MyNotes – Public International Law – 2nd Internal Exam

STATE JURISDICTION
Power of the state under IL to govern persons and property by municipal law – includes power to
make laws and to enforce them
Classification
1. Civil and Criminal Jurisdiction
2. Territorial and Extraterritorial Jurisdiction
Civil Jurisdiction
State has civil jurisdiction only if cause of action arose in its territory. Territory for Civil
Jurisdiction includes land within the boundaries and certain defined parts of the sea adjacent to
the coast if any – the coast adjacent to the land in the sea is called territorial water or maritime
belt.
If cause of action arose in more than one state, the state with more convenience can exercise
jurisdiction.
Gurbax Singh v. UoI – The country with close connection has jurisdiction.
Criminal Jurisdiction
Criminal jurisdiction is sub-classified as territorial and extra territorial
Territorial Jurisdiction
Generally exclusive within the territory – sovereignty principle – Territory for Territorial
Jurisdiction includes land within the boundaries and certain defined parts of the sea adjacent to
the coast if any – the coast adjacent to the land in the sea is called territorial water or maritime
belt - absolute power to apprehend, prosecute and punish – extends to all persons and things,
citizens and non-citizens in the territory; and in all causes, civil or criminal.
Chung Chi Cheung v. R – Cabin boy on board Chinese vessel, in territorial waters of Honk Kong, shot and
killed captain – Murderer and murdered British nationals – both in service of Chinese Govt – Hong Kong
arrested – China demanded extradition but refused – Accused challenged jurisdiction of Hong Kong Court,
but declined - PC held that state has sovereign jurisdiction in the territorial waters.
Subjective & Objective principles of Territorial Jurisdiction.
In many instances of criminal act, the act may be done in one state but the consequences may
be in another state.
Under international law, the country where the cause of action arose can exercise Territorial
Jurisdiction – this is Subjective principle of Territorial Jurisdiction.
International law stipulates that the state in which the consequences ensued also can exercise
Jurisdiction - this is Objective principle of Territorial Jurisdiction.
S.S. Lotus Case, 1927 – A French mail ship, SS Lotus collided with a Turkish vessel in the high seas –
Turkish vessel sank and several persons died – collision due to negligence of master of SS Lotus, Demons
who was a French national- when ship reached Constantinople, Turkey arrested Demons and instituted
criminal proceedings according to municipal law – Demons challenged Turkish jurisdiction, but declined
and he was convicted – French Govt brought protest to PCIJ – PCIJ decided as follows:
(i) No state can exercise jurisdiction over the territory of another state.
(ii) Under certain exceptional circumstances, a state can exercise jurisdiction over an act which has
taken place outside its territory.
(iii) A state can exercise jurisdiction over crimes committed in another state if the consequences of
the crime has resulted in the first state.
Exrta Territorial Jurisdiction
Extra territorial jurisdiction refers to the power of a state to exercise criminal jurisdiction over
persons who committed crime in another state or beyond its territorial limits. This is an exception
to the general principle of criminal jurisdiction within the territorial limits. The cases in which
Extra territorial jurisdiction can be exercised are:
(i) Citizen of the state committing crime in another state
(ii) Crime by any person or board of a ship registered in the state and flying its flag
(iii) Crime by any person or board of an aircraft registered in the state

