Aerial Hijacking and the International Law

INTRODUCTION

International terrorism has become a topic of international significance over the years since it affects, directly or indirectly the other States or their affairs. International terrorism can be defined as terror inspiring violence containing an international element that is against non-combatant civilians, States or internationally pro-tested persons or entities in order to achieve political ends.[1] Transportation systems of all kinds have served as means for facilitating international terrorism. Aerial hijacking, popularly termed as “skyjacking” is an unlawful seizure of aircraft by an individual or a group. According to Article 1 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970: “Any person who on board an aircraft in flight: unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act commits an offence”.

The pilots may be forced to fly or land according to the wishes and orders of the hijackers in most cases. In some cases, the hijackers may themselves fly the aircraft. There may be various motives for such unlawful seizure. For the last one and a half decades, it has become a pastime of men of mental depravity, fugitive criminals and political offenders which causes unnecessary hazards to innocent passengers, wanton destruction of property and disruption of civil aviation.[2] Most aircraft hijackers intend to use the passengers as hostages, either for monetary ransom or for some political or administrative concession by authorities. Motives vary from demanding the release of certain inmates, to highlighting the grievances of a particular community.[3] The Hague Convention 1970 recognized the urgency to provide for appropriate measures for punishment of such offenders. It is thus stated that the State parties to this Convention[4] consider that unlawful acts of seizure or exercise of control of aircraft in flight jeopardize the safety of persons and property, seriously affect the operation of air services, and undermine the confidence of the peoples of the world in the safety of civil aviation; that the occurrence of such acts is a matter of grave concern; that, for the purpose of deterring such acts, there is an urgent need to provide appropriate measures for punishment of offenders; thus agreeing to the provisions of the Hague Convention, 1970.  Hijacking of an international flight of a civilian aircraft is covered by principles of both international customary law and treaty law. This scope of this project seeks to analyze the aforementioned principles in detail, mention some incidents of the past and finally discuss the September 11 attack on the World Trade Center and Pentagon to highlight the need for devising better and effective laws and mechanisms in the regard.

 

 

INTERNATIONAL TREATY LAW
Up till 1960s, there was an absence of any international customary law in relation to the practice of aircraft hijacking. Thus the international community was led to search for some remedy to this threat to international civil aviation. This led to the adoption of the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963, and the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970.[5] Two more conventions, namely The Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971; and The International Convention against the Taking of Hostages, 1979. The first three were evolved under the auspices of the International Civil Aviation Organization (ICAO) and the fourth was adopted by the U.N. General Assembly.

THE TOKYO CONVENTION ON OFFENCES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFT, 1963
The Convention on Offences and Certain Other Acts Committed on Board Aircraft was signed at Tokyo in a diplomatic conference on September 14, 1963. It came into force on December 4, 1969.

·         Application and exemptions

Article 1 provides that the Convention shall apply in respect of (a) offences against penal law; (b) acts which, whether or not they are offences, may or do jeopardize the safety of the aircraft or of persons of property therein or which jeopardize good order and discipline on board. It also states that except as provided in Chapter III, the Convention shall apply in respect of offences committed or acts done by a person on board any aircraft registered in a Contracting State, while that aircraft is in flight or on the surface of the high seas or of any other area outside the territory of any State.

The Convention exempts aircrafts used in military, customs or police services from its application.[6]

·         Jurisdiction

Article 3 of the Convention states that jurisdiction over offences and acts committed on board may be competently exercised by the State of registration of the aircraft. Under article 4, it is also provided that a Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases: (a) the offence has effect on the territory of such State; (b) the offence has been committed by or against a national or permanent resident of such State; (c) the offence is against the security of such State; (d) the offence consists of a breach of any rules or regulations relating to the flight or maneuver of aircraft in force in such State; (e) the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.

·         With regard to aerial hijacking

Article 11 of the Convention provides that in case of such an incident Contracting States shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft. It is also stated henceforth that the Contracting State in which the aircraft land shall permit its passengers and crew to continue their journey as soon as practicable and shall return the aircraft and its cargo to the person lawfully entitled to possession. The Convention also declares for the Contracting State to take custody or other measures to ensure the presence of any person suspected of such an act as contemplated in Article 11(1) and of any person of whom it has taken delivery. The custody and other measures shall be as provided in the law of that State but may only be continued for such time as is reasonably necessary to enable any criminal or extradition proceedings to be instituted.[7] Article 15(2) also provides that the Contracting State in whose territory a person has disembarked as is suspected of having committed an act contemplated in Article 11(1), shall accord to such person treatment which is no less favorable for his protection and security than that accorded to nationals of such Contracting State in like circumstances.

·         Shortcomings of the Convention

Firstly, the Tokyo Convention, 1970 fails to provide any definition for the term “aircraft hijacking”. Secondly, there is no provision for any concrete measures to be taken on commission of such an act. There is no provision formulating punishment for offenders thereof. The Convention only emphasizes on restoration of property and for the passengers and crew to continue their journey as soon as practicable. It provides for the offender being taken into custody and other measures for criminal or extradition proceedings but Article 16 makes it clear that it is not obligatory for the State to grant extradition. Moreover, no direct effort to deal with cases of aerial hijacking has been made. Thirdly, “aircraft” nowhere specifies international or domestic aircraft nor does it seem to extend any measures for the latter.

 

THE HAGUE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT, 1970
The Hague Convention, 1970 recognized the fallacies of the Tokyo Convention and the increase in the number of incidents of aerial hijacking and thus the urgent need for States to take necessary preventive action against the same. This led to the adoption of The Hague Convention in 1970. After having been ratified by the prescribed number of States, The Hague Convention came into force on October 17, 1971.

·         Application and exemptions

The Convention applies to all the State parties having signed and ratified the Convention with respect to both international and domestic flights. Article 3 exempts aircrafts used in military, customs or police services.

·         Jurisdiction

Article 4 explicitly recognizes the jurisdictional claims of at least seven categories of states: (1) the state where the aircraft is registered, (2) the state of the operator (lessee) of the aircraft, (3) the state in whose territory the aircraft lands with the alleged offender on board, (4) the state in whose territory the alleged offender is found, (5) the state in whose territory or in whose airspace the offence was committed, (6) the state whose national is the alleged offender, and (7) the state whose security is directly affected by the offence. It does not, however, prescribe any hierarchy among these possible competing claims to jurisdiction.

·         With respect to aerial hijacking

Article 6 of the convention provides for immediate action in case of such an incident. Upon being satisfied that the circumstances so warrant, any Contracting State in the territory of which the offender or the alleged offender is present, shall take him into custody or take other measures to ensure his presence. The custody and other measures shall be as provided in the law of that State but may only be continued for such time as is necessary to enable any criminal or extradition proceedings to be instituted. Such State shall immediately make a preliminary enquiry into the facts. Any person in custody pursuant to paragraph 1 of this Article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national. When a State, pursuant to this Article, has taken a person into custody, it shall immediately notify the State of registration of the aircraft, the State mentioned in Article 4, paragraph 1(c), the State of nationality of the detained person and, if it considers it advisable, any other interested States of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary enquiry contemplated in paragraph 2 of this Article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction. Article 9 of the Hague Convention corresponds with Article 11 of the Tokyo Convention.

·         Shortcomings

Even though the Hague Convention is definitely an improvement over the Tokyo Convention it is still not without deficiencies. The Convention still fails to recognize the act of hijacking as a crime under International law. Secondly, it still provides for no relief or rewarding of damages to the innocent passengers and crew members hijacked aboard. The Montreal Convention resembles greatly to the Hague Convention but also extends to acts of unlawful interference against international civil aviation which have not been covered in the Hague Convention. The most regretful shortcoming of all the treaty laws still remain that the State that receives the hijackers and where the flight lands could still welcome them as political refugees which would again provide them immunity against any extradition or prosecution proceedings.

 

 

INTERNATIONAL CUSTOMARY LAW
The genesis of International law relating to air safety is to be found in the Convention relating to the regulation of Aerial Navigation, 1910 which recognizes that every nation has an exclusive sovereignty over the air space above its territory, with the prevalence of hijacking attempts in the 1960s, the void of any relevant customary international law to meet the challenge became potently obvious. Without the threat of punishment or refusal of asylum, hijackers could continue to disrupt peaceful air travel.[8] In modern day international customary law, a range of principles flows from two broad norms.

