1

Name- Sankalp Parihar

ID No.- 019/2019/2202
Semester- IV
Subject- Public International Law

ANSWER 1 (SACE I)

INTRODUCTION

As mentioned in the question, ‘in the context of international law, boundaries are a key
element which portrays a states’ power, control and sovereignty over a territory’. Further, a
boundary determines the extent of jurisdiction of a state over piece of land or extent of
control on sea in case of maritime boundaries. As per the various pronouncements of the
‘International Court of Justice’ hereinafter referred as ‘ICJ’ or ‘the court’, while adjudicating
on the matters of disputes between the states in the matters pertaining to jurisdiction and
sovereignty over an area, agreements related to boundaries play an important role and in
those agreement the mutual consent of the parties to the said agreement. This stance of the
court that parties to the agreement are solely responsible for defining the boundaries can also
be inferred from the judgement it gave in the case of ‘Libyan Arab Jamahiriya vs Chad’ 1
wherein the court said, the demarcation of the boundaries in an agreement is the sole
responsibility of the concerned state in the agreement. A title of a sovereign property can be
acquired through various means such as states’ occupying of a territory by force such as the
case in current occupation of Tibet by china post the 62’ war and more recently the alleged
forced displacement of Palestinians from their lands by Israel. A title can also be acquired
through more peaceful means such as ‘arbitration, international agreements etc.’.

The ‘ICJ’ expects the parties, while agreeing upon the matters relating to boundaries and their
sovereignty, to be extra cautious but there have existed various disputes in regards of the
agreements laid upon by the parties. The reasons behind these disputes can be said to exist
due to incompetence of the parties or due to their inability to decide on certain facts. For
example, if an agreement is signed years before the matter is brought before the court, the
incompetence on part of the parties can be that at that time they had not discussed the matters
pertaining to the disputed area and the inability can arise in terms that it was not possible for

1
1994 I.C.J. 7
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the parties at the time of drafting an agreement to physically access the area that is now a
reason of dispute. Another reason for the dispute amongst the signatories can be the change in
leadership in one of the states. As there is a change in leadership, the earlier accepted
boundaries may not be parallel to the model of development decided by the new government
and thus it can change the stance over the disputed land.

Under article 38 (a) of the ‘Statute of International Court of Justice’ it is mentioned, as a

source of authority for the court, that the court must see ‘international conventions, whether
general or in particular, establishing rules expressly recognized by the contesting states’ 2.
Therefore, it is important to view agreements while deciding upon the disputes. Therefore,
my submission focuses upon the authority and scenarios of disputes revolving around the
existence of a boundary agreement. The ‘ICJ’ in the judgement of ‘Cameroon vs Nigeria’ 3,
has made the authority of agreements related to boundary clear by stating that, the principle
of ‘uti possidetis juris’ will be overruled by an international agreement by the new parties.

DISPUTES AND THE COURT’S RESPONSE

As mentioned above, agreements play an important part while deciding as to which state will
win the dispute. This scenario further opens up a different issue. The court while exercising
its jurisprudence has to decide cases in two aspects. First, the disputes which arise out of an
existing boundary agreement and second would be the disputes which arises out of a situation
when there also exists and agreement but the validity of the said agreement is the reason of
dispute amongst the parties.

Dispute over existing boundary agreement.

In the ‘ICJ’s’ jurisprudence, the dispute over the lands and maritime boundaries where there
is an agreement present is also categorized in various folds and thus, the court has to exercise
caution and interpret the roots of the dispute and provide judgements accordingly.

One of the categories of such disputes will be a scenario where there exists an international
agreement but the contention of a party is that it had never entered into force. This contention
was made in the case of Cameroon vs Nigeria with respect to the ‘Maroua Declaration’
signed between the parties in 1975. The said declaration was signed by the heads of the two
2
33 UNTS 993
3
2002 I.C.J. 603
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nations and in the agreement, they had a consensus as to have delimitation of the maritime
boundary of the two states. The declaration was signed by the states but it was not ratified
into their municipal laws thus inciting Nigeria to claim that since there is no ratification of the
clauses present in the agreement, the agreement has no binding force. The court while
accessing the case stated that, ‘it is necessary provision of the treaties that after adoption there
must be ratification to make them binding to the states.’ 4 The court however also presented a
scenario where it said that an international agreement exists when the states sign an
agreement and it is up to the parties to decide which rule, they wish to follow. Finally, while
deciding the case, the court stated that as per the provision of the treaty with respect to the
‘delimitation of maritime boundary’ there is no requirement of ratification as such, the
declaration has entered into force upon signing by the two parties.

