This article is written by S.Aditya, an alumnus of KLE Society’s Law College, Bengaluru. This article focuses on the provisions regarding the classification of Companies under the Companies Act of India, 2013.

Introduction 

The Indian economy has a variety of companies existing in its market such as public companies, private companies, investment companies, limited liability companies etc. These numerous entities in the market may look different from each other on the surface, but based upon certain identifiable common characteristics they can be grouped into below-mentioned classifications. This article aims to draw your attention towards the conventional classification of the companies that are made based upon factors such as liability, control, incorporation, transferability of shares etc.  

Classification of Companies  

The companies may be classified based upon the mode of their incorporation and incorporation process which is defined under Section 7 of the Companies Act, 2013. 

Incorporation is the day when the company acquires a legal identity i.e. the day when a company takes birth in the eyes of law. Section 2 of the Companies Act, 2013 defines the various kinds of companies and their facets.

(I) Classification of Companies on the basis of incorporation

Royal Charter Company 

It may be better understood as the company born out of the authorization of the sovereign or the crown. This was the mode of incorporation which was followed earlier to the Registration under the Companies Act. A charter is granted by the crown to the people requesting to form a cooperative or a company. To name a few, The Bank of England (1694), The East India Company (1600) were formed by the means of charters passed by the then Crown of England. The authorization given by the sovereign gives legal existence to these companies by means of the body of the charter. This mode of incorporation is no more recognised in any Companies Act to incorporate new Companies.

Statutory Company 

As the name suggests, these are the companies that are formed by the means of a special statute passed by the Parliament or the State Legislature. The examples of statutory companies in India are the Reserve bank of India, the Life Insurance Corporation of India Act, etc.

The Statutory origins of these companies provide power to such companies to be bound by their own statute, i.e. whenever there is any dispute between statute under which these companies were formed and the Companies Act 2013, the statute being special legislation persists over the general law of Companies Act. The parliaments both State and Centre are empowered to make such legislation for incorporation under the power endowed to them by the Constitution of India. 

Registered Company 

As defined under Section 2(20) of the Companies Act, 2013, registered companies are the companies which get registered under the statute of the Companies Act. Companies are also provided with a certificate of incorporation by the Registrar of the Company.

(II) Classification of Companies on the basis of liability of members

The liability upon the members is also used to classify the companies, it describes the limit to which member will be liable if such liability were to befall upon the company. On the basis of liability of the members, the companies may be classified into:

Companies limited by shares: 

These types of companies are mentioned in Section 2(22) of the Companies Act, 2013. The liability of the members of such a company is based upon the number of shares kept unpaid. This liability against the shares kept may be brought to the authority. Once the payment towards the security is made by the shareholder or member then no liability beyond that is placed upon such member. The liability may be enforced during the company’s existence and even during its winding-up process.

Companies limited by guarantee

These types of companies are mentioned in Section 2(21) of the Companies Act, 2013. In a Company where the liability is limited by guarantee, it means the member of the Company has agreed on the Memorandum of Association to repay the same amount during winding up of such Company. In such companies, the liability of the members is limited to the undertaking given by them. Trust research associations, etc. are examples of companies liability limited by guarantee.

Unlimited Liability Company

These companies as defined under Section 2(92) of the Companies Act, 2013 do not have a cap on the amount of liability that may add on their members in case the company has to repay any debt. For any amount that the company owes these members, the unlimited liability company shall be liable to the extent of their interest in the company. These companies do not draw any popularity when it comes to Indian Market.

Difference between limited and unlimited companies

(III) Classification of Company on the basis of the number of members

The number of members in a company is looked upon while classifying them. This classification of the company has been discussed in detail under the below-mentioned headings. On the basis of the number of members in the companies may be classified into:

Private Company

The private companies as defined under Section 3(1)(b) of the Companies Act, 2013 are very restrictive in nature wherein it may in its Articles of Association restrict the right to transfer shares. The number of members in such a company might be a maximum of 50. The shares and debentures of such companies are not available for the public at large. The number of members in a company to be called a private company is two, wherein it is clearly set that two members jointly holding a single share shall be considered as one member and not two members. The easy identification of Private companies is the ‘Pvt. Ltd.’ attached to its name. 

Public Company

As defined under Section 2(71) of the Companies Act, 2013, Public Companies are the ones which are not a private company. As mandated under Section 3(1)(a) of the Companies Act, 2013, there should be at least 7 members to form a public company. It is the intrinsic nature of the public company that there is the right to transfer shares and debentures of the public company to the public at large.

(IV) Classification of Companies on the basis of domicile

On the basis of their domicile the companies may be classified into:

Foreign Company

A Company which is situated outside India, but has a registered place in India may be physical or electronic address or perhaps company has ownership itself or through the agents, representatives or managers of the company is known as a foreign company under Section 2 (42) of the Companies Act, 2013. The aforementioned definition included in the new Companies Act has widened the scope of the definition of foreign companies extending the same to the entities having their electronic presence in India.   The list of foreign companies listed in India has names of the corporate giants such as Whirlpool of India Ltd., Timex Group India Ltd., Ambuja Cements Ltd., etc. 

Indian Company

Indian Company has been defined under Section 2(20) of the Companies Act, 2013 as any company registered under the Companies Act, 2013, or any other previous law is known as an Indian Company. An Indian company may prove its locus standi with the help of its office address and the legislation provides a guideline to be followed while using such powers by an Indian company. 

(V) Classification of companies on the basis of Miscellaneous factors

On the basis of other miscellaneous factors  the companies may be classified into:

Government Company

As defined under Section 2(45) of the  Companies Act, 2013, any company in which a minimum of 51 per cent of the paid-up share capital is held by the Central/State Government, and/or held fractionally by the Central Government and partly by one or more State Governments is known as a Government Company. The major drawback of having a government company is the lack of autonomy.

Holding, Subsidiary Companies and Associated Companies

Under Section 2(46) of the Companies Act, 2013, a company is known as the holding company of another company if it has administrative control over another company. Such control may be regarding the affairs of the company. Under Section 2(87) of the Companies Act, 2013, a company is known as a subsidiary company of another company when control is exercised by the other company over the subsidiary company. 

A company is deemed to be a subsidiary company of another:

(1) If the other company 

• Exercises or controls more than 50% of the total voting power i.e. where the      holders of preference shares have the same voting rights as the equity shares holder, or,
• 50% in nominal value of its equity share capital held, or,
• Possesses power regarding the composition of the Board of directors.

(2) If it is a subsidiary of a company which is a subsidiary of the controlling company.

The holding power also includes another kind of Company known as Associate Company, which is now being explained with respect to the above-mentioned Holding and subsidiary company.

Associate Company

These Companies as defined under Section 2(6) of the Companies Act, 2013  are the one in which the other company has significant influence but these Companies are not the subsidiaries of such influencing companies known as the Associate Company. The Joint Venture Companies are such associate companies.

The significant control can be inferred directly from the explanation attached to the provision which requires the influencing company to hold 20% of the share capital or any agreement whereby the decision making of the associate is placed upon such Influencing Company. The Associate Company concept has been seen as a harbinger of transparency in the working of the Company since it provides a more rationale grundnorm for an associated relationship between the two companies.

One man Company 

Under Section 2(62) of the Companies Act, a company in which one person is the whole and sole owner of the share capital of the company is known as a One Man Company. In order to meet the statutory requirement of a minimum number of members, some namesake company shareholders hold one or two shares each. The namesake shareholder members are usually nominated by the principal shareholder. The principal shareholder enjoys all the profits of the business with the protective shield of limited liability. Such companies have been given legal sanctity.

Difference between One person company and Sole Proprietorship

The major or fundamental difference between a one-person company and the sole proprietorship is based upon the limitations or extent of liability in the one-person company. One person company is different from the Sole proprietorship as the ne person company differentiates the promoter from the separate entity of the company. The liability of the director of the one-man company is limited in the event of any legal liability or claims made against the company. 

Investment Company 

The Investment Companies as defined under section 186 of the Companies Act, 2013, are the companies which have a fundamental business or transaction relating to the securities of other companies. Securities may be of a nature of shares or debenture or other securities offered by such entity. The word investment in its predominant sense means to acquire a resource and hold it for the interest earned over it, but in the case of an investment company, the investment is aimed not only at the acquisition and holding but perhaps to even the sale of the securities whenever they reach a better price.

The Investment company under Section 186 of the Companies Act, 2013 are based upon the market trend relating to the shares analyses the maximum profit investment for the Company. The commonly used terminology of stock market relating to the bear and bull market and the understanding of the trend plays a crucial role to attain profits aimed at by the company.

There are still two perspectives towards the investment company functioning and the characteristics of the transactions made by such company. One set of claims suggests that the Investment Companies are only supposed to purchase security and earn interest by maintaining them. The other school of thought suggests that the investment company may earn not only by purchase and hold but also selling of the securities. 

New kind of Companies recognised under the Act, 2013

Dormant Companies

Where a company is formed under Section 455 of the Company Act, 2013 for a future endeavour or to hold an asset which may be a physical or intellectual property and has no significant accounting transaction, such a company or inactive company can make an application to the Registrar in the prescribed manner for obtaining the status of the dormant company.                                                     

The explanation attached to this provision states about the inactive company prescribing a period of 2 years of inactivity in terms of business transactions, operations etc, or the companies which have not filed their annual returns or the financial statement in the last 2 years. Such transactions do not include all the necessary payment which are made by the company to the Registrar and other payments which are supposed to be made under any other law.

The Registrar allows the certificate of the inactive company to the applicant company. The registrar must maintain the list of dormant companies. A company to remain a dormant company on the books of the registrar has to pay the required sum. The Company on request may make the Dormant Company back to an active company. 

Conclusion 

Various classifications have been made in this topic of Company based upon various factors of independence, liability, financial conduct etc. These classifications are not to be observed in isolation as the Company may have two or more characteristic features of the companies mentioned above and form a very unique kind for itself. The kinds of companies have only been made so as to ease the understanding of the complex legal being that is a Company. 

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This article is written by Devansh Sharma, a student of Law School, Banaras Hindu University. This article deals with the concept and provisions related to the offence of False Imprisonment under the Law of Torts.

Introduction

False Imprisonment can be defined as an act of causing unlawful confinement of one person by another. To constitute an offence of false imprisonment certain factors need to be present such as:

• Probable cause for imprisonment, 
• Knowledge of the plaintiff of his/her imprisonment,
• The intention of the defendant while causing imprisonment, and 
• Period of confinement matters.

There can be cases where any private individual, a police officer or any other public authority may falsely imprison any person. For the act of imprisonment to occur, it is not compulsory that imprisoned person should be put behind bars. The person just needs to be confined in an area where there are no possible ways to escape. The escape is possible only at the will of the person who is confining the other person within that area. The degree of imprisonment does not matter. The main element that is of relevance is the absence of lawful authority to justify unlawful confinement.

As every other tort, false imprisonment also has a defence. The defences available for false imprisonment are:

• Consent of the plaintiff;
• Voluntary assumption of the risk; 
• Probable cause; or
• Contributory negligence. 

The defence of probable cause and consent of the plaintiff are complete defences. While the defence of contributory negligence can be used for mitigation of damages only.

There are also incidents of False arrests. It is also a form of false imprisonment. It is the kind of arrest where an individual is confined by the police officer or private person without lawful authority. False imprisonment and false arrest are nearly indistinguishable except for the terminology used for these offences. These both offences have been held by the courts as a single tort.

There are three kinds of remedies for false imprisonment. They are:

• Damages, 
• Habeas Corpus,
• Self-help. 

As false imprisonment is a tort, the basic remedy available for false imprisonment is an action for damages which can be due to: 

• Physical or mental suffering, 
• Loss of reputation, 
• Even malicious intent on behalf of the defendant. 

If a person is unlawfully confined then the writ of habeas corpus can be used to regain release of such a person from confinement. A person can also exercise reasonable force in order to escape from unlawful confinement.

Constituents of False Imprisonment

Let us discuss the above-mentioned constituents of false imprisonment in a more elaborate way.

Period of Confinement

An action for false imprisonment will always lie if all the requirements of the torts are satisfied. The time period of unlawful detention does not matter in case of false imprisonment. Confinement for a very short period, even if it is for fifteen minutes, is sufficient to impose liability of false imprisonment on the confiner. The time period of confinement is generally of relevance only in the estimation of damages and not of liability.

Confinement for a long period does not necessarily mean that imprisonment occurred is false and compensable. If such a clause is formulated then lawful detention may become unlawful, if the detention is extended for an unreasonable period of time.

The Intention Factor

The tort of false imprisonment must contain the element of intent. A person can not be held liable for the tort of false imprisonment unless the act performed is for the purpose of imposing confinement. He can also be held liable if the act is done with the knowledge that confinement, to a substantial certainty, will result from the act. The intent to confine is the necessary intent for the purposes of false imprisonment. In the process of finding the necessary element of intent, the defendant’s actual motives are immaterial. The plaintiff need not contend that the confinement was unlawful. He just needs to show that the defendant intended to accomplish the act that causes the confinement. Malice is irrelevant in this tort. It is ordinary for the judge to determine, the intention of the defendant in an action for false imprisonment, as a question of fact, from the evidence. Even negligent acts can cause this tort of false imprisonment. For example, if a person A locks person B inside a room being unaware of the fact that there is a person in the room then person A is held liable for false imprisonment.

Knowledge of the Plaintiff

Is the plaintiff’s knowledge of his imprisonment important?

There is no requirement that the plaintiff had knowledge of the imprisonment. If the person alleging false imprisonment was unaware of the restraint on his freedom at the time of his confinement, then too, he can be awarded damages. This can be supported by citing the example of the famous case of Meering v. Grahame White Aviation Co, where a man was persuaded by works police to remain in the office. The man was unaware that if he had tried to leave, then he would be prevented from doing so. The man successfully recovered damages for false imprisonment. 

In another case of Herring v Boyle, an action brought by a schoolboy against his headmaster for being detained in the school during the holidays. It was stated by the plaintiff that he was confined because his parents had not paid the fees. The action brought to the court failed. The court held that actual knowledge of detention is not a necessary element of false imprisonment but proof of a total restraint of liberty is sufficient.

So, this clears us on the point of forced imprisonment and knowledge of the plaintiff about such an imprisonment but what if there is a situation where the plaintiff is inside a room or a building and the defendant decides that if the plaintiff comes out of the room or the building then the defendant would try to stop him from escaping. The plaintiff does not get out of the building and the defendant has yet not stopped him. So, has the defendant imprisoned the plaintiff? The answer that might come to one’s mind would definitely be “No.” The thought that the defendant did not confine anyone and so, he cannot be confined just for his mental state of thoughts might arise.

In the case of R v Bournewood Community and Mental Health NHS Trust, ex parte L: CA 2 Dec 1997, this decision was confirmed by the House of Lords that the case concerned a person L who had a history of health problems. The person has spent 30 years in Bournewood hospital. In the year 1994, L was discharged into the community and looked after by paid carers. However, in 1997 after an incident in a daycare centre, L became particularly agitated and voluntarily agreed to go back to the hospital. There, he was kept in an unlocked room. He was not restrained from leaving. However, the staff of the hospital decided that if L attempts to leave then they will charge him under the Mental Health Act 1983 and prevent him from leaving. L did make an attempt to leave and was sectioned. When he was eventually discharged, L sued the hospital. L claimed that his employees had falsely imprisoned him. The Court dismissed the claim. It held that the fact that during that time the hospital staff were prepared to section L if he makes an attempt to leave did not mean the staff had imprisoned him.

Place of Confinement

The term false imprisonment can be misleading. It does not necessarily mean being confined to a jail or prison. In order to constitute the wrong of false imprisonment, there is no need for actual imprisonment in the ordinary sense- i.e. incarceration. In the ordinary sense, any place, whether be it a prison or any place used temporarily for the purpose of confinement, constitutes false imprisonment. If the plaintiff in any manner has been deprived of his liberty completely, for any time, however short, is enough to form this tort. Therefore, the action of false imprisonment can lie, even if the confinement is in a mental institution, juvenile home, hospital or nursing home. For example, a mere unlawful arrest amounts to false imprisonment and so does the act by which a man is prevented from leaving the place in which he is (e.g., a house, a motor car, or a bank etc).

The deprivation of the plaintiff’s liberty should be complete in order to constitute imprisonment that is there must be a boundary drawn on every side of him beyond which he cannot pass. The boundary can be either narrow or broad but it must be definite and complete. To prevent the plaintiff from going in certain directions is not imprisonment. If the person is free to go in other directions then there will be no action for false imprisonment.

If a person induces another to put himself or herself in a place which is impossible to leave without assistance from such a person and then, by words or by other conducts, the person refuses to give such assistance, with the intent of detaining the other, is an act sufficient to commit wrongful confinement and to make such person liable.

In the famous case of Bird v Jones, a public way was blocked due to an enclosure created by the defendants for the purpose of viewing a boat race. The plaintiff in an attempt to use the way entered the enclosure of the defendants. The defendants stopped the plaintiff from walking through the enclosure. They instructed him to go back and use some other route to reach the destination. The plaintiff refused to leave and stayed, for half an hour, in the enclosure. The plaintiff sued the defendants for the offence of committing false imprisonment. The claim was rejected. The court stated that the defendant had done nothing that completely restricted the plaintiff’s freedom of movement. The plaintiff was free to leave the enclosure and find any different route for getting to the place he wanted to. Hence they cannot be charged with false imprisonment.

Use of force or its reasonable apprehension

Depriving any person of his or her liberty or compelling him/her to go in a direction in which he/she doesn’t wish to go, by use or exercise of force or expressed/implied threat of force, is false imprisonment. Therefore, the confinement or restraint necessary to create liability for false imprisonment can be imposed by compulsive physical force or by the actual use of physical force. But the actual use of physical force is not always necessary. The essential thing is the restraint of the person. It can be done by either threat or by using actual force or by inducing threat by the use of words that cause a suitable apprehension of the use of force in the mind of the other person. 

If the words or conduct are of such a kind that can induce reasonable apprehension of force, to such an extent that the person is effectually restrained then it will constitute false imprisonment. Therefore, in order to be actionable, the act performed by the defendant must at least create a basis for the reasonable apprehension of force. The circumstances surrounding the incident and the relationships surrounding the parties also have an important effect in this case.

Other Factors

Assault is an ingredient of false imprisonment but it is not considered as a constituent of false imprisonment. Proof of injury to the individual persons, character or reputation is not included in an action of false imprisonment.

It has been held on many occasions that the want of probable cause is not an essential element of false imprisonment and is not needed to be alleged by the plaintiff. Though some courts expressly require the plaintiff to show a lack of probable cause in a false arrest action.

Defences

The defendant in order to avoid being liable for false imprisonment, must either show that he had reasonable grounds to justify his imprisonment or that he did not imprison the plaintiff. The presence of probable cause for imprisonment is not a defence. It can be a defence if it constitutes reasonable grounds for acting in making an arrest without warrant or in defence of property. An offer to release the plaintiff for a temporary time period has no effect on the action against false imprisonment.

Irrespective of the above fact, there can be certain other factors due to which the damages can be mitigated or the defendant can be exonerated from liability. If a person acting under a statute arrests a person, with the power that has been vested in him by the statute, then that person cannot be held liable. For example, many state legislatures in the USA have enacted statutes giving the merchants a qualified privilege to detain suspected shoplifters.

Consent

Liberty is an inalienable prerogative of which no one may divest himself. These lines were used to indicate that consent of the plaintiff to false imprisonment cannot be a defence as liberty cannot be waived off. It is often held that the consent of the plaintiff to acts of imprisonment restrict the right of recovery thereof. Consent of the plaintiff needs to be free from duress, coercion, fraud or mistake. There can also be implied consent in certain circumstances.

The maxim volenti non fit injuria( plaintiff consents to suffer the consequences of the act voluntarily) applies to the case of false imprisonment. The restraint must be involuntary. There is no act of false imprisonment if the plaintiff agrees of his/her free choice, to act in compliance with the request of the defendant. One who enters the territory or property of others, upon conditions that involve some restrictions on his liberty, cannot complain of false imprisonment.

In the renowned case of Robinson v Balmain New Ferry Company Ltd., the plaintiff desired to row a ferry across a river. In order to reach the wharf from which the ferry would depart, he had to go through the turnstile operated by the defendants. There were notices on either side making it clear that the charge of using the turnstile was one penny. The plaintiff paid the penny, went through the turnstile. He waited on the wharf for the ferry to arrive and pick him up. The plaintiff then changed his plans and decided to not to take the ferry. He tried to go through the turnstile but the defendants resisted. They stopped him by exclaiming that if he wants to use the turnstile then he has to pay one penny. The plaintiff refused to pay the penny. The defendants didn’t allow him to use the turnstile. The plaintiff sued the defendant claiming that the defendants have falsely imprisoned him. The court dismissed his claim by stating that by walking through the turnstile, the plaintiff voluntarily agreed to take the risk. He knew that if he fails to pay a penny then he will not be allowed to go back and that he could be imprisoned by the defendants.

In Herd v. Weardale Steel, Coal and Coke Company Ltd., the plaintiff was a minor who descended to the bottom of the lift at the start of his shift at work. On reaching the bottom, he refused to do certain work and asked to be lifted up to the surface. Though the plaintiff was allowed to go back to the surface at the end of the morning shift, even then he was not taken back when all the workers of the morning shift were being taken to the surface. The plaintiff sued the defendants for the act of committing false imprisonment. The House of Lords dismissed the claim. They held that the plaintiff voluntarily took the risk. He can be made to wait if he did not work and wanted to be taken back to the surface.

Similarly, it was seen in both the cases of Robinson v Balmain New Ferry Company Ltd and Herd v Weardale Steel, Coal and Coke Company Ltd that volenti non fit injuria applies to the tort of false imprisonment exonerating the defendant from his/her liability.

Contributory Negligence

Though the negligence of the plaintiff can restrain the recovery for the wrong of false imprisonment but the negligence of the plaintiff can not be a defence for false imprisonment. In any case, the plaintiff’s contributory negligence can be proved for the mitigation of damages but it can not be taken as an absolute defence for false imprisonment.

Probable Cause

It is a complete defence to the tort of false imprisonment, especially false arrest. When the probable cause is established then the action that lies against the tort of false imprisonment and false arrest fails completely. The test for probable cause for imprisonment and arrest is an objective one. It is based not on the individual’s actual guilt, but upon the information of credible facts or the information that would make a person of ordinary caution believe that the accused is guilty. If a defendant, who has established the probable cause for the alleged tort of false imprisonment or false arrest, then he has no additional obligation to prove. Even malicious motives on part of the defendant will not support any claim if probable cause is found to exist.

On the other hand, some courts have expressly implied that the plaintiff in a false arrest action is required to show a lack of probable cause for the detention, or indicated that the plaintiff has the burden of proving that lack of probable cause by affirmative pieces of evidence.

necessity can be one of the probable causes. If the defendant has imprisoned the plaintiff as it was necessary for him to imprison the plaintiff in the way he did then the defendant possesses a lawful justification or excuse of imprisoning plaintiff for the way he did. Suppose, the defendant locked plaintiff in a room fearing that if the plaintiff is not confined, then the plaintiff will assault a third person. In such an event, if it can be proved that it was necessary on his part to perform such an action then he can not be held liable for the act of false imprisonment.

Sometimes, the act of imprisonment can be justified on the grounds that the defendant was acting in support of the law. But the courts are anxious to see that the liberty of the subjects is not curtailed except under due process of law. Thus, the onus of proving a legal justification lies on the defendant.

Remedies for False Imprisonment

There are broadly three remedies for false imprisonment, which can be categorized as:

Action for Damages

Damages in acts of false imprisonment are those which arise from the detention. A person injured by the conduct that is either reckless or intentional is entitled to compensatory damages. He is also under no duty to mitigate such damages. There is no legal provision for the assessment of the damages. This is entirely left on the court to measure damages.

Elements of injury to the person that are included in the concept of recovery of damages include:

• Injury to the person and physical suffering, 
• Mental suffering and humiliation, 
• Loss of time earnings and interruption of businesses, 
• Reasonable and necessary expenses incurred, 
• Injury to the reputation,
• Generally the deprivation of any right caused by the loss of liberty such as the plaintiff’s loss of the family company during the period of arrest.

The arresting officer is liable for the damages in case of false arrest. The officer can be liable up to the time he produced the person before the judicial officer but he is not liable thereafter. The damages for false arrest need to be measured only to the time of appearance before the court or indictment. The defendant is liable for all the consequences resulting from false arrest, where there exists a continuity between an unlawful arrest and subsequent discharge of the accused as to constitute one continuous unlawful act.

The purview of damages recoverable goes beyond those which are already suffered. The general rule existing is that, during any action for personal torts, future damages to an injured person also form an element of recovery, where there is a reasonable chance that they will result in false imprisonment.

The broad and general rule declared in that the person causing the wrongful confinement is liable for all the natural and probable consequences of such an act. Where a plaintiff is injured not only due to false imprisonment but also due to another non-compensable cause, only those damages that are found to be a natural result of false imprisonment are recoverable.

Nominal and Compensatory Damages

In a personal tort action, the general rule that the plaintiff is entitled to recover such a sum as will be just and fair compensation for the injuries sustained. The recoverable damages are limited to such compensation, in the absence of conditions validating an award for exemplary damages, applies in case of false imprisonment.

Mere unlawful confinement or detention can also constitute the foundation for the recovery of at least nominal damages. Awarding only nominal damages can be erroneous and insufficient in circumstances where the proven facts point to a right to greater damages.

The damages recoverable must be accepting of ascertainment with a reasonable degree of certainty and damages for false imprisonment which are merely assumed are not recoverable. It has been held that the person can be imprisoned without having knowledge of his/her imprisonment. In such cases, the plaintiff might obtain only nominal damages.

Mental suffering is usually considered an injury which includes freight, shame or mortification generating out of the indignity and disgrace. It can be a consequence of illegal detention. Compensation may be made for such an act of false arrest or false imprisonment.

The fact that no physical injury was done to the plaintiff is no defence. The complainant of false imprisonment can not be denied the recovery of reasonable compensation for mental suffering. Elements considered in assessing mental suffering are humiliation, freight and shame.

Punitive, Exemplary and Aggravated Damages

In cases where imprisonment is affected maliciously, insultingly, oppressively and recklessly with an intent to oppress and injure, in such cases, the jury can go beyond the rule of compensation. The jury is free to inflict punishment to the defendant that may be awarded exemplary or punitive damages. Punitive damages are provided in cases where the conduct of the defendant is recklessly indifferent to the rights of others or in intentional or wanton violation of others’ rights. In certain circumstances, exemplary damages can be awarded, when there is an abuse of power by the state.

Aggravated damages can be provided in any proper case when the imprisonment of a nominal character is of offensive nature or hurt fell to the plaintiff’s feelings. Punitive damages have been given as a means of prohibiting the defendants from the same kind of future conduct. Punitive damages have been provided in most of the cases of false imprisonment when the act was performed in a malicious manner.

Even in such jurisdiction where awarding of exemplary damages is generally allowed, such damages can not be permitted in the absence of actual or real damage suffered by the plaintiff. However, actual or real damage has depicted that extent is a tool for determining whether punitive damages are allowed. Punitive damages have also been permitted where an arrest is made with the knowledge that the arrest is in violation of the court’s order.

Courts have often stated that any malice or malicious conduct will result in awarding of exemplary or punitive damages in an action for false imprisonment or false arrest. Similarly, presumed or implied malice has been stated to have sustained such awards of exemplary or punitive damages. Punitive or exemplary damages will not be permitted in cases where the false imprisonment is brought about in good faith, without malice in fact or in law and there is no element of oppression.

