Unit-5. Public International Law -Shorts Nots -

Unit-5

1. Weakness of International Law

International Law governs relations between states and other international actors, but it faces several weaknesses due to its decentralized nature and reliance on state consent.

Lack of Centralized Authority:

International Law lacks a global sovereign to legislate, enforce, or adjudicate rules, unlike domestic legal systems. There is no world government, legislature, or police force to ensure compliance.
Example: The UN Security Council can impose sanctions or authorize force (e.g., against Iraq in 1991), but its effectiveness is limited by veto power (e.g., Russia’s veto on Syria resolutions).

Voluntary Compliance:

Compliance with International Law depends on state consent, as states are sovereign and equal (Article 2(1), UN Charter). States may ignore obligations if they conflict with national interests.
Example: The US withdrew from the Paris Agreement in 2017 (rejoined in 2021), citing economic concerns, showing that states prioritize self-interest over legal obligations.

Weak Enforcement Mechanisms:

Enforcement relies on self-help (e.g., sanctions, reprisals) or collective action (e.g., UN sanctions), which are often politically motivated or ineffective.
Example: The International Court of Justice (ICJ) ruled against the US in Nicaragua v. United States (1986) for supporting the Contras, but the US ignored the judgment, highlighting enforcement challenges.

Ambiguity in Sources:

The identification of customary law requires consistent state practice and opinio juris, which can be ambiguous and contested (e.g., North Sea Continental Shelf Case, 1969).
Example: The legal status of preemptive self-defense remains unclear, as seen in debates over the US invasion of Iraq (2003).

Political Influence and Power Imbalance:

Powerful states often evade accountability due to their influence. For instance, permanent members of the Security Council (P5) are rarely sanctioned for violations (e.g., the US invasion of Iraq, 2003; Russia’s annexation of Crimea, 2014).
Weaker states, however, face disproportionate consequences, such as sanctions (e.g., North Korea).

Fragmentation and Conflicts:

The proliferation of treaties and institutions has led to fragmentation, with overlapping or conflicting norms (e.g., trade rules under the WTO vs. environmental obligations under the Paris Agreement).
Example: The tension between the right to self-determination (Article 1, ICCPR) and territorial integrity (Article 2(4), UN Charter) complicates secession movements like Catalonia.

Conclusion: The weaknesses of International Law—lack of centralized authority, voluntary compliance, weak enforcement, ambiguity, political influence, and fragmentation—limit its effectiveness. However, its role in fostering cooperation and providing a framework for dispute resolution (e.g., through the ICJ) remains significant, despite these challenges.

2. Position of Individual in International Law

Historically, individuals were not considered subjects of International Law, which focused on states. However, the position of individuals has evolved significantly, particularly in the 20th and 21st centuries.

Traditional View:

In classical International Law, only states were subjects with rights and duties. Individuals were objects, represented by their states (e.g., for diplomatic protection, as in the Mavrommatis Palestine Concessions Case, 1924).
Example: If a state injured a foreign national, the individual’s state could bring a claim on their behalf, but the individual had no direct standing.

Modern Developments:

Human Rights Law: The Universal Declaration of Human Rights (1948) and treaties like the ICCPR (1966) and ICESCR (1966) grant individuals rights directly enforceable against states.
- Example: The European Court of Human Rights (ECHR) allows individuals to file complaints against states (e.g., Golder v. UK, 1975, on access to courts).
International Criminal Law: Individuals can be held accountable for international crimes (e.g., genocide, war crimes).
- Nuremberg Trials (1945–1946): Established that individuals, not just states, are liable for international crimes, rejecting the defense of “following orders.”
- International Criminal Court (ICC): Prosecutes individuals for war crimes, genocide, and crimes against humanity (e.g., Thomas Lubanga’s conviction in 2012 for child soldier recruitment).
Diplomatic Protection: Individuals still rely on their states for diplomatic protection, but they now have direct rights in specific contexts (e.g., LaGrand Case, 2001, where the ICJ recognized individuals’ rights to consular access under the Vienna Convention on Consular Relations, 1963).

Challenges:

Limited Standing: Individuals can only bring claims if states have accepted mechanisms like the Optional Protocol to the ICCPR (e.g., India has not ratified it).
State-Centric System: International Law remains primarily state-centric, and individuals often depend on states to enforce their rights (e.g., stateless persons face significant barriers).

Conclusion: The position of individuals in International Law has evolved from objects to subjects with rights (human rights) and duties (international criminal law). However, their role remains limited by the state-centric nature of the system, highlighting the need for stronger mechanisms to empower individuals directly.

3. Extradition

Extradition is the process by which one state surrenders a person accused or convicted of a crime to another state for trial or punishment. It is a key mechanism for international cooperation in criminal justice.

Definition and Legal Basis:

Extradition is governed by bilateral or multilateral treaties (e.g., the European Convention on Extradition, 1957) and customary law.
Principle of Double Criminality: The act must be a crime in both the requesting and requested states.
Example: India extradited Abu Salem to Portugal in 2005 under a bilateral treaty, subject to conditions on the death penalty.

Process:

The requesting state submits a formal extradition request, supported by evidence of the crime and a warrant.
The requested state reviews the request, ensuring compliance with treaty obligations and domestic laws (e.g., India’s Extradition Act, 1962).
If approved, the individual is surrendered, often after judicial review to ensure due process.