The second category in this section would be the one where the parties claim that there exists
and implied boundary agreement between them. This scenario was experienced by the court
in the case of ‘Nicaragua vs Honduras’5. In the said case, the State of Honduras claimed that
by virtue of an implied agreement between the parties, the 15 th parallel has been set as the
maritime boundary between the two states. While asserting its claim, Honduras submitted the
fisheries policies of the state, fishing practices of the state and argued that these things never
went north or south of the agreed 15th parallel. Honduras also submitted a claim wherein it
alleged that Nicaragua once seized a vessel that went south of the parallel and thus said that
this amount to the existence of an implied boundary agreement. The court in its judgement
said that, ‘it is not appealing to the court to easily accept the claim of Honduras that a tacit
agreement existed between the parties and not all the implied agreements, even though they
seem like a delimitation, are boundary agreements’ 6. The courts while rejecting the existence
of Honduras also cited instances whre Honduras has asserted the that it had to clearly define
its maritime boundries implying that they do not exist. The court in the cases of ‘Tacit
agreements’ does not rely on the behaviors of the parties to conclude that there existed an
agreement and it is bounding and even though there exists a temporary agreement, the court
is of the view that the behavior has to be followed for a long time and existence of a
temporary agreement also does not qualifies for an argument in the court that there is an
intention of the parties towards a permanent agreement.

4
Ibid Pg. 2
5
57 ICLQ (2008) 701.
6
Ibid
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Categorization of International agreements as Boundary agreement

Under this head, the parties to the agreement agrees to the fact that there exists an
international agreement between them but rebuts each other on the claim that the said
‘International agreement’ is also a boundary agreement. While dealing with these cases, the
court has a clear stance which says ‘agreements which are formally regarded as non-
boundary agreements does not have the authority to set boundaries’ 7. The court came to this
conclusion in the case of ‘Indonesia vs Malaysia’. Malaysia presented an agreement between
the United states and the UK, which allowed Malaysia to have the possession of the disputed
areas of ligitan and sidapan. The court declined the claims of Malaysia and asserted that non-
boundary agreements cannot determine territories.

Following this case, in the later years, the court have created an exception where, ‘non-
boundary agreements in certain situations can be transformed into boundary agreements. The
example of this exception lies in the dispute of maritime delimitation and sovereignty over
the Zubarah islands. The dispute was between ‘Qatar and Bahrain’ wherein, the court while
deciding in the merit of Qatar quoted the treaty between the rulers of the two nation, brokered
by the United Kingdom, which states the status-quo will be maintained over the zubarah
islands. Qatar was ruling the islands at the time. This was mentioned in the treaty which was
signed due to the pirates and looters of the Bahrain and Qatar occupying the island was
considered as a long-term result of the activities sanctioned by the ruler of Bahrain. The court
in this case accepted the anti-piracy treaty of 1868 between Bahrain and Qatar brokered by
UK adds a clause over the Zubarah island and asks to maintain Status quo there.

Another condition by which a ‘non-boundary agreement can transfer title over a territory’ is
by consent. In the case of Malaysia vs Singapore, even thought the court ignored the letter
which was believed, to be an act of surrender by the title holder of ‘Pedra Branca’, by the
British. The court, found the evidences of the consent of Malaysia in providing the
sovereignty if ‘Pedra Branca’ to Singapore which was a British colony at that time. The
consent suggests that in various official documents the Malaysian authorities have accepted
the sovereignty of Singapore over the Pedra Branca and thus the court transferred the
ownership to Singapore by applying the abovementioned exception.

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48 AFDI (2002) 302
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Disputes over the validity of existing agreements.

The ‘International court of Justice’ is cautious while dealing with the matters questioning the
validity of a treaty and the court has a certain reluctance to establish a treaty as void.