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 (iv) Crime in any artificial islands or structures in the high sea
(v) Jurisdiction over Objects sent to outer space
(v) Crime in its diplomatic premises in other states
(vi) Crimes by its Diplomats and Consuls in any state
Conditions (principles) for criminal jurisdiction
(i) Territoriality Principle
If crime is committed within the territory of the state
(ii) Active Nationality Principle
Based on the nationality of the accused, state can claim extra territorial jurisdiction. But
generally, it is based on double criminality principle. For example, bigamy and adultery are
crimes in India, but not in most EU countries.
(iii) Passive Nationality Principle
Jurisdiction based on the nationality of the victim – only some states claim this, for
example, Canada, Mexico – it is supported by the principle of consequences of crime
committed in another state.
Cutting case – American committed defamation in a Texas Newspaper against a Canadian. Canada
asked USA to extradite the person.
(iv) Protective Principle
If the crime has an impact in another state, that state can claim jurisdiction. Principle of
consequences support this also.
KTMS Abdul Khader v. UoI – Pakistan citizen made counterfeit currency of India – when he came to
India, arrested and prosecuted.
(v) Universality Principle
Crimes declared as universal crimes under IL – any country can claim jurisdiction
Examples: piracy, air hijack, narcotics, child porno, human trafficking etc.
(vi) Jurisdiction in high seas
Floating territory principle – when ship registered in the state and flying state flag; and in
artificial islands and structures established by a state for research and exploitation of
natural resources.
(vii) Jurisdiction in air craft
If the aircraft is registered in the state
(viii) Jurisdiction in outer space
Over objects that a state sends to outer space
(ix) Jurisdiction in Arctic / Antarctic region
Treaty of Friendship, 1951 (also called Antarctic treaty) has declared these regions as
common heritage of mankind. A state can claim jurisdiction over objects established by it.
Exceptions where there is no territorial or extra territorial jurisdiction
(i) International institutions, eg. Office of UN within the state territory;
(ii) persons in the premises of diplomatic premises within the state;
(iii) Foreign Armed Forces
(iv) Diplomatic persons
(v) Foreign sovereigns
(vi) Property of foreign sovereigns

STATE SUCCESSION
According to Oppenheim, succession of state occurs when one state takes the place of another
state in consequence of certain changes in the latter‟s condition.
When one state takes the place of another state, rights and duties flow to the new state, it is
called state succession.
State succession can occur in two ways:

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 (i) Universal Succession - One state ceases to exist by complete merger with another
state or one state breaks into several parts and each part become s a new state.
Example: USSR, Czechoslovakia
(ii) Partial Succession – The predecessor state continues.
(a) When a new state is formed within the territory of an existing state. A portion
of the state revolts, obtains freedom from the parent state and forms a new state.
Example: Formation of Bangladesh from Pakistan.
(b) When some portion of a state is transferred to another state – there is no
formation of new state but flow of rights and duties with respect to the transferred
area. Example: Berubari union case.
Theories of state succession
1. Universal succession theory (Grotius, Pumendro, Vattel)
Every right and obligation continues even after succession
2. Theory of Continuity (Max Huber, Westlake)
Initially they propounded that none of the obligations continue. Later they changed and
stated that except for obligations of political nature, all other obligations continue.
3. Negative theory
Stated in Vienna Convention wrt state succession in respect of treaties, 1978 &
Vienna convention on state succession wrt state property, archives & debts, 1983
It is also called the clean state rule
Every state should be given a chance to start afresh; except
Boundaries
Localised treaty
Multilateral treaties made by UN and
Treaties establishing general rules in IL
EFFECTS OF STATE SUCCESSION
1. Effect on political rights and duties
No succession of political rights and duties – succeeding state not bound to follow political
treaties of former state
2. Effect on contractual obligation
The general rule is that succeeding state is not bound by the contracts entered into by the
former state unless it accepts the obligations.
West Rand Central Gold Mining Co v. King, 1905 – Contract between Govt of SA and
Company – started work – a contractual dispute arose – filed suit against SA Govt – war
between SA and UK – UK conquered SA – question whether suit proceedings can continue
against new govt.
Held: Unless there is liquidated damages, contractual obligations will not continue; contract
also comes to end unless it created any vested right.
3. Effect on succession of property
Immovable property belongs to the new state where property is situate
Movable property is shared equally, if not divisible, ascertain value
Property outside territory also shared equally or value ascertained
4. Effect on state debts
Liability for debt passes to the beneficiary state where the benefit is situate. If the debt was
used for benefit hostile to new state or used in some other territory, the new state has no
liability.
5. Effect on tortious liability
Generally new state is not liable for torts committed by former state. But, if the former state
had decided to pay compensation (liquidated claim), the new state is liable.

