Q.1. Definition and subjects of Public International Law ?

Public International law is that body of law which is composed of the principles and rules of
conduct which states feel bound to and do observe in their relations to each other.
It also includes rules of law relating to the function of international institutions or organizing
their relations with each other and the states and to the individuals as well as certain rules of
law relating to individuals and non-state entities in so far as the rights and duties of such
individuals and non-state entities are the concern of the international communities.

This definition covers different developments which have qualified traditional conception of
International Law as purely a system of rules and principles that are applicable to interstate
relations on the basis of either state practice or international multi-lateral treaties.

According to Oppenheim, International Law is law in proper sense because:-

- In practice International Law is considered as law, therefore the states are bound to follow them
not only from moral point of view but from legal point of view also.
-When states violate international law then they do deny the existence of international law but
they interpret them in such a way so that they can prove their conduct is as per international law.
Starke while accepting International Law as Law has said, that in various communities law is
in existence without any sanction and legal force or fear and such law has got the same
acceptance as the law framed and enacted by state Legislative Assemblies.
With the result of international treaties and conventions International Law is in existence.
-U.N.O. is based on the legality of International Law. According toProf.Briely, To deny the
existence and legal character of International Law is not only inconvenient in practice but it is
also against legal thoughts and principles.
Subjects of Public International Law

INTRODUCTION:-A subject of rules is a being upon which the rules confer rights,
capacity and imposes duties and responsibility. Generally it is the State who enters into
treaties with each other and is thus bound by its provisions. This does not however mean that
other entities or individuals ar outside the scope of international law. International law
applies upon individuals and certain non-state entities in addition to states. In the modern era
 the international law has expanded a lot. Now this law is applied besides States and
individuals also.
THEORIS REGARDING SUBJECTS OF INTERNATIONAL LAW:- Following are the
three main theories prevalent in regard to the subjects of international law:-1. Only States
are the subject-matters of I. Law:-Certain jurists have expressed the view that only
International law regulates the behaviour of states hence states are its subject matters. Percy
E.Corbett says, The triumph of positivism in the late eighteenth century made the individual
an object not a subject of international law.
CRITCISM: - The jurists have bitterly criticised as this theory fails to explain the case of
slaves and pirates. The pirates are regarded enemy of humanity and they can be punished by
the State for piracy. In international arena by some ordinary treaties community of states
have granted certain rights. But those jurists who say that states are the only subject-matter of
international law but are object of it. To say that individuals are not the subject but object of
the International law seems to be incorrect. Prof. Schwarzenberger, has aptly remarked that
this view is controversial. He asserts that he individual who is the base of the society is only
an object of the I. Law is not justified.
2. Only individual are the subjects of International law: - Just contrary to the above
theory there are certain jurists who have expressed the view that in the ultimate analysis of
international law it will be evident that only individuals are the subject of International Law.
The main supporter of this theory is Professor Kelson. Before keelson this view was
expressed by Westlae, who opined, the duties and rights of the States are only the duties and
rights of men who compose them. Kelson has analysed the concept of State and according to
him it is a legal concept which as a mixture of legal rules applicable to all the people living in
certain area hence the obligations of a State in international law in the last resort are the
duties of individuals of which state consists.
In fact there is no difference between international law and state law. In his view
both laws apply on the individuals and they are for the individuals. However he admits that
the difference is only this that the state law applies on individuals intermediately whereas
international law applies upon the individuals mediately.
Criticism:-So far as logic is concerned the view of Kelson seems to be correct. An example is
the Convention on the settlement of invest Disputes between States and Nationals of the other
states, 1965. By this treaty provision is made to settle the disputes which arise by investment of
capital by nationals of one state in other

states. So it is clear that the view of Kelsen that international law is made applicable through
the medium of a State seems justified.
3. States individuals and certain non-state Entities are Subjects: - This view seems to be
justified as against the above views. In support of this, the following reasons may be
advanced: - i) in modern times many treaties grants rights and duties to individuals. ii) In
 case Danzing Railway PCIJ-1928, in case the State Parties of a treaty intended to grant rights
to individuals then International Law would recognise such rights and International Court
will enforce them. iii). Geneva Convention of Prisoners of War-1949 has also accorded
certain rights o prisoners of war. iv) According to Nuremberg Court since crimes against
International Law are committed by individuals the provisions of International Law can be
enforced. vi) Genocide convention- 1948:- In the convention also individuals have been
assigned directly certain duties. By article 4 of this convention those individuals who commit
international crime of genocide should be punished whether they are public servants or
ordinary person.
By the above description it is clear that only states are not subject matter of Internationals Law
but in modern times individuals international Institutions, Non-state entities minorities are also
the subject-matter of International Law.
PLACE OF INDIVIDUALS IN INTERNATIONAL LAW: - As pointed out earlier
individuals are also treated to the subjects of international law although they enjoy lesser rights
than states under international law. In the beginning they were accepted as subjects of
international law as an exception of the general rule and number of jurists treated them as objects
rather than the subject. In the recent times several treaties concluded wherein rights have been
conferred and duties have been imposed upon the individuals. Some of the provisions are as
under:-
1. Pirates: Under I. Law pirates are treated as enemies of mankind. Hence every state is
entitled to punish them.
2. Harmful acts of individuals: - For the amicable and cordial relation of the state it is
necessary that the individuals should not be involved in such acts as may prove
detrimental for the good relations among states. A leading case ex parte Petroff-1971,
wherein two persons who were found guilty of throwing explosive substances on the
Soviet Chancery were convicted.
3. Foreigners: to some extent international law also regulates the conduct of the foreigners.
According to international law it is the duty of each state to give to them that right which
it confers upon its own citizens.
4.War criminals: can be punished under international law.
5. Under some treaties individuals have been conferred upon some rights whereby they can
claim compensation or damages.

