Public International Law Exam Notes(includes relevant treaties)

1. Nature and Development of International Law

1.1 Definition of International Law
Body of legal rules governing interaction between sovereign states (Public International Law) and the rights and duties of the citizens of sovereign states towards the citizens of other sovereign states (Private International Law). Since there has never been a law making body for international law, it has been built up piecemeal through accords, agreements, charters, compromises, conventions, memorandums, protocols, treaties, tribunals, understandings, etc. The statute of the International Court Of Justice (judicial arm of the UN which has no enforcement power, and can adjudicate only where both sides agree to abide by its decisions) states the basis on which it adjudicates cases before it as "(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations." It is not 'World Law' but law between consenting sovereign states (each government can decide which law it will adhere to or not) and has not been able to solve the problems of inter-state aggression, conflict, terrorism, and war. Despite its limited applicability, however, it has played a vital role over the centuries in developing a system of procedures and rules in areas (such as air, land, sea, outer-space, human rights) where one state's existence impinges that of the others. The General assembly of the UN is entrusted with developing international law. Also called law of nations.

1.2 International Law as "Law"
- no effective authority to enforce
- Lacks compulsory Jurisdiction
- Rules of intl law suffer frm great uncertainity
- Lack of effective sanction = frequent violations of rules of intl law
- Cannot intervene in matters of domestic jurisdiction
- Many cases hs failed to maintain order & peace in the world

1.3 Basis of International Law - Jurisprudential Theories
Evidence of treaties, immunities of ambassadors, usage of war, etc can be found in ancient Egypt, India, the Greek & Roman empires - present day intl owes origin to Grotius a great Jurist whose work De Jure Belli ac Paces (1625) lent legal basis to many areas of intl relations - main idea is tht thr r certain eternal, unchangeable & independent rules of law which have roots in human reason. This law of reason is called by him as natural law. - In Grotian theory thr r 3 basis of intl law:- law of reason, Customs & treaties, emnating frm his conception r 2 theories as to true basis of intl law
(i) Naturalist Theory(Pufendrof) - thr exists a system of law which emnates frm God or reason or morals. Law of nations is only a part of nature. Hart explains tht minimum content of law flowing frm immutable nature of man is tht which is neccessary fr survival of human kind, all laws relating to it are thus parts of law of nature. The theory si criticised on the ground tht it is too vague.
(ii) Positivists Theory(Bynkershook) - Those principles adopted with the consent of states - Law is tht which exists as a fact - it is tht law which is enacted or followed by States (i.e. Emnates from their own free will) and is hence binding upon States - Customs & treaties come into existence frm express or tacit consent of States - theory is criticized as all rules of intl law r nt derived frm customs & treaties - further a treaty may be binding on 3rd States as well & states in some cases r bound by general intl law even against their will
(iii) Eclectic theory - Views giving equal importance to naturalists & positivists.

John Austin's View
The three basic points of Austin's theory of law are that:
    the law is command issued by the uncommanded commander—the sovereign;
    such commands are backed by threats; and
    a sovereign is one who is habitually obeyed
Austin is best known - theory of legal positivism. He attempted to clearly separate moral rules from "positive law."
Austin was greatly influenced in his utilitarian approach to law by Jeremy Bentham. Austin took a positivist approach to jurisprudence; he viewed the law as commands from a sovereign that are backed by a threat of sanction. In determining 'a sovereign', Austin recognized it as one who society obeys habitually. However, Henry Maine in "Early Institutions" proved that in some Empires of the orient there is nothing to correspond with "determinate superior" or sovereign.

Criticism of Austin's view (prominently by H.L.A. Hart)
First, in many societies, it is hard to identify a “sovereign” in Austin's sense of the word (a difficulty Austin himself experienced, when he was forced to describe the British “sovereign” awkwardly as the combination of the King, the House of Lords, and all the electors of the House of Commons). Additionally, a focus on a “sovereign” makes it difficult to explain the continuity of legal systems: a new ruler will not come in with the kind of “habit of obedience” that Austin sets as a criterion for a system's rule-maker.

A different criticism of Austin's command theory is that a theory which portrays law solely in terms of power fails to distinguish rules of terror from forms of governance sufficiently just that they are accepted as legitimate (or at least as reasons for action) by their own citizens.

H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart 1958, 1994), he did it by criticizing and building on Austin's theory: for example, Hart's theory did not try to reduce all legal rules to one kind of rule, but emphasized the varying types and functions of legal rules; and Hart's theory, grounded partly on the distinction between “obligation” and “being obliged,” was built around the fact that some participants within legal systems “accepted” the legal rules as reasons for action, above and beyond the fear of sanctions. Hart's “hermeneutic” approach, building on the “internal point of view” of participants who accepted the legal system, diverged sharply from Austin's approach to law.

1.4 Codification of International Law
Codification of International Law is as important as codification of any other law. However, codification of International Law has some unique features because it provides:
  - Harmonization and co-ordination of various municipal laws to uniform statues as far as practicable
  - Arranging the existing customary international law in a systematic process
  - Includes all conventions, treaties, charters etc.
The process of codification of International Law began in 18th century when the Declaration of Paris, 1856 was signed by 7 countries. It was followed by the Hague Conference, first in 1899 and later in 1907.

Advantages
  - Brings law into shape and avoids confusion
  - Preserves customs. Because preserving laws means preserving customs
  - Unification of laws of the world
  - Avoids conflict between judiciary and executive

Disadvantages
  - Codified laws are rigid
  - Moves away from individuality and might effect sentiments, customs and traditions etc.
  - Wrong-doers can take advantage of codified law because they come to know of ways of avoiding provisions of law
  - Disturbs citizen rights at times
  - Codified law is never complete. It is always constantly evolving.

1.5 Sanctions of International law
- Sanctions by States - self help with strict compliance to UN Charter - using armed force in self help against intl wrongful acts not using armed attack is forbidden. Principles similar to right of private defence
- Collective Sanctions
    - Chap VII of UN Charter -> Security Council can take neccessary action if threat to intl peace & security
    - Military Sanctions
    - Economic & Financial Sanctions- severance of economic relations, trade
    - Political sanctions - expulsion frm UN Membership, suspension of rights & priveleges of membership of UN
    - Specialized agencies (ILO, IPO, WHO, ,ITO) authorized to take action against erring state
    - Decision of ICJ binding on parties to dispute, Art 94 of UN provides othr party may approach Security Council to take action.
- Public opinion - World public opinion which forced UK & France to pull out troops from Suez Canal in 1956 (also end of Colonialism)

Effectiveness of sanctions
- Nicargua vs US -

1.6 Subjects of International law
JG Starkes defn given below - States - Individuals - Organazations

Status of Intl Organizations
Reparations for injuries suffered in the service of the UN (ICJ Rep 1950) - ICJ in its advsory opinion accorded legal personality to UN and held can claim appropriate reparation frm the concerned state.

Place of individuals in Intl law
    JG Starke - Subj of intl law - 3 main attributes
    (i) Incumbent of rights & duties
    (ii) Holder of prodecural capacity fr enforcing a claim befr an intl tribunal
    (iii) Possessor of interest fr which provision is made by intl law
Holder of Rights - Human Rights -Treaty of Versailles (1919) -European Court of Human Rights - Lawless Case - De Becker Case - belgium forced to change legislation regarding right of person under detention & arrest

Duties of individuals
(i) No Crimes against peace & humanities - pirates considered enemy of mankind - espionage a crime under intl law
(ii) War Criminals - Can be punised under intl law Nuremburg & Tokyo tribunals propounded the principle tht intl law may impose obligations directly against the individual eg officials of Germany & Japan were tried as per the provisions of intl law
(iii) Crime of genocide
(iv) Aircraft Hijacking
(v) kidnapping of diplomatic personnel, etc Convention of prevention & punishment of crimes against internationally protected persons 1973, Convention on Taking of hostages, 1979
(vi) Prevention of drug trafficking - Narcotics Drugs convention, 1973

Procedural Capacity of individuals - treaty of versailles 1919 - Under European Convention fr Protection of Human Rights, 1950 the commission has laid down tht a petition can be rcvd frm any person if his human rights are violated - lawless case - de becker case -
Optional Protocol to the Intl Covenant on Civil & Political Rights, 1976 provides individuals with the right to petition the HRC in case of violation of any of their civil & political rights by State. In Blom vs Sweden a petition of a student alleging discrimination ws held admissible.

1.7 Approach of Developing Countries towards International Law
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2. Sources of International Law


2.1 Statute of the International Court of Justice, 1945 ( Article 38 )
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
    a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
    b. international custom, as evidence of a general practice accepted as law;
    c. the general principles of law recognized by civilized nations;
    d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

    
2.1.1 International Treaties and Conventions
TREATIES

WHAT : Agreements b/w subjects of Int law creating a binding obligation in Int Law ( Schwarzenberger  ) . Agreements of Int character b/w State / State Organisation creating Legal Rights and Duties.

Most important. A 38 says this as first source. Convention general / particular. Treay, protocol, Agreement, Conventino,
Two Categories :

a) Law Making : Universal Norms,direct source of IL.
    i) Universal Rules : UN Charter
    ii ) General Rules : 1958 Generva Convention on LOS, 1969 Vinna Convention on Treaties etc.

b) Treaty – Contracts : 2/few states matter exclusive to them. Not a direct source of IL , may help in developing same- generalistion to more states / recurrence of such treaties/rules may lead to Customary Int Law

Pacta Sun Servananda

States are bound to fulfill in good faith the obligations assumed by them under treaties.
Law of nature. Moral Principle. Lauterpacht says treaties are binding since there is a Customary Rule of Int Law that they are. So the basis is Custom ! Sanctity of Contracts essential to any community. Positive Norm. No unilateral deviation. Rests on Good faith – North Atlantic Fisheries case.
Treaty is Int. Legislation.

Vienna Convention on Treaties :
- Every treaty in force is binding and has to be performed in good faith ( Art 26 )
- No party will attempt to justify its failure to perform by citing its internal laws ( Art 27 )

Preamble of UN Charter : UN has to establish conditions where respect for treaties and Int Law is maintained.

All above point towards pacta sunt servanda

Exceptions to PSS :  : i) new state due revolt ii ) Territory ceded/merged iii) Rebus sic stantibus : implied clause, unchanged material circumstances iv) Not an absolute principle as fails toe explain the binding force of customary int law ( in fact it rests upon it )
( RCRA )

Vienna Convention on Law of Treaties , 1969 :

Landmark, Preamble, 85 Atricle, 8 Parts Earlier treaties still governed by öld”laws. Codifies. Doctrines of Jus Cogens, Rebus Sic Stantibus leads to  clear systems.

All states are competent, including vassal states, except where limited/qualified by existing treaties. Neutral States no Offensive treaty for eg. 

Int. Orgs Treaties NOT in Vienna scope – they are under separate Convention adopted 1986.

Free Consent is essential. Fraud, Corruption, Coercion , Error vitiates. Error doesn’t hold if due State’s own conduct or if it had notice (no advantage of own wrong )
Consent expressed by : i) Signature ii) Exchange iii ) Ratification/acceptance/approval iv) Accesson v) Any other means as agreed


Formulation/Conclusion of Treaties :
No format prescribed. General steps :
1) Accrediting of Persons
2) Negotiations/adoption – consent of all or 2/3rds if Int Conference 
3) Signatures of reps – if treaty not subject to ratification, comes into force imm thereafter
4) ratification : v. imp-state confirms
5) Accession/ Adhesion : Means “joining nito “. Happens when State joins later . If no provision in treaty all existing signatories to agree. Joining States’ratification not rqd.
6) Entry into Force : As per treaty ( A 24 ) . If ratification rqd, only after such by prescribed number of states
7) Registration and Publication : Before Secy General of UN ( Art 102 ). Unregistered is valid but no invoking in any UN Organ ( ICJ for eg )
( ANSRAFR )

Ratification of Treaty
Signed by rep has to be confirmed/ approved by State.
Art 2(1)(b) : Act whereby State establishes on international plane its consent to be bound by the Treaty
Rat. Not retroactive generally. To be done only when rqrd by the Treaty. Art 14 : Rat. Necessary when a) Express consent b) Neg. states have agreed to rat. C) Rep has signed subject to d) Intention of rat. Evident during talks/ neg.
( EASI )

Purpose : At present, generally all need to be rat. A) State can re-examine/review. B) Can even withdraw by act of NON-rat. C) Amend internal laws d) Public opinion build/consult ( RWAP )

Mode : Per State procedure. President per advice/ Consent of Senate. UP by Crown on adv of Minister concerned. India : President per advice of Central Cabinet

Refusal of : States not bound to ratify. No reason to be given. But for Int. peace and security, Security Council pressure( Art 39 and 41 of UN Charter ). Big states less open to such influence. No time period specified for rat. But interim State should not do any act adverse to the object/purpose of treaty ( Art 18, VC ). Such may imply breach of treaty ( German interest in Polish upper Silesta, 1928 ). So signing of the rep  itself confers some limited status to treaty.

Consequences of : Only if rat. Necessary. But can be applied to domestic municipal law only after rat. No ratification no binding by terms of the State who hasn’t . But still, a provision may still fall within custom and opinion juris and can be invoked

Reservations :

Important. When only part is accepted and oters rejected by a State. Unilateral Act while signing/ratifying/accepting when the State purports to exclude/ amend some provisions wrt itself ( Art 2(1)(d)  VC ). No reservation after joining. Can be done even if the treaty is silent on it.

Article 19 : Firstly , is the reservation valid – use the legality test :
1) Should not be prohibited by treaty.
2) Should be included in the reservations specified, as during negotiates itself it may have become clear that some will not agree to all provisions.
3) Is not incompatible with the object/ purpose of treaty

In writing, either to the depository or directly to others. Can be withdrawn at any time by writing to others

When a state limits its treaty obligations through reservations, other states party to that treaty have the option to accept those reservations, object to them, or object and oppose them. ( Art 19-23 of VCLT )

Other State Accepts Reservation ( or no comments – implies acceptance ) :Both the reserving state and the accepting state are relieved of the reserved legal obligation as concerns their legal obligations to each other . But Accepting State still responsible to other states who have no such reservation/

Other State Objects ( Art 20(5) ) : the parts of the treaty affected by the reservation drop out completely and no longer create any legal obligations on the reserving and accepting state, again only as concerns each other. Has to be done within 12 months of the reservation notification

Other State objects and Opposes ( explicit , Article 21(3)  : Such a State wants to exclude the entry into force of the whole treaty between itself and the reserving State There are no legal obligations under that treaty between those two state parties whatsoever. That is, both consider they have no treaty between them at all.

Reservations in Multilateral treaties may lead to several bilaterals of variable content – not good.

However as number of signatories increases, each with their own opinions, reservations are essential to a more general acceptance of the treaty.

Treaties and Third States

Pacta Tertis nec nocent nec prosunt : Third parties receive neither rights nor duties from contracts.
Incorporated under A 34 of VCLT : A treaty creates no obligations/rights for 3rd State without its consent.

Anglo Iranian Oil Co. ( 1952 ) : AIOC was registered in Britain, contracted with Iran for some oil concessions. Iran nationalized this company, abrogated contract. Britain went to ICJ which held Britain was not privy to the Contract so third party with no locus.

Exceptions To Pacta…:

1) Obligations : In treaty and accepted by 3rd party in writing then 3rd party bound ( A 35 ). Juridical basis is not the treaty but collateral agreement of the third State. Rule does not apply for aggressor state ( A 75, VC ). Also, for int. peace and security, non member states  can be called upon to give assistance ( Art 2, Para 6, UN Charter )

Free Zones Case , 1932 : Art 435 of Vers Peace treaty not binding upon 3rd Switzerland  except to the extent it accepted.

2) Rights : If provided in treaty and 3rd assents. Has to comply with treaty conditions.

Free Zones Case, 1932: 3rd party  Switzerland enjoyed since 1815 the benefits of a Free Customs Zone due multipartite treaties of which France was party. Swizerland not but had accepted the benefits. Held it could not be deprived without consent.

Revocation / Modification of Obligations/Rights : For obligation, Treating States AND 3rd State also to consent ( Art 37 , VC ). For Rights such revocation has to be expressly provided for in the treaty and consented by 3rd party.
In practice, Treaty may  expressly forbid such results and the 3rd state should not by its conduct / declarations indicate its acceptance to any obligation.

3) Int. Customs created by treaty : Treaty may have a rule which is genrelly accepted bya  Third Sate and then becomes binding upon it as a Customary law. Geneva Convention 1958 binding even on non-signs. North Sea Continental Shelf : ICJ opined treaty provisions can generate customary law and may be of  norm-creating character.

Jus Cogens

Basic fundamental rules affecting the very foundation of their legal system.

Rousseau : No. No illegal object in treaties and no rule of Int Law is final/authoritative.

Verdoss : Majority of Int Laws are indeed modifiable by consensual agreements, some are absolute – lawful objects of treaties for example.

Jus Cogens and VC

A 53  : Treaty void if when formed conflicts with peremptory norm of gen int law. Peremptory norm is one recog by int comm. as a whole while from which no derogation is permitted and which can be modified only by a subsequent norm of gen int law having same character.
Such treaty Void Ab Initio.

Jus Cogen is dynamic-changes with social humanitarian politics etc.

Art 64 : Corollary of A 53. If new JC emerges, any treaty in conflict void and terminates.

Such treaty void only after such norm emerges, not ab initio.

Different Legal Consequences. Or eg. Slave Trade.

A 66 : Compulsory Settlement of JC disputes within 12 months otherwise any party can ask ICJ unless all agree to arbitration.

Verdross says three types of JC : a) Common Interest of Whole Community b)_ Humanitarian c) Introduced by UN Charter against threat/ use of force in Int relations.

BUT VC is silent on what JC norms are recognized. Commentary of Int Law Commission  has 3 examples of  treaties against JC : a) Force contrary to UN Charter b) Act Criminal in Int Law c) Acts re slavery, genocide, piracy etc.

Genocide Convention Case : JC not referred explicitly. But court says norms prohibiting genocide may be binding on non-signatories also as v. strong preemptory ones/

Barcelona Traction case , 1970 : Principle of Self Determination held to be a norm of  JC.

Namibia Case, 1971 : Imperative character of  right to self determination and human rights.


Rebuc Sic Stantibus
Contracts with Pacta….
Fundamental change may lead to treaty termination- implied clause in every treaty. Similar to doctrine of frustration of contract ( A 56, Indian Contract Act )

A 62 of VCLT embodies, although term not used.
A 62(1) Conditions :
a) Change of Circumstances existing at time of treaty
b) Fundamental
c) One not foreseen
d) Existence of such circum essential basis
d) Radically transform pending treaty obligations

A62(2) Exceptions : 
a) Treaties which fix boundaries 2) When change result of breach by one party – no advantage of own wrong

Applied in :
- when Sino Belgian Treaty of 1865 was denunciated by China citing changed circumstances.
- Nationality Decrees Case : France said establishment of “French protectorate over Morocco extinguishes some Anglo French Treaties . Britain said France  was resorting to RSS.
- Fisheries Jurisdiction Case 1973 : ICJ recognizes doctrine of RSS  as a customary rule of Int Law. Cites two necessary conditions:
- Pending obligations should have been increased so much that essentially different from the original ones.
- No automatic termination. Only confers a right to call for termination. If disputed must be submitted for arbitration/ court

Refused in Free zones case since “function law is to enforce contracts of treaties even when they become burden some on parties…

Doctrine is controversial but many times justified and necessary for vital interests and even survival of nations. Should be clearly defined and used within narrow limits.

Invalidation of Treaties
Per Art 46-53 of VCLT.
i) No Authority of rep
ii) Error in treaty
iii ) Fraud by another party
iv ) Corrupt Rep
v) rep coerced
vi) State Coerced- should be in violation of UN Charter. Eco/political coercion permitted a part of normal working relations b/w states.
vii ) Conflict with Jus Cogens

Non Compliance with Domestic Laws
Per Art 27 of VCLT this cannot be invoked. ( Pacta Sunt Servanda holds ).

Unless the violation was apparent and rule of Fundamental Importance ( Jus Cogens ) . To be manifest it should be objectively evident to State , conducting its matters in normal practice and good faith.


Termination of Treaties

- Bilateral when one party defects. Multilateral only wrt that party.

