Composed course of Int. Law-1 i studies during MA-IR. Part I
Its really helpful i request all Int. Law Candidates to go through it and give your comments plz.
Law is an English word it is derived from German word “Lag” which means Constant Unmovable, Static and Plane. There are various definitions of law some of them are the following.
According to Aristotle:
“Whatever the ruling party enacts is called law”
According to John Austin:
“Law is the command of sovereignty”
According to Woodrow Wilson:
“Law is that portion of establishing thought which has distinct & in the shape of uniforms backed by the authority & power of state”
According to Holland:
“Law is general rule of external action enforced by sovereign political authority”
According to J.C. Carter:
“Law always has been still is and will forever continue to be custom”
According to Sir Henry Maine:
“Law is accepting norms of society and state has to implement those laws”
He said if u wants to look the classical example of the ruler then it will be the Ranjeet Singh
According to Salmond:
“The body of principles recognized & applied by the state in the application of justice”
Law should be uniform. It should be universal. Its jurisdiction should be compulsory. There should be system of course
It is a term commonly used for referring to laws that they govern the conduct of independent nations in their relationship with one another, it differs from other legal systems in that it primarily concerns states rather than then private citizens.
Divisions of International Law:
There are two divisions of International Law
1. Public International Law
Concerns with states
2. Private International Law
Concerns with individuals, It is very small part of international law. 95% affairs come from public and remaining comes from private.
Divisions of Law:
1- Municipal Law (with in the country)
2- International Law (out of the country)
Definitions of International Law:
According to Lawrence:
“The rules which determines the conduct of the general body of civilized states, in their mutual dealings”
According to Oppenhein:
“Law of nations or International Law is the name for the body of customary and treaty rules which are considered legally binding by civilized states in their relations with each other”
According to Clove:
“By the law of nations or international law should be understood the sum of mutual obligations of states, that is to say the duties that they must perform and rights they must defend with respect to one & other”
According to Gould:
“International law is a public law even in matters involving individuals”
Scope of international law:
1- Principles and rules of conduct which state feels to bound to observe in their relation to each other
2- The rules of Law relating to the functions o international institutions or the organizations in respect of their relations with each other and their relations with states and individuals.
3- Certain rules of law relating to individuals and non-state entities
Disciplines of International Law:
The term International Law refers to three distinct disciplines
1- Public International Law:
It governs relationship between states and international entities, either as an individual or as a group. It includes the following specific fields
a) Treaty laws
b) Law of sea
c) International Criminal law
d) International Humanitarian law
2- Private International Law:
a) It addresses the question of in which jurisdiction may a case heard.
b) The law concerning with jurisdiction applied to the issues in a case.
3- Super national law or the law of Super national Organization:
It concerns with the regional agreements where the law of nation states are inapplicable.
Types of International Law:
1- Jus-gentium (Law of Nations)
2- Jus-inter gentes (Law among states)
Is International Law a true law?
There are two opinions of this question. One of them is to maintain that international law is no law the best thing about it is that its rules resembles the rules of law, it comprises only the rules of international morality. This school of thought Is lead by John Austin he believed that Law is the command of determinate human superiority
They give following reasons for rejecting the idea of international law being a law
1. International law is not the command of human superiority, there is no agency for international legislation
2. There is no organized force like police force to enforce international law
3. The very essence of law is the presence of an impartial third party which would interpret and enforce the law. In the case of international law such impartial arbitrator is absent. Though we have the international courts but the basis of jurisdiction of the court is only the consent of the state. All limits impose by sovereign state s on themselves are self impose limits and self imposed limits are no limits at all. The International Court of Justice cannot exercise jurisdiction if a state which is party to dispute have given its consent.
This group believes that international law is not merely a set of the rules of international morality it is rather a perfect legal system. According to Starke who is pioneer of this school who criticizes Austin’s view on the following basis
1. Law is not the command of human superiority, there are many communities in the world living under a system of law which has never been ratified by a legislative authority
2. Starke further points out that there was no international legislature in Austin’s time but in the modern time legislative body of international level have came into existence
3. Starke says that, major test of the law is its practicability. In practice all states refers to law in order to justify their actions. States referred to international law this signifies its importance
The body of rules & regulations which regularize the mutual conduct of states in international community, traditionally international community was mainly comprised of sovereign states only. But the main developments during a past century have changed the very composition of international community.
