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INDIVIDUAL AND STATE
QUESTION BANK
1. What is extradition? Explain the requirements of the extradition process.
2. Discuss the concepts of âExtraditionâ and âAsylumâ.
3.What do you mean by âExtraditionâ and âAsylumâ? What are the forms of asylum?
4. What do you understand by the terms âExtraditionâ and âAsylumâ?
5. Distinguish between âExtraditionâ and âAsylumâ. Explain International Law concerning extradition.
6. What do you mean by âNationalityâ? What are the modes of acquiring nationality?
Short Notes
1. Individuals as subject of International Law.
2. Place of individual under International Law.
3. Expulsion of aliens.
SYNOPSIS
I. Place of the Individual in International Law
II. Conventions at the International and Regional Levels
1. Global Multilateral Conventions
a. The Universal Declaration of Human Rights (UDHR), 1948:
b. The Convention on the Prevention and Punishment of the Crime of Genocide, 1948:
c. The Convention Relating to the Status of Refugees, 1951:
d. Convention on the Political Rights of Women, 1953:
e. The International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966:
f. The International Covenant on Civil and Political Rights (ICCPR), 1966:
g. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979:
h. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984:
i. The Convention on the Rights of the Child (CRC), 1989:
2. Regional Human Rights Conventions
a. The European Convention on Human Rights (ECHR), 1950:
b. The European Social Charter, 1961:
c. The American Convention on Human Rights, 1969:
A. Rights of Individuals under International Law
1. Inherent Human Rights and Freedoms
2. The Right to Petition International Forums
3. Right to Initiate Conciliation and Arbitration Proceedings
B. Duties of Individuals under International Law
1. The Offense of Piracy Jure Gentium
2. Violation of the Rules of Warfare (War Crimes and Crimes Against Humanity)
3. The Offense of Espionage and War Treason
4. The Crime of Genocide
5. Aircraft Hijacking and Aerial Sabotage
6. Kidnapping of Diplomatic Agents and Hostage-Taking
7. The Crime of Apartheid
III. Short Notes on Aircraft Hijacking
I. Definition of Aircraft Hijacking
II. International Legal Framework on Aircraft Hijacking
1. The Tokyo Convention, 1963
2. United Nations General Assembly Resolution 2645 (1970)
3. The Hague Convention, 1970
4. The Montreal Convention, 1971
5. The Montreal Protocol on Plastic Explosives, 1991
6. The Beijing Convention, 2010
III. Factual Evaluation of Noted Instances of Aircraft Hijacking in India
1. 30th January 1971 (The 'Ganga' Hijacking):
2. 10th September 1976:
3. 29th September 1981:
4. 5th July 1984:
5. 24th August 1984:
6. 24th December 1999 (The IC-814 Hijacking):
IV. Landmark Judicial Decisions on the Status of the Individual
V. Conclusion
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I. Place of the Individual in International Law
In classical public international law, the international legal order was viewed strictly as a system regulating the mutual relationships, boundary lines, and diplomatic pacts between sovereign States. Under this orthodox framework, States were the exclusive subjects of international law, possessing plenary international legal personality.
Conversely, individuals were relegated to the status of mere "objects" of international law, akin to state territory, maritime vessels, or public property. An individual lacked independent standing, possessed no direct rights under international pacts, and could not bring a claim before international tribunals. If a foreign state mistreated a citizen, the wrong was legally considered an injury to their home state itself, leaving any remedy entirely to the discretionary exercise of diplomatic protection by that state.
This peripheral positioning of the individual underwent a structural paradigm shift following the conclusion of the Second World War and the formal establishment of the United Nations Organisation (UN) in 1945. The Charter of the United Nations altered traditional dogmas by recognizing the individual as an active participant in global law.
The Preamble and Article 1 of the UN Charter explicitly place the protection of fundamental human rights and individual freedoms among the core institutional purposes of the international community. Modern international law directly confers actionable rights upon natural persons and imposes international legal duties of a penal nature on them, establishing the individual as a recognized, though limited, subject of public international law.
