The UN has played a significant role since 1948 in peacekeeping operations throughout the world. With over 16 missions underway and a total of 63 missions under its belt, the UN Peacekeeping machinery is well-oiled and sufficiently experienced to provide protection to governments and civilians struck by internal strife and external threats. Recent figures put the number of military and civilian personnel deployed at over 93,000.

Peacekeeping has come a long way since its early origins and has grown conceptually to include performance of both military and non-military functions during the course of peace support operations.  While peacekeeping forces have had successes in terms of mediating and implementing peace agreements, their inability to sustain lasting peace has been a cause for concern and criticism. In the 1990’s the UN’s failure to prevent violent episodes in Angola and Rwanda and its inability to avoid ‘relapses’ in other post-conflict zones affected its image as an effective and credible force and necessitated self-reflection and internal change. The nature of peacekeeping underwent a transformation, as did the mandate of peacekeeping forces. The world recognised peacekeeping to be a dynamic concept requiring continuous expansion and evolution with time. Simultaneously, there was also a realisation that peacekeeping was only an enabler of peace and security and not a final solution to violence and conflict. For durable peace, transformation of social, economic and political institutions would be required and root causes of conflict – which could range from cultural and ethnic hatred to a race for valuable resources – would have to be addressed.

Thus evolved the idea and need for peacebuilding which is an attempt at setting long-term goals, bolstering political and financial commitments to agenda’s having long gestation periods and contributing to the development of a civil society where human rights, dignity of life and basic needs are attainable. Peacebuilding is founded upon a realisation that there needs to be a cohesive effort by all interested parties to develop economic and social structures and remove hatred and fear from the minds of those affected by violence. The process also commits itself to the establishment of the rule of law since without a fair, impartial and effective mechanism of justice, society would retain the scars of the past and be rendered helpless and vulnerable to newer injustices.

With the Peacebuilding Commission having been set up in 2006 by the UN, the task of planning and strategising policies, resource gathering and resource allocation, building regional cooperation, reviewing progress and recovery goals and importantly extending the period of political attention and political commitment in conflict-recovery zones will receive focused attention. The commission will also look into sufficient and sustained funding and inclusion of best practices.

What may be derived from the above is a need for maintaining a continuum between peacekeeping and peacebuilding during the long process of attaining human security. Human security is pivotal to both long-term and short-term strategies of a peace operation. The UNDP report defines human security as “safety from chronic threats and protection from sudden hurtful disruptions in the patterns of daily life,” and identifies seven categories of threats: poverty, hunger, disease, pollution and environmental degradation, violence, cultural and political repression. The challenge lies in the creation of a mandate for peacekeeping and peacebuilding that will incorporate these factors into the respective mission strategies despite the differences that exist in their timeframes and primary functions. 

In order to achieve these tasks, a sustained effort to peacefully manage the interests of different groups, focus on cooperation and dialogue, systematise justice delivery mechanisms, initiate reconstruction programmes, bring constitutional reforms and address structural causes of conflict is required. Priority will have to be given to sound micro and macro economic policies, re-establishment of commercial ties and trade links and provision of adequate employment opportunities. The role of civil society in reconciliation, fostering of forgiveness and inner healing cannot be underemphasised either.

It is only with clear and coherent mandates, sound transition strategies and a multi-pronged approach that the twin efforts of peacekeeping and peacebuilding will result in creation of durable and sustainable peace.

In the judgment in the case of Gramophone Company Of India Ltd. v. Birendra Bahadur Pandey & Ors. [AIR 1984 SC 667] delivered on February 21, 1984, a Bench of the Supreme Court comprising Justices Chinnappa Reddy, Venkataramiah and R B Misra discussed the principle of international law on the question of the right of land-locked States to innocent passage of goods across the soil of another State in the following terms:

It appears that the leading authorities on international law have expressed divergent views on the question of the transit rights of land-locked countries.