1. Many international organizations and institutions such as League of Nations, UNO, SAARC etc have emerged and equally become part of international Community
2. Individuals have also became a part of international community so far as their rights & duties are concern of international communities
As a result, international law is not applicable only on state’s mutual relations but it also is equally related to international organizations, their functioning and individuals.
Prof. Oppenhein defines law as
“Body of rules of human conduct with in a community, shall be enforced by external power”
According to this definition there are three essentials of law, a community, body of rules for human conduct and Consent of that community for the enforcement of these rules by the external power. Oppenhein believed that all the three essentials are found today in the respect of international law
Firstly, there exist a community of nations and all countries of the world are interdependent for all their needs.
Secondly there exist rules of conduct which have grown as a result of international agreements, law making treaties and generally agreed international customs
Thirdly, Governments of the states and public opinion agreed on the enforcement of international law, it means that consent is present.
Oppenhein admits that central external authority for the enforcement of international law is absent but there are two things which serve this purpose first is the pressure of public opinion and second is War
Purpose of International Law:
1. The purpose of international law include resolution of problems of a regional or global scope such as environmental pollution or global warming
2. Regulation of areas outside the control of any one nation such as Outer Space or the High Seas
3. Adoption of common rules for multi national activities such as air transport or postal service
4. Maintain peaceful international relations when possible and resolve international tensions peacefully when they develop
5. Prevent suffering during war and to improve the human conditions during peace time
Scope of International Law:
International law begins as a system of governing the relations of sovereign states. States have always been the primary legal entity affected by international law
As a global system has become more complex, however, international law has come to recognize and regulate international organizations, business, space law, non profit entities and individuals.
The emergence of international human rights law and more recently international law reflects the fact that individuals today are direct subjects of international law in some respects.
Difference between International Law, International Comity, Municipal Law and Private International Law:
International Law is distinct from International Comity which comprises legally non binding practice adopted by states for reasons of courtesy.
The study of international law or public international law is distinct from private international law because the later is concerned with the rules of municipal law of different countries where foreign elements are involved.
The rules of international law are rarely enforced by military means or even by economic sanctions the system is sustained by reciprocity or essence of enlightened self interest. States that breach international law suffer a decline in credibility.
Handicaps and Limitations of International law:
International law is an independent system of law existing out side the legal orders of particular state. It differs from domestic legal system in number of respects
1- Its resolution serves only as recommendation except in specific case and for certain purpose with in the UN system. Such as UN budget making, admitting new members to the UN, electing new judges for International Court of Justice etc
2- The rules of new international law are rarely enforced by military means or even by the use of economic sanctions
3- Enforcement of international law is often difficult because nations are sovereign and independent entities and put their own interests ahead of those of international community
4- There is no international police force or comprehensive system of law enforcement and there is also no supreme executive authority. The UN security council may sometime use force to comply states to adhere by their decisions but only in limited circumstances, moreover any such enforcement action can be Vetoed by any of the five council members
5- There is no standing UN military, the force involved must be assembled from member states on an ad-hoc basis
6- There is no system of course with comprehensive jurisdiction in international law. The ICJ jurisdiction is founded upon the consent of states involved
7- The mechanism of enforcement is young and not well developed, enforcement may be effectively achieved through the actions of individual states, UN agencies and International Courts
Sources of Modern International Law
Modern International Law stems from 4 main sources
Treaties are written agreement between two or more sovereign states. International organizations may also be given the capacity to make agreement either the sovereign states or other International organizations. Treaties are known many other names like agreements, conventions, protocols, pacts or covenants. As far as the parties intend the text to be binding, it is a treaty. Treaty may incorporate rules of customs or developed new law.
