Article 300. Suits and proceedings

Vande Matram!

300. Suits and proceedings

(1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted

(2) If at the commencement of this Constitution

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings

Notes:

As per the 1st report of the Law Commission of India on 'Liability of State in tort', the liability of the Union and States to be sued is regulated by Article 300 of the Constitution of India.

References:

1) 1st report of the Law Commission of India on 'Liability of State in tort'

2) Constitution of India, 1949

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Short Q and A on Public International Law: Part 15

Vande Matram!

These are some one-liner notes on Public International Law. Read them carefully and note them for your knowledge.

Short Q and A on Public International Law: Part 15

·         What is membership of UN status of newly formed state by separation?

o   When a new state is formed by separation from a member of United Nations then the new state couldn’t claim the status of a member of the U.N. unless it has been formally admitted as such in conformity with the provisions of the Charter.

·         What is universal succession or continuity theory of state succession?

o   Under the universal succession or the continuity theory, rights and duties may still pass to States that have lost extensive portions of their territories and/or have undergone radical changes in government as long as they are considered to have inherited the essential legal identity of the former member.

·         What is legal status of the universal successor?

o   The universal successor assumes the whole of the legal clothing of the person to whom he succeeds; steps, as it were, into his shoes. He takes over his rights and liabilities of every kind; his property (res singulae) and iura in re aliena, the debts and other obligations (such as rights of action for damages for breach of contract) owing to him, and the debts and obligations which he owes

·         What is succession of International persons?

o   Oppenheim has stated that a succession of international persons occurs when one or more international persons takes the place of another international person, in consequence of certain changes in the latter’s condition.

·         What is meant by ‘date of the succession of States’?

o   The Vienna Conventions simply state: 'date of the succession of States' means the date upon which the successor State replaced the predecessor State in the responsibility for the international relations of the territory to which the succession of States relates.

·         Which issues must be addressed in a state succession?

o   succession of governments, particularly revolutionary succession, and consequential patterns of recognition and responsibility.

·         What is general principle of riparian?

o   Under the riparian principle, all landowners whose properties adjoin a body of water have the right to make reasonable use of it as it flows through or over their properties.

·         What are the riparian rights?

o   The riparian rights include

§  right to access for swimming, boating and fishing;

§  the right to wharf out to a point of navigability;

§  the right to erect structures such as docks, piers, and boat lifts;

§  the right to use the water for domestic purposes;

§  the right to accretions caused by water level fluctuations;

§  the right to exclusive use if the water-body is non-navigable.

·         How riparian rights are enforced?

o   Riparian rights are dependent on the fact of ‘reasonable use’ and enforcement of riparian rights depends upon riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.

·         What is a riparian nation?

o   nation across which, or along which, a river flows

·         Which convention governs riparian law?

o   United Nations Convention on the Non-Navigational Uses of International Watercourses (UN Convention). Approved on May 21 1997

·         What is equitable utilization of watercourse?

o   Article 5 requires watercourse nations to utilize an international watercourse in an equitable and reasonable manner with a view to attaining optimal and sustainable utilization and benefits consistent with adequate protection in the watercourse. This is equitable utilization of water course.

 

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Short Q and A on Public International Law: Part 14

Vande Matram!

These are some one-liner notes on Public International Law. Read them carefully and note them for your knowledge.

Short Q and A on Public International Law: Part 14

·         What are the methods of resolving any dispute by Security Council?

o   Security Council implements following methods for resolving any dispute:

§  explores the possibility of a peaceful resolution

§  International peacekeeping forces may be authorized to keep warring parties apart pending further negotiations

§  If the council finds that there is a real threat to the peace, a breach of the peace, or an act of aggression it may call upon UN members to apply diplomatic or economic sanctions.

§  If these methods prove inadequate, the UN Charter allows the Security Council to take military action against the offending nation.

·         Which convention governs succession of state?

o   Vienna Convention on Succession of States in Respect of Treaties, 1978 in short 1978 Vienna Convention

o   Vienna Convention on Succession of States in Respect of State Property Archives and Debts, 1983 in short 1983 Vienna Convention

·         What is definition of State Succession?

o   Article 2 (1)(b) of 1978 Vienna Convention defines state succession as “the replacement of one state by another in the responsibility for the international relations of territory”

·         What are the possible occurrences of state succession?

o   decolonization, unification, and separation

·         What is decolonization?

o   Decolonization is the accession to independence of a nonmetropolitan territory. E.g. Independence of India

·         What is unification?

o   Unification of states is the merger of two or more states into a new entity.

·         What is absorption?

o   In unification of states the predecessor states usually disappear; if not, one of them continues to exist and the case is referred to as absorption.

·         What is separation of state?

o   Separation is the creation of the successor state(s) while the predecessor state continues to exist. E.g. India-Pakistan partition

·         What is dismemberment?

o   Dismemberment is akin to separation, but all states disappear and two or more states are created.

·         What is the main agenda of 1983 Vienna Convention?

o   It deals with three topics—Debts, State Property, and Archives—and expressly reserves the application of international agreements regarding debts.

·         What are the four categorical headings of dealing in state succession?

o   As per International Law Commission State Succession can be dealt under these four categorical headings:

§  Treaties

§  State property, State debt and State archives

§  Membership to international Organizations

§  State succession and its impact on the nationality of natural and legal persons

·         Which conventions provides for status of treaties in state succession?

o   Vienna Convention on Succession of States in Respect of Treaties, 1978 also called Vienna I

·         Which conventions provides for bifurcation of state properties, debt and archives in state succession?#

o   the Vienna Convention on Succession of States in Respect of State Property Archives and Debts, 1983 also called Vienna II

·         What is tabula rasa or clean state doctrine?

o   The option of simply denying State succession to treaties, known as the tabula rasa or clean slate doctrine

 

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Short Q and A on Public International Law: Part 13

Vande Matram!