The first norm is that every state has an obligation to ensure that its territory is not being used by any person in any manner to the detriment of another state. The alleged right of intervention can only be regarded as the manifestation of a policy of force which cannot find a place in international law. It is the duty of every State to respect the territorial sovereignty between independent States is an essential foundation of international relations.[9]

An armed attack in the construction of the Court must be understood as including not merely action by regular armed forces across an international border, but also the sending by a State of armed bands or groups on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces. Not to be included in the concept of “armed attack”, however, are acts of mere assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may, the Court believed, be regarded as a threat or use of force, or may amount to intervention in the internal or external affairs of other States, but it may not justify an action of self-defence. This is the basis of all rules relating to the prohibition of direct or indirect involvement of states in international terrorism.[10]

The second norm is that states owe an obligation to the international community to ensure protection of human rights.[11] As the ICJ stressed in the American Hostages in Teheran case[12] in 1980, “Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.”

Contemporary international law underscores the duty of every state to (a) prevent perpetration of terrorist acts against another state or against innocent individuals, and (b) consequently, to cooperate with other states in preventing and combating terrorism and in punishing terrorists. It is this aspect of the principle of suppression of terrorism that has moved the international community to evolve international legal instruments for the purpose of combating and punishing acts of international terrorism in the interests of protection of territorial integrity of states and respect for human rights.[13]

However, customary international law provides no rule which imposes a duty to extradite; hence extradition becomes either a matter of comity or treaty between states. Since international law maintains no central enforcement agency or universal sovereignty to affect compliance with established international norms it relies upon voluntary compliance of participating States to advance international order.[14]

 

 

 

SOME INFAMOUS INCIDENTS OF AIRCRAFT HIJACKING
The first aerial hijacking within the United States occurred on May 1, 1961, when a commercial airliner en route from Miami to Key West, Florida, was forced to detour to Cuba. By the end of 1961, four airplanes had been hijacked to Cuba, and many of the airplanes subsequently hijacked in the United States and elsewhere in the Western Hemisphere were flown to Cuba by either homesick Cubans or politically motivated leftists. Some of these hijackings were financially motivated, with the hijackers calling for huge ransom payments in exchange for ensuring the safety of the passengers and crew, though few were successful.

 

Hijackings have continued to occur sporadically since the late 1970s, though at a reduced frequency.

One such notorious incident was the 17-day hijacking of a flight to Beirut airport by Hezbollah, a militant group associated with Ayatollah Ruhollah Khomeini, in 1985.

 

On June 10, 1973, three men hijacked Royal Nepal Airlines’ Twin-engined Otter plane to Forbesgunje airstrip, seven metres inside the Indian border and decamped with Rs. 30,00,000. The plane was on a scheduled flight from Biratnagar to Kathmandu. The plane was returned.

 

The decline in hijackings was the result of a variety of factors, including heightened security and greater international cooperation. Some groups, such as the Palestine Liberation Organization (PLO)—which had applauded earlier hijackings—found that hijacking had outlived its usefulness. In addition, in the 1980s some militant groups turned to the far more devastating tactic of destroying airplanes in flight, usually by bombs. One infamous incident was the downing of an American airliner by Libyan intelligence agents over Lockerbie, Scotland, in 1988; the midair explosion killed 259 passengers and 11 people on the ground.

In 2007 in Russia, an Aeroflot Airbus A320 flying from Moscow to Geneva was hijacked by a drunken man in Prague. The crew and passengers were released after his arrest by the Czech police.

In 2007 in Turkey an Atlasjet MD-80 en route from Nicosia to Istanbul was hijacked by two Arab students, who said they were Al Qaeda operatives, one trained in Afghanistan, and wanted to go to Tehran, Iran. The plane landed in Antalya, the passengers escaped and the hijackers were arrested.[15]

Turkey 2011: Turkish Airlines Flight 1754, flying from Oslo, Norway to Istanbul, was in Bulgarian airspace when an unsuccessful attempt was made to hijack it. The hijacker said that he had a bomb and that he would blow up the aircraft unless the plane returned to Norway. Passengers overpowered the hijacker and the flight safely landed at Atatürk International Airport, Istanbul. There were no injuries and the suspect was arrested.[16]

 

 

THE SEPTEMBER 11, 2001 ATTACKS
The deadliest act of air piracy to date occurred on September 11, 2001, when suicide terrorists simultaneously hijacked four airliners in the United States and flew two of them into the World Trade Center complex in New York City and one into the Pentagon near Washington, D.C. The fourth plane crashed outside Pittsburgh, Pennsylvania, after passengers—apprised of their fate via cellular telephone—attempted to overtake their attackers. Overall, more than 3,000 people were killed in the September 11 attacks, and a new factor was introduced: the use of fuel-laden planes as flying bombs to kill large numbers of people and cause enormous property damage. However, the actions of the passengers on the fourth plane suggested that such a tactic would be difficult to repeat, as the prospect of certain death would give hostages little incentive to submit to hijackers’ demands.

 

The widely ratified Hague Convention for the Suppression of Unlawful Seizure of Aircraft makes aircraft hijacking an international criminal offense.  It applies to accomplices as well as to the hijackers themselves.  The Convention requires each contracting state to take such measures as may be necessary to establish its jurisdiction over the offense when the offense is committed on board an aircraft registered in that state, or when the aircraft lands in that state with the offender on board, or when the alleged offender is present in its territory and it does not extradite him to one of the other states just mentioned.  The offense is deemed to be extraditable under any extradition treaty in force between contracting states.[17] If the hijackers responsible for the incident of hijacking and crashing into the World Trade Center and the Pentagon would’ve been alive and had been identified and apprehended, they could face prosecution in country that would have custody of them.

The Statute of International Criminal Court also defines the term “crime against humanity”, though loosely as acts “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[18]  The acts include murder, enslavement, Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The United States would have jurisdiction under customary international law to proscribe such terrorist acts that occur within its own borders and to prosecute the offenders under federal anti-terrorism statutes already in force. The US could have also raised issues if any other State was suspected of harboring the persons responsible for the attacks. Other countries could exercise what is known as universal jurisdiction.  This means that any country may make such terrorist acts criminal offenses under its own law, and may prosecute the offenders if they are within its custody.

Nevertheless, article 51 of the U.N. Charter recognizes “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”  Thus, if the coordinated use of force to hijack and use large airliners loaded with fuel to attack the World Trade Center and the Pentagon can be classified as an armed attack against the United States, and if it is necessary to take countermeasures involving the use of armed force in order to prevent further attacks, the United States arguably could use force under article 51 until such time as the Security Council can act to maintain international peace and security.[19] It has been expressed by thy the North Atlantic Treaty parties that the incident was an armed attacked[20] against the United States invoking Article 5 of that treaty.

 

 

CONCLUSION
The phenomenon of aerial hijacking though very popular in the past, its reported incidents have been on the decline in the recent present. At one point of time around the 1960-70s, there were as many as 80 reported cases of aerial hijacking in ten years. Of the varied motives, political reasons were the most common. Therefore, it is stressed that there is a need to establish the offence of hijacking as a non-political offence so as to eliminate it as an exception for extradition of fugitives. Even The Hague Convention failed to rule it out from being a political offence.

Apart from the clear reasons such as taking away freedom and liberty of civilians, risking safety of the passengers, crew members and pilots, misuse of aircraft and destruction of property as to why aerial hijacking is such a grave offence, it also tends to disrupt international communication. Hijackers usually turn off all communication systems of the aircraft to camouflage their locations so as to deviate the plane according to their wishes without it being shown on the radars. Moreover, foreign relations between nations which are quite essential for global integration through trade and commerce and world peace and harmony are hampered.