Each member state of an international organization such as UN is free to ratify or not to ratify a treaty. Until 20th century, treaties and conventions were bilateral. Such conventions play important part in the development of international legal system. For example congress of Vienna with its final act of 1815 reorganized Europe after the defeat of Napoleon and also contributed to the body of International law. The conference of Paris 1856 was convened to terminate the Crimean War. It also adopted the Declaration of Maritime Law. This declaration also modernizes the Rights of neutrals during Maritime War. In 1864 a conference convened in Geneva approved a convention for a proper treatment of wounded soldier and the protection of medical staff. 1899 conference adopted a convention for Pacific Settlement of International dispute which created the permanent court of arbitration in The Hague to settle dispute between states.
Customary International Law is unwritten and derives from the actual practices of nation overtime. To be accepted as Law the custom must be long standing, widespread and practice in uniform and consistent way among nation. One example of customary International Law is a nations right to use the high seas for fishing, navigation, over flight and submarines although treaties generally bind on those countries that ratify them. Customs may be deduced from rules and statement contains entities. These new customs may be binding on those states even on those states that did not sign or ratify the original treaty.
Some customary international law has been codified in recent years. For example the Vienna Convention on the law of treaties which was approved in 1969 and took effect in 1980 codifies the customary law that treaties between sovereign states are binding on the signatories and must be followed in good faith.
3- General Principles of International Law
The phrase “General principles of International Law” appeared in the statue of permanent court of the International justice established in 1921, three years after the end of WW-I (1914-1918). The court was directed to decide disputes on the basis of existing treaty law and customary International Law. Some of the diplomats and lawyers drafting the statue of the court feared, however that disputes might arrives over new international issues for which there would be no settled customs or applicable treaty. They decided and the nation votioarg agreed, at the third source of law “General Principles of law recognized by civilized nation”. In this way court would not have to refuse to settle a dispute because of the absence of International Law. The general principles that have been applied and its successor ICJ intro the “Clean hands doctrine” (It`s improper to accuse someone misconduct that be accuser has also engaged in), the principles that the individuals should not be a judge in their own disputes and the principles of res judicata. A case that has been decided cannot be directed.
4- International Courts and Organizations
Judicial decisions rendered by International courts are important elements in identifying and confirming International legal rules. The most important International courts are the UN ICJ and the International Criminal Court. The later prosecutes individuals for genocide, war crimes and others serious crimes of International concern. Resolution and decisions of the UN and other International organization now have a great impact on the views and practices of sovereign states sometime leading to rapid formation of International court. States have given a very few international organization, such as the EU, the power to enact directly binding measures.
In some instances the UN has organized conferences to discuss major International issues or through negotiate treaties without prior to proposal by the International Law Commission. The most important example was the 3rd UN Conference on the Law of the Sea, which terminated its works in 1982. Another example is 1992 conference on Environment Development held in Rio de Janerio (Brazil) and informally known as Earth Summit.
The landmark in the development in the International Law occurred in 1998 at a UN diplomatic conference in Rome when 120 countries adopted a treaty establishes worlds 1st permanent International Criminal Court. The court was formally established in 2002. It works independently of the UN.
Subjects of international Law:
Traditionally international law is defined as a system of law applicable to the relations between states only. This definition is not accepted by many authorities (experts of international law) according to them non-state entities and individuals also came within the preview of international law. The centre of the controversy is the position of individuals in international law, even in classical international law before the post war developments, slaves and pirates were also treated to be within the preview of international law.
Individuals as a subject of international law:
Amongst those who holds that individuals are the subjects of international law Prof. Kelsen and Westalk are the most prominent. The later suggests the duty and rights of states are the only the duty and rights of person who compose them. According to this view there is no distinction between state law and international law. These systems bind individuals in different way. Apart from this theoretical discussion there are number of instances where it can be shown that international law is concerned with individuals. Nuremburg (Germany) and Tokyo Trials of the criminals of WW2 were tried under international law. The trial commission observed “person could be guilty against the peace and security of mankind”, Genocide convention adopted by the UN General Assembly clearly provided that person’s community criminal acts should be punished “whether they are constitutional responsible rulers, public officials or private individuals”.