Per various provisions of Section 3, VCLT
i) Consent of all ii)Denunciation of withdrawal of one iii ) Another treaty for same subject , incompatible iv) Material Breach, unless a party after breach expressly/ impliedly agrees to it v)Impossibility of performance – island disappears, permanent destruction of one party with no succession,  If temporary, treaty is only suspended vi) treaty objects over – fixed time etc viii) War –can be terminated/suspended per provisions  viii ) Jus Cogens – new norm ix) Rebus Sic Stantibus – Funda change in circumstances

Customs and treaties- Interrelationship

Both need consent. But express in treaty. Treaty more rapid, precise, adequate. Even if available both in Custom as well as treaty, both can exist on their own ( mil and Paramilitary Activities in and against Nicaragua ), Customary rules can still exist and be applied by courts. Basic principles such as Non Use of Force, non Intervention, respect for terr integrity of another, freedom of navigation still bind as customary int law. North Sea case clearly recognizes existence of identical rules in treaty as well as customary law. Both can repeal / supersede each other- law of sea saw  repeal of four Geneva Conventions by Customary Laws before final codification into UNLOS 1982..

Essentially both agreements of subjects of int law. Reinforce each other / supplement. But treaty superior if conflict  ( SS Wibledon, 1923, ICJ )

    
2.1.2 International Custom
Development/ Formation of a Custom
a) Custom and Usage
- Usage are actions often repeated. They become a Custom if acquire the force of habit under a conviction that they are right and legal. So, custom is usage which has force of law. While usage is an international habit which has not yet received the force of law.
- Custom begins where usage ends. Repeated usage leads to expectations of similar behavior in same circumstances. But when this usage gets recognition of various states in their relations with each other so as to become right / obligation then such usage becomes Custom . Obligation arises from fear of enforcement before the courts.
- Usage may not lead to Custom. Factors such as State interest, historical vents etc also add in.
- Usage converts into custom due conduct of State at Diplomatic / Int Levels, foreign policy documents, speeches, positions at for a such as UN, ICJ . And domestically decisions in local courts, tribunals etc.
- True Test is that he Usage must get the common consent of cvilised nationsor geneal consensus of opinion.
- Duration of less important now since comm. Faster. Unanimous opinion better indication.

b) Custom has to be accepted as Law – that is Opinio Juris et Necessitatis
- This is when States feel that they are acting per law.
- So, acts should be evidence of belief that practice is obligatory by existence of law requiring it  ( North Sea Cont Shelf Case )
- Customary Rules may also be generated by treaty ( North Sea case )

(1) Lotus Case ( France vs Turkey ), PCIJ, Ser. A, No. 10 (1927)
Collusion - Ships - 8 Turkmen passed away - Criminal case in Turkey against Captain of Lotus - France contended jurisdiction - customary rule of intl law granting exclusive criminal jurisdiction to the State the flag of which a vessel is flying - court held no such customary rule was estb becoz 'opinio juris' cud nt be proved  - Even if facts by france were true that wud merely show abstinence and not obligation - therefore no duty to abstain - therefore each state could excercise jurisdiction w.r.t the incident - Decision -> no rule of intl law in rgd to collision cases to the effect tht criminal proceedings were exclusively within the jurisdiction of tht State whose flag the ship ws flying & thrfr each state cud exercise jurisdiction
Comments - Lotus Case demonstrates Opinio Juris essential fr creation of a new customary rule of intl law - in the lotus case even if states hd refrained frm exercising jurisdiction ovr crimes committed on high seas in deference to the flag states, the french gov ws unable to prove tht States acted in this manner frm a sense of legal obligation - judgement criticized in so far as it implies tht intl law permits all it does nt forbid
Lotus case overruled by Geneva Convention on Law of Sea, 1958, Art 11 of which states tht no penal or disciplinary proceeding may be instituted against the persons responsible fr the collision except befr the judicial/administrative authorities either of the flag state or of the State of which they are nationals

(2) North Sea Continental Shelf Cases, ICJ Rep. 1969, p. 3
Concept of Opposability
In a dispute between two States, A and B, where State A supports its case by reference to some principle or institution, State B may seek to invoke, i.e. oppose as against State A, either a particular institution or regime under State B's domestic law, or, on a different level, the terms of some general or particular convention or treaty, alleging that this is to prevail over the principle or institution relied on by State A.
Whether  the case of State A is or is not tenable will turn "on what is said to be the "opposability" (opposabilite) in law to State A of the institution, regime, or treaty set up by State B.

State B will succeed ( if no treaty ) only if the Domestic Law cited by it is in accord with Int Law.

But if State B is proceeding under a treaty olitybligation, State A has to be a signatory to that treaty for B‘s claim to hold.

In the North Sea Continental Shelf Case, the question was whether the provisions of an international convention, namely Article 6 of the Geneva Convention on the Continental Shelf, containing the equidistance rule for the delimitation of a continental shelf common to adjacent countries, were opposable to the German Federal Republic, vis-a-vis  Denmark and the Netherlands, where the German Federal Republic's case was, broadly speaking, that, in the absence of an agreed division, demarcation should be carried out according to equitable principles. The point was also raised incidentally in the cases whether, apart from Article 6 of the Convention, unilateral acts or bilateral treaties applying the equidistance rule to the delimitation of common continental shelves, other
than to the North Sea continental shelf, were opposable to the German Federal Republic.

In the result, neither the provisions of Article 6 of the Convention nor unilateral acts or treaties applying the equidistance rule were held opposable.

(3) Right of Passage over Indian territory (Merits) (Portugal vs India), ICJ Rep. 1960 p. 6
Issue: Rt of portugal to send its nationals & military through the Indian territory? Until 1954 portugal possessed right of passage thrgh Indian territory; the right ws however subject to control & regulation by India, the right of passage ws only in respect of private persons,civil officials and goods in general to the extent neccessary fr the exercise of portugese sovereignity over the Portugese enclaves, In 1953-54 becoz of tension created by the overthrow of Portugese rule in the enclaves, the Indian Govt suspended the right of passage of Portugal over the affected area, in view of repurcussions over the border areas of Indian territory, portugal contended befr the ICJ tht Indian action ws in furtherance of Indian efforts to annex the Portugese territories in India & hd made it impossible fr Portugal to exercise her rights of sovereignity in the affected areas. The claim of Portugal ws based on Treaty of Poona, 1779 & the sanads(decrees) issued by the Maratha ruler in 1783 & 1785.
Court found tht the existed a constant & uniform practice of allowing passage through Indian territory(Daman & its enclaves). the treaty of 1779 ws a valid treaty & Portugal ws entitled to get passage through Indian territory in consequence of the provisions of said treaty. Court ruled tht if under a treaty a State gets the right of passage through the territory of anothr State & if it continues fr a long time then it gains the force of law & thrby imposes the obligation upon the State affected to continue to give right of such passage. Court further noted tht no right of passage in favor of Portugal hd been established in respect of armed forces, armed police & arms & ammunition. Having found tht Portugal hd in 1954 a rt of passage over intervening Indian territory in respect of private persons, civil officials & goods in general, the COurt nevertheless concluded tht India hd lawfully in exercise of its power of regulation & control of the Portugese right, suspended all passage in 1954 becoz of tension in the area.

(4) Asylum Case (Columbia vs Peru), ICJ Rep. 1950, p 266
Institution of diplomatic asylum in Latin America. In 1949 Columbian Gov gave asylum to rebel Peruvian political leader in its embassy in Peru. Colombian ambassador requested the Peru Gov to allow leader to leave the country on the ground tht the Columbian govt qualified him as a political refugee. Peru govt refused. Case ref to ICJ. In its submission Columbia claimed the right to qualify(i.e. characterize) the nature of the offence by unilateral decision tht it wud be binding on Peru. Columbian govt based its claim on certain intnl agreements & an intl custom regding diplomatic asylum - it referred to large no of cases whr diplomatic asylum ws in fact granted & respected.)
Court obsrvd:- party which relies on usage of ths kind must prove tht this custom is established in such a manner tht it hs become binding on the othr party. Columbian govt must prove tht the rule invoked by it in accordance with constant & uniform usage practiced by the States in question & tht this usage is the expression of a right appertaining to the State granting asylum & a duty incumbent on the territorial State. This follows frm Art 38 of the Statute of the Court which refers to intl custom as evidence of general practice of law.
Court rejected Columbian contention as the facts brought before it disclosed uncertainty, contradiction & fluctuations with rgd to the exercise of diplomatic asylum. Columbian govt failed to prove the existence of alleged custom. Even if it cud be be supposed tht such a custom existed betw certain Latin American states only, it cud nt be invoked against Peru which hd repudiated it by refraining frm ratifying Montevideo Conventions of 1933 & 1939, which were 1st to include a rule concerning the qualification of the offence in matters of diplomatic asylum.

(5) Libya vs Tunisia Continental Shelf Case, ICJ Rep. 1982, p. 17
Court asserted tht equitableness of result is important rather than means. The equitableness of any specific principles of delimitations hd to be assessed in the light of the usefulness of tht principle in achieving an overall equitable result - furthr equity in intl law is a genral concept of law, directly applicable as law, taking into account the circumstances of the particular case. the relevant circumstances cud be the geography, geomorphology, landfrontier, historic rights & economic considerations. the court noted the merit of 'equidistance rule' is in cases in which its application leads to an equitable solution. States may deviate frm an equidistance line and make use of othr criteria fr the delimitation, whenever they found this is a better way to arrive at an agreement.

(6) Libyan Arab Jamahiriya vs Malta, ICJ Rep. 1985, p. 35
Court held tht 'equidistance principle' is nt a customary rule of intl law as evidenced by the State practices. Thus the principle of equidistance is nt obligatory. On 'equitable principles' the court held tht delimitation shld be effected in accordance with equitable principles & taking into account of all relevant circumstances, so as to arrive at an equitable result - the court emphasized equitableness of the means as well as the result. Court lay emphasis on geographical/geo-morphological features, and rejected the economic factors (e.g. a poor state to be given more of the area) and security as relevant circumstances. Court also noted tht 'the tracking of a median line betw those coasts by way of provisional step in a process to be continued by othr operations, is the most judicious manner of proceeding with a view to the eventual achievement of an equitable result - but it shld nt be understood as implying tht an equidistance line will be an appropriate beginning in all cases or even in all cases of delimitation betw opposite states"

2.1.3 General Principles of Law recognized by Civilized Nations
A 38(1)© of statutes of ICJ
Principles so general as apply to all legal systems in same dev state. Presumption is such is necessary for maint of justice under any system. Repeated in almost same form across since  a) Common oriogin b) Response to basic needsof human association.
For eg Pacta Sunt Servanda.
Can also be derived from Municipal Laws if universal acceptance and no conflict with int law. Not automatic- World Court to recognize first per above parameters

Examples :
1) Res Judicata : once judicially decided, absolute bar to action wrt same claim
Case 8 8. Advisory Opinion of ICJ on the Effect of Awards of Compensation made by the United Nations Administrative Tribunal , 1954 International Law Reports 310 08

Some members of UN Secretariat discharged from services of Secy Genearl of UN. Challenged before UN Admin Tribunal as illegal. Some won and awarded. General Assy sought to know if it is bound by such award.
Held that Tribunal is juridical body and award final without any review possible. So judgment binding on UN and in turn GA is a UN Organ hence binding on it too.

2) Prescription ( claim founded on enjoyment )
Eastern Greenland Case ( 1933 ): Norway and Denmark bothclaim part of Greenland.Denmark has practiced sovereignity peacefully an dover a long period. Norway says when it occupied the area was a no man’s land outside Danish Colony Limits in Greenland. Held that for a Claim without anytreaty but merely continued display of authority to succed : a) intention/ will to act as sovereign b) Some actiual exercise / display. So Denmark wins.

3) Subrogation : If someone takes over from anoter. He also carries the obligations alongwith of existingagreements. .Palestine Concsessions Case : M got some concessions from Ottoman Authorities for some worls done. Britain took from Palestine but doesn’accept this concession. Held it should since such concessions were valid.

4) Estoppel ( preclusion )
Preah Vihar case ( 1962 ) : No benefit from own wrong. If a party by attitude/ actions takes a stand contrary to rights it is claiming , it is precluded from such claim.

5) Equity ( reasonable. Fairness )
Not a source but important in decision  process. Sensible, reasonable, equitable. Many into customary rules with time. Exceptions are equity judicially recognized. It is NOT ex acqueo et bono which means conciliation.
North Sea Cont Shelf Case : Court applied equity to interpret the particular circom of the situation.

6) Other Principles
- Reparation – Good Faith – Abuse of rights – Territoriality of Criminal Law ( Lotus case ) – Humanity Considerations ( Corfu Channel Case )

Status of General Principles of Law
Some say not an independent source of Int Law since a) A principle affirmed many times becomes a Custom and so part of Int law b) No General principles except by Int Agreement c) Customs and Treaties only source since Int Law is body of Rules to which Sates have consented ( Positivists )
( CIP )

This is incorrect. Correct view is that GPs are primary sources since valid through all human societies . Municipal Legal System has always been used to fill in the gaps of Int law. Res Judicata, Pacta  etc. for example. So, this is an additional source. But only as reserve, to be used when int law has gaps. Since it provides a background of legal principles in light of which customs and treaties have to be applied.


(7) Advisory opinion of ICJ on the effect of Awards of Compensation made by the United Nations Administrative Tribunal, 1954 Intl Law  Reports 310 - discussed above

(8) Islands of Palmas Case (Netherlands vs United States) (1928)  Permanent Court of Arbitration, 2 R.I.A.A 829
Both America & Netherlands claimed sovereignity over the Islands of Palmas. the arbitrator Huber, decided in favor of Netherlands on the basis of unchallenged acts of peaceful display of sovereignity by Netherlands spread over the period 1700 to 1906.
Treaties concluded by Spain with 3rd powers recognizing her sovereignity over the Phillipines cud nt be binding upon the Netherlands.

(9) Temple of Preah Vihear Case (Merits) (Cambodia vs Thailand), ICJ Reports 1962, p.6
Court obsrvd tht a State must nt be permitted to benefit by its own inconstitency to the prejudice of another state. the party which by its recognition, its representation, its declaration, its conduct or its silence hs maintained an attitude manifestly contrary to the right it is claiming befr an intl tribunal is precluded fr claiming tht right.


2.1.4 Judicial Decisions, Juristic Opinion
Art 38(1)(d)- subsidiary and indirect sources.

a) Judicial Decisions
Not Binding since A 59 clearly says an ICJ decision will apply only to that particular case. So stare decisis not adopted by ICJ. But creates a repository and even ICJ changes only in special circumstances. Of course advisory op of ICJ not binding at all. Indeed ICJ decisions are becoming major source of law. For eg in Anglo Norwegian Fisheries case the Straight Line system was evolved which later found place in UNCLOS, 1982. Similarly in North Sea Continental Shelf the rules of equitable principles for delimitation were adopted in UNCLOS 1982

State Judicial Decisions, made uniformly, also create evidence of  Int Custom  and how law is understood in that country and so important.

a) Writings of Jurists
Only a final resort since writer view varies, national/ political bias. Calvo Clausefor eg. Useful when no treaty , legislation , precedent  since sets out the wisdom of  experts based on long  research

2.1.5 Ex aequo et bono
x aequo et bono (Latin for "according to the right and good" or "from equity and conscience") is a phrase derived from Latin that is used as a legal term of art. In the context of arbitration, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand.

Article 38(2) of the Statute of the International Court of Justice (ICJ) provides that the court may decide cases ex aequo et bono, but only where the parties agree thereto.[1] In 1984 the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada and the US.[2]

Article 33 of the United Nations Commission on International Trade Law's Arbitration Rules (1976)[3] provides that the arbitrators shall consider only the applicable law, unless the arbitral agreement allows the arbitrators to consider ex aequo et bono, or amiable compositeur, instead.[4] This rule is also expressed in many national and subnational arbitration laws, for example s. 22 of the Commercial Arbitration Act 1984 (NSW).

On the other hand, the constituent treaty of the Eritrea-Ethiopia Claims Commission explicitly forbids this body to interpret ex aequo et bono

2.2 Other sources of intl law
2.2.1 Resolution of General Assembly
After UN formed, most int law dev and codification has been thru it’s organisations. So v. important source.

Resolutions of GA are not of legal character/ not binding. But if adopted unanimously/ 66.66 % majority and mentioned in many other subsequent ones it is important as give rise to Opinio Juris. Many cases show GA announcements can be given legal effect but important to consider the number of states, their interest, position in the resolution and subsequent positions.

GA resolutions concerning internal working of UN are binding. Also, any state voting in favor of a resolution is bound by it but for those opposing it is only indicative of what could be used by the Int Court as a subsidiary means.

Western States feel resolutions are one of the element to make a customary rule, provided other practices confirm. Third World says since representative of Int Will, such resolutions by themselves form custom and declare general principles of law. Since such resolutions are based upon equity, welfare of all etc and have majority basis they well elaborate and develop Int Law to present needs. For eg self determination, self defence, no force use in int relations etc.. Some like Univ Declaration of Human Rights, 1948, Declaration on Prohibition Nuclear Weapons 1961 , Declaration on Permanent Sovereignty over Natural Resources 1962 are clearly of law making character. They can also become the source of Universal Int Law – Int Convention on  Apartheid, 1973 and Int. Convention on Genocide etc

2.2.2 Resolution of Security Council
A United Nations Security Council resolution is a UN resolution adopted by the fifteen members of the Security Council; the UN body charged with "primary responsibility for the maintenance of international peace and security".

The UN Charter specifies (in Article 27) that a draft resolution on non-procedural matters is adopted if nine or more of the fifteen Council members vote for the resolution, and if it is not vetoed by any of the five permanent members. Draft resolutions on "procedural matters" can be adopted on the basis of an affirmative vote by any nine Council members.

The five permanent members are the People's Republic of China (which replaced the Republic of China in 1971), France, the Russian Federation (which replaced the defunct Soviet Union in 1991) the United Kingdom, and the United States.


2.2.3 Advisory Opinions of PCIJ and ICJ

(10) Advisory Opinion of ICJ on the Legality of the Threat or Use of Nuclear Weapons, 35 International Legal Materials 809 (1996)
On 15 December 1994 the UN General Assembly adopted resolution A/RES/49/75K.[10] This asked the ICJ urgently to render its advisory opinion on the following question:  Is the threat or use of nuclear weapons in any circumstances permitted under international law?
The resolution, submitted to the Court on 19 December 1994, was adopted by 78 states voting in favour, 43 against, 38 abstaining and 26 not voting.

Court's analysis of illegality of nuclear weapons
- Deterrence and "threat"
- The legality of the possession of nuclear weapons

Decision The court undertook seven separate votes, all of which were passed:[13]
- The court decided to comply with the request for an advisory opinion;[6]

- The court replied that "There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons";[14]

- The court replied that "There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such";[15]

- The court replied that "A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful";[16]

- The court replied that "A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons"[17]

- The court replied that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake"[18]

- The court replied that "There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control"

(11) Advisory Opinion of ICJ on Namibia, ICJ Rep. 1971, p, 16
South-West Africa (Afrikaans: Suidwes-Afrika; German: Südwestafrika) was the name that was used for the modern day Republic of Namibia during the earlier eras when the territory was controlled by the German Empire and later by South Africa.

German colony - As a German colony from 1884, it was known as German South-West Africa (Deutsch-Südwestafrika). Germany had a difficult time administering the territory, which, owing to the Germans' native policy, experienced many insurrections, especially those led by guerilla leader Jacob Morenga. The main port, Walvis Bay, and the Penguin islands had been annexed by Britain as part of the Cape Colony in 1878, and became part of the Union of South Africa in 1910.
As part of the Heligoland-Zanzibar Treaty in 1890, a corridor of land taken from the northern border of Bechuanaland, extending as far as the Zambezi river, was added to the colony. It was named the Caprivi Strip (Caprivizipfel) after the German Chancellor Leo von Caprivi.[1]
During 1915, the region was taken from German control in the South-West Africa Campaign of the First World War. After the war, it was declared a League of Nations Mandate territory under the Treaty of Versailles, with the Union of South Africa responsible for the administration of South-West Africa, including Walvis Bay.

