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Contents Introduction:............................................................... Maritime Jurisdiction under International Law.................................................................. ......................3 Jurisdiction Under Various Maritime Zone................................................................. .............................5 Territorial Seas................................................................. ..................................................................... ....6 Contiguous Zone................................................................. ..................................................................... .8 Exclusive Economic Zone................................................................. .......................................................11 High Seas................................................................. ..................................................................... ............11

description

international law

Transcript of Pil Project

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Contents

Introduction:.................................................................................................................................................................

Maritime Jurisdiction under International Law........................................................................................3

Jurisdiction Under Various Maritime Zone..............................................................................................5

Territorial Seas..........................................................................................................................................6

Contiguous Zone.......................................................................................................................................8

Exclusive Economic

Zone........................................................................................................................11

High

Seas..................................................................................................................................................11

Flag state Jurisdiction under UNCLOS...................................................................................................12

Conclusion................................................................................................................................................................11

Bibliography.............................................................................................................................................15

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Maritime Jurisdiction of Indian Courts with Special Reference to Enrica Lexie’s Judgment

Introduction

“The history of modern international law of the sea can be best understood by perceiving it as a

continual conflict between two opposing fundamental principles, territorial sovereignty and freedom

of the seas.”1

The principle of freedom of the sea aims to secure open access of the seas to all

nations and may not subject to national sovereignty. In opposed to the principle of the freedom of

sea, the principle of close seas seeks to safeguards the interests of the littoral state. The principle

of close seas or of sovereignty essentially promotes the extension of national jurisdiction into

offshore spaces and supports territorialisation of the ocean.

The UNCLOS is also known as a “constitution for the oceans” which established a fine balance

between state sovereignty and the freedom of seas. The UNCLOS confines the state sovereignty

within territorial waters which may be extended maximum of 12 and preserve the right of

innocent passage.It was thought that jurisdictional creep would end with the conclusion of

UNCLOS. Turning from historical attainment of the UNCLOS to the contemporary world, one can

easily observe the increasing demands for extension of the exclusive authority of states over the

oceans.

Since the world is melting in a global village, the crimes and their transnational effects have

encouraged the states to exercise jurisdiction beyond their territorial boundaries. The desires of

states to apply their national laws extraterritorially have increased the concomitant risk of

conflict among them. It also raises questions about the priority that might or should be accorded

between assertions of different types of jurisdiction.

The main issue for the research is whether a coastal state may extend its penal laws beyond the

prescribed limit under UNCLOS. Further, can a coastal state assert jurisdiction on the basis of

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1 See E. D. Brown, The exclusive economic zone: criteria and machinery for the resolution of

international conflicts between different users of the EEZ, 4 Maritime Policy and Management 325

(1977).

such extension of penal laws and if an offence happened beyond territorial water of a coastal state

then who will have a better claim for jurisdiction? Would it be the coastal state who claims on the

basis of municipal laws or the flag state which is backed by the UNCLOS and customary international

laws? The same situation came before Indian Supreme Court in the case of Enrica Lexie. The

Supreme Court of India gave weightage to its extended municipal laws and decided that Indian court

had jurisdiction to decide since the right of sovereignty extend up to contiguous zone of India.

The research is divided in four parts. The first part will discuss the general introduction of the

research. Second part of the research will focus on the international laws related to the

jurisdiction in the various zone as defined under UNCLOS. Third part of the research will

discuss the legal provisions of India on this issue and judicial approach relating to extraterritorial

offences. Finally the research will provide conclusion and suggestions.

Maritime Jurisdiction Under International Law

Jurisdiction is an essential characteristic of the state sovereignty. It combines judicial, legislative and

administrative competence. Within international law, jurisdictional issues are usually distinguished

between the jurisdiction to prescribe law and the jurisdiction to enforce law. The earlier is related to

the competency of legislature to legislate municipal laws and later is related to enforce such laws

either by executive means or judicial orders and decisions.