Habeas Corpus

The writ of Habeas Corpus can be issued by the Supreme Court of India and High Court of States under article 32 and 226 respectively. This is generally passed to deal with the cases of false arrest or for prolonged detention by police officers. The person can apply for the writ upon which the court will command to bring him to the court on a certain day. The decision will be dependent on whether the prisoner will be released or if the detention is proved then he will be speedily presented before the court for a fair trial.

Subject to certain rules of the High Courts, an application for habeas corpus can be made to the High Courts by the confined person or by any person on his behalf.

Self Help

An unlawfully detained person can use self-help to escape. Self-help includes reasonable force. A person may use reasonable force to defend himself from an unlawful arrest. The force used must be proportionate and necessary in the circumstances, which means it should be the minimum needed force for the circumstances. This right is risky as the power to arrest is of both nature and is used not only for the commission of offence but in pursuance of law as well, when arresting in a reasonable suspicion thereof. Hence, an innocent person who forcibly resists can be liable for battery, if the arresting officer has reasonable grounds for his/her suspicion.

Conclusion

The right to personal liberty and freedom has been guaranteed by the Constitution under Articles 19, Article 20 and Article 21. The liberty of an individual is the utmost and prime responsibility of any state. Thus, a clear understanding of the nature of the offence and the available legal remedies is necessary. The state must thrive to act on such issues of false imprisonment more seriously and try to formulate more stringent laws in order to deter the ones performing such torts.

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This article is written by Isha from Bharati Vidyapeeth, New Law College Pune. This article talks about Slavery and Unlawful compulsory labour under IPC. 

Introduction 

The term “unlawful compulsory labour” is defined under Section 374 of the Indian Penal Code, 1860 which says whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of a mentioned term which can be extended to one year, or with fine, or both. According to Article 23 of the Indian Constitution, beggary is forced labour is forbidden. It makes the unlawful compulsory labour an offence.

Essential Ingredients of Section 374 are:

• There has to exist a compulsion for labour.
• The compulsion must be illegal.

International Conventions on Forced Labour

• Remuneration Conventions, 1951

The remuneration acts are aimed at providing equal salary or wages to the labourers. The term remuneration involves basic minimum wages or necessities. It confers at equal remuneration to the workers without the discrimination of sex or place of birth. It aims at proportional remuneration for balanced work to men and women equally. This act was passed at the 34th International Law Commission (ILC) session where each government party shall attain this objective to legislate domestic legislation, communal bargaining authorizations and make an agreement for wage determination.

• Minimum Age Convention, 1973

The convention of minimum wages was approved at the 34th ILC session. It came into force in the year 1976 on 19th June. The ratifying states are needed to adopt a policy intended to eradicate child labour and specify the minimum age for work within their territory. The Minimum age shall not be less than 15 years (Article 2) while the limited age for admission to any type of employment or work which by its nature in which it is carried out is likely to harm the health, morals or safety of young men shall not be less than 18 years (Article 3) under minimum age convention act. The minimum age for admission to any type of work or job which by the behaviour or nature of the circumstances in which it is proceeded is likely to damage the health, morals or fairness of young human shall not be less than 18 years.

• Right to Organise And Collective Bargaining, 1939

It was adopted at the 32nd ILC session, Geneva. It came into force on 18 July 1951. According to this convention act the workers shall enjoy sufficient protection against acts of anti-union discrimination in respect of their work (Article 2) and against any acts of disturbance by each other or each other’s agents or members in their, functioning, establishment or administration (Article 3).

Forced Labour and Slavery

The difference between slavery and forced labour is a wide concept. Slavery differs from the word forced labour. Slavery is the theme of UN conventions. All types of slavery include forced labour however not all forced labour includes slavery. 

Slavery is defined as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

The international prohibition on slavery is absolute, without any exception. Slavery is the kind of institution in which the slave master’s exercise of the justice of the ownership wrecks the human character, the person as a bearer of rights diminishes the slave to chattel without rights. Slavery is an absolute concept of ownership. It is a social institution in which the community hires slaves as a separate group of workers without rights and it is extremely unjust to them. 

Slavery is a permanent situation. The slave master has full authority over each and every aspect of the life of the slave including whom a slave marries, what they eat and wear, when they sleep, whether they are educated or provided medical treatment, and whether the slave can practice religious function. Traditionally, a slave master can exchange, sell or lend child or adult slaves with impunity. Notions of ownership are complete. Thus, slavery includes much more than simple authority over another person.

Slavery is now restricted all over the world, except in Mali. Although, the practice of slavery is illegal, it continues to exist in several countries where the government chooses to ignore its presence.

Forced labour

The convention of 29 ILO forced labour includes the following definition:

“Forced labour shall mean all work which is exacted from any person under the menace of any penalty and for which the said person has not offered himself willingly.”

Facts and figures

• At every subsequent time an estimated around 40.3 million people are in modern slavery which includes 24.9 million in forced labour and 15.4 million in forced marriage in the year 2017.
• It confers that there are 5.4 victims of modern slavery for subsequent 1,000 people in the world.
• 1 in 4 victims of modern slavery comprises of children. 

The endless loop of exploitation

There exist several hundreds of people who persist to suffer as bonded labourers in India. National Crime Records Bureau (NCRB) data conveys that 8,132 reported cases of human trafficking occurred across India in 2016. As is abundantly clear, many such cases go unreported, who continue to work as bonded labourers in India.

Illustration

An Indian girl named Lalita was taken from her home country to a different nation to work as a domestic servant under an affluent family of America. She was forced to work 18 hours a day and also refrained from going out of the house without the consultation of the owner. She was ill-treated, was served with leftover food and was threatened by her employer.

Domestic Slavery

Domestic slavery is relating home activities particularly vulnerable to exploitation because of unparalleled kind of circumstances or labouring inside the household premises with lack of legal protection. 

Such domestic workers perform work such as cleaning,laundry,cooking,baby care etc. The wages or salary paid to them are often very low, frequent delay. Some workers of domestic households may not be even paid at all or only incur ‘payment in kind’ such as accommodation, food or clothes. 

How does Domestic slavery occur?

According to The International Labour Organization (ILO) it is estimated that at least 68 million women and men are employed as domestic workers all over the world, excluding children.

Women or females make up the overpower majority of household workers, around 80%. ILO calculated that more girls below the age of 16 are employed in domestic services than in any other associative of child labour.

Some domestic workers are migrant workers from other regions or countries, mainly from villages or rural areas to the city. For many, domestic work is one of the very few options available to empower them to provide for themselves along with their families.

Domestic work is poorly maintained and regulated. Often In many other countries, domestic workers are not considered ‘workers’ but rather as informal ‘helping hand’ and are extracted from national labour regulations.

Often they do not get the privilege of same protections as other workers, such as minimum pay, legal contracts, health care, holidays, social security and maternity benefits. In countries where domestic workers are covered by national labour laws, enforcement is poor and these protections have not been translated into practice.

Effects of unlawful compulsory labour 

It affects millions of men, women and children worldwide. It is most frequently found in industries having large number of workers but little regulation. These include:

• Agriculture and fishing;
• Domestic work;
• Construction, mining, quarries and brick kilns;
• Manufacturing, processing and packaging;
• Prostitution and sexual exploitation; 
• Market trade and illegal activities.

Women or females are diproportionately affected by forced labour, essatiming for 99% of victims in the commercial sex industry and 58% in other sectors. Forced labour is the most common element of modern slavery. It is the most extreme form of exploitation. Although many people associate forced labour and slavery with physical violence; however, the ways used to force people to work are more insidious and rooted in some cultures. Forced labour often affects the most vulnerable and excluded groups, for example: the Dalits are commonly discriminated against in India. Women and girls are at greater risk than boys and men, and boys account for a quarter of people who do forced labour. Migrant workers are the target because they often do not speak the language, have few friends, have limited rights and depend on their employers.

Causes

Forced labour occurs in the context of poverty, lack of sustainable agricultural education, as well as a weak rule of law, corruption and an economy dependent on cheap labour. Each of the elements that we have chosen to analyze on the demand side creates pressure within the market for highly exploitable forms of work or opens spaces in which this work can be exploited. All these dynamics are an integral part of the nature of global supply chains as they are currently constituted. These include:

• CONCENTRATED CORPORATE POWER AND OWNERSHIP- It creates great downward pressure on working conditions, partly by reducing the part of the value available to workers as wages;
• OUTSOURCING- Its fragments responsibility before labour standards and makes oversight and accountability very difficult;
• IRRESPONSIBLE SOURCING PRACTICES- It put heavy cost and time pre-agrarian suppliers, which can lead to risky practices like unauthorised subcontracting;
• GOVERNANCE GAPS- It is intentionally created around and within supply chains, opening up spaces for bad practice.

New criminal offence

The consultation identifies a gap between National Minimum Wages (NMW) criminal sanctions and those of modern slavery crimes. Unscrupulous employers whose crimes against workers fall between these two concepts and are treated inefficiently.

Two options are proposed for a new crime. The first is a custody penalty for employers who have committed a labour law offense within the mandate of the labour market enforcement director (many of these crimes are currently punishable by a fine). This penalty would be imposed when:

• the motivation behind the crime (totally or partially) was the deprivation of the rights of a person as a worker (for example, his right to receive fusalary); or
• the employer has exploited the worker in connection with the commission of the crime (for example, threatening a worker to work for less than the NMW).

Secondly, the government would introduce a system of notices of improvement (which will be issued in a civil proceeding, but an infraction would be criminal). An enforcement agency could ask a court for notice of improvement after a violation of the employment law, which would require a company to take corrective action within a specific period.

Cases relating to forced labour

• In the case of The State of Gujarat vs. Hon’ble High Court of Gujarat, the Supreme Court held that a prisoner sentenced to brutal imprisonment cannot complain that the prison authorities perpetrated the offence of illegal compulsory labour under Section 374 of IPC by obliging him to do extra loads during and after the term of his imprisonment.
• In People’s Union for democratic rights Vs. Union of India commonly known as the Asiad case, the Supreme Court held that a reduction of Rs.1/- per worker every day by the jamadars from the wages owed to the workers employed by the contractors for the ASIAD project is illegal. Since the labourers did not receive the minimum wages of Rs 9.25 per day, it amounts to a violation of Article 23 of the Constitution and is forced labour. Every form of forced labour, beggar or otherwise, is ‘unlawful compulsory labour’ within the existence of Article 23. It makes no difference whether the person who is forced to give his labour or service to another person is remunerated.

Conclusion

Forced labour whatever form it may be in, is a crime against humanity. Its abolition is therefore urgently called for in a country like India whose ultimate goal has been the establishment of an integrated and just society, providing individual rights and liberty, with equal opportunities and a basic economic minimum wages for all.

Indeed, the issue of forced or bonded slavery is a part of the wider agrarian problem in our country. The remedy to the problem is, therefore, the transformation of the socio-economic situation of the labourers by bringing in fundamental changes in the agrarian structure and social relationships in the rural areas.

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This article is written by Aniket Tiwari pursuing B.A.LL.B. from Law School, Banaras Hindu University. This article puts light on various problems that law book publishers face while publishing printed books. 

Introduction

In recent years, the world of digital/virtual books has expanded in a very dramatic way. Readers should view this expansion with both excitement and wariness. Excitement because digital books could revolutionize reading, making more books, more findable and more accessible to more people in more ways than ever before. Wariness because the various entities that will help make this digital book revolution possible may not always respect the rights and expectations that readers, authors, booksellers, and librarians have built up, and defended over generations of experience with physical books.

Problems with offline legal publications

There are various law book publishers around the world. Most of them are publishing books through offline mode, which is through a printed script. But in recent times, it was felt that there are certain problems with these printed books. We all know that printed books, especially law books are very heavy weighted and this makes it very difficult to carry them everywhere. Also, as these books are mostly read by lawyers and law students (they are the target audience) and most of them do not have sufficient time to read these heavy books by simply sitting at home. So, it is one of the major problems which lawyers and law students face while reading a printed book. Suppose, a lawyer has free time and his hearing is about to start in ten minutes. In these ten minutes, he/ she can not go back to his/ her chamber to read a law book. In such an incident, to prevent the wastage of the lawyer’s time, availability of handy and virtual legal matters is the need of the hour. We will now discuss the major problems that arise due to the publication of hard copies of law books. 

Piracy

Imagine Harry Potter without The Deathly Hallows, Game of Thrones without A Dream of Spring. What will happen if someone has already told you about the result of the India-Pakistan cricket match? What if our favorite movie was canceled before it could arrive at its climax. It can happen in the publication of books. Suppose an author, who is about to finish a book, gets to know that his book is already published and circulated in the market. In such a situation, the author may also cancel the publication of his book. Piracy of printed books is very common nowadays and the law book publishers are also suffering because of it. Book piracy is difficult to measure. It is the ratio between the total illegal sale and a truly lost sale. 

But it is important for us to first discuss how this piracy of printed books takes place. How often we see that our batchmate (sometimes we also do it) ask for the book from us or from seniors or from the library and take that book to get a xerox copy. This is an example of the piracy of books. Nowadays, piracy of printed law books has become common. Books are pirated for the following reasons:

• Books related to the legal field are not easily available.
• Cost of law books is usually much higher than the normal books.
• Usually, printed books are very large and bulky so the reader prefers to have xerox copies of a particular portion of such books.

The problems with printed law books can be solved with the use of ebooks. The piracy of these books can be reduced by using ebooks. There is the use of Digital Rights Management (DRM) technology that prevents piracy of ebooks. DRM is a systematic approach to copyright protection for digital media. It is a lock on a file that ensures that the person who bought the content can only use it. 

One may see Digital Rights Management in his/ her LexisNexis eBook, located in front of his/ her eBook. Digital Rights Management places the purchaser’s account name and email ID in the eBook. This ensures that the copyright laws of the author and publisher are respected. It ensures that eBooks bought from Amazon can only be read in your Kindle App. It also puts a restriction on the sharing of eBooks with others. It puts a restriction on the number of devices one can download the same eBook at a time. 

Material waste

Suppose, a lawyer or a law student publishes a commentary on the arbitration law and the legislature comes up with certain amendments in the arbitration law just after the publication of these books. In such cases, these printed books are no longer needed or in other words, these books become waste so it will lead to great material loss. Therefore, the publisher of the book suffers a major financial loss.

This problem of material waste increases as there is a significant number of printed books that are damaged in the transportation process. There are at least 20 per every 1000 books that are damaged in the transportation process. The reason for this may be different like some books are damaged due to improper packaging of these books, due to the negligence of the workers involved in the transportation of these books, etc.

This material waste is effectively reduced by the use of eBooks. There is no damage to eBooks in the transportation process (because it does not have any transportation process). Also, there is no material waste in the case of eBooks as the content in these books can be updated at any time at the will of the publisher or author.

Minimum Order Quantity (MOQ)

Minimum Order Quantity is a term used for a minimum amount that can be ordered from a supplier. This is a major problem that every new publisher faces. In the printing of books also there is a minimum quantity fixed by the printing press. This minimum number varies from press to press. However, these numbers fixed for publishing any book are normally higher for a new writer as they do not have such a hefty sum of money in the beginning. We all know that in the legal industry, the laws about anything are not fixed and they are changing to fulfill the demands of society. So, any publisher would not want to publish a large number of these books as nothing is certain in the legal world. But the Minimum Order Quantity binds them to publish a large number of books that a publisher may not want to do at that time.

The problem of MOQ is solved through eBooks. So, here there is no such restriction on the publisher to publish any particular minimum number of books. Actually, it also provides a larger audience to the publisher. Here in publishing eBooks, there is very little possibility of financial loss. 

Other factors

In the present scenario, everyone can understand the importance of technology. And the range of these techniques has also increased in recent times. The same concept applies to the widespread use of eBooks. We all know that the legal language is different from any other language and how often the reader has to refer to the dictionary to understand the meaning of certain legal terms (like legal maxims, Latin terms, other complicated words). The eBooks provide the option of Built-In Dictionaries to solve such problems of the readers.

Another issue with the printed law books is related to space consumed by such books. We all know that lawyers, judges, and law students are avid readers and they tend to collect a lot of books, and these books take up too much space and make home/ chambers feel cluttered. However, a large collection of eBooks would not take any physical space. It is easier to manage a digital library than bookshelves filled with thousands of books. 

Rights conferred to publisher publishing ebooks

There are various eBook publishing companies like Amazon, iBooks, Smashwords, Kobo, etc. through which one can publish his/ her eBooks. eBooks are available in multiple formats like MOBI, ePUB, KF8 and many more. In the publishing industry, the owner of the copyright may be the publishing company by an agreement between the author and publisher.

eBooks are under the ambit of laws governing intellectual property. It includes the Indian Copyright Act and Information Technology Act. The owner and producer of eBooks own the copyright to their work. Section 14 of the Indian Copyright Act, 1957 talks about the term “copyright”. Copyright is basically the legal right to publish, print, film or record any literary, dramatic and musical material. Hence eBooks come under this category. 

The publisher is also provided with rights to protect the copyright of digital content through the use of Digital Rights Management (DRM). Section 65 A and Section 65 B of the Indian Copyright (Amendment) Act, 2012 says that anyone who tries to bypass technological protection of copyrighted material (DRM) can be punished with two-year imprisonment along with the fine. Thus Digital Rights Management has a legal basis under Indian laws. 

Royalties

Royalty is the payment made to the owner for the use of its property. The conditions on which the royalties depend upon are license agreements between the parties. Different publishing houses have different rates and it depends on a variety of factors. The same is applied in the case of eBooks where different publishing houses like LexisNexis, EBC, etc give a certain amount of money to the author of the books for their work. It is said that the royalty given for printed books is much higher than the eBooks. However, it varies according to the circumstances. It depends on the initial cost of the eBook, the taxation policy of the country, any special contract signed. 

Possible Challenges in publishing ebooks

There are certain challenges which one may face while publishing the eBook. Here we will discuss those challenges.

1. Copyright Challenges: The most valuable part of most eBook publishers are the copyright contents of such books. For the publishers, the following are the main copyright issues.

• Author Grants- It is the first step in the process of publishing any book. This step includes obtaining rights from authors.
• Copyright Procedures- This is the second step in publishing an eBook. It is the duty of the publisher to protect the copyright which they obtain from the author.
• Copyright Licenses- The next measure is to be precise and cautious in granting a license to the third person. For example, the publisher must be very careful in granting rights to any other eBooks publishing sites like Kindle, Google, Smashwords, etc. 
• Protection Against Infringement- This is the fourth and one of the most important steps in protecting the copyright. It includes the preventive measures one should take for protection against infringement of any right.

2. Contract Challenges: The second set of challenges arises from the field of contracts and licensing law.

1. Publishing Contract: The publisher’s contract with the author should be clear and reasonable.
2. Licensing Agreements: Publishers (his/her lawyer) need to develop precise and well-tailored contracts that clearly define the rights granted and rights that are not granted.

3. Defamation, Privacy and Publicity Issues: These are another set of problems that comes in front of a publisher. The publisher can be sued for publishing a false and defamatory statement about someone although he/she is not the author of the book. He/ she can also be sued for the violation of public rights. 

Conclusion

The process of publishing a law book online is a new idea and fortunately, many leading law book publishers have started to publish eBooks. These are easy to carry as they do not have any actual weight. But in our country, many people do not have knowledge about eBooks. Also, even though many courts in India have become paperless, there are many lawyers who are not allowed to put any reference online through these eBooks. 

We should understand that the future of reading is in eBooks. Many publishers are not using major eBook sites like Kindle, Google Books, Kobo, Smashwords, etc. They should use these eBook reading platforms so that the range of audience increases.

References

1.  https://searchcio.techtarget.com/definition/digital-rights-management
2.  https://hellboundbloggers.com/why-ebooks-better-than-printed-books/20640/
3.  https://www.meadmetals.com/blog/whats-minimum-order-quantity

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About the Organisation

The Sports Committee of Rajiv Gandhi National University of Law, Punjab proudly announces the return of its flagship sports fest, Zelus III, 2020. After successfully hosting two editions of Zelus, we invite and welcome you to be a part of the third edition in the royal city of Patiala. 

We at RGNUL endeavour to instil a true feeling of sportsmanship and camaraderie between the athletes. Through the various events, we aim to capture the magnetism of sports bringing together students of different universities and prove to be an excellent ground and opportunity for young sportsmen to showcase their talents and get recognition for their hard work. 

The highlight of the sports fest has got to be the Pre-Fest Party as well as the After-Party which would officially mark the success of the fest, planned in the most lavish manner possible which will truly give you an unforgettable experience and unlimited fun. The driving force behind this party is the belief that breaking off the ice off court would enable every single individual to take back home some of the greatest memories and friendships. 

List of the formal Events

1. Athletics
2. Badminton
3. Basketball
4. Carrom
5. Chess
6. Cricket
7. Football
8. Lawn-tennis
9. Snooker
10. Swimming
11. Throwball
12. Table tennis
13. Volleyball
14. Kho Kho

Important Dates

7 February, 2020: Last Date for Confirmation of Participation by sending back duly filled Confirmation Form.

10 February, 2020: Last Date for sending Details of Participants to zelussportsfest@gmail.com.   

15 February, 2020: Last Date for Requisite Payment of Rs. 2100/- per participant.

Follow us and stay updated on the Facebook Page and the Instagram Page. 

FOR BROCHURE CLICK HERE.

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This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article talks about the Lawful Recourse to Force.

Introduction 

The main objective of International law is to deal and resolve conflicts related to any kind of economic, cultural, social or humanitarian barriers among the states. States signing in as a member of the UN Charter have to abide by the preamble of the UN Charter and the rules and regulations prescribed under it. The preamble sets out an objective “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. The goal is worldwide peace. 

Having said that, the aggravating factors which play a major role in the destructive conflicts within the states are:

• Self-Defence
• Aggression
• Intervention

Self-Defence

The states have been granted an exclusive inherent power under International law. The states are free to use their right to self-defence against any other state for any kind of armed attack. It is clearly a matter of necessity where the victim state in order to safeguard its sovereignty and security has to use power or force to stop the violence keeping aside all the international responsibilities for the time being. However every act carried out by the victim state should be of lawful conduct and should be proportionate to the forces used against them. The states are entitled to use the power of self-defence only if there is a situation of emergency or an armed attack or if there is an immediate danger to the territory of the state. The reason behind the immediate action is the same as it is for any other offences against humans. So self defence can be used immediately before, during or after the attack to their territory. 

It is a universal fact that every power comes with a lot of restrictions, and the victim states while using their power of self defence should always consider the dos and don’ts and act accordingly. In addition to that, if at all there is an armed attack the victim state has to prove that the facts stated by them are true and genuine.

Statutory Provisions

• Right to Self-defence is one of the exceptions to the prohibition against the use of force under Article 2(4) of the UN Charter and customary international law. It is not mistaken with the norm. The treaty law, including the Charter of the UN under Article 51 have clearly spoken that every country under international law has an inherent right of self-defence which can be used only in an actual position of aggression. 
• The act of self-defence under international law has been generally prohibited both under treaty law, customary international law and general principles of international law. Preemptive or anticipatory self-defence are not allowed in international law and this rule derives its legitimacy from the famous Caroline case of 1837 involving Britain, United States and Canadian independence movement was a diplomatic crisis where Canadian rebels fled to an island in the Niagara River, with support from US citizens in the ship. British forces crossed the Niagara River, to board and capture the vessel where it was moored, at Schlosser’s Landing, in the US territory. There was trading of bullets going on which was taking the form of a war during which one US citizen, a watchkeeper, was killed. British forces set fire to the Caroline and set it adrift in the Niagara River, about two miles above Niagara Falls. 

This action of the British forces outraged civilians on both sides of the US-Canadian border. In retaliation, a private militia comprised of both the US citizens and the Canadians attacked a British vessel and destroyed it. The diplomatic crisis was defused by the negotiations that led to the Webster-Ashburton Treaty in 1842, in which both the US and the British admitted to their respective misconducts. 

In the light of this incident there was an emergence of a principle named as “Caroline Test”. The principle states that the necessity for self-defense must be “instant, overwhelming, leaving no choice of means and no moment for deliberation,” as formulated by Daniel Webster in his response to British claims that they attacked Caroline in self-defense.

Aggression

Meaning

If we go by the literal meaning of aggression, it’s something that involves violence in it. According to international law, it is a crime against peace. It involves violence against a state by any person or a group of people using the state’s military force without permission which violates the UN Charter. The violence is termed as aggression based on the gravity of the particular offence.The word aggression was first introduced in the constituent instrument establishing the Nuremberg International Military Tribunal (ITM), the London Charter, 1945 at the end of World War II and it was further included in the Charter of the Tokyo International Military Tribunal for the Far East (IMTFE) and Control Council Law No. 10, 1945. The criminalization of aggression contains the culmination of a process that started at the end of World War II with the impeachment of the German emperor Wilhelm II due to the provision under Article 227 of the Peace Treaty of Versailles. Although the crime of aggression is treated as a part of the customary law with no opposition on the part of states, the individual criminal responsibility of each state is still in dispute. 

Emergence of International Criminal Court

No prosecution for aggression followed the inactive and stringent methods of the Nuremberg and Tokyo trials giving rise to the emergence of the International Criminal Court (ICC) in 1998.

ICC includes aggression as a statute among the crimes within the ambit of court’s jurisdiction under Article 5. But at the same time it sets out another rule under Article 5(2) that the jurisdiction of the court would not be exercised for aggression until there’s a generally accepted definition of the particular crime is adopted. 

Court’s jurisdiction

Aggression is a crime under the Rome Statute of the International Criminal Court. There are certain provisions that the court has to follow while exercising its jurisdiction in the following ways:

Article 15 is under the Rome Statute of the International Criminal Court.

Court’s power to exercise its jurisdiction over the crime of aggression (State referral, proprio motu).

1. The Court is entitled to exercise jurisdiction on the crime of aggression in accordance with Article 13, subject to the provisions of the Article.
2. The Court can also exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty states.
3. The Court usually exercises jurisdiction over the crime of aggression, subject to a decision that is to be taken after 1st January 2017 by the same majority of thirty states.
4. In case of a crime of aggression where a state is wholly responsible for the crime, the court may take jurisdiction in that case unless there’s a declaration previously lodged with the registrar about the state party’s willingness of not accepting such jurisdiction. The declaration can be withdrawn or revoked at any time required and the state party has to comply with it within three years.
5. The court here is not entitled to take jurisdiction in case of aggression that is created by a state within its territory which is not a party to this statute.
6. The prosecutor may proceed with the investigation of a crime of aggression if he thinks fit on reasonable grounds and primarily with a knowledge about the current acts that have been determined with the confirmation of the security council as per every state concerned. The prosecutor is required to notify the secretary-general of the UN first and further to the court and serve all possible documents and information.
7. The prosecutor may proceed with the investigation regarding the crime of aggression once such determination has been made.
8. If in case the determination is not been taken into consideration within a period of 6 months even after the notification, the prosecutor is entitled to proceed with the investigation of that particular crime of aggression with a prior authorization of the pre-trial division, for the commencement of the procedure of investigation in respect of crime of aggression.
9. A determination of the crime of aggression by any private body which is nowhere related to the Court proceeding should not be prejudiced with the court’s research process under this statute.
10. This Article in no way prejudices the provisions relating to jurisdiction contained within Article 5.

Article 15 under the Rome Statute of the International Criminal Court. 