These are some one-liner notes on Public International Law. Read them carefully and note them for your knowledge.

Short Q and A on Public International Law: Part 13

 

·         When passage is innocent?

o   Passage is declared to be innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. (Article 19 of UNCLOS III)

·         What is Article 17 of UNCLOS III?

o   Article 17 of UNCLOS III reads ‘Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.’

·         What are the prerequisites of innocent passage?

o   The very term “innocent passage” implies two prerequisites for its exercise:

§  (a) that passage be “innocent,” i.e., not of such a nature as to affect the security or welfare of the coastal state; and

§  (b) that “passage” only may be exercised, to the exclusion of such acts as “hovering” or anchoring in the territorial seas.

·         How many members are there in Security-Council of UN?

o   There are in all 15 members in Security-Council of UN: 5 permanent and 10 non-permanent.

·         Who are the permanent members of Security-Council of UN?

o   5 permanent members of Security-Council of UN are People’s Republic of China, Russian Federation, France, United Kingdom and United States of America.

·         How non-permanent members are appointed in Security-Council of UN?

o    Non-permanent members are appointed by election at UN General Assembly.

·         What is the term of non-permanent members of Security-Council of UN?

o   2 years.

·         Why are non-permanent members of Security-Council of UN chosen?

o   The nonpermanent members are generally chosen to achieve equitable representation among geographic regions.

·         What is the bifurcation of non-permanent members of Security-Council of UN chosen?

o   Five members coming from Africa or Asia, one from eastern Europe, two from Latin America, and two from western Europe or other areas.

·         Does all the non permanent members elected at same time?

o   No, each year General Assembly elects 5 members and they continue their term for 2 years and previous 5 members retire from their term at Security Council.

·         Where is each member of Security Council represented?

o   As Security Council has to work continuously, its each member is represented all time at the United Nations headquarters in New York City.

·         Why are People’s Republic of China, Russian Federation, France, United Kingdom and United States of America permanent members of Security Council?

o   Because at the end of World War II these 5 nations reflected the power structure that existed at the end of World War II, when much of the world was under colonial rule.

·         What is G-4countries?

o   G-4 countries are Brazil, Germany, India, and Japan who were important non-permanent members of Security Council and they centered working of Security Council in more transparent way. They are having special status at Security Council.

·         Who can bring dispute to Security Council?

o   Any State across the globe though it is non member of United Nations can bring dispute to Security Council.

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Short Q and A on Public International Law: Part 12

Vande Matram!

These are some one-liner notes on Public International Law. Read them carefully and note them for your knowledge.

Short Q and A on Public International Law: Part 12

·         Which right is given to diplomatic envoy in religious sense?

o   Diplomatic envoys are having right to worship according to their own consciousness is his embassy. But they are not having right to preach their religion in the keeping country.

·         Which provision gives immunity to a diplomatic envoy from local and military obligation?

o   Article 35 of Vienna convention 1961

·         Is diplomatic envoy free to communicate with his home-state?

o   Yes Article 27 of Vienna convention on the diplomatic relations, 1961 provides that diplomatic envoy is free to communicate with his home-state 27 of Vienna convention on the diplomatic relations, 1961.

·         Is diplomatic envoy free to travel in territory of receiving state?

o   Yes, Article 26 of the Vienna convention on Diplomatic relations,1961 provides that diplomatic envoy is free to travel in territory of receiving state. But he cannot go to the prohibited places or the places which are important from the point of view of the security of the receiving state.

·         Which provision gives immunity to a diplomatic agent from social security provisions which are in force in receiving state?

o   Article 33 of the Vienna convention on Diplomatic relations,1961

·         Which provision gives immunity to a diplomatic agent from inspection of his personal baggage?

o   Article 36(2) of the Vienna convention on Diplomatic relations,1961

·         Which code is applied for innocent passage?

o   Innocent passage is codified in the United Nations Convention on the Law of the Sea (UNCLOS III) and adopted in 1982. It is also known as the Law of the Sea Treaty.

·         What are the aspects of UNCLOS III?

o   It is also known as Law of the Sea Treaty.

o   Its purpose is to establish a comprehensive set of rules governing the oceans.

o   It replaces previous U.N. Conventions on the Law of the Sea, 1958 (UNCLOS I) which was adopted in 1958 and another in 1960 (UNCLOS II) as they were inadequate.

·         What is meant by innocent passage?

o   The term Innocent Passage is defined under international law referring to a ship or aircraft’s right to enter and pass through another’s territory so long as it is not prejudicial to the peace, good order or security of the other state.

·         What is meaning of ‘passage’?

o   As per Article 18 of UNCLOS III, Passage means navigation through the territorial sea for the purpose of:

§  (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or

§  (b) proceeding to or from internal waters or a call at such roadstead or port facility.

o   Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

·         What is position of innocent passage in International Law?

o   Innocent passage is as old as the law of the sea itself

o   It is a normal consequence of freedom of navigation

o   As a general principle, the right of innocent passage requires no supporting argument or citation of authority; it is firmly established in international law – Jessup.

·         How innocent passage must be interpreted and implemented by a costal State?

o   A Costal State must interpret and implement innocent passage in the light of its national law which is subject to laws regarding

§  safety of navigation,

§  laying of submarine cables,

§  resources and fishing,

§  environmental protection, prevention of pollution

§  scientific research,

§  prevention of infringement of customs, fiscal, immigration, or sanitary laws

§  implement sea lanes and traffic separation schemes or

§  suspend temporarily the right of innocent passage in specified areas of its territorial sea

 

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