Q.2.Discuss the various theories regarding relationship between International Law and
Municipal Law.

INTRODUCTION: - Certain theories have been propounded to explain the relationship

between International Law and Municipal Law. In general it is notionally accepted that the state
municipal law control the conduct of individuals within the state while International Law
controls the relations of nations. But now this concept has altogether been changed and the
scope of International Law has increased and it not only determines and controls the relations of
states but also the relations of members of International community. Both the laws have
co-hesion with each other and the relations between these two are more prominent. These
theories have been put forward to explain the relationship between International Law and State
Law. Of all these theories as per following details, the most popular are the Monism and
dualism and they are diametrically opposed to each other:-
1. MONISTIC THEORY:-It is also known in the name of Monism theory. According to
the exponents of this theory International Law and Municipal Law are intimately
connected with each other. International Law and Municipal Law are the two branches
of unified knowledge of law which are applicable to human community in some or the
other way. All Law are made for individuals. The difference is that municipal law is
binding on individual while International Law is binding on states. Conclusively it can
be said that the root of all laws is individual.
According to Strake, International Law is part of state Municipal Law and therefore decisions
can be given by Municipal courts according to the rules of International Law.
According to O.Kornell, The objective of all laws is human welfare whether it is state
municipal law or International Law.
2. DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and
state Law are two separate laws and contained legal systems. The Monist view of law is
part of philosophy according to which totality is a single structure. But within the
framework of the unitary universe is diversity of phenomenon. International Law cannot
become part of state municipal Law till the principles of International Law are applied
under State Municipal Law.
According to Strake, The main foundation of the proponents of dualistic theory is that state
Municipal Law and International Law are two different legal systems because the nature of
International law is fundamentally different from State Municipal Law.
Angilotti has also recognised both the systems as two different legal systems. According to him
the fundamental principle of State Municipal Law in compliance of law enacted by state
legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the
agreements executed between the states.
The main basis of separation of these two systems is as follows:-
The main source of International Law is customs and treaties while in case of Municipal
Law are an enactment by sovereign power.
International Law controls the relations between state while state law controls the
relations between state and individuals.
The main cause of compliance of state law is fear of sanction while the basis of
compliance of International Law is the moral liability and vested interests of states.
 3. T HEORY OF SPECIFIC ADOPTION: - International Law cannot be directly enforced
in the field of State Law. In order to enforce it in the field of Municipal Law it is
necessary to make its specific adoption. The theory of adoption is based on Hague
convention-1970, Vienna Convention-1972 and Tokyo Convention-1975. In case of
Jolly George v/s Bank of Cochin-1980: The court held that any agreement does not
become part of Indian constitution automatically, but the positive commitment of state
parties inspires their legislative action.
The use of International Law in different countries like India, Britain, America and Russia. The
rules of International Law and treads have been based in a different ways e.g.
INDIAN ADOPTION :- The International Law has been given important place and
mention the customary rules of International Law in Article 51(6) of the Indian
constitution with the following strive :
i) To increase international peace and security.
ii) To maintain just and good relations among states.
iii) To increase faith and honour for use of International Law treaty,
obligations in natural relations and conduct of organised people.
iv) To act as mediator to encourage for settlement of international dispute.
Some of the cases in this regard are :
i) Shri Krishna Sharma v/s State of west Bengal-1964 : It was decided that whenever the court
interprets the domestic Municipal Law, it should be taken into consideration that it does not go
against International Law.
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the
implementation of Kutch Agreement between India and Pakistan on the basis of correspondence
between them. Similarly there are two other case viz: Vishakha v/s State of Rajasthan-1997.
And Apparel Export Promotion Council v/s A.K.Chopra-1999: In both of the cases the court
held that the right of sex equality of women has assumed the important rule of International Law
and its convention, court said that in cases of violation of human right the court should always
consider international documents and conventions and should make them binding.
British Adoption: In Britain International customs are treated as part of domestic law. British
courts apply international customs subject to the conditions (i) International customary rules are
not inconsistent with British Laws (ii) they are accepted by lower courts when the limit of these
customary rules are fixed by High Court. For use of treaties, the case of International Tin
Council v/s Dept., of Trade and Industry-1900: the Lord Council decided that in England
treaties are not binding automatically. It is binding only when the Parliament makes it a part of
English Law and incorporates in Law by enactment of law in this regard.
Adoption in America: In America the courts interpret the state law in such a way that it does
not go against International Law. The rules of customary International Law are treated as part of
State Law. It has been done in the case of Paqueta Habana Case- 1900: It was held that
International Law is part of our state Law and when any question or case relating International
Law is filed before courts of proper powers then the rights based on these questions should be
determined and enforced.
4. THEORY OF TRANSFORMATION:- The exponents of this theory contented that for the
application of International Law in the field of Municipal Law, the rules of international law
have to undergo transformation. Without transformation they cannot be applied in the field of
Municipal Law.
According to Strake:- That the rules of International Law can be applied when they are
transformed in to domestic law, is not necessary in every case.
5.THEORY OF DELIGATION:- The theory of transformation has been criticised by the
Jurists with the result of this craterisation it put forward a new theory called Delegation theory.
The supporters of this theory say that according to the statutory rules of International Law, the
powers have been delegated to the constitution of different states o ensure that how and what
extent according to International Law. States to determine as to how International Law will
become applicable in the field of Municipal Law in accordance with the procedure and system
prevailing in each state in accordance with its constitution.
CONCLUSION:- Last but not the least in a recent case namely, Chairman, Railway Board &
others v/s Mrs. Chandrima Das and others-2000: The supreme Court of India observed that the
International Conventions and Declarations as adopted by the United Nations have to be
respected by all signatory states and meaning given to the words in such declarations and
covenants have to such as would help in effective implementation of those rights.