Court’s power to exercise its jurisdiction over the crime of aggression (Security Council referral)

1. The Court may exercise its jurisdiction over the crime of aggression in accordance with Article 13.
2. The court may exercise its power of jurisdiction only in cases of crime related to aggression which is committed 1 year after 30 state parties have already accepted or ratified the amendments to the statute.
3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States as is required for the adoption of an amendment to the statute.
4. A determination of an act of aggression by an organ outside the court shall be without prejudice to the Court’s own findings under this statute.
5. This Article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5.

Brief analysis of the Rome statute

The court takes the jurisdiction only when there is a crime of aggression with the acceptance or ratification by the majority, which is about thirty states. A question can be raised in respect of the court’s jurisdiction that, is the court entitled to judge every matter relating to aggression? No doubt the court is entitled to take jurisdiction for the crime of aggression unless any state party already has declared of not accepting such jurisdiction by lodging the same with the registrar in accordance to Article 12. The declaration can be withdrawn anytime if needed and the state part has to abide by it within 3 years. These provisions are applicable only to the states which are party to the statute. In order to investigate matters related to the crime of aggression, the prosecutor shall first notify the matter to the general-secretary of the UN and further to the court and serve all possible documents and information. Nothing contained in the Article violets any of the provisions relating to jurisdiction including Article 5.

Interventions 

Interventions are the uninvited interference of one state in the matter of another state and this is also led by a group of states acting for a common goal. It has another part to it that is nonintervention which avoids such interferences. But here, we are going to concentrate only on interventions because this is one of the major factors which is responsible for the disturbances within the world.

But yes, absolute remedy is never served for interventions because there are situations and facts where the victim state permits the interference of other countries and when the state itself gives the consent for interference that won’t violate any international law.

Provisions against interventions 

Article 2 under the UN Charter codifies the principle of territorial integrity of states. And the Article completely prohibits interventions by any individual states into any other state.

Kinds of interventions

• Internal interventions– It is the interference by any state into the internal matters of another state’s territory or airspace with the help of military forces.

• External interventions– It is basically having a hostile relationship with another state and the motive behind this kind of intervention is generally to wage a war against the other state. 

• Punitive– It is an intervention done with a motive of retaliation. Where a state retaliates to the actions of another, it may be a neighbouring state which has failed to obey any kind of international law or norm.

Conclusion

Finally after discussing all these criteria which plays a major role in disturbing the world’s peace and tranquillity, we can conclude that international law is not in shortage of rules or provisions. These laws are competent enough to regulate all the international issues but it’s the respective state’s responsibility to try out ways to deal with any state related matter peacefully. And also the states need to make their own rules which would help in making people aware of the consequences.

References

• https://www.un.org/en/sections/un-charter/un-charter-full-text/
• https://www.icc-cpi.int/
• https://legal.un.org/repertory/art51.shtml
• https://www.lawfareblog.com/caroline-affair
• https://history.state.gov/milestones/1830-1860/webster-treaty
• https://net.lib.byu.edu/~rdh7/wwi/versa/versa6.html
• https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
• https://www.un.org/en/sections/un-charter/un-charter-full-text/

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This article is written by M Anulekha, a fourth-year student from Damodaram Sanjivayya National Law University, Pursuing B.A LLB. In this article, the author discusses the role of intellectual property rights in biotechnology. 

Introduction of the Intellectual  Property Rights

Licensed innovation eludes the elite rights allowed by the nation above manifestations of personality, specifically, developments, abstract and imaginative works, particular signs and plans utilized in trade. 

Modern innovation is critical for the medicinal business. Utilization of the Intellectual Property framework by Small and Medium Enterprises in the medicinal business relies generally upon the business technique of an organization, its size, assets, imaginative limit, serious setting and field of ability. Research-based, advancement drove organizations that look to grow new medications improve or adjust existing medications or grow new pharmaceutical/medicinal hardware or forms, will, in general, depend vigorously on the patent framework to guarantee they recuperate the ventures caused in innovative work.

The present Intellectual Property Rights (IPR) system is empowering commercialization of seed improvement, monoculture, the security of new plant assortments, microorganisms, and hereditarily changed living beings. As a result, our rich biogenetic decent variety is being dissolved irreversibly. We should discover a way to make an elective methodology that will acquire harmony between the formal Intellectual Property (IP) framework and maintainable parts of biodiversity. 

Associations that rely upon allowing in giving approvals pharmaceutical things ought to be instructed about the patent system so they can deal sensible and balanced approving understandings. Small and Medium Enterprises in the medical business may utilize the abundance of data contained in patent reports as essential info to their Research & Development, to get thoughts for additional development, to guarantee their “opportunity to work” or to discover.

Present-day structures, plant combination security, is normally less relevant to generally Small and Medium Enterprises in the medicinal branch. However, this could vary depending upon the item offering and technique of every association. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) gives for least standards and principles in regard to the accompanying classes of IPR.

Meaning of the Biotechnology

Biotechnology is an innovation that uses natural frameworks, living creatures or parts of this to create or make various items.

With the improvement of a hereditary building during the 1970s, inquire about in biotechnology (and other related zones, for example, medication, science and so forth.) grew quickly on account of the new probability to make changes in the life forms’ hereditary material (DNA).

Today, biotechnology covers a wide range of controls (eg. hereditary qualities, natural chemistry, atomic science, and so forth). New innovations and items are built up each year inside the regions of medication (advancement of new meds and treatments), farming (improvement of hereditarily adjusted plants, biofuels, organic treatment) or modern biotechnology (generation of synthetic compounds, paper, materials, and nourishment).

Biotechnology helps living beings to fight against the illness. At present, there are in excess of 250 biotechnology human services items and antibodies accessible to patients, numerous for already untreatable maladies. More than 13.3 million ranchers around the globe utilize rural biotechnology to build yields, keep harm from creepy crawlies and bothers and lessen cultivating effect on the earth.

What’s more, more than 50 biorefineries are being worked across Northern America to test and refine advances to create biofuels and synthetic compounds from sustainable biomass, which can help diminish ozone-depleting substance emanations.

Uses of the Biotechnology

Ageing to Produce Foods

Ageing may be the eldest biotechnological revelation. More than 10,000 years prior to humanity was delivering wine, lager, vinegar and bread utilizing microorganisms, principally yeast. Yoghurt was created by lactic corrosive microscopic organisms in milk and shape was utilized to deliver cheddar. These procedures are still being used today for the creation of present-day nourishments. 

Modern Fermentation

In 1897 the disclosure that compounds from yeast can change over sugar to liquor lead to mechanical procedures for synthetics, for example, butanol, CH3)2CO and glycerol. Ageing procedures are still being used today in numerous cutting edge biotech associations, regularly for the generation of chemicals to be utilized in pharmaceutical procedures, natural remediation, and other modern procedures.

Nourishment Preservation

Drying, salting and freezing sustenances to thwart disintegration by microorganisms were penetrated at some point before anyone genuinely understood why they worked or even totally acknowledged what made the sustenance ruin regardless.

Isolates

The act of isolating to forestall the spread of ailment was set up sometime before the starting points of infection were known. In any case, it exhibits early acknowledgement that sickness could be passed from a tainted individual to another sound person, who might then start to have manifestations of the ailment.

Specific Plant Breeding

Harvest improvement, by choosing seeds from the best or most advantageous plants, to get another yield having the most attractive qualities, is a type of early harvest innovation. Ranchers discovered that utilizing just the seeds from the best plants would inevitably upgrade and reinforce the ideal qualities in resulting crops. In the mid-1860s, Gregor Mendel’s investigations on inheritable qualities of peas improved our comprehension of hereditary legacy and lead to practices of cross-reproducing (presently known as hybridization).

Intellectual Property Rights & Biotechnology

Advancements of the biotechnology have been underlined by the various departments of the biotechnology. Interestingly, most creating nations don’t have solid IPR systems and achievement instalments. Licensed innovation (IP) is key to the biotechnology business, and carries with it a measurement, encouraging community-oriented action, regardless of whether it is a medication disclosure or clinical or advertisement related preliminaries.

Basically, collective movement is the cooperative energy between India’s capacity to give conditions to explore, clinical preliminaries and advancement, innovative lead and capital accessibility in created countries. The fruitful interpretation of these cooperative energies into economically reasonable applications and attractive items basically relies upon the similarity of guidelines that manage the enlistment and insurance of intellectual property, beginning from the shared procedure.

Importance of Biotechnology

The Biological Diversity Act, 2002 (hereinafter referred to as BD Act) provides a mechanism for access to the genetic resources and benefit-sharing accrued therefrom. Section 6 of the BD Act came into force on 1st July 2004 and prescribes that obtaining IPRs from the utilization of biological resources in India is subject to the approval of the National Biodiversity Authority (hereinafter referred to as NBA). 

It is considered to be a science relating to life and that includes the utilization of innovation, drugs, and various valuable things. Present-day use of the term incorporates hereditary building just as tissue culture and cell advance. The idea envelops a wide scope of techniques for changing living beings as per human purposes – returning to the training of creatures, development of plants, and “upgrades” to these through reproducing plans that utilize counterfeit determination and hybridization.

For the learning of basic normal methods, the ability to isolate and escalate a particular quality from the enormous number in a living being’s genome (the finished arrangement of qualities or hereditary material present in a cell or life form). Doubtlessly, the closeness of complete genome movements for an expanding number of living things vows to change the way by which these sciences – and the undertakings subject to them.

How Intellectual Property Rights can Protect Biotechnology?

Intellectual property rights protect one’s innovation. And in biotechnology also the inventor can be protected by intellectual property rights, but to protect his/her rights one should prove his/her novelty and innovation of that particular product. According to section 2(1)(j) of the Patents Act, 1970 talks about the invention. It says that for the grant and protection of the invention there should be a novelty in that invention.

The below following examples in which the intellectual property rights protected the biotechnology:

Here is one case of how protected innovation rights work in the medicinal services industry. Government assurance permits organizations to utilize the ® image with a trademark name to show that it has an enrolled trademark and that nobody else can utilize that name. More than one organization may sell a similar substance compound, which implies a similar medication, however, just one organization can legitimately utilize the trademarked name to advertise that medication.

For instance, while numerous organizations sell the energizer tranquillize fluoxetine hydrochloride, just Eli Lilly can call it Prozac. In like manner, no one but Roche can utilize the trademarked name Tamiflu to showcase a medication called Oseltamivir that is intended to forestall and treat flu. Trademarks aren’t simply utilized with drugs, in any case; they’re additionally utilized with medical clinic names, doctor practice names and different elements with particular marking. This is vital to organizations right now, where marking, promoting and pictures are focal parts of business tasks and vital situating.

As another instance, biotechnology organizations use licenses to secure their protected innovation rights to medicate conveyance gadgets. AstraZeneca possesses the licensed innovation rights to the Symbicort Turbuhaler, which is the medication budesonide/formoterol in a dry powder inhaler for the support treatment of asthma and COPD. Other human services organizations use licenses to secure their protected innovation rights to gadgets, for example, braces, prostheses, vision testing machines and the PC frameworks utilized in social insurance the executives.

Indian Pharmaceutical Industry

The Patent Law Treaty (PLT), The Trademark Law Treaty (TLT) has made some amazing progress, being nearly non-existent prior to 1970 to a noticeable supplier of human services items, meeting just about 95 for each penny of the nation’s medicinal requirements.  Nowadays the business is the front position of scientific technology-based enterprises with vast going capacities in the intricate field of medication production and innovation. The positions are extremely high in developing countries, regarding innovation, quality, and scope of meds fabricated.

From straightforward migraine pills to modern anti-toxins and complex cardiovascular mixes, pretty much every sort of medication is presently made domestically. Worldwide organizations related to this area have invigorated, helped and initiated this dynamic advancement in the previous years and assisted with putting developing countries on the medical guide to the universe. The medical segment developing is exceptionally divided into enlisted elements with serious value rivalry and government value control. It has extended radically over the most recent two decades.

Governments’ Role in Biotechnology

The innovation strategy of the legislature and the Vision Statement on Biotechnology has been given by DBT to give a system and give vital heading to various divisions to quicken the pace of improvement of biotechnology in developing countries. This arrangement further intends to chalk out the way of progress in divisions, for example, farming and nourishment biotechnology, modern biotechnology, restorative and therapeutic drug, demonstrative biotechnology, bio-building, nanotechnology, clinical biotechnology, condition and intellectual property and, patent law, copyright law, trademark law, design law etc.

Licensing Biotechnology Inventions in India 

The IPO considers biotechnological developments to be identified with living elements of characteristic starting point, for example, creatures, people including parts thereof, living elements of the fake starting point, for example, small scale life forms, immunizations, transgenic creatures and plants, organic materials, for example, DNA, plasmids, qualities, vector, tissues, cells, replicons, forms identifying with living elements, forms relating to organic material, strategies for treatment of human or creature body, natural forms or basically organic procedures. The accompanying biotechnological developments are not considered patentable under Section 3 of the Indian Patent (Amendment) Act 2005.

1. Living elements of the characteristic root, for example, creatures, plants, in entire or any parts thereof, plant assortments, seeds, species, qualities also, smaller scale living beings.
2. Any procedure of assembling or generation identifying with such living substances.
3. Any strategy for treatment, for example, therapeutic, careful, therapeutic, prophylactic indicative also, remedial, of people or creatures or on the other hand different medications of comparable nature.
4. Any living substance of fake beginning, for example, transgenic creatures and plants, or any part thereof.
5. Natural materials, for example, organs, tissues, cells, infections and all the way toward getting them ready. Basically natural procedures for the creation of plants and creatures, for example, a technique for intersection or reproducing.

Rights of Plant Varieties

PBR’s are utilized to secure new assortments of plants by giving restrictive business rights for around 20-25 a long time to advertise another assortment or its regenerative material. The assortment must be novel, particular, uniform, and stable.

This insurance keeps anybody from developing or selling the assortment without the proprietor’s consent. Special cases might be made, nevertheless, for both research and use of seed spared by a rancher for replanting. International Union for the Protection of New Varieties of Plants system of the plant variety protection says that in section 3 it talks about the protection of Genera and some specified species.

Patents

A patent is a restrictive right given to an innovator to prohibit all others from making, utilizing, selling or offering to sell the creation in the nation that conceded the patent right, and bringing it into that nation. In horticultural biotechnology, licenses may cover, for instance, plant change techniques, vectors, qualities, and so forth. Furthermore, in nations that permit protecting of higher living things, transgenic plants or creatures. Section 3,5 of the Patents Act, 1970 protects the inventions.

Conclusion

Obligations and Resources would make a significant start in the progress of proficient and powerful utilization of medical usage for the construction of developing countries. The developing countries medical industry will guarantee that basic medications at moderate costs are accessible to the immense populace of this sub-landmass and furthermore keep giving work for a large number of people.

The fundamental course of instruction ought to be intended to guarantee that the recently qualified drug specialist has the vital information and aptitudes to initiate rehearsing skillfully in an assortment of settings including network and emergency clinic drug store and the pharmaceutical industry. Continuing with capable improvement should then be a durable obligation for each practising medication master.

The possibility of National schools of medication stores should be set up to make and present a model instructive program. Medication authorities should get figured out how to look into medication the officials and result checking. Medication store calling ought to mastermind the possibility of drugstore practice at system and crisis facility sedate stores through reasonable planning and pay. Structures of Medicine into a standard game plan of prescription of things to seek widely inclusive human administrations besides, ensuring human administrations for all – especially for the welfare of destitute individuals. 

India has cruised through the venture from a condition of an all-out absence of IP attention to the current situation with the proactive quest for IP in the outskirts territories of innovation. Having released India’s IT potential in the later past, the opportunity has now come to bridle the colossal qualities and energies of the nations in the Biotechnology Sector.

Besides, IPs produced by the open part can be viewed as resources that can be traded for private division claimed IPs or utilized as negotiating concessions in innovation move dealings. Organization between the private and open divisions in innovation improvement through sharing of ability, what’s more, IP can rush innovation move and obtain on the two sides.

References

• https://www.wipo.int/treaties/en/ip/plt/ 
• https://www.wipo.int/treaties/en/ip/tlt/
• https://www.ijcmas.com/special/3/K.%20Jeyaprakash.pdf
• https://www.investopedia.com/terms/i/intellectual-property-rights-biotechnology.asp
• https://www.iipta.com/role-of-ipr-in-biotechnology-industry/

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This article is written by Pubali chatterjee and Sagarnil ghosh, students of Amity Law School, Kolkata.

Abstract

India is “Socialist, Secular, Democratic, Republic”. Diversity is the essence of India, but diversity in law is unjust.

Article 14 of the Indian constitution says that every individual is in the same pedestal in case of the law of the land, but forever there has been a gap between making of laws and implementing them. The recent judgement on triple talak is indicative of the issues that were faced by Muslim women from time immemorial and the measures required to be taken were not done on time.

The question arises that when everyone is under the rule of the land then why are different rules devised for different communities?

133.92 crore diversity is accepted but why not a single rule for all these diversifications be tied up together to unite every individual in a true sense.

Protection of law and the establishment of the fundamental rights are not only extended to the citizens but are also for any person inhabiting the territory of India. Any discrimination whatever be it so disturbes the protection of our law and equality of law.

Introduction

In a country like India where there is a diversification of religion practiced by the citizen, Uniform Civil Code is such a debatable topic which really brings out a point of question mark whether it will be a really benchmark to the Indian Personal laws or whether it will be a nail to the coffin of the diverged personal laws.

Uniform Civil Code is the different set of laws which mainly governs all the personal matters of the citizens of India without creating any discrimination or irrespective of religion to ensure the fundamental rights and Constitutional rights of the citizens of India.

It simply means that a different set of laws is going to replace all the on-going laws of the diverged religion culture of Indian Citizens.

In the Indian land the demand of uniform civil code dated back to the time when in the early arrival of the 20th Century when some of the women activists had put it forward with the main motive of women’s equal rights and protections and also for equality and secularism. Till independence a number of law reforms were passed keeping in mind the thought of improving the condition and the wrongdoings towards women especially towards the Hindu Widows.

In the year 1956 although their was a demand for Uniform Civil Code made by former Prime Minister Jawaharlal Nehru along with his supporter and the women activists but still the drawback remains it being duly opposed by the Muslim opposition member so duly they had to accept the Hindu Code Bill and also the uniform civil code being added into the Directive Principles of State Policy of the Indian Constitution.

Dating back to the colonial period of India when India was under the reign of the British East India Company when Lord William, the then Governor General of India tried to save the women from the evil system of Sati and passed the Regulatory Statute against it, it was the time when there was the establishing of UCC.

Legally codified provision of the Uniform Civil Code

Article 44 of the Indian Constitution states that, the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

The above article gives a clear cut and transparent legally codified provision that there should be uniform civil code throughout the territory and the union government should endeavour it to secure the rights of the citizens of our country.

The Article appears to have been the subject of a lot of discussion, yet simultaneously, not of enough. Additionally, such discussions appear to have left the subject of the Article for example the uniform common code, reeling and turning in a circle and on a hub all alone, a lone planet pivoting around the sun (general assessment), with the intermittent space rock hit by either a media or a discretionary hungry lawmaker or ideological group, or the legal executive, or a lobbyist to move it out of its circle, however just towards a capricious heading which even the propellers don’t know about, just to discover it at last come back to its solitary circle of lack of concern at the appointed time.

The landmark judgment which held UCC 

In the Shah Bano case judgement: It is likewise a matter of disappointment that Article 44 of our Constitution has stayed a dead letter. There is no proof of any official movement for surrounding a typical common code for the nation. A conviction appears to have made strides that it is for the Muslim people group to take a lead in the matter of changes of their own law. A typical Civil Code will help the reason for national coordination by evacuating different loyalties to laws which have clashing belief systems. No people group is probably going to ringer the feline by making unnecessary concessions on this issue. Justice to all is an unmistakably more agreeable method for administering justice than equity from case to case.

A step towards the Uniform Civil Code

On passing the decision of Juvenile Justice (Care and Protection of Children) Act is by all accounts an endeavor in moving towards UCC. As, it prepared for an appropriation of kid by people from Muslim Community despite the fact that not permitted under their own laws. The Supreme Court of India again requested that the Union Government structure a UCC to expel sexual orientation disparity and cancel the retrograde practices followed under the system of individual laws.

As we realize that there is a Criminal Code which is pertinent to all individuals regardless of religion, position, clan and residence in the nation however there is no comparable code identified with separation and progression which are administered by Personal laws.

Status in Goa

After Independence, the State of Goa has embraced the Portuguese Civil Code which implemented a UCC for every one of its residents. Under this code, Married couple holds joint proprietorship in all advantages claimed and obtained by every mate. Indeed, even Parents can’t exclude their kids totally at any rate half of the property must be given to them. Muslim people who have enlisted their marriage in Goa are not permitted to rehearse polygamy.

In Goa, every individual is bound by the same laws relating to marriage, succession, and divorce. The communities are not under their personal laws.

Contrary to Article 25 of the Constitution

According to the Indian Constitution, Article 25 states that all the persons are equally entitled to freedom of conscience and the right to freely profess and practice and propagate religion which is becoming a provision contrary to the Uniform Civil Code when the UCC is established. Therefore the Uniform Civil Code and the personal laws should be given a combined platform to be operative without any kind of discriminations or disagreements. The main important note regarding to the contrary is that the UCC is just a modern set of laws which are to be incorporated in place of the personal laws and duly and newly followed by the citizens of our country but the main question is that what is going to the ancient customs of all the existing personal laws which duly has been followed by the citizens. There should be a proper effective and efficient implementation of the UCC otherwise it can create various disagreements and discriminations among the citizens of our country as it is the question of new laws v. all the existing personal laws which happened to be followed over decades.

UCC! Why?

To give equivalent status to all residents independent of their religion, class, standing, sex and so forth. 

• To advance sexual orientation fairness. UCC will bring the two people at standard. 
• To suit the desires of the youthful populace and to use their maximum capacity towards country building. 
• All Indian residents are equivalent under the steady gaze of the official courtroom. That is the criminal laws and other common laws with the exception of individual laws are same for all. Along these lines, UCC is important to advance the national joining. 
• To sidestep the issue of change of existing individual laws.

UCC! Why not?

• Due to assorted variety in India it is some place intense to concoct a typical and uniform arrangement of rules however our Government is attempting to think of regular principles. 
• Several people group, for the most part minority networks see Uniform Civil Code as an infringement on their privileges to strict opportunity. 
• In close to home issues, obstruction of state. As the constitution accommodates one’s preferred privilege to the opportunity of religion. Be that as it may, with the codification of uniform guidelines and its impulse may decrease the extent of the opportunity of religion. 
• To bring UCC is a delicate and extreme assignment however not feasible.

View point in various Case Laws

1. Mohd. Ahmed Khan v. Shah Bano Begum, in this case the then Chief Justice Y.V Chandrachud, observed that a common civil code for all the citizens of India would help in the removal of all the discriminations amongst the people of different religion and would be helping in the loyalty towards law.
2. John Vallamattom&anr v. Union of India, in the case it was duly stated that a Common Civil Code will help the reason for national incorporation by evacuating the inconsistencies dependent on belief systems”.

Conclusion

As, Common Civil Code would set up a lot of laws to oversee individual issues of all residents independent of religion is maybe the need of great importance. Truth be told, it is the foundation of genuine secularism. Such a dynamic change would not just assistance end oppression on ladies on strict grounds yet additionally fortify the mainstream texture of the nation and advance solidarity. There is a need to change our social framework, which is loaded with disparities, separations and different things which struggle with our Fundamental Rights.

With evolving times, the need has emerged for having a Common Civil Code for all residents, independent of religion, guaranteeing that their crucial and Constitutional rights are secured. Indeed, even Secularism and National Integrity can likewise be reinforced by presenting Uniform Civil Code.

Indian constitution speaks about secularism which means that there is no state religion which has to be professed by every individual. The word secularism has been inserted in the constitution’s preamble after the 42nd Amendment Act.

The 42nd Amendment Act of the Constitution, 1976 is the most questionable and debatable amendment of India.

It happened to change the Preamble of India which was earlier the “Sovereign, Democratic, Republic” to “Sovereign, Socialist, Secular, Democratic, Republic”.

It was done by the Indian National Congress headed by Indira Gandhi and it is referred to as the most controversial amendment because it had wholly come up to meet the personal ambitions at the period of emergency.

This emergency era had been widely unpopular and the 42nd Amendment was the most controversial issue.

For a bill to pass it requires a two third majority but the whole act was done during the emergency period without the majority vote.

Secularism is now challenged after the UCC coming in but the question arises whether the establishment of that very secularism had any legal validity or not?

India should not be talking about Secularism because India already divides the communities into different castes and provided reservation for those who are backward and is also inclined to provide personal laws to every community in India.

There is no equal protection of rights of individuals, how can it establish secularism?

How can uniform civil code be an exception to the so called “secularism” our country talks about?

All human beings have two eyes, two ears, two noses, everyone is exposed to the same soil of India and they inhale the same air, even the constitution lays them on the same footing then why should there be any discrepancy in the laws that would be subjected to them.

The laws should be the same for one and for all,there must be one rule as there is one nation.

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This article is written by Eho Menjo, an alumnus of Arunachal Law Academy, Lekhi, Naharlagun and pursuing an Advanced Criminal Litigation and Trial Advocacy course from LawSikho. This article deals with the essentials of a commercial lease agreement.

Introduction

A lease agreement is a contract which outlines the terms under which one party agrees to rent the property owned by another party. The agreement bounds the lessee to pay regular payments for a specified period in exchange of property of the landlord. Both the lessor and lessee have to face consequences if they fail to obey the terms of the contract.

The Commercial lease agreement is an agreement between landlord and tenant to rent property with the intention to operate a business.

When is this Document Needed?

A lease deed is a written contract between the landlord and the tenant. Lease deed is generally required when the property is leased for a long time, ranging between 1-5 years or even for a longer period. In such cases, a lease deed agreement plays an important role in maintaining the relationship between the landlord and the tenant and lays down provisions that legally bind them.

Types of Commercial Lease Agreements

There are several kinds of Commercial Lease Agreements. Following are some important types:

Full Service or Gross Lease

Full service or Gross Lease Agreement is that lease agreement which generally includes Expense Stop. Expense Stop is a mechanism of Full service or Gross lease agreement in which the lessee agrees to pay fixed operating expenses and landlord is responsible for paying all operating expenses below the Expense stop.

Expense stop can take the form of an agreed amount, typically expressed in an amount per square foot or per square meter or base year stop. A base year stop sets the expense stop equal to the actual operating expenses in the first year of the lease. For instance, if the actual operating expenses in the first year amounted to $100 per square foot, the expense stop would be set at $ 100 per square foot and the tenant would be responsible to reimburse the landlord for any expense above $ 100 per square foot in any subsequent year. 

Net Lease

Net lease is a contractual agreement where a lessee pays all or a portion of the taxes, maintenance costs and insurance fees for a property in addition to the rent fees. Net lease agreement is commonly used in a commercial real estate business.

Net lease is one of the most popular tools for commercial real estate investors who buy the property for income and don’t want to take any headache for maintenance, taxes and insurance etc. Generally, Lessor uses the Net lease contract to shift his/her burden to the tenant and take the benefit from the leased property without any administration of the property.

Following are the various types of net lease agreement: 

• Single Net Lease Agreement: 

Single Net lease agreement is a commercial real estate lease agreement where the tenant agrees to pay all the taxes related to property in addition to rent cost. A Single Net lease agreement permits the tenant to take all the responsibilities of the property from the landlord. A single Net lease agreement is a less common commercial lease agreement.