Conditions and Exceptions:

Political Offenses: Extradition is typically denied for political crimes (e.g., India refused to extradite David Headley to the US for his role in the 2008 Mumbai attacks, citing political considerations).
Human Rights Concerns: Extradition may be denied if the individual faces torture or unfair trial in the requesting state (Article 3, UN Convention Against Torture, 1984).
Non-Extradition of Nationals: Some states (e.g., France) do not extradite their nationals, preferring to prosecute them domestically (aut dedere aut judicare principle).
Example: The UK denied Spain’s extradition request for Augusto Pinochet in 1999 due to health reasons, though the case established that former heads of state are not immune from extradition for international crimes.

Challenges:

Differing legal systems and definitions of crimes complicate extradition (e.g., the US and UK disagreed on evidence standards in the Julian Assange case).
Political tensions can hinder cooperation (e.g., India-Pakistan extradition requests are often stalled).

Conclusion: Extradition is a vital tool for combating transnational crime, but its effectiveness depends on treaties, mutual trust, and respect for human rights. Exceptions for political offenses and human rights concerns ensure fairness, though political considerations often complicate the process.

4. State Succession

State succession occurs when one state replaces another in the responsibility for the international relations of a territory, often due to territorial changes, independence, or dissolution.

Types of State Succession:

Dissolution: A state breaks into multiple states (e.g., Yugoslavia’s dissolution into Serbia, Croatia, etc., in the 1990s).
Secession: A part of a state forms a new state (e.g., South Sudan from Sudan, 2011).
Merger: Two states combine into one (e.g., the unification of Germany, 1990).
Cession: Territory is transferred from one state to another (e.g., Hong Kong from the UK to China, 1997).

Legal Framework:

Vienna Convention on Succession of States in Respect of Treaties (1978): Governs the succession of treaties (not widely ratified).
Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts (1983): Addresses property, archives, and debts (not in force).

Effects on Treaties:

Clean Slate Doctrine: New states (e.g., post-colonial states) may start afresh, not inheriting the predecessor’s treaties, except for boundary treaties (Article 11, 1978 Convention).
Continuity Doctrine: In cases of merger or cession, the successor state often inherits treaties (e.g., Russia inherited the Soviet Union’s UN seat).
Example: After India’s independence in 1947, it retained most British-era treaties, except those incompatible with its sovereignty.

Effects on Property and Debts:

Property and debts are divided equitably (1983 Convention). For example, after Czechoslovakia’s dissolution (1993), the Czech Republic and Slovakia divided assets based on population and territory.
Example: The Badinter Commission (1991) guided the division of Yugoslavia’s assets among successor states.

Challenges:

Disputes over treaty succession (e.g., Serbia claimed to be the sole successor to Yugoslavia, rejected by other successor states).
Unequal division of debts can lead to conflict (e.g., Sudan-South Sudan disputes over oil revenues post-2011).

Conclusion: State succession involves complex legal and political issues, with rules on treaties, property, and debts aiming to ensure stability. While the Vienna Conventions provide a framework, state practice often varies, leading to disputes that require negotiation or adjudication.

5. Belligerent Occupation

Belligerent occupation occurs when a state exercises effective control over the territory of another state during or after an armed conflict, without the consent of the sovereign state.

Legal Framework:

Hague Regulations (1907), Article 43: The occupant must restore public order and safety while respecting the laws of the occupied territory.
Geneva Convention IV (1949), Article 64: Protects civilians, prohibiting the occupant from altering the legal system except for security needs.
Customary Law: The occupant does not acquire sovereignty over the territory but exercises temporary administrative control.

Conditions for Belligerent Occupation:

Effective control by the occupying power (e.g., military presence, administration).
Lack of consent from the sovereign state.
Temporary nature, pending a peace settlement.

Examples:

Israel’s Occupation of Palestinian Territories (1967–present): Israel’s control over the West Bank and Gaza is considered belligerent occupation, though Israel disputes this, claiming historical rights. The ICJ’s Advisory Opinion (2004) on the Separation Wall held that Israel’s actions violated international humanitarian law.
Germany’s Occupation of France (1940–1944): Nazi Germany occupied parts of France, subject to the Hague and Geneva rules.

Obligations of the Occupying Power:

Ensure public order and safety (Hague Regulations).
Protect civilians from violence, forced labor, and collective punishment (Geneva IV).
Prohibit settlement of the occupant’s population in occupied territory (Article 49, Geneva IV), violated by Israel’s settlements in the West Bank.

Challenges:

Prolonged occupations (e.g., Palestine) blur the line between temporary control and annexation, violating International Law.
Occupying powers often prioritize security over humanitarian obligations (e.g., Israel’s restrictions on Gaza).

Conclusion: Belligerent occupation is governed by the Hague and Geneva Conventions, imposing obligations to protect civilians and maintain order. However, violations, prolonged occupations, and disputes over sovereignty (e.g., Palestine) highlight the challenges of enforcement in practice.

6. Contraband

Contraband refers to goods prohibited during armed conflict, typically because they can be used by a belligerent to sustain its war effort.

Definition and Legal Basis:

Contraband includes goods like weapons, ammunition, and military supplies (absolute contraband) or goods with dual civilian-military use, like fuel or food (conditional contraband), if destined for the enemy’s military.
Governed by customary law and historical treaties like the Declaration of London (1909), though not in force.

Rules on Contraband:

Neutral states must not supply contraband to belligerents, as it violates neutrality.
Belligerents can seize contraband found on neutral ships through the right of visit and search on the high seas.
Example: During World War I, the UK seized German-bound goods (e.g., cotton, rubber) on neutral ships, declaring them contraband.

Modern Relevance:

The concept is less relevant today due to the UN Charter’s prohibition on war (Article 2(4)), but it applies in modern conflicts.
Example: During the Iraq War (2003–2011), the US intercepted shipments of arms to insurgents, treating them as contraband.