UN trust territory
The Mandate was supposed to become a United Nations Trust Territory when League of Nations Mandates were transferred to the United Nations following the Second World War. The Union of South Africa objected to South-West Africa coming under UN control and refused to allow the territory's transition to independence, regarding it as a fifth province (even though it was never formally incorporated into South Africa)

International law
These South African actions gave rise to several rulings at the International Court of Justice, which in 1950 ruled that South Africa was not obliged to convert South-West Africa into a UN trust territory, but was still bound by the League of Nations Mandate with the United Nations General Assembly assuming the supervisory role. The ICJ also clarified that the General Assembly was empowered to receive petitions from the inhabitants of South-West Africa and to call for reports from the mandatory nation, South Africa.[3] The General Assembly constituted the Committee on South-West Africa to perform the supervisory functions.[4] In another advisory opinion issued in 1955, the Court further ruled that the General Assembly was not required to follow League of Nations voting procedures in determining questions concerning South-West Africa.[5] In 1956, the Court further ruled that the Committee had the power to grant hearings to petitioners from the mandated territory.[6] In 1960, Ethiopia and Liberia filed a case in the International Court of Justice against South Africa alleging that South Africa had not fulfilled its mandatory duties. This case did not succeed, with the Court ruling in 1966 that they were not the proper parties to bring the case

Mandate terminated
There was a protracted struggle between South Africa and forces fighting for independence, particularly after the formation of the South West Africa People's Organisation (SWAPO) in 1960.
In 1966, the General Assembly passed resolution 2145 (XXI) which declared the Mandate terminated and that the Republic of South Africa had no further right to administer South-West Africa. In 1971, acting on a request for an advisory opinion from the United Nations Security Council, the ICJ ruled that the continued presence of South Africa in Namibia was illegal and that South Africa was under an obligation to withdraw from Namibia immediately. It also ruled that all member states of the United Nations were under an obligation not to recognize as valid any act performed by South Africa on behalf of Namibia.[9]

South-West Africa became known internationally as Namibia when the UN General Assembly changed the territory's name by Resolution 2372 (XXII) of 12 June 1968.[10] SWAPO was recognized as representative of the Namibian people and gained UN observer status[11] when the territory of South West Africa was already removed from the list of Non-Self-Governing Territories.

The territory became the independent Republic of Namibia on 21 March 1990, although Walvis Bay became part of Namibia only in 1994.
Bantustans

The South African authorities established 10 bantustans in South-West Africa in the late 1960s and early 1970s in accordance with the Odendaal Commission, three of which were granted self-rule.[12] These bantustans were replaced with separate ethnicity based governments in 1980.

The bantustans were: Basterland, Bushmanland, Damaraland, East Caprivi (self rule 1976), Hereroland (self-rule 1970), Kaokoland,  Kavangoland (self-rule 1973), Namaland, Ovamboland, Tswanaland

(12) Advisory Opinion of ICJ in Western Sahara Case, ICJ Rep.. 1975, p12
Since its accession to independence in 1956, Morocco has considered Spanish Sahara to be part of its pre-colonial territory[citation needed], and Spain had largely decolonized its foreign holdings, including much of Spanish Morocco, but had retained the Spanish Sahara. In 1958, the Moroccan Army of Liberation fought the Spanish forces in the Ifni War. After support from France, Spain regained control of the region but returned the regions of Tarfaya, and Tantan to Morocco. Morocco continued to demand the return the remaining regions, Ifni, Saguia el-Hamra and Rio De Oro and several other regions (Mauritania, part of Algeria & part of Mali) colonized by France. During the 1960s, Morocco succeeded in getting Spanish Sahara to be listed on the list of territories to be decolonized, and on December 20, 1966, United Nations General Assembly Resolution 2229 called on Spain to hold a referendum on self-determination in the region.

After initially resisting all claims by Morocco and Mauritania (which also started laying claims to parts of the region), Spain announced on August 20, 1974, that a referendum on self-determination would be held in the first six months of 1975 and took a census of the region in order to assess the voting population.

Morocco declared it cannot accept a referendum which would include an option for independence and renewed its demands for the reintegration of the remaining provinces of Saguia el-Hamra and Rio de Oro to the country's sovereignty. In Mauritania, a smaller movement existed to overtake some amount of the territory, partitioning it with Morocco.

Algerian-Moroccan relations had been strained since Algeria's independence in 1962, culminating in the Sand war, and a lack of normalized relations. Algeria, after initially supporting Morocco and Mauritania in their demands[citation needed], started in 1975 to support the independence of the territory. The Algerian official position was that it supported the right of self-determination of the people of the former Spanish colony. The Polisario Front, created in 1973, a national liberation movement known as Polisario (Spanish: "Frente Popular de Liberación de Saguia el-Hamra y Río de Oro" English: "Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro") was formed in 1973 to expel the Spaniards. They engaged in several low-level acts of property destruction, mostly localized around the Fosbucraa conveyor belt, which exported the rich phosphates to the Atlantic Ocean.

On September 17, 1974, King Hassan II announced his intention to bring the issue to the ICJ. In December, Spain agreed to delay the referendum pending the opinion of the court. They gave their support to ICJ submission on the grounds that it be a non-binding, advisory opinion, rather than a "contentious issue", where the ruling would oblige the interested states to act in a particular manner.

On December 13, the United Nations General Assembly voted on submission, resulting in UN General Assembly Resolution 3292, affirming it and defining the wording of the questions to be submitted. Algeria was among the nations voting in favor, and several Third World nations abstained.
Submission

UN General Assembly Resolution 3292[2] requested that the International Court give an advisory opinion on the following questions:
    :I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?
And, should the majority opinion be "no", the following would be addressed:
    :II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

In the meantime, Morocco and Mauritania jointly agreed to not contest the issue of partition or sovereignty. On January 16, 1975, Spain officially announced the suspension of the referendum plan, pending the opinion of the court. From May 12 through to May 19, a small investigative team made of citizens from Cuba, Iran, and Côte d'Ivoire was sent into the region to assess public support for independence. They also performed inquiries in Algeria, Mauritania, Morocco, and Spain.

In the summer, the questions were submitted by King Hassan II and Spain. Algeria, Mauritania, Morocco, and Spain were all given permission to present evidence at the hearings (the Polisario was locked out as only internationally recognized states have a right to speak - Algeria largely represented the Sahrawis). Twenty-seven sessions were held in June and July before the Court called the proceedings final.

The arguments presented by Morocco and Mauritania were essentially similar: that either one had a sovereign right over the territory. In the case of Morocco, the kingdom of Morocco claimed the allegiance of a variety of tribes in surrounding territory. The modern Moroccan monarchy is derived from this kingdom[citation needed]. In the case of Mauritania, there was no clearly defined state that existed at the time. Instead, Mauritania argued that a similar entity existed which they called "bilad Chinguetti". Spain argued against Moroccan sovereignty, citing the relationship that Spanish explorers and colonizers had established with the sultan, none of which ever recognized his authority over the region. Algeria also defended the position that the Sahrawis were a distinct people[citation needed], and not under the subjection of Morocco or Mauritania.

The Opinion
On October 15, a UN visiting mission sent by the General Assembly to tour the region and investigate the political situation published its findings, showing that the Sahrawi population were "overwhelmingly" in favor of independence from both Spain and Morocco/Mauritania. These findings were submitted to the Court, who published their opinion the next day.

For the former question, the Court decided by a vote of 13 to three that the court could make a decision on the matter, and unanimously voted that at the time of colonization (defined as November 28, 1884), the territory was not terra nullius (that is, the territory, did belong to someone).

For the latter question, the Court decided by a vote of 14 to two that it would decide. It was of the opinion, by 14 votes to two, that there were legal ties of allegiance between this territory and the Kingdom of Morocco. Furthermore, it was of opinion, by 15 votes to one, that there were legal ties between this territory and the "Mauritanian entity". However, the Court defined the nature of these legal ties in the penultimate paragraph of its opinion, and declared that neither legal tie implied sovereignty or rightful ownership over the territory. These legal ties also did not apply to "self-determination through the free and genuine expression of the will of the peoples of the Territory."(ICJ Reports (1975) p. 68, para. 162)

(13) Advisory Opinion of ICJ in Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo Case, 2010
Accordance with International Law of the Unilateral Declaration of Independence In Respect of Kosovo was a request for an advisory opinion referred to the International Court of Justice by the UN General Assembly regarding the 2008 unilateral declaration of independence of Kosovo. The territory of Kosovo is the subject of a dispute between Serbia and the Republic of Kosovo established by the declaration. This was the first case regarding a unilateral declaration of independence to be brought before the court.

The court delivered its advisory opinion on 22 July 2010; by a vote of 10 to 4, it declared that "the declaration of independence of the 17 February 2008 did not violate general international law because international law contains no 'prohibition on declarations of independence'."[2] There were many reactions to the decision, with most countries that already recognise Kosovo hailing the decision and saying it was "unique" and does not set a precedent; while most countries that do not recognise Kosovo said they would not be doing so as the ruling could set a precedent of endorsing secession in other places.

Ruling

On 22 July 2010, the court ruled that Kosovo's declaration of independence was not in violation of international law.[115][116][117] The President of the ICJ Justice Hisashi Owada said that international law contains no "prohibition on declarations of independence." The court also said while the declaration may not have been illegal, the issue of recognition was a political one.[118]

The court asserted that the declaration of independence was not issued by the Assembly of Kosovo, Provisional Institutions of Self-Government, or any other official body; did not follow the legislative procedure; and was not properly published. The words Assembly of Kosovo in the English and French variants were due to an incorrect translation and were not present in the original Albanian text, thus the authors, who named themselves "representatives of the people of Kosovo" were not bound by the Constitutional Framework created by the UNMIK which reserved the international affairs of Kosovo solely to the competency of the UN representative.[119]

The advisory opinion by the court was seen to have set a possible precedent that could have far-reaching implications for separatist movements around the world, and even for Serbia's EU membership talks. It was also read as being likely to lead to more countries recognising Kosovo's independence

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3. Relationship between Intl Law and Muncipal Law

3.1 Theories

3.1.1 Monistic Theory - No ratification of treates needed - intl law higher than national law - treaties are law - intl law enforceable in national courts without ratification. Judge can declare national law invalid if it condradicts intl law - adv -> good fr human rights - faster implementation of laws, close to natural law disadv, fast legislation -> enforced to appease other states -> judges might not be able to correctly interpret the intl law(also a fear which leads countries to adopt dualistic theory) - In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution - in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification

3.1.2 Dualistic Theory - Intl law becomes national/local law only after ratification - emphasize distinction bw intl & national law & require translation - takes more time -> legislative block holes - other local national laws may subsequently overrule the intl law at a later stage(lex posterior) - hence implementation of intl law a problem - Negligence or unwillingness to implement intl law can pose a problem in intl states

A matter of national legal tradition
International law does not determine which point of view is to be preferred, monism or dualism. Every state decides for itself, according to its legal traditions. International law only requires that its rules are respected, and states are free to decide on the manner in which they want to respect these rules and make them binding on its citizens and agencies. But they are always accountable if they fail to adapt their national legal system in a way that they can respect international law.

The problem of “lex posterior”
In dualist systems, international law must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law. However, the need for translation in dualist system causes a problem with regard to national laws voted after the act of translation. In a monist system, a national law that is voted after an international law has been accepted and that contradicts the international law, becomes automatically null and void at the moment it is voted. The international rule continues to prevail. In a dualist system, however, the original international law has been translated into national law - if all went well - but this national law can then be overridden by another national law on the principle of "lex posterior derogat legi priori", the later law replaces the earlier one. This means that the country - willingly or unwillingly - violates international law. A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law.

3.2 Practice of States:

India(dualist), requires ratification of intl law & treaties - intl rules are considered in customary laws but incase of conflict between national & intl law the national law prevails (Justice Chinnappa Reddy in 'Gramophone Company of India Ltd vs Birendra Bahadur Pandey') -  Directive principles Article 51 does acknowledge intl law & does direct India to strive to implement just honorable intl laws - duty of the State to apply them in making laws - but Directive Principles cannot be enforced in a court of justice

UK(dualist), In the United Kingdom, the common law recognises customary international law as a direct source of rules in municipal law.[1]
However, the law adopts a ‘dualist’ stance in respect of treaties<, including human rights treaties: they have no direct effect in national law in the absence of legislation to transform them into rules of the municipal legal order. This dualism is qualified by the fact that courts will often use treaties as aids in deciding questions of municipal law, albeit not as a source of law in their own right.

USA(Mixed mono-dualist)
The United States of America has a "mixed" monist-dualist system; international law applies directly in US courts in some instances but not others. US Constitution, art. VI, does indeed say that treaties are part of the Supreme Law of the Land, as suggested by the quote above; however, its Supreme Court, as late as the recent case of Medellín v. Texas,[7] has restated that some treaties are not "self-executing." Such treaties must be implemented by statute before their provisions may be given effect by national and sub-national courts. Similarly with regard to customary international law, its Supreme Court stated, in the case of the Pacquete Habana (1900), that "international law is part of our law." However, it also said that international law would not be applied if there is a controlling legislative, executive, or judicial act to the contrary. - General rule is tht if conflict btw treaty & national law which ever is on a later date will prevail.

(14) In Re Berubari Union No. (I), AIR 1960 SC 845: (1960) 3 SCR 250
in Berubari Union Case No 1 it ws held tht an agreement involving cessation of part of Indian territory to Pakistan required amendment to the Constitution hence legislative enactment is neccessary.

(15) Ram Kishore Sen vs UoI (1966) 1 SCR 430: AIR 1966 SC 644
Berubari Union Case No 2. wherein the territory de jure belonged to Pakistan it ws held tht giving it back did nt entail cessation of territory hence transfer could be executed by executive action & no legislation ws neccessary.

(16) Jolly George Varghese vs Bank of Cochin, AIR 1980 SC 470 (1980) 2 SCC 360
In India treaties do not have the force of law and consequently obligations arising thrfrm will nt be enforceable in municpal courts unless backed by legislation. Sec 51 of CrPC was construed to avoid conflict with Art 11 of Int Covenant on Civil and Political Rights.

(17) Gramophone Company of India Ltd vs Birendra Bahadur Pandey, AIR 1984 SC 667:(1984) 2 SCC 534
Justice Chinnappa Reddy obsrvd: Thr cn be no question tht nations must march with the intl community and muncipal law must respect rules of intl law. The comity of nations require tht rules of intl law may be accomodated in the muncipal law even w/o express legislative sanction. But when they do run into such conflict, the sovereignity & integrity of the republic & supremacy of the constituted legislatures in making the laws may nt be subjected to external rules (except to extent legitimately accepted by the constituted legislatures themselves). If in respect of any principle of intl law, the Parliament says "no", the national court cannot say "yes". national courts shall approve intl law only when it does nt conflict with national law. national courts being organs of the state and nt organs of intl law must per force apply national law if intl law conflicts with it. Indian Copyright Act was harmonized with Int Treaties.
   
(18) UoI vs Sukumar Sengupta, AIR 1990 SC 1962: 1990 Supp. SCC 545 ( teen bigha case )
Held tht lease in perpetuity of teen bigha in favor of Bangladesh did nt amt to cessessation of territory and hence legislation ws nt reqd.

(19) Vellore Citizens' Welfare Forum vs UoI (1996) 5 SCC 647
PIL against Tanneries polluting water in areas of Tamil Nadu - 35 - 40 litres of water reqd fr 1 kilo of leather - tons of leather being produced - 176 types of diff chemicals being used - Drinking water getting affected
Court held
(i)Central Govt to consitute an authority u/s 3(3) of EPA1986 - confer said authorities with all such power neccessary to deal with the situation created by the tanneries & othr polluting industries in St of TN
(ii) Authority - "precautionary principle" & "polluter pays" principle. - with help of expert opinion calculate loss to ecology/environment in affected areas
(iii) Compute compensation on two heads (1) fr reversing the ecology (2) payment to individuals
(iv) direct the closure of the industry owned/managed by a polluter in case he evades or refuses to pay the compensation awarded against him. This shall be in addition to the recovery from his as arrears of land revenue.
(v) industry may have set up the necessary pollution control device at present but it shall be liable to pay for the past pollution generated by the said industry which has resulted in the environmental degradation and suffering to the residents of the area.
(vi) We impose pollution fine of Rs. 10,000/- each - tanneries in North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R - fine paid along with othr fines mentioned above
(vii) The authority, in consultation with expert bodies like NEERI, Central Board, shall frame scheme/schemes for reversing the damage caused to the ecology and environment by pollution in the State of Tamil Nadu - St to implement these schemes - exp met frm EPF(env pro fund)
(viii) Closure orders fr tanneries - to reopen with pollution control devices - failing to comply -> permanent closure
(ix) Direct SP, Coll, DM, DC of said districts to close tanneries with imm effct who fail to obtain consent frm board
(x) Govt Order - no new industries in prohibited area - old industries to be reviewed by auth & relocated
(xi) standards stipuated by the Board regarding total dissolved solids (TDS) and approved by the NEERI shall be operative - all tanneries situated in TN to comply - The quality of ambient waters has to be maintained through the standards stipulated by the Board.

(20) Vishaka vs State of Raj, AIR 1997 SC 3011: 6 SCC 241r
SC used articles of Convention to Eliminate all forms of Discrimination against Women to lay down guidelines binding as law till the time required legislations was not in place

(21) Gaurav Jain vs UoI & Ors, AIR 1997 SC 3021

(22) CIT vs P.V.A.L Kulandagan Chettiar (2004) 6 SCC 235
Issues in frnt of SC (many othr issues covered by HC)
(a) Whether the Malaysian income cannot be subjected to tax in India in the basis of the agreement of avoidance of double taxation entered into between Government of India and Government of Malaysia ?
(b) Whether the capital gains should be taxable only in the country in which the assets are situated?

Treaty provisions prevail over local provisions  
The Apex Court in CIT v. P V A L Kulandagan Chettiar (2004) 137TAX460 in the context of a person maintaining residence in India as well as Malaysia and deriving business incomes in Malaysia, held that a liability to tax arising under the provisions of section 4 and 5 of the Income tax Act, 1961 which provide for taxation of global income of an assessee chargeable to tax, there under, is subject to the provisions of an agreement entered into between he Central Government and the Government of a foreign country for avoidance of double taxation as envisaged under section 90 . Such an agreement will act as an exception to or modification of section 4 and 5. In a further note the Supreme Court clarified that the provisions of such agreement cannot fasten a tax liability where the liability is not imposed by a local Act. And where tax liability is imposed by the Act, the agreement may be resorted to either for reducing the tax liability or altogether avoiding the tax liability. In case of any conflict between the local Act and the Agreement provisions the agreement clauses will prevail on the basis of section 90(2). Reading Article 4 of the Indo Malaysian tax treaty the Apex Court held that fiscal domicile/taxation will be determined on the basis of close personal and economic relations. In this case once the assessee owned immovable property in Malaysia the income arising there from is held to be chargeable to taxes in Malaysia only in which case according to the Apex Court his residence in India becomes irrelevant altogether.
The Apex Court also held that the treaty has application as well to capital gains income vide Article 6 of the tax treaty.

(23) Committee of US Citizens Living in Nicaragua vs Reagan, US Court of Appeals District of Columbia Circuit 1988, 859 Fed. Rptr. 2d 929
US Court refused to hear plea - said issue is out of their jurisdiction (Rgding US armed action in Nicargua)
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4. State Responsibility

4.1 Basis of International Responsibility
The laws of state responsibility are the principles governing when and how a state is held responsible for a breach of an international obligation. Rather than set forth any particular obligations, the rules of state responsibility determine, in general, when an obligation has been breached and the legal consequences of that violation. In this way they are "secondary" rules that address basic issues of responsibility and remedies available for breach of "primary" or substantive rules of international law, such as with respect to the use of armed force. Because of this generality, the rules can be studied independently of the primary rules of obligation. They establish
(1) the conditions for an act to qualify as internationally wrongful,
(2) the circumstances under which actions of officials, private individuals and other entities may be attributed to the state,
(3) general defences to liability and (4) the consequences of liability.

Until recently, the theory of the law of state responsibility was not well developed. The position has now changed, with the adoption of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts ("Draft Articles") by the International Law Commission (ILC) in August 2001.[1] The Draft Articles are a combination of codification and progressive development. They have already been cited by the International Court of Justice[2] and have generally been well received.

Although the articles are general in coverage, they do not necessarily apply in all cases. Particular treaty regimes, such as the General Agreement on Tariffs and Trade and the European Convention on Human Rights, have established their own special rules of responsibility.

(24) Corfu Channel Case, ICJ Rep. 1949, p. 4
ICJ did nt express an opinion on right of passage of warships through territorial sea. It limited its observations to the case of 'straits' - however some judges in their dissenting views made obsrvtns on the issue of innocent passage of warships. Judge Alvarez felt tht since war hd been outlawed in the UN Charter, the mission of warships can only be to secure the legitimate defence of countries to which they belong. Judge Krylov argued tht thr ws no right of innocent passage through territorial sea. Judge Azevedo said tht position of warships in respect of passage ws different frm tht of merchant ships.
Intl Law Commission hd proposed tht a State might make innocent passage of warships subject to prior authorisation or notification, but the State shld normally grant innocent passage. In 1989 US & USSR made an important jt stmnt tht 'All ships, incl warships, enjoy the right of innocent passage through the territorial sea in accordance with intl law, fr which neither prior notification nor authorisation is required'. However its a jt stmnt made by two states & nt binding on othr states.