Over the years various treaties and agreements have been signed among nations all around the world to take preventive and deterrent measures against such offenders and to come up with such laws which would make escape from punishment difficult. Along with this, efforts have also been taken to deter potential hijackers from committing such crimes. Punishment and threat of punishment though deters potential offenders and has shown to decrease the number of cases of aerial hijacking, it is still not a fool-proof and proven deterrent. Cases have still been reported in the present.  To encounter the present scenario and to avoid incidents of hijacking from happening in the future, it is imperative for nations to strengthen their laws relating to anti-hijacking policies and extradition laws and for international organizations to take more appropriate and efficient measures to ensure that provisions regarding extradition and prosecution given in the conventions are complied with. There is also a need to draft suitable machinery for the purpose of resolution of conflicts arising between Contracting States out of simultaneous requests for extraditions, since all affected States would want to exercise their jurisdiction over the case and prosecute punish or acquit the offenders according to their respective laws. Another problem arising out of this is that some nations provide refuge to hijackers which would give them immunity against any action to be taken against them by another State. Treaties dealing with controlling hijacking also need to make for stronger action and unavoidable sanctions against nations that fail to fulfill their obligations. All States that are signatories to the treaties and have duly ratified the agreement ought to meet the obligations emanating thereof. Procedure for such violating States must be made and enshrined into the international treaties. Last, but not the least airport security and other authorities could improve their systems for baggage checking and search for both passengers and crew members to ensure minimum risk again happening of an incident of aerial hijacking.

It is only when all the existing loopholes in international and national laws are plugged and amended according to the changing needs of nations globally that the offence can be totally eradicated and safety of life and property even while travelling be ensured.

 

 

 

[1] Wilkinson, Paul, political terriorism , halsted press, new- york, 1975, p. 310 (as cited in https://www.scribd.com/document/342257903/Pil-Project-on-Aircraft-Hijacking)
[2] Aircraft Hijacking and International Law by S.K. Agarwala, 1973, N.M. Tripathi, Bombay.
[3] As cited in https://www.lawctopus.com/academike/aircraft-hijacking/
[4] The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970.
[5] The International and Comparative Law Quarterly, Vol. 25, No. 1 (Jan., 1976), pp. 248-250.
[6] Article 1(4), Tokyo Convention, 1970.
[7] Article 13(2), Tokyo Convention, 1970.
[8] SK Ghosh, Aircraft Hijacking and the Developing Law (Ashish Publishing House 1985).
[9] International Court of Justice ruling in the Corfu Channel case, 1949.
[10] Some of these rules were identified and elaborated by the ICJ in the Nicaragua case in 1986.
[11] ICJ ruling in the Barcelona Traction Company case, 1969.
[12]
[13]VS Mani, ‘Hijacking and International Law’ (The Hindu, 19th January) http://www.thehindu.com/2000/01/19/stories/05192524.htm accessed 22 March 2017.
[14] Aircraft Hijacking and the Developing Law, S.K. Ghosh

[15] Sebnem Arsu, “Pilots and passengers foil hijacking of Turkish jet”, The New York Times, August 19, 2007. Retrieved July 26, 2011 (as cited in http://www.newworldencyclopedia.org/entry/Hijacking).
[16] “Turkish Airlines hijack attempt foiled by passengers”, Hürriyet Daily News, January 5, 2011. Retrieved July 26, 2011 (as cited in http://www.newworldencyclopedia.org/entry/Hijacking).
[17] Article 6, Hague Convention, 1970.
[18] Article 7, Statute of International Criminal Court.
[19] BWELLING HALL, ‘TERRORIST ATTACKS ON THE WORLD TRADE CENTER AND THE PENTAGON’ [2011] 6(18) American Society of International Law.
[20] For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack: (1) on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France, on the territory of or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer; (2) on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

 

The Use of Force against Terrorism: Does International Law fall Victim

terrorismPost 9/11 ‘use of force’ in international law and much of the
understandings towards it has undergone great evolution. The
international world is at the hinge of the history as many of the old regime falls and new threats emerge. The challenges this have created for the traditional system have been unparalleled.

The ghastly act of bombing the twin towers of the World Trade Centre and the aftermath response made by the individual countries and international community at large had, many commentators felt, left the international law dumbfounded. This has been reflected by inability of the international law in categorizing the events of 9/11 within its framework and also in determining the legality of the action taken by the coalition forces as ‘war against terror’ in Afghanistan and beyond, following the two Security Council Resolutions. [1]

The event itself has led to the emergence of many new questions in the international law. Whether international law at present provides machinery to deal with the act of terrorism of the magnitude witnessed by 9/11? How far an individual State is justified in using force against another State to suppress terrorism? Whether the act of terror, especially by non- state actors, may be termed as ‘armed attack’ pursuant to Article 51? Whether the right of self- defence extinguishes once the ‘attack’ occurred or does it continue to exist to prevent a prospect ‘threat’? Who determines whether the prospect of such threats as mentioned above exist? The present research paper seeks to address the above amongst many other questions besides analyzing particular situation in some specific context.

The theme area of this article like any other themes in international law may have been dealt with by many different authors. Also such a broad theme as present is quite capable of admitting many things. Hence certain caveats are in order regarding relevance and scope of this research paper.

Post 9/11 has generated much of the literature on this subject so much so that any discussion on this may seem as repetitive. But some of the recent happenings around the world have revived the interest of scholars and practitioners of international law into this area. The killings of US born Yemeni cleric and Al- Qaeda leader Al- Alwaqi[2] and founder leader of Islamist militant organization Al- Qaeda Osama Bin Laden on foreign soils have far reaching consequences for this area of international law. In any case, the issues in debate since have refused to die down making this area still a fertile ground for all concerned. Finally it is necessary to mention that international action to suppress terrorism interfaces with many other areas of international law including state responsibility, international humanitarian law, human rights, international criminal law among others. The scope of present research paper however is only restricted to commentary on international norms of use of force to suppress terrorism and assessment of contemporary situations.

 

 

The General Principles Underlying Use of Force

The use of terrors as a means to achieve political ends is an old phenomenon.[3]However, in recent decades the situation has become more intense and complex. In many cases non- state actors choose to target another State, while in other cases terrorist targets the assets of the victim State in uninvolved third States to pressurize the government of the victim State. Still in others, some of the States actively aid and abet the actors to carry out attacks in other States. This has created a number of problems before international law, especially where the third State is involved. The first challenge is definitional itself. Secondly, whether there are agreed measures for prevention and punishment of terrorist acts. Also, does international law provide adequate mechanisms for action against state that aids and abets terrorism?

It is obvious that members of international community must follow the norms of international law in their dealings with international terrorism, particularly where the sovereignty and the territorial integrity of third State is involved. No doubt strong response is required to suppress international terrorism. But any measures evolved must be so, that does not detract from the established principles of international law. It is the situations such as these which test the faith of international community in international law; otherwise temptation may run high on the part of powerful nation to take action undermining the purposes and objectives of the United Nations system[4]. It is thus apt here to survey the emergent principles of international law governing use of force in circumstances involving international terrorism.

A. Prohibition of Use of Force

The present rules of international law, particularly the ‘law of war’ were devised aftermath of World War II to prevent the horrors and devastations of the scale witnessed during that period. The normative rule that prohibits the use of force in international relations was born of similar desire under the UN Charter System. The ban on use of force is laid down in Article 2(4) of the UN Charter which requires that States ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

The ban on use of force was a rule of pre charter customary international law albeit rooted in concepts such as just war and lawful reprisal. The Charter rule, however, severely restricted the circumstances under which use of force may be considered legal.[5] Article 2(4) now place a general prohibition on use of force and extends this prohibition beyond war to include all types of unilateral use or threat of force. In fact, a substantial number of scholars attribute the rule contained in Article 2(4) to have attained a jus cogens character. [6]

The Charter allows for two exceptions to the general prohibition on use of force: (i) individual and collective self- defence under Article 51 and (ii) enforcement measures authorized by the Security Council in response to ‘any threat to the peace, breach of the peace or act of aggression’ under chapter VII [7]. The charter is fairly open-ended regarding the Security Council’s power to authorize force ‘to maintain or restore international peace and security’. In contrast, the UN Charter is rather restrictive with respect to the use of force by states. It is here that the dispute arises regarding validity of use of force by individual states to suppress international terrorism, whereby such action leads victim State to the territory of another State.

B. Self- Defence in International Law

Self- Defence, as is evident from the term, is a kind of self-help and is available to State in the event of illegal use of force but not in violation of international obligations of the State resorting to self- defence. Thus, self- defence, under modern international law, excludes acts of retaliation and also acts of deterrence against possible future attack. [8]

Article 51 of the UN Charter specifies the conditions under which individual states may resort to force. There has been considerable controversy as to the precise extent of the right to self-defence, especially with regards to what is meant by an ‘armed attack’. This question assumes particular significance to the present research paper so as to determine legality of use of force against terrorist supported by another State. Generally speaking, by virtue of Article 2(4), it can be defined as the use of force against a state’s territorial integrity and political independence, its exact scope is still in dispute. To illustrate, in its Nicaragua judgment, the ICJ found that sending armed bands or mercenaries into the territory of another state constituted an armed attack, while supply of arms or logistical support by itself did not amount to an armed attack. Thus, the ICJ left the question fairly open ended, whether the right of self- defence extends to attacks by non- state actors or whether its application is confined to response to attacks by the States.