Challenges:

Determining what constitutes conditional contraband is contentious (e.g., food may be seized if intended for military use, but this can harm civilians).
Neutral states often protest seizures, as seen in historical disputes like the US-UK tensions over contraband during the American Civil War.

Conclusion: Contraband rules aim to restrict belligerents’ access to war materials while respecting neutral rights. However, their application in modern conflicts is limited by the UN Charter and the humanitarian impact on civilians.

7. Human Rights

Human rights are universal, inalienable rights inherent to all individuals, grounded in the principle of human dignity. They have become a central focus of International Law.

Evolution:

UDHR (1948): The Universal Declaration of Human Rights established a global standard, proclaiming rights like life, liberty, and education.
ICCPR and ICESCR (1966): These treaties legally bind states to protect civil, political, economic, social, and cultural rights.
Regional Frameworks: The European Convention on Human Rights (1950) and African Charter on Human and Peoples’ Rights (1981) complement global norms.

Key Rights:

Right to life (Article 6, ICCPR), freedom from torture (Article 7, ICCPR), right to education (Article 13, ICESCR), and right to self-determination (Article 1, ICCPR/ICESCR).

Enforcement Mechanisms:

UN Human Rights Council: Investigates violations through special rapporteurs and Universal Periodic Review (UPR).
Treaty Bodies: The Human Rights Committee (ICCPR) and Committee on Economic, Social and Cultural Rights (ICESCR) monitor compliance.
Example: The HRC’s ruling in Toonen v. Australia (1994) decriminalized homosexuality, advancing the right to privacy.

Challenges:

State sovereignty often hinders enforcement (e.g., China’s rejection of criticism over Xinjiang).
Cultural relativism debates challenge universality (e.g., differing views on women’s rights in some states).

Conclusion: Human rights are a cornerstone of modern International Law, with treaties and mechanisms promoting their protection. However, enforcement remains a challenge due to sovereignty and cultural differences.

8. International Law

International Law is the body of rules governing relations between states, international organizations, and, increasingly, individuals and non-state actors.

Definition:

Oppenheim’s Definition: “International Law is the body of rules which are legally binding on states in their intercourse with each other.”
It includes public International Law (state-to-state relations) and private International Law (conflicts of law between individuals across jurisdictions).

Sources (Article 38, ICJ Statute):

Treaties (e.g., UN Charter).
Customary law (e.g., diplomatic immunity).
General principles of law (e.g., good faith).
Judicial decisions and scholarly writings (subsidiary sources).

Scope:

Covers areas like human rights, law of the sea, international trade (WTO), and environmental law (Paris Agreement).
Example: The ICJ’s ruling in Pulp Mills Case (2010) (Argentina v. Uruguay) addressed environmental obligations under customary law.

Challenges:

Weak enforcement, as discussed earlier.
Evolving to address new issues like cyber warfare and climate change.

Conclusion: International Law provides a framework for global order, but its decentralized nature and enforcement challenges limit its effectiveness. Its scope continues to expand to meet modern challenges.

9. De Facto Recognition

De facto recognition refers to the provisional acknowledgment of a state or government as a practical reality, without conferring full legal status.

Definition:

De facto recognition is granted when an entity exercises effective control over a territory but lacks full legitimacy or stability for de jure recognition.
It is often temporary and does not imply full diplomatic relations.

Examples:

The UK granted de facto recognition to the Soviet Union in 1921, before de jure recognition in 1924, due to uncertainty about its stability.
Taiwan is de facto recognized by many states (e.g., through trade offices), though most grant de jure recognition to China.

Implications:

Limited legal consequences: De facto recognition allows practical engagement (e.g., trade) but does not confer full rights (e.g., UN membership).
Can be withdrawn if the entity loses control (e.g., the Taliban’s de facto recognition by some states post-2021).

Comparison with De Jure Recognition:

De jure recognition is formal and permanent, conferring full legal status (e.g., India’s de jure recognition of Bangladesh, 1971).

Conclusion: De facto recognition is a pragmatic tool for engaging with entities that exercise effective control but lack full legitimacy. It allows flexibility in international relations but offers limited legal benefits compared to de jure recognition.

10. S.S. Lotus Case (1927)

The S.S. Lotus Case (France v. Turkey, 1927) is a landmark decision by the Permanent Court of International Justice (PCIJ), addressing jurisdiction in international law.

Facts:

A collision occurred on the high seas between the French ship Lotus and the Turkish ship Boz-Kourt, resulting in the deaths of eight Turkish sailors.
The Lotus docked in Turkey, where Turkish authorities arrested the French officer on watch, Lieutenant Demons, charging him with manslaughter.
France protested, arguing that Turkey lacked jurisdiction over a French national for an act on the high seas.

Issue:

Whether Turkey had jurisdiction to prosecute Demons for an incident on the high seas involving a French national.

Decision (PCIJ):

The PCIJ ruled in favor of Turkey (7-6 vote), establishing the Lotus Principle:
- States have the right to exercise jurisdiction unless International Law explicitly prohibits it. There is no rule prohibiting Turkey from prosecuting Demons.
- The principle of the “flag state” (France’s jurisdiction over its ship) does not exclude the jurisdiction of the state of the victim (Turkey) under the effects doctrine (the effects of the crime were felt on the Turkish ship).
Reasoning: The collision had effects on Turkish nationals, giving Turkey a legitimate interest to prosecute.

Significance:

Lotus Principle: States have broad jurisdictional freedom unless restricted by International Law, reflecting the permissive nature of International Law at the time.
Concurrent Jurisdiction: The case recognized that multiple states can have jurisdiction over the same act (e.g., flag state and victim state).
Modern Relevance: The Lotus principle has been criticized as outdated in light of modern treaties (e.g., UNCLOS, 1982) that specify jurisdictional rules on the high seas. However, it remains a foundational case for understanding jurisdiction.