(25) Nicaragua Case ( Nicaragua vs USA) ICJ Rep. 1986, p. 14
[If a state acts in a way prima facie incompatible with a recognized rule but defends its conduct by appealling to exceptions or justifications contained within the rule itself, then, whtr or nt the State's conduct is in fact justifiable on tht basis, the significance of tht attitude is to confirm rather than to weaken the rule.]
The Republic of Nicaragua v. The United States of America[1] was a 1984 case of the International Court of Justice (ICJ) in which the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation.[2] The Nicaraguan government finally withdrew the complaint from the court in September 1992 (under the later, post-FSLN, government of Violeta Chamorro), following a repeal of the law requiring the country to seek compensation.[3]

The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956."

4.2 Constituent Elements of Intl Responsibility
Essential Characteristics of State Responsibility hinge upon certain basic factors
(i) existence of an intl legal obligation in force as btw 2 particular states
(ii) thr hs occured an act/omission which violates tht obligation & which is imputable to the State responsible
(iii) loss or damage hs occured frm the unlawful act or omission.
(iv) State shld hv been bound by obligation when act/omission occurs
State cannot abolish or create intl laws the way it can with Municipal laws - state responsibility concerning intl duties is thrfr legal responsibility. Rgd consituent elements of intl resp certain theories hve been in vogue

4.2.1 Damage Theory - failure to fulfill an intl obligation is not enough to make a State responsible under Intl law - the claimant state must have suffered some damage on account of failure of acting state. A certain conduct is forbidden becoz it is likely to cause damage to other subjects - ILC Draft Code on State Resp 2001 does nt specifically include damage as separate constituent element of State Resp, it is implicit in Art 2 of the Draft Code :
"There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) Is attributable to the State under intl law; and
(b) Constitutes a breach of an intl obligation of the State
However Part II of the Draft Code(Content of the Intl Resp of a State) mentions damage as legal consequences of an internationally wrongful act. Art 31 provides tht resp State is under an obligation to make full reparation fr the injury caused by such an act. Injury includes any damage whtr material or moral caused by such act.

4.2.2 Fault Theory
Principle of subjective resp emphasised an element of intentional or negligent conduct on part of the person concerned is neccessary before his State can be rendered liable fr any injury caused - this view holds tht presence of malice or culpable negligence is a condition precedent. In Corfu Channel case court ws concerned with Albania's knowldge of the laying of mines & the question of prima facie resp fr any unlawful act committed within the territory of the State concerned , irrespective of attribution. Court did not reach its conclusion by an enquiry into the mental state of individual organ or agent of the albanian govt.

Diff to base State's liability on fault - Corfu Channel case - Home Missionary Society Claim, tribunal noted tht it ws estb in inl law tht no govt ws resp fr the acts of rebels whr it itself ws guilty of no breach of good faith or of no negligence in suppressing the revolt.

4.2.3 Absolute Liability and Risk Theory
Establishes the liability of States arising out of the performance of certain activities which are lawful but create serious risks, such as spatial & nuclear activities. However principle of risk is not applied as a general principle of responsibility but in circumstances & conditions which are clearly defined in intl conventions. Eg the principle of strict liability finds application in the Convention on Intl Liability fr Damage Caused by Space Objects, 1971 - Under it a launching State is absolutely liable to pay compensation fr damage caused by its space objects on the surface of the earth or to aircrafts in flight. A series of treaties have established a regime of strict liability fr injurious consequences arising out of peaceful uses of nuclear energy.


4.3 The Act of State (Rules of Attribution)
Imposing upon the State absolute liability whrever an official is involved encourages tht State to exercise gr8r control over its various depts and reps. Also stimulates moves towrds complying with objective stds of conduct in intl relations.
Imp to note tht St is nt resp under intl law fr all acts perfrmed by its nationals - if an Englishman were to attack & injure a frenchman on holiday in London, the UK wud nt be held liable fr the injury caused unless the offender were a policeman or a soldier in UK. A St is resp only fr acts of its servnts tht r imputable or attributable to it - imputability is the legal fiction which assimilates the actions or omisions of St officials to the State itself & which renders the State liable fr damage resulting to the property or person of an alien.

Youman's case - Mexican militia ordered to protect American citizens instead join the riot in which the Americans were killed - Mexican Govt ws held liable even though the defaulting soldiers disobeyed the orders of their superiors

Incase act is completely ultra vires (beyond legal capacity of the official involved) no attribution of liability arises. When an incumbent State agency commits an ultra vires act it cannot be said to have acted on behalf of the State - But a State may become resp fr the wrongs if such wrongs were made possible by the omission or default of some other official or State organ which could have prevented the occurence of the offence. State may incur an indirect resp arising out of an ultra vires act.

(26) LaGrand Case (Germany vs USA) ICJ Reports 2001, p. 466
The LaGrand case was a legal action heard before the International Court of Justice (ICJ) which concerned the Vienna Convention on Consular Relations. In the case the ICJ found that its own temporary court orders were legally binding and that the rights contained in the convention could not be denied by the application of domestic legal procedures.

German Nationals La Grand bros - armed robbery -> bank - one man killed, woman seriously injured - arrested - tried - sentenced to death - no consular assistance - acc to Vienna Convention shld hv been informed of their right to consular assistance - later on contacted the German consulate - appealed their sentences - argued in court that they were nt informed of consular assistance - federal court rejected their arguments on grnds of procedural default - issue cannot be raised in federal court unless they have been raised in State

Background
On January 7, 1982, brothers Karl and Walter Bernhard LaGrand bungled an armed bank robbery in Marana, Arizona, United States, killing a man and severely injuring a woman in the process. They were subsequently charged and convicted of murder and sentenced to death. The LaGrands were German nationals, having been born in Germany. While they had both lived in the United States since they were four and five, respectively, neither had acquired U.S. citizenship. As foreigners the LaGrands should have been informed of their right to consular assistance, under the Vienna Convention, from their state of nationality, Germany. However the Arizona authorities failed to do this even after they became aware that the LaGrands were German nationals. The LaGrand brothers later contacted the German consulate of their own accord, having learned of their right to consular assistance. They appealed their sentences and convictions on the grounds that they were not informed of their right to consular assistance, and that with consular assistance they might have been able to mount a better defense. The federal courts rejected their argument on grounds of procedural default, which provides that issues cannot be raised in federal court appeals unless they have first been raised in state courts.

Diplomatic efforts, including pleas by German ambassador Jürgen Chrobog and German Member of Parliament Claudia Roth, and the recommendation of Arizona's clemency board, failed to sway Arizona Governor Jane Dee Hull, who insisted that the executions be carried out.[1] Karl LaGrand was subsequently executed by the state of Arizona on February 24, 1999, by lethal injection. Walter LaGrand was then executed March 3, 1999, by lethal gas.[2]
The case

Germany then initiated legal action in the International Court of Justice against the United States regarding Walter LaGrand. Hours before Walter LaGrand was due to be executed, Germany applied for the Court to grant a provisional court order, requiring the United States to delay the execution of Walter LaGrand, which the court granted.

Germany then initiated action in the U.S. Supreme Court for enforcement of the provisional order. In its judgment,[3] the U.S. Supreme Court held that it lacked jurisdiction with respect to Germany's complaint against Arizona due to the eleventh amendment of the U.S. constitution, which prohibits federal courts from hearing lawsuits of foreign states against a U.S. state. With respect to Germany's case against the United States, it held that the doctrine of procedural default was not incompatible with the Vienna Convention, and that even if procedural default did conflict with the Vienna Convention it had been overruled by later federal law—the Antiterrorism and Effective Death Penalty Act of 1996, which explicitly legislated the doctrine of procedural default. (Subsequent federal legislation overrides prior self-executing treaty provisions, Whitney v. Robertson, 124 U.S. 190 (1888)).

The U.S. Solicitor General sent a letter to the Supreme Court, as part of these proceedings, arguing that provisional measures of the International Court of Justice are not legally binding. The United States Department of State also conveyed the ICJ's provisional measure to the Governor of Arizona without comment. The Arizona clemency board recommended a stay to the governor, on the basis of the pending ICJ case; but the governor of Arizona ignored the recommendation and Walter LaGrand was executed on March 3, 1999. As of 2010 this is the last use of lethal gas in the U.S., although five states still permit its use in varying circumstances.

Germany then modified its complaint in the case before the ICJ, alleging furthermore that the U.S. violated international law by failing to implement the provisional measures. In opposition to the German submissions, the United States argued that the Vienna Convention did not grant rights to individuals, only to states; that the convention was meant to be exercised subject to the laws of each state party, which in the case of the United States meant subject to the doctrine of procedural default; and that Germany was seeking to turn the ICJ into an international court of criminal appeal.
ICJ decision

On June 27, 2001, the ICJ, rejecting all of the United States' arguments, ruled in favor of Germany. The ICJ held that the Vienna Convention on Consular Relations of 24 April 1963 (Vienna Convention) granted rights to individuals on the basis of its plain meaning, and that domestic laws could not limit the rights of the accused under the convention, but only specify the means by which those rights were to be exercised. The ICJ also found that its own provisional measures were legally binding. The nature of provisional measures has been a subject of great dispute in international law;[citation needed] the English text of the Statute of the International Court of Justice implies they are not binding, while the French text implies that they are. Faced with a contradiction between two equally authentic texts of the statute, the court considered which interpretation better served the objects and purposes of the statute, and hence found that they are binding. This was the first time in the court's history it had ruled as such.

The court also found that the United States violated the Vienna Convention through its application of procedural default. The court was at pains to point out that it was not passing judgment on the doctrine itself, but only its application to cases involving the Vienna Convention.

(27) Case concerning Avena and other Mexican Nationals (Mexico vs USA) ICJ Reports 2004, p.12
Mexico v. United States of America, formally Avena and Other Mexican Nationals, was a case before the International Court of Justice (ICJ) of the United Nations. It was decided on 31 March 2004, finding that the United States had breached its obligations under the Vienna Convention on Consular Relations in not allowing representation from Mexico to meet with Mexican citizens arrested and imprisoned for crimes in the United States.

An order indicating provisional measures in the case of Mr. José Ernesto Medellín Rojas was entered on 16 July 2008, and on 19 January 2009 the ICJ found that the United States breached its obligations under the 16 July order, but also that the Statute of the International Court of Justice "does not allow it to consider possible violations of the Judgment which it is called upon to interpret.

4.4 International Crimes and Delicts
Internationally wrongful acts: According to the Draft Articles, an internationally wrongful act must:
-   be attributable to the state under international law; and
-   constitute a breach of an international obligation of the state.[10]

An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime. On the basis of the rules of international law in force, an international crime may result, inter alia, from:
(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;
(b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;
(c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;
(d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.
4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.
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4.5 Forms of Reparation (reparation is replenishment of a previously inflicted loss by the criminal to the victim)

4.5.1 Restitution
Restitution is generally associated with the idea of returning something lost or stolen to its legitimate owner. In international law, however, the notion of restitution is linked with the issue of state responsibility. In this sense, restitution is one of the forms through which a state may discharge its obligation to provide reparation for the harm caused by its wrongful acts. More precisely, the term is used, in international practice, in at least two senses. In the strict sense, it signifies the return of unlawfully taken property to the original owner. In the broad sense, restitution (or, in its Latin version, restitutio in integrum) is the re-establishment, as far as possible, of the situation that existed before a wrongful act was committed.

A broad consensus exists among the international community preferring restitution over other forms of reparation under international law. This view is in line with the essential goal of reparation, which, according to the Permanent Court of International Justice's holding in its famous Chorzów Factory decision (1928), "must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed."

It follows that restitutionhich most closely conforms to that goals to be preferred over compensation and other forms of reparation whenever possible, unless the injured party renounces it. This primacy of restitution has been embedded in the articles on the responsibility of states for internationally wrongful acts, adopted on second reading by the United Nations International Law Commission (2001). Even advocates of this primacy, however, recognize that it is not unconditional, and they accept that compensation should be preferred at least when providing restitution would, in a situation involving two states, put a burden on the responsible state that is out of all proportion to the corresponding benefit for the injured state.

Restitution for Gross Human Rights Violations Amounting to Genocide and Crimes Against Humanity
Although there is no reason for excluding the primacy of restitution with regard to gross violations of human rights, its usefulness may be limited, in practice, by the specific type of harm caused by these kinds of wrongs. In effect, genocide and crimes against humanity cause harm, first and foremost, to immaterial and unique interests, such as dignity, personal integrity, and liberty. These cannot be restored to their original status once they are impaired.
Restitution is most suitable and appropriate with regard to violations of property rights, such as illegal or arbitrary expropriations. However, this does not mean that the role of restitution with regard to crimes against humanity is only marginal. In fact, the most invasive attacks on property are often linked with gross human rights violations. Genocide, for instance, may be accompanied by the destruction of houses and the pillage of goods. Furthermore, the destruction, plundering, and pillage of private property can by themselves amount to crimes against humanity or war crimes. This may occur, for example, when the dispossession or destruction is achieved through blatant discriminatory measures, or with the intent of persecuting a group or a collectivity, or when it is "committed by pressure of mass terror." However, a number of practical and political factors may hinder the concrete possibility for the victims to get their property back. This is particularly true with regard to two types of highly politicized restitution claims: those related to historical injustices and those connected with armed conflicts.
The former type of claim relates to serious impairments of human rights committed in a distant past, at a time when they possibly did not even constitute a breach of the existing law. The specificity of these claims lies in the fact that they are arguably based on moral grounds, rather than on the legal responsibility of the state involved. This is one of the reasons why this type of claim is generally dealt with in the framework of political settlements, rather than in the courts. The huge lapse of time passed since the occurrence of the injury poses an additional major obstacle for restitution in these cases. Properties are often destroyed or no longer identifiable, their economical destination may be irreversibly changed, or they may have been transferred to third parties acting in good faith. Under these circumstances, restitution of full ownership is often a virtually impossible option. This situation is well illustrated by land restitution claims put forward by indigenous communities for historical dispossessions.
Restitution claims connected with armed conflicts are complicated by the fact that the dispossessions often take place in conjunction with ethnic cleansing and land occupation with a view to annexation. Here, restitution may still be materially possible but politically unrealistic, particularly when it would mean the return of huge numbers of forcibly displaced persons to territories that have passed under the control of the same group who forced them to flee. In this context, property restitution can hardly be seen as an absolute goal but needs to be reconciled with other, concurring goals, to be settled in the framework of political negotiation.

Restitution in the Framework of International, Treaty-Based Judicial Mechanisms for the Protection of Human Rights
The substantive duty to provide reparations is reinforced in the context of judicial mechanisms of protection, where international courts are vested with the power to adjudicate both on the merits of allegations and on remedies. The potential of remedies, however, may be partly frustrated by the courts themselves ifn the basis of a restrictive interpretation of their remedial powers timid, low-profile approach to reparation is taken. A quite restrictive approach is adopted, for instance, by the European Court of Human Rights, which is generally reluctant to order specific remedies. However, it seems to be more audacious when it comes to infringements of property rights. The court has occasionally ordered states to return unlawfully seized properties to the former owners, thus affirming the primacy of restitution. The fact remains, however, that even in property cases, the court is not always prepared to order reparation to take place on the basis of restitution.
The Inter-American Court of Human Rights, enjoying broader remedial powers than its European counterpart, handed down a landmark judgment in 2001 in the Awas Tingni case. The Court found that Nicaragua had violated the rights to property and judicial protection of the members of the Mayagna (Sumo) community of Awas Tingni, an indigenous community located on the forested area of Nicaragua's Caribbean coastal region. For reparation, the Court ordered the government to take various measures to recognize, protect, and enforce the community's historical title on its ancestral land and resources. Although restitution was not an issue as such, the decision shows the potential of human rights mechanisms in cases of large-scale operations of dispossession that affect whole communities.

4.5.2 Indemnity
“for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case.” Such damage includes: physical or mental harm, lost opportunities, material damages and loss of earnings, moral damage, cost of legal, medical, psychological, and social services.
Example
Canada – For more than 100 years, Canada retained a practice of removing indigenous Canadian children from their families and placing them in church-run Indian residential schools (IRS). This process was part of an effort to homogenize Canadian society, and included the prohibition of native language and cultural practices. In 1991, the Canadian government established the Royal Commission on Aboriginal Peoples (RCAP), charged with exploring the relationship between aboriginal peoples, the government, and society.

As a result of the commission’s recommendations, the government symbolically issued an apology in a “Statement of Reconciliation,” admitting that the schools were designed on racist models of assimilation. Pope Benedict XVI also issued an apology on behalf of church members who were involved in the practice.[14] In addition, the government provided a $350 million fund to help those affected by the schools.[15] In 2006, the federal government signed the Indian Residential Schools Settlement Agreement, agreeing to provide reparations to the survivors of this program. The Settlement totals approximately $2 billion, and includes financial compensation, a truth commission, and support services.[

4.5.3 Satisfaction
Appropriate for Non material damage - moral injury to dignity or personality of the State or the individuals - wud include official apologies - punishment of guilty officials or the formal acknowledgement or judicial declaration of the unlawful character of an act
Art 37 ILC Draft Code of 2001 - State obligation to give satisfaction of an inury insofar as it cannot be made good by restitution or compensation - Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology etc. Satisfaction shall however not be out of proportion to the injury & may nt take a form of humiliation to the responsible State.
Rainbow warrior case - public condemnation of France fr its breach of treaty obligations to NZ made by tribunal constituted appropriate satisfaction

4.5.4 Guarantee against repetition
Art 30 ILC Draft Code 2001 - give appropriate guarantee/assurance that it will refrain from repeating wrongful act

4.6 Expropriation of Property of Aliens
With granting of independence to various 3rd world countries and in view of nationalisation measures taken by the communists and AfroAsian states expropriation of alien property for a public purpose with declared domestic policy became a regular feature.

In assessing state of intl law with rgd to the expropriation of alien property two opposing objectives are:-
(i) The capital exporting countries require some measures of protection & security before they will invest abroad;
(ii) the capital-importing countries are wary of the power of foreign investments & the drain of currency tht occurs and r often stimulated to take over such enterprise in the interests of economic & social reform.

Rules of intl law on expropriation of alien property
(i) If expropriation of foreign property is in accordance with a declared domestic policy, & if it is applied without discrimination betw citizens & the aliens, then such expropriation is justified in intl law(Starke)
(ii) If expropriation is purely confiscatory & does nt provide just  compensation to the foreign citizens or corporations, such acts of expropriation will be contrary to intl law.
(iii) If compensation is just nominal, or is indefinitely postponed or which is the subject of vague & non-committal promise, or which is below the rate of compensation awarded to nationals of the expropriating State, then such an act of expropriation is contrary to intl law.
(iv) A compensation will deemed to be appropriate whr it is adequate, prompt & effective. Art 13 of the European Energy Charter treaty 1994 provides tht expropriation must be fr a purpose which is in the public interest, not discriminatory, carried out under due process of law & accompanied by the payment of prompt, adequate & effective compensation.
(v) While the discrimination factor wud certainly be a relevant factor to be considered, it would in practice often be extremely difficult to prove in concrete cases. The political motive itself wud nt per se constitute sufficient proof of a purely discriminatory measure

4.6.1 Calvo Clause
The Calvo Clause is a legal doctrine that attaches the following five key provisions to an international investment agreement:
1.) submission to local legal jurisdiction;
2.) application of local law;
3.) assimilation of foreigners to local contracting arrangements;
4.) waiver of diplomatic protection in a foreigner’s home state; and
5.) surrender of rights under international law exclusion

The doctrine was advanced by the Argentine diplomat and legal scholar Carlos Calvo, in his International Law of Europe and America in Theory and Practice (1868). It affirmed that rules governing the jurisdiction of a country over aliens and the collection of indemnities should apply equally to all nations, regardless of size. It further stated that foreigners who held property in Latin American states and who had claims against the governments of such states should apply to the courts within such nations for redress instead of seeking diplomatic intervention. Moreover, according to the doctrine, nations were not entitled to use armed force to collect debts owed them by other nations. A Calvo clause in a contract between the government of a Latin American state and an alien stipulates that the latter agrees unconditionally to the adjudication within the state concerned of any dispute between the contracting parties.

The Calvo Doctrine was essentially restated by the Drago Doctrine, articulated by the Argentine foreign minister Luis María Drago in 1902. Venezuela then was indebted to Great Britain, Germany, and Italy, which threatened armed intervention to collect. Drago advised the United States government that “The public debt cannot occasion armed intervention nor even the actual occupation of the territory of American nations.” This statement against European intervention in the Americas squared with U.S. policy, as set forth in the Monroe Doctrine (1823) and the Roosevelt Corollary (1904); the U.S. government assented to the modified Drago version at the second Hague Peace Conference (1907) in the form adopted as the Porter Convention on the Limitation of the Employment of Force for the Recovery of Contract Debts. Although the United States opposed European intervention in the Americas, it reserved for itself the right, frequently used, to intervene with armed force in any Latin-American state where conditions seemed to menace U.S. interests.

