(a) Discuss the various efforts made towards the codification of International Law during the 20th century. 10 (b) Explain…

(a)

• Meaning: codification means reducing customary rules of international law into written, systematic form, usually as treaties. Progressive development means preparing rules on subjects not yet regulated. Both are mandated by Art 13(1)(a) of the UN Charter.
• Early 20th century:
• the Hague Peace Conferences of 1899 and 1907 produced conventions on the pacific settlement of disputes, which created the Permanent Court of Arbitration, and on the laws of land and naval warfare;
• the League of Nations' Committee of Experts (1924) selected topics for the Hague Codification Conference (1930);
• that Conference succeeded only on nationality, producing the Convention on Certain Questions relating to the Conflict of Nationality Laws. It failed on territorial waters and State responsibility;
• there were parallel private and regional efforts: the Harvard Research in International Law drafts (1929–39), and the Pan-American conventions (Havana 1928; Montevideo Convention on the Rights and Duties of States, 1933).
• The UN era: the International Law Commission (ILC)
• The ILC was established by the General Assembly in 1947, with 34 members today.
• Its drafts led to:
• the four Geneva Conventions on the Law of the Sea (1958);
• the Vienna Convention on Diplomatic Relations (1961);
• the Vienna Convention on Consular Relations (1963);
• the Vienna Convention on the Law of Treaties (1969);
• the conventions on succession of States (1978, 1983);
• the draft statute for the International Criminal Court (1994), which fed into the Rome Statute (1998).
• The Articles on State Responsibility (2001) remain influential as soft law.
• Other codifying treaties:
• the Genocide Convention (1948);
• the Geneva Conventions (1949), prepared through the ICRC;
• UNCLOS (1982), prepared through a diplomatic conference;
• the General Assembly's Friendly Relations Declaration (1970).
• Assessment: codification brought certainty and involved newly independent States. Its limits are:
• uneven ratification;
• many drafts that remain non-binding;
• customary law continuing to operate alongside the treaties.

(b)

• Monism:
• international law and municipal law form one legal order;
• Kelsen traced both to a single basic norm, and Lauterpacht stressed the primacy of international law because it protects individuals;
• in case of conflict, international law prevails.
• Dualism:
• Triepel and Anzilotti held that the two are separate systems, differing in their sources (the will of the State versus the common will of States), their subjects (individuals versus States) and their substance;
• an international rule operates domestically only when transformed by municipal law.
• Co-ordination theory: Fitzmaurice and Rousseau argued that the two systems do not come into conflict as systems because they operate in different fields. What may arise is a conflict of obligations, and a State that fails to perform incurs international responsibility.
• Doctrines of application:
• incorporation (Blackstone: "the law of nations is part of the law of the land"), under which customary law applies automatically unless it conflicts with a statute (Trendtex Trading v Central Bank of Nigeria (1977)). By contrast, in Mortensen v Peters (1906), a statute prevailed over international law;
• transformation, under which treaties require legislation (the UK and India).
• India:
• Art 51(c) directs respect for international law;
• Art 253 empowers Parliament to implement treaties;
• treaties affecting private rights need legislation (Maganbhai Ishwarbhai Patel v Union of India (1969)), and the ICCPR is not self-executing (Jolly George Varghese v Bank of Cochin (1980));
• customary rules are incorporated unless they conflict with a statute (Gramophone Co of India v Birendra Bahadur Pandey (1984));
• courts read international norms into Fundamental Rights where there is no conflicting law (Vishaka (1997); PUCL v Union of India (1997)).
• Conclusion: State practice combines both theories.

(c)

• Extradition: the surrender of an accused or convicted person by one State to another. It is based on treaty or reciprocity. In India it is governed by the Extradition Act, 1962.

Double criminality

• The rule: the act for which extradition is sought must be an offence under the laws of both the requesting and the requested State, usually punishable with a minimum sentence (often one year). This is reflected in the definition of an "extradition offence" in s.2(c) of the 1962 Act.
• Rationale:
• reciprocity;
• respect for the requested State's own values;
• no one should be surrendered for conduct the requested State does not consider criminal.
• How it is applied: courts look at the conduct, not the names of the offences. In R v Bow Street Magistrate, ex p Pinochet (No 3) (1999), the House of Lords held that the conduct must have been criminal in the UK at the time it was committed, which limited the torture charges to acts after 1988.