There are five principles of prescriptive jurisdiction of a state within international law:

1. Territorial Principle

2. Nationality principle

3. Passive Personality Principle

4. Protective Principle, and

5. Universal Theory.

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The territorial principle recognizes exclusive jurisdiction of a state to prescribe and enforce

law regarding conduct that occurs within its state's territory.1Therefore, a state may claim

jurisdiction over criminal act or omission that occurs within its territory irrespective of the

nationality of the offender. A foreigner is can’t challenge jurisdiction except instances of immunity,

or municipal law is in violation of international law. When a ship sails within a foreign state’s

territorial sea, both the coastal state and the flag state have concurrent jurisdiction over the ship. The

UNCLOS provides that those foreign flagged vessels are subject to the laws of the coastal states

when the vessels are in the territorial water of that state. But the coastal state may invoke criminal

jurisdiction in the cases mentioned in Article 27 of the UNCLOS. Further the coastal state would

only be able to conduct investigation of a crime if the offence is committed outside the territorial

sea. The flag state rule is so predominant that flag state can assert jurisdiction over a ship within

internal waters of another state.

The nationality principle allows states to take jurisdiction of their own citizens regardless the place

of occurrence.

The passive personality principle allows states to take jurisdiction of a crime committed against its

nationals. It is based on the idea that states have an interest in punishing perpetrators of crimes

against their citizens and the citizens carry the protection of their national law with them beyond the

territory.

2herefore, under the passive personality principle a state may apply its laws against a

foreign national for acts committed outside the state's territory against its citizens. The passive

personality principle is rarely invoked because it is directly challenge the territorial principle.

The protective principle of jurisdiction focuses on the effect or potential effect of an offense and

provides for jurisdiction over harmful conduct which has consequences of the utmost gravity for the

state. Conduct that threatens national security, integrity and political stability of a state justifies

asserting this type of jurisdiction. However, this theory of jurisdiction has been criticized for

potentially allowing states to judge subjectively what conduct is particularly harmful, and could,

therefore, result in arbitrary decision making.

The principle of universal jurisdiction gives the authority to a state to prosecute and punish a

criminal regardless of any link between the accused and the prosecuting state because the crime is

1 BARRY E. CARTER, PHILLIP R. TRIMBLE, INTERNATIONAL LAW (NEW YORK: WOLTERS KLUWER,

1999) 813.

2 J.G. STARKE, INTRODUCTION TO INTERNATIONAL LAW (BUTTERWORTHS, (1989) 276-77

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so heinous and universally condemnable that the offender is considered as enemy of humanity

particularly heinous offense such as piracy, slave trafficking,war crimes, hijacking and sabotage of

aircraft, genocide, and terrorism.

A.) Jurisdiction Under Various Maritime Zone

The UNCLOS largely superseded the Geneva Conventions. It demarcates new maritime zones of the

sea and delineation of where coastal states and other states have various rights and liabilities. These

zones include the internal waters, the territorial sea, the contiguous zone, the exclusive economic

zone, the continental shelf and the high seas.

I. Internal Waters

ticle 2(1) of the UNCLOS treats internal waters equal to land territory of a coastal state. Over the

internal waters, a coastal state exercises sovereignty and foreign flag ship has normally no

international legal right of transit. The single exception to this rule is that where straight

baselines are drown along an indented coast enclosing as internal waters areas that had along an

intended as such, a right of innocent passage continues to exist though those waters.3

Furthermore, the UNCLOS and the 1958 Territorial Sea Convention do not provide any

limitations on the criminal or civil jurisdiction of a local state over foreign vessels in its port. The

states have authority to exercise jurisdiction over foreign vessels regarding activities that take place

while the vessel is in port. This is because ports are considered part of the internal waters, and internal

waters are treated as if they are part of the land of the state.

However, most states rarely exercise jurisdiction over a foreign vessel in port. The coastal states do

not exercise jurisdiction over matters that are considered related purely to the “internal

economy” of the foreign vessel. Instead, jurisdiction is only exercised when the activity in

question affects the local state and threatens the peace of the port.

II. Territorial Seas

The sovereignty of a littoral state extends beyond its land territory to its territorial sea. The UNCLOS

provides that states can claim a territorial sea of up to twelve nautical miles from their

shores.4However, exercise of sovereignty within this terrain is “subject to the UNCLOS and to

other rules of international law.”