Along with the scope of ‘armed attack’, another contentious issue pertains to whether a right to anticipatory or pre-emptive self- defence exists, whereby an actual armed attack has still not occurred but threatened. The restrictive view is that article 51, read in conjunction with the general prohibition of the use of force set out in Article 2(4) limits the invocation of such a right to cases where an actual armed attack has actually occurred and not where such attack being threatened. This view finds support from the fact that article 51, in contrast to article 2(4) leaves out any reference to the ‘threat’. The liberal view maintains that Article 51 should not be interpreted as excluding the right to anticipatory self-defence in the case of an imminent danger of attack. This view rejects the restrictive interpretation of the word ‘if’, as it is employed in Article 51, as meaning ‘if and only if’.[9] These scholars point out that by qualifying the right of self-defence as ‘inherent’, article 51 indicates the existence of a right of self- defence in pre-charter customary international law, according to which preventive measures are permitted.[10]

C. States’ Practice

The ICJ itself in Nicargua Case expressed no view on the issue of lawfulness of a response to an imminent threat of armed attack.[11]But the problem with the international system is that in majority of the cases it leaves such determination to be made by the States themselves.

Making legal rules in international law is one thing; hence it is relevant to see how interpretation of anticipatory self- defence played out in States’ practice. The State practice on this issue at best may be termed as ambiguous. The bombing of Iranian nuclear sites to prevent prospective nuclear attack on Israeli territories provide a typical case for analyzing this issue. While Security Council (SC) unanimously condemned Israeli action and found the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct, the Permanent and other members of the Council did so on different grounds. Some of the non- permanent Representatives [12] took restrictive position confining right to self- defence to cases where there is an actual ‘armed attack’, Britain justified its voting on the ground of Israeli action failing to meet the criteria evolved in Caroline Case [13], i.e. absence of instant and overwhelming situation necessitating self- defence action. Still further, US condemnation of Israeli action was based on entirely different plane. It held Israeli action untenable because of its failure to exhaust peaceful means for the resolution of this dispute.

The above positions offered by different States afford no safe view regarding permissibility or otherwise of measures to ward off anticipated attack where Nation States are involved. Still less the existing position clarifies regarding the self- defence right against non- state actors in case of anticipated attacks. But one thing may be said with certainty that even in case of anticipatory self- defence, the criteria of necessity and proportionality rule the roost.

 

 

The Wind of Change: Present Regime

As mentioned earlier that use of force as such, under article 2(4), against non- state actors is not prohibited per se, but states are under obligation not to use force in their ‘international relations’. As a consequence, anti-terrorist force could be used as long as it did not concern the scope of states’ international relations.

This clearly demonstrates that use of force against terrorists based in another state clearly comes within the scope of article 2(4). This, in turn, apparently meant that states on whose territories such attacks are carried out would be left with very little options and forced to bear the brunt silently. However, Charter system provides a distinct exception to prohibition of use of force under article 2(4). Chapter VII provides for collective enforcement measures authorized by Security Council, if it deems that a situation exists as a threat to, or breach of, the peace in the sense of Article 39 of the Charter. It needs to be mentioned though that before September 11, in no case the Council considered any specific terrorist activities, let alone terrorism in general as threat to international peace and security.

The 11 September events did not herald any change in normative rules. On the face of it, the Charter regime is the same. Articles 2(4), 42&43, and 51 UNC still apply. But the Security Council has re- invented itself and has taken some measures since September 11 to deal with terrorism.[14]Outside Security Council framework, countries like India presented a proposal to the United Nations General Assembly for a comprehensive convention against international terrorism, which has been unsuccessful due to the failure to agree on the scope of the Convention.

A. The Role of security Council and Its Limitations

As is well-known, in the last two decades the Security Council has asserted its role in the international system vis-a-vis terrorism. In fact after September 11, it has adopted more number of Resolutions on anti- terrorism measures than, perhaps on any other subjects.
In its 1368 (2001) Resolution, the Council made first ever reference to terrorism, and noted that it was ‘determined to combat by all means threats to international peace and security caused by terrorist attack’ and regarded such attacks ‘like any act of international terrorism, as a threat to international peace and security’. This Resolution, it may be noted, was adopted not under Chapter VII, and thereby could not authorize collective use of force, nevertheless was quite a game changer.

In contrast, the Council in its Resolution 1373 (2001) specifically noted that it is acting under Chapter VII of the Charter and took specific non- military measures under article 41 of the Charter. In particular, it imposed on all States certain obligations specifically selected from those imposed by the 1999 Convention for the Suppression of the Financing of Terrorism, which at that time was not yet in force. In so acting, the Council rendered certain purely treaty rules binding on all Member States of the United Nations and thus assumed the role of a true international legislator.

There are two aspects to these resolutions. First, these two resolutions make it abundantly clear that acts of terrorism can amount to threats to peace in the sense of Article 39 of the Charter.[15] In fact the Council in its Resolution 1566 (2004) reiterated this principle that it ‘condemns in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security’. And secondly, it has obligated upon all the States to take non- military measures as specified above for the purpose of fight against terrorism.

In making these resolutions though the Security Council asserted its role in dealing with terrorism but at the same time suffered itself from a limitation. Once the Council has qualified an act of terrorism as a threat to the peace, the path towards sanctions under articles 41 and 42 of the Charter is in principle open. Yet the Council has refrained from applying article 42. This is a clear indication that the Council has not authorized use of anti- terrorist force as military sanctions.

In fact, the US itself, after 9/11, did not resort to Chapter VII authorization to use force. Perhaps, it was evident to it that that general wordings of Resolution 1368 (2001) may be invoked by many other countries in the future. Instead it relied on that part wherein the Security Council recognized “the inherent right of individual or collective self-defence in accordance with the Charter”. Here the expression ‘in accordance with the Charter’ is of particular importance. Can it be said that Security Council Resolution 1368 granted a broader right to use force unilaterally in exercise of self- defence?

 

B. Right to Act Unilaterally

The key developments during the last two decades affect the rules governing the unilateral use of force against terrorists. During period preceding 1990’s, States have used force against terrorist threats but sparsely. However, the recent decade has seen marked increased in tendency to use force unitarily against terrorists on foreign soil. The situations in which force has been used vary significantly, but have almost exclusively been explained as exercises in self-defence.

The most obvious example is the US exercise of self-defence in response to the 9/11 attacks. The US response is not an isolated event. Many States have reacted against terrorist strikes by using force, including invasion of foreign territories from which the terrorists were operating. The most prominent example is Israel. Israel has repeatedly claimed its right to act in self- defence against terrorism emanating from foreign territories. In the summer of 2006, following rocket attacks against it by the Lebanon based Hezbollah, Israel responded with an invasion of Lebanon.[16] More recently in March 2008, Colombian forces moved into Ecuadorian territory in pursuit of rebels belonging to FARC.

The recent practices by the States described above have put strains on past understanding of circumstances which trigger exercise of self- defence right. The following sections analyse how the recent practices by the States have attempted to bring in prescriptive changes in key features of self- defence regime in relation to anti- terrorism measures.

(i) Rule of Attribution

Much of the above discussion centered on the fact whether individual States can claim recourse to self- defence under article 51 in the event of an attack by the terrorist by pursuing it on foreign territories. One of the many questions arises in this respect is the determination of state involvement in the attack. The ICJ in the Nicaragua Casehas laid down the ‘effective control’ test of attribution.[17] The test essentially attributes responsibility to a State for acts of private individuals on the basis of the following standards: (a) whether the state has issued instructions to those persons; (b) whether the state has directed the persons to do something; or (c) whether the state has exercised control over those persons.