There are certain international statutes and declarations confer rights on individuals. For example;
1- UN Charter article no. 1
2- European convention for the protection of human rights and fundamental freedom
3- Permanent Court of International Justice’s ruling in Denzing Company’s Case
This rule that individual cannot approach international tribunals also have many exceptions, for example on following occasions individuals were allowed to present them self before tribunals,
a) Polish-German Convention 1922
b) Instituted under the treaty of Versailles
c) Treaty creating Coal & Steel community 1951
d) European Economic Community (EEC) 1957
e) European Atomic Energy Community (EAEC) 1957
f) UN administrative tribunals
Scope of International Law has widened over subjects other than states, including individuals and non-state entities. Following are the example;
1- International Institutions:
Modern international law set rules on several international institutions like UNO, ILO, WHO etc
2- International Criminal Law:
There are several conventions that prescribe punishments for individuals & states committing international offences like The Geneva Conventions regarding international drug trafficking 1936
3- Treaties concerning international minorities & individuals:
These treaties made it possible for individual to approach international tribunals e.g. Articles 297, 394 of the Treaty of Versailles.
4- Non-State Entities:
Up till near past territories not attained full status of a state like colonies and protectorates have been regulated by several law making conventions.
Who are a group of individuals and who do not constitute a state are granted certain rights.
Place of Individual in International Law:
Some of the provisions of international law under which rights have been conferred upon individuals and obligations have been impose upon them are following
Under international law pirates are treated as enemies of mankind, hence every state is entitled to apprehend and punish them
2- Harmful acts of individuals:
Under international law there are several provisions which provide that persons committing act harmful to humanity may be punished. International intellectual property rights law is one example. International law regarding terrorism and use of explosives is an other example
International law also regulates the conduct of foreigners. According to international law it is
the duty of each state to ensure same rights as its own citizens
4- War Criminals:
War criminals can be punished under international law, Nuremburg and Tokyo trials are the example
It is a crime under the international law, when the spies are apprehended they can be punished
6- Rights to compensate and damages:
Citizens have right to claim compensation for damages done by anyone for example the Article 297 of Treaty of Versailles provided that any individual could file suits against Germany for compensation for damages caused during WWI
7- Provisions of UN Charter:
The UN charter has also recognized the rights of individuals, the preamble of UN Charter says “We the people of UN”.
Besides this the UN adopted the Universal Declaration of Human Rights in 1948.the declaration mentioned in detail the fundamental rights & freedom of the individuals. In 1948 the General Assembly of UN adopted the Genocide Convention
8- Petition against one state:
The international Covenant of Human Rights 1966 and optional protocols confers some rights directly upon individuals. These have enabled the individuals to file petition even against their own state. As regarded the international personality of individuals Korovicz observes, inspite of all setbacks during the implementation of the concept of international personality of individual in the practice of international law. This idea holds with in itself favorable prospects for future.
These and other developments of recent years appear to show that the theory, that states are the exclusive subject of international law cannot be accepted
According to Starke:
He admits that the bulk of international law consisted of rules which binds states and it is only in a minority of cases that lawyer have to concern themselves with the individual and non state entity as a subject of international law
Relationship between International law & Municipal Law:
According to Kelsen:
He observes that national or municipal law regulates the behavior of individual within the boundaries of state and is concerned only with the domestic affairs of a state. On the other hand international law is primarily concerned with relation between other states, In other words its main concern is foreign affairs
There are many theories that explain the relationship between two bodies of law. Most important of these theories are being discussed in the following lines
1- Monistic Theory
Its maintain that the subjects of the two systems are essentially one, in as much as international law conducts the affair of the state and municipal law conducts the affair of individuals who without state have no separate entity. According to this view law is essentially a common binding upon the subjects which is one case state and in the other case individuals.
Dugit take a step further and holds that subjects of International Law are not state but directly the citizen because both the system have their origin in a “Higher Law” founded on the principles of right and wrong.
2- Dualist Theory
According to dualist theory the system of International Law and Municipal law are separate and self-contained because the rules and procedure of one do not apply on the other.
It is important to note that Kelson prefer to call it Pluralistic theory. Oppenheim observes that the two systems of International Law are separate bodies of legal norms, “emerging in part, from different sources comprising different subjects and having application to different objects.” Another difference is the element of sovereign. Municipal Law is sovereign over citizens while the international law applies to entities which are themselves sovereign.