Q.2.Relation between International Law and Municipal Law?

There are certain theories have been propounded to explain the relationship between
International Law and Municipal Law. In general it is notionally accepted that the state
municipal law control the conduct of individuals within the state while International Law
controls the relations of nations. But now this concept has altogether been changed and the
scope of International Law has increased and it not only determines and controls the relations of
states but also the relations of members of International community. Both the laws have
co-hesion with each other and the relations between these two are more prominent. These
theories have been put forward to explain the relationship between International Law and State
Law. Of all these theories as per following details, the most popular are the Monism and
dualism and they are diametrically opposed to each other:-
1. MONISTIC THEORY:-It is also known in the name of Monism theory. According to
the exponents of this theory International Law and Municipal Law are intimately
connected with each other. International Law and Municipal Law are the two branches of
unified knowledge of law which are applicable to human community in some or the other
way. All Law are made for individuals. The difference is that municipal law is binding
 on individual while International Law is binding on states. Conclusively it can be said
that the root of all laws is individual.
According to Strake, International Law is part of state Municipal Law and therefore decisions
can be given by Municipal courts according to the rules of International Law.
According to O.Kornell, The objective of all laws is human welfare whether it is state
municipal law or International Law.
2. DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and
state Law are two separate laws and contained legal systems. The Monist view of law is
part of philosophy according to which totality is a single structure. But within the
framework of the unitary universe is diversity of phenomenon. International Law cannot
become part of state municipal Law till the principles of International Law are applied
under State Municipal Law.
According to Strake, The main foundation of the proponents of dualistic theory is that state
Municipal Law and International Law are two different legal systems because the nature of
International law is fundamentally different from State Municipal Law.
Angilotti has also recognised both the systems as two different legal systems. According to him
the fundamental principle of State Municipal Law in compliance of law enacted by state
legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the
agreements executed between the states.

De-Facto- RECOGNITION
Recognition are two types, 1. De facto 2. de jure recognition.
The practice of States shows that in first stage the State generally give de facto
recognition. Later on when they are satisfied that the recognised state is capable of fulfilling
International obligations, they confer de jure recognition on it, that is why sometimes it is said
that de facto recognition of state is a step towards de jure recognition. The detail of de facto and
de jure recognition is as under:-
DE FACTO RECOGNITION:- Prof. G. Schwarzenberger:- When a state wants to delay the
de jure recognition of any state, it may, in first stage grant de facto recognition.
The reason for granting de facto recognition is that it is doubted that the state recognized
may be stable or it may be able and willing to fulfil its obligations under International Law.
Besides this it is also possible that the State recognised may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the essentials elements of
statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :- The de facto recognition of a State or government takes
place when the said State is free state and enjoys control over a certain fixed land but she is not
enjoying the stability at a deserved level and lacking the competence to bear the responsibility of
International Law.
For example: - De jure recognition had not been given to Russia by America and other countries
for a long time because Russia was not having competence and willingness to bear responsibility
of International Law. The same position was with China.
In view of the Judge Phillips C Jessup, De facto recognition is a term which has been used
without precision when properly used to mean the recognition of the de facto character of a
government; it is objectionable and indeed could be identical with the practice suggested of
extended recognition without resuming diplomatic relations.
The de facto recognition is conditional and provisional. If the state to which De Facto
recognition is being given is not able to fulfil all conditions of recognition then that recognition
is withdrawn.

Q.3.Discuss the sources of International Law Explain them.

Introduction:-The term sources refer to methods or procedure by which international law is

created. A distinction is made between the formal sources and material sources of law. The
formal, legal and direct sources consist of the acts or thing which gives that the content its
binding character as law. The material sources provide evidence of the existence. The sources of
international law may be classified into five categories:-

1.International Conventions: - In the modern period international treaties are the most
important source of international law. This is because the reason that states have found in this
sources. Article 2 of the Vienna Convention on the law of treaties 1969, a treaty is agreements
whereby two or more states establish or seek to establish relationship between them govern by
international law. Prof. Schwarzenbergr, Treaties are agreements between subjects of
international law creating a binding obligation in international law.
International treaties may be of the two types: -
a) Law making treaties:- these are the direct source of international law and the development of
these treaties was changing of the circumstances. Law making treaties perform the same
functions in the international field as legislation does in the state field.
b) Treaty contracts:-As compared to law making treaties treaty contracts are entered into by
two or more States. This may happen when a similar rule is incorporated in a number of treaty
contracts.