Conclusion: The S.S. Lotus Case established the principle that states can exercise jurisdiction unless prohibited by International Law, affirming Turkey’s right to prosecute a French national. While influential, its permissive approach has been tempered by modern legal developments.

11. Blockade

A blockade is a belligerent act to prevent access to an enemy’s ports or coasts, typically during armed conflict, to disrupt its supply lines.

Definition and Types:

Naval Blockade: Involves warships blocking enemy ports (e.g., the Union blockade of Confederate ports during the US Civil War, 1861–1865).
Pacific Blockade: A peacetime blockade to exert pressure, historically used but now controversial (e.g., the 1902–1903 blockade of Venezuela by Britain, Germany, and Italy over debts).

Legal Framework:

Declaration of Paris (1856): A blockade must be effective, meaning it must be maintained by sufficient force to prevent access.
UN Charter (Article 2(4)): Prohibits the use of force, making blockades illegal unless authorized by the UN Security Council (Article 42) or in self-defense (Article 51).

Examples:

Gaza Blockade (2007–present): Israel’s blockade of Gaza to prevent arms smuggling has been criticized as a violation of humanitarian law, as it restricts civilian access to essentials (e.g., food, medicine), violating Article 33, Geneva IV (prohibition of collective punishment).
Cuban Missile Crisis (1962): The US imposed a naval “quarantine” (a form of blockade) on Cuba to prevent Soviet missile deliveries, justified as self-defense.

Challenges:

Blockades often harm civilians, raising humanitarian concerns (e.g., the Gaza blockade’s impact on healthcare).
Their legality is contested in peacetime, as pacific blockades may violate the prohibition on the use of force.

Conclusion: Blockades are a traditional tool of warfare but are now constrained by the UN Charter. While effective in cutting off enemy supplies, their humanitarian impact and legal status in peacetime remain contentious.

12. Asylum

Asylum refers to the protection granted by a state to a foreign national fleeing persecution or danger in their home country.

Types of Asylum:

Territorial Asylum: Granted within the territory of the asylum state (e.g., Canada granting asylum to Syrian refugees since 2015).
Diplomatic Asylum: Granted in a state’s embassy or consulate, though not widely recognized except in Latin America under the Caracas Convention (1954).
- Example: Julian Assange was granted diplomatic asylum by Ecuador in its London embassy (2012–2019) to avoid extradition.

Legal Framework:

UDHR (1948), Article 14: Everyone has the right to seek and enjoy asylum from persecution, though it does not guarantee the right to be granted asylum.
1951 Refugee Convention: Defines a refugee as someone with a well-founded fear of persecution and obliges states not to return them (non-refoulement, Article 33).
Customary Law: Non-refoulement is a customary norm, binding even on non-signatories.

Conditions for Granting Asylum:

The individual must face persecution based on race, religion, nationality, political opinion, or membership in a particular social group.
States have discretion to grant asylum but must adhere to non-refoulement.

Examples:

Edward Snowden (2013): Snowden sought asylum in Russia after leaking NSA documents, as the US sought his extradition.
Rohingya Refugees: India has provided asylum to some Rohingya fleeing Myanmar, though it is not a signatory to the 1951 Convention.

Challenges:

States balance humanitarian obligations with security concerns (e.g., fears of terrorism).
Diplomatic asylum is controversial outside Latin America (e.g., the ICJ in the Asylum Case, 1950 (Colombia v. Peru) ruled that diplomatic asylum is not a universal right).

Conclusion: Asylum is a critical mechanism for protecting individuals from persecution, supported by the UDHR and 1951 Refugee Convention. However, its application varies due to state discretion, security concerns, and the limited recognition of diplomatic asylum.

1. Double Veto

The double veto refers to a procedural mechanism in the United Nations Security Council (UNSC) where a permanent member can use its veto power twice during the decision-making process, effectively blocking both procedural and substantive matters.

Context in the UNSC:

The UNSC consists of 15 members: 5 permanent (P5—US, Russia, China, UK, France) and 10 non-permanent.
Under Article 27(3) of the UN Charter, substantive decisions require the affirmative votes of 9 members, including the concurrence of all P5 members (i.e., no veto).

Mechanism of Double Veto:

The double veto arises in the context of determining whether a matter is procedural or substantive:
- First Veto: A P5 member can veto a resolution to classify an issue as procedural (which requires only 9 votes and is not subject to veto).
- Second Veto: If the issue is deemed substantive, the same P5 member can veto the substantive resolution itself.
This allows a P5 member to block a resolution by first ensuring it is treated as substantive (subject to veto) and then vetoing the resolution.

Historical Example:

1946 Soviet Veto: During the early years of the UN, the Soviet Union used the double veto in debates over the Spanish Question (Franco’s regime). The USSR vetoed a motion to treat the issue as procedural and then vetoed the substantive resolution, preventing UN action.
Cold War Era: The double veto was frequently used by the US and USSR to block actions on issues like the Korean War and Berlin Crisis, reflecting geopolitical rivalries.

Criticism and Reform:

The double veto amplifies the power of P5 members, undermining the UNSC’s effectiveness and fairness.
Reform proposals, such as those by the G4 nations (India, Brazil, Germany, Japan), advocate limiting veto use, but P5 resistance has stalled progress.

Conclusion: The double veto enhances the P5’s control over UNSC decisions, allowing them to block both procedural and substantive matters. While it reflects the geopolitical realities of 1945, it is widely criticized for obstructing UN action on critical issues.