II. Conventions at the International and Regional Levels
The transition of the individual from an object to a subject of international law has been driven by a network of conventional frameworks, declarations, and institutional codes drafted under the auspices of the United Nations and regional political organizations.
1. Global Multilateral Conventions
a. The Universal Declaration of Human Rights (UDHR), 1948: The foundational instrument establishing a universal standard of civil, political, economic, social, and cultural protections for all human beings.
b. The Convention on the Prevention and Punishment of the Crime of Genocide, 1948: A conventional code imposing criminal duties on individuals to prevent and punish acts aimed at destroying national, ethnic, racial, or religious groups.
c. The Convention Relating to the Status of Refugees, 1951: An international agreement establishing rights for displaced persons, including the core principle of non-refoulement.
d. Convention on the Political Rights of Women, 1953: A targeted instrument guaranteeing women the right to vote, contest public elections, and hold public office on equal terms with men.
e. The International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966: A treaty establishing rights to work, education, social security, and an adequate standard of living.
f. The International Covenant on Civil and Political Rights (ICCPR), 1966: A treaty protecting the rights to life, liberty, fair trial, freedom of expression, and privacy.
g. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979: A framework designed to eradicate systemic gender-based discrimination and safeguard individual civil status.
h. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984: An absolute prohibition banning the use of torture by state actors and imposing enforcement obligations.
i. The Convention on the Rights of the Child (CRC), 1989: A convention protecting the civil, political, economic, social, and cultural rights of individuals under the age of 18.
2. Regional Human Rights Conventions
a. The European Convention on Human Rights (ECHR), 1950: A regional treaty that established the European Court of Human Rights, allowing individuals to sue state parties directly.
b. The European Social Charter, 1961: A regional framework designed to protect economic and social rights within the European continent.
c. The American Convention on Human Rights, 1969: A binding regional treaty within the Americas, monitored by the Inter-American Commission and Court of Human Rights.
Synthesizing these global and regional instruments outlines the specific rights and duties assigned to individuals under modern public international law.
A. Rights of Individuals under International Law
1. Inherent Human Rights and Freedoms
International law guarantees individuals a base layer of universal rights independent of their local municipal laws. Instruments like the UDHR, ICCPR, and ICESCR protect civil and political liberties alongside economic and social claims. Specialized treaties protect vulnerable groups; the CRC protects children below 18 years, while CEDAW requires states to dismantle discriminatory practices, ensuring womenâs legal equality.
2. The Right to Petition International Forums
Modern international law provides individuals with specific procedural mechanisms to bypass municipal courts and file formal petitions against their own states before international supervisory bodies for human rights violations.
Under the First Optional Protocol to the International Covenant on Civil and Political Rights (1966), individuals who have exhausted local remedies can submit formal communications to the Human Rights Committee to challenge state actions. Similarly, Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1966, allows individuals or groups to lodge complaints before the Committee on the Elimination of Racial Discrimination.
At the regional level, the European Convention on Human Rights (1950) and the American Convention on Human Rights (1969) grant individuals the right to file applications before their respective regional human rights courts, changing the traditional dynamic of exclusive state sovereignty.
3. Right to Initiate Conciliation and Arbitration Proceedings
In international investment law, individuals and private corporations have been granted direct standing to initiate legal proceedings against foreign states. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), 1965, established an independent, consensual forum for conciliation and arbitration. This framework allows private foreign investors to sue host states directly for treaty breaches or expropriation before international panels, bypassing the requirement of diplomatic protection by their home state.
B. Duties of Individuals under International Law
Complementing these rights, modern international law imposes direct criminal responsibilities on individuals. If a natural person violates these norms, they can be prosecuted under international law, and they cannot shield themselves behind the sovereign immunity of their state or plead that they were merely following superior orders.
1. The Offense of Piracy Jure Gentium
Piracy on the high seas is the oldest recognized international crime. Pirates are classified under customary international law as hostis humani generisâenemies of all mankind. Consequently, international law permits any sovereign State to apprehend pirates on the high seas and try them within its municipal courts, establishing a form of universal jurisdiction.