Legality of the clause -in question- many cases null & void - North Amercia Dredging Company Case - Calvo clause ws held to be bindin on the claimant(alien) to be governed by Mexican laws, subject to the condition tht it cud nt take frm him 'his right to apply to his own Govt fr protection if his resort to the Mexican tribunals or other authorities available to him resulted in a denial or delay of justice as tht term is used in intl law.
According to Starke its illegal & void to the extent it attempts to waive in general the sovereign right of a State to protect its citizens  or where it purports to bind the claimant's govt nt to intervene in respect of clear violation of International Law


4.6.2 Position of Shareholders and Nationality of Corporation

(28) Barcelona Traction, Light and Power Co. Ltd. Case , ICJ Rep 1964, p. 6
BTLP incorp in Canada & ws operating in spain. 88% shareholders were Belgian - certain restriction appld by Spain seriously injured the company - In the eyes of the law the company ws of Canadian nationality, though a majority of the shareholders affected were Belgian nationals. Belgian govt espoused the cause of its citizens as shareholders of the company. ICJ Obsrvd & held as follows :-
(i) In municipal legal system generally a company(whose capital is represented by shares) enjoys a separate & independent corporate personality vis-a-vis its shareholders. So long as the company is in existence, a shareholder has no right to corporate assets. It is to rules generally accepted by municipal legal systems & nt to municipal law of a particular State, tht intl law refers
(ii) Mere fact that damage sustained by both company & shareholders does nt mean both are entitled to compensation. While in case of compnay their rights are infringed, in the case of the shareholders, their  interests are affected. Latter must look to company to institute appropriate action.
(iii) Shares of company whose activity is intl are widely scattered & freq change hands - thus adoption of the theory of diplomatic protection of shareholders as such by opening door to competing diplomatic claims, cud create confusion & insecurity in intl economic relations - thrfr only the national state of a company concerned ws entitled to exercise diplomatic proceedings fr the purpose of seeking redress fr the wrong done to the company.
(iv) When wrong done to company wrongdoer nt liable to shareholders, thrfr Spanish state ws nt liable to the Belgian shareholders - the situation wud be different if the act complained of is aimed at the direct rights to any declared dividend, right to attend & vote in general meetings, right to share residual assets of the company on liquidation. In such cases State of nationality of any individual shareholder must intervene in his favor, regardless of the company's nationality.
(v) In allocating corporate entities to States, intl law is based but only to  limited extent on an analogy with the rules governing the nationality of individuals - the traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has registered office. It hs been the practice of some States to give a company incorporated under their law diplomatic protection solely when it hs its seat or mgmnt or center of control in their territory or when a majority of or a substantial portion of shares has been owned by national of the State concerned. However this test of geniuine connection hs not found general acceptance

In prsnt case Barcelona Traction's links with Canada are manifold. Besides being incorporated in Canada & having its registered office there, its board meetings were held in Canada fr many years - in fact Canadian nationality of the company hs rcvd general recognition. As Canada hs nt espoused the cause Belgium hs no locus standi to espouse, befr the ICJ, the claim of Belgium nationals - shareholders in the company

4.6.3 Nationality by naturalisation

Naturalization (or naturalisation) is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth.

In general, basic requirements for naturalization are that the applicant hold a legal status as a full-time resident for a minimum period of time and that the applicant promise to obey and uphold that country's laws, to which an oath or pledge of allegiance is sometimes added. Some countries also require that a naturalized national must renounce any other citizenship that they currently hold, forbidding dual citizenship, but whether this renunciation actually causes loss of the person's original citizenship will again depend on the laws of the countries involved.

Nationality is traditionally based either on jus soli ("right of the territory") or on jus sanguinis ("right of blood"), although it now usually mixes both. Whatever the case, the massive increase in population flux due to globalization and the sharp increase in the numbers of refugees following World War I created an important class of non-citizens called stateless persons. In some rare cases, procedures of mass naturalization were passed. As naturalization laws were created to deal with the rare case of people separated from their nation state because they lived abroad (expatriates), western democracies were not ready to naturalize the massive influx of stateless people which followed massive denationalizations and the expulsion of ethnic minorities from newly created nation states in the first part of the 20th century, but they also counted the (mostly aristocratic) Russians who had escaped the 1917 October Revolution and the war communism period, and then the Spanish refugees. As Hannah Arendt pointed out, internment camps became the "only nation" of such stateless people, since they were often considered "undesirable" and were stuck in an illegal situation (their country had expelled them or deprived them of their nationality, while they hadn't been naturalized, thus living in a judicial no man's land).

After World War II, the increase in international migrations created a new category of refugees, most of them economic refugees. For economic, political, humanitarian and pragmatic reasons, many states passed laws allowing a person to acquire their citizenship after birth (such as by marriage to a national – jus matrimonii – or by having ancestors who are nationals of that country), in order to reduce the scope of this category. However, in some countries this system still maintains a large part of the immigrated population in an illegal status, albeit some massive regularizations (in Spain by José Luis Zapatero's government and in Italy by Berlusconi's government).

A state hs right to protect its citizens abroad, it is entitled to intervene diplomatically to lodge a claim fr decision befr an intl tribunal against inijuries suffered by its subjects.

Once a state hs taken up a case on behalf of one of its subjects befr an intl tribunal, then in the eyes of the latter, the state is the sole claimant . Injured subjects right is to claim throught the State. Some writers hold tht States can proceed with the Claim even though the individual waives it.

(29) Nottebohm (Liechtenstein vs Guatemala) Case, ICJ Rep. 1955, p.4
Liechtenstein v. Guatemala is the proper name for the 1955 contentious case adjudicated by the International Court of Justice (ICJ). Liechtenstein sought a ruling to force Guatemalan recognition of Friedrich Nottebohm as a Liechtenstein national

Nottebohm, born September 16, 1881 in Hamburg, Germany, possessed German citizenship. Although he lived in Guatemala from 1905 until 1943 he never became a citizen of Guatemala. On October 9, 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein. The application was approved under exceptional circumstances and he became a citizen of Liechtenstein. He then returned to Guatemala on his Liechtenstein passport and informed the local government of his change of nationality. When he tried to return to Guatemala once again in 1943 he was refused entry as an enemy alien since the Guatemalan authorities did not recognise his naturalisation and regarded him as still German. It has been suggested that the timing of the event was due to the recent entry of the US and Guatemala into the Second World War.

He was later extradited to the US where he was held at an internment camp until the end of the war. All his possessions in Guatemala were confiscated. After his release, he lived out the rest of his life in Liechtenstein.

Background of the ICJ case
The Government of Liechtenstein granted Nottebohm protection against unjust treatment by the government of Guatemala and petitioned the International Court of Justice. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. The court agreed and thus stopped the case from continuing. So the courts decided that in this case they would decline the offer.
Decision

Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plane where the question is of diplomatic protection. The Court upheld the principle of effective nationality, (the Nottebohm principle) where the national must prove a meaningful connection to the state in question. This principle was previously applied only in cases of dual nationality to determine which nationality should be used in a given case. However Nottebohm had forfeited his German nationality and thus only had the nationality of Liechtenstein. The question arises, who then had the power to grant Nottebohm diplomatic protection?

The Nottebohm case was subsequently cited in many definitions of nationality.

4.6.4 Rule of Exhaustion of Local Remedies
The international rule of exhaustion of local remedies before taking to international remedies is one of the basic rules in international law. The object of the rule is to enable the respondent State the first opportunity to correct the harm and to make redress. The application of the rule of domestic remedies to the protection of human rights depends on conventional provisions.

A person whose rights have been violated should make use of domestic remedies to right a wrong, rather than first address the issue to an international committee, court or other tribunal. Access to an international organ should be available, but only as a last resort, after the domestic remedies have been exhausted. A person should seek redress from domestic remedies because these are normally quicker, cheaper and more effective than the international ones.

If no domestic remedies are available or there is unreasonable delay on the part of national courts in granting a remedy, clearly, a person should have recourse to international remedies. The rule of local remedies should not constitute an unjustified impediment to access to the international remedies.

4.7 ILC Draft Code on Responsibility of States for Internationally Wrongful Acts, 2001

PART ONE: THE INTERNATIONALLY WRONGFUL ACT OF A STATE
CHAPTER I: GENERAL PRINCIPLES

Article l: Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2: Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of an action or omission: is attributable to the State under international law; and constitutes a breach of an international obligation of the State.

Article 3: Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.

CHAPTER II: ATTRIBUTION OF CONDUCT TO A STATE

Article 4: Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

Article 5: Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

Article 6: Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

Article 7: Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

Article 8: Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

Article 9: Conduct carried out in the absence or default of the official authorities
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.

Article 10: Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law.
3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.

Article 11: Conduct acknowledged and adopted by a State as its own
Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

CHAPTER III: BREACH OF AN INTERNATIONAL OBLIGATION

Article 12: Existence of a breach of an international obligation
There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.

Article 13: International obligation in force for a State
An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.

Article 14: Extension in time of the breach of an international obligation
1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.

Article 15: Breach consisting of a composite act
1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.

CHAPTER IV: RESPONSIBILITY OF A STATE IN CONNECTION WITH THE ACT OF ANOTHER STATE

Article 16: Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
that State does so with knowledge of the circumstances of the internationally wrongful act; and
the act would be internationally wrongful if committed by that State.

Article 17: Direction and control exercised over the commission of an internationally wrongful act
A State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for that act if:
that State does so with knowledge of the circumstances of the internationally wrongful act; and
the act would be internationally wrongful if committed by that State.

Article 18: Coercion of another State
A State which coerces another State to commit an act is internationally responsible for that act if:
the act would, but for the coercion, be an internationally wrongful act of the coerced State; and
the coercing State does so with knowledge of the circumstances of the act.

Article 19: Effect of this chapter
This chapter is without prejudice to the international responsibility, under other provisions of these articles, of the State which commits the act in question, or of any other State.

CHAPTER V: CIRCUMSTANCES PRECLUDING WRONGFULNESS

Article 20: Consent
Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.

Article 21: Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.

Article 22: Countermeasures in respect of an internationally wrongful act
The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three.

Article 23: Force majeure
1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.
2. Paragraph 1 does not apply if:
the situation of force majeure is due, either alone or in combination with other factors, to the
(a) conduct of the State invoking it; or
(b) the State has assumed the risk of that situation occurring.

Article 24: Distress
1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
2. Paragraph 1 does not apply if: the situation of distress is due, either alone or in combination with other factors, to the conduct of
(a) the State invoking it; or
(b) the act in question is likely to create a comparable or greater peril.

Article 25: Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril;
(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness the international obligation in question excludes the possibility of invoking necessity; or the State has contributed to the situation of necessity.

Article 26: Compliance with peremptory norms
Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.

Article 27: Consequences of invoking a circumstance precluding wrongfulness
The invocation of a circumstance precluding wrongfulness in accordance with this chapter is
without prejudice to:
(a) compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists;
the question of compensation for any material loss caused by the act in question.

PART TWO: CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE

CHAPTER I: GENERAL PRINCIPLES

Article 28: Legal consequences of an internationally wrongful act
The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of part one involves legal consequences as set out in this part.

Article 29: Continued duty of performance
The legal consequences of an internationally wrongful act under this part do not affect the continued duty of the responsible State to perform the obligation breached.

Article 30: Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
to cease that act, if it is continuing;
to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.

Article 31: Reparation
1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.

Article 32: Irrelevance of internal law
The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part.

Article 33: Scope of international obligations set out in this part
1. The obligations of the responsible State set out in this part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach.
2. This part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.

CHAPTER II: REPARATION FOR INJURY

Article 34: Forms of reparation
Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.

Article 35: Restitution
A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:
- is not materially impossible;
- does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.

Article 36: Compensation
1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.
2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.

Article 37: Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.

Article 38: Interest
1. Interest on any principal sum due under this chapter shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result.
2. Interest runs from the date when the principal sum should have been paid until the date the obligation to pay is fulfilled.

Article 39: Contribution to the injury
In the determination of reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought.

CHAPTER III: SERIOUS BREACHES OF OBLIGATIONS UNDER PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW

Article 40: Application of this chapter
1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.

Article 41: Particular consequences of a serious breach of an obligation under this chapter
1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law.

PART THREE: THE IMPLEMENTATION OF THE INTERNATIONAL RESPONSIBILITY OF A STATE

CHAPTER I: INVOCATION OF THE RESPONSIBILITY OF A STATE

Article 42: Invocation of responsibility by an injured State
A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or the international community as a whole,
and the breach of the obligation:
(i) specially affects that State; or
(ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.

Article 43: Notice of claim by an injured State
1. An injured State which invokes the responsibility of another State shall give notice of its claim to that State.
2. The injured State may specify in particular: the conduct that the responsible State should take in order to cease the wrongful act, if it is (a) continuing; what form reparation should take in accordance with the provisions of part two.

Article 44: Admissibility of claims
The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims;
(b) the claim is one to which the rule of exhaustion of local remedies applies and any available and
(c) effective local remedy has not been exhausted.

Article 45: Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) the injured State has validly waived the claim;
(b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.

Article 46: Plurality of injured States
Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act.

Article 47: Plurality of responsible States
1. Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.
2. Paragraph 1: does not permit any injured State to recover, by way of compensation, more than the damage it has suffered;
is without prejudice to any right of recourse against the other responsible States.

Article 48: Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if:
the obligation breached is owed to a group of States including that State, and is established for the
(a) protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.

2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible cessation of the internationally wrongful act
 and assurances and guarantees of non-repetition in accordance with article 30; and performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

CHAPTER II:  COUNTERMEASURES

Article 49: Object and limits of countermeasures
1. An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under part two.
2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.
3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.

Article 50: Obligations not affected by countermeasures
1. Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.

2. A State taking countermeasures is not relieved from fulfilling its obligations: under any dispute settlement procedure applicable between it and the responsible State; to respect the inviolability of diplomatic or consular agents, premises, archives and documents.

Article 51: Proportionality
Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.

Article 52: Conditions relating to resort to countermeasures
1. Before taking countermeasures, an injured State shall: call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two;(b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights.
3. Countermeasures may not be taken, and if already taken must be suspended without undue delay if:
the internationally wrongful act has ceased; and
the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties.
4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith.

Article 53: Termination of countermeasures
Countermeasures shall be terminated as soon as the responsible State has complied with its obligations under part two in relation to the internationally wrongful act.

Article 54: Measures taken by States other than an injured State
This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.

PART FOUR: GENERAL PROVISIONS

Article 55: Lex specialis
These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.

Article 56 Questions of State responsibility not regulated by these articles
The applicable rules of international law continue to govern questions concerning the responsibility of a State for an internationally wrongful act to the extent that they are not regulated by these articles.

Article 57 Responsibility of an international organization
These articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization.

Article 58: Individual responsibility
These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.

Article 59: Charter of the United Nations - These articles are without prejudice to the Charter of the United Nations.
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5. Law of the Sea

5.1 Maritime Zones

5.1.1 Territorial Sea: Breadth of Territorial Sea - the zone extending 12 nm. from the baseline - intially 3nm (a cannon shot) - Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not "prejudicial to the peace, good order or the security" of the coastal state. Fishing, polluting, weapons practice, and spying are not "innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.

(30) Anglo-Norwegian Fisheries Case (UK vs Norway), ICJ Rep, 1951, p, 116
dispute rgding breadth of territorial sea - norway hs a coast of complex  geographical configurations (deeply intended and cut into, having a fringe of islands) - In 1935 Norwegian govt issued a decree which delimited Norway's northern territorial waters on the basis of straight baselines. UK submitted the matter to ICJ contending tht intl law reqd the baseline to be the actual low water line - Court held tht in the normal coast the low-water is the baseline, but straight baseline system can be used on the basis of geographic, economic & historic considerations - On geographic conditions the court stated tht if the geogrphical character of the coast is such tht it is deeply intended & cut into & is surrounded by a fringe of islands then baseline fr measuring territorial sea may be drawn by choosing appropriate points on these islands & joining these points by straightlines following the general direction of the coast. On historic considerations the court stated tht Norway applied the straight baseline system fr a long time(since 1869). On economic considerations, the court stated tht inhabitants of Norway derived their livelihood essentially frm fishing in the territorial sea.
Strong emphasis on legitimate interests of the coastal state. In process, court attached considerations to social considerations - court also obsrvd tht states r nt completely free in respect of delimitation of territorial waters with regd to othr states - although it is true tht act of delimitation is neccessarily an unilateral act becoz only the coastal state is competent to undertake it, the validity of the delimitation with regd to othr states depends upon intl law
Rule of Anglo-Norwegian Fisheries Case is incorporated in Art 7 of 1982 convention, which provides tht in localities whr the coastline is deeply indented, the method of straight baseline system may be employed in measuring the breadth of territorial sea. The drawing of straight baseline system must not depart to any appreciable extent frm the general direction of the coast. Further account may be taken, in determining particular baseline, of economic interests particular to the region concerned (evidenced by long usage). the system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another state frm the high seas or an exclusive economic zone.
India's position - under article 3 of Indian Maritime Zones Act, 1976, the position is same as in the 1982 UN Convention, & the limit of territorial sea is the line every point of which is at a distance of 12 nautical miles frm the baseline.

(31) Corfu Channel Case, ICJ Rep. 1949, p. 4
ICJ did nt express an opinion on the right of passage of warships through territorial sea. It limited its obsrvtns to the case of straits. Hwevr sme judges in their dissenting views, made obsrvtns on the issue of innocent passage of warships. Justice Alvarez felt tht since war hd been outlawed by the UN Charter the mission of warships can only be to secure legitimate defence of countries to which they belong. Justice Krylow argued tht thr ws no right of innocent passage through the territorial sea. Judge Azevedo said tht position of warships in respect of passage ws different frm tht of merchant ships - Intl Law Commm hd proposed tht State might make innocent passage of warships subject to prior authorization, or notification, but the state shld normally grant innocent passage - In 1989 US & USSR made an important joint statement tht All ships incl warships enjoy the right of innocent passage through the territorial sea in accordance with intl law fr which neither prior notification or authorization is reqd - However as it is a jt stmnt betw 2 countries - not binding on othr States
Indias Position:- Right of innocent passage same as 1982 Convention accrd to S4 Para 1 of Indian Maritime Zones Act. Ques of innocent passage of warships - S4 Para 2 equates warships with submarines & underwater vehicles & enacts tht such ships/vehicles can pass only through Indian territorial waters after giving prior notice to the Central Govt.

5.1.2 Contiguous Zone :- Beyond the 12 nautical mile limit, there is a further 12 nautical miles from the territorial sea baseline limit, the contiguous zone, in which a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution, if the infringement started within the state's territory or territorial waters, or if this infringement is about to occur within the state's territory or territorial waters. This makes the contiguous zone a hot pursuit area.

5.1.3 Continental Shelf :- The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, whichever is greater. A state’s continental shelf may exceed 200 nautical miles until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

5.1.4 Exclusive Economic Zone :- These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres; 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.

5.1.5 High Seas: All parts of the sea that are not included in the territorial sea or in the internal waters of a State.
Article 2 of UCOHS : The high seas being open to all nations, no State may validly purport to subject any part of them to its
sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the
other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:


5.2 Delimitation of Adjacent and Opposite Maritime Boundaries

(32) North Sea Continental Shelf Cases, ICJ Rep. 1969, p. 3
Dispute arose between States of Germany, Denmark & Netherlands regarding delimitation in their continental shelf. Both Denmark & Netherlands relied on a multilateral treaty which provided fr delimitation by equidistance method, in the absence of agreement. The treaty which provided fr delimitation by equidistance method, in the absence of agreement. The treaty permitted the signatory states to reserve their position w.r.t the equidistance method. Germany hd signed the treaty but hd nt ratified it, moreover it hd reserved its position w.r.t to delimitation which might adversely affect its own continental shelf. Both Denmark & Netherlands contended that equidistance - spl circumstance rule is nt only a conventional provision but hs emerged into a custom & hence binding on Germany. Germany while denying the obligatory character of the provision contended tht the correct rule to be applied is such cases is according to which each of the concerned states shld hv a "just & equitable share" of the available continental shelf, in proportion to the length of its coastline or sea frontage
World Court made some important obrvtns which are as follows (i) A treaty provision cn generate customary intl law, but only when the provision concerned is "of a fundamentally norm-creating character such as cud be regrded as forming the basis of a general rule of law"  norm creating process perfectly possible one & does occur frm time to time; constitutes recognized methods by which new rules of customary intl law may be formed - 1st 3 articles of the Geneva Convntn on the Continental Shelf, 1958 r of norm creating character (ii) W.r.t othr elements usually regded as neccessary befr a conventional rule cn be considered to hv becme a general rule of intl law, it might be tht, even w/o the passing of any considerable period of time, every representative participation in the convention might suffice of itself, provided it incl the states whose interests were specially affected(in prsnt case no of ratifications & accessions secured were hardly sufficient) (iii) As rgds the time element .. although the passage of only a short time period is nt neccessarily a bar to the formation of a new rule of customary intl law on the basis of a purely conventional rule, an indispensable requirement wud be tht within the period in question, short though it might be, State practice (incl tht of States whose interests are specifically affected), shld hv been both extensive & virtually uniform in the sense of the provision invoked; & shld moreover hv occurred in such a way as to show a general recognition tht a rule of law or legal obligation is involved. thus opinio juris must be present befr a practice/usage is to become a customary rule.
Decision:- Court held Art 6 of the Convention which lays down the equidistance principle ws nt intended to be of a norm creating character . one of the reasons being tht the principle of equidistance ws prefaced by the words 'in the absence of agreement'. the principle of equidistance is nt obligatory in all cases of delimitation of continental shelf. In present case, opinio juris ws absent or nt estb ( no evidence to show tht states so acted as they felt legally compelled to draw boundaries, according to equidistance principle, by reason of a rule of customary law of obligation, States might have been motivated by othr obvious factors). Court thus held tht each of the States shld hv a just and equitable share on the shelf according to the length of its coastline.