In the case of ‘Cameroon vs Nigeria’ 8, the agreement in dispute was an agreement signed
between the colonial powers i.e. Germany and Britain. Cameroon was a colony of Germany
and Nigeria was ruled by the British. The pact signed by both parties in 1913 unanimously
agreed that the control of Bakassi Peninsula would come under German rule and the
agreement also created a frontier between Cameroon and Nigeria. Nigeria, for acquiring
control over the disputed land, claimed in the court that the treaty was not ratified according
to the existing German law of the time and thus, the agreement stands invalid. The court did
not accept this argument of Nigeria and for checking the validity of the agreement the court
just checked that at the time, Germany stated that all necessary provisions were followed and
UK did not raise an objection thus making the agreement binding.

In the same case, in relation to the ‘Maroua Convention’, Nigeria wanted the said agreement
to be dismissed. Nigeria contended that the head of state of that time, while enforcing the
treaty, acted in the manner which violated the constitution of Nigeria. The court while
invoking Article 46(1), (2) of ‘Vienna convention on law of treaties’ stated that, until and
unless the provisions or restrictions are made public to the world, those restriction on the
Head of the State will not invalidate a convention in the international arena. Thus, the court
rejected both the appeals of Nigeria and provided the sovereignty to Cameroon on the
disputed property.

ICJ’s take on arbitration as a solution to boundary disputes

The court has, in instances, shown its inclination towards approving third-party decisions in a
boundary disputes between two states. The same idea was endorsed by the court in the case
of ‘Qatar vs Bahrain’9. In the said case, the dispute was related to the ‘Hawar Island’. Both
8
European Journal of International law, 23, published:2012, para 510.
9
Ibid pg. 5
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‘Qatar’ and ‘Bahrain’ formally agreed to use the system of arbitration and UK was decided as
the arbitrator by mutual consent. In the year 1939, United Kingdom gave its judgement and
awarded the islands to ‘Bahrain’ on the basis of past records and rule. Qatar opposed to the
said award and appealed in the court. the court in its decision corroborated with the decision
of the British government and stated that the award is final and binding on both the parties.
The decision of the court did have some dissent from its own judges who said that the
decision was motivated and was not fair. Both the rulers were not expressly asked to submit
their consent for the award and the decision was rushed for other purposes.

CONCLUSION

In international law right over the territory is very important as it demarcated various other
rights related to the said zone. When there is dispute amongst the nations, a second way,
other than war is to go the to ‘International Court of Justice’ situated at ‘The Hague’. The
court’s duty is to look upon certain provisions and past matters submitted by the parties and
decide while applying the provisions of ‘International Law’. The court is strict in its stance
over certain issues such as court does not consider implied boundary agreements to be valid
unless they are expressly signed by the parties and even though the nature of the parties in a
way suggests delimitation it cannot bind the parties to it. Another strict nature of the court
can be seen in the cases where a party implies that a non-boundary agreement demarcates the
boundaries but the court denies it however, the court laid down certain exception to the case
as one mentioned in the above text wherein the clear sovereignty was provided to Qatar under
the anti-pirates treaty of 1868 with Bahrain brokered by the UK.

ANSWER 1 (SACE II)

To examine the approach of the Supreme Court of India in the matters relating to application
of International commitments into the municipal laws while maintaining the context of the
question, it is important to first analyze the case then it is necessary to know about the two
theories which revolves around application of international laws to the signatory states and
lastly, the approach of the court in this regard.
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Jeeja Ghosh & Anr. vs Union of India and Ors.

Facts

The named ‘public interest litigation’ with Jeeja Ghosh as its main petitioner, who is a
disabled person suffering from ‘Cerebral Palsy’, was filed with the support of an NGO named
ADAPT. Jeeja Ghosh in herself was a part of the disabled people’s movement and also was a
prominent social worker of the country. The petition filed concern an incident happened
when she was about to travel to goa from Kolkata. The NGO had purchased a ticked to and
fro from Kolkata to Goa for Ms. Jeeja Ghosh from the respondents i.e. Spice Jet Airlines. The
first petitioner, when boarding the flight, was apprehended by one of the crew members and
asked to de-board the flight citing the reason as her disability. Later, the petitioner discovered
that the captain of the flight had asked the crew members to de-board the petitioner because
of her disability and suggested that she might pose a risk. The petitioner after suffering
trauma and and filing the complaints with ‘Chief Commissioner for person with disabilities’
and ‘Social Justice Ministry’ filed a writ petition under article 32 of the constitution. In the
said petition, Ms. Jeeja argued that the behavior of the crew members was ‘outrageous’,
‘unnecessary’, ‘discriminatory’ and ‘illegal’. She also argued that the airlines were not
following the guidelines provided by the ‘Civil Aviation Authority’ which requires, carrying
passengers with area who are disable or have reduced mobility. The submission by the
petitioner contained that the carriage rule was issued by the ‘Directorate General of Civil
Aviation’ under rule 133A and she also made the ‘Directorate General of Civil Aviation’ a
respondent to the case.