While one group of writers, such as, Sibert, Scelle and others have held the view that these countries have an inherent right of transit across neighbouring countries, other equally eminent authorities, such as, Mc Nair and Hyde have held the view that these rights are not principles recognised by international law, but arrange but arrangements made by sovereign States”. The result of the lack of unanimity has been that the land locked countries have to rely on bilateral, regional or multi-lateral agreements for the recognition of their rights. The very existence of innumerable bilateral treaties, while on the one hand it raises it raises a presumption of the existence of a customary right of transit, on the other it indicates the dependence of the right on agreement. The discontenting situation led to attempts by national to commodity the rules relating to transit trade.

The earliest attempt was the Convention on the Freedom of Transit known generally as the Barcelona Convention. The second attempt was the Convention on the High Cease, 1958. The most recent is the 1965 Convention on Transit Trade of Land-Locked States. As this is the latest Convention on the subject and as both India and Nepal have signed the Convention, it may be useful to refer to it in some detail.

The Convention on Transit Trade of Land-Locked States was the result of a Resolution of the United Nations General Assembly which, “recognising the need of land-locked countries for adequate transit facilities in promoting international trade”, invited “the Governments of Member States to give full recognition to the needs of land-locked Member States in the matter of transit trade and therefore, to accord them adequate facilities in terms of international law and practice in this regard, bearing mind the future requirements resulting from the economic development of the land-locked countries”.

Article 1 (a) of the Convention defines the term ‘land-locked States’ as meaning ‘any Contracting State which has no sea coast. The term “traffic in Transit” is defined like this: the passage of goods including unaccompanied baggage across the territory of a Contracting State between a land-locked State and the sea when the passage is a portion of a complete journey which begins or terminates within the territory of that land-locked State and which includes sea transport directly preceding or following such passage. The transshipment, warehousing, breaking bulk, and change in the mode of transport of such goods as well as the assembly, disassembly or reassembly of machinery and bulky goods shall not render the passage of goods outside the definition of “traffic in transit” provided that any such operation is undertaken solely for the convenience of transportation. Nothing in this paragraph shall be construed as imposing an obligation on any Contracting State to establish or permit the establishment of permanent facilities on its territory for such assembly, disassembly or reassembly”; The term “transit State” is defined as meaning ‘any Contracting State with or without a sea-coast, situated between a land-locked State and the sea, through whose territory “traffic in transit” passes’.

Article 2 prescribes that freedom of transit shall be granted under the terms of this Convention for traffic in transit and means of transport. Traffic in transit is to be facilitated on routes in use mutually acceptable for transit to the Contracting States concerned. No discrimination is to be exercise based on the place of origin departure, entry, exit or destination or any circumstances relating to the ownership of the goods or the ownership, place of registration or flag of vessels, land vehicles or other means of transport used.

Article 3 provides for exemption of Traffic in Transit from customs duties or import or export taxes or any special dues in respect of transit, within the transit State.

Article 4 refers to means of transport and tariffs.

Article 5 refers to methods and documentation in regard to customs, transport, Act. Article 6 refers to storage of goods in transit.

Article 7 refers to delays or difficulties in traffic in transit.

Article 8 refers to free zones or other customs facilities.

Article 9 refers to provision of greater facilities. Articles 4 to 9 say that the details have necessarily to be worked out by mutual agreement.

Article 10 refers to relation to most favoured-nation clause.

Article 11 refers to ‘exceptions to Convention’ or grounds of pubic health, securities, and protection of intellectual property. It reads as follows:

Exceptions to Convention on grounds of public health, security, and protection of intellectual property:
1. No. Contracting State shall be bound by this Convention to afford transit to persons whose admission into its territory is forbidden, or for goods of a kind of which the importation is prohibited, either on grounds of public morals, public health, or security or as a precaution against diseases of animals or plants or against pests.
2. Each Contracting State shall be entitled to take reasonable precautions and measures to ensure that persons and goods, particularly goods which are the subject of a monopoly, are really in transit, and that the means of transport are really, used for the passage of such goods, as well as to protect the safety of the routes and means of communication.
3. Nothing in this Convention shall affect the measures which a Contracting State may be called upon to take in pursuance of provisions in a general international convention, whether of a word-wide or regional character, to which it is a party, whether such convention was already concluded on the date of this Convention or is concluded later, when such provisions relate:

(a) to export or import or transit of particular kinds of articles such as narcotics, or other dangerous drugs, or arms; or
(b) to protection of industrial, literary or artistic property, or protection of trade names, and indications of source or appellations of origin, and the suppression of unfair competition.