2.International Customs:-International customs have been regarded as one of the prominent

sources of international law for a long time. However even today it is regarded as one of the
important sources of international law. Usage is an international habit which has yet not received
the force of law. STRAKE Says, Usage represents the twilight stage of custom, custom begins
where usage ends. Usage is an international habit of action that has yet not received full legal
attestation. A custom in the intendment of law is such usage as that obtained the Force of law
i.e.:- It is not necessary that the usage should always precede a custom.
ii) In certain cases usage gives rise to international customary law.
iii)When a usage is combined with a rule of customary law exists.
iv)It is an important matter to see as to how international custom will be applied in international
law. Refer a case of West Rand Central Gold Mining Compy.v/s R-1905, court held that for a
valid international customs it is necessary that it should be roved by satisfactory evidence that
the custom is of such nature which may receive general consent of the States and no civilized
state shall oppose it. Porugal v/s India-1960, ICJ pointed out that when in regard to any matter or
practice, two states follow it repeatedly for a long time, it becomes a binding customary rule.
Still other resolutions amount to an interpretation of the rules and principles which he charter
already contains and which are in binding upon States.

3.General Principles of Law recognised by civilized States: -Art.38 of ICJ provides that the
Statute of International Court of Justice lists general principles of law recognised by civilised
States as the third source of international law. In the modern period it has become an important
source. This source helps international law o adapt itself in accordance with the changing time
and circumstances. On the basis of this view the general principle of law recognised by civilized
States have emerged as a result of transformation of broad universal principles of law applicable
to all the mankind. Following are some important cases relating to the general principles of law
recognised by civilized States:-
1.R. v/s Keyn-1876, that I. Law is based on justice, equality and conscience which have been
accepted by practice of States.
2. U.S v/s Schooner-held that I. Law should be based on general principles.

4. Decisions of Judicial or Arbitral Tribunals and Juristic Works:-

i) International judicial Decisions:-In the modern period international court of justice is the
main international judicial tribunal. It was established as a successor of the permanent court of I.
justice. Art.59 of the statute of ICJ makes it clear that the decisions of the court will have no
binding force except between the parties and in respect of that particular case. While in principle
it does not follow the doctrine of precedent. Thus judicial decisions unlike customs and treaties
are not direct sources of law; they are subsidiary and indirect sources of international law.
State judicial decisions:- These decisions may become rules of international law in the
following two ways:-
1. State judicial decisions are treated as weighty precedents.
2.Decisions of the state courts may become the customary rule of I. Law in the same way as
customs are.
Decisions of International Arbitral Tribunals:- Jurists have rightly too pointed out that in
most of the arbitral cases arbitrators act like mediators and diplomats rather than as judges as in
Kutch Award-1968. Juristic Works. Juristic Works:- Art.38 of ICJ, the work of high
qualified jurists are subsidiary means for the determination of the rules of I. Law. In Paquete
Habana and Lola fishing vessels with Spanish flags on them in 1898 during war between
America & Spain, held that they could not be seized or apprehended during the state of blockade.

5. Decisions or determinations of the organs of international institutions:-Art.38 of ICJ

incorporated these sources and also introduced one new source namely general principles of law.
In view of the strong reasons the decisions and determination of organs are now recognised as an
important source of I. Law. The resolutions of the organs may be binding on the members in
regard to the internal matters. Organs of international institution can decide the limits of their
competence.

6. Some other sources of International Law:- Besides the above sources of I. Law, following
are some of the other sources of international law: -
1. International Comity: mean mutual relations of nations.
2. State Paper:-In modern period diplomats send letters to each others for good relations are
also the sources of I. Law.
3. State guidance for their officers: Numbers of matters are resolved on the advice of their
legal advises.
4. Reasons: has a special position in all the ages.
5. Equity & Justice: I t may play a dramatic role in supplementing the law or appear
unobtrusively as a part of judicial reasoning.