Anzilotti differentiate international law from the municipal law on the basis that the former is based on the principle of Pacta-Sunt-Sarvanda which means that agreement between states are to be respected. It is not only principle of forceful implementation by the sovereign authority.
3- Transformation Theory
According to transformation theory, “It is transformation of the treaty into national legislations which alone validates its extension to individual. Extradition Act of England is one example. Critics of the theory say that the transformation of the treaties into municipal laws is not uniform in our countries. Furthermore some treaties are self-operating and don’t require transformation
4- Delegation Theory
According to this theory there is a delegation of right to every state to decide for itself when the provision of a treaty or convention are come into force and in what manner they are to be embody into municipal law. For example British judge Lord Dunedin observed “International Law so far as this court is concerned is the body of doctrine regarding the intervention rights and duties of state which have been adopted and make part of the law of Scotland.
Practices of state regarding application of law in municipal sphere:
The British practice draws a distinction between customary rules on international law and law laid down by treaties, so far as their cooperation in municipal sphere is concerned British Judge Blackstone observes in Europe in 1765 that law of nations “is here adopted in its full extent by the common law and it is hence is a part of the law”
Earlier in 1764 Lord Mansfield observes that the law of nations in its full extent is and forms part of the law of England, but in the later period a ruling of the Chief Justice Cock born caused the passing of the territorial water jurisdiction in 1878, which gave English courts jurisdiction over offences committed in England’s territorial waters, this act extended the authority of the British government to certain criminal acts not already covered by authority under international law.
To a certain extent treaties do not form part of the law of the England unless expressly asserted by the parliament, acts of executive of state e.g. Declaration of war cannot be questioned by the British Courts, although such acts may be contrary to the established practices of international law
Practice of USA:
The US constitution gives supreme importance to the treaties. Article 6 of the constitution provides;
“All treaties made, or shall be made under the authority of the US shall be the supreme law of the land”
• Many states treat customary rules of state lawas binding provided these rules are not in conflict with their municipal law
• Many states treat customary rules of law as binding even if these rules conflict with their municipal law
International law in the operation of municipal law:
International Law is the is the supreme in the sense that no state can plead a case before an international tribunal on the basis of international law
The rules of municipal law how ever can be invoked before an international tribunal in the following case
1- Denial of justice by municipal courts
2- Municipal law of the civilized nations is an establish source of international law
3- This is the duty of every state to pass necessary legislation to fulfill its international obligation
Concept of Opposability
The concept of opposability in international law implies two major things
1- When a domestic rule, institution or regime is in accordance with international law and valid under the constitutional law of state, the state can contest a claim of another state on the basis of this law
2- If such domestic rule, institution or regime is not in accordance with an international law it can never be pleaded to defeat the claim of other state, although the such claim of institution or regime may be valid in domestic sphere
States as a subject of International Law
Under the Montevideo Convention of 1933, the states have been defined as persons of international law having following qualifications
1- Permanent population
2- Defined Territory
4- A capacity to enter into relations with other states
States are of many kind specially mentionable are microstates, which is an entity exceptionally small in area
“Tuvalu” whose area is 25 sq. km and population is 10,000. “Vanuatu” another microstate whose area is 12000 sq km and its population is 25000. “Comoros” is a Muslim state whose area is 2200 sq km and its population is 100000.