• Double Net Lease:

Double net lease is an agreement in which the lessee or tenant is responsible for both, premium of insurance of the building and property taxes of the leased property. In a single net lease, tenants are required to pay property taxes despite the rent cost. However, a double net lease is different from a single net lease and passes larger expenses in the form of insurance payment. The landlord is still held responsible for overall maintenance of property. Each month, tenants have to pay an additional payment in spite of the rent fees. Double net lease is commonly used in commercial real estate business.

• Triple Net L: 

Triple Net Lease agreement is one of the commonly used commercial lease agreements. A Triple Net Lease agreement is an agreement where the tenant promises to pay all expenses related to the property including real estate taxes, insurance and maintenance, and all this payment is in addition to the rent cost. In absence of Triple, Double, and Single Net lease agreement, all this payment has to be paid by the landlord.

Modified Gross Lease

A Modified Gross Lease Agreement is a type of real estate agreement where the tenant or lessee agrees to pay the fees from the inception of the agreement. Modified Gross Lease is used for commercial spaces such as office buildings and it is usually used in an agreement where there is more than one tenant for a building or property. In this lease, the tenant or lessee has to pay all the taxes related to the parts of the building room he or she possesses.

Modified gross lease is a combination of gross lease and net lease. In modified gross lease tenant directly takes over the expenses related to his or her unit, including utilities, maintenance and janitorial costs, while the owner or lessor has to pay all other operating expenses of that building or property.

Percentage Lease

Percentage lease is a commonly used commercial real estate lease, in which the lessee or tenant agrees to pay a minimum rent fee and share a percentage of the revenue with the landlord.

Essential Elements of a Commercial Lease Agreement

Definitions

The term ‘lease’ is defined under section 105 of The Transfer of Property Act, 1882 and it states that, a lease of immovable property is transfer of a right to enjoy the property or a specific or certain period to the transferor by the transferee. The transfer is made in consideration of the price paid or promised to be paid. 

Term

Commercial leases usually include the following terms:

• Lessor and Lessee

According to section 105 of the Transferor of Property Act, 1882, one who transfers the property is known as the lessor or transferor and the one who receives the property is known as the lessee or transferee.

• Premium

Premium is defined under section 105 of the Transfer of Property Act, 1882. According to the section, the price paid for obtaining a lease of immovable property is called premium.

• Base Rent

Tenants have to pay a predetermined amount to the landlord every month for the office space. Base rent is different from the operating expenses and revenue. It is almost fixed and is usually fixed on a square foot per year basis.

• Additional Rent

Additional fees is an amount that a tenant has to pay to the landlord for the extra expenses like after house service, maintenance of building and percentage rent (are often considered as additional rent expenses and not included in the base rent).

• Use Clause

Many lease agreements will include use clause to define the activity the lessee or tenant can participate in or on the premises. These clauses protect the property from damage and limit the liability of the property owner or landlord. If possible, ask for a maximum usage clause just in case the business expands into other activities.

• Free Rent

Free rent is also known as abated rent, free rent refers to the specified amount of free rent which is provided by the landlord to the tenant for specific month, usually at the beginning or at the conclusion of a lease. However, these offers are rare.

• Turnkey

The word turnkey is one of the most popular words in real estate business and industry, turnkey is used to describe space that is ready to move into. If there is no time and you have less chance to choose new office space, agree to the terms or provisions, and move into the new space or area, a turnkey property can save time and aggravation, particularly if you do not need to make any of your own upgrades to the area. In a turnkey property, all of the fixtures, wiring, flooring, and design or decorative items like carpet and paint are already in place.

• Usable square feet

Usable square feet is the space of square feet used directly and solely by lessee, including private restroom available to the lessee along with closets, storage and any other space to which only the lessee has access.

• Rentable Square Feet

Rentable square feet is a term that refers to common spaces that are shared among multiple lessees along with usable square feet. More concisely, rentable office space is calculated by adding the usable square feet of the office space and a prorated share of any common space or area. Such common spaces typically incorporate shares, hallways, lobbies, restrooms and common areas.

Security Deposit

A security deposit amount is a payment a tenant makes to the landlord before the inception of a lease agreement. The security payment does not go towards rent, but rather it is held by the landlord as “security” against future loss that may occur during the lease term. 

Security deposit amount is refundable amount, when a tenant moves out from the office space landlord deducts the deposit amount if he found some defaults in the space. However, if there is no major damage that occurred during your lease, you will likely be refunded the entire deposit amount within 30 days.

Property Use and Occupancy Details

The lease should clearly describe the property under lease. It is important to determine exactly what space you are renting including the area, address, location, structure, restrooms, elevators and hallways, etc. Lease is typically paid at a square foot rate. Often commercial lease deeds are old and not updated and the actual space being leased is less due to remodelling, repairs or simple measurement practices. The actual space being leased needs to be determined to avoid overpaying for the lease.

Improvements

A lease should address what modification or improvements can be made to the space, which party will pay for the improvements, and whether the lessee or tenant is responsible for giving back the unit to its original condition at the end of the tenancy.

Property Damage

Most of the commercial leases commonly include one or more provisions dealing with the subject of who is liable for wear and tear to the leased property during the time of the tenancy. Tenants need to keep the space in the same condition in which they were received, and in the condition in which the lessee was obligated to keep during the lease. The landlord obtains insurance over the buildings/premises. Thus, a lessee is required to surrender the area or space in good condition at the end of the term.

Duties and Obligations

Duties and obligation of the landlord

If you are renting out a residential property to tenants, it’s your legal obligation to ensure that the facilities are “habitable” by maintaining the plumbing, repair of building and keeping it structurally sound. Following are some important duties and obligations of the landlord:

• Maintenance

According to section 108(f) of Transfer of Property Act, 1882, one of the important duties and obligations of the landlord is to maintain or repair a building property and make sure that the tenant always gets the necessary items like running water, electricity, and so on, and if such repairs are done by lessee then he has right to deduct such expenses from rent fees. Landlords must also maintain common areas, keep up with repairs and follow all health and building codes.

• Deliver the possession of unit

According to section 108(b) of Transfer of Property Act, 1882, since tenants sign the lease agreement, it is the landlord’s obligation to deliver the possession of the unit or office space. If tenants move into the unit or office space after the inception of agreement and finds that the unit is not vacant then the tenant may take legal action against the landlord for the same.

• Rent Receipt

A landlord is obligated to issue a rent receipt to the tenant who makes payment of rent. Receipt must contain the details of tenants such as name of the tenant, month and year of rent paid, the amount received and sign of the landlord or his authorized person upon receipt. 

• Safety

Landlords must ensure the safety and maintenance of the tenants of the leased property. As a landlord, it’s a duty to maintain and inspect the leased property and provide a free and safe environment within the leased property.

Duties and obligation of tenants

• Rent

The first and foremost duty of a tenant is to pay rent on time. Rent is defined under section 105 of Transfer of Property Act, 1882, as the money, share, service or other thing to be rendered. The amount of rent is fixed on the lease agreement. If, tenant defaults in rent payment then the landlord may deduct the amount from the security deposit and take legal action on the regular defaults.

• Refrain from using the property for illegal purposes

The tenant has a duty to the landlord to avoid the illegal use of the leased property. The tenant must be honest about his or her intentions for using the premises. Suppose, tenants enter into a lease agreement with a landlord by saying that he would use the property for office space but in actual, he is using the leased property for some other illegal purposes. In this case, the landlord has the right to terminate the lease.

• Duty not to commit nuisance

The tenant must not unreasonably interfere with the use and enjoyment of possessors of other adjoining premises. It is very difficult to define unreasonable because it differs from case to case. For this reason, landlords define the restriction by putting terms in the lease that prevent tenants from causing disturbance and committing a nuisance to the other tenants by making too much noise, etc.

• Allow the landlord to enter the premises

Since the landlord is responsible for the premises, he/she has all right to the tenant’s or lessees dwelling. However, the landlord can not enter the tenant’s office space without prior notice.

Extension of Lease

Lease is a legal agreement and is binding upon the lessor and lessee for a certain period. After the lapse of the period fixed in the lease agreement lessor and lessee have few options available. The lessee may vacate the property or agree to renew the lease agreement. The terms of the original lease are still in force and only the duration is extended for a certain period.

Waivers

According to the Cambridge dictionary waivers means an agreement that you do not have to pay or obey something. Waivers are defined as follows: when the landlords know that the tenant is breaching the lease, yet conducts the landlord-tenant relationship in the normal course, then the court may infer that the owner has waived the breach. For example, landlords did not accept the security deposit of the tenants during lease agreement and allow him to stay without any security deposit then later on he or she can not claim security deposit from lessee or tenant.

Disputes resolution

Many times serious disputes arise between landlords and tenants. The lease will provide alternative methods such as mediation, arbitration or filling an action in court through which they can settle the dispute. However, landlord-tenant disputes are usually resolved out through representation of counsel from dispute resolution lawyers from each of the involved parties.

Following are the popular means through which landlord tenant dispute can be resolved.

• Arbitration

Arbitration is one of the dispute resolution processes where parties can resolve their disputes. A neutral third party is appointed to negotiate the disputes. The neutral third party is known as the arbitrator and the parties have to submit their disputes to arbitration. The arbitration can decide the resolution and the parties are bound by the decisions. Arbitration is more formal than mediation.

• Mediation

Unlike arbitration, mediation is not binding on the parties. Mediator is a neutral third party which helps the disputed parties to resolve the disputes. Arbitration and mediation are faster and less expensive than litigation in the regular court.

• Court

If the dispute is not resolved through the alternative dispute resolution then the parties may go for regular litigation in the court.

Miscellaneous

Apart from the above mentioned points, landlords and tenants must follow some miscellaneous rules or laws which are very important in a lease agreement.

• The terms of the lease shall be construed in accordance with the laws of India.
• The lease agreement shall be executed in two counterparts and the counterparts shall be deemed to be original. The lessee shall retain one set and the lessor shall retain another set.
• Lessee shall always observe and follow all the terms and conditions of the lease agreement. 
• Lessee shall not keep any good which is not permissible to be kept as per law.
• Any claim arising out of lease deed, or any breach or alleged breach thereof, shall be settled as per the terms in lease deed or through regular court.
• The lease agreement shall amend with the consent of both parties.

Do’s and Don’ts of a Commercial Lease Agreement

The right space for your office or business can make or break your success, especially if it is your first time lease agreement. You need to know the do’s and don’t of leasing before you hit the streets in search of a location for your business or office.

Commercial leasing do’s

• Consult Your Attorney: 

Commercial lease is a complex legal document containing several details and conditions. Unless you have a legal background, there is a big possibility you will miss something important in your lease deed, therefore, you must have your attorney’s review before you sign the lease deed.

• Negotiate:

Commercial space landlords always negotiate with tenants. In fact, most of the landlords intentionally inflate rental quotes to negotiate with tenants or lessees and to get good rent fees. So from a tenant’s perspective, it’s important to negotiate the landlord until it reaches an agreement.

• Check references: 

Many landlords will inevitably check your references, but you should also check your landlord’s references as well. If a landlord doesn’t live up to his responsibilities, he can become an albatross around your company’s neck. Therefore, before entering into an agreement you should verify the track records of the landlord.

• Value flexibility: 

Unlike residential leasing, flexibility must be the primary consideration for growing companies. Most of the time location will influence rental costs, a business on the move can’t afford to lock into a long term lease deed. If the business really takes off, you could find yourself stuck in an area that you have outgrown long ago.

• Location: 

Location is one of the factors responsible for the success of the business or office. Therefore before selecting a location for your business, things to consider are; will this location attract customers and employees? Is there any competition nearby? Does it make financial sense?

Commercial Leasing Don’ts

• Over lease: 

Often first time lessees make the mistake of leasing more space than they actually need. Space depends on the nature of your business therefore without any specific idea one must not lease a space. However, in most cases, it is better to have less space for a short period and retain the option of moving on as your business grows.

• Neglect lease details: 

One must not sign the lease in a hurry because, for a fixed duration, your activities will be limited to the conditions as per your lease agreement. In your eagerness to move into new space, don’t overlook the details of the lease. If a condition could potentially harm or restrict your activities at any point in the near future, discuss it with your lessor and amend the lease as per both’s convenience.

• Be discouraged: 

Landlords or lessors tend to view first time tenants or lessees with a certain amount of scepticism, particularly if this is the first time they have leased a commercial space. From a landlord’s perspective, due diligence requires them to check references and request credit reports about your business’ financial status. But don’t let the process bring you down. Compliance with the process is a necessary step toward finding a perfect location for your company.

Conclusion

A commercial real estate lease agreement is a binding legal agreement, the terms of which are pivotal in the survival of a business. The lease shall be prepared with careful consideration and ample time should be allowed for all stages of the lease negotiation and draftings. The lease agreement is the primary document referred to in the event of any dispute or disagreement between the parties to a lease. Therefore, a real estate attorney with significant leasing experience must be appointed to overcome many of the potential pitfalls that lurk within commercial leases. 

References 

• https://www.investopedia.com/
• https://www.commonfloor.com/guide/know-obligations-of-a-landlord-for-renting-out-your-property-5037.html
• https://smallbusiness.findlaw.com/business-operations/commercial-lease-agreement-overview.html
• https://aquilacommercial.com/learning-center/understanding-security-deposits-commercial-real-estate-leases/
• https://lawshelf.com/coursewarecontentview/duties-of-the-tenant

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This article has been written by Chandan Kumar Pradhan, from KIIT School of Law, Odisha. This article talks about the relation between International and Municipal Law.

Introduction

To understand the relationship between International Law and Municipal Law, it is important to know the link between the two laws. International Law is a set of rules and actions related to national behaviour. In other words, International Law is a set of rules that apply when States interact. On the other hand, Municipal law is also known as the National Law of the country. There are various theories to recognize the difference between these two laws.

Monistic Theory: Kelsen’s Grund norm theory  and Lauterpacht’s view

Why is Monistic Theory taken as the one power legal system?

Basically, ‘Monistic’ means the unity of the legal systems. This view believes that there is no difference between Municipal law and International Law. The people who follow this theory think that the science of law and the body of law is a single law that is International Law itself. 

In the Science of Law, there are two branches from a single body: the National Law and the International Law. This theory defines that International Law is superior to Municipal Law. Whatever legal work we deal with, whether National or International, all are meant to be dealt with by International Law itself.

What is the opinion of Lauterpacht on Monistic Theory?

According to Lauterpacht, Nation exists on its own. It is the individuals who are the fundamental components of society. The rights and obligations of the Municipal legal system can be transferred to the International legal system. For eg: Human Rights are available in national as well as in international legal systems.

National and International Law are not equivalent to each other, in the sense that rights and obligations under both National and International systems deliver the same purpose which is to promote the interests of the people.

How did Kelsen get some original documents on Monistic theory?

The students who were with Kelsen while he was researching this theory found a hypothesis solution. After detailed analysis, Kelsen got the documents which were necessary for the theory’s confirmation. Kelsen explains that monistic theory states that international law, as well as various state legal systems, constitute a unified system of law. 

The idea he points out is that “one can conceive of international law together with the state legal systems as a unified system of norms in exactly the same way as one is accustomed to regarding the state legal system as a unity.”

Those who do not follow this theory allege that Municipal Law is not in accordance with International Law and it appears that it will be more difficult to maintain the new laws due to the actual historical circumstances.

What is the Overall Opinion on this Monistic Theory?

Finally, according to Kelsen, he is the source of the final legal force of all laws based on the basic norms of International Law. His theory leads to the conclusion that all norms of International Law are superior to Municipal law. Municipal Laws that are incompatible with International Law are automatically recognized as invalid and do not apply.

Dualist Theory: Quote on Triepel

What opinions were given by H. Triepel?

A dualistic view of the relationship between Municipal and International Law is presented by H. Triepel in a more rigorous form in his textbook “ Völkerrecht und Landesrecht”.

What are some basic regulations for Dualist Theory?

There are no rules for transferring rights and Obligations from one system to another because the individuals are residents of a country and are subject to the National Law. In other words, there are various theories and subjects about National and International Laws. There are many situations where they come into an argument about which law is higher.

The person who advocates the dualism theory believes that there is no contradiction between Municipal and International Laws and that these provisions do not have the same goal. Internal rules apply only to national borders and cannot violate International Law.

In this situation, the International Law is valid only at the International level. In order to implement the International Law in a State, the State must submit them through a legal notice that facilitates the application. In both cases, people will face the nationalization of the convention at the International and National levels. 

Dualism teaches that National and International Law are two separate legal systems with the same International responsibility. These two systems have different legal sources. National law is used for issues inside a State and International Law is used for solving problems between two States.

How has the Dualist Theory been criticized?

Dualism has been widely criticized.

• Firstly, this view states that International Law and Municipal Law are different from each other as International Law cannot be part of Municipal Law and it also cannot be regarded as absolute state law unless it is explicitly enforced or amended by Municipal Law. This view is not true, because there are certain basic principles of International Law that link the state with its own will.
• Secondly, it is not true that International Law regulates only the relations between countries. It also governs certain personal actions. If people make certain mistakes, they can be punished in accordance with International Law eg: War Crimes.
• Thirdly, “Pacta Sunt Servanda”, which means agreement must be kept, is undoubtedly an important principle of International Law, but not the only principle on which it is based. There are certain rules which are legally binding on a state.

Article 38(1) of the Statute of the International Court of Justice (ICJ) provides three International Laws: Treaties, Customs and General Principles. Since the systems of International Law are horizontal and decentralized, the creation of International Laws is much more complicated than the creation of laws in the national systems.

Consent Theory (Common Theory) 

The evolution of this theory was given by John Locke and he derived a phrase from the theory that is- “Everyone is equal”. Several problems arose with this including treaties and customs not being the only sources of International Law. All provisions of the International legal system in this theory can be accepted by any party in a contractual agreement. 

Article 38(1) of the Tribunal Statutes states that “General Principles of Law recognized by many Civilized Countries” is the source of International Law. It helps Judges to further develop International legal content. This shows us that agreement is not always necessary for International Law to function.

The theory of consent is not fully applicable in the case of treaties. It is not important to have the third country’s consent while having an agreement with any other country.  So, in any of the States matter, no third country can interfere.

For Example: In Article 2 of the Charter of the United Nations, this theory justifies that the United Nations should have conditions that the third countries must act in accordance with principles of the UN Charter. So, Consent theory is mainly for the International Peace and Security among the sovereign countries, by which two countries can maintain an acceptable relationship with each other. 

Incorporation theory 

Article 103 of the UN Charter says that if there is any problem between the UN members under this Charter and their liability are under other International conventions, then they will be liable under this charter. 

The doctrine of the International Law automatically becomes part of Municipal Law, according to which Municipal Law is only part of International Law if recognized by the law or judgement. It is not entirely clear about the rules of customary International Law with regard to international treaties. 

Sovereignty has the authority to conclude or ratify treaties to bind Britain under International Law. However, these contracts do not affect Municipal Law until they are adopted by Parliament. But, Judges will sometimes consider the provisions of international treaties. (Eg: human rights issues) in the implementation of community law. European Community Directives have been said to have legal force in the Member States. 

Some Cases under the ICJ 

South West Africa case (Ethiopia Vs. South Africa) 

Facts 

In this case, on 4th November 1960, Ethiopia and Liberia, former State Members of the League of Nations, opened a separate process for the cases cited in South Africa for the continuation of the League of Nations mandate for South Africa. The Court was asked to explain that South Africa remained a mandate territory, it had violated its obligations under that mandate and therefore was under the legal authority of the United Nations. On 20th May 1961, the Court found that Ethiopia and Liberia had the same interests and joined the trial. South Africa has submitted four initial objections to the jurisdiction of the Court. At the judgement of 21st December 1962, the Court rejected them and confirmed their jurisdiction. After the defence was basically completed within the time limit determined at the request of the parties, the Court held a public hearing from 15th March to 29th November 1965 to hear oral arguments and statements and the second stage of the decision. 

Judgement 

The Court decided to reject Ethiopia and Liberia because they could not establish legitimate rights or interests in relation to their claims. 

Barcelona Traction case (Belgium vs. Spain) 

Facts 

In this case, the Barcelona Traction Light and Power Company Limited were incorporated in 1911 in Toronto (Canada), where it had its head office. 

To build and develop power plants and distribution systems in Spain, the company established a number of subsidiaries, some of which were located in Canada and some in Spain. In 1936, a subsidiary supplied most of Spain’s electricity needs. 

According to the Belgian government, a few years after the First World War it became clear that most of Barcelona Traction’s share capital was held by Belgian citizens, but the Spanish government rejected this claim. Barcelona Traction had issued several series of bonds, mainly in the form of sterling. Sterling bonds were served by Barcelona Traction, which was influenced by a subsidiary operating in Spain. In 1936, maintenance of crane bonds in Barcelona was terminated due to the Spanish Civil War. 

After this War, Spanish exchange control authority refused to allow the transfer of foreign currency needed to restart services on sterling bonds. When the Belgian government said that the transfer displays that the foreign currencies must be used to pay off debts from actual foreign capital from Spain, they did not confirm the currency exchange. 

Issues 

1. Does Belgium have the Jus Standi (right to bring an action) to have diplomatic protection for shareholders of Canadian companies? 
2. Does Belgium have the rights and jurisdiction to bring Spain to justice for the actions of Canadian companies? 

The judgement of the case 

The Court decided to reject this case which shows the difference between individuals who are inherently sovereign at the national and international level. The Court ruled in favour of Spain, as Belgium was not responsible for the war occurred in Spain, and diplomatic immunity was not granted to shareholders requiring compensation. 

However, a lawsuit may arise if the shareholder is located in Canada and has the correct identity. Therefore, since the country has not been given power, a person cannot take action against one Country. This case is considered as a good benchmark for Governmental requirements.

Application of Rule of Law in International Law  (India)

The British said that they were the originators of this concept when Sir Edward Cox stated that the King obeyed God and the Law, which would eventually abolish the Rule of Law in the business of the Chief Executive. Professor Albert Venn Dicey later developed this concept. He was an individualist. He wrote about the concept of the Rule of Law at the end of the golden age of Victoria Laissez-Faire in England. For this reason, the concept of Dicey’s law is useless.

The doctrine of the rule of law has been classified into three meanings in Dicey’s book. The three meanings include:

1.    The supremacy of law;
2.   Equality before the law;
3.   The predominance of legal spirit.

General principles of International Law

International law is a complex and evolving norm governing interstate relations. International law contains guidelines for the sovereign states, international organizations and some individuals. The range of issues directly addressed by International law covers the areas of human rights, trade, space law and international organizations outside of war, peace and diplomacy.

Rules/Principles

1. Direct and Indirect Discrimination;
2. Vulnerable Groups and Non-Discrimination;
3. Affirmative Action or Protective Measures for the Most Vulnerable Groups;
4. Education To Combat Discrimination.

Article 38(1) of ICJ’s statutes identify three sources of International law:

1. Treaties
2. Customary International Law
3. The General Principles of International Law i.e. jus cogens (Compelling Law)

General legal principles are recognized by civilised people and are defined by many countries and are also defined by the statute of the International Court of Justice as one of the most important sources of International Law. These principles basically deal with International issues that are arisen in any other Country. Any problem arising from International or Municipal Law with regards to these principles can only be solved at the International level.

Conclusion

National and International legal systems run in their own territory without any hypothesis of retaliation with each other. Both systems are essential and commonly supportive and also socialize with each other in an up-to-date context in relation to many issues. It is believed that International Law is higher than Municipal law because Monist theorists believe that International Law can solve any problems which have arisen within any State.

Kelsen also believes that International Law covers all aspects of human life. Monistic theorists view that International Law does not come under any Law, rather Municipal Laws are a part of International Law.

References

• https://lawaspect.com/relationship-international-law-municipal-law/
• https://internationallaw.uslegal.com/sources-of-international-law/general-principles-of-international-law-jus-cogens/
• http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/part-i-the-concept-of-human-rights/general-principles-relevant-to-international-law
• https://www.icrc.org/en/document/treaties-and-customary-law

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This article has been written by Sangeet Kumar Khamari from KIIT School of Law, Odisha. This article talks about the fundamental principles of International humanitarian law and its international conventions and contemporary developments. 

Introduction

International humanitarian law is that branch of the law of nations that seeks to impose limits on the destruction and suffering caused by armed conflicts. It lays down the principle of Article 22 of the Hague Regulations. A major part of International humanitarian law is contained in the Geneva conventions of 1949. 

Article 4 and Article 27 of the Geneva Convention occupy a key position among the Articles of the convention. It is the basis of the convention proclaiming as it does the principles on which the whole of ‘geneva law’ is founded. It proclaims the principle of respect for the human person and the secured character of the basic rights of individual men and women.

Most principles of the Humanitarian law include the principle of humanity, the principle of distinction between civilians and combatants, and between civilian objects and military objectives, the principle of proportionality and the principle of military necessity. These principles of law are recognized by civilized Nations and it can also be called as domestic law principle which is common to all legal orders. However because of the diversity of countries and their legal systems, only some of the principles can work well. Principles such as good faith and proportionality, which have also become customary law and have been codified, can be used in supplementing and implementing International Humanitarian Law. Other principles may be real to the ideal law and based on logic rather than a legal rule which has been implemented. If any kind of attack is prevented by imposing restrictions on the civilians, it is not law, but the logic that attacks should not be directed at a military object as it can harm the civilians.

History of International Humanitarian Law

In the Indian epic Mahabharat approx 400 BC, the Laws of Manu incorporated provisions outlawing the killing of surrendering adversaries who were no longer capable of fighting. These included people who were aged, soldiers who were injured and lost their hands, legs and any other body part likewise. Let’s take an example of a king named Hammurabi who was the king of Babylon. He drafted “Code of Hammurabi” thinking how to protect weaker civilians from the stronger ones. This code also says that the hostages shall be released on payment of a ransom.  

The modern world has placed its hopes in internationalism. Similarity alone is often the idea for universality, and in formulating and perfecting this law, the International Committee of the Red Cross has sought exactly this footing and suggests rules acceptable to all or any because they are fully consistent with human nature. Meanwhile, despite this universal concern to limit the suffering caused by war, the regulation of the impact of war had been attempted many times. 

The 19th century, however, was the instant in history when a movement won energy to codify the laws of war and when modern international humanitarian law was born. International lawyers ask the Lieber Code (a document written to control the conduct of the Union forces during the American Civil War) because the first example of the codification of the laws of war, named after Francis Lieber (1800-1872), a German-American professor of politics and law at Columbia University, New York, who prepared  on the behalf of Lincoln, a manual, which was enacted in 1863 for the Union Army of the US within the American war (1861-1865). This Code was the primary code with one set of instructions for forces within the field, governing laws of war and customs of war. The 157 articles of the Code were based on the ideas flowing from enlightenment, as it, for example, stressed that armed enemies should be attacked and the unarmed civilians and their properties should be respected and also the prisoners and the wounded should be humanely treated. One merchant named Henry Dunant from Geneva, Switzerland witnessed the fight of 40000 of Austria, French, and Italian soldiers during the Italian war for unification who were wounded on the battlefield of solferino in 1859.

Basic principles of International Humanitarian law

International humanitarian law has mainly two basic foundation principles. The Principle of Humanity and the Principle of military necessity. Finding the balance between these two principles is the role which can be loosely described by the legislature. The state shall adopt the convention regarding the international humanitarian law or contribute through their practice for the formation of customary international law rule that applies armed act. According to the principle of humanity, the state and the civilians or combatants should help each other and according to the principle of military necessity, the armed forces which are trained by the government of the state should always be ready for any type of dispute in the state.

