be followed in drawing baselines except those of low-tide elevations, unless the lines drawn in such circumstances have received ‘general international recognition’. The system of straight baselines is not to be applied in a manner as to cut off the territorial sea or an EEZ of another State from the high seas.
The delimitation of the territorial sea between two States opposite or adjacent to each other can take place in accordance with an agreement between them, failing which the median line, every point of which is equidistant from the nearest points on the baselines from which the breath of the territorial seas of each of the two States, is measured. This rule is not applicable in the cases of ‘historic title’ or other special circumstance.
In the territorial sea, the coastal State enjoys all the right and duties inherent in sovereignty, and the right to regulate this regime. Other States also enjoy certain privileges associated with the right of innocent passage.
The customary international law recognizes the right of innocent passage for ships of all States through the territorial waters of a State but no such right exists for aircrafts in the airspace over the territorial waters. ‘Ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.’ No right of innocent passage exists through internal waters. The passage to be considered innocent, of foreign fishing vessels, their conduct should be according to the laws and regulations made by the coastal State for fishing purposes in territorial sea.
Under the Convention vessels entitled to innocent passage are ‘ships of all states’ without making a distinction between merchant, public or warships. The submarines, however, are required to navigate on the surface. Warships have the right of passage through international straits, as decided in the Corfu Channel case.
The coastal States has the right to make laws to regulate the territorial waters. It can adopt laws and regulations governing innocent passage, and to prevent passage which is not innocent. Foreign ships in innocent passage are required to comply with all such laws and regulations, framed by the coastal State, and other common international regulations for the prevention of collisions at sea.
The costal State is required not to hamper or impair innocent passage or to apply rules and regulations in this regard in a discriminatory manner. Nevertheless, the coastal State is empowered to ‘take the necessary steps’ to prevent non-innocent passage.
India’s position in relation to the law of the sea is generally governed by Art. 297 of the Constitution of India, and the Territorial Water, Continental Shelf, EEZ and other Maritime Zones Acts. The Maritime Zones Act proclaims the sovereignty of India over the territorial waters of India and the seabed and sub-soil underlying and the airspace over such water. The limits of the territorial is the line every point of whfch is at a distance of 12 nautical miles from the nearest pint of the appropriate baseline. All foreign ships are given the right of innocent passage through the territorial waters. Passage is innocent so long as it is not prejudicial to the peace, good order or security of India. However, foreign warships, including submarines and other underwater vehicles, may enter or pass through the territorial water by giving prior notification to the Central Government. Submarines and other underwater vehicles are to navigate on the surface and show their flags when passing through such waters. The Central Government, if satisfied that it is necessary in the interest of peace, good order or security of India or any part thereof, may suspend the innocent passage, absolutely or subject to certain exceptions or modifications, by notification made in the official gazette. Thus, the position of India in this regard is in accordance with the 1982 Convention.

Exclusive Economic Zone

The most significant contribution of the UNCLOS III was the creation of the new regime of EEZ. The zone, in fact, has its roots in the concept of Exclusive Fishing Zone and the doctrine of the continental shelf. It was actuated by the developments that had taken place after the Second World War, when many nations (particularly Latin American) started proclaiming 200 miles as their fishery zone. Such claims were motivated by a concern for the conservation of living sea resources and other considerations.
The concept was finally incorporated in 1982 Convention and it has since become part of the customary law of the sea. The EEZ is an area beyond and adjacent to the territorial sea extending upto 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The zone is an intermediate area between the high seas and the territorial sea with a distinct regime of its own which a State can specifically claim. The zone comprises the area which was previously part of the high seas, and is not under the sovereignty of the coastal State. Thought the Convention refrains from describing EEZ as a part of the high seas, other State generally continue to exercise the freedoms of the high seas in the EEZ, in particular, freedoms of navigation and overflight, laying of submarine cables and pipelines and other internationally lawful uses of the sea related to these freedoms. But the Convention does not specify whether foreign warships, which enjoy freedom of navigation through EEZ, can conduct navel exercises in the EEZ as the can on high seas.
The regime of EEZ accords certain rights to the coastal State. One, it has sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and sub-soil, and with regard to ‘other activities’, such as the production of energy from the water, currents and winds. Two, the coastal State has the exclusive jurisdiction with respect to the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment.
While exercising its rights and performing its duties in relation to this zone, the coastal States has to give due regard to the rights and duties of other States. Foreign ships are required to respect these laws and abstain from illegal fishing. But imprisonment or any other corporal punishment for violation of fisheries legislation is excluded. While exercising this right, the coastal State is obliged to conserve and manage the living resources of the EEZ, and to determine the level of exploitation taking into account the environmental and economic factors.
Any conflict on the unregulated uses of the EEZ between a coastal State and other States should be resolved on the basis of equity and in the light of all the relevant circumstances.