Issues

The said petition by Ms. Jeeja Ghosh raised two questions before the court.

1. Whether the act of the crew members of the respondent airline was I violation of
fundamental rights provided under article 21 of the ‘Constitution of India’?
2. Whether the respondents are liable under ‘Civil aviation requirements’, 2008 and
‘Person with disability act, 1995’10?

Judgement

10
2016 7 SCC 761
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The court in its judgement arrived at the conclusion that Jeeja Ghosh was treated unfairly and
the conduct of the staff was indeed unfair, unreasonable and illegal. The court held that the
actions of the airline are in contravention to the provision of CAR 2008 and thus awarded Rs.
10 lakhs as compensation to Ms. Jeeja Ghosh. While arriving at the judgement, the court in
para 13 also mentions about the Vienna convention on the Law of Treaties and states its 27 th
article which says, non-performance of an obligation under international law should not
attract the defense that it is in contravention of a domestic law.

Monism and Dualism

Monism - The concepts under monism accepts that the international and the domestic legal
system of a state are one entity. The illegality of the actions of an accused is determined by
both the domestic laws and the international conventions the state has accepted as in monism
it is mandatory to corroborate the laws into the society. In simpler terms, in a monist state
there is no difference between signature and ratification as in these states the adoption of the
international treaty is not formally required as each international legislation signed by the
state is automatically adopted in the country. In a monist state, it is a principle that a national
law which is in contravention of an international agreement signed by the state shall be
declared null and void. There have been many arguments in the nature that supports the
monist structure of a state mainly the supporters are from the field of Human rights. Since the
declaration at the international level keeps the human rights at the center of everything, the
activists argue that it is the best model for human rights safety in a state. In certain monist
states, there is a distinction between the principle of international law accepted as treaties by
the states and the customary principles of international law or jus conges. Thus, if this
particular set is followed then the state is not considered to be purely monist and is
considered a blend of monist and dualist state. In a monist state a judge of the court has the
power to directly apply the international laws and the citizens of the state too have the right to
claim remedies directly under the provision of the international law.

Dualism- In dualist theory, there is a set of separation between the law of the land and the
international conventions signed by the state. In a dualist state, the translation of the provision
of an international law to the municipal law is required. Without the adoption of the principle
of the international laws to the domestic law, the international law has no legal standing in a
dualist country. The ratification of a treaty is a must under a dualist state. If the state has
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signed a treaty but does not ratifies it, it breaks the international law but the citizens of the
state cannot claim benefits under the international principles.

In a dualist state it is mandatory that an international law must be incorporated in the national
law as well. However, with the change in the status of a law, new problems arise for a
remedy seeker under that law. for example, once an international law is adopted in a monist
state it is binding and further domestic laws voted in the said stated must not be in
contravention to the international law and if that’s the case, they are automatically declared
null and void. But, in a dualist state, once an international law is incorporated, it becomes a
national law and thus can be amended or broadened according to the needs of the state. This
paradox is called ‘lex posterior derogate legu priori’.

Supreme Court’s stance

The judgement of the supreme court in the case of Jeeja Ghosh can be seen as a milestone for
the Indian legal system. The case was a result of a public interest litigation by Jeeja Ghosh
against the Spice Jet airlines and Union of India wherein she won the case and was awarder
rs. 10 lakh and more importantly, the decision reaffirmed the rights of the specially-abled in
our country. While giving its verdict on the case, the supreme court mentioned ‘The Vienna
Convention on Law of Treaties, 1963” and how it mandates its signatory India’s internal
legislative structure to comply with internationally set standards.