2. Recognition

Recognition in International Law refers to the act by which a state acknowledges the existence of another state, government, or belligerent entity, granting it certain rights and duties under International Law.

Types of Recognition:

Recognition of States: Acknowledging a new state as a subject of International Law (e.g., India’s recognition of Bangladesh in 1971).
Recognition of Governments: Acknowledging a new government as the legitimate authority of a state (e.g., recognition of the Taliban government in Afghanistan post-2021 by some states).
Recognition of Belligerency: Recognizing a non-state group as a belligerent in a civil war, granting it limited international rights (e.g., Confederate States during the US Civil War).

Forms of Recognition:

De Facto Recognition: Provisional acknowledgment of effective control, often temporary (e.g., UK’s de facto recognition of the Soviet Union in 1921).
De Jure Recognition: Formal, legal recognition, conferring full diplomatic status (e.g., US de jure recognition of Israel in 1948).

Legal Theories:

Constitutive Theory: Recognition creates statehood (e.g., non-recognition of the Turkish Republic of Northern Cyprus limits its status).
Declaratory Theory: Recognition merely acknowledges existing statehood (e.g., South Sudan’s statehood in 2011 was a fact, recognized later).

Significance:

Recognition enables diplomatic relations, treaty-making, and participation in international organizations (e.g., UN membership).

Conclusion: Recognition is a critical act in International Law, determining an entity’s legal status and ability to engage in international relations. The declaratory theory is more widely accepted today, but recognition remains a political tool influenced by state interests.

3. Effects of War

War, whether international or non-international, has profound legal effects on states, individuals, and international relations under International Law.

Legal Effects on States:

Suspension of Diplomatic Relations: War typically severs diplomatic ties between belligerents (e.g., India-Pakistan during the 1971 war).
Termination or Suspension of Treaties: Non-political treaties (e.g., trade agreements) are often suspended, while political treaties (e.g., alliances) may be terminated (e.g., Article 62, Vienna Convention on the Law of Treaties, 1969).
Neutrality Obligations: Neutral states must refrain from aiding belligerents (e.g., Switzerland’s neutrality during World War II).

Effects on Individuals:

Enemy Character: Nationals of belligerent states may be classified as enemy aliens, subject to restrictions (e.g., internment of Japanese-Americans in the US during WWII).
Property Seizure: Enemy property may be confiscated (e.g., German assets seized by Allies post-WWII).
Combatant Status: Lawful combatants (e.g., soldiers) have rights under the Geneva Conventions (1949), while unlawful combatants may face prosecution (e.g., Guantanamo Bay detainees).

Effects on International Law:

Application of Laws of War: The Hague Conventions (1907) and Geneva Conventions govern conduct during war, including treatment of prisoners and civilians.
War Crimes Accountability: Violations (e.g., genocide, targeting civilians) lead to prosecution (e.g., ICTY trials for Yugoslav wars).
Post-War Obligations: Peace treaties (e.g., Treaty of Versailles, 1919) impose reparations, territorial changes, or disarmament.

Example:

The Iraq War (2003–2011) suspended Iraq-US diplomatic relations, led to the seizure of Iraqi assets, and triggered international legal debates over war crimes (e.g., Abu Ghraib abuses).

Conclusion: War disrupts legal relations, imposing obligations under the laws of war while affecting states, individuals, and treaties. International Law seeks to mitigate its effects through humanitarian norms, though enforcement remains challenging.

4. Theories of Relationship Between International Law and Municipal Law

The relationship between International Law (rules governing states) and Municipal Law (domestic law) is a key issue in legal theory, determining how international obligations are implemented domestically.

Monist Theory:

International Law and Municipal Law are part of a single legal system, with International Law being superior.
Proponent: Hans Kelsen argued that International Law is the grundnorm (basic norm) from which Municipal Law derives validity.
Application: In monist states like the Netherlands, treaties are directly applicable if self-executing (e.g., ECHR rulings in Dutch courts).
Criticism: Ignores state sovereignty, as states often prioritize domestic law.

Dualist Theory:

International Law and Municipal Law are separate systems. International Law must be incorporated into Municipal Law to be enforceable.
Proponents: Heinrich Triepel and Dionisio Anzilotti emphasized the distinct nature of the two systems.
Application: In dualist states like India, treaties require domestic legislation (Article 253, Indian Constitution). For example, India enacted the Protection of Human Rights Act, 1993, to implement ICCPR obligations.
Criticism: Can delay or prevent implementation of international norms.

Coordination Theory (Harmonization):

International Law and Municipal Law operate in separate spheres but should be harmonized to avoid conflicts.
Application: Courts interpret domestic law in light of international obligations (e.g., India’s Supreme Court in Vishaka v. State of Rajasthan, 1997, used CEDAW to formulate sexual harassment guidelines).
Criticism: Lacks clarity on resolving direct conflicts.

Specific Adoption Theory:

International Law becomes part of Municipal Law only when specifically adopted through legislation or judicial decisions.
Application: In the UK, customary law is part of common law unless it conflicts with statutes (e.g., Trendtex Trading Corp v. Central Bank of Nigeria, 1977).

Conclusion: The dualist theory dominates state practice (e.g., India, UK), requiring incorporation of International Law, but the coordination theory is increasingly relevant, as courts harmonize domestic law with international norms. The choice of theory reflects a state’s legal tradition and approach to sovereignty.

5. Sanctions of International Law

Sanctions in International Law refer to coercive measures imposed by states or international organizations to compel compliance with legal obligations or address threats to peace.