However, many of the commentators have suggested that this rule stands modified in the light of recent State practices wherein responsibility is attributed to the States for its complicity in the activities of terrorists based on its territory – either because of its support below the level of direction and control or because it has provided a safe haven for terrorists. It brings the new approach in line with views expressed in Judge Jennings’ dissent, notably his plea for more flexible standards of attribution.[18] The flexible approach as suggested, though seized by the US and Israel- because it seemed convenient to them at that point- is yet to be established firmly in international law. Till that happens, employing the notion of complicity, it seems, may be described as aggression.

(ii) Threshold Requirement

The second element of the self- defence regime is threshold requirement. The jurisprudence developed by international courts seems to have made distinction between ‘less grave form’ and ‘more grave form’ of use of force. In the Oil Platforms case,[19]it expressly affirmed such distinction. This implies that state resorting to self- defence has to satisfy that attack carried out against it is of nature that will qualify as large scale attack. But the world court is having second thought on this. In DRC-Uganda Case[20], insofar as it held that self-defence could be directed only against ‘large scale attacks, it left open the question- whether states could respond to ‘attacks by irregular forces’.

Even a survey of state practices suggest that States have never given up their rights to respond in case of breaches which by themselves may not qualify as ‘grave form of attack’ as hinted in Nicaragua case. The emerging trends suggest that states are willing to move beyond threshold requirement suggested in Nicaragua judgment in favour of “accumulation of events” doctrine. This doctrine suggests that with respect to the threshold requirement, it must be assessed whether a series of minor incidents, taken together, can be said to reach the threshold of an armed attack.[21]

It is to be noted that the doctrine was much discussed by the litigants in the Cameroon- Nigeria, DRC-Uganda, and Oil Platforms cases, but the Courts in the respective cases did not pronounce on the matter. This doctrine gives comfort to those who have long criticized the gap between article 2(4) and artice 51, but still has not yet found firm place in international law. Alternatively, Judge Simma in Oil Platform Case favoured “proportionate defence measures” in place of ‘accumulative doctrine’ to fill such gap.

 

The above arguments, however, are not conclusive that threshold requirement expounded in Nicaragua case is no longer hold good. This is mainly for two valid reasons. One, that ICJ yet to give an authoritative judgement on the matter holding ‘accumulative events’ or ‘proportionate defence’ doctrines valid in context of article 51, and two, that self- defence right is defensive in nature and cannot extend to perpetuity waiting for events to accumulate.

(iii) Defensive Nature of Right

Debates in recent times have centered on conditions under which states can invoke self- defence right. But the scope of the right itself is undergoing dramatic changes. In particular, recent practice seems to have largely abandoned the functional understanding of self- defence as a protective means of ‘repelling armed attacks’. This in turn raises doubts not only about the time limits of self-defence, but also about the inherently defensive character of the right.

The traditional understanding of self- defence right is that response to use of force must have immediacy requirement. Even one accepts the broader notion of ‘armed attack’, yet response by the affected state must be immediate and defensive in character. But the recent state practice, particularly Operation Enduring Freedom launched by US after 9/11, does not satisfy above requirement. The Operation was initially based on a broad and defensible reading of Article 51 of the Charter. But it has now turned into a self-perpetuating military campaign serving a range of objectives. It is submitted that the campaign has clearly overstretched the boundaries of even the broadest understanding of self-defence. The recent killings of Yemeni leader Al- Alwaqi and Al- Qaeda founder Osama- Bin- Laden, based on permanent state of self- defence does not hold good in international law. One can only hope that this remains an isolated event and not emulated by other nations, particularly by those who have veto power in the Security Council.

 

 

 

A Way Forward

A dispassionate reading of the recent state practices [22]and Security Council Resolutions suggest that rules on use of force in the context of terrorism are on the verge of change. If one accepts that these rules needed some re- adjustment, then they must change for better. But the challenge before international community lies in making the rules universally applicable and adding a bit of certainty it. The more immediate challenge before international lawyers and political leaders is to resist the tendency to offer justification for use of force against terrorism in self- defence based on unilateral threat perception.

Now the bigger question arises what should be the strategy of international community in dealing with international terrorism wherein some of the states are found aiding and abetting terrorism. At the outset it must be mentioned that the validity of existing legal framework of self-defence must be reaffirmed. It would be counter-productive to an expansive doctrine of ‘accumulation of events’ as proposed by many commentators and justified by states. This is not to say that the existing framework is perfect. The application of the decision of the ICJ in the Nicaragua case must be reconsidered in cases of State support for terrorism. In cases where an armed attack has been launched by a terrorist group or is imminent, it should be possible to use force in self-defence against a ‘harbouring’ State provided link between terrorism and the State harbouring it must be accepted by international community. But it is still better to develop some new strategies, outside self- defence framework, to deal with such scenarios.

 

 

 

A. Comprehensive Convention Against International Terrorism

The best option before the international community is to adopt legal instruments dealing with acts of terrorism. However, any such instruments can only be helpful, if agreed by maximum number of nations, if not by all. India has presented a proposal to the United Nations General Assembly for a comprehensive convention against international terrorism, which has been unsuccessful due to the failure to agree on the scope of the Convention.

The definitional impasse has prevented the adoption of a Comprehensive Convention on International Terrorism.[23] This convention would complement the existing framework of international anti-terrorism instruments and would build on key guiding principles already present in recent anti-terrorist conventions- the importance of criminalization of terrorist offences, making them punishable by law and calling for prosecution or extradition of the perpetrators; the need to eliminate legislation which establishes exceptions to such criminalization on political, philosophical, ideological, racial, ethnic, religious or similar grounds; and emphasis on the need for Member States to cooperate, exchange information and provide each other with the greatest measure of assistance in connection with the prevention, investigation and prosecution of terrorist acts. In addition to UN efforts, a number of regional efforts are on way to check this menace.

While the broad consensus among nations is proving elusive, it is important that Counter Terrorism Committee, established under SC Resolution 1373 (2001) continues its work in preparation of model law. Further, it is the duty of the Council to see that its recommendations are implemented by all nations. The members of the Council, especially permanent members, must use its influence in building consensus.

 

 

B. Criminal Law Strategy[24]

The second option, though seemingly less optimistic in present scenario, is internationalization of fight against terrorism. The international policy against terrorism should require the states to accept a broader range of obligations relating to the treatment of terrorists and terrorist organizations.

There are two way to achieve this. One way is to model such Criminal Conventions on the principle of subsidiary universal jurisdiction so that it is the duty of each state to ensure application of rule- ‘aut dedere, aut judicare’. According to this rule, the arresting State has a choice between prosecuting or extraditing the criminals. It is obliged to opt for one or the other and cannot simply wash its hands of criminals found on its territory. Another way is to model such Convention on Rome Statute. Such Convention may establish international judicial bodies competent to prosecute terrorist activities – may be eventually even a ‘terrorism chamber’[25]of the International Criminal Court.

A well-crafted multilateral regime, based on enhanced duties to criminalize and prosecute terrorist activities, arrangements for cooperation in criminal matters, as well as in the fight against financiers of terrorism, is a key in achieving success to root out terror. In addition, one might hope that such regime also includes safeguards protecting individual rights of terror suspects.

 

C. Greater Responsibility on Security Council

Lastly and most viable option is that the Security Council should be more willing to take grater responsibility in dealing with anti- terrorism measures, as it has wider implications on international peace and security. The collective security regime of Chapter VII of the UN Charter is vital in addressing threats to international peace and security. The Security Council remains an indispensable forum for deliberation. Disturbing failures notwithstanding, the Council is the only plausible source of legitimation for the collective use of force.

The question then boils down to reform of the Council as the present functioning of it, leaves much to be desired. Even if structural reform to the Security Council proves elusive, the Secretary-General’s Panel on Threats, Challenges, and Change represents an immense opportunity to develop criteria to guide the Council in decisions on the collective use of force.

The different options presented above are not mutually exclusive. In fact the emerging practices suggest that the states are open to all kind options in the fight against terror. They must nevertheless, of course, act in compliance with the law, and in particular with international law, of which various areas are relevant: the aw on the use of force, criminal law, humanitarian law and human rights.

 

 

Conclusion

The above discussion suggests that the law governing anti-terrorist force is in a process of change. The international consensus, as it is emerging, requires state cooperation or active state conduct against terrorism. International law now accepts that the fight against terror may require the use of extraterritorial force, but possibly also outside it. But this practice remains centered to NATO fight against terrorism and is not applicable to terrorism faced by other countries including India.