The delimitation of the EEZ between States with opposite or adjacent coasts is to be effected ‘by agreement on the basis of international law in order to achieve an equitable solution’. If no agreement can be reached within a reasonable time, the States concerned may resort to the procedures provided in the Convention.
Section 7 of the Martime Zones Act, in India, is in compliance of the 1982 convention, which prescribes 200 nautical miles as the limit of EEZ. The limit may be altered by the Central Government, giving due regard to international law and State practice, through a notification in the Official Gazette to this effect. The notification should have the approval of both the House of Parliament before issuance. No person, including a foreign government, can explore or exploit this area without an agreement with the Central Government or an authority granted by the Central Government. This provision, however shall not apply to fishing by an Indian citizen.
The Central Government, by notification, declares any area as a designated area and makes laws with respect and also for the protection of the marine environment, or customs or other fiscal matters in relation to such designated area. While declaring any area of the EEZ a designated area, the government will ensure freedom of navigation, by taking into account the interests of India. The government may extend any law, imposing restrictions and modifications, temporarily on the EEZ or part thereof, and may make any provision for the enforcement of such law.













Continental Shelf

One of the important development after the second World War in relation to the law of the sea was the evolution and acceptance of the concept of continental shelf. The President of the United States, proclaimed that the natural resources of the continental shelf were ‘beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States and subject to its jurisdiction and control’. The continental shelf was regarded ‘as an extension of land mass of the coastal nation’. The main reason for this action of the United States was to reserve for itself, the oil and mineral resources in the seabed which had become technologically possible to drill.
Proclamation soon became the trend setter and was immediately followed by similar unilateral declarations by many maritime nations which laid claims of exclusive jurisdiction control or sovereign rights over the resources of the continental shelf and associated offshore areas. These declarations led to the formation of customary international law giving coastal States jurisdictional rights over their shelves. These rights over the resources of the continental shelf were universally accepted by the 1958 Geneva Convention on the Continental Shelf.
The continental shelf maybe defined as the zone around the continent extending from the low-water line to the depth, at which there is usually a marked increase of declivity to greater depth. What is commonly understood by the ‘continental shelf’ is a gently sloping platform of submerged land surrounding the continents and islands. It is a submerged bed of the sea, contiguous to a continental land mass, and found in such a manner as to be really an extension of, or appurtenant to this land mass. Normally, it extends to a depth of approximately 200 meters, at which point the first substantial ‘fall off’ of the seabed occurs. At certain places it continues beyond a depth of 200 meters.
In 1958 Continental Shelf Convention used the term ‘continental shelf’ as referring ‘to the seabed and sub-soil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth to 200 meters or beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas’. Thus, the shelf has been defined in terms of ‘exploitability; and the depth of the sea. It means that if the exploitation of the resources could be made beyond the limit of 200 meters depth, that area could be claimed by the coastal State as its continental shelf. The requirement of the phrase ‘adjacent of the coast’ is not solely confined to the proximity, but provided the legal basis for the coastal State to claim jurisdiction over the continental shelf.
The coastal State enjoys limited sovereign rights over the continental shelf for the purpose of exploring and exploiting its ‘natural resources’, and not sovereignty. These rights are exclusive in the sense that no one can undertake these activities without the express consent of the coastal State or make a claim to the continental shelf. They also do not depend on occupation, effective or notional, or any express proclamation.
The ‘natural resources’ of the continental shelf consist of mineral and other non-living resources of the seabed and sub-soil, together with living organisms which at the harvestable stage, either are immobile on or under the seabed, or are unable to move except in constant physical contact with the seabed or sub-soil.
The coastal State also has the exclusive right to authorize and regulate drilling of the sub-soil for all purposes. Like the EEZ, the coastal State has the exclusive right to construct, maintain or operate the artificial islands, installations and structures on the shelf.
The above rights of the coastal State, however, are not to affect the legal status of the superjacent waters, or the air space above those waters. The exercise of these rights by the coastal State is not to impair navigation or other rights and freedoms of States.
The delimitation of continental shelf between nations has generated a lot of litigation because of its economic importance. Rules relating to delimitation are provided in Art. 6 of the 1958 Continental Shelf Convention and Art. 83 of the 1982 Convention.
The delimitation of boundaries remained more contentious between the adjacent States as opposed to the opposite States where the median line was to be followed. In the case of adjacent States, ‘equidistance principle’ was found to be inadequate to demarcate the continental shelf, nor did it represent the customary international law. The International Court of Justice, for the first time has the occasion to determine the adequacy of the rule enshrined in Art. 6 in the North Sea Continental Shelf cases. In the two separate cases against West Germany filed by the Netherlands and Denmark, the Court was asked to decide about the ‘applicable’ principles and rules of international law ‘to the determination as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary.