Principle of Humanity

This principle specifies that all humans have the capacity and ability to show respect and care for all, even their sworn enemies. Modern International Humanitarian Law is not naive and accepts that harm, destruction and death can be lawful during armed conflicts, International humanitarian Law simply looks to limit the harm, and the principle of humanity is very much at the spirit of this ambition. Many rules of International humanitarian law are inspired by this idea, specifically those setting out protections for the wounded and sick.

Principle of Military Necessity

No principle is more central to the content and understanding of Military necessity. Military necessity, as understood by modern civilised nations, consists in the necessity of those measures which are needful for securing the end of the war, which are lawful according to the modern law.

Other Principles

These include principles like:

• The distinction between civilians and combatants,

• The distinction between civilian objects and military objectives,

• Necessity, 

• Prohibition on causing unnecessary suffering.

These principles are not based on a separate source of international law but are based upon treaties, customs and the general principles of law. These principles can be derived from the existing rules or expressing the rule substance and meaning and also they support the existing rule, inspire them and get an easy way to make them understand anyone. 

Specially Protected Persons and Objects

There are specifically protected persons and objects in International Humanitarian Law such as:

•  Medical and religious personnel and object,
•  Humanitarian relief personnel and object,
•  Journalists,
•  Some protected zones, 
•  Cultural properties, 
•  The natural environment, 
•  Work and installations containing dangerous forces, 
•  Personnel and objects involved in a peacekeeping mission.

Major weapons and IHL treaties associated with them

Distinction Between International Armed and Non-International Armed Conflict

Traditionally law of international armed conflict was applied to war only between states. The distinction between international and non-international armed conflicts can be explained by the history of the development of International law in general and International humanitarian law in particular. Additional protocols of the Geneva convention of 1949 dealt separately with international conflict and non-international conflict. Additional protocol I dealt with international conflicts. These treaties contain the rules relating to the conduct of hostilities and rule relating to the protection of those who do not take part. On the other hand, the non-international armed conflicts have limited number of treaty rules as mentioned above, they are restricted to common Article 3, provisions of the additional protocol II and Article 8(2)(c) and Article 8(2)(e) of the ICC statute.

International Conventions

The mine bar convention

The mine bar convention is also known as the “Ottawa treaty”. It was the result of the Ottawa process which was launched by the Canadian Government by following the first review conference for the 1980 conventions or conventional weapons which was not allowed on anti-personnel mine or not able to adopt far-reaching prohibition. An adaptation in December 1996 of UN general assembly resolution 51/45S which called upon all the countries to conclude a new international agreement prohibiting anti-personnel mines as soon as possible. The Government of Austria circulated a draft treaty to all Government and many international organizations so that there won’t be any problem and the meeting would be in peace. Normally exchange of views on the content of the Austrian draft took place in Vienna from 12th to 14th of February 1997. The government of Germany hosted a meeting inborn to discuss the verification of such a treaty on 25th and 26th April 1997. From 24th to 27th June 1997 the Belgian Government hosted the official follow up to 1996 Ottawa conference “The Brussels international conference for a total global ban on anti-personnel mines”. This was the largest ever gathering of the government to date for a conference devoted specifically to the issue of landmines where there were representatives of 154 countries. 97  countries signed the “Brussels Declaration” calling for a diplomatic conference in Oslo to formally negotiate a comprehensive ban treaty based on the Austrian draft text on the closing date.

Geneva convention

The Geneva Conventions and their additional protocols are the core of the International humanitarian law and also the body of international law that regulates the conduct of armed conflict and seeks to limit its effect. They specifically protect people who are not taking part in the hostilities like civilians, health workers, aid workers and those who are no longer participants in the hostilities like wounded and sick soldiers and prisoners of war. 

Vienna convention

This is an international agreement governing treaties between states that was drafted by the International law commission of the United Nations and adopted on May 23, 1969, and that entered into force on January 27, 1980.

The convention applies only to the written treaties between states. The first part of the document defines the terms and scope of the agreement and the second part lays out the rules for the conclusion and adopted treaties.

Contemporary Developments

From the last 1980s, the ICRC has put its energies into a measure to encourage governments to implement international humanitarian law and to teach its provisions at relevant levels within the state administration-notably. The ICRC also works with governments and national red cross and red crescent societies to promote knowledge of the law in academic circles, youth and the media.

Case: Hungary v. Slovakia, 1997, ICJ

In 1978 Hungary and Chekoslovokia signed the Danube treaty to build a dam jointly over river Danube, the construction of the dam then began. In 1989, Hungary wanted to revoke the terms and conditions of the treaty because of environmental concerns, lack of funding and also called fundamental change of circumstances. In 1993, the new nation of Slovakia started to negotiate with the Hungarian government and decided jointly to take the matter to the ICJ.

ICJ prima facie held that Hungary was liable on all the ground for not respecting the doctrine of pacta sunt servanda (agreement must be kept), and other treaty violations as contained in the Danube treaty. ICJ also found Slovakia guilty on one count. The court also held Slovakia liable for one ground, and it was the 1st in which the judges of ICJ actually want a spot to determine the environmental repercussions of the construction of the dam. 

Conclusion

The law of armed conflict looks torn between 2 contradictory impulses– the need, on to wage war effectively and the desire to protect people and property against the ravages of such warfare. The law of armed conflict tries to reconcile these impulses, in a very fundamentally pragmatic way. International humanitarian law compels States and non-State parties alike to try their utmost to guard and preserve the life, limb and property of civilians and others hors de combat (out of action due to injury), whereas at the identical time giving parties to a conflict leave to commit acts of violence among bounded boundaries.

However, once those boundaries are transgressed, once perpetrators of war crimes aren’t delivered to account for his or her transgressions, there’s a natural impulse to dismiss International humanitarian law as lacking any “real” normative force. This can be a visible response, however, it fails to understand the complexities of International humanitarian law.

Reference

1. http://iihl.org/full-list-congresses-international-conferences-round-tables-since-institutes-foundation/the-distinction-between-international-and-non-international-armed-conflicts-challenges-for-ihl
2. https://www.google.com/search?safe=active&sxsrf=ACYBGNTqN3vpfXDCl46aNGgMDTYE49Hd9g%3A1580720800709&source=hp&ei=oOI3XqSmKZmd4-EPvdiRuAY&q=principles+of+international+humanitarian+law&oq=principles+of+international+&gs_l=psy-ab.1.5.0l10.13678.28850..31511…2.0..0.246.3911.0j26j2……0….1..gws-wiz…..10..35i362i39j0i131j0i70i249j0i10.-FZ2pVMaofM
3. https://www.icrc.org/en/doc/who-we-are/history/since-1945/history-ihl/overview-development-modern-international-humanitarian-law.htm
4. https://www.google.com/search?safe=active&sxsrf=ACYBGNTR6cIqrU4z4k0ejpj68NDp1-SKAQ%3A1580732394674&source=hp&ei=6g84XoiUJ8z49QPZ_b34Bw&q=international+humanitarian+law+chapters hq=inter&gs_l=psy-ab.1.0.35i39j0j0i131j0j0i131j0l5.14193.15781..19995…3.0..0.153.640.0j5……0….1..gws-wiz…..10..35i362i39.i3AdYuGsIE8

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This article is written by Niharika Salar.

An LLM from overseas has become a fast growing trend amongst Indian students who tend to have varying opinions and expectations out of the same. For many students, a foreign LLM is the fancier approach to education while for others it is their gateway to the picture perfect job overseas. And then there are others who choose to go abroad for masters purely out of personal satisfaction.

Are you certain about doing an LLM from overseas? If yes, then read on (Even if not, do read on anyway, might help you with some perspective. Or so I hope.)

In my limited time of counselling students on Linkedin about foreign education, I have come across many students who want to do their Masters in Law from abroad, but don’t quite know about the subject they would like to read further. This approach can be worrisome. One thing every potential applicant is expected to keep in mind is that the course is called a Masters for a particular reason. An LLM is expected to add on your base of your knowledge due to which adding which area of law you would want to work on is of utmost importance.

While some candidates are aware of the subjects they would like to do their LLM in, others aren’t (which is very normal). To curb the same, I see many confused candidates making hasty decisions about specializations. I understand that it is very easy to get carried away when so many of your LinkedIn connections are doing a Masters abroad right after their undergrad. But always keep in mind that an LLM is not a race. It is for your personal profile and only you should decide the right time for an LLM. It is always a good idea to invest some time in figuring out your field of interest or just any subject you feel passionate about. I acknowledge the fact that an LLM from overseas is a privilege to have considering the finances it requires, due to which understanding the core idea and what you want out of your degree becomes very important.

What are the purposes of pursuing a foreign LLM?

Because an LLM can be demanding mentally, physically and financially, knowing the reason behind your LLM is very crucial.

Personal satisfaction?

There is a reason why I write about personal satisfaction first. In my humble opinion and experience, Indian education system does not teach you how to study and approach readings, let alone do good research. With my first semester at NUS completed and a dissertation due in a few months, I can say this with confidence. I have spoken about this to various Indian LLM candidates abroad and the concern is mutual. Indian education system was designed to produce good lawyers, but eventually with time and mushrooming of law schools, the quality of critical analysis has touched a new low. We are not taught how to approach readings (most of the Schools do not even have the concept of readings before coming to class) or to critically analyse the law. India is also constantly struggling with a lack of good faculty members and professors. In such a case scenario, desire for better legal education becomes an important reason for an LLM abroad.

Additionally, exposure and studying in a global environment play a key role in your personality development as a whole.

Furthermore, contrary to popular opinion foreign LLM is not about living a fancy and aesthetically pleasing lifestyle in a foreign country. It is about independent living, managing your expenses, cooking your own meals, doing your own dishes, living amongst various other nationalities, attending classes and dealing with immense academic pressure (if you have decided to take your masters seriously). This process will only make you a tougher and more independent person, once you are done with your course (which is a life-long asset, in my personal opinion). 

Job?

Most of the potential applicants hope to get absorbed in the jurisdiction they go to study. That is not always realistically true. With an abundance of Indians working in major countries and markets getting saturated faster these days, getting a job abroad requires persistent efforts. Having said that, it is also essential to understand that a job scenario is dependent on various factors. Someone with experience may find it relatively easier to find a job as an in house counsel in Singapore than a law firm. On the other hand, someone with an IP & Technology law background may find relatively more job opportunities in Singapore due to various upcoming tech startups and their increasing desire for tech legal professionals. 

Yet, law firms and organizations are not impossible to achieve. Many candidates who are determined to work overseas choose to complete a majority of their modular credits requirements in the first semester itself. This leaves them with an academically lighter second semester and more time to work part time, improving their chances to secure a job. If a job is your first priority, researching into what kind of employment is allowed by the student visa, conditions for conversion to a long term visa/employment pass, how open the said market is for foreign nationals and number of permitted hours of part time work during ongoing session can help you take a better call. 

With respect to job prospects in the UK, it depends on three factors-residency rules, previous work experience and qualification as per that jurisdiction. In the UK whether one is a foreign law graduate or local law graduate, one needs a specific course like LPC/BPTC to become a solicitor/barrister, both of them being essential qualifications to practise as a lawyer in the UK which an LLM does not provide. Having some years of experience say 3-5 years, helps the employer in making decisions. The graduate can apply for a qualifying transfer exam in the UK known as QLTS after 2 years of experience in any commonwealth nation and receive a solicitor licence. 

Finally, certain areas of law which share common principles such as corporate, IPR, ADR, taxation find it easier to secure jobs after some years of experience. Further most universities abroad do not have placement cells, one is supposed to network and find a job on their own. Hence it is a great idea to do an LLM after certain years of experience only in case one wishes to migrate abroad.

How to identify a university that fits your needs?

Now that you have finally taken a call, it’s time you do some (a lot actually) research on which University you want to go and fulfils your expectations out of the course.

LLM by coursework or LLM by research?

An LLM usually runs in the above stated two kinds. Most of the law schools in the UK have an LLM by research program where you are expected to study a given number of modules (better known as subjects in India) followed by a dissertation (approximately 15,000 words, may vary from University to University) on an area of your interest under guided supervision.

On the other hand, most of the law schools in the USA and Asia have an LLM by coursework program wherein you are expected to choose a given number of modules. Some universities offer the option of completing a dissertation as well which will be counted as a part of your modules.

What is your field of interest?

Universities specialise in various programs and are popular for particular subjects due to various reasons. Establishment of a dedicated research centre, reputed faculty, prior existence of the program, global rankings are a few but not all indicators. Not all Universities are good at all courses. Similarly a University may have a high global ranking but may not necessarily have the best faculty or modules to offer for the subject you want to specialize in. It is advisable to start your research by visiting every potential University’s official website and browse through their faculties, module structure and last but definitely not the least examination pattern. See what suits you the best and prepare an initial list accordingly.

Having said that, it is also necessary to note that many Universities offer a general LLM program wherein you are not bound by the number of subjects in a particular area of law you are expected to take.

Module selection

This is more or less in furtherance of the above mentioned discussion. Researching on what kind of modules you would like to study is of utmost importance when it comes to finalizing the University you would like to apply to. Getting to choose your own list of modules is one of the best parts about foreign LLMs. So if my specialization is Intellectual Property & Technology law, I have also opted for a completely different module titled ‘Climate Change Law’. Additionally, you are given an opportunity to audit a module. Auditing a module would mean you are allowed to attend lectures but you will not be given credits for the same. The same comes handy given LLM courses are very short and an ideal candidate would want to make the most of the various courses offered in the given limited time and credits.

Some Universities have modules which require moot courts and practical exercises like mediation or mock arbitration (as per the field of law) in order to complete the credit requirements. Other universities like National University of Singapore have pro bono services running, wherein students are required to visit NGOs and self-help organizations to provide them with legal advice. Students are given modular credits for the same. Some universities follow the concept of intensives courses, wherein visiting faculties/practitioners/experts from other renowned Universities and Law Schools in the particular study of law visit for a short duration to take a rigorous course on a tight schedule (hence the name intensive). NUS also offers the Directed Research module which requires students to complete an 8,000 word research paper under a supervisor.

As far as UK law schools are particularly concerned, universities usually prefer the traditional pen paper examination for as much as 70 % of total weightage of marks. Some universities like King’s College London require students to complete a writing project (anything from 10,000 words to 15,000 words with varying credits) and undertake coursework for optional modules. On the other hand Queen Mary University of London assesses students by a mixture of formal examinations and coursework in taught modules in addition to more self-directed work in completing their respective dissertations (restricted to 10,000 words).

These details will always be listed out on the official websites and chances are that you may blink and miss them, due to which every other foreign LLM blog out there emphasises on good research before the commencement of the actual application.

Talk!

Above anything and everything else, talking to as many people as possible is something which you cannot ignore. Talk to current students in universities you are aiming for. They are the best source to understand the situation as far as applications and after course life is concerned. Ask questions, but only after doing your reasonable homework. Nobody may be interested in answering basic questions like the documentation requirement for application purposes. That kind of information is just a click away and is everywhere. If somebody has agreed to answer your queries, use that opportunity wisely to answer smart and intelligent questions. Fostering relationships go a long way, especially in the legal field which is a very close knit community.

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This article has been written by Neha Mallik from VIPS, Delhi. This article talks about the legality of the use of nuclear weapons. 

Introduction

In this nuclear era, many States possess nuclear warheads. With the current dispute between the US and Iran, you have probably heard about nuclear weapons. Nuclear weapons are the most powerful weapons which could destroy the whole city in the blink of an eye. More than 90% of the nuclear warheads belong to the United Nation and Russia. There has been lots of talk about who can have them, use them, manufacture or develop them. It’s very important and interesting for anyone to know about the legality related to the use of such a massive destructive weapon. This article would give you an insight about the legality of the use of weapons and other relevant things which you should know.

Brief Description of the landmark case “Legality of the use of nuclear Weapons”

The World Health Organization was the first to raise the issue regarding the legality of the use of nuclear weapons before the International Court of Justice on 14th May, 1993. WHO asked ICJ to give an advisory opinion on the question “ in the view of the health and environmental effects, would the use of nuclears by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?” by adopting a resolution. Followed by this, on 15th December, 1994, the United Nation General Assembly, adopted a resolution requesting the ICJ to give advisory opinion questioning “What are the circumstances wherein the use or threat to use the nuclear weapons permitted under international law?” While refusing to address the question from WHO, stating that WHO is not an authorised body to ask this question, ICJ however responded to the request made by the United Nations General Assembly. 

Determination of applicable laws

In order to address the question relating to the legality of the use of nuclear weapons, it is imperative for the Court to consider the potentially relevant areas of international laws. 

• Human Rights- According to the fundamental principle of right to life “every human being has the right to life inherently. This right has been protected by every law. According to the provision in International Covenant on Civil and Political Rights (ICCPR)- no one shall be arbitrarily deprived of his right to life. Hence the right to life has to be conferred in war as well as in the peacetime. 
• Environmental Law- Considering the environmental laws, the Court mentioned two treaties. Firstly, Protocol I, which prohibits the employment of “methods or means of warfare that are intended, or expected to cause widespread and serious damage to the natural environment. Secondly, there is a provision in the Environmental Modification Convention which specifically prohibits the use of weapons creating severe effects to the environment. 

According to the principle of Rio Declaration and Stockholm Declarartion States have a duty to ensure that they would not indulge in any activity causing damage to the environment. Having said that, the duty not to cause transboundary harm is a customary law and secondly to use the nuclear weapons in wartime the States need to evaluate the necessity and proportionality in the military activities. 

The International Court of Justice in its advisory opinion discussed 5 substantive questions

• Do any treaty or customary law authorize or talk about the use of nuclear weapons?

The Court established that no treaty or customary law explicitly or expressly authorizes the use of nuclear weapons. Considering the principle established in the Lotus Case, “States are free to threaten or use nuclear weapons unless it can be shown that they are bound not to do so”. Furthermore, the Court went to analyse if any treaty or customary law universally prohibits the use of threat in nuclear weapons.

• Do any treaty or customary law contain absolute prohibition on the use or threat to use nuclear weapons?

The Court turned to the nuclear weapons treaties in order to ascertain whether any treaty makes the threat or use of nuclear weapons per se prohibited or not. Furthermore the Court differentiated the poison weapons with nuclear weapons as the treaties related to poison weapons would not be applicable to nuclear weapons. The Court found out that almost all the nuclear treaties address the acquisition, manufacture, possession or testing of nuclear weapons. Eventually the Court concluded that no treaty contains absolute prohibition on the use or threat to use nuclear weapons. 

In terms of UN Charter, that is considered to be the most relevant law relating to this subject and armed conflict, it also does not expressly prohibit the use of nuclear weapons. According to the provisions under Article 2(4), Article 42, and Article 51 of the UN Charter the legality on the use of force is silent on certain weapons. Moreover other humanitarian law treaties that govern mass destructive weapons also do not contain absolute prohibitions.

Talking about the customary laws mirroring the treaty analysis the Court determined whether any customary international law provides per se prohibition on the use of nuclear weapons? ICJ found out that the State practices and opinio juris relating to the use of nuclear weapons differ from State to State. Since world war II, many States encouraged the non use of nuclear weapons and adopted the cold war policy. As a matter of fact there is no conventional or customary rule per se prohibiting the threat or use of nuclear weapons. 

• Compatibility with international humanitarian law and other relevant laws 

So far the Court has observed that there is no provision in the International Law that authorizes or per se prohibits the use of nuclear weapons, further the Court examined whether the laws relating to the use of these weapons are consistent with the laws applicable to armed conflicts including International Humanitarian Law and UN Charter.

• UN Charter- Though the UN charter neither expressly permit nor prohibit the use of nuclear weapons, the same however asserts that for a threat or use of force to be lawful as per Article 51, the use of these weapons shall be proportionate to the armed attack and necessary. 
• International Humanitarian Law- The Court is in the opinion that even if the use of nuclear weapons is lawfull, still it must comply with the provisions of laws applicable to armed conflicts, humanitarian laws and other relevant laws. 

• Situations in case of self defense 

Article 51 of the UN Charter states the provision regarding the use of nuclear weapons in pertaining to self defense. There are certain restrictions to the right to self defense:

• Firstly, for the act considered to be an act of self defence, the use of force must be in self defense only. 
• Secondly the defending State is required to report the measures taken in order to protect itself to the Security Council of the United Nation. 
• And last but not the least the measure taken for self defense must be in conformity with the customary international Principles of necessity and proportionality. 

It is argued that proportionality is impossible as the different weapons have unique destructive capabilities. As a matter of fact, the proportionality is analysis considering the factors like destructive capabilities, the heat and energy that would be emitted using the weapons, the radiation that might be released, the potential a weapon has in destroying the ecosystem, the effect it can cause to the environment and other such factors. Concisely, these standards should be kept in mind while exercising the right of self defense. 

• Promotion of nuclear disarmament

After critical analysis, the Court is in the opinion that the States should continue to have negotiations and agreements towards nuclear disarmament. For environment protection and human welfare, the States are legally to go for such negotiations that bring nuclear disarmament. 

Principle of Neutrality

The principle of neutrality is one of the customary international laws which is very imperative to be considered while talking about the armed conflicts. Neutrality is a formal status given to a State which is not a party to an armed conflict. This principle gives rise to rights & duties to both neutral and belligerent States. The States which are neutral have the right to remain separate from the conflict and to get harmed. The neutral States are protected against the effects of nuclear weapons and are assumed to comply with the duties of impartiality. So again, it is imperative to take the principle of neutrality into consideration while discussing the legality of the use of nuclear weapons.

Environmental Law and Self defence

It is known to everyone that the destructive nuclear weapons create long-lasting damage to the ecosystem. It is indispensable on the part of the State to take environmental considerations into account in order to measure the degree of necessity and proportionality in the pursuit of self defense. So even if the use of nuclear weapons is not illegal one should respect the environment law by complying with it. As in the landmark ICJ opinion, “Legality of the use or threat to use the nuclear weapons”, the Court recognized the duty of the State not to cause the transboundary harm and also observed that the environment is one of the important factors that must be considered while evaluating necessity and proportionality limiting the scope of the latter principle. This not only draws balance between the justified use of force in case of self defense but also creates a sense of respect towards the environment. In the opinion of the Court, incorporating environmental concerns into the law of armed conflict is essential. Under this approach, a belligerent State could harm the ecosystem in self defense only to the extent of the harm which is necessary and proportionate to the legitimate military activities especially the use of nuclear weapons. Concluding it, it is must to draw balance between the two important doctrines of self defense and environmental laws.

Ban on the testing of nuclear weapons

The race of nuclear warheads amongst the States has reached a dangerous level. Moreover, there have been a lot of public protests happening against testing of nuclear weapons. The nuclear weapons are tested to carry out experiments to determine the effectiveness and destructive capabilities of the weapons. These are being tested in atmosphere, underground or even underwater. It is evident that nuclear weapons tests have had serious implications on health and the environment, Hiroshima Nagasaki nuclear test being one of the great instances. The discussion concerning the ban on nuclear testing has been going on for a long time. There exists many treaties against the testing on nuclear weapons, Partial Nuclear Test Ban Treaty and Comprehensive Nuclear Test Ban treaty being some of them.The treaty has been signed by more than 180 nations. Although countries like India, North Korea and Pakistan have not ratified it yet. Let’s talk about some treaties briefly.

Nuclear Non-proliferation treaty

The NPT objects to promote nuclear disarmament and to prevent the spread of nuclear technology. It is a landmark International treaty which had been opened for signature in 1968. Currently more the 190 countries have joined the treaty including the 5 nuclear weapon States i.e. US, U.K, France, Russia and China. 

The NPT acts as a cornerstone of the global proliferation regime. The treaty also promotes cooperation in the peaceful uses of nuclear energy.it is noted that 2020 is the 50th anniversary of the NPT.

Limited Test Ban Treaty (LTBT)

The Limited Test Ban Treaty, also known as Partial Test Ban Treaty is a treaty which prohibits testing of nuclear weapons in the atmosphere including the outer space and under water. 

Comprehensive Test Ban Treaty (CTBT)

Comprehensive Test Ban Treaty, unlike LTBT, bans nuclear explosions everywhere. With more than 190 signatories the treaty has not entered into force as it needs to be ratified by at least 44 specific nuclear technology holding States as per Article XIV of the treaty. 

Conclusion

Wrapping up, I would like to highlight that despite various steps have been taken to promote complete disarmament, there is no absolute rule which absolutely prohibits the use or threat to use nuclear weapons. Having said that, it is imperative to take strict measures to control the use and test of nuclear weapons so that the environment can be least affected and health hazard due to the radiation of these weapons can be reduced. 

References

• https://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf 
• Hans M Kristensen, Matts Kordes, US Department of States and Stockholm InternationalPeace Research Institute
• UN Charter
• International Covenant on Civil and Political Rights

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This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the Jurisdiction in International Law and the Jurisdiction of the States.

Introduction

Jurisdiction is a practical authority given to a legal body to deal with legal matters by implications. In Public International Law, the concept of jurisdiction has a strong link with sovereignty. Jurisdiction allows State for sovereign independence which they pass on with the global system of equal States stating the laws related to persons or activities in which they have a legal interest. 

Territorial Jurisdiction of the States

It is derived from State sovereignty and constitutes several features. It is the authority of the State over persons, property and events which are primarily within its territories.

State Authority has the power to prescribe, enforce and adjudicate the Rules of Law.

The territorial jurisdiction of the State extends over to its with:

1. land,
2. national airspace,
3. internal water,
4. territorial sea,
5. national aircraft,
6. national vessel,

It does not only encompass the crime committed on its territory but also the crimes that have effects within its territory. In such a case, a concurrent jurisdiction occurs. 

Case law

Liechtenstein v. Guatemala

In this case, Nottebohn a german lived in Guatemala for 34 years. He has his German citizenship and then he also applied for Liechtenstein citizenship a month after the outbreak of World War ll. 

The application was approved by Liechtenstein. After this approval, he travelled to Liechtenstein and during his return to Guatemala he was not allowed to enter because he was deemed to be a German citizen. Liechtenstein filed a suit before the court on Guatemala to allow him as a citizen. 

The Court held that granting citizenship is solely the concern of the granting nation. But in this case, there is no relationship between Liechtenstein and Nottebohn. This happened because of the war that they became two nations. Hence, the court said that Nottebohn wasn’t forced by the Guatemala country to recognise him as a citizen and in result, the suit was dismissed. 

UK Vs. Norway (North Atlantic Fisheries Case)

In this case, the UK requested the International Court of Justice (ICJ) to determine how far Norway’s territorial claim extended to sea and to provide some compensation because Norway interfered in the fishing vessel of the UK and also claimed that Norway’s claim to such extent was against International Law.

The Court held that Norway’s claim to the waters was consistent with the International law regarding the part of the sea space.

Criminal Jurisdiction

Criminal jurisdiction is where the powers of the Court are described in dealing with a case where a person is accused of an offence. Criminal Jurisdiction is used in many laws like Constitutional Law and Public International Law.

The three distinct situations where only the accused person can file a suit are:

1. To control the relation between States, or between one State and another;
2. To control the relationship between the Federal Courts and Domestic Courts;
3. Only where he has committed the offence and not in any other State. Also, the law of that State should be a codified law.

Case Law

SS Lotus Case (France v. Turkey) 

In this case, there was a declaration by Turkey over the French citizen who was the first officer of the ship that collided with a Turkish ship on the High Sea. It was challenged by France as a violation of the International law.