The emerging consensus on the NATO action against terrorism has put pressure on the traditionally restrictive regime of self- defence. This pressure has affected the interpretation of exceptions to the ban on force. This construction may be helpful in shaping international policy that denounces terrorism in all form.

However, there is downturn risk to it. The broadly construed exceptions to the ban on force may be abused to the extent of giving expansive interpretation to self- defence or even to accept ‘retaliatory self-defence’. The recent practice of the states, particularly US action aftermath 9/11 borders on reprisals to disproportionate exercise of self- defence. If any other countries were to rely on such broad construction of such regime, it would lead to subversion of world order.

This is not to suggest that no changes are required in the existing framework that handles anti- terrorism measures. In fact new threats of 21st century require new methods to cope with that. After all, Security Council Resolutions 1368 and 1373 reflect change in that direction as for the first time international community joined in unconditional condemnation of terrorist activities. Hence we should not shy away from the change itself. But any such changes among other things should include a consensus on underlying principles, a relative equality of actors within the system, and a level of trust sufficient to make co-operation possible.

 

 

[1] SC Res. 1368 (Sept. 12, 2001) and 1373 (Oct 7, 2001).
[2] Anwar al-Awlaki killed in Yemen – As it Happened, available at http://www.guardian.co.uk/world/blog /2011/sep/30/ anwar-al-awlaki-yemen-live
[3] Shaw, International Law, 4th Ed, p.1048. He has cited many examples where the states have in the past actively used this policy to achieve political ends.
[4] It need not be repeated that the UN was created to maintain international peace and security. The challenge of terrorism increasingly threatens the framework of international security. Also see, SC Res. 1368 (Sept. 12, 2001)
[5] General Assembly resolutions, such as the Declaration on Principles of International Law (GA Res. 2625 XXV 1970) and the Definition of Aggression (GA Res. 3314 XXIX 1974)
[6] The ICJ in Nicaragua case came close attaining Jus Cogens status to use of force. See, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) [1986] ICJ Rep 14.
[7] Also see, Regional Arrangement Chapter VIII, UN Charter
[8] ‘Acts of deterrence’ in this context refer to the use or threatened use of force for political purposes. They entail increasing military strength of a state in order to be prepared to inflict unacceptable damage on an aggressor and making sure that the potential aggressor is aware of the risk, so that he refrains from aggression. Thus, ‘acts of deterrence’ include actions by which governments threaten an immense retaliation if attacked, such that aggressors are deterred if they do not wish to suffer great damage as a result of an aggressive action.
[9] R. Jennings and A. Watts, Oppenheim’s International Law, Volume I (1992), p. 421.
[10] International order in a globalizing world, By Yannis A. Stivachtis, Retrieved from Google Books.
[11] Also See, Oil Platforms (Iran v United States of America), International Court of Justice, Judgment (Merits) of 6 November 2003, ICJ Reports 2003, p. 161.
[12] Syria, Guyana, Pakistan, Spain and Yugoslavia were the non- permanent members which opposed Israeli action.
[13] Caroline incident refers to the British attack in 1837 on a vessel owned by US nationals, Caroline, on the basis of its alleged support to the anti-British insurgency in Canada and with a claim to right to self-defence.
[14] These measures related to curbing finances of terrorism, freezing the financial assets of terrorist organization, imposing travel bans, etc.
[15] Charney, J, The Use of Force against Terrorism and International Law, AJIL, Vol. 95, No. 4, p. 840
[16] See, Ruys, ‘Quo Vadit Jus ad Bellum? A Legal Analysis of Turkey’s Military Operations against the PKK in Northern Iraq’, 12 Melbourne J Int’l L (2008),p. 337
[17] The effective control test has also been incorporated in Draft Articles On State Responsibility by ILC, See especially Art. 8 (‘Conduct directed or controlled by a State’). In the commentary thereto, the ILC makes extensive reference to the Nicaragua judgment, thus acknowledging the origin of the effective control test.
[18] See Dissenting Opinion of Judge Jennings, Nicaragua Judgment
[19] Oil Platforms Case (Islamic Republic of Iran v. United States of America), Judgment of 6 Nov. 2003, [2003] ICJ Rep 161, Para. 291
[20] Armed Activities on the Territory of the Congo (DRC-Uganda case), [2005] ICJ Rep 201, para. 148
[21] This doctrine was explored in the article Cassese, ‘Terrorism Is also Disrupting Some Crucial Legal Categories of International Law’, 12 EJIL (2001) 993
[22] See Lobel, ‘The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan’, 24 Yale J Int’l L (1999) 537. This article surveys the existing state practices in dealing with terrorism as came out from their governments’ statements before various international for a.
[23] Organization of Islamic Conference does not agree on the definition given in the draft. It insists on making distinction between terrorists and those fighting for freedom.

 
[24] See, R Higgins and M Flory International Law and Terrorism (London Routledge 1997), at 28.
[25] This is proposed by Guillaume G, in his Article Terrorism and International Law, The International and Comparative Law Quarterly, Vol. 53, No. 3 (Jul., 2004), p. 537.

 

The Status of International Law under the Constitution of India

Introduction

The status of International Law within a municipal legal system is generally determined by the Constitution of a State or Municipal Law. This article attempts to shed light on the Status of International Law under the Constitution of India. Unlike France, United States, Germany and some modern Constitutions that provide relatively clear provisions for the Domestic Application of International Treaty Law or Customary Law, the Constitution of India does not make specific, emphatic reference to the status of International in its domestic legal system, nor does it specifically obligates or authorises the judiciary to draw on International Law1.

Provisions of the Constitution of India touching the Status of International Law.

The basic provisions of the Constitution of India relevant for consideration of its interaction and inter-relationship with International Law are;  (1) Article 51                  (2) Article 73  (3) Article 245 & 246 (4) Article 253  (5) Article 260  (6) Article 363  (7) Article 372 and (8) VII schedule – entries 10 to 21.

Article 51 Promotion of International Peace and Security; The state shall endeavour to –

a)         promote international peace and security

b)         maintain just and honourable relations between nations

c)         foster respect for International Law and Treaty obligations in the dealings of organized people with one another; and

d) encourage settlement of International dispute by arbitration.

For the purpose of this study, the central point for discussion is Article 51(c).     Article 51 of the Constitution had its source and inspiration in the Havana Declaration of 30 November 1939.  The first draft (draft Article 40) provided:

“The state shall promote international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of International Law as the actual rule of conduct among governments and by the maintenance of justice and scrupulous respect for treaty obligations in the dealings of organized people with one another”.

With the acceptance of amendments moved by Dr. Ambedkar, H.V. Kamath, Ananthasayanam Ayyangar and P. Subbarayan, draft Art. 40 was adopted by the Constitutent Assembly in its present form as Article 51.  During the debate, all the speakers emphasized commitment of India to promoting International Peace and Security and adherence to principles of International Law and Treaty obligations.2

It is significant to note that the clause ‘c’ of Art. 51 specifically mentions ‘International Law’ and ‘Treaty Obligations’ separately.  According to Prof. C. H. Alexandrowicz the expression ‘International Law’, in the said paragraph      connotes Customary International Law and ‘Treaty Obligations’ stands for obligations arising out of International Treaties.  This interpretation seems to be logical in the context of the text of the Draft Article 40 referred above as well as the attitudes of courts in India on questions of International Law.3 It is also significant to note that Art. 51 (c) treats both International Customary Law and Treaty Obligations on the same footings.4

Judicial interpretation of Article 51(c).

Article 51 has been relied upon by Courts to hold that various International Covenants, Treaties etc., particularly those to which India is a party or signatory, become part of Domestic Law in so far as there is no conflict between the two. 5

In Keshavanand Bharati v State of Kerala,6 Chief Justice Sikri observed;

“In view of Article 51 of the constitution this court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of United Nations Charter and the solemn declaration subscribed to by India”

It is significant to note here that Article 51 finds place in Chapter IV of the Constitution  which provides for Directive Principles of State Policy (DPSP) and are non – justiciable by virtue of Article 37.  Even though as one of the DPSP, Art. 51 is not enforceable through a court of law, Dr. Ambedkar had said in the Constituent Assembly that the intention was that the executive and legislature should not only pay lip service to these directive principles but “they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of governance of the country”. 7

Executive Power of the Union and International Treaties (Articles 53,73,253)

Article 73; Extent of executive power of the Union;

“Subject to the provisions of this Constitution, the executive power of the Union shall extend-

a)      to the matters with respect to which Parliament has power to make laws, and

b)      to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement ………………”

Article 53:      Executive Power of the Union :

“(1) The Executive Power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him accordance with this Constitution.”