3 O.P. SHARMA, ITERNATIONAL LAW OF THE SEA, (OXFORD, NEW DELHI; 2009) 35-36.

4 Article 3 of the UNCLOS

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The right of innocent passage5 is one major limitation on the exercise of sovereignty over ships in

the territorial sea. Passage includes navigation for the purpose of calling at a port facility.6

Although passage must be continuous and expeditious, stopping and anchoring are included within

the definition of passage so long as it is incidental to ordinary navigation or necessary due to bad

weather or some sort of distress.

Article 19 of the UNCLOS, states that passage is innocent so long as it is not prejudicial to the peace,

good order or security of the coastal State. The article lists numerous activities that are considered

prejudicial. Whereas the UNCLOS allows for an extension of sovereignty within territorial sea, the

right of innocent passage greatly preserves the freedom of navigation by discouraging coastal state

regulation over foreign vessels.

The UNCLOS puts limitations over a coastal state for assertion jurisdiction over a foreign ship in

territorial waters.7

The coastal states can exercise criminal jurisdiction to a foreign ship passing

through the territorial sea only in the exceptional cases. The coastal state can take jurisdiction of an

offence if the consequences of the crime extend to it or if the nature of the crime would disturb

the peace of the country or the good order of the territorial sea.The purpose the above provision is to

protect the traditional right of innocent passage to the greatest extent possible, and

to preserve the primacy of the flag-state’s jurisdiction.

There are also limitations on the exercise of civil jurisdiction.8

III. Contiguous Zone

The UNCLOS also recognizes contiguous zone, which includes the waters contiguous to the territorial

sea. A coastal state may extend its contiguous zone up to twenty-four nautical miles from baselines

from which the breadth of the territorial sea is measured.The coastal state can exercise control

5 Article 17 of the UNCLOS

6 Article 18 of the UNCLOS

7 Article 27 of the UNCLOS

8 Article 28 of the UNCLOS

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necessary within the contiguous zone to prevent and punish “the infringement of its customs, fiscal,

immigration, or sanitary laws and regulations within its territory or territorial sea.In effect, this

provision permits states to extend their jurisdiction beyond the territorial sea limit of twelve miles

with respect to certain prescribed areas of the law that are breached within their territory or territorial

sea.There is also a more expansive view that states have jurisdiction over violations that occur

within the contiguous zone if the foreign vessel is about to enter or just left the territorial sea

IV. Exclusive Economic Zone

The UNCLOS will be remembered in the history of international law for granting reorganization to

the concept of the exclusive economic zone (herein after referred as EEZ). The EEZ is an area beyond

and adjacent to the territorial sea extended upto 200 nautical miles from the baselines from which

the breadth of the territorial sea is measured.The UNLOS grants rights to exercise jurisdiction with

respect to: (i) the establishment and use of artificial islands, installations and structures, (ii) marine

scientific research, and (iii) the protection and preservation of the marine

environment.9

thin the EEZ, the coastal state has sovereign rights in exploring, exploiting, conserving, and managing

living and non-living resources. The coastal state possesses jurisdiction only over matters

regarding artificial structures, marine scientific research, and the marine environment.In

addition, all states are also entitled to the freedoms in the EEZ as provided in the high seas relating

to the freedom of navigation, overflight, laying of submarine cables and pipelines, and other

purposes that are compatible with the EEZ provisions of the Convention.The limitations on

the assertion of jurisdiction on the high seas are also applicable to the EEZ unless they are

incompatible with other provisions of the UNLOS. A coastal state cannot impose other laws, such as

criminal laws, not identified in the UNCLOS provisions.

V. High Seas

The high seas constitutes “all parts of the seas that are not included in the exclusive economic zone, in

the territorial seas or in the internal waters of a State, or in the archipelagic waters of an archipelagic

State.”The high seas are open to all States, coastal and landlocked alike.Furthermore, no

state may claim, any part of the high seas, sovereignty and the highseas are reserved for peaceful

purposes.10The UNCLOS also includes the customary rule that ships on the high seas are subject to

9 Article 60 of the UNCLOS

10 The M/V “Saiga” (No. 2) Case (St. Vincent v. Guinea), Judgment, 127. (July 1, 1999), 38 I.L.M. 1323 (1999)

(stating that UNCLOS “does not empower a coastal State to apply its customs laws in respect of any other parts of the

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the exclusive jurisdiction of the flag state under which the ship is registered.11 The flag state control

principle promotes order on the high seas and fortifies the high seas freedoms. The principle can only

be suspended when a foreign warship encounters a flag ship on the high seas and has

reasonable grounds to suspect one of the exceptions listed in Article 110 of the UNCLOS.