Q.4.What do you understand by recognition? What are the various kinds of it? Also
differentiate between de facto and de jure recognition. Explain those situations when de
facto become de jure recognition. What are the disabilities of an unrecognised state?
INTRODUCTION: - It can be said that through recognition, the recognising state
acknowledges that the recognised state possesses the essential conditions of Statehood, a
Government and Sovereignty, a definite territory and has a complete control over his territory.
The community is independent. So recognition has an important place in International Law. By
recognition only the state is accepted as a member of International community.
DEFINITION:- Many of the Jurists has define Recognition in different ways. Some of them
have opined as under:
Prof.L.Oppenheim :- In recognising a State as member of International community, the
existing states declare that in their opinion the new state fulfils the conditions of statehood as
required by International Law.
Fenwick: - That through recognition the members of the International community formally
acknowledge that the new state has acquired international personality.
In the words of Phillip C Jessup: - By recognition is such a function of a state by which she
accepts that any political unit contains the essential elements of nationality.
According to Prof. Schwarzenberger:- Recognition can be absorbed easily by a procedure
developing International aw by which the state have accepted the negative sovereignty of each
other and willing to develop their legal relations on the basis of their natural relations.
According to Kelson: A community to be recognised as an International person must fulfil the
following conditions:-
i) The community must be politically organised.
ii) It should have control over a definite territory.
iii) This definite control should tend towards performance.
iv) The community thus constituted must be independent.
Thus the conditions of statehood are, People, a territory, a government and sovereignty.
1.2. TYPES OF RECOGNITION
Recognition is of two types, De facto and de jure recognition. The practice of States shows that
in first stage the State generally give de facto recognition. Later on when they are satisfied that
the recognised state is capable of fulfilling International obligations, they confer de jure
recognition on it, that is why sometimes it is said that de facto recognition of state is a step
towards de jure recognition. The detail of de facto and de jure recognition is as under:-
DE FACTO RECOGNITION: - According to Prof.G.Schwarzenberger:- When a state
wants to delay the de jure recognition of any state, it may, in first stage grant de facto
recognition.
The reason for granting de facto recognition is that it is doubted that the state recognized
may be stable or it may be able and willing to fulfil its obligations under International Law.
Besides this it is also possible that the State recognised may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the essentials elements of
statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :- The de facto recognition of a State or government takes
place when the said State is free state and enjoys control over a certain fixed land but she is not
enjoying the stability at a deserved level and lacking the competence to bear the responsibility of
International Law.
For example :- De jure recognition had not been given to Russia by America and other countries
for a long time because Russia was not having competence and willingness to bear responsibility
of International Law. The same position was with China.
In view of the Judge Phillips C Jessup, De facto recognition is a term which has been used
without precision when properly used to mean the recognition of the de facto character of a
government; it is objectionable and indeed could be identical with the practice suggested of
extended recognition without resuming diplomatic relations.
The de facto recognition is conditional and provisional. If the state to which De Facto
recognition is being given is not able to fulfil all conditions of recognition then that recognition
is withdrawn.
DE JURE RECOGNITION
De jure recognition is granted when in the opinion of recognizing State, the recognized State or
its Government possesses all the essential requirements of statehood and it is capable of being a
member of the International Community.
According to Prof.H.A.Smith :- The British practiced shows that three conditions precedent
are required for the grant of de jure recognition of a new State or a new Government. The three
conditions are as under:-
i) A reasonable assurance of stability and performance.
ii) The government should command the general support of the population.
iii) It should be able and willing to fulfil its international obligations.
Further Recognition de jure results from an expressed declaration or from a positive act
indicating clearly the intention to grant this recognition such as the establishment of diplomatic
relations.
According to Phillips Marshall Brown: - De jure recognition is final and once given cannot
be withdrawn, said intention should be declared expressly and the willingness is expressed to
establish political relations.
DISTINCTION BETWEEN DE FACTO AND DE JURE RECOGNITION
As observed by Prof.G.Schwarznbeer, De jure recognition is by nature provisional and may
be made dependent on conditions with which the new entity has to comply. It differs from de
jure recognition in that there is not yet a formal exchange of diplomatic representatives. De jure
recognition is complete implying full and normal diplomatic relations.
 De facto recognition De jure recognition

1. De facto recognition is De jure recognition is final.

conditional and
Provisional. De jure recognition cannot be
2. If the conditions are not withdrawn once given it is final.
fulfilled by the concerned
state then it is The willingness is to be
withdrawn. expressed for maintenance of
3. To maintain political political relations.
relation in this
recognition is not De jure recognition is the final
necessary. step towards recognition.
4. De facto recognition is
the first step towards de
jure recognition.

In Luther v/s Sagor-1921:- It was held that there is no distinction between de facto and de jure
recognition for the purpose of giving effect to the internal acts of the recognized authority.
Bank of Ethopia v/s National Bank of Egypt and Liquori- 1937:- The court held that in view
of the fact that the British government granted recognition to the Italian Government as being the
de facto government of the area of Abyssinia which was under Italian control, effect must be
given to an Italian decree in Abyssinia dissolving the plaintiff bank appointing liquidator.
But in the case of Luther v/s Sagore-1921 the court held that as far as internal affairs of a state
is concerned De facto recognition is interim and it can be withdrawn.
CONSEQUENCES OF RECOGNITION
There are many political and legal advantages of getting recognition and many disadvantages of
not getting recognition. They may be said as disabilities of a state of not getting recognition.
The following are the advantages of getting recognition and disadvantages of not getting
recognition.
 ADVANTAGES
1. Can establish diplomatic and
commercial relation with the states
granting recognition.
2. Recognised states can institute a suit in
the courts of states granting recognition.
3. Can institute suit relating to property
situated in the courts of state granting
recognition.
4. The representatives of recognised states
are entitled to enjoy diplomatic and
political communities in the territories of
state granting such recognition.
5. The recognised states can execute treaty
agreement with states granting such
recognition.
DISADVANTAGES
The states who did not get such
recognition cannot establish such
relations.
The state which does not get recognition
cannot do so.
Unrecognised states cannot institute suit
relating to property.
The representatives of unrecognised
states cannot enjoy such relations.
The unrecognised states cannot sign any
treaty agreement with any states.

CONCLUSION
Recognition of any state means, that state become a member of International community and
acquires International entity. The state becomes entitled to all rights and special rights as a
member of the International community. In the absence of recognition any state cannot establish
her diplomatic and political relations with any states and also unable to sign any treaty agreement
with any state.

STATE RECOGNITION

RECOGNITION:

The discretionary function exercised unilaterally by the govt of a state, officially acknowledging
the existence of another state or government or belligerent state is known as recognition.The
sovereign entities of international community have been used to justify the existence of state
even in the absence of recognition by other state. This criteria was derived from 1933
Montevideo inter America convention on rights and duties of states.In 1936 prestigious institute
de droit stated, the existence of a new state with al the legal consequences attaching to this
existence is not affected by the refusal of recognition by one or more states. Recognition of
states is the requirement of having part of world community.

The sovereign entities of international community have been used to justify the existence of state
even in the absence of recognition by other state. This criteria was derived from 1933
Montevideo inter America convention on rights and duties of states.

In 1936 prestigious institute de droit stated, the existence of a new state with al the legal
consequences attaching to this existence is not affected by the refusal of recognition by one or
more states. Recognition of states is the requirement of having part of world community.