(33) Libya vs Tunisia Continental Shelf Case, ICJ Rep. 1982, p. 17
(34) Libyan Arab Jamahiriya vs Malta, ICJ Rep. 1985, p. 35
(35) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar vs Bahrain), ICJ Rep. 2001, p. 40

Court obsrvd & held as follows
(i) Maritime Delimitation - Court obsrvd both parties agree tht verdict shld be based on maritime delimitation as per intl law - Bahrain ratified UNCLOS III Qatar-> signatory. Thrfr customary Intl law the applicable law - both parties agree tht most of the provisions of the UNLCOS III which are relevant fr the prsnt case reflect customary law

(ii) A single maritime boundary - Court notes under the terms of Bahraini formula the parties requested the court in Dec 1990 to draw a single maritime boundary btw their respective maritime areas of seabed, subsoil & superjacent waters - court obsrvs tht concept of "single maritime boundary' may encompass many functions - in prsnt case single maritime boundary will be delimitation of various jurisdictions. @Southern(distance no more than 24 nm) & nothern sector(adjacent coasts) - court obsrvs tht concept of SMB does nt arise frm multilateral treaty but frm State practice & tht it finds its explanation in the wish of States to estb one uninterrupted boundary line delimiting the various - partially coincident - zones of maritime jurisdiction appertaining to them - Non preferential single boundary in case of coincident jurisdictional zones - Gulf of Maine Case -

(iii) Delimitation of the Territorial Sea - Equidistance Line
parties agree tht the provision of Article 15 UNCLOS III headed 'Delimitation of the territorial sea betw States with opposite or adjacent coasts' are part of customary law - provision does nt apply whr it is neccessary by reason of historic title or othr spl circumstances to delimit the territorial seas of the two States in a way which is at variance therewith - equidistance/spl circumstances rule - most logical & widely practiced approach is 1st to draw provisionally an equidistant line & then to consider whtr tht line must be adjusted in the light of existence of spl circumstances - once territorial seas delimited - to determine rules & principles of customary law to be appld to delimitation - e.d. line cn only be drawn when baselines r knwn - neither party hs specified the baselines which r to be used fr the determination of the breadth of the territorial sea, nor have they produced official maps or charts which reflect such baselines - hv provided court with approx base points which in their view cud be used by the court fr the determination of the maritime boundary  - first determine relevant coasts of the parties -
Qataer argued tht fr the purpose of delimitation, it is the mainland-to-mainland method which shld be applied in order to construct the e.d.line - fr Qatar application of the mainland-to-mainland method hs 2 main consequences - 1st it takes no account of the Islands(except certain islands), islets, rocks, reefs or low tide elevations lying in the relevant area - 2nd in Qatar's view application of the mainland-to-mainland method of calculation wud also mean tht the equidistance line hs to be constructed by reference to the high-water-line
Bahrain contnds tht it is a de facto archipelago or multiple-island State, characterized by a variety of maritime features of diverse character & size - all these features r closely interlinked & together they constitute the State of Bahrain - reducing State to limited no of principle islands wud be a distortion of reality & refashioning of geography - Since it is the low-water line which is determinative fr the breadth of the territorial sea & fr the delimitation of overlapping territorial waters - Finally Bahrain contnds tht u/A 47 Pt IV of UNCLOS III it is entitled to declare itself an archipelagic state - Qatar contested Bahrain claim to declare itself an archipelagic state
Courts obsrvs - it is the terrestrial territorial situation tht must be taken as starting pt fr the determination of the maritime rights of a coastal State - Court said decision of Bahrain to declare itself an archipelagic State is a unilateral decision

(iv) Island/Low Tide Elevation - Drawing of equidistance line
Whtr a State can acquire Sovereignity by appropriation over a low-tide elevation situated within the breadth of its territorial sea when tht same low-tide elevation lies also within the breadth of the territorial sea of another State - As per Qatar, a low tide elevation cannot be appropriated - Bahrain contends tht low-tide elevations by their very nature are territory & thrfr can be appropriated in accordance with the criteria which pertains to the acquisition of territory - Acc to Art 13 para 1 of 1982 Convention a low tide elevation is a natural formed area of land which is surrounded by & above water at low tide but submerged at high tide - both states in principle are entitled to use its low water line fr the measurement of the breadth of their territorial sea - same low tide elevation then forms part of the coastal configuration of the two States - Intl treaty law silent on the ques whtr lowtide elevations cn be considered to be territory - nor is the court aware of a uniform & widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations - permissive rules hv been estb with rgd to l.t.e at short distance frm coast - thr is a rule tht a l.t.e which is situated beyond the territorial sea does nt hv a territorial sea of its own - a low tide elevation thrfr as such does nt generate the same right as islands or othr territory - court -> no grnd fr recognizing right of Bahrain to use l.t.e situated in zone of overlapping claims or fr recognizing Qatar as having such a right - Court accordingly concludes tht fr purpose of drawing a e.d line, such l.t.e must be disrgrded

(v) Method of straight baselines
Self declared defacto Archipelagic state nt allowed to deviate frm normal rules fr the determination of baselines unless the relevant conditions are met - fringe of islands do not form a deeply indented coast nor does Bahrain claim this - fringe of islands which constitute a whole with the mainland - court does nt deny tht the maritime features east of Bahrain's main islands r part of the overall geographical configuration , but to qualify them as a fringe of islands along the coast wud be going over too far - Courts concludes tht Bahrain is not entitled to apply the method of Straight Baselines - thus each maritime feature hs its own effect fr the determination of the baselines, on the understanding tht on the grnds set out befr, the l.t.e situated in the overlapping zone of territorial seas will be disregrded  - it is this basis tht e.d line must be drawn.

(vi) Special circumstances
since it did nt determine whtr Fasht al Azm is part of Sitrah island or a separate l.t.e it is neccessary to draw two provisional e.d.lines - thn considers whr thr spl circumstances which make it neccessary to adjust the e.d.line as provisionally drawn in order to obtain an equitable result in relation to this part of the single maritime boundary to be fixed - line passing betw Fash al Azm & Qit'at at Sharjah - Court also finds tht spl circumstance in this case warning the choice of a delimitation line passing immediately to the east of Qit'at Jaradah - Qit'at Jaradah very small inhabited island which comes under Bahrain Sovereignity & is situated midway between the main island of Bahrain & Qatar peninsula - if its low-water line were to be used fr determining a base pt in the constrcution of the equidistance line a disproportionate effect wud be given to an insignificant feature - Court finds it is in a position to determine the course of that part of the single maritime boundary which will delimit the territorial seas of the parties.

(vii) Delimitation of Continental shelf & Exclusive Economic Zone
equidistance/spl circumstance rule - Bahrain claims rgd pearling industry - court notes industry effectively ceased to exist a considerable time ago -pearl diving in th Gulf Area common to the coastal population - though predominantly exploited in the past by Bahraini fishermen as forming a circumstance which wud justify an eastward shifting of the equidistance line as requested by Bahrain

Decision
Single maritime boundary shall be formed in the first place by a line which from a point situated to the north west of Fasht al Dibal shall meet the e.d.line as adjusted to take account of the absence of effect given to Fasht al Jarim(a remote projection of Bahrain's coastline in the Gulf area; othrwise the northcoasts of the territories belonging to both parties r flat) - Boundary shall then follow the adjusted e.d.line until it meets the delimitation line betw the resp maritime zones of Iran on one hand & of Bahrain & Qatar on the other)

5.3 Concept of "Common Heritage of Mankind" relating to the resources of Intl Seabed Area
In 1970, United Nations General Assembly Resolution 2749, the Declaration of Principles Governing the Seabed and Ocean Floor, was adopted by 108 states (including the United States) and stated that the deep seabed should be preserved for peaceful purposes and is the “Common Heritage of Mankind.”[7]

In 1982, the Common Heritage of Mankind concept was stated to relate to “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” under Article 136 of the United Nations Law of the Sea Treaty (UNCLOS).[8]

Payoyo argues that the common heritage of humanity principle in Part XI of the Law of the Sea Treaty should favour developing states (who were the voice of conscience in establishing it), and not merely in some transient 'affirmative action' manner.[9] He claims, however, that the 1994 Implementation Agreement facilitated control by industrialised countries of the International Seabed Authority (ISA), allowing access by the private sector to the deep sea bed and inhibiting constructive dialogue on sustainable development.[10]
Core conceptual components

Arvid Pardo one of the founders of the common heritage of humanity concept under international law has claimed that it challenges the "structural relationship between rich and poor countries" and amounts to a "revolution not merely in the law of the sea, but also in international relations".[11] One of the main architects of the principle under international space law has claimed that it is "the most important legal principle achieved by man throughout thousands of years during which law has existed as the regulating element of social exchange".[12] This praise relates to the fact that international law in the common heritage of humanity principle is seeking to protect, respect and fulfill the interests of human beings independently of any politically motivated sovereign state; the concept covering all humans wherever they are living, as well as future generations.[6]

Frakes has identified five core components of the Common Heritage of Humanity concept.[13] First, there can be no private or public appropriation; no one legally owns common heritage spaces. Second, representatives from all nations must manage resources contained in such a territorial or conceptual area on behalf of all since a commons area is considered to belong to everyone; this practically necessitating a special agency to coordinate shared management. Third, all nations must actively share with each other the benefits acquired from exploitation of the resources from the commons heritage region, this requiring restraint on the profit-making activities of private corporate entities; this linking the concept to that of global public good. Fourth, there can be no weaponry or military installations established in territorial commons areas. Fifth, the commons should be preserved for the benefit of future generations, and to avoid a “tragedy of the commons” scenario.[13] Academic claims have been made that where the principle requires the establishment of an international resource management regime, prior to establishment of such a regime a moratorium on resource exploitation should be enforced. Such a position does not appear to have been supported by most states during the respective drafting negotiations.

5.4 International Seabed Mining - Parallel System of Mining
A "parallel system" would be established for exploring and exploiting the international seabed area. All activities in this area would be under the control of an International Seabed Authority, to be established under the convention. The authority would conduct its own mining operations through its operating arm, called the "Enterprise," and would also contract with private and state ventures to give them mining rights in the area, so that they could operate in parallel with the authority. The first generation of seabed prospectors, called "pioneer investors," would have guarantees of production once mining was authorized.

5.5 Indian Maritime Interests, Policy and Law


5.6 International Tribunal for the Law of the Sea
The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization created by the mandate of the Third United Nations Conference on the Law of the Sea. It was established by the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on December 10, 1982. The Convention entered into force on November 16, 1994, and established an international framework for law over "all ocean space, its uses and resources". The tribunal is based in Hamburg, Germany. The Convention also established the International Seabed Authority, with responsibility for the regulation of seabed mining beyond the limits of national jurisdiction, that is beyond the limits of the territorial sea, the contiguous zone and the continental shelf.

The Tribunal has the power to settle disputes between states parties (there are currently 161: 160 states plus the European Union ).
Composition

According to its founding statute, the Tribunal has a set of 21 serving judges from a variety of states parties in three primary bodies:
    The Chamber of Summary Procedure
    The Chamber for Fisheries Disputes
    The Chamber for Marine Environment Disputes

In addition, at the request of Chile and the European Union, the Tribunal also set up a special chamber to deal with the case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union).
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Treaties and Statutes
- Geneva Convention on Territorial Waters and Contiguous Zone, 1958
PART 1   TERRITORIAL SEA
SECTION 1. GENERAL
Article 1
1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.
2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.
Article 2
The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and subsoil.
SECTION 2. LIMITS OF THE TERRITORIAL SEA
Article 3
Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.
Article 4
1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.
3. Baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them.
4. Where the method of straight baselines is applicable under the provisions of paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by a long usage.
5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State.
6. The coastal State must clearly indicate straight baselines on charts, to which due publicity must be given.
Article 5
1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.
2. Where the establishment of a straight baseline in accordance with article 4 has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage, as provided in articles 14 to 23, shall exist in those waters.
Article 6
The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.
Article 7
1. This article relates only to bays the coasts of which belong to a single State.
2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.
3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation.
4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters.
5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.
6. The foregoing provisions shall not apply to so-called "historic" bays, or in any case where the straight baseline system provided for in article 4 is applied.
Article 8
For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.
Article 9
Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea. The coastal State must clearly demarcate such roadsteads and indicate them on charts together with their boundaries, to which due publicity must be given.
Article 10
1. An island is a naturally-formed area of land, surrounded by water, which is above water at high-tide.
2. The territorial sea of an island is measured in accordance with the provisions of these articles.
Article 11
1. A low-tide elevation is a naturally-formed area of land which is surrounded by and above water at low-tide but submerged at high-tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.
2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.
Article 12
1. Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The provisions of this paragraph shall not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance with this provision.
2. The line of delimitation between the territorial seas of two States lying opposite to each other or adjacent to each other shall be marked on large-scale charts officially recognized by the coastal States.
Article 13
If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-tide line of its banks.

SECTION 3. RIGHT OF INNOCENT PASSAGE
Sub-Section A. Rules Applicable to All Ships
Article 14
1. Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.
2. Passage means navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters.
3. Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress.
4. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law.
5. Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea.
6. Submarines are required to navigate on the surface and to show their flag.
Article 15
1. The coastal State must not hamper innocent passage through the territorial sea.
2. The coastal State is required to give appropriate publicity to any dangers to navigation, of which it has knowledge, within its territorial sea.
Article 16
1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.
2. In the case of ships proceeding to internal waters, the coastal State shall also have the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to those waters is subject.
3. Subject to the provisions of paragraph 4, the coastal State may, without discrimination amongst foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published.
4. There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State.
Article 17
Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal State in conformity with these articles and other rules of international law and, in particular, with such laws and regulations relating to transport and navigation.
Sub-Section B. Rules Applicable to Merchant Ships
Article 18
1. No charge may be levied upon foreign ships by reason only of their passage through the territorial sea.
2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination.
Article 19
1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connexion with any crime committed on board the ship during its passage, save only in the following cases:
(a) If the consequences of the crime extend to the coastal State; or
(b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or
(c) If the assistance of the local authorities has been requested by the captain of the ship or by the consul of the country whose flag the ship flies; or
(d) If it is necessary for the suppression of illicit traffic in narcotic drugs.
2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.
3. In the cases provided for in paragraphs 1 and 2 of this article, the coastal State shall, if the captain so requests, advise the consular authority of the flag State before taking any steps, and shall facilitate contact between such authority and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken.
4. In considering whether or how an arrest should be made, the local authorities shall pay due regard to the interests of navigation.
5. The coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connexion with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.
Article 20
1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship.
2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State.
3. The provisions of the previous paragraph are without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.
Sub-Section C. Rules Applicable to Government Ships Other Than Warships
Article 21
The rules contained in sub-sections A and B shall also apply to government ships operated for commercial purposes.
Article 22
1. The rules contained in sub-section A and in article 18 shall apply to government ships operated for non-commercial purposes.
2. With such exceptions as are contained in the provisions referred to in the preceding paragraph, nothing in these articles affects the immunities which such ships enjoy under these articles or other rules of international law.
Sub-Section D. Rule Applicable to Warships
Article 23
If any warship does not comply with the regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea.
PART 2   CONTIGUOUS ZONE
Article 24
1. In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea;
(b) Punish infringement of the above regulations committed within its territory or territorial sea.
2. The contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured.
3. Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured.

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Geneva Convention on Continental Shelf, 1958: Done at 29 April 1958
The States Parties to this Convention

Article 1 For the purpose of these articles, the term “continental shelf” is used as referring
(a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas;
(b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

Article 2
1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

Article 3 The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent
waters as high seas, or that of the airspace above those waters.

Article 4 Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf.

Article 5
1. The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication.

2. Subject to the provisions of paragraphs 1 and 6 of this article, the coastal State is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the exploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection.

3. The safety zones referred to in paragraph 2 of this article may extend to a distance of 500 metres around the installations and other devices which have been erected, measured from each point of their outer edge. Ships of all nationalities must respect these safety zones.

4. Such installations and devices, though under the jurisdiction of the coastal State, do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea of the coastal State.

5. Due notice must be given of the construction of any such installations, and permanent means for giving warning of their presence must be maintained. Any installations which are abandoned or disused must be entirely removed.

6. Neither the installations or devices, nor the safety zones around them, may be established where interference may be caused to the use of recognized sea lanes essential to international navigation.

7. The coastal State is obliged to undertake, in the safety zones, all appropriate measures for the protection of the living resources of the sea from harmful agents.

8. The consent of the coastal State shall be obtained in respect of any research concerning the continental shelf and undertaken there. Nevertheless, the coastal State shall not normally withhold its consent if the request is submitted by a qualified institution with a view to purely scientific research into the physical or biological characteristics of the continental shelf, subject to the proviso that the coastal State shall have the right, if it so desires, to participate or to be represented in the research, and that in any event the results shall be published.

Article 6
1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea

3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.

Article 7 The provisions of these articles shall not prejudice the right of the coastal State to exploit the subsoil by means of tunnelling irrespective of the depth of water above the subsoil.


____________

Geneva Convention on Conservation of fishing resources, 1958
Convention on Fishing and Conservation of the Living Resources of the High Seas Done at Geneva on 29 April 1958

The States Parties to this Convention, Considering that the development of modern techniques for the exploitation of the living resources of the sea, increasing man’s ability to meet the need of the world’s expanding population for food, has exposed some of these resources to the danger of being over-exploited, Considering also that the nature of the problems involved in the conservation of the living resources of
the high seas is such that there is a clear necessity that they be solved, whenever possible, on the basis of international cooperation through the concerted action of all the States concerned, Have agreed as follows:

Article 1
1. All States have the right for their nationals to engage in fishing on the high seas, subject
(a) to their treaty obligations,
(b) to the interests and rights of coastal States as provided for in this Convention, and
(c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas.
2. All States have the duty to adopt, or to cooperate with other States in adopting, such measures for their
respective nationals as may be necessary for the conservation of the living resources of the high seas.

Article 2 As employed in this Convention, the expression “conservation of the living resources of the high seas” means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products. Conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption.

Article 3 A State whose nationals are engaged in fishing any stock or stocks of fish or other living marine resources in any area of the high seas where the nationals of other States are not thus engaged shall adopt, for its own nationals, measures in that area when necessary for the purpose of the conservation of the living resources

Article 4
1. If the nationals of two or more States are engaged in fishing the same stock or stocks of fish or other living marine resources in any area or areas of the high seas, these States shall, at the request of any of them, enter into negotiations with a view to prescribing by agreement for their nationals the necessary measures for the conservation of the living resources affected.
2. If the States concerned do not reach agreement within twelve months, any of the parties may initiate the procedure contemplated by article 9.

Article 5
1. If, subsequent to the adoption of the measures referred to in articles 3 and 4, nationals of other States engage in fishing the same stock or stocks of fish or other living marine resources in any area or areas of the high seas, the other States shall apply the measures, which shall not be discriminatory in form or in fact, to their own nationals not later than seven months after the date on which the measures shall have been notified to the Director-General of the Food and Agriculture Organization of the United Nations. The Director-General shall notify such measures to any State which so requests and, in any case, to any State specified by the State initiating
the measure.
2. If these other States do not accept the measures so adopted and if no agreement can be reached within twelve months, any of the interested parties may initiate the procedure contemplated by article 9. Subject to paragraph 2 of article 10, the measures adopted shall remain obligatory pending the decision of the special

Article 6
1. A coastal State has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea.
2. A coastal State is entitled to take part on an equal footing in any system of research and regulation for purposes of conservation of the living resources of the high seas in that area, even though its nationals do not carry on fishing there.
3. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a State shall, at the request of that coastal State, enter into negotiations with a view to prescribing by agreement the measures necessary for the conservation of the living resources of the high seas in that area.
4. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a coastal State shall not enforce conservation measures in that area which are opposed to those which have been adopted by the coastal State, but may enter into negotiations with the coastal State with a view to prescribing by agreement the measures necessary for the conservation of the living resources of the high seas in that area.
5. If the States concerned do not reach agreement with respect to conservation measures within twelve months, any of the parties may initiate the procedure contemplated by article 9.