The supreme court in many cases it has decided for years have followed the dualist principle
on incorporating the international law. In the case of Jolly George Varghese vs Bank of
Cochin, the court clearly stated that, “until and unless the principles of the international laws
are incorporated in the state the courts are bound by the municipal laws and not international
laws.”11 In India, the general provisions of a dualist theory are applied. Which means to
incorporate the provision of an international law, it is necessary for the state to ratify that law
by way of the parliament legislating on that and making a new municipal law. The Indian
Judiciary, explicitly the supreme courts at certain intervals had jumped the process of
admittance of an international treaty and incorporated it by way of a judgement.

As earlier mention in the case of Jolly Varghese, the court made a distinction between a law
by treaty and a customary law by stating that a law made under a treaty is the only law which
requires ratification by the parliament of the country. The court in this case asserted the

11
1980 AIR 470
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authority of the customary international laws by stating that the courts of the country may be
bound by these laws even before they are accepted into the municipal code of the nation. This
rather took a slight turn in the case of People’s union for civil Liberties vs Union of India
wherein the court said that the courts are bound to implement those provisions of the
international customary laws which are not in contravention to the municipal laws of the
country and thus eliminating the need to incorporate a small section of laws by way of
legislation and delaying justice. But, in my view the court created a slight confusion as in the
previous case it established the authority of the laws and now the court in a niche way makes
the customary laws subject to the municipal laws of India.

The court again in a landmark case of Vishaka singh vs Union of India, changed the stance
and authority of international law with respect to the municipal laws of India. In the said case,
the court took upon the responsibility of the legislators and made guidelines against sexual
harassment and also ruled in favor of using the principle of international law before they were
accepted in the Indian legislature by the parliament under Article 253 of the Constitution of
India. The court stated that it is invoking its power under article 141 of the Indian constitution
and said that since there is no law under the head of sexual harassment, the court has the
authority to fill the gap and thus it can create those guidelines by article 141 and by virtue of
international treaties. The court in this particular case, while developing the guideline,
inserted the provisions of the ‘Convention on the Elimination of All Forms of Discrimination
Against Women’, without the parliament formally legislating on it. The court here
overstepped twice as breaching article 51 and 253 of the constitution and also the court
wrongly interpreted its power under article 141.

The supreme court most vocally supported a monist ideology and even went past it in the
case of ‘State of West Bengal vs Kesoram Industries Ltd.’. The court in this case said that
even if India is not a signatory to a certain international treaty, its principles can still be
applied to the Indian cases as long as they are not straight forward in contravention with the
municipal laws of the state. In this case the Judiciary asserted in the fact that it is moving
towards ‘creeping monism’ and in my view it is past that.

The court followed this in the case of G. Sundararajan vs Union of India, where the court
outrightly applied the principle of a treaty which India is not even a signatory to. The court
mentioned the treaty in its judgment and also admitted that it knows that India is not a
signatory to such treaty. The treaty in question is ‘Joint convention on the safety of spent fuel
management and on the safety of radioactive waste management, 1997’.
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Changes in the order of the court

In my opinion the supreme court while providing with the order of the Jeeja ghosh case must
have invoked, other than the principles of the ‘Vienna convention on Law of the Treaties’,
the treaties which explicitly dealt with the cases of disable people such as the ‘United Nations
Convention on the Rights of Persons with Disability, 2006’. Such convention expressly deals
with the scenarios where they suggest non-discrimination with the citizens of the states. in
my view, if the court had inserted these conventions in the judgement, it would have made
the Jeeja Ghosh judgement a landmark case such as the case of Vishakha singh where the
court laid down guidelines for sexual harassment at workplace and thus this case would be
seen as one which made provisions for lawful behavior with the people with disabilities and
thus making the legislation by the parliament mandatory in this field.

Conclusion

The judicial system of our country has seen International customary law as something which
is a cumulative set of various principles of the world and that it is a collection of the very
right ideas and principles of the world. It has been the trend of the Judicial system of our
country to see the international customs and treaties as something which should be
incorporated in the legislations of our nations either by way of proper channel or by what
people called the act of ‘creeping monism’ which isn’t exactly what the judiciary intends but
the word can be applied here as there has been examples which connotes that the court is
motivated to include the treaty in the legislation in any way.