Article 253 :   Legislation of giving effect to International Agreements –

“Not withstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the Territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any International Conference, Association or Other body.”

Under Article 53 the executive power of the Union vests with the President of India.  It is pertinent to note here that the President acts under the aid and advise of the Union Cabinet.8 Under Article 73, the executive power of the Union extends to all matters in respect of which parliament may make laws and to exercise of all powers that accrue to the Government of India from any International Treaty or Agreement.  It is also important to note here that executive power has to be exercised in accordance with Constitution and the laws. Article 253 confers power on Parliament to make any law for the whole or any part of the country to give effect to any International Treaty, Agreement, Convention or decision.

Though signing and ratifying an international treaty is within the domain of the executive, implementation of such treaty falls under the domain of Parliament as explicitly provided under Article 253.  Further it is to be remembered here that under Article 51, India commits itself to make endeavour to ‘foster respect for international law and treaty obligations’.  Thus under the scheme of the Constitution, International Treaties can be legally enforceable in India only when Parliament enacts an enabling legislation incorporating it under the domestic system. This stance is also fortified by the fact that India continue to act under the influence of Common Law system accepted during British rule and continued even after the coming in to force of the Constitution9.

Judicial stamp on the Status of International Law under the Constitution.

An infant Indian Judiciary, just after the coming in to force of the Constitution of India confronted with the issue of the Status of International Law under the provisions of the Constitution. The Division Bench of the Rajasthan High Court in Birma v. State,10 while considering the question as to whether a treaty between the British Government and The Princely State of Dholapur, which was not given effect to by means of  legislative enactment, could be regarded as part of the then Dholapur State observed thus;

“……Treaties which are part of the international law do not form part of the law of the land unless expressly made so by the legislative authority. In the present case the treaty remained a treaty only and no action was taken to incorporate it in to a law. That treaty cannot therefore be regarded as part of the Municipal Law of the then Dholapur State and the practice of surrendering fugitive criminals, which was being followed by the former Dholapur State cannot be deemed to be a law that could be continued under Article 372 of the Constitution of India……”

It was indeed surprising that, though the Dholapur State was in practice of surrendering of fugitive criminals under the treaty, such a practice constitute as custom under International Law and under Common Law, the Court came to the conclusion that, it cannot be regarded as a law by underestimating the effect of Article 372.

A far-reaching judgment of the Kerala High Court in Xavier v. Canara Bank Ltd.11, deserve to be mentioned here. The Court was ceased of a million dollar question, which is the central point for the present study. The issue was whether provisions of International Covenants/Treaties to which India is a party become part of the corpus juris of India and as a result giving an aggrieved individual a right to remedial action before the municipal court. The question arose on whether Article 11 of the I.C.C.P.R. 1966, viz., that no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation, has become part of the Municipal Law of this Country consequently conferring right to remedial action at the instance of an aggrieved individual of this Country. In dealing with this question, the Court observed;

“……The remedy for breaches of International Law in general is not be found  in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Right merely sets a common standard of achievement for all peoples and all nations but cannot create binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated, but individual citizens cannot complain about there breach in the municipal courts even if the country concerning has adopted the covenants and ratified the Optional Protocol. The individual cannot come to court but may complain to the Human Rights Committee, which in turn, will set in motion other procedures. In short, the basic human rights, enshrined in the International Covenants above referred to may at best inform judicial institutions and inspire legislative action within member –States but apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial authority…….”

The above observation of the Kerala High Court was quoted with approval by the Supreme Court in Jolly George Verghese v. Bank of Cochin12. In this case the Court was ceased with similar facts of the Xavier case. The Court was dealing with effect of international law and its enforceability at the instance of individuals within the State (India), and enunciated the law on the point thus;

“The positive commitment of the State parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the Corpus juris of India.”

The Karnataka High Court in Civil Rights Vigilance Committee S.L.S.R.C. College of Law, Bangalore v. Union of India and others13, while dealing with the question of Power of Courts to enforce International Treaty Obligations held that;

“…..the government of India’s obligations under Gleaneagles Accord and obligations attached to its Membership of United Nations cannot be enforced at the instance of citizens by Courts in India, unless such obligations are made part of the law of this country by means of appropriate legislation’.

In Magnabhai Ishwarbhai Patel v. Union of India,14 the Constitution Bench of Supreme Court of India observed that;

The effect of Art 253 is that if a treaty, agreement or convention with a foreign state deals with a subject within the competence of state legislature, the parliament alone has notwithstanding Article 246(3) the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body.”

Recently, yet again the Constitution Bench of the Supreme Court in State of West Bengal V. Kesoram Industries ltd15, observed that;

A treaty entered in to by India cannot become law of the land and it cannot be implemented unless parliament passes a law as required under Article 253.  The executive in India can enter in to any treaty be it bilateral or multilateral with any other country or countries”.

The single importance of putting Article 253 in the Constitution over and above the entries in List I of the Seventh Schedule was to clarify beyond doubt that for implementation of an international treaty, agreement or covenant or to give effect to a decision taken at an international forum, the Union Parliament could make any law irrespective of some items in the State List being attracted.  Thus, the distribution of legislative powers between the Union and the States under the Constitution cannot come in the way of international law obligations being implemented through parliamentary law.  The fact however is that the parliament has not so far made any law on treaty making powers and until that is done, the power of the executive in the matter of treaty-making shall remain unfettered.16

Article 260 : Jurisdiction of the Union in relation to territories outside India.

“The Government of India may by agreement with the Government of any territory not being part of the territory of India undertake any executive, legislative or judicial functions vested in the government of such territory, but every such agreement shall be subject to, and governed by, any law relating to the exercise of foreign jurisdiction for the time being in force.”

Under Article 260 read with entry 16 of the Union List in the Seventh Schedule of the Constitution, the Government of India may, by treaty or agreement with another country, exercise some extra-territorial jurisdiction in the territory of that country and ‘undertake any executive, legislative or judicial functions vested in the government of such territory”.  Article 260 clarifies that every such agreement shall be subject to and governed by any law relating to the exercise of foreign jurisdiction for the time being in force17.

Article 363 : Bar to interference by courts in disputes arising out of certain treaties agreements etc.

“Notwithstanding anything in this constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this constitution by any ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this constitution relating to any such treaty, agreement covenant, engagement, sanad or other similar instrument………..”

Article 363 bars the jurisdiction of all courts including the Supreme Court in matters arising out of “any provision of a treaty, agreement, covenant, engagement, sanad, or other similar instrument” entered into by the Government of India with any princely Indian state.  In the Maharaja Pravin Chandra Bhunj Deo Kakatiya v. state of M.P.18, it was held by the Supreme Court that any dispute arising out of the Merger Agreement, or the Instrument of Accession was beyond the competence of the courts to enquire into.

Legislative Jurisdiction on International Law concerns.

Article 245 – Extent of laws made by Parliament and by the Legislatures of States.

(1)            Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the legislature of a state may make laws for the whole or any part of the state.

(2)            No law made by the Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.

Article 246 – subject matter of laws made by Parliament and the legislatures of the state –

(1)               Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List – I in the Seventh Schedule (in this Constitution referred to as the Union List)

Under Articles 245 and 246 the Parliament can make laws for the whole or any part of India within its area of competence as defined and delimited under the distribution of legislative powers between Union and the States vide the Seventh Schedule.  Laws can’t be questioned on the grounds of extra territorial operations (Art. 245).  The Seventh Schedule to the Constitution embodies three lists, viz.  the Union List, State List and Concurrent List consisting of 97, 66 and 47 items, respectively.  In the three fold distribution of legislative powers, residuary powers of legislation have been left with Union (Article 248).  In regard to the Union List, the Jurisdiction of Parliament is exclusive.  International relations, foreign affairs, International Organisations and International Law matters generally have been specifically assigned by the Constitution to the Jurisdiction of the Union Parliament.19

Thus in the Seventh Schedule, List-I (Union List), the following entries are included :

a)                  Foreign affairs; all matters which bring Union into relation with any foreign country (entry 10)

b)                  Diplomatic, Consular and trade representation (entry 11)

c)                  Union Nations Organisation (entry 12)

d)                 Participation in International Conference, Associations and other bodies and implementing of decisions made there at (entry 13)

e)                  Entering into treaties, agreements and conventions with Foreign Countries (entry 14)

f)                   War and Peace (entry 15)

g)                  Foreign jurisdiction (entry 16)

h)                  Citizenship, naturalization and aliens (entry 17)

i)                    Extradition

j)                    Admission into, and emigration and expulsion from India, passports and visas

k)                  Pilgrimages to places outside India (entry 20) and

l) Piracies and crimes committed on the high seas or in the air (entry 21)

Article 372: Continuance in force of existing laws and their adaptation

 

“(1) Notwithstanding the repeal by this constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein in until altered or repealed or amended by a competent legislature or other competent authority.”