ACTS OF RECOGNITION:

Recognition is a matter of intention and it may be expressed or implied. So the act of recognition
may be affected expressly, by formal announcement or by bilateral treaty of recognition. Also in
some circumstances through an act indicating an intention to affect recognition e.g. U.K
government recognized government of Burma by a treaty in 1947; they recognized them as fully
independent and sovereign state.

There are two theories, which have effect on the recognition of a state.

1: Constitutive theory

2: Declaratory theory

CONSTITUTIVE THEORY:

This theory asserts that the act of recognition by other states confer international responsibility
on an entity purporting to be a state. It means if that state exists this is because of international
community, as they have admitted that state into the community of nations.

So we can say that a state may possess all the attributes and qualifications of state hood but
unless or until recognition is accorded there will be no international personality. If we apply this
theory on Israel and Palestine, for Pakistan Israel is not a state. Similarly before 1974
Bangladesh was not a state for Pakistan.

DECLARATORY THEORY:
The theory asserts that the existence of states depend upon the facts whether these facts meet
with the criteria of statehood laid down in international law. According to this theory a state may
exist without being recognized. Recognition is merely declaratory and the function of
recognition is to acknowledge the fact of states political existence and the willingness of
recognizing states to treat that state as an international entity.

According to American law institute restatement, they accept it but also indicate that although a
state is not required to accord formal recognition to any other state, but it is required to be treated
as international entity that meets with the requirement of statehood.

In contemporary practice it is clear that an entity meets the conditions of statehood as defined in
s201 OF RESTATEMENT, can neither be denied the rights conferred on the states by
international law? States like Taiwan, New Caledonia, Serbia, Western Sahara, Palestine; they
still have to get the membership of UNO.

POLITICAL NATURE OF RECOGNITION:

This kind of recognition is based upon political expediency. Some members of international
community recognize the entity and the recognition is denied by others.e.g. European
community announced that it would recognize those republics that would give assurance of five
points.

1: Continued respect for UN charter.

2: Guarantee for the rights of national and ethnic groups.

3: Respect for inviolability of all frontiers

4: Acceptance of international obligations.

5: Under taking to settle all questions concerning state succession and regional disputes
peacefully.

By accepting these rules Croatia, Bosnia and Slovenia got recognition from European
community. So we can say that recognition is political tool in the hands of international
community.

RECOGNITION OF GOVERNMENTS
Recognition of governments is an indication of willingness to accord the government in question
all the international rights and privileges normally accorded to those governments that
recognizes.
Recognition of government implicitly means recognition of state because there cannot be
interstate relations with intergovernmental relations.
Recognition of governments is however different from that of states in that non recognition of
government does not mean non recognition of state. We have refused to recognize the military
regime in Mali. For instance, Tanzania never recognized the Idi Amin government in Uganda but
never doubted Ugandans state hood. Most states do not recognize governments but recognize
states. Nyerere and Iddi Amin incidence.
The granting or refusal of recognition of a government has nothing to do with the recognition of
the state itself. If a foreign state refuses the recognition of a change in the form of government of
an old/existing state the later does not lose its status as an international person. The state is
perpetual and survives changes of its government.
Non recognition of government may mean either that
1. The government in power is not a government in terms of independence and effectiveness
or
2. The foreign state is unwilling to enter into diplomatic relations to that government because
it is undemocratic
3. The entity withholding recognition thinks that the government in power is illegal.

POLITICS AND FUNCTIONS OF RECOGNITION

Whereas there is no right or duty under IL for an entity or government to be recognized the
political act or recognition produces legal consequences.
If an entity fulfills the criteria it cannot demand recognition from Kenya or any other state. If a
government is in power and ex authority it cannot demand recognition. It is an act of policy. The
moment Kenya decides we recognize a state it produces legal consequences.
Decision to recognize is a political decision. The question that arises however is whether the
decision to grant or withhold recognition is based on political or legal factors.
From state practice it is apparent that the political act or recognition is based on legal factors.
In the first place recognition cannot be granted unless and until in the appropriate legal criteria is
met.
In the case of a state there must be permanent, defined territory/borders and effective and
independent government and capacity to enter into interstate relations. Recognition will be
premature like in the case of Biafra in Nigeria. Biafra had not met the legal criteria of state hood.
The traditional indicia as regards to government and effectiveness with a possibility of
permanence and durability so that there is no premature recognition particularly in cases of
revolutionary regimes. Tenneco Arbitration
In the entire world Costa Rica is the only state without a military since 1949 and has applied all
the resources in education and health. Life expectancy is about 80 and a 94 literacy rates. The
Vatican has a military.
Secondly recognition is based on legal considerations since it brings about formal legal relations
between the recognizing and the recognized state or government. It may give rise to the
establishment of diplomatic relations or the conclusion of bilateral treaties.
However, in extreme situations of strategic or political considerations recognition may be
granted or withheld on political grounds. For instance, the decision of the UN not to grant
recognition to the Ian smith regime in southern Rhodesia was political based on the fact that the
policy on that regime was repugnant for the purposes and principles of the UN.
There are two basic functions of recognition.
1. Recognition may be employed for the purpose of the existence of a new subject of IL or its
organs.
2. Recognition confers on the recognized entity the right to have its territorial claims
recognized, changes in the title of its claim recognized and the grant or withdrawal of
nationality respected by other states.
Where a particular entity is a member of international organization it will be bound by the
recognition bounded by that organization and although a non-recognizing state are not under
legal duty of recognition they put themselves at risk legally if they ignore the basic obligations of
state relations. E.g. Arab states and Israel
There are numerous legal and political grounds for non-recognition. However, three are
important
1. The entity to be recognized is not independent in the sense that it is still subject to another
state.
2. The particular entity is unstable and without the prospect of permanence
However the instability of an entity is in the light of the drive for self-determination and
independence, less of an objection to recognition than it used to be.
For instance there was a general recognition and admission to the UN of the new state of Congo
kin Sasha DRC immediately upon its becoming independent of Belgium although civil strife and
conflict and political division were at that time so great that only the UN intervention enabled the
state to survive.
3. Is that the entity was not established according to orderly constitution change.
There are two doctrines associated with this.
a. TOBAR doctrine advanced by Dr. Tobar of Ecuador in 1907.
Dr Tobar stated that government which had recently power risen to power through extra
constitutional means should not be recognized. This doctrine was embodied in a treaty in the
same year between the five Central American republics.
b. STIMSON doctrine advanced by H.L Stimson the US secretary of state in the wake of the
Japanese invasion of the Chinese province of Manchuria and the establishment of
Manchukuo in 1932.
He stated that recognition should not be accorded to any situation brought about the acquisition
of a territory in general or the establishment of a new state or the extinction of an existing state
by a war of aggression or use of force. Pacific settlement of disputes