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6. Effect on state archives
Documents connected with a territory will be given to that territory
If relevant for more than one state, give copies
7. Effect on laws
Continue to have effect till new state modifies or enacts new laws
8. Effect on nationality and citizenship
New nationality comes into picture
9. Effect on membership in international organisations like UN
Membership continues for whichever territory, after succession, can be considered as
predecessor. The other new states have to apply afresh. Example: After India-Pak split,
UN membership retained for India, Pakistan had to apply for fresh membership, their claim
for continuation of membership by virtue of original membership of undivided India was not
entertained.

TREATIES
Article 2(1) of Vienna convention on law of treaties 1968 defines treaty as "an international
agreement concluded between states in written form and governed by international law"
Lord McNair – Written agreement by which two or more states or international organisations
create or intent to create a relation between them operating within the sphere of IL.
Treaties include Pact, Accord, Covenant, Convention, Declaration, Protocol etc.
Conventions are generally binding
Declarations are optional, generally not binding
Protocol adds something to an existing treaty (to overcome difficulty in formally amending
the treaty).
Applicability of treaties
Pacta turtis nec noncent nec prosunt – Fundamental principle of law of contracts that only
parties to the contract are bound by it. In IL, the same principle applies to international
treaties also generally. Article 34 of the VCLT 1969 recognises this principle.
There are some exceptions to rule of privity.
(i) A treaty may confer rights on a third party (subject to acceptance).
(ii) Multilateral treaties declaring customary international law are binding on non-parties
also; eg: UNCLOS
(iii) Multilateral treaties which create new international law
(iv) Universal conventions; eg: conventions on Narcotics, Piracy, Air-hijack, Child porno,
Genocide, Financing terrorism
(v) If third party voluntarily accepts the obligations; eg: Cyber crime convention of EU
voluntarily accepted by SA and Aus
Binding force of treaties
Pacta Sund Servenda – Anzilloti propounded that the binding force of treaties flow from this
maxim. It means that parties to an agreement are bound to fulfil in good faith the
obligations assumed by them under the agreement. This is the basic principle of
international treaties.
Article 26 of the VCLT 1969 provides that – every treaty in force is binding upon the parties
to it and must be performed in good faith. Thus, the VCLT recognises the maxim.
Who can enter into treaty
Under IL, only states and international organisations can enter into a treaty.
Steps in the formation of a treaty
1. Accreditation
Authorisation of persons to represent a state in the processing of the treaty. Done through

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 a document called “full powers”. It shows the names of persons and the extent and content
of power authorised.
2. Negotiation and settlement of the terms of treaty
3. Adoption of the draft text
4. Authentication
A formal session of the accredited persons of the states in which the adopted draft is
signed and each party exchange the signed draft with the other side.
5. Ratification
An international art whereby state declares its consent to be bound by the treaty. Refer the
specific adoption and transformation theories of adoption. Treaty comes into force only
when it is ratified.
Under IL, there is no duty on a state to follow the treaty which is not ratified. Also, there is
no duty on the state to ratify the treaty signed by its representative.
6. Accession and Adhesion
Non-signatories to the treaty can also accept the terms and conditions of the treaty
subsequently, the process is called accession. It has to be done before ratification.
When a non-signatory accepts the terms of the treaty after ratification, it is called adhesion.
7. Registration and publication
By Art. 102 of UN Charter, every treaty by its members have to be registered with the UN.
If not registered, it cannot be invoked before any organs of the UN in case of a dispute.
The UN Secretary General will publish the treaty so registered.
The object of registration and publication is to prevent secret agreements / hidden agenda
and to set an example for others to follow.
Invalidation of a treaty
1. Capacity of accredited agents
If the agent acted beyond the authority given by “full powers”, the treaty becomes invalid in
toto. There is no provision in IL for severability.
2. Error - Meaning of a usage may be different in different countries.
3. Fraud
4. Corruption
5. Coercion
6. Conflict with jus cogens
Termination of treaties
Art. 56 of VCLT – a treaty that contains no provisions for termination, denunciation, or
withdrawal „is not subject to denunciation or withdrawal unless: (a) it is established that the
parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of
denunciation or withdrawal may be implied by the nature of the treaty‟. Twelve months‟
notice is required before a withdrawal or denunciation effectuated pursuant to either of
these clauses takes effect.
Termination occurs in two ways, (i) operation of law and (ii) act of parties
1. Operation of law
(i) Extinction of either party
(ii) Outbreak of war
(iii) Material breach
(iv) Impossibility of performance
(v) Expiry of fixed time
(vi) State‟s ratification of a subsequent treaty on the same subject matter.
(vii) Successive denunciation
(viii) Rebus sic standibus – when the fundamental or material circumstances on which the
treaty was concluded have changed, the parties can avoid the treaty. It is an implied
assumption that the terms are agreed based on the condition that the fundamental
and material circumstances remain unchanged during its operation.