Types of Sanctions:

Economic Sanctions: Trade embargoes, asset freezes, or financial restrictions (e.g., UN sanctions on Iran, 2006–2015, over its nuclear program).
Diplomatic Sanctions: Expulsion of diplomats or suspension of diplomatic ties (e.g., US expulsion of Russian diplomats in 2018 over the Skripal poisoning).
Military Sanctions: Use of force authorized by the UNSC (e.g., 1991 Gulf War against Iraq).

Legal Basis:

UN Charter, Chapter VII: The UNSC can impose sanctions under Article 41 (non-military) or Article 42 (military) to address threats to peace.
Customary Law: States can impose unilateral sanctions as countermeasures if injured by a wrongful act (ILC Articles on State Responsibility, 2001).

Examples:

North Korea: UNSC sanctions since 2006 for nuclear tests include trade bans and asset freezes, but their effectiveness is limited by evasion (e.g., through China).
Venezuela: US unilateral sanctions since 2019 target the Maduro regime, restricting oil exports, but have exacerbated civilian suffering.

Challenges:

Humanitarian Impact: Sanctions often harm civilians (e.g., Iraq sanctions in the 1990s led to child mortality spikes).
Effectiveness: Sanctions may fail if not universally enforced (e.g., Russia’s continued trade with North Korea).
Legality of Unilateral Sanctions: Unilateral sanctions are controversial, as they may violate the principle of non-intervention (e.g., Iran challenges US sanctions as unlawful).

Conclusion: Sanctions are a key enforcement tool in International Law, but their humanitarian impact, limited effectiveness, and legal controversies highlight the need for targeted measures and multilateral cooperation.

6. Arbitration

Arbitration is a peaceful method of dispute settlement where parties agree to submit their dispute to an impartial tribunal, whose decision (award) is legally binding.

Definition and Legal Basis:

Governed by customary law and treaties like the Hague Convention for the Pacific Settlement of International Disputes (1899) and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958).
Arbitration requires mutual consent, often through a treaty or arbitration clause.

Process:

Parties select arbitrators (e.g., a panel of three: one chosen by each party, and a neutral third).
They define the scope of the dispute and applicable law (e.g., International Law, equity).
The tribunal hears arguments, examines evidence, and issues a binding award.

Examples:

Alabama Claims Arbitration (1872): The US and UK resolved disputes over British support for Confederate ships during the US Civil War, with the UK paying $15.5 million in damages.
South China Sea Arbitration (2016): The Philippines challenged China’s claims under UNCLOS, and the tribunal ruled in favor of the Philippines, though China rejected the award.

Advantages:

Binding outcome ensures finality.
Flexibility in procedure and arbitrator selection.
Neutrality of the tribunal enhances fairness.

Challenges:

Requires consent, limiting its use in contentious disputes.
Enforcement depends on state compliance (e.g., China’s non-compliance with the South China Sea ruling).

Conclusion: Arbitration is an effective method for peacefully resolving disputes, offering a binding and neutral process. However, its success depends on mutual consent and state willingness to comply with awards.

7. De Jure Recognition

De jure recognition is the formal, legal acknowledgment of a state or government as a legitimate entity under International Law, conferring full diplomatic status.

Definition:

De jure recognition implies that the recognizing state accepts the recognized entity as a permanent, legitimate member of the international community.
It is often accompanied by the establishment of diplomatic relations and exchange of ambassadors.

Examples:

The US granted de jure recognition to Israel in 1948, shortly after its declaration of independence.
India granted de jure recognition to Bangladesh in December 1971, during its war of independence from Pakistan.

Implications:

Confers full legal rights, such as treaty-making, UN membership, and diplomatic immunity.
Indicates a commitment to permanent relations, unlike de facto recognition, which is provisional.

Comparison with De Facto Recognition:

De facto recognition is temporary and acknowledges effective control without full legitimacy (e.g., UK’s de facto recognition of the Soviet Union in 1921, followed by de jure recognition in 1924).

Conclusion: De jure recognition formalizes an entity’s status as a state or government, enabling full participation in international relations. It reflects a legal and political commitment, distinguishing it from the provisional nature of de facto recognition.

8. Enemy Character

Enemy character refers to the legal status of persons, property, or entities associated with a belligerent state during an armed conflict, subjecting them to specific restrictions under International Law.

Definition:

Enemy character is determined by nationality, domicile, or conduct during war, affecting rights and obligations.
Governed by customary law and the laws of war (e.g., Hague Conventions, 1907).

Categories:

Enemy Nationals: Individuals with the nationality of a belligerent state (e.g., German nationals in the UK during WWII were treated as enemy aliens).
Domicile in Enemy Territory: Neutral nationals residing in enemy territory may acquire enemy character (e.g., a British citizen living in Nazi Germany during WWII).
Enemy Property: Property owned by enemy nationals or located in enemy territory can be seized (e.g., Allied seizure of German assets post-WWII).

Legal Effects:

Internment: Enemy aliens may be interned for security reasons (e.g., Japanese-Americans in the US during WWII).
Trading Restrictions: Trading with the enemy is prohibited (e.g., the UK’s Trading with the Enemy Act, 1939).
Seizure of Property: Belligerents can confiscate enemy ships or goods (e.g., prize courts during WWI).

Example:

During the Iran-Iraq War (1980–1988), neutral ships trading with either belligerent risked being classified as having enemy character, subjecting them to seizure.

Conclusion: Enemy character determines the legal treatment of persons and property during war, balancing security needs with humanitarian protections. Its application reflects the realities of conflict but requires adherence to international humanitarian law.

9. Conditions of Recognition

Recognition of a state or government is not automatic and is subject to certain conditions, reflecting both legal and political considerations.