Article 7
1. Having regard to the provisions of paragraph 1 of article 6, any coastal State may, with a view to the maintenance of the productivity of the living resources of the sea, adopt unilateral measures of conservation appropriate to any stock of fish or other marine resources in any area of the high seas adjacent to its territorial sea, provided that negotiations to that effect with the other States concerned have not led to an agreement within six months.

2. The measures which the coastal State adopts under the previous paragraph shall be valid as to other
States only if the following requirements are fulfilled:
(a) That there is a need for urgent application of conservation measures in the light of the existing knowledge of the fishery;
(b) That the measures adopted are based on appropriate scientific findings;
(c) That such measures do not discriminate in form or in fact against foreign fishermen.

3. These measures shall remain in force pending the settlement, in accordance with the relevant provisions of this Convention, of any disagreement as to their validity.

4. If the measures are not accepted by the other States concerned, any of the parties may initiate the procedure contemplated by article 9. Subject to paragraph 2 of article 10, the measures adopted shall remain obligatory pending the decision of the special commission.

5. The principles of geographical demarcation as defined in article 12 of the Convention on the Territorial Sea and the Contiguous Zone shall be adopted when coasts of different States are involved.

Article 8
1. Any State which, even if its nationals are not engaged in fishing in an area of the high seas not adjacent to its coast, has a special interest in the conservation of the living resources of the high seas in that area, may request the State or States whose nationals are engaged in fishing there to take the necessary measures of conservation under articles 3 and 4 respectively, at the same time mentioning the scientific reasons which in its opinion make such measures necessary, and indicating its special interest.
2. If no agreement is reached within twelve months, such State may initiate the procedure contemplated by article 9.

Article 9
1. Any dispute which may arise between States under articles 4, 5, 6, 7 and 8 shall, at the request of any of the parties, be submitted for settlement to a special commission of five members, unless the parties agree to seek a solution by another method of peaceful settlement, as provided for in Article 33 of the Charter of the UN
2. The members of the commission, one of whom shall be designated as chairman, shall be named by agreement between the States in dispute within three months of the request for settlement in accordance with the provisions of this article. Failing agreement they shall, upon the request of any State party, be named by the Secretary-General of the United Nations, within a further three-month period, in consultation with the States in dispute and with the President of the International Court of Justice and the Director-General of the Food and Agriculture Organization of the United Nations, from amongst well-qualified persons being nationals of States not involved in the dispute and specializing in legal, administrative or scientific questions relating to fisheries, depending upon the nature of the dispute to be settled. Any vacancy arising after the original appointment shall be filled in the same manner as provided for the initial selection.
3. Any State party to proceedings under these articles shall have the right to name one of its nationals to the special commission, with the right to participate fully in the proceedings on the same footing as a member of the commission, but without the right to vote or to take part in the writing of the commission’s decision.

4. The commission shall determine its own procedure, assuring each party to the proceedings a full opportunity to be heard and to present its case. It shall also determine how the costs and expenses shall be divided between the parties to the dispute, failing agreement by the parties on this matter.

5. The special commission shall render its decision within a period of five months from the time it is appointed unless it decides, in case of necessity, to extend the time limit for a period not exceeding three months.

6. The special commission shall, in reaching its decisions, adhere to these articles and to any special agreements between the disputing parties regarding settlement of the dispute.

7. Decisions of the commission shall be by majority vote.

Article 10
1. The special commission shall, in disputes arising under article 7, apply the criteria listed in paragraph 2 of that article. In disputes under articles 4, 5, 6 and 8, the commission shall apply the following criteria, according to the issues involved in the dispute: Common to the determination of disputes arising under articles 4, 5 and 6 are the requirements:
(a) That scientific findings demonstrate the necessity of conservation measures;
(b) That the specific measures are based on scientific findings and are practicable; and
(c) That the measures do not discriminate, in form or in fact, against fishermen of other States;

Applicable to the determination of disputes arising under article 8 is the requirement that scientific findings demonstrate the necessity for conservation measures, or that the conservation programme is adequate, as the case may be.

2. The special commission may decide that pending its award the measures in dispute shall not be applied, provided that, in the case of disputes under article 7, the measures shall only be suspended when it is apparent to the commission on the basis of prima facie evidence that the need for the urgent application of such measures

Article 11 The decisions of the special commission shall be binding on the States concerned and the provisions of paragraph 2 of Article 94 of the Charter of the United Nations shall be applicable to those decisions. If the decisions are accompanied by any recommendations, they shall receive the greatest possible consideration.

Article 12
1. If the factual basis of the award of the special commission is altered by substantial changes in the conditions of the stock or stocks of fish or other living marine resources or in methods of fishing, any of the States concerned may request the other States to enter into negotiations with a view to prescribing by agreement the necessary modifications in the measures of conservation.
2. If no agreement is reached within a reasonable period of time, any of the States concerned may again resort to the procedure contemplated by article 9 provided that at least two years have elapsed from the original award.

Article 13
1. The regulation of fisheries conducted by means of equipment embedded in the floor of the sea in areas of the high seas adjacent to the territorial sea of a State may be undertaken by that State where such fisheries have long been maintained and conducted by its nationals, provided that non-nationals are permitted to participate in such activities on an equal footing with nationals except in areas where such fisheries have by long usage been exclusively enjoyed by such nationals. Such regulations will not, however, affect the general status of
the areas as high seas.

2. In this article, the expression “fisheries conducted by means of equipment embedded in the floor of the sea” means those fisheries using gear with supporting members embedded in the sea floor, constructed on a site and left there to operate permanently or, if removed, restored each season on the same site.

Article 14 In articles 1, 3, 4, 5, 6 and 8, the term “nationals” means fishing boats or craft of any size having the nationality of the State concerned, according to the law of that State, irrespective of the nationality of the members of their crews.
...
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Geneva Convention on High Seas, 1958

Article 1 The term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal
waters of a State.

Article 2 The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:
Freedom to lay submarine cables and pipelines;
Freedom to fly over the high seas.
These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.

Article 3
1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea coast
should have free access to the sea. To this end States situated between the sea and a State having no sea coast
shall by common agreement with the latter, and in conformity with existing international conventions, accord:
(a) To the State having no sea coast, on a basis of reciprocity, free transit through their territory; and
(b) To ships flying the flag of that State treatment equal to that accorded to their own ships, or to the ships of
any other States, as regards access to seaports and the use of such ports.

2. States situated between the sea and a State having no sea coast shall settle, by mutual agreement with
the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of
the State having no sea coast, all matters relating to freedom of transit and equal treatment in ports, in case such
States are not already parties to existing international conventions.

Article 4 Every State, whether coastal or not, has the right to sail ships under its flag on the high seas.

Article 5
1. Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
2. Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect.

Article 6
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in
international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may
not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or
change of registry.

2. A ship which sails under the flags of two or more States, using them according to convenience, may not
claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without
nationality.

Article 7 The provisions of the preceding articles do not prejudice the question of ships employed on the official service of an intergovernmental organization flying the flag of the organization.

Article 8
1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag
2. For the purposes of these articles, the term “warship” means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.

Article 9 Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State.

Article 10
1. Every State shall take such measures for ships under its flag as are necessary to ensure safety at sea
with regard, inter alia, to:
(a) The use of signals, the maintenance of communications and the prevention of collisions;
(b) The manning of ships and labour conditions for crews taking into account the applicable international labour instruments; The construction, equipment and seaworthiness of ships.
2. In taking such measures each State is required to conform to generally accepted international standards and to take any steps which may be necessary to ensure their observance.

Article 11
1. In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master’s certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.

Article 12
1. Every State shall require the master of a ship sailing under its flag, insofar as he can do so without
serious danger to the ship, the crew or the passengers:
(a) To render assistance to any person found at sea in danger of being lost;
(b) To proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, insofar as such action may reasonably be expected of him;
(c) After a collision, to render assistance to the other ship, her crew and her passengers and, where possible, to inform the other ship of the name of his own ship, her port of registry and the nearest port at which she will call.

2. Every coastal State shall promote the establishment and maintenance of an adequate and effective
search and rescue service regarding safety on and over the sea and — where circumstances so require — by way
of mutual regional arrangements cooperate with neighbouring States for this purpose.

Article 13 Every State shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.

Article 14 All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.

Article 15 Piracy consists of any of the following acts:
(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.

Article 16 The acts of piracy, as defined in article 15, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship.

Article 17 A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 15. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.

Article 18 A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived.

Article 19 On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

Article 20 Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft, for any loss or damage caused by the seizure.

Article 21 A seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government service authorized to that effect.

Article 22
1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:
That the ship is engaged in piracy; or
That the ship is engaged in the slave trade; or
That though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in subparagraphs (a), (b) and (c) above, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship.
If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

Article 23
1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 24 of the Convention on the Territorial Sea and the Contiguous Zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.
2. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own country or of a third State.
3. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship as a mother ship are within the limits of the territorial sea, or as the case may be within the contiguous zone. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.
4. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft on government service specially authorized to that effect.
5. Where hot pursuit is effected by an aircraft:
(a) The provisions of paragraphs 1 to 3 of this article shall apply mutatis mutandis;
(b) The aircraft giving the order to stop must itself actively pursue the ship until a ship or aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest on the high seas that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption.
6. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an enquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the high seas, if the circumstances rendered this necessary.
7. Where a ship has been stopped or arrested on the high seas in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.

Article 24 Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject.

Article 25
1. Every State shall take measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organizations.
2. All States shall cooperate with the competent international organizations in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radioactive materials or other harmful agents.

Article 26
1. All States shall be entitled to lay submarine cables and pipelines on the bed of the high seas.
2. Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of such cables or pipelines.
3. When laying such cables or pipelines the State in question shall pay due regard to cables or pipelines already in position on the seabed. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced.

Article 27 Every State shall take the necessary legislative measures to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable shall be a punishable offence. This provision shall not apply to any break or injury caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such break or injury.

Article 28 Every State shall take the necessary legislative measures to provide that, if persons subject to its jurisdiction who are the owners of a cable or pipeline beneath the high seas, in laying or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they shall bear the cost of the repairs.

Article 29 Every State shall take the necessary legislative measures to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand.

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UN convention on Law of the Sea, 1982 : UNCLOS III - replaces(4 Treates of 1958 UNCLOS I)
The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th state to sign the treaty.[1] To date, 162 countries and the European Community have joined in the Convention. However, it is uncertain as to what extent the Convention codifies customary international law.

While the Secretary General of the United Nations receives instruments of ratification and accession and the UN provides support for meetings of states party to the Convention, the UN has no direct operational role in the implementation of the Convention. There is, however, a role played by organizations such as the International Maritime Organization, the International Whaling Commission, and the International Seabed Authority (the latter being established by the UN Convention).

Historical background

The UNCLOS replaces the older and weaker 'freedom of the seas' concept, dating from the 17th century: national rights were limited to a specified belt of water extending from a nation's coastlines, usually three nautical miles, according to the 'cannon shot' rule developed by the Dutch jurist Cornelius van Bynkershoek. All waters beyond national boundaries were considered international waters: free to all nations, but belonging to none of them (the mare liberum principle promulgated by Grotius).

In the early 20th century, some nations expressed their desire to extend national claims: to include mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls. (The League of Nations called a 1930 conference at The Hague, but no agreements resulted.) Using the customary international law principle of a nation's right to protect its natural resources, President Truman in 1945 extended United States control to all the natural resources of its continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Argentina, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical miles.

By 1967, only 25 nations still used the old three-mile limit, while 66 nations had set a 12-mile territorial limit and eight had set a 200-mile limit. As of May 28, 2008, only two countries still use the three-mile limit: Jordan and Palau.[3] That limit is also used in certain Australian islands, an area of Belize, some Japanese straits, certain areas of Papua New Guinea, and a few British Overseas Territories, such as Anguilla.
UNCLOS I

In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at Geneva, Switzerland. UNCLOS I resulted in four treaties concluded in 1958:
    Convention on the Territorial Sea and Contiguous Zone, entry into force: 10 September 1964
    Convention on the Continental Shelf, entry into force: 10 June 1964
    Convention on the High Seas, entry into force: 30 September 1962
    Convention on Fishing and Conservation of Living Resources of the High Seas, entry into force: 20 March 1966

Although UNCLOS I was considered a success, it left open the important issue of breadth of territorial waters.

UNCLOS II
In 1960, the United Nations held the second Conference on the Law of the Sea ("UNCLOS II"); however, the six-week Geneva conference did not result in any new agreements. Generally speaking, developing nations and third world countries participated only as clients, allies, or dependents of United States or the Soviet Union, with no significant voice of their own.
The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo, of Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New York. In an attempt to reduce the possibility of groups of nation-states dominating the negotiations, the conference used a consensus process rather than majority vote. With more than 160 nations participating, the conference lasted until 1982. The resulting convention came into force on November 16, 1994, one year after the sixtieth state, Guyana, ratified the treaty.

UNCLOS III The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes.

The convention set the limit of various areas, measured from a carefully defined baseline. (Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.) The areas are as follows:

Internal waters
Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.

Territorial waters
Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not "prejudicial to the peace, good order or the security" of the coastal state. Fishing, polluting, weapons practice, and spying are not "innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.
Archipelagic waters
    The convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated Archipelagic Waters. The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).
Contiguous zone
    Beyond the 12 nautical mile limit, there is a further 12 nautical miles from the territorial sea baseline limit, the contiguous zone, in which a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution, if the infringement started within the state's territory or territorial waters, or if this infringement is about to occur within the state's territory or territorial waters.[4] This makes the contiguous zone a hot pursuit area.
Exclusive economic zones (EEZs)
    These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres; 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.
Continental shelf
    The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, whichever is greater. A state’s continental shelf may exceed 200 nautical miles until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the Common heritage of mankind principle.[5]

Landlocked states are given a right of access to and from the sea, without taxation of traffic through transit states.

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Agreement relating to the Implementation of Part XI of the United Nations Convention of 1994 on the Law of the Sea of 10th Dec 1982

Part XI of the Convention provides for a regime relating to minerals on the seabed outside any state's territorial waters or EEZ (Exclusive Economic Zones). It establishes an International Seabed Authority (ISA) to authorize seabed exploration and mining and collect and distribute the seabed mining royalty.

The United States objected to the provisions of Part XI of the Convention on several grounds, arguing that the treaty was unfavorable to American economic and security interests. Due to Part XI, the United States refused to ratify the UNCLOS, although it expressed agreement with the remaining provisions of the Convention.

From 1983 to 1990, the United States accepted all but Part XI as customary international law, while attempting to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions.

In 1990, consultations were begun between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow the industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus.

On February 1, 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion concerning the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with Part XI of the Convention and the 1994 Agreement.[6] The advisory opinion was issued in response to a formal request made by the International Seabed Authority following two prior applications the Authority's Legal and Technical Commission had received from the Republics of Nauru and Tonga regarding proposed activities (a plan of work to explore for polymetallic nodules) to be undertaken in the Area by two State-sponsored contractors (Nauru Ocean Resources Inc. (sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored by the Kingdom of Tonga). The advisory opinion set forth the international legal responsibilities and obligations of Sponsoring States AND the Authority to ensure that sponsored activities do not harm the marine environment, consistent with the applicable provisions of UNCLOS Part XI, Authority regulations, ITLOS case law, other international environmental treaties, and Principle 15 of the UN Rio Declaration
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The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976

An Act to provide for certain matters relating to the territorial waters, continental shelf, shelf, exclusive economic zone and other maritime zones of India. Be it enacted by Parliament in the Twenty-seventh Year of the Republic of India as follows:-

1.
(1) This Act may be called the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.

(2) Sections 5 and 7 shall come into force on such date or on such different dates as the Central Government may, by notification in the official Gazette, appoint; and the remaining provisions of this Act shall come into force at once.

2. In this Act, “Limit”, in relation to the territorial waters, the continental shelf, the exclusive economic zone or any other maritime zone of India, means the limit of such waters, shelf or zone with reference to the mainland of India as well as the individual or composite group or groups of islands constituting part of the territory of India.

3.
(1) The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over, such waters.

(2) The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline.

(3) Notwithstanding anything contained in sub-section (2), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the territorial waters.

(4) No notification shall be issued under sub-section (3) unless resolutions approving the issue of such notification are passed by both Houses of Parliament.

4.
(1) Without prejudice to the provisions of any other law for the time being in force, all foreign ships (other than warships including submarines and other underwater vehicles) shall enjoy the right of innocent passage through the territorial waters.

Explanation- For the purposes of this section, passage is innocent so long as it is not prejudicial to the peace, good order or security of India.

(2) Foreign warships including submarines and other underwater vehicles may enter or pass through the territorial waters after giving prior notice to the Central Government: Provided that submarines and other underwater vehicles shall navigate on the surface and show their flag while passing through such waters.

(3) The Central Government may, if satisfied that it is necessary so to do in the interests of the peace, good order or security of India or any part thereof, suspend, by notification in the Official Gazette, whether absolutely or subject to such exceptions and qualifications as may be specified in the notification, the entry of all or any class of foreign ships into such area of the territorial waters as may be specified in the notification.

5.
(1) The contiguous zone of India (hereinafter referred to as the contiguous zone) is and area beyond and adjacent to the territorial waters and the limit of the contiguous zone is the line every point of which is at a distance of twenty-four nautical miles from the nearest point of the baseline referred to in sub-section (2) of section 3.

(2) Notwithstanding anything contained in sub-section (1), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the contiguous zone.

(3) No notification shall be issued under sub-section (2) unless resolutions approving the issue of such notification are passed by both Houses of Parliament.

(4) The Central Government may exercise such powers and take such measures in or in relation to the contiguous zone as it may consider necessary with respect to,- (a) (b)
The Central Government may, by notification in the Official Gazette,-

(a) extend with such restrictions and modifications as it thinks fit, any enactment, relating to any matter referred to in clause (a) or clause (b) of sub-section (4), for the time being in force in India or any part thereof, to the contiguous zone, and
(b) make such provisions as it may consider necessary in such notification for facilitating the enforcement of such enactment, and any enactment so extended shall have effect as if the contiguous zone is a part of the territory of India.

6.
(1) The continental shelf of India (hereinafter referred to as the continental shelf) comprises the seabed and subsoil of the submarine areas that extend beyond the limit of its territorial waters throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of two hundred nautical miles from the the security of India, and immigrations sanitation, customs and other fiscal matters.
baseline referred to in sub-section (2) of section 3 where the outer edge of the continental margin does not extend up to that distance.

(2) India has, and always had, full and exclusive sovereign rights in respect of its continental shelf.

(3) Without prejudice to the generality of the provisions of sub-section (2), the Union has in the continental shelf,-
(a) Sovereign rights for the purposes of exploration, exploitation, conservation and management of all resources;
(b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial islands, off-shore terminals, installations and other structures and devices necessary for the exploration and exploitation of the resources of the continental shelf or
for the convenience of shipping or for any other purpose;
(c) exclusive jurisdiction to authorize, regulate and control scientific research; and
(d) exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution.

(4) No person (including a foreign Government) shall, expect under, and in accordance with, the terms of a licence or a letter of authority granted by the Central Government, explore the continental shelf or exploit its resources or carry out any search or excavation or conduct any research within the continental shelf o drill therein or construct, maintain or operate any artificial island, off-shore terminal, installation or other structure or device therein for any purpose whatsoever.
The Central Government may, by notification in the Official Gazette,-
(a) declare any area of the continental shelf and its superjacent waters to be a designated area; and
(b) make such provisions as it may deem necessary with respect to,-

(i) the exploration, exploitation and protection of the resources of the continental shelf within such designated area; or
(ii) the safety and protection of artificial islands, off-shore terminals, installations and other structures and devices in such designated area; or
(iii) the protection of marine environment of such designated area; or
(iv) customs and other fiscal matters in relation to such designated area.
Explanation- A notification issued under this sub-section may provide for the regulation of entry into and passage through the designated area of foreign ships by the establishment of fairways, sealanes, traffic separation schemes or any other mode of ensuring freedom of navigation which is not prejudicial to the interests of India.
The Central Government may, by notification in the Official Gazette,-
(a) extend with restrictions and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof to the continental shelf or any part [including any designated area under sub-section (5)] thereof, and
(b) make such provisions as it may consider necessary for facilitating the enforcement of such enactment, and any enactment so extended shall have effect as if the continental shelf or the part [including, as the case may be, any designated area under sub-section (5) ] thereof to which it has been extended is a part of the territory of India.