B). Flag state Jurisdiction under UNCLOS

In order to ensure safe and smooth navigation, the activities of vessels must be regulated by

some authority and such authority should not change at every change of waters. Therefore the

concept of the national character of a ship was developed to regulate ships and protect them from

pirates and detention by other nations. The term ‘flag state’ denotes the state whose nationality a

ship bears, and whose flag it flies as a symbol of its nationality. The flag State has authority over

and responsibility in respect to, all ships upon which it has conferred its nationality.

The UNCLOS codified the customary law of the flag. Article 92 of UNCLOS declares that no state

shall exercise criminal jurisdiction over a foreign vessel on the high seas unless permitted by

treaty.Further, Article 27 of the UNCLOS restricts coastal states from exercising

jurisdiction over vessels in their territorial waters.

Maritime Jurisdiction under Indian Law

The principle of independence of a state signifies the right of a state to exercise jurisdiction both

within and beyond its territory, subject to the limits imposed by international law. Broadly speaking,

jurisdiction is an aspect of sovereignty and refers to the power of a state to affect the rights of a

person or other entity whether by legislation, by executive degree or by the judgmentof a court.

India is a sovereign, socialist, secular, democratic, republic country and the

Constitution of the India, 1950 (hereinafter referred as the Constitution) is the highest legal norm.

exclusive economic zone not mentioned” in Article 33(1)), available at h tt p ://ww w . itlo s . or g

11 Art. 92 of the UNCLOS (“Ships shall sail under the flag of one State only and, save in exceptional cases expressly

provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high

seas.”).In

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Article 1 of the Constitution states that India shall be a Union of States and the territory shall be

comprised of the territory of States, Union Territories and the other territory acquired. The word

‘territory’ in the constitution is used only for the land territory. It shows the continental mindset of

constitutional maker. The maritime domain is further dealt by Article 297.

The territorial water of India is an integral part of Indian territory by the virtue of international law

and the constitution.12 The Article 297 states that all lands, minerals and other things of value

underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic

zone, of India shall vest in the Union and be held for the purposes of the Union. The article further

makes it clear that all other resources of the exclusive economic zone of India shall also vest in the

Union and be held for the purposes of the Union.

The Article 297 serves two fold purposes. First, it declares that the rest of the world that India treats

the territorial water as territory of India. Secondly, it vests the maritime territory in the Union as

against its Federal Units.

The constitution empowers the parliament to make laws with respect to maritime territory. It can be

drawn from Articles 245, 246, 248 read with entry 97 of the Union list of the 7th

schedule of

the constitution. Article 245(2) the constitution elucidates that no law made by Parliament shall be

deemed to be invalid on the ground that it would have extra-territorial operation. Same the time, the

Constitution also prescribes limitation for making of laws with respect to territory, subject matter,

time span of the operation of the laws and the principle of basic structure.

Initially, the limit of the territorial waters of India was understood to be three nautical miles. The

Presidential proclamation dated March 22, 1952, extended the territorial sea up to six nautical miles.

It was further extended to twelve nautical miles by another Presidential proclamation dated

September 30, 1967. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other

Maritime Zones Act, 80 of 1976 (hereinafter referred to as ‘the Maritime Zones Act’) fixed the limit

of the territorial sea at 12 nautical miles.The Act further authorizes the Parliament to alter such limit

of the territorial waters.

12

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In exercise of the power under Section 7(7) of the Maritime Zone Act, the Government of India

had issued a notification. Through the notification, the IPC and Cr.P.C. have been made applicable to

the EEZ. After this notification, Section 2 of the IPC is extended the Contiguous Zone/EEZ.