Under the charter of UN Article 4, a state to be admitted as a member of UN should have ability to fulfill their obligation to the UN and to the international community. Therefore the admission of such micro state with their limited population and resources may not qualify for membership. These states are however provided some kind of access to the UN
1- Right of access to International Court of Justice
2- To participate in an appropriate UN regional economic commission
3- To participate in some of the specialized agencies
Fundamental rights and duties of state:
A group of theorists holds that states are required to fulfill certain obligation and are endowed with certain rights under natural law exactly in the same manner as the individuals are, this group is called Naturalists. Apart from naturalists there are other groups as well, who fix a universal standards of rights and duties of the states
Basic rights and duties of the states
1- Sovereignty and Independence
3- Right of territorial Jurisdiction
4- Right of self defense and self preservation
Duties and Obligations of the states
1- Duties of not resorting to war
2- Duty of carrying out treaty obligations
3- Duty not to perform act of sovereignty in the territory of other state
4- Duty to abstain and prevent agents and subjects from committing acts of derogation of territorial sovereignty of other states
5- Duty not to interfere in affairs of other state
Concept of sovereignty of states
According to Jean Bodin
“Supreme power of citizen and subject unrestricted by law”
This definition represents the classical old legislative view of state’s sovereignty. Today we define sovereignty as the power, the state possess within the limits laid down by international law. In the modern world following rights are associated with the state’s sovereignty
1- Exclusive power to control its own domestic affairs
2- exclusive power to admit and expel aliens
3- To claim privileges for its diplomats and envoys in other countries
4- To exercise jurisdiction over crime committed with in its territory
What is Intervention?
Hyde defines intervention as “dictatorial interference”. Therefore intervention under international law mean an act of state which
1- Is in opposition to will of the affected state.
2- Is performed in such a way as to impair the political independence of affected states.
Kinds of Intervention
1- Internal Intervention
Intervention of the state in the affair of another state in the case of dispute within the two factions of the state either in the favor of legitimate authority or an insurgent group is called internal intervention.
2- External Intervention
When two states or groups of state are at war, state which is not so far party to the dispute joins war in the favor of one state or group of state its action is called external intervention. For example Italy entered WWII on the side of Germany against Great Britain.
3- Punitive Intervention
A pacific blockade institutive against a state in retaliation for a gross breach of treaty is called Punitive Intervention.
4- Subversive Intervention
Propaganda or other activity by one state with intention of fomenting for its own purposes, revolt or civil strife in another state is called Subversive Intervention.
There are certain kinds of intervention which are legally permitted under UN Charter and other international protocols. These kinds are called permitted intervention. Legal intervention is permitted in following circumstances.
1- Intervention by a Guardian state in the affairs of a protectorate or dominion.
2- Collective intervention under UN Charter.
3- Intervention to protect the rights, interests and personal safety of citizens in a state.
4- Intervention by a state to protect the rights, interest and personal safety of its citizens abroad.
5- Intervention in self-defense if it`s necessary to meet the danger of all attack.
6- If a state has been unlawfully intervened, it can intervene to protect itself.
Intervention under UN Charter
Before the Spanish Civil War 1936-38, it was considered that if a revolution or civil war caused danger or threat to the safety of another state, the threatened state can intervened in the affairs of the state under civil war. India attack East Pakistan on the same plea.
But under UN Charter, this type of plea seems to be doubtful. For example, In 1956, Britain and France intervened in the Suez-Canal Zone on the ground that the conflict between Egypt and Israel would threaten their security and interest. This plea was not approved at international level and their intervention was considered to be a breach of UN Charter.
Limits to the doctrine of equality of state
It must be noted that while the states are legally equal, they are not, and cannot be politically equal. There are many factors that limits the equality of states, most important are the followings
1- Voting procedure
Under the command of League of Nation all states were granted equal rights to vote and decisions were made on principle of unanimity, under this system virtually every state had a Veto power. This principle proved to be impracticable and was an important cause of League’s failure. Keeping in view the past experience the framers of the UN Charter granted Veto power to the five politically most influenced states of the world. Other states (nearly 190 in numbers do not enjoy this privilege)
2- Diplomatic Protocol
Although theoretically all states have equal status yet the diplomatic representative of certain states are designated as ambassadors and they enjoy high diplomatic privileges than the representatives of smaller states who have a lower status of ministries.