(7) Without prejudice to the provisions of sub-section (2) and subject to any measures that may be necessary for protecting the interests of India, the Central Government may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf by foreign Stats:
Provided that the consent of the Central Government shall be necessary for the delineation of the course for the laying of such cables or pipelines.

7.
(1) The exclusive economic zone of India (hereinafter referred to Exclusive as the exclusive economic zone) is an area beyond and adjacent to the territorial waters, and the limit of such zone is two hundred nautical miles from the baseline referred to in sub-section (2) of section3.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the exclusive economic zone.

(3) No notification shall be issued under sub-section (2) unless resolutions approving the issue of such notification are passed by both Houses of Parliament.

In the exclusive economic zone, the Union has,-
(a) sovereign rights for the purpose of exploration, exploitation, conservation and management of the natural resources, both living and non-living as well as for producing energy from tides, winds and currents;
(b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial islands, off-shore terminals, installations and other structures and devices necessary for the exploration and exploitation of the resources of the zone or for the convenience of shipping or for any other purpose.
(c) Exclusive jurisdiction to authorize, regulate and control scientific research;
(d) Exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution; and
(e) Such other rights as are recognized by International Law.

(5) No person (including a foreign Government ) shall, except under, and in accordance with, the terms of any agreement with the Central Government or of a licence or a letter of authority granted by the Central Government, explore or exploit any resources of the exclusive economic zone or carry out any search or excavation or conduct any research within the exclusive economic zone or drill therein or construct,
maintain or operate any artificial island, off-shore terminal, installation or other structure or device therein for any purpose whatsoever: Provided that nothing in this sub-section shall apply in relation to fishing by a citizen of India.
The Central Government may, by notification in the Official Gazette,- (a) or (b)

(a) declare any area of the exclusive economic zone to be a designated area;
(b) make such provisions as it may deem necessary with respect to,-

(i) the exploration, exploitation and protection of the resources of such designated area; or
(ii) other activities for the economic exploitation and exploration of such designated area such as the production of energy from tides, winds and currents; or
(iii) the safety and protection of artificial islands, off-shore terminals, installations and other structures and devices in such designated area; or
(iv) the protection of marine environment of such designated area; or
(v) customs and other fiscal matters in relation to such designated area.

Explanation – A notification issued under this sub-section may provide for the regulation of entry into and passage through the designated area of foreign ships by the establishment of fairways, sealanes, traffic separation schemes or any other mode of ensuring freedom of navigation which is not prejudicial to the interest of India.

The Central Government may , by notification in the official Gazette,-
(a) extend, with such restrictions and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof to the exclusive economic zone or any part thereof; and
(b) make such provisions as it may consider necessary for facilitation the enforcement of such enactment, and any enactment so extended shall have effect as if the exclusive economic zone or the part thereof to which it has been extended is a part of the territory of India.

(8) The provisions of sub-section (7) of section 6 shall apply in relation to the laying or maintenance of submarine cables or pipelines on the seabed of the exclusive economic zone as they apply in relation to the laying or maintenance of submarine cables or pipelines on the seabed of the continental shelf.

(9) In the exclusive economic zone and the air space over the zone, ships and aircraft of all States shall, subject to the exercise by India of its rights within the zone, enjoy freedom of navigation and over flight.

8.
(1) The Central Government may, by notification in the Official Gazette, specify the limits of such waters adjacent to its land territory as are the historic waters of India.

(2) The sovereignty of India extends, and has always extended, to the historic waters of India and to the seabed and subsoil underlying, and the air space over, such waters.

9.
(1) The maritime boundaries between India and any State whose coast is opposite or adjacent to that of India in regard to their respective territorial waters, contiguous zones, continental shelves, exclusive economic zones and other maritime zones shall be as determined by agreement (whether entered into before or after the commencement of this section) between India and such State and pending such agreement between India and any such State, and unless any other provisional arrangements are agreed to between them, the maritime boundaries between India and such State shall not extend beyond the line every point of which is equidistant from the nearest point from which the breadth of
the territorial waters of India and of such State are measured.
(2) Every agreement referred to in sub-section (1) shall, as soon as may be after it is entered into, be published in the Official Gazette.
(3) The provisions of sub-section (1) shall have effect notwithstanding anything contained in any other provision of this Act.

10. The Central Government may cause the baseline referred to in sub-section (2) of section 3, the limits of the territorial waters, the contiguous zone, the continental shelf, the exclusive economic zone and the historic waters of India and the maritime boundaries as settled by agreements referred to in section 9 to be published in charts.

11. Whoever contravenes any provision of this Act or of any notification thereunder shall (without prejudice to any other action which may be taken against such person under any other provision of this or of any other enactment) be punishable with imprisonment which may extend to three years, or with fine, or with both.

12.
(1) Where an offence under this Act or the rules made thereunder has been committed by a company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub- section (1) where an offence under this Act or the rules made thereunder has been committed with the consent or the connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation – For the purpose of this section-
(a) “Company “ means any body corporate and includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.

13. Any person committing an offence under this Act or any rules made there under or under any of the enactments extended under this Act or under the rules made there under may be tried for the offence in any place in which he may be found or in such other place as the Central Government may, by general or special order, published in the Official Gazette, direct in this behalf.

14.No prosecution shall be instituted against any person in respect of any offence under this Act or the rules made there under without the previous sanction of the Central Government or such officer or authority as may be authorized by that Government by order in writing in this behalf.

15.
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) regulation of the conduct of any person in the territorial waters, the contiguous zone, the continental shelf, the exclusive economic zone or any other maritime zone of India;
(b) regulation of the exploration and exploitation, conservation and management of the resources of the continental shelf;
(c) regulation of the exploration, exploitation, conservation and management of the resources of the exclusive economic zone;
(d) regulation of the construction, maintenance and operation of artificial islands, off-shore terminals, installations and other structures and devices referred to in sections 6 and 7;
(e) preservation and protection of the marine environment and prevention and control of marine pollution for the purpose of this Act;
(f) authorization, regulation and control of the conduct of scientific research for the purpose of this Act;
(g) fees in relation to licences and letters of authority referred to in sub-section (4) of section 6 and sub-section (5) of section 7 or for any other purpose; or
(h) any matter incidental to any of the matters specified in clauses (a) to (g).

(3) In making any rule under this section, the Central Government may provide that a contravention thereof shall be punishable with imprisonment, which may extend to three years, or with fine, which may extend to any amount, or with both.

(4) Every rule made under this Act and every notification issued under sub-section
(5) of section 6 or sub- section (6) of section 7 shall be laid, as soon as may be after it is made or issued, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the rule or the notification or both Houses agree that the rule or notification should not be issued, the rule or notification shall, thereafter, have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

16.
(1) If any difficulty arises in giving effect to the provisions of this Act or of any of the enactments extended under this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act or, as the case may be, of such enactment, as may appear to it to be necessary or expedient for removing the difficulty:
Provided that no order shall be made under this section-
(a) in the case of any difficulty arising in giving effect to any provision of this Act, after the expiry of three years from the commencement of such provision;
(b) in the case of any difficulty arising in giving effect to the provisions of any enactment extended under this Act, after the expiry of three years from the extension of such enactment.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
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6. Human Rights

6.1 Human Rights: Concepts, Basis and Evolution
Human rights are commonly understood as "inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being."[1] Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone). These rights may exist as natural rights or as legal rights, in both national and international law.[2] The doctrine of human rights in international practice, within international law, global and regional institutions, in the policies of states and in the activities of non-governmental organizations, has been a cornerstone of public policy around the world. The idea of human rights[3] states, "if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights." Despite this, the strong claims made by the doctrine of human rights continue to provoke considerable skepticism and debates about the content, nature and justifications of human rights to this day. Indeed, the question of what is meant by a "right" is itself controversial and the subject of continued philosophical debate.[4]

Many of the basic ideas that animated the movement developed in the aftermath of the Second World War and the atrocities of The Holocaust, culminating in the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. The ancient world did not possess the concept of universal human rights.[5] Ancient societies had "elaborate systems of duties... conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well-being entirely independent of human rights".[6] The modern concept of human rights developed during the early Modern period, alongside the European secularization of Judeo-Christian ethics.[7] The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval Natural law tradition that became prominent during the Enlightenment with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American Revolution and the French Revolution.

From this foundation, the modern human rights arguments emerged over the latter half of the twentieth century. Gelling as social activism and political rhetoric in many nations put it high on the world agenda.[8]
“     All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

6.2 Traditional Human Rights
6.2.1 Civil and Political rights (1st Generation Human rights)
First-generation human rights, often called "blue" rights, deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature, as well as strongly individualistic: They serve negatively to protect the individual from excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, freedom of religion and voting rights. They were pioneered by the United States Bill of Rights and in France by the Declaration of the Rights of Man and of the Citizen in the 18th century, although the right to due process goes back to the Magna Carta of 1215 and the Rights of Englishmen. They were first enshrined at the global level by the 1948 Universal Declaration of Human Rights, given status in international law in Articles 3 to 21, and in the International Covenant on Civil and Political Rights.

When first generation human rights are limited, this directly limits second generation rights. Improving first generation rights is the "causal link from first generation human rights to improved socio-economic outcomes"

6.2.2 Economic, Social and Cultural Rights (2nd Generation Human Rights )
Second-generation human rights are related to equality and began to be recognized by governments after World War II. They are fundamentally economic, social and cultural in nature. They guarantee different members of the citizenry equal conditions and treatment. Secondary rights would include a right to be employed, rights to housing and health care, as well as social security and unemployment benefits. Like first-generation rights, they were also covered by the Universal Declaration of Human Rights, and further embodied in Articles 22 to 27 of the Universal Declaration, and the International Covenant on Economic, Social, and Cultural Rights.

In the United States of America, President Franklin D. Roosevelt proposed a Second Bill of Rights, covering much the same grounds, during his State of the Union Address on January 11, 1944. Today, many nations, states, or groups of nations have developed legally binding declarations guaranteeing comprehensive sets of human rights, e.g. the European Social Charter.

Some states have enacted some of these economic rights, e.g., New York State has enshrined the right to a free education,[3][4] as well as "the right to organize and to bargain collectively,"[5] and workers compensation,[6], in its constitutional law.

These rights are sometimes referred to as "red" rights. They impose upon the government the duty to respect and promote and fulfill them, but this depends on the availability of rescources. The duty is imposed on the state because it controls its own resources. No one has the direct right to housing and right to education. (In South Africa, for instance, the right is not, per se, to housing, but rather "to have access to adequate housing,"[7] realised on a progressive basis.[8])

The duty of government is in the realisation of these rights is a positive one.

6.3 Third generation Human Rights (Solidarity Rights)
Third-generation human rights are those rights that go beyond the mere civil and social, as expressed in many progressive documents of international law, including the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, the 1992 Rio Declaration on Environment and Development, and other pieces of generally aspirational "soft law." Because of the present-day tilting toward national sovereignty and the preponderance of would-be offender nations, these rights have been hard to enact in legally binding documents.

The term "third-generation human rights" remains largely unofficial, and thus houses an extremely broad spectrum of rights, including:
  - Group and collective rights
  - Right to self-determination
  - Right to economic and social development
  - Right to a healthy environment
  - Right to natural resources
  - Right to communicate and communication rights
  - Right to participation in cultural heritage
  - Rights to intergenerational equity and sustainability

Some countries have constitutional mechanisms for safeguarding third-generation rights. For example, the New Zealand Parliamentary Commissioner for the Environment, the Hungarian Parliamentary Commissioner for Future Generations,[9] the Parliament of Finland’s Committee for the Future, and the erstwhile Commission for Future Generations in the Knesset in Israel.

Some international organizations have offices for safeguarding such rights. An example is the High Commissioner on National Minorities of the Organization for Security and Co-operation in Europe. The Directorate-General for the Environment of the European Commission has as its mission "protecting, preserving and improving the environment for present and future generations, and promoting sustainable development."

A few jursidictions have enacted provisions for environmental protection, e.g. New York's "forever wild" constitutional article,[10] which is enforceable by action of the New York State Attorney General or by any citizen Ex rel with the consent of the Appellate Division.[11]

These are sometimes referred to as "green" rights.

6.4 Implementation of Human Rights at International Level
Treaties and Statutes
- Universal Declaration on Human Rights, 1948
he Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly (10 December 1948 at Palais de Chaillot, Paris). The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3. Everyone has the right to life, liberty and security of person.
Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6. Everyone has the right to recognition everywhere as a person before the law.
Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9. No one shall be subjected to arbitrary arrest, detention or exile.
Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11.
(1)Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2)No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13.
(1) Everyone has the right to freedom of movement and residence within the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15.
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.      They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17.
(1)   Everyone has the right to own property alone as well as in association with others.
(2)   No one shall be arbitrarily deprived of his property.

Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20.
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.

Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right to equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24. Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28.Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30. Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
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International Covenant on Civil and Political Rights, 1966
This covenant details the basic civil and political rights of individuals and nations. Among the rights of nations are:
-   the right to self determination
-   the right to own, trade, and dispose of their property freely, and not be deprived of their means of subsistence

Among the rights of individuals are:
    the right to legal recourse when their rights have been violated, even if the violator was acting in an official capacity
    the right to life
    the right to liberty and freedom of movement
    the right to equality before the law
    the right to presumption of innocence til proven guilty
    the right to appeal a conviction
    the right to be recognized as a person before the law
    the right to privacy and protection of that privacy by law
    freedom of thought, conscience, and religion
    freedom of opinion and expression
    freedom of assembly and association

The covenant forbids torture and inhuman or degrading treatment, slavery or involuntary servitude, arbitrary arrest and detention, and debtor's prisons. It forbids propaganda advocating either war or hatred based on race, religion, national origin, or language.

It provides for the right of people to choose freely whom they will marry and to found a family, and requires that the duties and obligations of marriage and family be shared equally between partners. It guarantees the rights of children and prohibits discrimination based on race, sex, color, national origin, or language.

It also restricts the death penalty to the most serious of crimes, guarantees condemned people the right to appeal for commutation to a lesser penalty, and forbids the death penalty entirely for people under 18 years of age.

The covenant permits governments to temporarily suspend some of these rights in cases of civil emergency only, and lists those rights which cannot be suspended for any reason. It also establishes the UN Human Rights Commission.

After almost two decades of negotiations and rewriting, the text of the Universal Covenant on Civil and Political Rights was agreed upon in 1966. In 1976, after being ratified by the required 35 states, it became international law.
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International Covenant on Economic, Social and Cultural Rights, 1966
This covenant describes the basic economic, social, and cultural rights of individuals and nations, including the right to:
    self-determination
    wages sufficient to support a minimum standard of living
    equal pay for equal work
    equal opportunity for advancement
    form trade unions
    strike
    paid or otherwise compensated maternity leave
    free primary education, and accessible education at all levels
    copyright, patent, and trademark protection for intellectual property

In addition, this convention forbids exploitation of children, and requires all nations to cooperate to end world hunger. Each nation which has ratified this covenant is required to submit annual reports on its progress in providing for these rights to the Secretary General, who is to transmit them to the Economic and Social Council.
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Additional Treaties of Human Rights

6.5 Human Rights Council
The Human Rights Council is an inter-governmental body within the United Nations structure, with a membership consisting of 47 states. The Council is responsible for strengthening the promotion and protection of human rights around the globe. It was created by the UN General Assembly in 2006 with the overall objective of addressing human rights violations.

Council members are elected by the 192 member states of the UN General Assembly. Any UN member state can be elected to the Council if it receives an absolute majority of votes. The 47 Council seats are designed to ensure equitable geographical representation: 13 members are elected from the African Group; 13 from the Asian Group; 6 from the Eastern European Group; 8 from the Latin American and Caribbean Group; and 7 from the Western European and Other States Group. The first members of the Human Rights Council were elected on 9 May 2006. The last Council elections were held on 12 May 2009, and the next elections will be held in 2012. Members are elected for three-year terms. They are not eligible for immediate re-election after serving two consecutive terms.
The General Assembly has the right to suspend the rights and privileges of any Council Member that it decides has persistently committed gross and systematic violations of human rights during its term of membership. This process of suspension requires a two-thirds majority vote by the General Assembly.

The Human Rights Council consists of member states or governments, and is a subsidiary body of the General Assembly, directly accountable to the full membership of the United Nations.
The Council serves as the main United Nations forum for intergovernmental cooperation and dialogue on human rights issues. Its focus is to help member states meet their human rights obligations through dialogue, capacity building, and technical assistance. The Council also makes recommendations to the General Assembly for further development of international law in the field of human rights.

Through what is called a “Universal Periodic Review,” the Council assesses the situation of human rights in all 192 UN member states. It also has an Advisory Committee, which provides expertise and advice on thematic human rights issues which pertain to all parts of the world. Another element of its work is a “Complaints Procedure,” which allows individuals and organizations to bring complaints about human rights violations to the attention of the Council.

The Council addresses specific country situations or thematic issues through a system called ‘special procedures.’ Currently, there are 33 thematic and 8 country mandates.

6.6 European Convention on Human Rights
European Convention on Human Rights, 1950, Protocol 9 of 1990 and Protocol 11 of 1994
The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.[2]

The Convention established the European Court of Human Rights (ECtHR). Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). The European Convention is still the only international human rights agreement providing such a high degree of individual protection. State parties can also take cases against other state parties to the Court, although this power is rarely used.

Protocol 9 of 1990 - gave permission to indiv‪idual to petition

Protocol 11 of 1994
As amended by Protocol 11, the Convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions.

Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the Court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high-level machinery for the operation of, respectively, the Commission and the Court, and Section V contained various concluding provisions.

Many of the Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death)
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6.7 Protection of Human Rights in India
The Protection of Human Rights Act, 1993 (India)
Set up NHRC -
Functions of NHRC
The Commission shall perform all or any of the following functions:
-   to inquire, on its own motion or on a petition presented to it by a victim or any person on his behalf into the complaint of-
    -   violation of human rights or abatement; or
    -   negligence in the prevention of such violation by a public servant;
-   to intervene in any proceeding involving any allegation or human rights pending before a court with the approval of such court;
-   to visit, under an intimation to the State Government any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living condition or the inmates and make recommendations thereon;
-   to review the safeguards by or under the Constitution or any law for the time being in force for the protection of human rights and recommend various measures for their effective implementation;
-   to review the factors, including acts of terrorism that inhibit the employment of human rights and recommend appropriate remedial measures;
-   to study treaties and other international instruments on human rights and make recommendations for their effective implementation;
-   to undertake and promote research in the field of human rights;
-   to spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publication, the media, seminar and available means;
-   to encourage the efforts of non governmental organizations and institutions working in the field of human rights;
-   such other functions as it may consider necessary for the protection of human rights.

Powers: Sec. 13 provides the powers of the Commission which are as follows:
-   powers of a civil court trying a suit under the Code of Civil Procedure, 1908;
-   to require any person to furnish information on such points or matters subject to any privilege which may be claimed by that person under any law for the time being in force;
-   enter into any building or place where the commission has reason to believe that any document relating to the subject matter or the inquiry may be found and may seize any such document or take extracts or copies there from subject to the provisions of Sec.100 of Criminal Procedure Code, 1973.

The following are the major types of complaints:

In respect of Police Administration,
- Failure in taking action;
- Unlawful detention;
- False implication;
- Custodial violation;
- Illegal arrest;
- Other police excesses;
    Custodial deaths;
    Encounter deaths;
    Harassment of prisoners;
    Jail conditions;
    Atrocities on SC and STs;
    Bonded labor;
    Child labor;
    Child marriage;
    Dowry death or its attempt;
    Dowry demand;
    Abduction, rape and murder;
    Sexual harassment and indignity to women;
    Exploitation of women.

(36) Vishaka vs State of Raj, AIR 1997 SC 3011
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial
Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should
ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims
of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action: Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism: Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint
mechanism should ensure time bound treatment of complaints.

7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers' Initiative: Employees shld be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum
and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.

10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines
laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

SC -> above guidelines & norms wud be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly. - Guidelines from Convention on Elimination of Discrimination of all kinds against Women - which are not conflict

(37) Gaurav Jain vs UoI & Ors, AIR 1997 SC 3021
PIL filed by SC advocate Gaurav Jan after reading article in India Today on the plight of Children of Prostitutes - Petitioned to end discrimination & to adopt measures as separate schooling of these children and help these kids estb their fundamental rights - Court set up VC Mahajan Committe to look into this matter - held that separate schooling would lead to further social discrimination students shld be made to rehabilitate with regular schools & society.


Optional Protocol of International Covenant of Civil and Political rights, 1966
The protocol adds legal force to the Covenant on Civil and Political Rights by allowing the Human Rights Commission to investigate and judge complaints of human rights violations from individuals from signator countries.
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