4. Nothing in this Convention shall prevent any Contracting State from taking any action necessary for the protection of its essential security interests”.

Article 12 refers to exceptions in case of emergency.

Article 13 refers to application of the Convention in time of war.

Article 14 refers to obligations under the Convention and rights and duties of United Nations Members.

Article 15 refers to reciprocity.

Article16 refers to settlement of disputes.

Article 17 refers to signature. Article 18 refers to ratification.

Article 19 refers to accession. Article 20 refers to entry in to force.

Article 21 refers to revision.

Article 22 refers to notifications by the Secretary-General.

And Article 23 refers to authentic texts.

It is thus seen that the Convention while providing for freedom of transit for the passage of goods between a land-locked State and the sea, across the territory of a transit State emphasizes the need for agreement between the land-locked country and the transit country and, it specifies certain exceptions.

The Convention places traffic (illicit) in industrial, literary or artistic property on the same footing as traffic in narcotics, dangerous drugs and arms. … The Convention declares exceptions permissible for five reasons (1) certain well-specified reasons of public policy; (2) because of overriding international obligations; (3) emergency in the country of transit; (4) in case of war: (5) protection of its essential security interests.

A few words about each, in view of their extraordinary importance.

1. Exceptions for reasons of public policy. The State of transit may — this is permissive, not obligatory — prohibit transit of certain goods for the reason that their import into its own territory is prohibited, namely (Article 11, Para 1):

(a) grounds of public morals- e.g., indecent literature:
(b) on grounds of public health or public security; (e.g., contaminated food or improperly packed explosives);
(c) as precaution against animal diseases plant diseases or pests.

This clause (the “dirty pictures and rotten fish clause”) will not hamper international trade if properly applied.

2. The same can probably be said of the “measures which a Contracting State may be called upon to take (“poutetre amena a prendre” in the equally authentic French version which is several noches less permissive) in obedience to certain international treaties to which it is a party, namely, treaty provisions relating to

(a) “export, import or (i) transit of particular kinds of articles such as narcotics, or other dangerous drugs, or arms”. (As to arms this would therefore only become operative if a worldwide or regional treaty prohibiting or restricting international arms trade existed).
(b) “protection of industrial, literary or artistic property, or protection of trade names”, and the like.

These provisions are noteworthy because they permit the States of transit to enforce, say a copyright or trade mark convention even if for example, neither the country of origin nor of destination is party to it. As far as these provisions go, transit traffic must not be hampered for any other reason of public policy of the State of transit. If that State forbids importation of certain luxury goods for financial reasons, or of certain textiles to protect its own spinning industry, that is, economic reasons, or of shortwave radios for political reasons, all such goods must still be permitted to pass through its territory.

3. Qualified emergency

4. War

5. Protection of essential security interests

(This is an edited excerpt of the judgment of the Supreme Court.)

Over a quarter of a century ago, on September 14, 1974, the Governments of India and Pakistan signed a bilateral agreement in Islamabad regarding visas to ‘nationals of either country desiring to visit the other’.

The agreement was signed in pursuance of the Simla Agreement of July, 1972. One of the consequences of the signing of the agreement is that Indians are not granted visas to individually holiday in Pakistan or Pakistanis to individually holiday in India despite the historical ties between the two countries.

Five types of visas can be granted under the agreement:

All visas must be used within three months of their issue after which they are automatically cancelled. The period of validity of a visa begins on arrival in the country which issued it.