Article 372 continued all the pre-constitution ‘laws in force’ until altered, repealed or amended except that all those laws that were repugnant to any provision of the Constitution were declared to be void.  The importance of this provision here lies in the fact that continuance of “laws in force” means continuance of the British Common Law also as that was applied by courts in India in the pre-constitution period.20

What is important to note here is that the common law treats International custom as part of municipal law unless it is inconsistent with municipal law in which case municipal law prevails over international law.21 This is modified form of Blackstonian doctrine which treats international law as part of municipal law without any limitation whatsoever.  Further more according to common law, international treaties, which effect private rights, require modification of statute law and enabling Act of Parliament for their implementation.  Those treaties which are not inconsistent with municipal law are per se part of municipal law and do not need legislative Act for their implementation.22 Thus ‘common law’ maintains that the rules of international customary and treaty law, including U.D.H.R (containing customary norms of International Human Rights law) are part of municipal law, if they are not inconsistent with municipal law.

In Civil Rights Vigilance Committee SLSRC College of Law v. Union of India and others23, the Karnataka High Court observed that;

‘The position before English courts is something of a compromise between the two methods. There can be no doubt that they regard customary international law as part of the law of the land for they take “judicial notice” of it; that is to say they assume that the court knows the law and does require it to be proved by calling expert evidence, as in cases involving foreign and external systems of law. The court regard any relevant rule of customary international law as being incorporated in to the domestic law.’

In People’s Union for Civil Liberties v. Union of India24, the Supreme Court observed that;

“It is almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law.”

In A.P. Pollution Control Board v. Prof. M.V.Nayadu25, the Supreme Court recognized and applied the International Customary Rule of “precautionary principle”. The Indian Supreme Court’s view about customary nature of “precautionary principle” was appreciated in a Canadian case26.

Cession of Territory

The Supreme Court in its advisory opinion under Article 143 of the Constitution in  the “Berubari Case”27 said that where the implementation of an Indian Territory, it could not be done even by passing a law under Article 3.  A Constitution Amendment Act under Article 368 was necessary.  The court was of the opinion that Article 3 applied only to a federal redistribution of territories to a foreign state.20  This opinion was followed in subsequent Supreme Court judgments in Rama Kishore Sen and others v. Union of India.28, Magnabhai Ishwaribai Patel v. Union of India,29 and Union of India v. Sukumarson Gupta 30 cases.

Conclusion

 

Thus the combined reading of Articles 51(c), 73, 253 read with entries 10 to 21 of Seventh Schedule and 372 and judicial interpretation reveal that, unless and until Parliament enacts a law implementing international treaty ( treaties involving conferring or curtailing private rights, cession of territory), such treaty provisions cannot be enforced per se in India.  Further if such treaty provisions are consistent with Indian law or there is void in the domestic legal system then they can be read into, to do justice, and if there is conflict between the two then domestic law prevail over international law.  Further customary rules of International law are part of Indian Legal System.  But there are hardly any instances of such enforcement in India.

 

What is to be noted here is that, the language used in Article 51 and its place under Part IV of the Constitution reveals that the framers of the Constitution have given little importance to the status of International Law under the Indian Legal System and the successive Governments are unmindful of this fact. Even after sixty years of coming in to force of the Constitution, sincere attempts have not been made to clarify the status of international law and its application under the Indian legal system. This is important in the context of domestic implementation of international human rights treaties. Otherwise International Laws including Human Rights Covenants Conventions, Treaties remain bare promises.

 

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* Advocate, High Court of Karnataka, Bangalore.

 

** Reader in Law, Dept. of Studies in Law, Mysore University, Mysore.

 

Endnotes

1)       In this regard, provisions of South African Constitution of 1996 (Sections 39(1) & 233) are quite fascinating, which obligates the senior courts to consider International Law, while interpreting rights and legislations and authorize them to consider relevant foreign jurisprudence.  See generally N. Botha, ‘International Law in the constitutional court’, South Afr. Yr. Book of Int. L. Vol. 20, (1995) pp.222-60, and R.C. Blake, ‘The World’s Law in one country’, The South African Constitutional Court’s use of Public International Law’, South Afr. L. J. vol.115 (1998), pp.668-84.  Cited in Rindwanul Hogue and Mostafa Mahmud Naser, The Judicial Invocation of International Human Rights Law in Bangladesh : Questing a Better Approach’, IJIL, vol.46, 2006, P.159.

2)       Subhash C. Kashyap, The constitution of India and International Law’, Bimal N. Patel (ed.), ‘India and International Law’, Martinus Nijhoft Publishers, Leiden 2005, p.19.  (emphasis supplied.)

 

3)       M. K. Nawaz, ‘International Law on the contemporary Practice of India Some Perspectives’, Proc, ASIL, April 25 – 27 (1963), p 275 at p.278 ; see also C.H. Alexandrowicz, ‘International Law in India’, ICLO (1952), p.292. cited in Dr. S. K. Kapoor ‘Human Rights under International Law & Indian Law’, Central Law Agency, Allahabad 3rd ed., 2005, p.271.

 

4)       Emphasis supplied.

 

5)       In Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845; Ali Akbar v. U.A.R. AIR 1966 SC 230; Magnabhai v. Union of India, AIR 1969 SC 783; Gramaphone Co. Birendra, AIR 1984 SC 667; Jolly George Verghese V. Bank of Cochin, AIR 1980 SC 470; UPSE Board v. Hari Shankar, AIR 1979 SC 65; Prem Shankar Shukla v. Delhi Adm., AIR 1980 SC 1535; Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

 

6)       AIR 1973 SC 1461

 

7)       Subhash C. Kashyap, supra, p.20

 

8)       Article 74 of Constitution of India, 1950

 

9)       Article 372 of Constitution of India 1950

 

10)    AIR 1951 Raj 127 (emphasis supplied)

 

11)    1969 Ker L T 927 (emphasis supplied)

 

12)    AIR 1980 SC 470 (emphasis supplied)

 

13)    AIR 1983 Kar 85 (emphasis supplied)

 

14)    AIR 1969 SC 783 at para 25 (emphasis supplied)

 

15)    AIR 2005 SC 1644 at para 4

 

16)    Subhash C. Kashyap, supra p.22

 

17)    Ibid

 

18)    AIR 1961 SC 775, cited in Subhash C. Kashyap, supra

 

19)    Subash C. Kashyap, supra at 21

 

20)    Builders Supply Corp. v. Union of India, AIR 1965 SC 106 cited in Subhash C. Kashyap, supra p.23 see also Gurudip Singh, ‘Human Rights Covenants in India’ IJIL, at 222 see also Civil Rights Vigilance Committee S.L.S.R.C. College of Law v. Union of India, AIR 1983 Kar. 85 at 89.  In Re Amina AIR 1992 Bom 214

 

21)    Chung Chi Cheung  v. R. A.C. (1939), 160 at y 168 see also Gurdip Singh, ‘Status of Human Rights Covenants in India’, IJIL, p216

 

22)    The Zamora,  A.C.  2 (1916) at 77

 

23)    AIR 1983 Kar 85 (emphasis supplied)

 

24)    AIR 1997 SC 568

 

25)    1999 SCC 712

 

26)    Canada Ltee (Spraytech, Socie’te’ d’arrosage) v. Hudson (2001) 2 SCR 241 at para 32, per L’Heureaux-Dube J.

 

27)    In Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845

 

28)    AIR 1966 SC 644

 

29)    AIR 1969 SC 783

 

30)  AIR 1990 SC 1962

*Jagadish S.Halashetti

**Dr.Ramesh