Factual Conditions (Montevideo Convention, 1933):

Permanent Population: The entity must have a stable population (e.g., South Sudan in 2011).
Defined Territory: Clear territorial boundaries, though minor disputes do not preclude recognition (e.g., Israel’s recognition despite border disputes).
Effective Government: The entity must have a government in control (e.g., Taliban’s control of Afghanistan in 2021 led to de facto recognition by some states).
Capacity to Enter Relations: The entity must be independent and capable of conducting international relations (e.g., Taiwan struggles due to China’s influence).

Legal and Political Conditions:

Legitimacy: The government must be legitimate, often through democratic means (e.g., recognition of Ukraine’s post-2014 government after the Euromaidan revolution).
Compliance with International Law: The entity must respect international norms, such as the prohibition on aggression (e.g., non-recognition of Iraq’s annexation of Kuwait, 1990).
Stability: The entity must demonstrate stability to ensure lasting relations (e.g., delayed recognition of South Sudan due to ongoing conflicts).

Political Considerations:

States may withhold recognition for political reasons (e.g., China’s non-recognition of Taiwan due to the One-China policy).
Example: The US delayed recognition of the People’s Republic of China until 1979, reflecting Cold War dynamics.

Conclusion: Recognition requires meeting factual criteria (Montevideo Convention) and legal-political conditions like legitimacy and compliance with International Law. Political considerations often play a significant role, reflecting the discretionary nature of recognition.

10. Advantages of Recognition

Recognition confers several legal, political, and practical benefits on the recognized state or government.

Legal Advantages:

International Personality: The entity gains the status of a subject of International Law, with rights like treaty-making and UN membership (e.g., South Sudan joined the UN in 2011 after recognition).
Access to Courts: Recognized states can bring claims before international courts (e.g., ICJ jurisdiction under Article 34).
Diplomatic Immunity: Diplomats of recognized states enjoy immunity under the Vienna Convention on Diplomatic Relations (1961).

Political Advantages:

Legitimacy: Recognition enhances the entity’s legitimacy, strengthening its domestic and international standing (e.g., recognition of Bangladesh in 1971 bolstered its independence struggle).
Diplomatic Relations: Enables formal relations, facilitating cooperation (e.g., US-China relations post-1979 recognition).

Practical Advantages:

Economic Benefits: Recognized states can access international trade, aid, and investment (e.g., Kosovo’s recognition by over 100 states enabled economic partnerships).
Security Cooperation: Facilitates military alliances and support (e.g., NATO support for recognized states like Montenegro, admitted in 2017).

Challenges of Non-Recognition:

Unrecognized entities face isolation (e.g., Taiwan’s exclusion from the UN) and limited access to international benefits.

Conclusion: Recognition provides significant legal, political, and practical advantages, enabling an entity to fully participate in the international community. Non-recognition, however, can severely limit an entity’s rights and opportunities.

11. War Crimes

War crimes are serious violations of the laws of war, committed during armed conflicts, for which individuals can be held criminally accountable under International Law.

Definition and Legal Basis:

Geneva Conventions (1949): Define war crimes as “grave breaches,” including willful killing, torture, and targeting civilians (Article 147, Geneva IV).
Rome Statute of the ICC (1998): Article 8 lists war crimes, including attacks on civilian objects, use of child soldiers, and sexual violence.
Customary Law: Many war crimes (e.g., prohibition of targeting civilians) are customary, binding all states.

Examples of War Crimes:

Srebrenica Massacre (1995): Bosnian Serb forces killed over 8,000 Bosniak men and boys, prosecuted as war crimes by the ICTY (e.g., Radovan Karadžić’s conviction in 2016).
Syrian Civil War (2011–present): Use of chemical weapons, targeting hospitals, and indiscriminate bombings (e.g., Aleppo, 2016) are war crimes, though accountability is limited due to political obstacles.

Prosecution:

Ad Hoc Tribunals: The ICTY and ICTR prosecuted war crimes in Yugoslavia and Rwanda (e.g., Tadić Case, 1997).
International Criminal Court (ICC): Prosecutes individuals (e.g., Bosco Ntaganda’s 2019 conviction for war crimes in the DRC).
Domestic Courts: States can prosecute under universal jurisdiction (e.g., Germany’s prosecution of Syrian officials for war crimes).

Challenges:

Political Barriers: Powerful states or their allies often evade prosecution (e.g., no ICC action against the US for alleged war crimes in Afghanistan).
Evidence Collection: Ongoing conflicts hinder evidence gathering (e.g., Syria).

Conclusion: War crimes are grave violations of humanitarian law, with established mechanisms for prosecution. However, political barriers and enforcement challenges limit accountability, necessitating stronger international cooperation.

12. Kinds of Succession

State succession refers to the replacement of one state by another in the responsibility for a territory’s international relations. There are several kinds of succession:

Dissolution:

A state breaks into multiple states (e.g., Yugoslavia dissolved into Serbia, Croatia, Bosnia, etc., in the 1990s).
Effects: Successor states negotiate the division of treaties, property, and debts (e.g., Badinter Commission for Yugoslavia).

Secession:

A part of a state forms a new state (e.g., South Sudan from Sudan, 2011).
Effects: The new state may adopt a clean slate approach to treaties, except boundary treaties (e.g., South Sudan inherited Sudan’s border agreements).

Merger:

Two states combine into one (e.g., East and West Germany unified in 1990).
Effects: The successor state (Germany) inherited most treaties and obligations of both predecessors.

Cession:

Territory is transferred from one state to another (e.g., Hong Kong from the UK to China, 1997).
Effects: The successor state inherits treaties applicable to the territory (e.g., China assumed Hong Kong’s trade agreements).