The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platform on

Continental Shelf Act, 2002 (SUA) is another statute to deal with maritime offences. It is limited in

its application to acts of terrorism committed against safety of maritime navigation and fixed

platforms on continental shelf extends to the whole of India including the limit of the territorial

waters, continental shelf, the exclusive economic zone or any other maritime zone of India.

The Enrica Lexie Judgment and observations made by the Supreme Court of India

In the case of Enrica Lexie,13the Supreme Court had two issues to decide. The first issue concerned

the jurisdiction of police of the State of Kerala (a Federal Unit of the Republic of India) to

investigate the incident of shooting of the two Indian fishermen on board their fishing vessel. Second,

whether the Courts of the Republic of Italy or the Indian Courts had jurisdiction to try the accused.

The court held that since the incident occurred not within the territorial waters of the coastline of the

State of Kerala, but within the Contiguous Zone, over which the State Police of the State of Kerala

ordinarily has no jurisdiction.The extension of the Indian Penal Code and the Code of Criminal

Procedure though Section 188A, to the Exclusive Economic Zone did not vest the Kerala Police

with the jurisdiction to investigate into the incident under the provisions thereof.

The State of Kerala had no jurisdiction over the Contiguous Zone and even if the provisions of the

Indian Penal Code and the Code of Criminal Procedure Code were extended to the

Contiguous Zone.The court further held that the result of such extension is that the Union of India

extended the application of the Indian Penal Code and the Code of Criminal Procedure to the

Contiguous Zone, which entitled the Union of India to take cognizance of, investigate and prosecute

persons who commit any infraction of the domestic laws within the Contiguous Zone. However, such

a power is not vested with the State of Kerala.

On the second issue the court held that the provisions of the UNCLOS are in harmony with the

Provisions of the Maritime Zones Act, 1976.

According to the court, the only area of difference

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between the provisions of the Maritime Zones Act, 1976, and the UNCLOS occurs in Article 97 of

the UNCLOS which relates to the penal jurisdiction in matters of collision or any other

incident of navigation. However, it has to be seen whether the firing incident could be said to

be covered by the expression “incident of navigation.”The court explained that an incident of

navigation cannot involve a criminal act in whatever circumstances.

The court further held that “India is entitled both under its Domestic Law and the Public

International Law to exercise rights of sovereignty upto 24 nautical miles from the baseline on the

basis of which the width of Territorial Waters is measured, it can exercise only sovereign rights

within the Exclusive Economic Zone for certain purposes. The incident of firing from the Italian

vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of india

is entitled to prosecute the two Italian marines under the criminal justice system revalent in the

country.

On the above observations the court directed the Union of India to set up a Special Court with

consultation with the Chief Justice of India, to try this matter and to dispose of the same in

accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the

Code of Criminal Procedure and most importantly, the provisions of the UNCLOS 1982.The court

transferred the pending proceedings before the Chief Judicial Magistrate, Kollam, to the Special

Court. Further the court held that the petitioners are not prevented to invoke the

provisions of Article 100 of UNCLOS 1982, whereupon question of jurisdiction of the Union of India

to investigate into the incident and for the Courts in India to try the accused may be reconsidered.If

the special court founds that both courts of Italy and India have concurrent jurisdiction over the

matter, then the above said directions would continue to hold good.

Concl u sion

The jurisdiction of a coastal state over maritime area remains nothing less then that the

projection of state sovereignty on seas. The coastal states exercise sovereignty over territorial sea and

exercise sovereign rights in EEZ. However the authority over territorial sea is not same as land

territory and the right of passage creates a major hole in the sovereignty of the coastal state. The

situation is no different in the exclusive economic zone. The coastal state enjoys sovereign rights for

the purposes of exploration and exploitation of the natural resources of the zone and may also

exercise jurisdiction as to the establishment of offshore structures, the conduct of marine

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scientific research and the protection of the marine environment. At the same time, all the states enjoy

freedoms mentioned in Article 58 of the UNCLOS.