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 (ix) Jus Cogens – means emergence of a new peremptory norm of IL – According to
VCLT Art. 53, a treaty is void if it conflicts with a peremptory norm of general IL.
Example: treaties for slave trade which became prohibited in IL at a later stage.
2. Act of parties
(i) Express termination
(ii) Denunciation
(iii) Minimum number of parties – eg., the Narcotic Drugs Convention provides that, if, as
a result of denunciations, the membership falls below 40, the convention terminates.
Reservation of treaties
If any provision of a treaty is not acceptable to a state, it can reserve that and accept the
balance. Power of reservations is restricted in cases of:
(i) Jus cogens
(ii) Express provision in the treaty that certain provisions cannot be reserved.
Amendments to a treaty
There are three ways an existing treaty can be amended.
(i) Formal amendment requires State parties to the treaty to go through the ratification
process all over again. The re-negotiation of treaty provisions can be long and protracted,
and often some parties to the original treaty will not become parties to the amended treaty.
When determining the legal obligations of states, one party to the original treaty and one a
party to the amended treaty, the states will only be bound by the terms they both agreed
upon.
(ii) Treaties can also be amended informally by the treaty executive council when the changes
are only procedural; technical change in customary international law can also amend a
treaty, where state behaviour evinces a new interpretation of the legal obligations under the
treaty.
(iii) Minor corrections to a treaty may be adopted by a procès-verbal; but a procès-verbal is
generally reserved for changes to rectify obvious errors in the text adopted, i.e. where the
text adopted does not correctly reflect the intention of the parties adopting it.

DIPLOMATIC RELATIONS
Persons who represent one state called the sending state in another state called the receiving
state. There are two types of diplomatic persons – Diplomats and consuls.
Diplomatic Persons
Vienna Convention on diplomatic relations govern the diplomatic relations between states.
According to it, there are three types of diplomatic persons:
(i) Ambassadors – highest official in rank in the diplomatic mission and includes a high
commissioner
(ii) Ministers pleni potentiary – second in rank
(iii) Charge-d-affairs – third in rank
Qualifications
Discretion of the sending state
No qualification prescribed in IL, should be a national of the sending state.
Functions of diplomatic persons
(i) Representation of the sending state in the receiving state
(ii) Protection of interest of the sending state and its citizens in the receiving state
(iii) Negotiation on matters of the sending state in the receiving state
(iv) Observation and reporting – observe day-to-day affairs of the receiving state and report to
the sending state
(v) Promotion of friendly relations