RECOGNITION OF GOVERNMENT

If a state acquires all the elements of statehood and if it is recognized by other states then
occasionally states does not recognize government of state. State practice suggest that there is no
legal duty upon states to extend recognition to new government.
EXAMPLES:

Afghanistan is recognized by many states but Taliban government was not recognized by
majority of states. States may suspend the recognition of state e.g. in Pakistan in eras of 70s due
to martial law many states suspended their relations with Pakistan. Similarly the relations
between Libya and USA remain suspended for 24 long years. In the same way Palestinian state
does not exist but Pakistan and Saudi a recognize it as a state. Other examples included
non-recognition USA and allies of Costa Rica between 1917-1919, non-recognition by Britain of
Russia between 1919-1921, non-recognition of USA by Britain till 1933.

ESTRADE DOCTRINE

If non-recognition can be expression of disapproval of new government then it can be applied

where no such approval is intended. States have adopted the policy of never recognizing the
government but instead of granting or withholding recognition only in respect of states. This
doctrine originates in Mexico and has been adopted several states.

MODES OF RECOGNITION:

There are two modes of recognition:

Defacto recognition

Dejure recognition

DEFACTO RECOGNITION:

This term reflect the quality of government rather than that of act of recognition. Defacto
recognition is temporary kind of recognition. When a state wants to delay the Dejure recognition
of an any state it may grant Defacto recognition. The reason is that it is doubted that state going
to be recognized may have all the attributes to fulfill international responsibility, or the state is
willing to fulfill international obligations.

As mentioned earlier that Defacto recognition is a temporary recognition and it means that state
recognized possesses the essential characters of statehood and it is fit to be subject of
international law.

According to Oppenheim the Defacto recognition of state or government takes place when in
view of recognizing state the new authority has not acquired sufficient ability (although
effective power in territory is there). By recognizing that state as Defacto means that some
characters are missing and now by recognizing them Defacto they are compelling that state to
fulfill those requirements.

According to lauterpatch Defacto recognition shows that recognizing state wants to establish its
relations with the recognized state without establishing diplomatic relations.

General Francos government in Spain was recognized Defacto by Britain. Similarly in 1936
United Kingdom recognized Italy sovereignty over Abyssinia.

DEJURE RECOGNITION:

This recognition is granted when in the opinion of recognizing state or its government the other
state possesses all the characteristics and essential requirements of statehood, also it is capable of
being member of international community.

Dejure recognition is final and once given cannot be taken back, or with drawn. This is
permanent kind of recognition.

United Kingdom recognized Italys sovereignty over Abyssinia as dejure in 1938 Soviet
government to United Kingdom in 1924.

DIFFERENCE BETWEEN TWO RECOGNITIONS:

In Defacto recognition diplomatic relations are not established formally. They are established
only by granting dejure recognition. According to jurists there is hardly any difference between
the two and if at all there is any difference it is political rather than legal. Prof. Keelson states
that the distinction between two recognitions is not important .Any codification of international
law relating to recognition can ignore it.

But according to lauterpatch there are certain differences between the two, they have pointed out
that in case of succession only the state, which has been granted dejure recognition will be
deemed to be the successor state.

Defacto recognition is provisional and Dejure is final recognition. Defacto government enjoys
same immunities as a dejure state does. However diplomatic courtesies and representation are
usually not accorded to Defacto government except in extraordinary circumstances occurring in
times of war.

There is no difference for the present purpose between a government recognized as dejure and
one recognized as Defacto.

Q.5. Legal effects of state recognition?

LEGAL EFFECTS OF RECOGNITION:

Recognition produces legal consequences affecting the rights powers privileges of recognized
states or government. Recognized states have following consequences of their recognition.

Right of suing in law courts of recognized states.

Recognized states may claim immunity from suit to its property or diplomatic representative.

They may acquire the capacity to enter in to diplomatic relations with other states and may
conclude treaties with them.