The crime is codified under Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), 1982, which defines piracy as:
a. Any illegal act of violence, detention, or depredation committed for private ends by the crew or passengers of a private ship or aircraft, directed on the high seas against another ship or aircraft, or against persons or property on board, or against a ship, aircraft, persons, or property in a place outside the jurisdiction of any State.
b. Any act of voluntary participation in the operation of a ship or aircraft with knowledge of facts making it a pirate ship or aircraft.
c. Any act of inciting or intentionally facilitating an act described above.
Article 100 of UNCLOS requires all states to cooperate fully in the repressing of piracy on the high seas or in any other place outside the jurisdiction of any State.
2. Violation of the Rules of Warfare (War Crimes and Crimes Against Humanity)
Individual members of military forces, command structures, and political administrations are held criminally responsible for violating the established rules of warfare.
The legal framework for this individual accountability was established by the Charter of the International Military Tribunal (1945) at Nuremberg and Tokyo, which declared that individuals could be punished for crimes against peace, war crimes, and crimes against humanity.
This framework was formalized by the Rome Statute of the International Criminal Court (ICC), which grants the court jurisdiction to try individuals for the most serious crimes of international concern. An individual can be tried and convicted under international law even if their actions were considered lawful under the domestic legislation of their home state at the time of commission.
3. The Offense of Espionage and War Treason
Espionage involves the covert gathering of strategic political or military intelligence by an agent within the territory of a foreign state on behalf of another government. Under the laws of armed conflict and customary international practice, individuals captured conducting espionage or war treason do not hold a legal right to the status of protected prisoners of war.
The capturing state retains the authority to prosecute and punish spies under its domestic military codes, subject to basic humanitarian standards. While classical penalties included execution, contemporary international human rights standards lean toward imprisonment and due process.
4. The Crime of Genocide
The Convention on the Prevention and Punishment of the Crime of Genocide (1948) established that genocide is a crime under international law that states are bound to prevent and punish. Article IV of the Convention explicitly directs that individuals committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals, establishing a clear statutory duty applicable to all natural persons regardless of official rank.
5. Aircraft Hijacking and Aerial Sabotage
Individuals face international criminal liability for the unlawful seizure or disruption of civil aviation. A series of multilateral treaties require state parties to criminalize hijacking under their domestic laws, establish jurisdiction over offenders, and either prosecute them or extradite them to face trial (see detailed examination below).
6. Kidnapping of Diplomatic Agents and Hostage-Taking
To protect international communication channels, conventions like the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents (1973) and the International Convention Against the Taking of Hostages (1979) impose strict penal duties on individuals. These instruments require the criminalization of kidnapping, assaulting, or holding diplomatic personnel or civilian hostages, forcing states to bring individual offenders to justice.
7. The Crime of Apartheid
Apartheid involves the institutionalized, systematic segregation and discrimination of persons based on color, race, or ethnic origin. The United Nations systematically branded apartheid as a crime against humanity.
The International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) established direct individual criminal liability for these practices. The convention mandates that individuals, members of organizations, and representatives of Statesâregardless of their underlying political motivesâincur direct international criminal responsibility whenever they commit, participate in, directly abet, or encourage the commission of the crime of apartheid.
Enforcement and Contemporary International Criminal Tribunals
This framework of individual duties is enforced through international criminal jurisprudence. Former heads of state and senior public officialsâsuch as Augusto Pinochet (Chile), Hissène HabrĂŠ (Chad), and Slobodan MiloĹĄeviÄ (Yugoslavia)âhave been subjected to international legal processes, international warrants, or trials before specialized tribunals for crimes committed during their governance, demonstrating that individual accountability extends to the highest political levels.
III. Short Notes on Aircraft Hijacking
I. Definition of Aircraft Hijacking
Aircraft hijacking, occasionally referred to as aerial piracy or skyjacking, is the unlawful, intentional seizure or exercise of control over an aircraft in flight by force, threat of force, or any other form of intimidation, by a person on board, to alter its flight plan or destination.