The Court stated that Turkey has the authority to arrest the French officer under the Treaty of Lausanne. It also stated that if someone challenges the jurisdiction of a Sovereign State, then the burden of proof will lie on the plaintiff.

International law is a system of freedom- countries can act in any manner which is not expressly prohibited. This case is reviewed as a high mark of positivism; that the State must keep control over sovereignty.

The Court also stated that France and Turkey had concurrent jurisdiction over cases arising abroad on a French flag vessel on the high seas. Many treaties have overruled these and said that only the flag State has jurisdiction.

Types of Criminal Jurisdiction

Territorial Jurisdiction

This includes the geographical boundary of a court’s jurisdiction. We can take an example where the Municipal Courts do not have jurisdiction over the crimes that occur outside the city limits. Let us understand this with a case law.

Mubarak Ali Ahmad Vs. The State of Bombay

In this case, Mubarak Ali with a dishonest intention made a false representation to the complainant in Bombay saying that he has a ready stock of rice so that the applicant should send the receipt of money to the complainant who was anxious to import rice urgently and to receive the amount on the belief of such representations. It was contended on the grounds that the Pakistani national, during the period of the commission of the offence has not stepped in India and he was in Karachi, so he cannot be tried in the Indian Courts nor he can be held punishable under the Indian Penal Code. In the extradition proceeding the trial which is pending in a court cant be tried for the second time. Hence the conviction was unsustainable. 

The Court held that all the ingredients constituting the offence of cheating under Section 420 of the Indian Penal Code have been done in Bombay, even though the offence is committed there and though the applicant was not present in India during the commission of the offence, his conviction is valid under Indian Penal Code.

As the appellant surrenders to the Indian Authorities under the Fugitive Offenders Act, 1881. There is no such provision in this Act preventing arrest in India for trial of a fresh offence. His conviction was valid. The appellant who was a Pakistani national was convicted for cheating in business under Section 420 of the Indian Penal Code. 

Director of Public Prosecution vs. DOOT

In this case, the defendant was charged for unlawful acts which are for the import of dangerous drugs into the UK. Defendants counsel said that they shouldn’t be tried in England because the offence was committed abroad.

The Court held that the respondents were aliens which had a secret plan to import Cannabis in the U.K.

The House of Lords stated that English Courts have jurisdiction over the offences committed in England.

Lord Wilberforce, in this case, stated that it constitutes international elements- that the suspect were aliens and an unlawful act is done abroad. 

Hence, there is no question that if there is any breach in the rule of the law then they will be prosecuted in the country where the crime has been committed.

Nationality Jurisdiction

This principle permits a country to exercise its criminal jurisdiction over the nationals accused of criminal offences in other States. In the UK it is generally limited to treason, murder and bigamy committed by British nationals abroad. Hence common Law countries never protested against the extensive use of the nationality principle to decide jurisdiction in criminal matters by other States.

The two types of Nationality Jurisdiction are:

Active Nationality

• This principle is for the protection of interest of the State from abroad.
• Strict application on territory could be harmful to the peaceful existence of international society. 
• The State has its fundamental right to apply its laws to prosecute illegal conduct.

Passive Nationality

• Treaty-based passive nationality is more effective than Statute based passive nationality.
• Jurisdiction can be exercised by the State where the offence took place.
• This has been opposed by common law States but due to the transnational crimes, it gets approved.

Universality Jurisdiction

The Universality principle implies that a State can claim jurisdiction over certain crimes committed by any person from anywhere in the world, without any relation to territory, nationality or special State interest.

Before the Second World War, the Universal Jurisdiction was considered as similar to the International Law by the common law countries, except for the acts which were regarded as crimes in all countries and crimes against the international community as a whole such as piracy and slave trade. After the Second World War, Universal jurisdiction has been universally identified over certain acts considered as international crimes(war crimes, a crime against humanity, genocide).

International crimes committed against the international community are punishable under International Law. Under the universality principle, each and every State has jurisdiction over the international crimes that are committed by people.

The Schooner Exchange v. McFaddon 

In this case, There were two Americans who laid down their claims of ownership and entitlements to the Schooner Exchange.

The Court held that the national ships during the war are free from any obligation imposed due to the friendly relations with another State. A nation’s jurisdiction within its sovereign territory is exclusive and perfect.

Protective Principle

It is also a type of criminal jurisdiction, but we will deal with this principle separately.

The protective principle identifies that a sovereign State can adopt a statute that criminalises act or any conduct which occurs outside the borders and where that conduct affects the sovereign State. Under this principle, a nation can adopt laws related to crimes which obstruct the functions of government or pressurize its security.

Article 51 of the UN Charter

Article 51 provides the countries to engage in self-defence and against an armed attack. A case relating to Self-Defense is:

Nicaragua Vs. USA

In this case, In 1979, when a pro soviet government called the Sandini States came to power in Nicaragua, the US authority were alarmed, as this was the height of the cold war.

In 1981, the Reagan administration decided to support the rebel forces in Nicaragua called Somosistas, who was a USA citizen.

The Central Intelligence Agency ran extensive illegal and secret operations targeting the Nicaraguan army and air forces, supplied arms, ammunition, money and frequently kidnapped Nicaragua citizens.

Nicaragua citizens brought a case against the USA for violating the Treaty of the UN Charter.

The Court held that US contested that ICJ did not have jurisdiction to hear this case but ICJ nevertheless proceeded with the case because of the 1955 treaty of friendship between Nicaragua and the USA.

The ICJ found out that the USA had knowingly and intentionally violated the provisions of the UN Charter, general rules of International Law and had clearly violated the territorial sovereignty of Nicaragua.

In 1992, because of tremendous pressure Nicaragua took back the complaint and unofficially apologized to the US Government. 

Abdul Kader Mahomed Jhaveri Vs. Union of India

In this case, the petitioner was a foreign national and a citizen of the Republic of South Africa. The passport issued by the Republic of South Africa on the basis of which he came to India and in the meantime passport expired and again he asked the Republic of South Africa for the issue of a new passport which was still valid.

The respondent who is the authority, initiated the legal proceedings against him for the breach of the provisions of the Foreign Exchange Regulations Act, that he is not a citizen of India but a resident of India.

He carries on his business activity in India. But had done without the permission of the Reserve Bank. And it was contended that the petitioner should be penalised for the breach of the provision. Due to the pending proceedings, the passport has been seized by the respondent. The petitioner contended that the seizure was null and void and without the permission of any jurisdiction. So the respondent should be directed to return the passport.

The commission of inquiry headed by Justice Shah stated that the period for which the passport was impounded cannot be said to be definite and certain and it may extend for an indefinite time. This would clearly make the validity of an order unreasonable and the validity of the passport of the petitioner is confirmed by the Central Government. The duration of the validation will not exceed more than period of six months from the date of the decision that may be taken on the petitioner’s representation.

Cross Frontier Jurisdiction

In this, the Court may recognize jurisdiction over any conduct that applies outside its jurisdiction. 

While taking any legal action of disputes between multiple parties and those other parties who will be examined, similarly in various jurisdiction in which proceedings to resolve the disputes may properly be commenced and the decisions from the outcomes will be made in such location. 

Achille Lauro Incident

The US had originally planned to charge the terrorists with piracy under its Criminal Code of 1909 “whoever, on the high seas, commits a crime of piracy as defined by the law of nations, will be brought into or if found in the United States, shall be sentenced to imprisoned for life.” 

This would be a problematic situation because the US government follows International Law, specially Law of the Seas, 1982 which states that if a ship is seized for any political purpose then it’s not a piracy. Due to the murder of the passengers and crew members of the ship, the US government can claim jurisdiction under passive personality principle and can accuse the terrorists under Crimes Act, 1970. 

1994 Israel-Jordan Peace Treaty

Under which the Israel criminal laws are applicable for the Israelii nationals and the activities only involve them in the specified areas. Under Jordan’s sovereignty, the measures can be taken in the areas by Israel to enforce certain laws. 

Principles of this Treaty

• Borders– The international boundary separates between Israel and Jordan which follows the Yarmouk River and the Gulf of Aqaba. 
• Diplomatic Relations and Cooperation– parties were agreed to establish full diplomatic and consular relation and grant visas, seaports, etc. This agreement prohibits hostile information.
• Security and Defense- Each country promised to respect their sovereignty and territory and not to enter in other territories without any permission.
• Water- Israel and Jordan develop their water reservoirs and can help each other. And also for additional water, Israel agreed to help Jordan.
• Palestinian Refugees- Both countries agreed to help the refugees. 

Multiple Jurisdictional Grounds

Tokyo Convention 1963

It is also known as the convention on offences. Tokyo Convention can be applicable for the offences against the Penal Laws and Acts that risks the safety of the persons or property on board civilian aircraft while in flight and engaged in international air navigation.

This conference was for the purpose of further consideration, finalization, adoption and opening for the signature of Rome Draft. Sixty-one States and Five International Organizations were present at this conference. 

Montreal Convention for the Suppression of Unlawful Seizure of aircrafts against the safety of civil aviation

It is a multilateral treaty by which States agree to prohibit and punish, who threatens the safety of civil aviation. It only applies exclusively to civilian aircrafts but does not apply to customs, law enforcement or military aircraft.

This convention criminalises the following behaviour:

• If an act is committed on a person who is onboard an aircraft and is likely to endanger the safety of the aircraft.
• Destroying or damaging such an aircraft in such a way which is likely to endanger the safety in flight.
• A device of substance placed or for causing destruction or damage to an aircraft.
• Any information which is known to be false, thereby endangering the safety of an aircraft in flight. 

It lays the principle of aut dedere aut judicare that the party to the treaty must either-

1. Prosecute a person who commits one offence.
2. Send the individual to another State that requests extradition for the prosecution of the same crime. 

What are the conflicts that arose in Jurisdiction?

• The jurisdiction of the State is parallel with the jurisdiction of another State. More than two-State can exercise the jurisdiction against the same person or on the same matter.
• Even the State having territorial jurisdiction cannot claim over the States having custody over the accused.

What are the Immunities from Jurisdiction?

Sovereign Immunity

It refers to the legal rules and principles which determine the condition from which the State can claim the exemption of sovereign immunity from the jurisdiction of another State.

This immunity is a creation of the customary international law which is derived from the principles of independence and equality of sovereign States.

Diplomatic Immunity

The rules here are most accepted and uncontroversial rules of International Law. This helps in the maintenance and conduct of the relations between the States.

Diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State.

Consular Immunity

The consular officer is like a diplomatic agent who represents the State who will be receiving State.

Not granted the same degree of immunity from jurisdiction as a diplomatic agent.

Conclusion

However, the individual State plays a leading role in the worldwide organisation in spite of having multilateral agreements and centralized agreements. There must be friendly relations between the States to avoid conflicts on the territorial borders. Territorial jurisdiction and State jurisdiction plays an important role as it is very important to follow all the rules stipulated in different provisions. 

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This article is written by Muskaan Garg from Symbiosis Law School, Pune. This article explains the international principle of jus cogens and the various instances of its existence and authority. It also encircles the various views and important cases around the matter.

Introduction

Jus cogens, also known as the peremptory norm, is a fundamental and overriding principle of international law. It is a Latin phrase that translates to ‘compelling law’. It is absolute in nature which means that there can be no defense for the commission of any act that is prohibited by jus cogens. These norms, though limited, are not cataloged. They are derived from changing social, political attitudes and major case laws and are not defined by any authoritative body.

This principle aims to seal the slightest suppression of any law in any form and manner. 

Idea of development

The idea of universal jurisdiction and individual responsibility for violations of international law developed largely with the laws of war. A major step in the development of universal jurisdiction for jus cogens violations is the War Crimes Convention which requires states to provide for universal jurisdiction. The War Crimes Convention enumerates war crimes and expands the definition of crimes against humanity as set out in the Nuremberg Charter during World war II.

What is Jus Cogens?

Jus cogens or peremptory norm means a body of fundamental principles of international law which binds all states and does not allow any exceptions. It is basically a compilation of norms that lays down the international obligations which are essential for the protection of the fundamental interest of the international community and any violation of these norms is thereby recognized as a crime against the community as a whole.

It is binding upon all the members of the international community in all circumstances. Jus cogens imply absolute restrictions on genocide, slavery or slave trade, torture or other inhuman treatment, prolonged arbitrary detention, and racial discrimination. Any activity or treaty carried out by the states or international organizations that contradict human dignity and rights will offend the concept of jus cogens and thus, be void. It can be said that jus cogens exist to protect and uphold human dignity and rights.

Origin of the doctrine

It stemmed from the idea of a binding law which would be in alignment with natural law and would render contrary customs and treaties invalid. This idea led to the existence of hierarchical superior norms that would invalidate the treaties and customs. The doctrine of Jus cogens was initially defined in Article 53 of the Vienna Convention on the law of treaties 1969. It was later stated as a customary principle but Article 53 of the Vienna Convention, however, contains no reference to any element of practice.

What is Jus Positivism?

Jus positivism, when translated from Latin, is legal positivism which refers to the human-made laws that define the establishment of specific rights for an individual or group. It is basically the laws made by the state for the swift, efficient and proper functioning of the state itself.

Difference between Jus Cogens and Jus Positivism

 The only difference between jus cogens and jus positivism is that the former is a set of norms applicable internationally while jus positivism is the phenomena of formulating laws for the state which shall be applicable within the state only.

Jus cogens and jus positivism stay at debate since their applicability is contradicting each other. Jus cogens are mandatory, constant and binding on all states irrespective of their consent while jus positivism is not binding and can be changed from time to time. An aspect of universal jurisdiction is personal jurisdiction by all states over the alleged violator of such crimes, hereby keeping the norm of jus cogens at a higher pedestal than jus positivism.

Article 2(6) and Article 53 of the Vienna Convention 

Article 2(6) of the Vienna convention deals with the definition of a ‘contracting state’. It mentions that ‘contracting state’ means that a state has consented to be bound by the treaty, whether or not the treaty has entered into force. It is in regard to the non-parties of the UN and states that they shall act in accordance with the principles so far as may be necessary for the maintenance of international peace and security. It is a mandatory provision and has set a limit, determined by the general interest of the international community.

Article 53 of the Vienna convention is the origin of the principle of jus cogens. It states that a treaty is void if, at the time of its conclusion, it conflicts with the peremptory norm of general international law. The norm should be accepted and recognized by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character.

Article 64 of the Vienna Convention 

Article 64 of the Vienna convention deals with the emergence of a new peremptory norm of international law. It states that if a new peremptory norm of the international law emerges, any existing treaty which is in conflict with that norm becomes void and is terminated.

Criticism of Jus Cogens

This principle has been mainly criticized for its superiority, practical implementation and the obligation upon the states to follow it:

• The doctrine of international jus cogens developed from the principles of natural justice. These norms are actually a set of rules where no derogation is allowed under any circumstances and they cannot be abrogated. They are argued to be hierarchically superior because the power of a state to make treaties is subdued when it confronts a super customary norm of jus cogens. The point of criticism being that these norms are putting limitations on the ability of states to change or introduce an international law.
• The second point of criticism being about the consent and obligation of states to follow the norm. The states which are a part of the international community have to mandatorily comply with the norms, regardless of their consent and their individual opinion to be bound. They are not provided with an option to choose since these rules are too fundamental for states to escape responsibility. States consider these rules to be so important to the international society of states and to how the society defines itself that they cannot conceive  an exception and cannot, therefore, escape liability.
• As known, international laws and decisions only have an advisory role and none of their provisions are enforceable as the law of any state. Hence, when it comes to the enforceability of jus cogens, the states under an obligation have not initiated any noticeable provisions for the implementation of the same which raises numerous queries on the existence and requirement of the widely recognized norms.
• Problems also remain as to the application of the norm, in terms of which rules must necessarily be covered under the said norms. There were serious doubts concerning the fact that the norm could be misused in interpreting the rules to be covered under jus cogens.

Oppenheim’s view 

Professor Oppenheim of Cambridge University has republished treatise in his name for nine editions. His treatise begins with major definitions and works towards all aspects of international law at a time when not much was certain and progressive about international law.

In his book, he mentioned that a number of other universally recognized principles of international law existed in the jus cogens with the capability to render any conflicting treaty void and therefore, the norm of jus cogens was unanimously recognized as a customary rule of international law.

Therefore, obligations which are at variance with universally recognized principles of International Law cannot be the object of a treaty.

Bosnian Case: View of Justice Lauterpacht 

In the case of Bosnia and Herzegovina v Serbia and Montenegro [2007], Serbia was alleged to have attempted extermination of the Muslim population of Bosnia and Herzegovina which led to violations of the Convention on the Prevention and Punishment of the Crime of Genocide, thereby invoking an article of the genocide convention. It was unanimously held in this case that Serbia was neither directly involved nor was complicit in it but it rather committed a breach of genocide convention by failing to prevent it from occurring, he genocide convention being a part of jus cogens.

In this case, Justice Lauterpacht was in favour of the decision and defined jus cogens as a concept which is superior to both customary law and treaty as it stands on the very fundamentals of natural law and humanity. He also associated jus cogens with the general principles of law and said that irrespective of its origin, jus cogens encircles all the fundamentals of a necessary law at the international level and hence, is the superior-most in  hierarchy. 

Views of Prof. Michel Byers and David Kennedy 

Professor Michel Byers quoted a somewhat similar definition as that of Professor Oppenheim. He focused on  conceptualizing the relation between jus cogens and erga omnes rules. Erga omnes obligations are those in which all states have a legal interest because the subject matter is of importance to the states and the international community as a whole. In case of a breach in these obligations, every state is considered justified in invoking responsibility upon the guilty state that committed the internationally wrongful act.

According to David Kennedy, jus cogens was termed as the super-customary norm. In fact, there are two views which dominate the foundation of the concept of  jus cogens. The first view is that jus cogens originated directly from international law and the second view is that it is based on one of the existing sources of international law.

Customary international law is an aspect of international law involving the principle of customs. It basically means that the principles and reasonable ideologies which the society has been practising since time immemorial should be given the status of international law and should remain operational  at all times and circumstances.

Hence, terming jus cogens as a super-customary norm justifies both the concepts of the foundation of jus cogens.

Nicaragua case

In the case of the Republic of Nicaragua v. the United States of America, the U.S. decided to plan and undertake activities against Nicaragua. Armed interventions were led by the U.S. in Nicaragua and they also undertook the military and paramilitary forces in and against Nicaragua.

It was held by the International Court of Justice that the U.S. could not rely on collective self-defense to justify its use of force against Nicaragua. The United States violated its customary international law obligation of not to use force against another State when it directly attacked Nicaragua. The Court has also noted that while it may be aware that political aspects may be present in any legal dispute brought before it, the purpose of recourse to the Court is the peaceful settlement of legal disputes. The Court of Justice upheld the essential justiciability of even those disputes raising issues of the use of force and collective self-defense.

This case introduced the principle of opinio juris in international law, which states that it is an opinion of law or necessity. It is a necessary element within customary laws and acts as a defense as if the acts have done were of necessary or lawful opinion. In this case, it was noticed that the actions of the U.S. were not in alignment with this principle.

Pablo Najera case

An early decision referring to the concept of jus cogens is the Pablo Najera case where the issue was an arbitral award named Pablo Najera between France and Mexico. The question of the concerned case was the registration of treaties and sanctioning of invalidity in the event of non-registration. Mexico had raised the issue of non-registration by France in the Franco-Mexico compromise as a preliminary objection. The President of the Arbitration Commission characterized the obligation as non-derogatory and used the principle of jus cogens to justify it.

Conclusion

The jus cogens norm has retained its strong position since 1969. The principle of jus cogens has generated hope that developing standards of law would result in a higher realization of justice in domestic actions and in an enhanced outlook for justice, peace, and cooperation among nations. A major result of that hope has been the increasing vitality of the principle of jus cogens and its developing dominance in international law. The use of jus cogens in human rights actions should overcome the court invoked barriers to redress the grievances and should act as a compelling factor in the progressive enforcement of human rights.

References

• https://ruwanthikagunaratne.wordpress.com/2012/11/15/nicaragua-vs-us-case-summary/
• https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1011&context=scujil
• https://books.google.co.in/books?id=04swDwAAQBAJ&pg=PA9&lpg=PA9&dq=Pablo+N%C3%A1jera+(France)+v+United+Mexican+States+facts&source=bl&ots=rZxVHiAcIF&sig=ACfU3U1dxBMb-w2a_0uYCAfs2V6c63Z-wQ&hl=en&sa=X&ved=2ahUKEwjVz4qH4bjnAhXDZCsKHUWpCBYQ6AEwB3oECAcQAQ#v=onepage&q&f=false

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This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article talks about the International and State-sponsored terrorism.

Introduction

The term terrorism is so far reached to have a diverse point of view in the context of the human intellect of an individual. Generally, terrorism comes with a lot of violence involved and extracts an ample amount of human resources. The act does not just affect people at large but the globe’s harmony as well.

Terrorism is never unintentional, its a full-fledged strategy to create a state of terror or fear within the nationals of a particular State. A terrorist attack is more than just a violent act because the perpetrator is mostly induced by some sort of political or religious ideology and to impose the same, they take this path of violence. 

History

The word terrorism came from the Latin term “terrorem” which means panic, alarm and great fear. Terrorism got a boost after the famous French Revolution from 5th September 1973 to 27th July 1794 which is well known as Reign of Terror. This took place because the government executed the suspected mass with the motive of intimidating their opponents.

Objective

Their main reason to establish that fear within the population comes with a sense of complexity where a weaker group trying to establish their supremacy over a targeted powerful nation by unethical means. Besides that, the perpetrator intentionally tries to provoke the particular state so that it retaliates back with rage and that is how they meet their success.

State-sponsored terrorism

Meaning

Having said about the adverse effects of terrorism, State-sponsored terrorism in literal terms means any terrorist attack backed by the Government itself, of a particular sovereign State, against another State as a revolt. State-sponsored terrorism can be both domestic and international as well. Any revolt or terrorist attack against any other State comes within the ambit of international terrorism but when the act is against its people, it is domestic. And the sole reason behind coming up with this concept is to satisfy some political extremisms overlapping religious ideologies as well. 

Terrorism is no more a niche concept, almost every corner of the world by now has experienced terrorism in some way or the other. Now that we know much about terrorism it’s evident that the commencement of terrorism in another State requires strong support and funding. So in the case of State-sponsored terrorism, we can commonly derive that: a government plays a major role in assisting the terrorist groups by aiding and funding them deliberately. And the countries assisting the terrorist groups in simple terms are categorized as terrorist States or the State sponsor of terrorism. 

Primarily the US counterterrorism policy focused on State-sponsored terrorism and under Section 6(j) of the Export Administration Act of 1979 the States which mostly support international terrorism are classified as State-sponsored terrorism by the Secretary of State. 

According to the present index, the U.S. government has identified Iran, Syria, Sudan and North Korea as countries with governments that sponsor terrorism in the international market. Whereas it’s the president’s responsibility to designate or to dismiss the terrorist States from the designation whenever it may think fit. 

Countries in the top list among the States sponsoring international terrorism

Iran 

The famous agreement that took place on the 15th of July 2015, between the United States, Germany, the European Union, the United Nations, France, China, the Russian Federation, and Iran agreed upon a Joint Comprehensive Plan of Action (JCPOA). Basically in the agreement, Iran assured of having a peaceful nuclear program to which if Iran is successful, the negotiating parties including the United Nations have to raise economic sanctions in this Iran’s nuclear context. But after the appointment of the new president, Donald Trump in the U.S., he refused to be a party to the agreement from May 2018 onwards and imposed rules for reestablishing sanctions restricting the trade, transaction, and investments that would anyway profit in Iran’s economy. However, this looks like a strategy of the U.S. so that it can be in the good books of the international market and indirectly showcase Iran’s support in international terrorism.

Sudan 

The government of Sudan was declared as a state sponsor of international terrorism by the Secretary of State of the U.S. under President William Clinton in the year 1993. Even after that, president again declared about the Sudan’s constant support in the international terrorism plus was found making efforts to weaken the neighboring States’ i.e the U.S. government, was constant in its action of violating human rights, had a practice of slavery, no freedom to any religious practices and the list goes on. These factors gave rise to a national emergency within the State, the nation’s security and the economy was at stake. 

But with time the relations between the two States took a new shape after a description made by the State department about Sudan’s cooperation in managing counterterrorism which made the U.S. president Obama to resolve all the disputes in context of which he even issued an outlook about the U.S.- Sudan relations based on Sudan’s efforts in reducing offensive military activities, pledging to cease warfares in the territory of Sudan, constant efforts in creating an atmosphere of humanitarian throughout Sudan and taking measures cooperating with the U.S. government in eradicating regional conflicts and threat of terrorism as well. So this brings about ending all the national emergencies within both the States and lifting most of the sanctions.

North Korea

The government of North Korea was designated as a State sponsoring international terrorism by U.S President Donald Trump in 2017. According to the facts, the designation’s reason was the death of Kim Jung-Un’s half brother by the nerve agents at a Malaysian international airport. In addition to that, North Korea was a hub for nuclear weapons. There was a time in late 2014 when North Korea could see a ray of hope as to regain its designation when the U.S. executed a cyberattack at North Korea in context of Sony Pictures because since 2008 during the period of George W. Bush who removed the terrorism designation misguiding it with multinational negotiations to disable and dismantle North Korea’s nuclear program. Since then it has always existed as a question whether North Korea comes within the criterion of having been designated as a State sponsoring international terrorism or not. But yes it got its designation on 21st November. 

Siriya

The government of Syria was designated as a State sponsor of terrorism in the year 1979 because the Syrian government had a continual political and military support to various terrorist groups. The Lebanese Hizballah (LH) was evidently supported by the Syrian government in the supply of weapons and political support. The Assad regime had a lot of opponents because of which it grew its relationship with the LH and Iran for help. Iran and the Syrian government showed massive support to each other. The U.S. alleged that the Syrian government was in continuous use of chemical weapons against the Syrians which violets the obligation laid under CWC. The current happening was in the year 2017.

Sanctions to counter State-sponsored terrorism  

Primarily in the 1970s and 1980s, the U.S. counterterrorism policy focused on the State-sponsored international terrorism and designated States as State sponsor of terrorism under section 6 (j) by the Secretary of State. So to counter this issue we have sanctions like:

• Restrictions or ban on products that are of critical technology or can be used for different purposes under the Export Administration Act of 1979.
• Ban on foreign import and export business of bank credits and guarantees assisted by the U.S. under the Foreign Assistance Act of 1961.
• Ban on the use or licenses over the use of any article mentioned in the U.S. Munition Control list under the Arms Export Control Act.
• President to impose a ban on the import of goods and services from the States designated as a State sponsor to international terrorism under the Antiterrorism and Effective Death Penalty Act of 1996.
• Disqualified for the generalized system of preferences under GSP, the Trade Act of 1974.
• U.S. representatives are not to assist any loan or financial support in the international financial institutions to the terrorist State under the International Financial Institutions Act, 1977.

International terrorism

International is the wider angle to the former concept of State-sponsored terrorism. State-sponsored terrorism is a subset of international terrorism and every violent attack with a motive to impose one State’s religious or political ideology over another comes within the ambit of terrorism. Basically, every terrorist attack has some international presence to it. It is a fact that there’s no such statutory legal definition to act of international terrorism but it’s impossible to not to have a proper plan to counter such violence. So the Secretary-general comes up with a report of A/73/125 in the context of eliminating international terrorism and uplifting the human rights values.