TYPES OF RECOGNITION

1.Implied recognition
Implied recognition is very much a matter of the intention of the state said to have given
recognition. The implication is made solely when the circumstances unequivocally indicate the
intention to establish formal relations with the new state or new government. For example, by
entering into some form of relations with it. Such conduct can usually amount to no more than
recognition de facto, or recognition of an entity as an insurgent authority or indicate an intention
to maintain through agents, informal relations without recognitions.
In practice, the only legitimate occasion for conclusively implying recognition de jure are :
1. The formal signature of a bilateral treaty by the recognised and recognizing States as distinct
from mere temporary arrangements or agreements. It is not necessary that the treaty be ratified.
2. The formal initiation of diplomatic relations between the recognised and recognising state.
3. The usage of a consular exequatur by the admitting state for a consul of an unrecognised state.
In certain circumstances exceptional circumstances, but no otherwise, recognition has been
inferred from the following circumstances :
a. Common participation in a multilateral treaty.
b. Participation in an international conference.
c. Initiation of negotiations between a recognising and a recognised state.
Recognition of the validity of the laws decreed or enacted by a particular entity, does not
necessarily import recognition of the law-making entity.

2.Collective recognition
The advantage of recognition taking place by some collective international act, or through the
medium of an international institution cannot be denied. It would obviate the present
embarrassments due to unilateral acts of recognition.
Recognition of a head of state or of a new government
This has nothing to do with the recognition of a state itself. In case of existing states, no
difficulty in recognising a government arises except when changes in the headship of the state or
of its government take place in an abnormal or revolutionary manner.
Where the change proceeds in a formal and constitutional way, recognition by other states is
purely a matter of formality. The recognising government should at least be satisfied as to the
prospects of stability of the new government.
In the case of nascent states, recognition raises many problems for the recognising states; first,
because of the merging of the new state with its new government and the difficulty of
recognising the one without recognising the other; secondly, most states prefer, in the matter of
recognition of nascent states, to be as non-committal as possible and to preface the date of
recognition de jure by a stage of recongition de facto.
There is no difficulty, of course, where the new state is a former dependency or trust territory,
and the parent or tutelary state, itself already de jure recognised, has consented to emancipation.
Recognition can be accorded automatically, and is essentially then a legal act of a cognitive
nature.

Q.6. State Jurisdiction?

STATE JURISDICTION
In general every State has exclusive jurisdiction within its own territory but this jurisdiction is
not absolute because it is subject to certain limitations imposed by international law. Thus in
practice it is not always necessary that a State may exercise jurisdiction in its territory on the
other hand in some circumstances may exercise jurisdiction outside its territory. Though the
relationship between jurisdiction and sovereignty is close jurisdiction is not co-extensive with
State Sovereignty. Each state has normally jurisdiction over all persons and things within its
territory.

State jurisdiction is the power of a state under international Law to govern persons and property
by its municipal law. It includes both the power to prescribe rules and the power to enforce
them. The rules of State jurisdiction identity the persons and the property within the permissible
range of a states law and its procedures for enforcing the law. A State may regulate its
jurisdiction by legislation through its courts or by taking executive or administrative action. Thus
the jurisdiction of a State is not always a co-incident with its territory Case of KTMS Abdul
Cader and others v/s Union of India-1977, the court held that act has no extra-territorial
application and hence the State government has no power under the Act to pass orders of
detention against persons who at the time when the orders were made were not within India but
were out-side its territorial limits.

Q.7. Principles of State Jurisdiction?

Q.8. Exemptions from state jurisdiction?

EXEMPTION TO THE TERRITORIAL JURISDICTION

There are some exceptions of the exercise of jurisdiction which definitely recognizes the
protective jurisdiction of one state to deal with foreign nationals acting in their country against
its security and integrity:-
1. DIPLOMATIC AGENTS:- Diplomatic agents enjoy certain privileges and immunities.
They are immune from the jurisdiction of the civil and criminal courts of the receiving
State. In this connection the old view was tha the diplomatic agents enjoy these immunities
and privileges because they were deemed to be outside the jurisdiction of receiving State.
In the present time this theory has been discarded. Modern view diplomatic agents enjoy
certain immunities and privileges because of the special functions they perform. This was
affirmed in a case Ex-parte Petroff-1971 by the Supreme Court of Australia.
2. Foreign Embassies: - Foreign embassies are often considered to be outside the jurisdiction
of the State in which they are situated. For sake of convenience embassies are to be treated
a part of their home States. The correct view however is that though not part of their home
States embassies enjoys certain immunities because of the special functions performed by
the diplomatic agents.
3. Foreign Sovereigns:-Foreign sovereigns are often treated to be outside the jurisdiction of
other states and possess many privileges and immunities. In the case of Christina-1938,
Lord Wright observed that there are general principles of International Law according to
 which a sovereign state is held to be immune from the jurisdiction of another sovereign
State.
The principle of immunity of immunity of Foreign Sovereign was developed in the early
years of the nineteenth century. In the case of the Schooner Exchange v/s McFaddon-1812, A
French Naval Vessel stayed in Philadelphia for repairs after a storm. Some persons sought
possession of the ship on the ground that in reality the ship Schooner Exchange. An American
ship which they owned and was seized by French on the High Seas in 1810 in pursuance of a
Napoleonic Decree. The U.S. Govt. however requested the court to refuse jurisdiction on the
ground of sovereign immunity. Court held that the vessel was exempt from U.S. Jurisdiction.
The jurisdiction of the nation within its own territory is necessary exclusive and absolute.
It is susceptible of no limitation not imposed by it. In another case of Vavasseur v/s
Krupp-1878, the plaintiff contended that the Japanese Govt., has violated his patent rights and
therefore he demanded that the delivery of the goods by it be stopped. But the court had that it
had no jurisdiction over the property of the foreign sovereigns more especially with what we call
the public property of the State of which he is sovereign.

Q.9. (i) The concept of maritime belt, contiguous zone, exclusive economic zone?