While it shares characteristics with maritime piracy, hijacking is distinct because it occurs within civil aviation networks and is usually executed by passengers already on board rather than by an external attacking vessel. It represents a serious threat to the safety of civil aviation, passengers, and crew, which led the international community to draft a series of specialized conventions to deter and suppress the practice.
II. International Legal Framework on Aircraft Hijacking
The international community has developed a series of multi-layered anti-hijacking conventions to standardize penal rules and ensure there are no safe havens for offenders:
1. The Tokyo Convention, 1963
The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963) focuses on maintaining safety on board. Article 11 addresses unlawful seizure, requiring contracting states to take all appropriate measures to restore control of the aircraft to its lawful commander and to permit the passengers, crew, and cargo to resume their journey. However, the convention did not create a comprehensive mechanism for the mandatory prosecution or extradition of hijackers.
2. United Nations General Assembly Resolution 2645 (1970)
In response to a rise in aerial incidents, the UN General Assembly adopted Resolution 2645 in November 1970. This resolution condemned all acts of aerial hijacking, called upon states to implement deterrent municipal laws, and urged the prosecution and punishment of offenders in a manner commensurate with the gravity of the crime.
3. The Hague Convention, 1970
The Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) significantly strengthened the international legal framework. Article 2 requires all contracting states to make the offense of hijacking punishable by severe penalties within their domestic legal systems.
Crucially, the convention established the principle of aut dedere aut judicare: a state party in whose territory a hijacker is found must either extradite the individual to face trial abroad or submit the case to its own domestic authorities for prosecution, regardless of where the crime occurred.
4. The Montreal Convention, 1971
The Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971) expanded the scope of international protection to cover acts of aerial sabotage and attacks on aviation infrastructure. Under Article 1, an individual commits an international offense if they unlawfully and intentionally:
a. Perform an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft.
b. Destroy an aircraft in service or cause damage to such an aircraft which renders it incapable of flight or is likely to endanger its safety in flight.
c. Place or cause to be placed on an aircraft in service a device or substance likely to destroy or damage the aircraft.
d. Destroy, damage, or interfere with the operation of air navigation facilities, or communicate information known to be false, thereby endangering the safety of an aircraft in flight.
The convention criminalizes both attempts and accomplices, requiring state parties to implement severe statutory penalties. India ratified this convention, and to implement its international obligations, the Indian Parliament enacted The Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982.
5. The Montreal Protocol on Plastic Explosives, 1991
The Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991) was drafted to counter the use of undetectable plastic explosives in aerial sabotage. The treaty requires state parties to prohibit the manufacture or transit of unmarked plastic explosives within their territory and mandates the destruction of non-military stockpiles, utilizing chemical tracing agents to improve security screening.
6. The Beijing Convention, 2010
The Beijing Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (2010) updated the aviation security framework to address contemporary threats. It criminalizes the use of civil aircraft as a weapon, the transport of chemical, biological, or nuclear weapons on board, and attacks on civil aviation using dangerous materials, expanding international judicial cooperation.
III. Factual Evaluation of Noted Instances of Aircraft Hijacking in India
India has faced several high-profile hijacking incidents, which have shaped its domestic aviation security legislation and foreign policy positions regarding counter-terrorism:
1. 30th January 1971 (The 'Ganga' Hijacking): An Indian Airlines Fokker F27 aircraft named 'Ganga', flying from Srinagar to Jammu with 28 passengers and 4 crew members, was hijacked by two Kashmiri separatists and forced to land in Lahore, Pakistan. The passengers and crew were eventually returned to India, but the hijackers were permitted to burn the aircraft on the tarmac under local supervision. Pakistan declined to extradite or prosecute the perpetrators, leading India to suspend Pakistani overflight rights.
2. 10th September 1976: An Indian Airlines Boeing 737 en route from Delhi to Jaipur carrying 78 passengers and 7 crew members was hijacked by a group of six Kashmiri separatists and flown to Lahore. Through diplomatic coordination, the passengers, crew, and aircraft were safely returned to India, but Pakistan declined to extradite the hijackers to face trial under Indian jurisdiction.