The two cases were joined by the Court. Denmark and the Netherlands argued that the ‘equidistance/special circumstances rule’ in Art. 6 would be applied. Germany, instead proposed ‘the doctrine of the just and equitable share’. Germany’s opposition to the ‘equidistance rule’ was based on the fact that the rule, if applied on a concave coastline, such as that of North Sea, shared by all the three States concerned, would result into giving the State in the middle, and in this case Germany, a smaller continental shelf than it might otherwise obtain. The Court rejected both these contentions and held that applying the equidistance principle will lead to inequitable results because of the peculiar coastline of the States concerned and opined that the notion of equidistance could not be logically be compulsorily applied in all situations. It is not consonant with certain basic legal notions, ‘those principles being that delimitation must be the object of agreement between the States concerned, and the such agreement must be arrived at in accordance with equitable principles.’
Thus, in the following the ‘equitable principles’, the factors to be taken into account are: the relevant circumstances, i.e., the geographical situation of the parties and natural configuration of the coast; proportionally, i.e., the extent of the continental shelf areas appertaining to coastal State and the length of the coast measured in the general direction of the coastline; and the concept of natural prolongation, i.e., shelf is an appurtenant to the land territory.
The approach taken by the International Court of Justice on the ‘equidistance principle’ has been followed by the Court in the Continental Shelf case (Tunisia V. Libya) case, the Court was asked to specify principles and rules of international law which were applicable to the delimitation of continental shelf between Tunisia and Libya. They have a single continental shelf as the natural prolongation of their land territory, and hence no principle of ‘natural prolongation’ as such could be applied. The Court observed that since the two countries abutted on a common continental shelf, physical criterion was of no assistance for the purpose of delimitation. The application of the equidistance method could not, in particular circumstances of the case, lead to an equitable result, and in such a case, the delimitation can be effected on the basis of ‘equitable principles’, taking into account all the relevant circumstances.
The Continental Shelf (Libya V. Malta) case was the first case decided by the Court a fater signining of the 1982 Convention. Though both the States were signatories to the Convention, they agreed for the dispute to be governed by customary international law. The Court, however, looked into the provisions of the Convention as a rule of customary international law, and observed that ‘the principles and rules, applicable to the delimitation of continental shelf areas are those which are appropriate to bring about an equitable result.’ In deciding the dispute, the Court placed great reliance on the ‘equidistance principle’. But to achieve an equitable result, it will be necessary to first draw a line, every point of which should be equidistant from the coast of the two opposite States concerned and then to make adjustments in the light of all the relevant circumstances. The Court once again discounted the ‘natural prolongation’ factor propounded in the North Sea Continental Shelf cases, which was subservient to the equitable principle.
Thus, the judicial practice has clearly established that equidistance is not an applicable rule in all cases of delimitation between adjacent States. The ‘natural prolongation’ criterion has similarly given way to distance criterion (i.e. 200 nautical miles from the coast). The emphasis on ‘equitable solution’ in the 1982 Convention, however, is without any accompanying procedure to be followed to achieve it. The application of equitable principle reduces the chances of settling boundary disputes without litigation.
The Martime Zones Act, states the Indian position. India has proclaimed 200 nautical miles from the baselines as its continental shelf. The rights and duties of Indian in this regime are similar to other States, as specified in the international Conventions. However the government can declare the area of continental shelf and its superjacent waters as designated areas and make provisions to regulate it.
Continental Shelf and EEZ:
The regimes of continental shelf and EEZ co-exist under the customary international law and the 1982 Convention. They contain few significant similarities and overlappings. The coastal State enjoys sovereign rights over the resources of the EEZ and the continental shelf. These rights are primarily of economic kind and the area otherwise pertains to the high seas. The traditional freedoms of the high seas under the customary international law, i.e., freedoms of navigation, overflight and immersion and available to other nations in these zones.
However, they are different in may ways:
(1) Whereas the coastal State gets rights over the continental shelf because of its land territory, i.e., continental shelf accrues to it under customary international law, the EEZ is a concept of law, whereas continental shelf is a concept of geography.
(2) Whereas the rights of continental shelf can exist beyond the limit of 200 miles from the coast whereas shelf and margin extend beyond that limit, it is not so with the EEZ.
(3) The resources of the EEZ are subject to the rule of sharing the surplus of the living resources of the EEZ with other nations, particularly with landlocked and geographically disadvantageous States, but the resources of the continental shelf are immuned from this requirement and if the coastal State does not exploit them, no other State has a right to do so.
(4) The continental regime applies to shelf resources of States that have claimed an EEZ as well as States that have not done so, and applies to the shelf resources beyond the 200 mile limit. Thus, under the 1982 Convention, a continental shelf can exist without EEZ, but there cannot be an EEZ without a corresponding continental shelf.
In the Libya V. Malta Case, the Court was of the view that both the regimes are linked together, ‘since the rights enjoyed by a State over its continental shelf would also be possessed by it over the seabed and sub-soil of any exclusive economic zone which it might proclaim.’