The Court excluded the State of Kerala’s jurisdiction because the matter is of public international law

and the offence is committed in the contiguous zone of India which belongs to the Union of India and

not to its federal unit. It is hereby respectfully submitted that public international law does not

address the structure of a national criminal courts and their internal criminal processes. While the

Court had rejected the defence of sovereign immunity of the Italian marines and treated them as

ordinarily accused, the above reasoning does not support to set up a new court in Delhi. It is pertinent

to note that Indian Constitution provides a unitary judicial system for both the Union of India and

States. The constitution provides different legislative fields for the Parliament and state

legislature but it does not differentiate in the judicial system. So directing for a new court for the

trial by excluding the jurisdiction of the Kollam district court does not seem to be appropriate.

The observation of the court that international law permits the exercise of jurisdiction within

contiguous does not appear to be a good law. Section 5 (4) Indian Maritime Zone Act 1976 is not in

consonance with its counterpart under the UNCLOS. According to Article 33 of the

UNCLOS, the coastal State may exercise the control necessary to prevent and punish for the

infringement of its customs, fiscal, immigration or sanitary laws and regulations within its

territory or territorial sea and punish for the same if the infringement is committed within its territory

or territorial sea.

The judgment is not clear on the point that, whether international law permits jurisdiction in

contiguous zone or whether the absence of a prohibition is sufficient. The expression mentioned in the

judgment “right of sovereignty” is nowhere found in the UNCLOS which is repeatedly emphasized by

the court. Article 56 provides that coastal states have sovereign rights for the purpose of exploring,

exploiting, conserving and managing the natural resources of the zone. The phrase “sovereign rights”

was deliberately selected to provide an unambiguous distinction between coastal state rights and

jurisdiction in the EEZ and coastal state “sovereignty” in the territorial sea. The coastal state also has

limited resource-related jurisdiction in the EEZ with regard to the establishment and use of artificial

islands, installations and structures, and the protection and preservation of the marine environment.

The court failed to appreciate interlinks among various provisions of the UNCLOS and especially

within the articles 58 and 97.

Article 58(1) makes clear that the high seas freedoms of navigation, overflight, of the laying of

submarine cables and pipelines apply in the EEZ also. Article 58(2) further provides that Articles

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88 to 115 also apply to the EEZ as long as they are compatible with Part V. The application of

Article 89 to the EEZ emphasizes that the coastal state only enjoys “sovereign rights” in the

EEZ, not “sovereignty.” Further, the duties to render assistance to persons in distress at sea, to

prohibit the transport of slaves, to cooperate in the repression of piracy, to cooperate to suppress the

illicit traffic in narcotic drugs, and to cooperate to suppress unauthorized broadcasting from the high

seas equally applies to the EEZ. Finally the rights of visit and hot pursuit are applicable in the EEZ.

The UNCLOS directs coastal states to adopt only laws and regulations for the prevention, reduction

and control of pollution from vessels conforming and giving effect to generally accept international

rules and standards established through the competent international organisation or general diplomatic

conference. It is also necessary that the coastal state should feel ‘special circumstances’ to adopt new

laws for the protection of its resources and environment.

The decision of the Court heavily relied on Article 100 of UNCLOS. It is important to note that the

article neither deal with jurisdiction between states nor imposes any strict obligation to a state. It

deems here that the judgment is based on a provision which did not have much relevance to the case.

Article 300 of the UNCLOS which provides that, “State Parties shall fulfill in good faith the

obligations assumed under this Convention and shall exercise the rights, jurisdiction and

freedoms recognized in the Convention in a manner which would not constitute an abuse of right.”

In addressing both questions together, the Supreme Court’s judgment remains imprecise on

the relationship between international law and municipal law.

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Bibliography

Book referred:-

1. Dr. S.K. Kapoor, International Law and Human Right, Central Law Agency, 18th edition, 2011.

2. K.C. Joshi, International Law and Human Right, Eastern Book Company, 5th edition, 2006

3. Dr. H. O. Agrawal, International Law and Human Right, Central Law Publication, 17 th edition,

2010

4. Malcolm N. Shaw, International Law, Cambridge University Press, 15th edition, 2004

5. M. P. Tandon and V. K. Anand, International Law and Human Right, Allahabad Law Agency,

16th edition, 2005

6. Bal Krishnan Raj Gopal, International Law from below, 1st edition, 2005

7 Patrica Bionie and Alan Boyle, International Law and the environment, Oxford University Press, 2nd

edition, 2001