Absorption:

One state absorbs another, often through annexation (e.g., India’s absorption of Sikkim, 1975, though consensual).
Effects: The successor state assumes all obligations of the absorbed entity.

Conclusion: Kinds of succession include dissolution, secession, merger, cession, and absorption, each with distinct effects on treaties, property, and debts. The Vienna Conventions provide guidance, but state practice often varies, leading to disputes.

13. Prize Courts

Prize courts are special tribunals established by belligerent states during war to adjudicate the legality of capturing enemy or neutral ships and goods (prizes) on the high seas.

Definition and Purpose:

Prize courts determine whether a captured ship or cargo (prize) is enemy property, contraband, or neutral, and whether the capture was lawful.
Governed by customary law and historical practices (e.g., Declaration of Paris, 1856).

Procedure:

A belligerent captures a ship suspected of enemy character or carrying contraband.
The case is brought before a prize court in the capturing state’s territory.
The court examines evidence (e.g., ship’s papers, cargo manifests) and decides whether to condemn the prize (confiscate it) or release it.

Examples:

World War I: British prize courts condemned German ships captured on the high seas, distributing proceeds to the capturing navy.
American Civil War: Union prize courts adjudicated captures of Confederate ships, often releasing neutral vessels if no contraband was found.

Modern Relevance:

Prize courts are less common today due to the UN Charter’s prohibition on war (Article 2(4)), but they may apply in modern conflicts (e.g., Israel’s interception of ships bound for Gaza).

Challenges:

Neutral states often protest captures, claiming violations of their rights (e.g., US-UK disputes during the Civil War).
Humanitarian concerns arise if captures disrupt civilian supplies.

Conclusion: Prize courts historically played a key role in regulating maritime captures during war, ensuring legal oversight. Their relevance has diminished, but they remain a mechanism for addressing captures in armed conflicts.

14. State Territory

State territory is a fundamental element of statehood, defining the geographical area over which a state exercises sovereignty.

Definition (Montevideo Convention, 1933):

A state must have a defined territory to qualify as a state, though precise boundaries are not required (Article 1).

Components of State Territory:

Land Territory: The mainland and islands under a state’s control (e.g., India’s Andaman and Nicobar Islands).
Maritime Territory: Territorial sea (up to 12 nautical miles under UNCLOS, 1982), contiguous zone (24 nautical miles), and exclusive economic zone (200 nautical miles).
Airspace: The airspace above a state’s territory (e.g., Article 1, Chicago Convention, 1944).
Subsoil: The land beneath the surface, including resources (e.g., oil, minerals).

Modes of Acquisition:

Occupation, prescription, cession, accretion, conquest (historical), adjudication, and self-determination (as discussed earlier).

Legal Principles:

Sovereignty: States have exclusive authority over their territory (e.g., Island of Palmas Case, 1928).
Uti Possidetis Juris: Post-colonial boundaries follow colonial lines (e.g., African states after independence).
Territorial Integrity: Protected under Article 2(4), UN Charter (e.g., non-recognition of Russia’s annexation of Crimea, 2014).

Challenges:

Territorial disputes (e.g., India-China border dispute in Ladakh) often lead to conflict.
Climate change threatens territorial sovereignty (e.g., rising sea levels affecting Maldives).

Conclusion: State territory is a core element of statehood, encompassing land, sea, airspace, and subsoil. International Law provides rules for acquisition and protection, but disputes and environmental challenges persist.

15. Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly on December 10, 1948, is a foundational document in the global human rights framework.

Background:

Drafted by the UN Commission on Human Rights, chaired by Eleanor Roosevelt, in response to WWII atrocities.
Adopted by Resolution 217(III) with 48 votes in favor, 0 against, and 8 abstentions (e.g., Soviet bloc, Saudi Arabia).

Structure and Content:

Preamble: Affirms the inherent dignity and equal rights of all humans as the foundation of freedom, justice, and peace.
30 Articles:
- Articles 1–2: General principles of equality and non-discrimination.
- Articles 3–21: Civil and political rights (e.g., right to life, freedom from torture, right to a fair trial, freedom of expression).
- Articles 22–27: Economic, social, and cultural rights (e.g., right to social security, work, education, cultural participation).
- Articles 28–30: Collective rights and duties (e.g., right to a social order ensuring these rights, duties to the community).

Key Principles:

Universality: Rights apply to all humans without distinction (Article 2).
Inalienability: Rights cannot be taken away (Article 1).
Indivisibility: All rights are interconnected (e.g., education supports political participation).

Legal Status:

The UDHR is not a treaty and is not legally binding. However, many of its provisions (e.g., prohibition of torture) have become customary law, binding all states.
It inspired binding treaties like the ICCPR and ICESCR (1966).

Impact:

Global Standard: The UDHR set a universal benchmark for human rights, influencing constitutions (e.g., India’s Fundamental Rights) and regional frameworks (e.g., ECHR).
Customary Law: Principles like the prohibition of slavery (Article 4) are customary norms.
Advocacy Tool: Used by NGOs and activists to hold states accountable (e.g., Amnesty International campaigns).

Challenges:

Non-Binding Nature: States can ignore UDHR provisions without legal consequences (e.g., China’s restrictions on freedom of expression, Article 19).
Cultural Relativism: Some states (e.g., Saudi Arabia) abstained, citing conflicts with cultural or religious norms.

Conclusion: The UDHR is a landmark document that established a universal standard for human rights, influencing law, policy, and advocacy. While non-binding, its principles have shaped customary law and inspired treaties, though challenges like cultural relativism and enforcement persist.