With the growing rate of terrorism with globalization and advanced communicating forms its getting easy for the perpetrators and terrorist groups to spread the terror across the world plus they are being supported by some of the States as well. The terrorist organizations find their way out to reach the population by entering into the territory with the help of the supporting States and are supplied with weapons as well. Generally, the terrorist organizations target the weaker government so that they will be successful in a lesser period. All these funds they acquire either by way of abductions or illegal trades. 

The supreme terrorist group 

The topmost terrorist group responsible for most of the terrorist attacks is the Al-Qaeda which was formed and headed by the leader Osama Bin Laden who was killed by the U.S. in an operation. The group is believed to have directed the attack of 9/11 in 2001 and many more. But the leader’s death did not deviate the group’s command in any way. In fact, they soon are increasing in number and spreading all over the world and are mainly targeting the Middle East and North Africa. So they have a tie-up with different other States such as Libya, Algeria, Mali, Iraq, Egypt and Syria who can easily access the national borders and commence the act of terrorism.

And reports say they have acquired a large number of weapons during the collapse of the Gadhafi regime in Libya.

They’re deliberately inspiring the Islamic groups which were no way connected to the Al-Qaeda group but now are party to it. Which is increasing with time and getting difficult to deal with preventing it.

Hijacking 

In layman’s term, hijacking is simply a seizure of an aircraft or vehicle, land and any other transmissions which are in motion.

Hijacking generally happens in an airplane where the perpetrator tries to diversify the way of destination to get their work done. Maybe it is an abduction or seizure of any article. This not only restricted airplanes but also ships, trucks and any other transport carrying loads of valuable articles. And the U.S. even has a definition of hijacking as “any illegal theft occurring in any means of transport in transit”. In the mid-1950s, the term broadened and included the hijacking of ships carrying legitimate cargo. 

As hijacking is no more restricted just to airplanes so the airplane hijacking is now termed as skyjacking. The first case of skyjacking occurred in 1931 in Peru and one more case occurred in 1948 on a flight from Macau to Hong Kong where the plane crashed into the Pacific Ocean and 25 people got killed besides this, there are many more cases like this.

Steps were taken to prevent hijacks 

• In early 1963, the United Nations came up with an idea to sign an international convention in order to eradicate hijackers unlawfully seizing aircraft. But this took a long time and finally 50 countries agreed to comply with the convention.
• In the year 1973 U.S. in the Federal Aviation Administration tried to put up some magnetometers to keep a check on the luggage of the passengers while they entered the aircraft in order to detect metal weapons if any. 
• And ever had set up X-ray machines so that there’s no way left for the perpetrator to carry any weapon inside an aircraft.
• Appointment of commandos to avoid any kind of mishappenings.
• In the year 1978, a group of 7 summit meetings took place in West Germany where the U.S., Italy, France, Canada, Japan, Great Britain, and West Germany instituted a sanction against countries providing assistance to the hijackers.
• Plus in the same year, the European Community ( EC ) agreed to boycott the airline or countries that entertained hijackers.

Conclusion

Everything discussed under the topic of terrorism, is not only violent but in some way or the other is abusing the human resources at large. The act itself is so grave that every human’s life, liberty, physical integrity is at risk including the perpetrators unaware of the consequences of their acts. As there are fewer ways to control the action, we are left with just the absolute remedy that is to respect the rule of laws for the world’s fight against terrorism. 

References

1. https://www.history.com/topics/france/french-revolution
2. https://legcounsel.house.gov/Comps/The%20Export%20Administration%20Act%20Of%201979.pdf
3. https://www.armscontrol.org/factsheets/JCPOA-at-a-glance
4. http://www.understandingwar.org/report/assad-regime
5. https://legcounsel.house.gov/Comps/The%20Export%20Administration%20Act%20Of%201979.pdf
6. https://legcounsel.house.gov/Comps/Foreign%20Assistance%20Act%20Of%201961.pdf
7. https://legcounsel.house.gov/Comps/Arms%20Export%20Control%20Act.pdf
8. https://www.congress.gov/bill/104th-congress/senate-bill/735
9. https://ustr.gov/sites/default/files/uploads/factsheets/Trade%20Topics/Trade%20and%20Development/GSP/GSP%20statute%2019%20USC%202461%20et%20seq.pdf
10. https://legcounsel.house.gov/Comps/International%20Financial%20Institutions%20Act.pdf
11. https://www.un.org/press/en/2018/gal3566.doc.htm
12. https://www.faa.gov/
13. https://www.britannica.com/event/Reign-of-Terror

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This article is written by Aryan Kashyap from Lloyd Law College, Greater Noida. This is an exhaustive article covering aspects of gaining and losing nationality as well as the concept of dual nationality, all in reference to the International context.

Nationality

In law, nationality refers to the membership of a nation or a sovereign state in addition to the political rights and other privileges accompanied with it. E.g. American Indians were referred to as non-citizen nationals before the Native American Citizenship of 1924 was passed. Often confused with citizenship, nationality, is a different concept. Individual persons, corporations, ships and aircrafts, all have a nationality, but for legal purposes only.

The UNs Universal Declaration of Human Rights (1948) stated that nationality is an inalienable right of every human being and no one shall be deprived of his/her citizenship. It is nationality which brings all the individuals under the purview of international laws.

Main theories related to Nationality

Active Nationality Theory 

Generally deemed non-controversial, it states that a state enjoys the right to exercise its jurisdiction over its nationals, even when they are in a foreign territory. When obeying private International laws (The obligations of a nation with respect to other countries ), the national laws always tend to follow an individual beyond the boundaries as far as his personal status is concerned. Hence, the court must compulsorily follow International laws, at the same time make sure that they are not violating domestic police laws or any public order.

When referring to criminal laws, the principle refers to jurisdiction to adjudicate, whether a state can adjudicate a crime committed abroad? This becomes even a bigger issue when the convict changes his/her nationality. A criminal might escape charges by the change of their nationality after they have committed the crime.

An act might be a crime in one state and somewhere else in the world it could be just another everyday activity, thus making you immune from any punishment. Eg. In Arkansas, an individual cannot play more than 25 free games if he continues to win, whereas this might not be the case somewhere else in the world.

It is a highly debated topic whether a state can follow its own criminal jurisdiction on the basis of the nationality of the accused. The U.S Supreme Court and some authors have raised their concerns. It is a concern of international law about how the states treat their nationals. Critics to this view say that it is the state’s duty under international laws.

Passive Nationality theory

A state at times assumes extraterritorial jurisdiction over foreign nationals if the person who has suffered damages is it’s national. The idea behind the exercise of passive nationality is to fulfil the duty of a state to protect its nationals from the damage suffered by them in case the alien state fails to punish the offender.

It is still a matter of dispute whether the nationality of the victim and the jurisdiction purview should befall under the ambit of international law. It is viewed as the most aggressive basis of extraterritorial jurisdiction. Donnendieu de Vabres– A famous French Jurist criticised the passive theory saying it is just a means of the powerful states to satisfy their power egotism over the weaker states.

The biggest drawback of this theory is that the defendant is unaware of what laws will be befalling upon him and it might be a serious crime in some other state, thus deeming this theory quite unjust for the defendant.

Statelessness

Doesn’t sound a big enough issue for you? The United Nations High Commissioner for Refugees (UNHCR) defines a stateless person as, “an individual who is not considered a national by any state under the operation of its law”. In layman’s terms, it refers to a person devoid of the nationality of any state.

Statelessness stands against the morale of Universal Human Rights. It deprives the masses the early comfort of a cradle and the late peace of the grave. I urge my readers to watch this short video from the 2014 UNHCR report, this will make the concept much easier for you to understand.

What are the biggest causes of statelessness? 

The UNHCR report estimates approximately 10 million people to be stateless around the world. Overlooking the rapidly rising global population, these numbers would have increased. The biggest causes are:

• Visible Discrimination 

States might discriminate amongst their people on the basis of their race, religion, ethnicity, language or even gender. The states can amend their laws based on some discriminatory criteria, capable of deeming the whole population stateless.

It is observed that the majority of the stateless populations belong to a minority group. Gender discrimination is viewed as one of the main causes of childhood statelessness. E.g. Laws of countries like the Middle East, North Africa (12 states), Sub-Saharan Africa (inclusive of nine states), Asia (4 states) and the Americas (2 states).

• Carelessly drafted laws

All the countries have laws which set down the procedure and conditions of how individuals acquire the nationality of the particular state. Many a time it is not well researched and not quite well drafted thus excluding some sections of people as a whole, who are then labelled as stateless.

• The advent of new states

The emergence of new states and change of frontiers, though provides a chance to attain the nationality for all the ethnic, racial and religious minorities. It has certain potholes which leave space for mistakes. The stateless individuals are unable to provide their linkage to the countries. This has even bigger provisions, for states where nationality is passed on the basis of lineage. It deems an entire generation of people to be stateless.

• Being born in a foreign country

A child born in a foreign territory faces the potential risk of being stateless if the parent nation does not provide nationality based on birth alone. In other cases, there might be laws barring the child from attaining nationality because of being abroad.

• Loss or deprivation

Living outside your homeland for a long duration of time can also make you lose your nationality.

• Failing to prove their links to a state

If an individual is unable to prove their linkage to a state in terms of basic certificates like birth certificates, land papers etc.

Consequences of statelessness

1. Leads to lack of education (even at a basic level).
2. Lack of medical facilities.
3. Unemployment.
4. Unable to avail basic services like banking.
5. Unable to buy houses, lands or any sort of estates.
6. Ineligible for marriage.

How can you help?

So you feel for the cause of more than 10 million helpless people but are not sure how you can help. Well here are some insights that might help you.

UNHCR is determined to end statelessness by 2024. There are a lot of ways you can contribute to this cause:

• Join and be a part of the UNHCR’s campaign #IBELONG Campaign to end this injustice. You can follow this link and visit UNHCR’s official website to explore this further. 
• You can donate to support the stateless people. You might feel that it is not enough. But we must always remember, drops came together to form an entire ocean. Your little contribution can metamorphose somebody’s life.
• Sign UNHCR’s open letter to end statelessness.
• The power is in your hands! With powerful platforms like Facebook, Twitter, Instagram, LinkedIn etc. you can reach the masses and raise awareness. The masses are unaware of the problem. You can share short and effective videos like this one here and ask your peers and relatives to share it further. 
• You can share the story of the people you might know who have been facing any such problems. Share templates like these shedding some light on statelessness.

Human Rights and the procedures available for their enforcement

What are Human Rights?

There are some basic human rights which are enjoyed by any individual anywhere in the world. It is for one and all, regardless of these:

• Race
• Sex
• Nationality
• Ethnicity
• Language 
• Religion
• Any other such status

What all does Human Rights include?

• Right to Life.
• Right to Liberty.
• Right to Freedom.
• Right to Slavery.
• Right to Torture.
• Right to Freedom of Opinion.
• Right to Expression.
• Right to Work.
• Right to Education.

Everybody is entitled to enjoy these basic human rights, anywhere in the world.

International Human Rights Law

The International Human Rights Laws are a set of obligations and duties which all the states are supposed to follow compulsorily for the upkeep and protection of the spirit of Fundamental rights of all the people. Humanity has faced slavery for like forever now, it is time to bring a change, bring equality.

One of the biggest achievements of the United Nations is that it has broadly defined a wide range of internationally accepted rights like:

• Civil rights.
• Cultural rights.
• Economic rights.
• Political rights.
• Social rights.

These rights are not just widely accepted but are also well laid down so that the states can carry out their responsibilities effectively.

The foundation stones of these laws 

 Charter of the United Nations (1945)

It is the constructive instrument of the UN, which puts in place the duties of the member states, establishing the principal organs. The Charter consists of a preamble and 111 articles incorporated into 19 chapters. They are:

1. Chapter 1 sets forth the purposes and principles of the UN.
2. Chapter 2 establishes the criteria for UN membership.
3. Chapter 3 names the six principal UN organs.
4. Chapter 4-15 defines the functions and powers of these organs.
5. Chapter 16-17 relates to the UN to existing international law.
6. Chapter 18-19 defines the amendment and ratification of the Charter.

The Universal Declaration of Human Rights (1948) 

The most translated document in the world, the UDHR has been translated into over 500 languages. It is also the source of inspiration for the newly independent states and the fresh democracies. It is the first such document of its kind in human history. It stated for the first time that rudimentary Human rights must be protected universally.

 The UDHR works together with these bodies:

• International Covenant on Civil and Political Rights: this has its own optional protocols to be followed on the following:

1. Complaints procedure.
2. The death penalty.

• International Covenant on Economic, Social and Cultural Rights (ICESCR): this too has its optional protocols from the International Bill of Human Rights. 

Procedures of enforcement of Human Rights 

Several mechanisms of the UN have come up. We are going to shed some light on the main organs which help in the due process of enforcement of Human Rights:

Committee on Economic, Social, and Cultural Rights (CESR) 

It is an organ of the United Nations Economic and Social Council (ECOSOC). The main purpose of this organ is to keep an eye on the states and watch if they are fulfilling their obligations.

1. Articles 16 and 17 of the ICESCR requires the states to prepare and submit a report on the ESCR situation of their country.
2. The CESR then analyses to what extent are the rules being followed in any state.
3. If a country refuses to provide a report on the ESCR situation then it can overlook the situation and obtain the resources using alternative sources.
4. After these processes, the CESR then analyses and releases its own inputs, matters of concerns and recommendations.

High Commissioner on Human Rights 

It is the sworn duty of the high commissioner to:

• Protect human rights.
• Promote human rights.
• Ensure uniformity of human rights in all UN’s activities.
• Encourages states to develop policies and institutions conducive to human rights.
• Provide technical assistance to the state’s machinery to achieve these goals.

The Human Rights Council, Special Procedures and Working groups 

This body substituted the Commission on Human Rights as the primary UN body charged with monitoring and evaluating the state of Human Rights in countries across the world. It also finds solutions and highlights the issues. 

The processes include:

• A system of special protocols.
• Expert advice.
• A complaint procedure.

The council meets at least thrice a year, functions under:

• A plethora of working groups.
• Special procedures.
• Open-ended working groups.
• Individual complaint mechanism.
• Communication of urgent appeals or letter of allegations.

The United Nations Human Rights Treaty Mechanisms 

There are various treaty mechanisms, with the help of these organisations the UN is able to efficiently instill the basic human rights. 

These bodies are:

1. Women and ESCR
2. Corporate Accountability
3. Strategic Litigation
4. System of Solidarity (SOS)
5. Social Movements and Grassroots Groups
6. Economic Policy and Human Rights
7. Monitoring 
8. OP-ICESCR

Acquisition of Nationality

All the State’s and even the International Bodies have laid down certain provisions on how someone can acquire the nationality of any country. Nationality is acquired most commonly on these grounds:

Nationality by Birth 

Being born in a country qualifies you to be a national of the respective country. This is usually referred to as Jus Soli. It is a Latin term, its literal translation is “right of soil”.

The states which follow the principle of jus soli, allow the individual to acquire the citizenship of that particular state on the virtue of being born on the state’s territory. This is provided despite the citizenship or the immigration status of the respective individual’s parents.

By descent from a State’s National 

This is known as the principle of Jus Sanguinis. It is derived from a Latin term. It literally translates to “Right of Blood”. It means that the citizenship of the parent is the pre-determinant of the child’s citizenship.

The countries which follow this principle provide citizenship on the basis of birth provided that the individual’s parents were legally settled citizens of the respective country. This ensures that the citizenship passes from the parent to the child.

By Naturalization 

The process by which a foreign citizen becomes eligible to acquire the nationality or citizenship of any country. It usually requires the individual seeking the same to fulfil certain requirements and perform certain protocols to be eligible for the same.

The rules and protocols for naturalization vary from country to country. The most common element can be the requirement of a promise to obey and uphold the country’s law and respect the constitution.

Nationality by Marriage 

Individuals need not keep renewing their visa and burning a hole into their pockets for the sake of love. Foreign individuals have the opportunity to be a permanent citizen of the state where your significant other might be. This is known as a citizenship marriage.

The Hague Convention on Conflict of Nationality Laws (1930) laid down certain provisions regarding nationality by marriage. Chapter 3 of the same talks about the Nationality of married women. The main articles of these laws are:

• Article 8: On the occasion of marriage, if the wife’s national laws cause her to lose her nationality, the consequence of the responsibility completely befalls upon the wife to acquire the nationality of the husband.
• Article 9: If the national laws require her to lose her nationality when she acquires the nationality of her husband through marriage. The consequence of the act shall be on the condition of her acquiring her husband’s new nationality.
• Article 10: If the situation where a husband is naturalized, the change in the wife’s nationality is not possible until and unless without her full consent.
• Article 11: In case of marriage dissolution, the wife shall be ineligible to recover her previous nationality. She can only do so in accordance with the respective country’s laws. If the wife is successful in regaining her previous nationality, then the nationality acquired by virtue of marriage shall be deemed void.

Nationality by Adoption 

This is also referred to as intercountry or transnational adoption. This is very similar to any normal adoption procedure, just in an international context. By the virtue of this measure, an individual or a couple can be deemed legal parents of a child belonging to a foreign nation.

There are certain protocols to be followed before this can be granted. The individual or couple will have to be eligible. The eligibility criteria for the child are:

• The parents (either Couple or individual) must be permanent citizens of a state, either by birth or via naturalization.
• The child must be under 18 years of age.
• The child must be a permanent citizen of the state from where he is being adopted.
• The child must be under the legal custody of some guardian in his/her state.

Nationality by Cessation 

The literal meaning of cessation is the process of ending or bringing to an end. When we talk about nationality by cessation, we refer to the cessation clauses which were expressed in the conference of Plenipotentiaries held in 1951. This conference laid that an individual must not be provided refugee status any longer than it is absolutely required. This had to come to a halt in accordance with the terms and conditions of the statues. 

The cessation of refugee status thus comes into play when the refugees have successfully availed the protection of their country of origin or any other country of which they are nationals of now. Article 1F of the convention addresses these conditions in which an individual is no longer eligible to enjoy the benefits of refugee protection.

Loss of Nationality

Also known as loss of citizenship, this refers to the situation wherein a citizen stops or ceases to be a lawful citizen of the country. This term is an umbrella shelter for both:

Voluntary loss of citizenship 

Means relinquishing one’s nationality. The prime focus here is on the voluntary part. Almost all the countries have set-up their own set of rules for the formal relinquishment of their citizenship. There are countries which do not allow that as well, they tend to trap their nationals in an endless loop of administrative red-tapism.

Involuntary loss of citizenship 

States have certain provisions regarding nationality. If a citizen fails to adhere to these then his/her citizenship can be cancelled. It can happen due to a lot of things like someone failing to retain their citizenship. However involuntarily losing one’s citizenship, is not immediate, it has to undergo a series of actions to revoke someone’s citizenship.

Indian Citizenship Act on the loss of Nationality

• Section 10 of the Citizenship Act, 1955 talks about the deprivation of citizenship. 
• This article states that any Indian citizen by naturalisation or by the virtue of Article 5 of the Constitution or by registration under any other circumstances other than clause (b).

Following the provisions laid down under this section, the Central Government is authorised to deprive an Indian national of his citizenship, if the following conditions apply:

1. When the nationalisation or the registration certificates were obtained by unlawful means- fraud, false representation, hiding any piece of evidence related to these.
2. That citizen by means of his expression is proven to be disloyal towards the spirit of the Indian Constitution and the established laws itself.
3. If a citizen, during a war, tried or tries to or unlawfully communicate with an enemy or was by any means related to them.
4.  Associated in any business or under his senses assisted an enemy.
5. If within five years of the period after naturalisation, the individual had been sentenced for a period of at least two years.
6. The citizen has been a foreign Indian National, for a continuous period of seven years. If during that period, he was not enrolled as a student with any educational institution or a part of Government service in an International Organisation.
7. The Centre shall not deprive any individual of citizenship until and unless they are confirmed that this is conducive for the Public good.
8. Before an order is passed under this section, it is mandatory for the government to inform the person against whom the order is passed. This must be in writing. If the order falls under the jurisdiction of sub-section (2). Then this case has to be referred to a committee of Inquiry under this section.
9. The Central Government must refer this case to the Committee of Inquiry, which must have a chairman (a person who has held a judicial office for at least a decade) in collaboration with two other members appointed by the Central Government.
10. The Inquiry Committee must submit its report to the Central Government. The further orders shall be guided by such reports as it was ordered under this section.

 By Expatriation

An expatriate refers to a person who is residing in any other country rather than his native country. Expatriation is a voluntary right which a citizen of a country can exercise on the basis of his discretion if required. It means renouncing the nationality and allegiance of a country without any constitutional consequences.

Generally, this term refers to the professional and skilled working-class (for private entities or government organisations) or even artisans who work outside their homeland.

The main theme here is that it is voluntary, and the decision rests on the conscience of the citizen.

Renunciation of Nationality

Renunciation refers to the voluntary act by virtue of which an individual can relinquish one’s nationality. It simply means to give up. Most countries do provide their citizens with this right.

There can be a lot of reasons for people to renounce their citizenship. 

The most common reasons are as follows:

• People might dislike their country’s laws. The field of law is humongous and so is the world population. Although the jurists try their best, there is still some gap, it is always not possible to appease all the sections of society. Thus there can be sections of people unhappy with some laws.
• There can be personal reasons as well as political ideology clashes. The respective countries might be engaged in a war.
• Taxation laws of a country can be a big reason. If the taxation system extracts too much from its people, the citizens might want to renounce their citizenship. One of the most popular examples of this is the wide discontent amongst the U.S citizens for their tax laws.

Loss of nationality by Substitution 

Some states have the provision of providing and taking away the nationality on the basis of substitution. This happens when an individual loses the nationality of one state (his nation) and is able to attain the citizenship of another state.

Different states have different protocols. Some states will cancel your citizenship if you acquire a job in a foreign nation without following government sanctions.

Loss of nationality by Expiration

This does not exactly refer to the loss of nationality, because it is more emotional rather than political. Your citizenship might expire when you stay in a foreign nation for too long.

The concept of Double Nationality or Dual Nationality

When more than one country regards an individual as its citizen, it is called dual citizenship. Dual citizenship occurs because different countries have set-up varied methods for granting citizenship.

A person who holds dual citizenship generally enjoys the rights of citizenship of both countries. These rights can be:

• Right to hold passports.
• Right to vote. 
• Right to residence. 
• Right to work.
• Right to enter the country, etc.

The person is not just entitled to enjoy the rights, he is obliged to conduct certain duties like:

• National civil service.
• Subject to the taxation system of the country, etc.

Pros and Cons of Dual Citizenship

Dual citizenship is a complex concept and has many provisions. If there are many rights and powers to be enjoyed, there can be many setbacks as well.

The pros of dual nationality 

• The benefits: Dual citizenship can provide a citizen with certain benefits. It depends upon the laws of the nation-states. They get to vote, they get to be a part of multiple social service programmes, eligible to hold multiple offices in both states. 
• Multiple Passports: The process of getting your passport can be a long and tedious task, full of multiple runs to the passport office and lots of red-tapisms. Thus marking this benefit as the most important one. This lets the traveller evade questions related to the purpose of the trip, reasons for a long-stay. This can be very beneficial for frequent flyers, businessmen and students.
• Property Ownership: You can hold estates thus opening multiple alternate earning sources which can be financially beneficial.
• Political Security: In case of a violent break out in one of the countries, you still have a back-up option to rely on. You can rush to this safe-house with your family for their safekeeping. 
• Healthcare Benefits: Some countries have excellent medical facilities in addition to insurance facilities being amongst the other perks. Thus you and your family stand at an advantage.

The cons of dual nationality

• Taxation laws might be a problem: usually if you have multiple citizenships, you are entitled to pay taxes to both the countries. This might increase your expenses by tonnes.
• Scepticism issues: you might face trouble in the run for the post of a political office. In some instances, you might be asked to forfeit your dual citizenship, in order to attain the office. 
• It can be very expensive: in some nations, the price of the passports can be very costly, thus burning a hole in your pocket.
• Security issues: the governments of some nations are afraid of the maybe consequences of dual nationality. They fear that it can possibly change the majority of a nation and thus having the potential to shift the political environment of a nation.
• Might not be allowed: many countries support dual nationality, many are against it. The countries you want to be a citizen of can be of contradicting views. There is even a bigger risk that, if your nation is against dual nationality, it might even revoke your nationality in the due process of your application of nationality for some other country.
• It is a time-taking process: usually processes like these involve a lot of paperwork and undertake a lot of time. All of these processes can be very frustrating for the applicant and he/she might even give up the idea unless it is very necessary or in worst cases indulge themselves in illegal activities to attain their means.

The Nottebohm Case (Liechtenstein v. Guatemala)

• Brief Summary: After World War II broke, Nottebohn, a citizen of Guatemala, in Germany for over three decades applied for Liechtenstein citizenship.
• Facts: Nottebohn, a natural citizen of Guatemala, in Germany for 34 years, also had business ties with the state. After the outbreak of World War II applied for Liechtenstein citizenship, even though he had no ties with it. The application was approved by Liechtenstein but it was to be waived off after three years.

After this approval, Nottebohn travelled to Liechtenstein. Upon his return, he was denied entry because he ceased being a German citizen. His Liechtenstein was not honoured, collaterally causing Liechtenstein to file a suit in the International Court to force Guatemala to recognise Nottebohm as one of its nationals.

Guatemala challenged the validity of Nottebohm’s citizenship and the right of Liechtenstein to file a suit on the accused grounds.

• Issues: Can nationality be disregarded by other states in cases where it is clear that it was a mere device. The nationality that is provided to an individual has to be the concern of the conferring nation? 
• The judgement: It was held by the honourable Court that the issues regarding citizenship are the sole concern of the nation which grants it. This is supposed to be generally accepted. However, this also does not imply that other states do have to unquestioningly accept the granting state’s designations. As in this particular case, there exists no relationship between Liechtenstein and Nottebohm, thus the change of nationality here was merely an act guided by the fear of war. Thus, under these circumstances, Guatemala was not obliged to recognize it.

The Effective Link principle 

This is also known as the Nottebohm principle. This was observed in the Liechtenstein v. Guatemala case. This principle requires the nation to prove a meaningful connection to the state in question.

This principle is usually applied in the cases involving dual nationality, where the decision has to be made regarding which state’s citizenship has to be provided. Thus as the Court ruled in the Nottebohm’s case that there was no significant link between Nottebohm and Liechtenstein.

The sole purpose of acquiring the nationality of Liechtenstein was to escape the belligerent conditions of the state of Guatemala. Thus the court ruled that Liechtenstein was not entitled to take up Nottebohm claims on his behalf against Guatemala. 

The Hague Convention, 1930

The Hague Convention of 1930 was themed around certain questions relating to the conflict of nationality laws. Article 4 of the Convention talks about this issue.

• Article 4: a state is not entitled to provide diplomatic protection to one of its citizens against another state, whose nationality such persons also possesses.

The European Convention on the reduction of Cases of Multiple Nationality, 1963

Conventions like this, the above make it clear that most of the nations deem Dual nationality as a complex system and they have strict rules regarding the same. Article 6 of the convention talks about the same:

• Article 6: Other than the cases where a special agreement exists, the following provisions are applicable to a person who holds dual or multiple nationalities of the contracting parties. Any such individual shall be subject to military obligations in accordance with the country of which he is a normal resident. Nevertheless, he should be allowed to choose up to the age of 19 years whether to submit himself to military obligations as a volunteer in relation to any other party of which he is a citizen of.