In reply to a question asked in Parliament, in 2006, Mr E Ahamed said, “India is not included in the Pakistani list of 69 ‘Business Friendly’ countries and 23 ‘Tourist Friendly’ countries announced. Some India-specific measures announced by Pakistan include, inter alia, visa for civil society, senior citizens, widows and divorcees enhanced from three months to two years, visa of 30 days instead of 14 days for Group Tourists from India through designated tour operators, Pilgrimage Visa to Indian nationals (not less than 10 in number) to visit specified holy shrines in Pakistan for 15 days instead of 5 days allowed earlier, introduction of ‘Business Visa’ envisaging 6 months duration with multiple entries and maximum stay of 30 days subject to production of requisite documents, and expeditious processing of diplomatic and non-diplomatic visas of Indian diplomats posted in Pakistan.”

The 1974 agreement lays down the basic provisions regarding the various visas it envisages being granted:

(a) Diplomatic Visas

These are multiple entry visas which are ordinarily valid for one year and are issued to the Heads of the Diplomatic and Consular Missions, members of the Mission holding diplomatic or consular rank, their wives and children, and regular Diplomatic Couriers.
In addition to this, high ranking dignitaries are issued single entry visas ordinarily valid for one month as are high ranking officials visiting on official business or to attend international conferences. Members of the families accompanying those entitled to such visas are also given diplomatic visas.

(b) Non-Diplomatic Visas

These are multiple entry visas which are ordinarily valid for one year and are issued to non-diplomatic members of the Diplomatic or Consular Mission, their wives and children and the personal servants of members of the Mission holding Diplomatic or Consular ranks. They are valid for ‘stay at the place of assignment’ which is specified on the visa and are also ‘valid for journeys performed while accompanying a holder of a diplomatic visa’.

(c) Official Visas

These are single entry visas which are ordinarily valid for one month and for specified places. They are issued to officials not entitled to diplomatic or non-diplomatic visas to enable them to visit the country which issues the visa on official business. This includes enabling such persons to participate in international conferences.

(d) Visitor Visas

These are single entry visas which are ordinarily valid for specified places and for not more than three months although they ‘may be issued for a longer period not exceeding one year if owing to the nature of work or business a prolonged stay is necessary’.

Visitor visas are issued to persons visiting the country issuing the visa to ‘meet relatives or friends, for business or any other legitimate purpose’.

Those who hold such visas must register themselves at the check posts of entry (specified on the visa) and, within 24 hours of their reaching in the specified place of stay, report their arrival in writing to the prescribed authority or the nearest police station. They must also make a similar report 24 hours prior to their intended departure from the place of stay.

(e) Transit Visas

These are visas which are ordinarily valid for stay in the city/port of entry for 72 hours. They are issued to persons travelling by air or sea and proceeding to another country through Pakistan or India.

No visa is required for a passenger directly transiting through an airport/seaport provided he stays in ‘the area in the airport/seaport set apart for international transit passengers’.

Those who hold such visas must register themselves at the check posts of entry (specified on the visa) and, within 24 hours of their reaching in the specified place of stay, report their arrival in writing to the prescribed authority or the nearest police station. They must also make a similar report 24 hours prior to their intended departure from the place of stay.

The agreement also designates check posts for entry / exit which are specified on visas as follows:

Finally, there is a special provision for seamen which says that a seaman visiting a port as a member of the crew of a ship need not hold a Passport or a Visa. He may be issued a Landing Permit valid for the port of entry for a period not exceeding 24 hours provided he deposits his Continuous Discharge Certificate (nullie) with the Immigration Authorities.

Source: Ministry of External Affairs

In the judgment in the case of Gramophone Company Of India Ltd. v. Birendra Bahadur Pandey & Ors. [AIR 1984 SC 667] delivered on February 21, 1984, a Bench of the Supreme Court comprising Justices Chinnappa Reddy, Venkataramiah and R B Misra discussed the relationship between municipal and international law in the following terms:

It has been said in England that there are two schools of thought, one school of thought propounding the doctrine of incorporation and the other, the doctrine of transformation.

According to the doctrine of incorporation, rules of international law are incorporated into the law of the land automatically and considered to be part of the law of the land unless in conflict with an Act of Parliament. Whenever the rules of international law changed, they would result in a change of the law of the land along with them, ‘without the aid of an Act of Parliament.