3- Financial strength
Bigger and more affluent states contributed more funds to the UN and its agencies, naturally these states are in a position to exert more pressure on these agencies and through them on smaller and weaker states. Influence, USA exercises through IMF & World Bank is striking example. Same is the case with regional organizations
Neighborly Obligations of the states
As a rule the principle of the absolute independence (sovereignty) has been qualified many practical restrictions. In principle a state is absolutely independent but, it should not permit the use of its territory for the purposes injurious to the interests of other state. This principle was established in the “Corfu Channel Case” 1949. In this case the International Court of Justice held that the Albanian government be aware of the existence of mine fields in its territorial borders in the Corfu Channel was under obligation to notified and warn approaching British Naval Ship of danger, it was further held that as the Albanian government failed in its duty, it was liable to pay compensation to the British Government for damages caused by the explosion. The court has recorded the principle in the following words, every state is under the obligation;
“Not to allow knowingly its territory to be used for acts contrary to the rights of other states”
This principle was also adopted in the resolution passed by the UN General Assembly in 1947, the resolution condemned propaganda, provoking or encouraging threats to peace, breach of peace or act of aggression.
Associated with the principle of neighborly obligation is the concept of “Peaceful Co-existence”. This concept has been already laid down in the UN Charter. Many treaties concluded among states elaborate it further, E.g. Treaty of Tibet signed by India and the People Republic of China on April 24, 1954. Lays down the following five principles of Co-existence
1- Mutual respect for each other’s territorial sovereignty and integrity
2- Mutual non-aggression
3- Mutual non interference in each other’s affairs
4- Equality and mutual benefits
5- Peaceful Co-existence
Nuclear Non Proliferation
Weather all sovereign states have unlimited right to acquire nuclear proficiency and test nuclear devices, it is controversial question of international law. One opinion maintains that this is a state’s sovereign right to conduct nuclear experiments in the interest of the security and defense
The second opinion maintains that nuclear experiments may cause pollution of the atmosphere that may be hazardous for human health and life, so there should be ban on nuclear tests. Probably the solution may be provided by conceding such rights to states provided they undertake to give due warning and take reasonable care to prevent hazards.
Different Kinds of State
For the purpose of international law, we are not concerned with the study of states with respect to their system or forms of government. But there are certain cases where the nature of the state might be relevant to determine its status under international law. We shall study only these cases.
A confederation is a union of independent states bound together by an international agreement. A confederation is not a state under international law. The member states alone are treated as member of international community.
A federal state is different from a confederation as its central authority exercises jurisdiction over the territory of federating units directly and simultaneously along with the government of the federating units. The confederation has no such direct jurisdiction. Members of confederal states have a right to secede but federating unit under federal states doesn’t enjoy this right. For the purpose of international law it`s the federal state which is a real state. The federating units have no international status.
3- Vassal and Protectorate State
A vassal state is one which is completely under the suzerainty of another state. The case of protectorate arises when the state put itself under the control of a stronger state under the treaty. The affair managed by the protector states are determined by the treaty conditions although not completely independent. A vassal state is still treated as a state under international law.
4- Condominium State
A condominium comes into being when two or more power exercises joint authority over a particular territory. An example is New Hebrides. In this case of condominium, controlling states exercise authority in different matter. The state itself is not divided into two parts.
5- Commonwealth of Nations
There is only one example of a commonwealth of nations which is British Commonwealth. The British Commonwealth is neither a federation nor a super state. It`s based on the following principles
1. It is an association of free and equal independent states.
2. The commonwealth does not exercise direct jurisdiction over the territory of its member states.
3. All members are sovereign in every sense.
4. All member states are free to form their foreign policy independently.
5. All states enter into treaties independently.
6. A High commissioner represents one commonwealth state into another commonwealth states.
7. All commonwealth states are members of the United Nation.
The Charter of UN as introduce a new system of trusteeship. The system was managed by a UN Agency the Trusteeship Council. The system was applicable to the following categories of states.
1. Former mandated territory.
2. Territory taken from enemy states as a result of WW-II.
3. Territories voluntarily placed under the trusteeship by the states responsible by their administration.
The Charter provides that the trust territories are to be supervised & administered under the trusteeship agreement conducted by the UN. Its aim has been laid down in the following words.
“Progressive development towards self-government or independence”
Rights of Trust Territory
Under the UN Charter the Trust Territory has following rights.
1. The administrating countries cannot claim title of sovereignty over the states.
2. The UN has also does not claim sovereignty over the states.
3. When a dispute arises among the administrating state and the trust state it will be referred to the international court of jurisdiction.