1. An ordinary resident residing in the territory of a contracting party of which he is not a national is eligible to choose to perform his military obligations in the territory of any contracting party of which he is a national.
2. As laid down in paragraphs I and II, an individual is obliged to perform his military obligations as the law prescribes for a party or the parties.
3. A person, before the entry into the convention of parties of which he is a national or, is even related to must-have fulfilled military obligations in accordance with the laws of the, prescribed party or parties.
4. An individual who in accordance with paragraph I, has performed his military service in relation to the contracting parties of which he is a national. If he transfers his ordinary residence to the territory of another party, of which he is a citizen of shall be liable to serve the military as a reserve to the latter party.
5. In case of mobilisation by any party, the military obligations arising under this article shall no longer be binding upon the respective party.

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This article is written by Gauraw Kumar, from BVP-New Law College, Pune. In this article, he covers the important concept of the Oath Act, 1969 and tries to discuss the various facts, history and recent customs of oath in judicial proceedings.

Introduction

We have to attach an oath letter on many occasions, such as exchange of money, buying of property, in any judicial activity or judicial proceeding. This work is very simple nowadays. You must have heard about the word ‘stamp’ in your local area during the time of any rental agreement, drop certificate, etc. What is ‘stamp’? This is another way to take an oath. 

We should know related to the oath in judicial proceedings. You must have seen the Court scenes of any movie, in which witness takes the oath by putting a hand on the religious book during the judicial proceedings. Have you ever given a thought about whether it really happens in actual judicial proceedings or not? The answer is ‘no’. There are no such types of oaths taken by any witnesses during actual judicial proceedings. There are different ways to take an oath that is conducted during the judicial proceedings which we will be discussing in further contents. There is a separate law regarding oath during judicial proceedings named The Oath Act, 1969. In this Act, all the provisions, liabilities, course of action and other things related to oath during judicial proceedings are given.

Why the Witness has to take an oath?

There are two ways by which witnesses can register a statement in a judicial proceeding. 

First, is ‘on oath’ and second, is ‘on affidavit’. In a judicial proceeding, the witness is liable to speak the truth only after taking an oath. If any witness lies in a judicial proceeding after taking an oath for speaking the truth, then it is itself an offense under the Indian Penal Code, 1872. Section 193 of the IPC deals with punishment for giving or fabricating false evidence. But, it applies only after taking an oath.

Section 193 of the IPC

According to Section 193 of the Indian Penal Code, 1860, the person shall be punished with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine who:

1. gives false evidence in any moment of judicial proceeding intentionally, or 
2. fabricates false evidence intentionally for the purpose of the same being used in any moment of a judicial proceeding.

Now we have to understand two terms:

• Giving false evidence: Any person who states something in judicial proceedings, knowing that the statement is false.
• Fabricating false evidence: Any person who manipulates any statements and facts of the case in order to establish liability on another person, knowingly that the person is innocent.

History of Oath

• In Mughal’s period, when a king used to act as a Judge to resolve any issue then witness was bound to take an oath by putting a hand on his religious book. For example, a Hindu used to place his/her hand on Gita or a Muslim places his/her hand on the Quran while stating anything in the proceedings, etc.
• Earlier, it was believed that society is extremely loyal towards God and their religion. So, they will only speak the truth while taking an oath of their religious book.
• But, this custom was struck down by the British Government in 1873 by the introduction of the uniform system. (Indian Oath Act 1873)
• Notwithstanding, Indian Oath Act 1873, Bombay High Court continued this custom till 1957.
• Now, an issue was raised by the 28th law commission reports that people who do not believe in god can lie even after taking an oath to religious books.
• By considering this issue, The Oath Act of 1969 came into existence.

The Oaths Act, 1969

This Act does not state anyone to take an oath by putting a hand on the religious book. After the introduction of this act, the custom which was continuing from the past was completely stopped in the judicial proceedings. The Oaths Act, 1969 (Act No. 44 of 1969) dated 26th December 1969 is the Act of Parliament which was enacted to consolidate and amend the ‘Judicial Oath’ and for other relevant purposes. This Act extends to the whole of India.

According to Section 2 of this Act, it does not apply to proceedings before courts-martial or to oaths, affirmations or declarations by the Central Government for members of the Armed Forces of the Union.

Power to administer oaths

According to Section 3 of the Oath Act, 1969, Courts and individuals will have the power to administer oaths:

1. By themselves, or
2. subject to the provisions of subsection (2) of Section 6, or
3. by an official empowered by them in this name, oaths and affirmations in the fulfillment of the duties imposed or in the exercise of the powers conferred on them by law.

These are the following Courts:

1. All Courts and persons who have by law or consent of the parties, the authority to receive evidence;
2. the officer in command of any naval station or military or ship occupied by the Union Armed Forces provided that the affirmation or oath is administered within the scope of the station.

Oaths and affirmations to be made by witnesses, interpreter and jurors

According to Section 4 of the Oath Act, 1969, oaths or affirmations shall be made by the following people, namely:

1. All witnesses or all the persons who may lawfully be examined, or give (or needed to give) evidence before any court or person having authority to examine such persons or to receive evidence;
2. interpreters of questions and evidence given by witnesses; and
3. jurors.

The preceding provisions of this article and the provisions of Article 5 do not apply to witness when the witness is a child under the age of twelve years and the court or the person authorized to inspect that witness is of the opinion that, while the witness understands the duty, to tell the truth, he does not understand the nature of an oath or affirmation.

But in such a case, the absence of an oath or affirmation will not disqualify the evidence provided by this witness or affect the witness’s duty, to tell the truth.

Nothing in this section will make it possible to manage in a criminal proceeding, an oath or affirmation to the accused person unless it is inspected as a witness of the defense. It is important to administer it to the official interpreter of any Court after he has entered in the execution of the duties of his office, an oath or affirmation that he will faithfully satisfy those duties.

Forms of Oaths and affirmations

According to Section 6 of the Oath Act, 1969 all oaths and statements made under section 4 shall be administered in accordance with one of the forms listed in the Annex, as appropriate to the circumstances of the case.

Provided that if a witness in any judicial proceeding wishes to give evidence:

1. Under oath or solemn affirmation in any common way among the persons of the class to which he belongs, or
2. That he keeps them bound, and that he does not repudiate justice or decency, and
3. If it is not intended to affect any third party,

then the court may allow it to present evidence of such oath or affirmation.

All such oaths and affirmations shall, in the case of all courts other than the High Courts and the Supreme Court, be administered by the presiding officer of the Court himself, or, in the case of a Magistrates or other Judges, by anyone of the Magistrates or Judges, as the case may be.

• For Witnesses: I do swear in the name of God that whatever I shall state shall be the truth, the whole truth and solemnly affirm nothing but the truth.
• For Jurors: I do swear in the name of God that I will well and truly try and true deliverance make between the solemnly affirm State and the prisoner(s) at the bar, whom I shall have in charge, and a correct verdict give according to the evidence.
• For Interpreters: I do swear in the name of God that I will well and truly interpret and explain all questions put to solemnly affirm and evidence given by witnesses and translate correctly and accurately all the documents given to me for translation.
• For Affidavits: I do swear in the name of God that this is my signature (or mark) and name and that the contents of this my affidavit are true.

Proceedings and evidence not invalidated by the omission of oath or irregularity.

According to Section 7 of the Oath Act, 1969, no omission: 

1. To take an oath, or 
2. Make any claim, and
3. Not to replace any with any of them, and
4. Any irregularity in the administration of any oath or affirmation or in the form in which it is administered will invalidate any procedure or render any evidence inadmissible, with respect to which such omission, substitution or irregularity occurred, or that affects the obligation of a witness, to tell the truth.

Persons giving evidence bound to state the truth

According to Section 8 of the Oath Act, 1969, any person who presents evidence on any subject before any court or person authorized to administer oaths and statements shall be required to declare the truth on said subject. After taking an oath, the witnesses are bound to state only the truth, nothing but the truth.

According to Section 5 of the Oath Act, 1969, a witness, interpreter or juror may, instead of taking an oath, make a statement.

Repeal and Saving

• The Oath Act, 1969 is made after the amendment of the Oath Act, 1873.
• When, in any pending procedure at the beginning of this Law, the parties have agreed to be bound by any oath or affirmation as specified in section 8 of said Law, then, despite the repeal of said Law, the provisions of the Sections 9 to 12 of said Law will continue to apply in relation to said agreement as if this Law had not been approved.

Conclusion

Initially, the concept of Oath evolved in India during the period of Mughals in which witnesses were bound to take the oath by putting their hand on the religious book from which religion they belonged to. But, It was struck down by Britishers and they came up with a new uniform code related to the oath. Nowadays, our judiciary follows the custom of the oath which is given in the Oath Act, 1969. In this article, we have discussed various provisions of the Oath Act, 1969. People are bound to state truth after taking oath under the Oath Act. If they did not do so, they will be liable under Section 191 of the Indian Penal Code, 1872 for removing and fabricating evidence before the court of law.

References

• Bare Act of Oath Act, 1969

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This article is written by M Anulekha from Damodaram Sanjivayya National Law University. In this article, the author discusses the doctrine of renvoi in Private International Law.

Introduction of private international law

Private International Law is a branch of Jurisprudence arising from the diverse laws of various nations that apply when private citizens of different countries interact or transact business with one another. Private International law suggests that a piece of the law is directed between private residents of various nations. Right now, International Law varies from one country to another country, which is the arrangement of rules done by the legislatures of different nations that decide the rights and direct the intercourse of autonomous countries. It comprises standards and rules for managing lawful debates that have an outside component: for instance, a cross-outskirt or non-resident business cases. In England and Wales, the terms ‘private International law’ and ‘strife of laws’ are tradable, and the subject incorporates a decision of law, the Court’s locale and the acknowledgment and implementation of remote decisions. The extent of private international law shifts from nation to nation and every country has its principles. 

Introduction of Renvoi

The Doctrine of Renvoi is one of the significant and fundamental subjects of Private International Law or Conflict of Laws. Again, the Court sees that the issue will be chosen as per the law of another nation, it is when regulation of renvoi assumes its job in taking care of the issue. It’s a method to take care of the cases in which there exists a foreign element.

Meaning of the Renvoi

The Doctrine of Renvoi is the process by which the Court adopts the rules of a foreign jurisdiction with respect to any conflict of laws that arises. The idea behind this doctrine is to prevent forum shopping and the same law is applied to achieve the same outcome regardless of where the case is actually dealt with.

“Renvoi” originates from the French “send back” or “return unopened”. The “Convention of Renvoi” is the procedure by which the Court embraces the principles of an foreign law as for any contention of law that emerges.

Types of Renvoi

Under the watchful eye of a judge resort to the principle of renvoi, there is an answer to the use of internal law in particular. In any case, if there was no space for use of internal law, at that point the judge may apply the best possible kind of renvoi.

Single Renvoi

Nations, for example, Spain, Italy, and Luxembourg work a “Single Renvoi” framework. For instance, where a deceased benefactor, who was a French national, was an occupant in England yet domiciled in Spain leaving moveable property in Spain, the Court may need to consider which authoritative discussion will apply to manage the property under progression laws.

In single renvoi, a judge of a country is faced with conflicting rules of his country and sends the case to the foreign country but according to the law of that country, the case is referred back to his country and his country accepts sub reference and applies the law of his country.

In re Ross

Facts

The testatrix( the person who writes the will) was a British national, who was domiciled in Italy and had written a will leaving the land in Italy and the movables both in Italy and England. Where will was valid in England but not in Italy because she had not left half of her property to her son.

Judgment 

Where the Court had applied the law regarding where the property is situated. The movables in Italy because the testatrix (the person who writes the will) holds the Italian domicile. As a result, the Judge had applied the Italian law with respect to the immovable property situated in Italy. As Italy did not accept the renvoi based issue was decided in accordance with English law.

Forgo case

Facts 

A Bavarian national died in France, where he had lived since the age of 5. Where under the Bavarian law the collateral relatives were entitled to succeed, but under the french law the property will be passed to the French government but not to the family members.

Judgment

The French Court held that it would decide the inquiry by applying Bavarian law however the State contended that the Bavarian Courts would apply French law, and the French Courts ought to do otherwise. The case was ruled for the French state, and the reference here was to the Bavarian guidelines of contention.

Double or total renvoi

Countries like Spain, England, and France follow double renvoi. For instance, let’s consider the accompanying case whereby a deceased benefactor, an Irish national, residing in Spain, however, domiciled in Italy, died and left some immovable property in France. France, being the law of the gathering (where the advantages are arranged) will analyze the law of the person who died. Spanish law watches the law of the deceased nationality which is Italy. Italy, as a ward that just works a solitary renvoi framework, won’t acknowledge the Double Renvoi and almost certainly, right now will apply Italian law.

Re Annesley Case

Facts

An English woman was domiciled in France for 58 years at the time of her death. According to the principles of English law, she was domiciled in England. Before her death, she made a will, where the will was valid as per the English law, but it was not valid as per the French law because she did not leave 2/3rd of her estate to the children. According to the French law 2/3rd of the property goes to their heirs. Where the France Court did not issue any authorization certificate that she was a French domicile which was necessary for the acquisition of domicile.

Judgment

The Court said that it had applied the French law as she was holding the French domicile at the time of her death. Based on that, the English Courts refer the matter to the French law as the law of domicile and the French law also referred the same back to England as single renvoi is recognized in France. Therefore, the French Court would accept the Remission and have applied the Internal law.  

No Renvoi

Some countries like Denmark, Greece and the US do not accept double renvoi.

Brussels IV: The EU Regulation On Succession

This new EU Succession law, effective from 17 August 2015 attempts harmonization of succession of all member States in determining the forum that applies to succession laws. Ireland, UK, and Denmark have opted out of this regulation, although interestingly the regulation will still have an effect on how these Countries will deal with the signatory States and how signatory States will deal with the non-signatory States.

In relation to the Doctrine of Renvoi, the regulation attempts to provide that in all EU Member States (other than Ireland, UK, and Denmark), the doctrine is abolished other than in the case of third party States. It also provides for testators to designate the law of their nationality as applying to the whole of their estate. The regulation will only affect deaths on or after 17 August 2015 however an individual may elect the law under their will now to apply after that date. 

Conclusion

After we have experienced history, definition, types, and points of interest of renvoi it is critical to remember that it doesn’t make a difference to all cases. As Abla Mayss commented about it: renvoi applies to inquiries of interstate progression and fundamental legitimacy of wills. There is some power such that it applies to marriage and that it ought to apply to cases including title to movable and immovable property. It is a process by which the Court adopts the rules of a foreign jurisdiction for any conflict of law that arises. Renvoi does not, however, discover a spot in the fields of contract or tort. And if there is no renvoi the court will apply the Internal law.

References

1. https://legal-dictionary.thefreedictionary.com/private+international+law
2. https://www.pearse-trust.ie/blog/bid/110454/the-rule-of-doctrine-of-renvoi-explained
3. http://www.ijssh.org/papers/196-G10028.pdf
4. https://www.pearse-trust.ie/blog/bid/110454/the-rule-of-doctrine-of-renvoi-explained
5. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5565&context=fss_papers

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This article has been written by Chandan Kumar Pradhan, from KIIT School of Law, Odisha. This article talks about the existing conflicts over the oceans.

Introduction

Shipping and fishing are the main areas of the sea. Depending on human development, there were many cases of the use of technology, and sometimes they attempted to satisfy the needs of human beings. Many other resources and minerals, natural gas, oil, sand and gravel, diamonds, gold and other resources were made from the seabed. With the development of trade in the 20th century and the inexhaustible realization of sea use, the classic principle of “Freedom of the Sea ” was pushed into the background.

Codification of the Law of the sea

After 1945, once the UN was set up, it was decided by the UN security council and the Secretariat that there was a need to codify existing rules especially with regards to the Law of the seas and to come out with permanent solution vis-a-vis the maritime territorial limit of any country.

With this view, the UNCLOS was passed, which codified the existing customary rules, and it came into force in 1999, even though the agreement was signed in 1982.

Since 1945, almost all the countries of the World have replaced the “cannon-shot rule” with 12 nautical miles rule under which an area of 12 nautical miles from a country sea coast is presumed to be the exclusive maritime limit of one country, and these rules are also acknowledged and accepted under the UNCLOS rules and regulations.

A classified example of maritime disputes, existed between India and Sri Lanka, commonly known as the Ram Setu Bridge, connecting Dhanushkodi in India to Talaimannar in Sri Lanka. 

What is UNCLOS?

UNCLOS stands for the United Nations Convention for the Law of the Sea. It is also known as the Law of the Sea. It is an international agreement or treaty which establishes rules and guidelines for using the world’s oceans and seas, so as to use and conserve marine resources and to secure the preservation and protection of all the living beings of the sea. The treaty was signed on 10 December 1982 in Montego Bay, Jamaica, as a result of the United Nations Conference on the Law of the Sea, which took place from 1973 to 1982, and came into force in 1994.

What is the role of this convention?

The convention defines several maritime zones. Namely the baseline, the territorial waters, the contiguous zone, the exclusive economic zone, the continental shelf, the International seabed area.

The exclusive economic zone is international water, which can be accessed and used by each country for economic purposes. It is currently the dominant law of the sea.

There is no limit or boundary set for commercial or marine business in these International waters.

What is the history of this convention?

Several countries have expressed a desire to expand national maritime information, use natural resources, protect fish stocks and reduce pollution. For this purpose, the League of Nations held a conference at The Hague in 1930 but failed to reach an agreement. In the 20th century, technological development in fisheries and oil production have increased the maritime scope in which countries can find and use natural resources. 

This motivated the President of the United States, Harry S. Truman, in 1945 to increase the U.S. jurisdiction outside of all of its continental shelf natural resources, far beyond the Country’s territorial waters. 

Grotius’s concept “Freedom of the Sea” became practically universal in the 20th century due to the global dominance of European navies. National rights and jurisdiction over oceans are limited to certain water belts that stretch from the Country’s coast, usually 3 miles (5.6km), according to Bynkershoek’s “cannon fire” rules. According to the maxim “Mare Liberum” all water outside the Country’s border is considered as the International waters which is free for all countries, but not for anyone.

Responding to British lawyer Grotius, John Seldon argued in a saying called “Mare Clausum” that the sea was able to seize sovereign power like land and territory. Seldon rejected Grotius’s assumptions, arguing that there was no historical system for treating the sea differently from the mainland, and there was nothing inherent in the nature of the sea that prevented the State from controlling its parts. Basically, International Law can frame the National jurisdiction that appears above the sea.

Territorial rules with regard to the law of the sea

Under Customary International Laws, the Law of the seas were not codified only because of the fact that at that time the ocean was considered as an important maritime property, through which countries could claim their sovereignty, open up new trading rules and also capture new territories with the help of either trading companies or powerful navels.

Nevertheless, by the 17th century, a Customary International Law started evolving amongst countries, which categorically laid down the fact that a country’s territorial limit from the coastal sea shall be limited to 3 nautical miles, under which the Country shall exercise absolute jurisdiction and no foreign vessels or ships will be allowed within that territory, except for certain restricted conditions.

This 3-mile rule was known as the “cannon-shot rule” and the restrictions given for foreign ships to enter into the territorial waters at a host was known as the “Doctrine of innocent passage” and if a foreign vessel was exercising to the innocent passage, then no conditions were allowed to run any over or over operations against the territorial integrity of the host State.

India’s position on territorial waters

India’s position in relation to the Law of the sea is generally governed by Article 297 of the Indian constitution and laws on waters, continental shelf, EEZ and other maritime zones. Maritime zone Law defines Indian sovereignty over the waters and the seabed, as well as the land and airspace above those waters. An area of the boundary line is where each point is 12 nautical miles from the closet point to the baseline. All foreign vessels have the right pass that is innocent passage through territorial waters.

Case dispute

The South China dispute

Facts

5000 years ago, China was governed by the Ming dynasty, who were also famous as Terracotta warriors.

In a navel map, at the times of the Ming period, the entire region, boarding the south China sea along the coast of Vietnam, Indonesia and the Philippines were shown to be Chinese territory.

In the present times, the Chinese government has claimed these areas under the South China sea, coming within the territorial waters of many southeast Asian Nations as its own territory.

The Chinese called this new boundary as the (nine-dash line) territory.

In 1988, the Imperial Chinese navy with the support of the Chinese air force repeatedly intruded into the territory of water of the Philippines and started the construction of artificial islands called the Spratly and johnson group of islands.

The Philippine government strongly protested this movement on the grounds that the disputed territory was within the maritime limit of Philippine sea waters and China had violated the territorial sovereignty of Philippine.

Repeated requests were made by the Philippino government to the Chinese authority to stop construction in the disputed territories, but it was openly ignored by the communist party of China and since1988, the Chinese government has built a series of smaller artificial islands, military installations, air force and naval bases to further strengthen the Spratly and Johnson islands.

In 2015, the Philippino government approached the PCA (Permanent Court of Arbitration) to resolve the South China Sea dispute, where the Chinese government did not appear before the PCA. The PCA categorically held that (nine-dash line) theory of China was grossly inaccurate, construction of Spratly and Johnson islands were illegal, China had violated almost all its treaty and obligations, which are coming under UNCLOS and violation of Customary International Law and more specifically in Article 2(4) of the UN Charter.

After Judgement

China refused to agree to the decision. After the decision of the PCA, the Chinese navy started building large seaports in the Spratly harbour, so that Chinese naval aircraft carrier fighter squadrons of the Chinese air force can be permanently posted in the Spratly armed forces base.

Since 2016, China has started building more islands in the territorial waters of even Vietnam, Indonesia and Malaysia and is now claiming that the nine-dash rule is actually correct and they would actually keep on building more islands in the south China sea.

Contiguous Zone

The contiguous zone is the part of the sea that is outside and adjacent to the territorial waters of a coastal country. This is not the object of a subsidiary, but in this coastal country, they can exercise certain jurisdictional rights. The concept of an adjacent zone develops because countries cannot effectively protect all their interests because of the limited interference on the territorial sea. The 1982 convention established the concept of an exclusive economic zone (EEZ) which fully covers the contiguous zones. 

According to Article 33 of the 1982 Convention, Contiguous zone must not be more than 24 nautical miles from the baseline where the territorial sea area is measured. Thus the area of the contiguous area is 12 miles from the territorial sea.

India’s position on contiguous zone

India has claimed the contiguous zone to the extent of 24 nautical miles by enacting the Maritime Zones Act of 1976.

Continental Shelf

According to W.Friedman, the continental shelf can be defined as the zone around the continent that extends from a low water line to depth and usually marked towards greater depth. What is commonly referred to as a “continental shelf” is a sloping platform that covers continents and islands? This is a submerged seabed that borders continental landmass and is found as an extension or part of that land. It usually extends to a depth of about 200 meters.

The coastal countries have limited sovereignty rights on the continental shelf to explore and use “natural resources”, not sovereignty.

India’s position on the continental shelf

The Maritime Zone Act defines India’s position that India has declared a continental shelf 200 nautical miles from land. Indian rights and obligations under this command are similar to those in other countries, as stipulated in international conventions. But, the government can declare the continental shelf and its magical waters for a certain area and take action to regulate it. 

Exclusive Economic Zone

An exclusive economic zone is a sea zone prescribed by UNCLOS, over which a State has several rights regarding the exploration and use of marine resources including energy production from water and wind. It stretches from the baseline, until 200 nautical miles (370.4 km) from its coast. In geographical terms, the EEZ may also include the continental shelf.

The main difference between the territorial sea (12-mile rule) and the exclusive economic zone is that while territorial sea confers full sovereignty over the waters, EEZ is merely a sovereign right which refers to coastal State right below the surface of the sea.

An example of an exclusive economic zone is the Bombay High, between 73 to 74 nautical miles of the Indian coast which is used for oil exploration by the Indian government.

India’s position on EEZ

Section 7 of the Maritime Act of 1976 provides exclusive rights for the purpose of exploring and exploiting the natural resources within EEZ.

Flag State rule

For legal purposes, a vessel, ship, aircraft, the submarine has to be registered in a particular country, and for all practical purposes, it must fly or display the flag of the registered country.

The Flag State rule is applicable for both military and commercial ships, also for all kinds of oil tanks and even cruise ships.

As of now, Liberia and Panama are the two countries which have a maximum number of ships registered but most of the ships are broken down and sold as junk in Alang, Gujarat.

The Flag State rule principal has also been implemented under Part VII Article 92 of UNCLOS and even in environmental disputes, the Flag State rule can be implemented under Article  217(1) of UNCLOS, 1982.

Case

S.S Lotus case (France Vs. Turkey, 1927)

Fact

In 1925, after Mustapha Kemal pasha started liberalising the Turkish economy, Turkey started to expand the trade abroad with other countries. Unfortunately, a French vessel S.S lotus and Turkish ship S.S Bozkurt collided, because of which the Turkish ship damaged and killed 8 Turkish Nationals on board of Turkish vessel. The remaining survivors of the Turkish ship were taken to Turkey onboard S.S lotus.

In Turkey, the captain of the French ship, and the first watch officer, Monsiver Demons, were charged with manslaughter and Demons was sentenced to imprisonment and fine. The French government demanded the release of Monsieur Demons and the transfer of his case to the French Court. Turkey and France agreed to refer the dispute to the PCIJ(Permanent Court of International Justice).

Judgement

The French and the Turkish government were strongly blaming each other and Monsieur Demons was being charged by the Turkish government of knowingly causing the accident. The French government further contended that only they have a right to trial the individual because the incident involved a French ship and a French National.

The PCIJ held that Turkey had violated no norms of International Law by instituting a case against Monsieur Demons and also had no rights to prosecute him.

After this judgement, there was a huge criticism and after the formation of the United Nation, certain changes were brought in the Flag State rule.

Rights of the coastal States

The States cannot exercise sovereignty over coastal State. They will exercise sovereignty rights to explore and exploit minerals, non-living resources of the ocean floor and soil when the primary 5 years of production at that place. The speed shall increase by 125th of the value of each resulting year till 12 years and shall stay seven-membered thereafter. If coastal States don’t explore or exploit shelf resources no alternative State could undertake these activities without its specific consent.

However, the rights of the coastal State over the seabed don’t have an effect on the regime freedom of navigation on the high seas or that of the airspace higher than the superimposed waters.

High Seas

The high seas mean, all the parts which are not coming under EEZ, territory or inland waters of a country. This rule was formulated by Grotius in his maxim on “Mare Liberum” in 1609 and claimed that the sea could not be owned by anyone.

As a result, all States supported that ships can go and use freedom of navigation, fight, fishing and building artificial islands etc. But, the command has been considerably changed under the convention on the Law of the sea of 1982.

Article 87(2) of the convention lays down the limitation of the general nature on the freedom of high seas by stating that the freedom of the high seas “shall be exercised with due regard to the interests of other States in their exercise of the freedom of high seas”.

Conclusion

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates a comprehensive command to govern the rights of nations in respect of the world’s oceans. International Maritime Organization (IMO) is a specialized agency of the United Nations responsible for improving maritime safety and preventing pollution from ships.

Life itself arose from the oceans. Even now, when the continents have been mapped and their interiors made accessible by road, river and air, most of the people in the world live no more than 200 miles from the sea and relate closely to it.

References

• https://sites.tufts.edu/lawofthesea/files/2017/07/LawoftheSeaPrimer.pdf
• https://en-au.oxbridgenotes.com/revision_notes/law-monash-university-international-law/samples/law-of-the-sea
• https://internationallaw.uslegal.com/the-law-of-the-seas/
• https://www.marinerdesk.com/united-nations-convention-on-the-law-of-the-sea-unclos/
• https://oceanservice.noaa.gov/facts/lawofsea.html

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