According to the doctrine of transformation, rules of International law are not part of the law of the land, unless already so by an Act of Parliament, judicial decision or long established custom. No such change would occur unless the principles of international law are ‘accepted and adopted by the domestic law’.

Lord Denning who had once accepted the transformation doctrine without question, later veered round to express a preference for the doctrine of incorporation and explained how courts were justified in applying modern rules of international law when old rules of international law changed. In fact, the doctrine of incorporation, it appears, was accepted in England long before Lord Denning did so.

Lord Denning himself referred to some old cases.

In addition to that, in West Rand Central Gold Mining Co. v. The King, the court said:

“It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant”.

Lauterpacht in International Law (General Works) refers to the position in Germany, France, Belgium and Switzerland and says it is the same. He quotes what a German Court said to meet an argument that the role of customary international law conflicted with Article 24 of the German Code of Civil Procedure. The court had said, “The legislature of the German Reich did not and could not intend any violation of generally recognised rules of international law, when enacting Article 24 of the German Code of Civil Procedure.”

Lauterpacht refers to another German case where the argument that ‘there ought not to be a direct recourse to the law of nations, except in so far as there has been formed a German customary law’ was rejected with the statement, “The contention of the Creditor that international law is applicable only in so far as it has been adopted by German Customary law, lacks foundation in law. Such a legal maxim would, moreover, if generally applied, lead to the untenable result that in the intercourse of nations with one another, there would obtain not a uniform system — international law — but a series of more or less diverse municipal laws”. Lauterpacht summarises the position this way:

“While it, is clear that international law may and does act directly within the State, it is equally clear that as a rule that direct operation of international law is, within the State subject to the overriding authority of municipal law. Courts must apply statutes even if they conflict with international law. The supremacy of international law lasts, pro foro interno, only so long as the State does not expressly and unequivocally derogate from it. When it thus prescribes a departure from international law, conventional or customary, judges are confronted with a conflict of international law and municipal law and, being organs appointed by the State, they are compelled to apply the latter”.

There can be no question that nations must march with the international community and the Municipal law must respect rules of International law even as nations respect international opinion. The comity of Nations requires that Rules of International law may be accommodated in the Municipal Law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with Act of Parliament. Comity of Nations or not, Municipal Law must prevail in case of conflict. National Courts cannot say “Yes” if Parliament has said “No” to a principle of international law.

National Courts will endorse international law but not if it conflicts with national law. National courts being organs of the National State and not organs of international law must perforce apply national law if international law conflicts with it. But the Courts are under an obligation within legitimate limits, to so interpret the Municipal Statute as to avoid conformation with the comity of Nations or the well established principles of International law. But if conflict is inevitable, the latter must yield.

The proposition has been well stated by Latham CJ in Politics v. The Commonwealth:

“Every statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law ………. It must be held that legislation otherwise within the power of the. Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity. The question, therefore, is not a question of the power of the Commonwealth Parliament to legislate in breach of international law, but is a question whether in fact it has done so”.

The Supreme Court of India has said practically the same thing in Tractor export, Moscow v. M/s Tarapore & Company and Anr.:

“Now, as stated in Halsbury’s Laws of England, Vol. 36, page 414, there is a presumption that Parliament does not assert or assume jurisdiction which goes beyond the limits established by the common consent of nations and statutes are to be interpreted provided, that their language permits, so as not to be inconsistent with the comity of nations or with the established principles of international law. But this principle applies only where there is an ambiguity and must give way before a clearly expressed intention. If statutory enactments are clear in meaning, they must be construed according to their meaning even though they are contrary to the comity of nations or international law”.

The observations show that the court was only concerned with a principle of interpretation, but, by, implication, it may be possible to say that the court preferred the doctrine of incorporation; otherwise the question of interpretation would not truly arise. What has been said in the Tractor Export case is entirely consistent with what the Supreme Court had said earlier.

(This is an edited excerpt of the judgment of the Supreme Court.)