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Termination of diplomatic mission
(i) Expiry of time for which the mission is constituted
(ii) Recall by the sending state
(iii) Request of receiving state to recall
(iv) Fulfilment of function (if for a specific function)
(v) declaration as persona non grata by receiving state
CONSULS
Vienna convention of consular relations, 1963 establishes another category of diplomatic
persons called Consuls
Not diplomatic persons in the fullest sense
Representation of sending state in receiving state wrt commercial and navigation
purposes only
4 categories of consular persons
Consul general – Head of the consular office
Consuls
Vice consuls
Consul agent
Functions of consuls
(i) Protection of commercial and navigation interest
(ii) Observation and reporting
(iii) Issue of passport and visa to nationals
(iv) Assistance to nationals in marriage, attestation etc.
(v) Protection of minor and disabled
(vi) management of air crafts and ships
(vii) Any other function assigned by the state
RIGHTS, PRIVILEGES AND IMMUNITIES (common for diplomats and consuls)
Theories of basis for diplomatic immunities
(a) Extra territoriality theory
Diplomatic premises are extra territorial property of the sending state, so jurisdiction vests
in that state.
(b) Representation theory
Diplomat represent the sending state, so jurisdiction vests in that state.
(c) Functional theory
Diplomats perform sovereign functions of the sending state, so some privileges and
immunities have to be conferred. As per Article 21 of the Vienna Convention, 1961,
functional theory is the basis for conferring immunities.
The rights, privileges and immunities are as follows:
1. Inviolability of diplomatic premises
Inviolablity means prohibiting violation; secure from destruction, violence, infringement, or
desecration, incapable of being violated; incorruptible; unassailable.
Receiving state cannot apply its municipal laws to the office and residence of the diplomat.
2. Inviolability of diplomatic person
Diplomatic persons are immune from search or apprehension by the receiving state.
Receiving state also has to ensure the protection of diplomatic persons from any attack on
his person, freedom or dignity, even in instances of mob violence. Even if diplomatic
conduct is objectionable, the receiving state cannot initiate any action on him other than
notifying the sending state or declaring him as persona non-grata, thereby compelling
sending state to recall.
Immunity is available to family members also, subject to declaration of list of family
members and the members residing with the diplomat under the same roof.
Immunity is available to staff of the diplomatic mission provided they are nationals of the
receiving state.
Under IL, the receiving state can decide the level and extent of immunity.

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3. Inviolability of personal baggage
Exception: if the receiving state suspect that the baggage contain contraband substances,
it can inspect the baggage, but only in the presence of the diplomat or his authorised agent
after notifying him.
4. Freedom of communication
5. Freedom of religion and worship
6. Freedom from taxes and Government dues of the receiving state
Indirect taxes are not included in this immunity.
7. Immunity from local military obligations
8. Freedom of movement throughout the receiving state.
The freedom is subject to reasonable restrictions which the receiving state imposes with
respect to prohibited places and places of strategic importance for the security of the state.
9. Immunity from social security provisions
10. Immunity from criminal jurisdiction of courts
If a criminal case is filed against a diplomat in the courts of the receiving state, he can claim
immunity by sending a message to the court; he need personally present in the court to
claim immunity.
11. Immunity from civil jurisdiction of courts
Suits relating to property, debts, contracts or torts cannot be filed against the diplomat in
civil courts of the receiving state. But, Article 31 of the Vienna Convention, 1961, gives
three exceptions to this rule.
(i) An action relating to private immovable property in the receiving state is maintainable unless it
is held on behalf of the sending state and for the purpose of the mission.
(ii) An action relating to succession in which the diplomat is a party as a private person and not
on behalf of the sending state.
(iii) An action relating to any professional or commercial activities outside the official duties of the
diplomat.
In most states, filing of suits requires prior sanction of the government.
12. Immunity from giving evidence
Diplomatic agents cannot be compelled to appear in courts of the receiving state as
witnesses to give evidence.
13. Immunity in other states
The privileges and immunities are available to the diplomatic agent not only in the receiving
state, but in other states through which he has to travel to reach the receiving state.
Buraman’s Case – French envoy to Bolivia – travels to Bolivia through New York – when
he landed in New York, Buraman filed civil suit against him – envoy claimed immunity –
court granted immunity and dismissed the suit based on immunity from civil suits and
availability of the immunity in states through which diplomat has to travel to reach the
receiving state.
14. Right to waive the immunities.
The diplomatic agent can voluntarily waive any of the immunities. In such cases, he will be
bound by the respective provisions against which the immunity was conferred. For
example, if he waives the immunity from giving evidence, he has to personally appear in
the court and give evidence.
Duties of the diplomatic agents in the receiving state
1. Respect the laws and rules of the receiving state
2. Shall not interfere in the internal affairs of the receiving state
3. Diplomatic premises shall not be used in a manner incompatible with function of the mission
4. Shall not practice any professional or commercial activity for personal profit.

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