3. 29th September 1981: An Indian Airlines flight traveling from Delhi to Srinagar with 117 passengers and crew on board was hijacked by five Sikh extremists belonging to the Dal Khalsa and forced to land in Lahore. Pakistani security forces launched a hostage rescue operation, apprehending the hijackers. The passengers were returned, and the perpetrators were prosecuted and sentenced to prison terms by a Pakistani court.
4. 5th July 1984: An Indian Airlines flight transiting from Srinagar to Bombay carrying 255 passengers was hijacked by nine Sikh militants and taken to Lahore. Following negotiations, the passengers and crew were released unharmed, and the hijackers were taken into local custody.
5. 24th August 1984: An Indian Airlines Boeing 737 flying from Chandigarh to Jammu was hijacked by seven young Sikh militants who demanded to be flown to the United States. The flight traveled to Lahore, then to Karachi, and finally to Dubai, United Arab Emirates. The UAE authorities secured the release of all passengers and the aircraft, took the hijackers into custody, and extradited them directly to India to face trial under domestic laws.
6. 24th December 1999 (The IC-814 Hijacking): In an incident that influenced Indian national security policy, Indian Airlines Flight IC-814, en route from Kathmandu to New Delhi with 180 passengers and 11 crew members, was hijacked by five armed operatives belonging to the Harkat-ul-Mujahideen. The aircraft was flown to Amritsar, Lahore, and Dubai, before landing at Kandahar Airport in Afghanistan, which was then under Taliban administration.
The standoff lasted for seven days, during which one passenger, Rupin Katyal, was killed. To ensure the safety of the remaining hostages, the Indian Government agreed to release three jailed militants: Maulana Masood Azhar, Ahmed Omar Saeed Sheikh, and Mushtaq Ahmed Zargar.
Following the release, the hostages and crew were liberated. The hijackers and the released militants were permitted to leave Kandahar, illustrating the challenges encountered when states or territorial authorities fail to cooperate with international anti-hijacking frameworks.
To address these vulnerabilities and modernize its legal framework, the Indian Parliament enacted the Anti-Hijacking Act, 2016, which replaced the older 1982 statute. The 2016 Act broadened the definition of hijacking to include technological threats, introduced the death penalty for incidents resulting in the death of passengers or security personnel, and authorized the confiscation of movable and immovable assets belonging to convicted hijackers.
IV. Landmark Judicial Decisions on the Status of the Individual
The legal status and responsibilities of individuals under international law have been shaped by landmark rulings in international and municipal courts:
1. The Nuremberg Trials (1946) (International Military Tribunal)
In prosecuting senior Nazi leaders for war crimes and crimes against humanity, the tribunal rejected defenses based on state sovereignty, establishing a foundational rule for individual responsibility under international law:
âCrimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced... He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.â
2. Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, Judgment, ICJ Reports 1955, p. 4
While a dispute between states, this case addressed the individual's link to international law through nationality. The ICJ ruled that for a state's grant of nationality to be recognized internationally for diplomatic protection, there must be a "genuine link"âa factual connection based on social integration, residence, and interestsâbetween the individual and the state.
3. In Attorney-General of the Government of Israel v. Adolf Eichmann, 36 ILR 277 (Supreme Court of Israel, 1962),
The Supreme Court upheld the conviction of Adolf Eichmann for crimes committed during the Holocaust. The Court affirmed that genocide, crimes against humanity, and war crimes are offences under international law that concern the international community as a whole and may therefore be prosecuted under the principle of universal jurisdiction, irrespective of where the crimes were committed or the nationality of the offender or the victims. The judgment recognised that such offences violate fundamental norms of the law of nations and justify the exercise of jurisdiction by any competent State. The case remains one of the leading authorities on universal jurisdiction and individual criminal responsibility under international law.
V. Conclusion
The evolution of modern public international law has shifted the status of the individual from a mere object of state policy to a recognized subject within the international legal framework. Through multilateral conventions and specialized tribunals, international law guarantees fundamental human rights while imposing direct criminal responsibility for international crimes, balancing state sovereignty with individual accountability and protections under global jurisprudence.
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