Rule of speciality

• The rule: an extradited person may be tried or punished only for the offence for which extradition was granted, or for lesser offences proved by the same facts, unless the surrendering State consents or the person has had an opportunity to leave. This is s.21 of the 1962 Act.
• Rationale: it protects the surrendering State's decision and prevents abuse of extradition, for example by prosecuting for political offences.
• Indian cases:
• ***Daya Singh Lahoria v Union of India* (2001):** an accused extradited from the USA could be tried only for the offences for which extradition was granted;
• ***Abu Salem v State of Maharashtra* (2011):** the Supreme Court examined charges in light of Portugal's assurances. In 2022 it held that India is bound by its assurance to Portugal that his imprisonment would not exceed 25 years.

Related safeguards

• the political offence exception (s.31(1)(a));
• non bis in idem;
• time-bar;
• the principle aut dedere aut judicare.

(d) Definitions

• Double (dual) nationality: the possession of the nationality of two States at the same time. It arises from:
• the conflict of jus soli and jus sanguinis;
• marriage;
• naturalisation without loss of the original nationality.
• Statelessness: a stateless person is one "who is not considered as a national by any State under the operation of its law" (Art 1, 1954 Convention relating to the Status of Stateless Persons). It arises from:
• conflicts of nationality laws;
• deprivation of nationality;
• State succession;
• discrimination.

Problems

• Dual nationals: they face conflicting obligations, such as military service, and difficulties of diplomatic protection. A State cannot protect a dual national against his other State of nationality (Art 4, 1930 Hague Convention). Third States apply the effective or dominant nationality test (Nottebohm (1955); the Mergé claim (1955)).
• Stateless persons: they lack diplomatic protection and access to basic rights.

Efforts to reduce the problems

• Dual nationality:
• the 1930 Hague Convention (Arts 1–6), which recognises the right of a dual national to renounce one nationality;
• the 1963 Council of Europe Convention on the Reduction of Cases of Multiple Nationality;
• the 1997 European Convention on Nationality, which is more tolerant of dual nationality;
• bilateral military-service agreements.
• Statelessness:
• Art 15 UDHR (the right to a nationality), Art 24(3) ICCPR and Art 7 CRC (a child's right to acquire a nationality);
• the 1954 Convention on the status of stateless persons;
• the 1961 Convention on the Reduction of Statelessness, which grants nationality to children born on the territory who would otherwise be stateless and to foundlings, and limits deprivation of nationality;
• UNHCR's #IBelong campaign (2014–24), succeeded by the Global Alliance to End Statelessness (2024).

Evaluation

• Progress: it has been real but slow. Ratification of the statelessness conventions is limited, and over 4 million stateless people are reported, with many more unrecorded, such as the Rohingya.
• India:
• it is not a party to the 1954 or 1961 Conventions;
• it follows single citizenship, with loss of citizenship on acquiring a foreign one (s.9, Citizenship Act, 1955);
• it offers OCI status (s.7A), which is not dual citizenship;
• the Assam NRC (2019) excluded about 19 lakh persons, raising concerns about statelessness.

(e) Meaning

• Oppenheim's definition: intervention is "dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things". It involves coercion, whether by force or by economic or political means, and not mere advice or good offices.

The prohibition

• Force: Art 2(4) of the UN Charter bans the threat or use of force.
• Customary non-intervention:
• Corfu Channel (1949) rejected an alleged "right of intervention";
• Nicaragua v USA (1986) confirmed the customary rule;
• it is affirmed in General Assembly resolutions 2131 (1965) and 2625 (1970).
• Art 2(7): this restrains the UN itself from intervening in matters of domestic jurisdiction, except for enforcement measures under Chapter VII.

Grounds on which States justify intervention

• 1. Self-defence (Art 51): against an armed attack, subject to necessity and proportionality.
• 2. Authorisation by the Security Council (Chapter VII): for example, Iraq–Kuwait (Resolution 678, 1990) and Libya (Resolution 1973, 2011).
• 3. Consent or invitation of the lawful government: this is valid only while consent lasts (Armed Activities (DRC v Uganda) (2005)).
• 4. Protection of nationals abroad: for example, Entebbe (1976). This justification is controversial and open to abuse.
• 5. Humanitarian intervention:
• examples are India in East Pakistan (1971), which India framed largely as self-defence, and NATO in Kosovo (1999), which was called "illegal but legitimate";
• the Responsibility to Protect (2005 World Summit, paras 138–139) channels such action through the Security Council.
• 6. Treaty rights: for example, Turkey's reliance on the 1960 Treaty of Guarantee in Cyprus (1974).
• Historical justifications: grounds such as the balance of power and the Monroe Doctrine are no longer accepted.

Assessment

• Only two clear legal bases: only self-defence and Security Council authorisation are clearly lawful. Other claims are frequently pretexts.
• An example: Russia's claims regarding Ukraine (2022), where the ICJ ordered it to suspend military operations (provisional measures, March 2022).